Immigration and Naturalization Service v. Elias-Zacarias

A difference of political opinion is when one person wants the coal industry to get tax breaks, but another person wants the oil industry to get tax breaks. Not wanting to be conscripted into an army to fight in a war against your will is NOT a political opinion. Therefore, it is totally fine for the United States - the nation that instigated the war mind you - to deny you an asylum hearing and send you back to face that certain fate.

A podcast where we dissect and analyze the Supreme Court cases that have left our naiton tired and overburdened, like an accountant during tax season

0:00:00.4 Speaker 1: We'll hear argument first this morning Number 90-1342, Immigration and Naturalization Service versus Jairo Jonathan Elias-Zacarias.


0:00:16.2 Leon: Hey, everyone. This is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about INS v Elias-Zacarias. It's an immigration case in which a man was denied an asylum hearing. The government argued that avoiding conscription into a rebel army is not a political opinion, and thus Elias-Zacarias was not qualified to seek asylum on the basis of political persecution. The argument was that just because someone is avoiding harm, it doesn't mean they are politically opposed to the harm.

0:00:52.2 Speaker 3: Supposing a voter says, "The reason I'm voting for candidate X is 'cause I'm afraid of the harm of losing my job." Would that be a political opinion? They don't understand the economic theory and various political dialogues that go on. How would that be different from this?

0:01:07.3 Leon: As you'll hear, the hosts would argue it's not different. But the court ruled against Elias-Zacarias and sent him back to Guatemala. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:25.0 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our nation tired and over-burdened like an accountant during tax season.


0:01:34.7 Peter: I'm Peter. I'm here with Rhiannon.

0:01:36.6 Rhiannon: You're talking personal stuff today, Peter?


0:01:39.2 Rhiannon: Bringing personal stuff on the podcast?


0:01:42.6 Peter: Yeah. Look, so the audience knows, I just finished telling Michael and Rhiannon a bunch of information they did not wanna hear about my tax season so far.


0:01:51.0 Michael: Yeah, that's right. And asked for advice, which was a big mistake.

0:01:56.2 Peter: Yeah. And Michael is here too. Hey, Michael.

0:01:58.9 Michael: Hey, everybody.


0:02:01.8 Peter: Today's case is INS v Elias-Zacarias. This is a case from 1992 about a man seeking asylum in the United States. If you are a foreign citizen, you can seek asylum in the US, but only if you meet certain criteria. One of those criteria is persecution on the basis of political opinion. As you all know, the United States is a beacon of freedom that shines the world over.


0:02:31.5 Peter: And therefore, we want to be a safe harbor for anyone who is experiencing oppression based simply on their politics. Enter Jairo Jonathan Elias-Zacarias, who flees Guatemala and enters the United States without documentation in 1987. He is arrested, and then he seeks asylum. His basis for asylum is that he was persecuted for his political opinions because when he was in Guatemala, rebel guerillas entered his home and demanded he and his family join the rebellion. They refused fearing reprisal from the government. Shortly after, he fled the country fearing that the rebels would return and sought asylum in the United States. But the Supreme Court, in a 6 to 3 decision written by Antonin Scalia, rejected his claim, saying that wanting to escape forcible recruitment into a rebellion is not a political opinion.


0:03:32.6 Peter: And therefore he is not qualified for asylum.


0:03:37.5 Peter: Now before we let Rhi get into the facts here...

0:03:41.6 Rhiannon: We're mixing it up a little.

0:03:43.0 Peter: Yeah.

0:03:43.7 Rhiannon: Yeah.

0:03:43.9 Peter: Some political history might be useful because this man is fleeing the Guatemalan Civil War, which was fought for nearly 40 years from 1960 to 1996. And what led to the Guatemalan Civil War was the fact that for many years, the United Fruit Company, now Chiquita, had monopolized and exploited huge percentages of Guatemalan land, having stolen it from indigenous people with the assistance of a string of dictators. In the 1940s, popular pressure forced the existing authoritarian leadership out of power and elections were held. The result was a string of relatively progressive leaders, for the time, including the 1951 election of Jacobo Arbenz, who implemented some reforms that took land back away from the United Fruit Company. United Fruit Company in turn asked the United States government to overthrow the government of Guatemala.


0:04:43.8 Rhiannon: Casual.

0:04:44.2 Michael: Yeah.

0:04:45.3 Peter: And that put the great and noble United States in a bind. On one hand, America is the birthplace of modern democracy and of course wants nothing more than to support and affirm democratic self-governments the world over. On the other hand...


0:05:02.2 Michael: Chiquita banana...


0:05:03.3 Peter: One of the biggest fruit companies in the world wants some of its land back. So tough decisions, right?

0:05:11.8 Rhiannon: Right. You gotta balance these things. Yeah.


0:05:13.8 Peter: And the United States, after what I imagine were some really tough deliberation, they backed a coup and installed arguably the most violent government regime in Latin American history, responsible for a remarkably cruel genocide targeting political opponents and indigenous peoples that spanned decades. It is the conflict between that regime and a handful of leftist resistance groups that Mr. Elias-Zacarias was fleeing. So that's just a little overview of the US, and specifically CIA involvement in the turmoil in Guatemala in case you didn't know. Or if you've got it confused with US sponsored coup's in Chile, Nicaragua, Bolivia, the Dominican Republic, Panama, Argentina, Paraguay, Burma, Egypt, Syria, Indonesia, Congo, Laos, Iran, or one of the others.

0:06:12.7 Michael: Yeah.

0:06:12.9 Rhiannon: You would be forgiven for maybe mixing it up.

0:06:15.1 Peter: Yeah, anyway, that's the political history. Rhi, if you wanna maybe dig into the detail a bit.

0:06:20.2 Rhiannon: Yeah, sure. So this case is about Jairo Elias-Zacarias, and in 1987, he's just 18 years old, when two armed and uniformed guerrilla fighters come into his home, forcibly, where he lived with his parents. They demanded that Elias-Zacarias join the guerrilla army and fight with them against the government of Guatemala. Now, Elias-Zacarias and his family refused to join because they were scared of violent retaliation by the government for joining the guerrillas. The guerrillas though in turn, promised to come back to their house, so just two months later, Elias-Zacarias fled his native Guatemala and eventually made it to the US. In July 1987, Elias-Zacarias was arrested by INS, that's Immigration Naturalization Service. That's the organization in the Department of Justice that proceeded border patrol and Ice. So he was arrested by INS and put into deportation proceedings. During those proceedings, he requested that deportation be withheld and he said that he was seeking political asylum in the US, but the immigration judge concluded that he was ineligible for asylum, because he didn't show allegedly a well-founded fear of persecution on account of his political opinion. This was despite the fact that Elias-Zacarias showed that the guerrillas had in fact returned twice to his house to recruit him since he left Guatemala.

0:07:50.0 Michael: Recruit him?

0:07:51.1 Rhiannon: Yeah.


0:07:51.1 Michael: We should be clear we're using that word very loosely.


0:07:56.2 Rhiannon: Yeah, yeah, we're talking about forcible conscription here, right? Like, yeah, it's not like a high school ROTC recruitment, right?


0:08:04.7 Michael: Exactly, yeah.


0:08:06.2 Rhiannon: So the immigration courts decision, denying that Elias-Zacarias had a claim to political asylum. That decision was appealed and the Ninth Circuit actually reversed. They made a holding that acts of conscription, you know, getting forcibly recruited into an army are sufficient to establish persecution or the fear of persecution on account of political opinion. And they further held that refusal to become involved with any political faction was itself an affirmative expression of a political opinion and that Elias-Zacarias had a well-founded fear of persecution because of that opinion. Of course, this gets appealed up to the Supreme Court and they reversed everything.


0:08:50.4 Peter: Yeah, so onto the opinion, you know the legal question is whether this situation fits one of the categories established by the immigration and nationality act as a legitimate reason for asylum. Namely does his situation count as, "Persecution on account of political opinion?" And the court of course, says no.

0:09:14.9 Rhiannon: Nope.

0:09:15.3 Peter: They provide two basic reasons. First, they say, wanting to avoid fighting in a war is not really a political opinion, because you could theoretically agree with the war and still not want to fight. Second, they say it doesn't matter that the conflict is political. What matters is whether the victim is being persecuted for his political opinion. And they don't think that he was. Look...


0:09:48.2 Peter: The descent is by Stevens, right? And makes some pretty reasonable points. First, he sort of says, "Look, wanting to remain neutral is a political decision, right?"

0:10:00.4 Michael: For sure.

0:10:00.9 Rhiannon: Yes.

0:10:01.5 Peter: Which seems obvious enough, like weighing your values against the risks of war is political, right? Yes, you can support the aims of a military force and not want to fight, but not wanting to fight is still the result of an assessment that you make that is necessarily intertwined with your politics.

0:10:19.0 Rhiannon: Absolutely.

0:10:19.8 Peter: And you know, in other words, to put it maybe a little more pointedly than Steven's, it can't possibly be that the decision to risk your life in service of a cause is a political decision, but the decision not to risk your life in service of a cause, isn't?

0:10:36.0 Michael: Yeah, I mean, it's hard to not just make this point over and over during this episode, but like... Yes, obviously not joining a war is a political opinion. And you know, the majority kinda knows they are full of shit on this for a variety of reasons. One thing I wanted to highlight, although the question is not whether or not he'll face persecution and what the definition of persecution is? It's about what is and is not a political opinion. I think it's really telling that the majority frames this as him fearing conscription or being forced into military service, I believe, are the phrases they use. Whereas, Steven points out in the descent. The way he describes it is he's gonna be kidnapped or killed, right? That's what we're talking about here, is I'm gonna be kidnapped or killed. And the majority isn't really... They don't have the balls to say, "Yeah, but you're not gonna be killed because of your political opinions."

0:11:39.6 Rhiannon: Right.

0:11:41.2 Michael: So instead they try to rosy it up, right? They sugarcoat this as much as they can to make it not sound as horrific as it is. Because they know it's horrific and they know they are full of shit on this. I mean, look, everybody knows... There's the old aphorism, right? War is just politics by other means or whatever, is a... Mao Zedong said something like, "War is politics with bloodshed, and politics as war without bloodshed or something like that. You get power at the end of a barrel of a gun," Right? Like, war always has been politics, and your decisions around war, whether you support it, whether you oppose it, whether you join it or not are just inherently political. They are, and everybody knows it, right? Like it's not...

0:12:31.9 Michael: The most salient example, I think, for the US is Muhammad Ali, who famously refused the draft in Vietnam, he was drafted and he refused to serve and was arrested and tried and found guilty and given the maximum sentence of five years in prison and a $10,000 fine. It was a huge news story. You can't tell me that wasn't political and it wasn't understood as political, his decision to not fight in the Vietnam war...

0:13:03.6 Rhiannon: That's right.

0:13:03.9 Michael: Was highly political. Everything about it was political, they refused to call him Muhammad Ali at trial. They used his old name, Cassius Clay. When he was convicted, the New York Times identified him as Cassius Clay in the headlines the same day he was convicted, Congress passed a law making it illegal to desecrated the American flag. This was a time of war and openly and prominently saying, I'm not gonna fight a war was understood as a very subversive and very dangerous political opinion that needed to be snuffed out.

0:13:42.1 Peter: Right.

0:13:42.4 Rhiannon: Yeah, that's right.

0:13:43.1 Michael: Just about everybody nibs the majority who was alive and an adult at that time were fucking seething over this.

0:13:49.8 Rhiannon: Of course.

0:13:50.6 Peter: Yeah, the modern Republican Party was built on the back of the... Not just pro-war sentiment, but anti-anti-war sentiment.

0:14:01.0 Michael: Right. Reactions to the hippies who were the anti-war hippies? That is a huge part of...

0:14:05.7 Peter: That's the party of Nixon. That's how this era of... Like the modern era of politics that we still exist in now like it's how it kicked off.

0:14:13.2 Michael: Right, right.

0:14:15.3 Rhiannon: Absolutely.

0:14:16.4 Peter: Two things I wanna point out here. I understand the argument in a vacuum that not wanting to die is not necessarily a political opinion in and of itself. But not wanting to die in a particular ideological war is a position that most certainly has at the least a political component. And more to the point, wanting to be safe is a political thing. If you're a law and order conservative like Antonin Scalia, you probably want politicians to focus on crime in your neighborhood because you want you and your family to be safe or whatever. Is that not politics because it's predicated on your personal safety? Because seems to be the argument that the majority is making here, they're saying, "Well, he doesn't really have a political opinion, he's just fleeing danger." that's different. But is wanting access to healthcare, not political, because the fundamental concern is your health and well-being? It's the same shit. If Scalia saw some neighborhood watch dipshit petitioning the City Council about crime on his street, he would immediately understand that that man is doing politics, he is expressing a political opinion, but he sees someone fleeing a war-torn country and he cannot process it the same way.

0:15:37.8 Peter: This is the output of a sheltered, coddled group of elites who perceive of politics as something that happens through the vessel of a series of op-eds and cable news segments or whatever, right.

0:15:53.8 Rhiannon: Yeah, yeah.

0:15:54.4 Peter: They think that the way you express a political opinion is to write a letter to the editor.

0:16:00.1 Rhiannon: Yeah. Get out and vote.


0:16:00.8 Peter: The idea that your politics might be expressed through a series of choices about whether or not to participate in violence is just completely foreign to them. Like to an [0:16:10.0] ____ little coward, like Scalia, politics is just something you talk about at cocktail parties, it's something you're snarky about in your opinions. But to most people on this planet, politics is something that you experience and the decisions you make about politics are the decisions that you are making about your own life. Not like you trying to petition a politician or something along those lines, but you trying to control the circumstances of your life, and they just don't understand that. They don't understand that for most people, policy decisions, decisions made by people in power or with power, weigh on your life. This man is making a decision not to engage in violent political struggle, and he is fleeing retribution for that decision. How stilted and hollow of analysis are you doing to think that that is not political persecution in some meaningful sense. It's just a complete misunderstanding of what politics is, what it is to have a political belief and a political opinion, and it's just this like ivory tower bullshit.

0:17:23.5 Rhiannon: Yeah, I think that's so well put, Peter, this is a case that really exemplifies just how far the Supreme Court justices are from the real world, the real circumstances that people find themselves in all over our planet. Supreme Court Justices like Antonin Scalia cannot imagine, could not imagine what it is like to walk from one country to another. To be crammed into a truck and hidden as you drive across a continent. To swim across a border when you don't know how to swim and you have an infant strapped to your back. They simply do not understand the significance of that kind of journey and what it means about what you're fleeing, about the fear, the loss, the hopelessness that drives that kind of journey. People do not undertake that kind of journey unless home is fundamentally not safe for them, and that expression, that that journey, that is an expression of a political opinion. Wanting to be safe from state violence is absolutely a political opinion.

0:18:26.0 Michael: Yeah.

0:18:26.0 Peter: Yeah, I think it is time for a quick break.

0:18:30.8 Rhiannon: Okay, we are back.

0:18:32.7 Michael: I think it's worth mentioning about the posture of this is the question isn't whether Elias-Zacarias gets asylum or not. It's whether he's eligible for asylum. Even if he's eligible, it's within the attorney general's discretion, and they still might deny it to him.

0:18:51.6 Rhiannon: Yes.

0:18:52.8 Michael: That's not even what's at stake here. What's at stake here is whether this is even like a category of people who are entitled to an individualized determination of asylum and the court is saying, "No, absolutely not." It's obscene.

0:19:09.2 Rhiannon: Yeah.

0:19:10.9 Michael: It's absolutely obscene. But like Rhi was saying, this is something... These conflicts are something they experience as like dramatic photography in Time Magazine or something, right? That's what it is to them, like a fascinating segment on Dateline that makes you go, "Wow."

0:19:26.2 Rhiannon: If that, if it's not that, then actually, probably it's something more like an understanding of gang violence or gang warfare in some far-off place, right?

0:19:36.2 Michael: Yes, Scalia didn't watch Dateline, he watched Fox News, so...


0:19:42.0 Rhiannon: That's right, yeah. And we should talk a little bit about how these immigration proceedings actually happen on the ground, like the arbitrariness of this whole system. We're talking about obviously the Supreme Court opinion in this case and critiquing the political and philosophical arguments that are put forth here, but it's important to highlight, I think, just how deeply fucked our immigration system is and how arbitrary it is. So if you are in, say, deportation proceedings or proceedings in which you are asking for asylum in the United States, so much of that decision and what happens to you is left to where they decide to transfer you. It can be an immigration jurisdiction anywhere across the country, depending on where you come in to the US. You could be sent to an immigration judge in Atlanta who has a grant rate on asylum cases of 1%, or completely luck of the draw, you could be sent to an immigration judge in San Francisco who has a grant rate on asylum cases of 50% or 60%. That's not fair. That's not the equal administration of an immigration system that is working.

0:21:00.6 Michael: Right.

0:21:01.9 Peter: Right. Nor is it due process to be specific.

0:21:04.2 Rhiannon: That's right. Not even to mention, we've just hit two years of special provisions in immigration law that are keeping the southern border completely closed to asylum seekers right now. Some would say this is breaking international law to not allow asylum seekers in when people are needing a place to flee to. So it's like they're using COVID justifications to...

0:21:26.9 Peter: No, no, no, I've seen a lot of memes on Facebook, they're letting all the COVID-ridden illegal immigrants in. That's the Biden policy.


0:21:34.3 Michael: Yeah. And they got COVID from raping people.

0:21:38.5 Rhiannon: Yeah, that's right, and being in gangs.


0:21:44.9 Michael: And you know, we have a history of a very arbitrary and unfair immigration system that has been abetted by the Supreme Court for...

0:21:57.8 Rhiannon: Yes.

0:21:57.9 Michael: Over 100 years, right? We've talked about it on this podcast before, but it's worth repeating, it bears repeating, like going back to the 1880s when the court made up out of nowhere that the Constitution doesn't apply in immigration settings, and therefore, a law that was literally called the Chinese Exclusion Act was just fine to deporting people for being members of the Communist Party, supposedly in the '50s, to the Muslim ban. More recently, the court has just given a green light to the very, very worst impulses of our elected branches for its entire history, essentially, for as long as immigration has been a subject that the court has considered. And here what you see is even worse, it's not just rubber-stamping the worst excesses of the executive branch, in this case, they themselves are doing everything in their power to make our immigration system less humane, less decent, less moral and less congruent with the values of the Constitution, which is they can do because the Constitution doesn't count, it doesn't apply, it doesn't matter.

0:23:15.8 Peter: The grounds for asylum are so thin, and to narrow them even further than they already are by saying that this is somehow not a matter of political persecution, it's grotesque. And I mentioned earlier, the violence in Guatemala was directly tied to the actions of the United States, which makes this case sort of like multiple layers of cruel and brutal. It's rare you see the reality of the United States contrasted so plainly with the rhetoric that it spews about itself. Like the elementary school propaganda version of America is the Statue of Liberty, give us your tired and poor.

0:24:03.2 Michael: An American Tale.

0:24:04.5 Rhiannon: Yeah.

0:24:05.4 Michael: Bible goes west.


0:24:08.9 Peter: That was an American Tale too, but...

0:24:11.1 Michael: That's right. Thank you.


0:24:14.5 Rhiannon: Did you know that they were Jewish refugees?

0:24:18.1 Peter: In Fievel...

0:24:18.2 Rhiannon: The Fievel...

0:24:18.9 Peter: The Fievels? Yeah.

0:24:20.5 Rhiannon: Fievel Mousekewitz.

0:24:21.0 Michael: Yeah.

0:24:22.3 Rhiannon: Mousekewitz, right, the Mousekewitzes.

0:24:24.7 Michael: It's beloved in my Jewish household growing up as a result.

0:24:27.4 Peter: Really underrated. I just checked the IMDB, I was gonna say recently, but it was probably like two years ago, not very well received by critics, and I think it's absolute bullshit based on what I remember.

0:24:39.6 Michael: No, it was fucking great.

0:24:39.9 Rhiannon: That movie was amazing.

0:24:41.1 Peter: They were phenomenal.

0:24:41.4 Michael: Yeah.

0:24:43.6 Peter: And when he went west, it really tied the whole thing together.


0:24:52.0 Peter: Anyway, look, there's this fucking image of the US fighting for freedom across the world, right? You get taught that bullshit your entire life. Meanwhile, the CIA wanted to secure American hegemony in Latin America and protect the profits of Chiquita Banana, and as a result, you get a coup and a bloody decades-long war...

0:25:16.4 Rhiannon: Yes.

0:25:16.5 Peter: A genocide, which people naturally want to flee and perhaps even seek shelter in America. And these suit-and-tie motherfuckers tell you that your reason for coming to America isn't good enough. Even if for some reason you agree with the court's interpretation of the law here, which would make you an idiot, but even if you do, it's still morally repulsive. Like one way or another, this is the output of a country with no ethical compass, with no soul, and that's why it's the official position of our podcast that when Christ returns, God will rain fire and sulfur upon America like he did Sodom and Gomorrah.


0:26:07.3 Michael: Is that how it works? I don't know anything.

0:26:08.6 Rhiannon: Yeah, from three people who were not raised Christian. [laughter]

0:26:13.2 Peter: I don't know what happens when Christ returns, according to the Bible or according to people who read the Bible. I don't think He destroys cities, but it feels to me God could do whatever. It's not against the rules for Him to destroy America.

0:26:26.8 Rhiannon: Sure, that's like the part of the whole God thing. Yeah.

0:26:29.7 Peter: Right. I think it would be... If he's gonna send Jesus back... Okay, our producer is telling us that we need to watch the Left Behind movies. Okay, so my understanding of the Left Behind movies is that the chosen people, they just disappear and everyone else is sort of left behind...

0:26:46.1 Rhiannon: No, that's Leftovers.

0:26:47.2 Peter: Huh?

0:26:47.3 Rhiannon: It's... I think it's... I don't know.

0:26:50.9 Peter: Rachel, you wanna... Alright...

0:26:52.2 Rhiannon: Rachel, chime in.

0:26:53.4 Peter: Can you explain?


0:26:54.9 Michael: Rachel, get in here. Get in here, Rachel.

0:26:55.9 Peter: Now, entering part two of this episode.

0:26:58.6 Rachel: Okay, so here's what I know about... I've seen one Left Behind movie and it's from after Kirk Cameron got religion, and it's exactly what Peter is describing, like all of the good people are gone and all that's left are the people who are ambivalent about Jesus, and then there's the tribulation and they have to fight. But what I remember most vividly about the movie is that they seemed to have only had a budget for one explosion, so they just kept showing it over and over and over again. [laughter]

0:27:26.7 Rhiannon: Yes. That's movie magic, baby.

0:27:29.4 Peter: Yeah, that was God destroying America.


0:27:32.3 Rachel: Yeah. God only had money for one explosion.


0:27:35.3 Michael: I think it would rock.

0:27:36.9 Peter: Michael is making a good point. If they just sucked up the evangelicals and left everyone else, that would fucking work.

0:27:43.9 Rhiannon: Yeah.


0:27:44.3 Michael: It would be so cool! It would be so awesome. It would be so... Like I wish for that all the time. [laughter] Can't we just get rid of these people, drive them into the ocean or something? God, take them. Do us all a favor.

0:27:58.8 Peter: They would be sitting at the right hand of God and they'd be like, "God, can we see what's going on down below?" and it cuts to us just like at a wine bar...

0:28:05.5 Michael: Fucking partying. [laughter]

0:28:06.0 Rhiannon: Chilling.

0:28:07.1 Michael: Just like a harmonious multi-racial democracy. [laughter]

0:28:10.7 Rhiannon: Yeah. [laughter]

0:28:14.8 Peter: Everything is basically the same but like there's healthcare.

0:28:17.5 Rhiannon: Right, right, yeah, exactly.

0:28:18.5 Michael: Yeah, yeah.

0:28:20.5 Peter: Fucking rule [0:28:20.5] ____.

0:28:22.0 Rhiannon: So we should mention that Elias-Zacarias eventually was able to come to the United States, he was deported to Guatemala, and then was able to come to the US because he won the visa lottery.


0:28:41.0 Rhiannon: So just another layer of cruel...


0:28:41.1 Peter: God bless America...

0:28:42.6 Rhiannon: Yeah, maybe... So there's a sort of happy ending there, but...

0:28:46.2 Peter: You thought that we have a cruel and unforgiving immigration system?

0:28:50.1 Rhiannon: Yeah.

0:28:50.9 Peter: Well, the random number generator selected him out of the genocide in Guatemala.

0:28:55.3 Rhiannon: Jackpot.

0:28:56.7 Michael: You write all your hopes and dreams and your last chance at life on a little piece of paper and they put it in the little bingo machine and turn the crank and someone closes their eyes and reaches in. [laughter]

0:29:09.9 Rhiannon: That's right. That's the system that we've got. And we should talk too about the narrowness of the grounds for asylum. We talked about the arbitrariness of the system, so so much depends on what judge you end up in front of in immigration court. And none of these cases are as clear-cut as you think because so much depends on that judicial discretion in these immigration proceedings. So I have many friends who work in the immigration system, represent people who are seeking asylum in the United States and trying to avoid being deported.

0:29:49.1 Rhiannon: My friend talked about a case that stuck with her, in which a client who was literally in his 70s, disabled and in a wheelchair, he suffered from dementia and had a traumatic brain injury as well as many mental health diagnoses. He was in the United States and seeking asylum here, and evidence in the record and proven in past cases showed that there was a high likelihood of torture in mental health facilities in Mexico where he was from, and given his situation, it would be most likely that's where he would end up in one of these mental health facilities. You can't get a less complex, clear-cut asylum case. You think that that would be enough to show that you have a fear of persecution on account of you being mentally ill, on account of being a disabled person. That man was not granted asylum. That person was deported. And so it's just to highlight that the majority of cases in which people are requesting, seeking asylum, the majority of those cases are denied, and so much depends on this arbitrary system in which you have no control over what immigration judge you're in front of.

0:31:05.6 Michael: Yeah, and like Rhi was saying, like best case scenario, it's like 50/50, worst case scenario, it's like, it's zero.

0:31:13.7 Rhiannon: Right.

0:31:15.5 Michael: It's effectively zero. And so, going back to Peter's point about the disconnect between American rhetoric and supposed values and the reality, in this case, it's worth mentioning that this is like... This is happening in the late '80s. So this is like the Reagan presidency. Reagan was the guy who loved calling America the shining city on a hill.

0:31:40.9 Rhiannon: Yeah.

0:31:41.0 Michael: Right? That was this whole thing, is optimism about the greatness of America, and then they're going to court and fighting tooth and nail to send this guy back to be killed or kidnapped by fucking, a guerilla army.

0:31:55.5 Rhiannon: Right.

0:31:55.7 Michael: It's just disgusting. This is a... Immigration is very much like an area of bipartisan disgust, but this opinion is very... [chuckle] It's just the pits and it feels very Republican in this case.

0:32:11.3 Peter: Yeah, yeah, there's just no humanity in the way that the court approaches the question. And if there was ever a law to read some higher purpose into, the asylum law where we are, as a country, deciding that we will provide some shelter to people who are suffering in other countries, if they're being discriminated against for their race or religion or their political opinion, that we will give them safe harbor. Not that the United States follows these ideals, but if there was ever something to strive toward, it would be the principles that undergird this law to watch the court just sort of rotely walk through it, as if you can just do this super narrow textual analysis and wash your hands of it. It's just amoral in the literal sense, right?

0:33:08.3 Rhiannon: Right.

0:33:08.4 Peter: Just divorced from any concept of higher good and moral value.

0:33:16.0 Rhiannon: Right.

0:33:17.9 Peter: I think a cool immigration system would be, whenever someone wants to become a citizen, they randomly select a current United States citizen, and then that person has to make the case that they're better than the new immigrant [laughter] and the burden is on them. A couple years of that system and I feel like we just do away with the whole shebang and just start letting people in.

0:33:38.2 Rhiannon: Yeah, we just abolish borders at that point. That's good.

0:33:41.0 Peter: Like, "Alright, this guy is fleeing a civil war. He walked across three countries with his child on his back. What do you do?" The guy's like, "I do repo for six landlords on contract, sort of the 1099 thing."


0:33:57.1 Rhiannon: "I'm a corrections officer."


0:34:00.2 Peter: They're like, "Alright, sir, you're out. You're... "

0:34:02.3 Rhiannon: Your tax brain is on, Peter.

0:34:02.5 Peter: "You no longer have a country."



0:34:14.4 Peter: Next week, Lassiter v. The Department of Social Services, case about whether you have a right to an attorney in child custody and parental rights proceedings. We know you have a right to an attorney if you're accused of a crime, but what about when the state is trying to take your child away from you? Do you have one then? No. No, you don't. [chuckle] Follow us on Twitter at @fivefourpod. Subscribe to our Patreon,, all spelled out, special events, premium episodes, ad-free episodes access to our Slack, all sorts of benefits. We'll see you next week.

0:34:54.7 Michael: Bye-bye.

0:34:57.8 Rhiannon: Bye.

0:34:57.9 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward, with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percy Oberlin. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.


0:35:21.8 Michael: Sorry, distracted by the dogs. Is it me? Am I following you?

0:35:26.9 Peter: Yeah, sure. We're...

0:35:27.4 Rhiannon: Yeah.

0:35:27.8 Peter: We don't really have a plan here, so yeah.