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Open Letter to President Obama

As 2015 drew to a close, the Washington Post reported that Immigration and Customs Enforcement (ICE) was cranking up its deportation machinery against persons – including many families with children – whom had been denied asylum or refugee status by an immigration court despite the genuine threat of violence and peril to their lives. In the letter, I argue that this move is pointless in that it serves no real national interest in addition to being cruel and avoidable.

The Honorable President Barack Obama

The White House

1600 Pennsylvania Avenue NW

Washington DC, 20500 December 30, 2015

Dear Mr. President,

Over the past week, news reports, led by one in the Washington Post, have asserted that Immigration and Customs Enforcement has planned a surge of removals of immigrants from Central America pursuant to rulings from the immigration courts, including denial of asylum or refugee status. While I understand the legal rationale for enforcement of court directives, I am deeply disturbed by the aggressive posture underpinning the planned deportations. The press has invoked the likelihood of raids, which conjures images of brusque police actions. Also, I am not convinced that all legal avenues have been explored that would permit your administration to avoid taking the cruel, and in my view often pointless step of returning immigrants to the clear and present dangers they face in Guatemala, Honduras and El Salvador. In particular, the immigration courts appear to have adopted a narrow interpretation of the eligibility for asylum, generally declining to extend the notion of membership in a persecuted social group to persons targeted by gang and other organized violence. To me, such people are not an abstraction. I know them. They are woven into the fabric of our communities.

As you know, since relevant modifications were included in S.744, immigration courts are hamstrung by rules voted into law by Congress in 1996 severely constricting the discretion of immigration judges to weigh conflicting interests of the state in their rulings. Let alone that the courts are ridiculously under-resourced and that there are immense discrepancies in how respondents are treated in function of their access to legal representation. This situation has ruptured the correlation between law and justice. In addition, the plenary power doctrine, while present neither in any Federal statute nor the Constitution, nevertheless has effectively deflected scrutiny by the Federal courts of our immigration statutes, which contain very clear problems of compliance with rights enumerated in the Constitution. I will be the first to acknowledge that public safety and order figure prominently among the prerogatives and duties of the government. However, when these are not in jeopardy, other interests of the State deserve consideration, and ignoring them actually undermines the rule of law: family unity, cohesive communities, proportionality in the application of the law, and respect for international treaties, conventions and principles of civilization. Again, I understand that Federal law and the mandate of the immigration courts as they currently stand inhibit such consideration; they do not, however, preclude it to the point of eliminating all means at your disposal to prevent deportation of people who present no threat to the country and whose lives would be imperiled were they to be removed. Indeed, reversing the enforcement actions planned for January would comply with your own commitment to human rights; conversely, carrying them out would compromise a legacy that includes the courageous DACA program, a tribute to your sense of decency, realism and principle. (I have worked with and befriended DACA beneficiaries; we are fortunate to have them among us.)

Beyond the legal considerations, the reported planned removals would perpetuate the delusional denial of our responsibility for the international conditions that have led to migration. (I’ll leave aside the economic model that has also attracted labor over the years, much to our benefit.) Please note that I use the word responsibility as distinct from guilt. You and I are not guilty of the violence that has led people to flee their homelands; the perpetrators are. However, is it really appropriate or honest for us to exclude from the discussion the truth of our history of muscular intervention in Central America over the course of a century? Dozens of times we have intervened militarily in Central America to assist regimes hostile to the well-being of their own people ­– and to land reform in particular ­– and to the benefit of exploitative multinational agribusiness and oligarchs. This history has left in its wake the perpetuation of poverty, oppression, corruption and the rule of violence. In our standard political discourse, we routinely lump together guilt and responsibility: in that way, in denying the first, even legitimately, we deflect the second. A handy device, but an untruthful, shameful one, which I am confident you do not wish to be party to. You have shown so in your determination to accept 10,000 refugees from the civil war in Syria, implicitly acknowledging the contribution of past policies to continued brutality in that region.

Also troubling is the emerging explanation for the decision to target recent Central American arrivals for perfunctory removal. While the surge of refugee border crossings in 2014 abated with the help of the Mexican government, it has been reported that off-season migration has been on the rise, presaging, perhaps, another mid-year surge in 2016, which ICE is apparently anxious to prevent. There is a numerical logic to this, especially once combined with Federal courts impugning the detention regimen for families with children and favoring their release. However, such reasoning does not address the reality of sustained violence in Guatemala, Honduras and El Salvador, nor that of lethal danger facing those who have fled, which is, if anything, increasing. Accordingly, mass deportation of objective refugees would coincide with conditions that add legitimacy to requests for asylum, rather than diminish it. It would be tragic if analogies to episodes of our past we would rather not repeat return to haunt you and those who, like I, have never doubted your good faith. And certainly the exposure of the immigration detention system as legally and constitutionally flawed should not trigger an even harsher response.

Last, it is distressing to contemplate raids, actual raids of residential neighborhoods and the traumatic impact they would have on our communities. It will not be long before images of armed police in heavy boots kicking down doors light up our television screens, smart phones and tablets. The very thought fills me with dread. And to what end? What is the compelling interest of the State that justifies a policy of gratuitous endangerment of refugees, few in number once considered the size and diversity of our population and the demonstrated ability of much smaller and often poorer nations to accommodate far larger numbers of migrants fleeing violence?

Mr. President, I have been and remain a supporter of your administration, and I bristle at the accusations and comments of those who have disparaged you, personally, and your motives. So I cling to the hope that you will not proceed with the removal of these refugees. Please accept my thoughts in the spirit in which they are given, along with my sincere Best Wishes for a fulfilling New Year.


Daniel Kunstler


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