Ngan Tran / Gavel Media

The Legal and Christian Ethics of Migration

Professors Daniel Kanstroom, Mary Holper, and Kristin Heyer each presented their research on the legal and ethical human rights accorded to migrants and refugees during a webinar on Friday afternoon at Boston College. The event was hosted by the Roche Center for Catholic Education during a month of programming centered around the Angels Unawares statue, presently on display outside of O'Neill Library.

Kanstroom is a professor of law at Boston College’s Law School and a Thomas F. Carney Distinguished Scholar. He is also an associate director of the Boston College Center of Human Rights and International Justice. He founded the Immigration and Asylum Clinic within the Boston College Law School.

Heyer is a professor of Theological Ethics at Boston College. She also is the director of Graduate Studies and has written several books on the ethics of Catholicism, including one on the ethics of migration. She is the Co-Chair of the Planning Committee for Catholic Theological Ethics in the World Church.

Holper is an associate clinical professor of law at Boston College and is the current director of the Immigration Clinic. She founded and directed the Roger Williams School of Law Immigration Clinics. She has also served as a Detention Fellow for the Catholic Legal Immigration Network.

The webinar began with Kanstroom’s research.

“Deportation has, for lack of a better term, metastasized from individual nation states, most particularly the United States, which unfortunately has been a global leader in exclusion and deportation despite being known colloquially as the nation of immigrants,” Kanstroom began.

“It’s always fascinating to me that this is an arena where the power of the nation state is absolutely at its highest level—there’s nothing stronger than this notion of state sovereignty and borders,” he added.

“And then, compare that to the individual who encounters that power at the lowest ebb of their status and their membership and, at many times, their lives,” he explained.

This crossroads where absolute state power meets a powerless refugee or asylum seeker is what is fascinating about immigration law. Kanstroom described the 10s of thousands to 100s of thousands of people who attempt to leave desperate situation only to be met with increasingly sophisticated bureaucracies meant to exclude, deport, and detain them.

“There’s probably upwards of 10,000 people in this camp in Kenya who were born to parents who themselves were born to parents in this camp. Three generation of refugees in this camp,” Kanstroom illustrated.

“How do human rights matter in this context?” He asked as the focus of his research.

Rescue missions in the Mediterranean, leaving water in the desert at the US-Mexico border, and other attempts at preserving migrant and refugee lives offer one answer to that question. State responses offer another.

“Governments have been reaching out from their own borders to catch people. It was upheld by the Supreme Court in a case called Sale,” Kanstroom said.

“It’s always been quite controversial that a nation state could exercise its power to avoid its obligations, an obligation of international law that if a person comes into your power who would be persecuted or tortured if they were forced to return. You cannot do it—it’s a principle of law!”  Kanstroom argued.

The United States has participated in violating this rule since the early 1990s with patrol boats cruising in the Caribbean.

However, in legal cases in the United States and France there has been a concerted effort to oppose applying criminal charges to people offering humanitarian aid to refugees. The line between aiding migrants and refugees to break the law by entering illegally, and aiding them in an attempt to protect their lives is extremely thin and still being argued in courts around the world.

The principle of fraternity, especially as referenced in Fratelli Tutti, the encyclical recently published by Pope Francis, became the transition point to Heyer’s research.

Heyer began her presentation with a reminder that the first place Pope Francis visited upon being named Pope was the island of Lampedusa—one of the landing points for migrants making the harrowing crossing across the Mediterranean Sea.

During his homily he lamented, “our indifference to the plight of these vulnerable brothers and sisters, and he prayed for the grace to weep over our anesthesia of the heart.”

“Recent years have witnessed a rise in nativist populism, fueled in part by anxieties about the impact of globalization. In the US context, these trends played out via the politics of exclusion peddled throughout Donald Trump’s campaigning and governing scripts alike,” Heyer noted.  

“I think renewed attention to the social dimension of Christian ethics can expand our consideration beyond just the dignity of individuals who cross borders to consider the global contexts and operative interests that compel migration,” she argued.

Christian migration ethics focus on the plight and agency of migrants, drawing on the history of migration and diaspora found in the Old Testament. Heyer notes that the command to care for the stranger is the second most repeated moral imperative.

To conclude her presentation, Heyer reminded the audience of the words a former speaker at BC, Ali Noorani, said two years ago.

“‘We need to meet people where they are, but not leave them there.’”

Next, Holper spoke on the principle of accompaniment in the legal system.

“The idea of accompaniment is walking with the migrants. It’s more important that they [students] see themselves as together and one with the migrants as opposed to just charity and just working on their behalf,” Holper explained.

Accompaniment highlights the dignity of the person, allowing them to be seen as a person with needs, goals, and dreams, instead of simply a case or set of legal problems that need to be solved.

“We have an uphill battle in this endeavor because there are so many aspects of the immigration system that seek to reduce our clients to a number, a statistic, a case that must be sorted and shuffled through the system quickly,” she said.

Instead of seeing migrants as people, immigration officials and judges see migrants as a dangerous threat to American security. Deportation is seen as the norm, instead of as a last resort.

“In Constitutional norms, detention is the exception not the norm and the government must work hard to justify detention. But that is not what the immigration system looks like,” Holper pointed out.

An example of this is the ICE ankle monitor that was supposed to increase the number of migrants released from detention facilities. Instead, ICE used the ankle monitors to monitor people who would never have been in jail in the first place. This increased the number of people under surveillance by the United States.

Immigration judges do not work for the judicial branch of the government, instead they work for the Attorney general, who is allowed to determine who can legally claim asylum. Former Attorney General Jeff Sessions decided that victims of domestic violence could not apply for asylum.

“My cynical eyes, with too much familiarity with the US immigration system, knows that Jesus and Mary today may not make it past the unofficial refugee camp in Mexico,” Holper ended.

“They would fall victim to Trump’s perish in place policies. If they did make it to the border they would be stuck in a horrible jail, most likely with no person dedicated to making sure their voices are heard. And they likely would be turned away,” she said.

“That’s the way our asylum law has developed: to ensure denial of protection to most who are seeking it.”

With that startling allegory, the floor was open for questions.

“Where have you found that spirit of hope to move forward?” one asked.

Heyer found hope in her students—no matter their immigration status. Their courage and creativity in sharing their stories have moved her in her teaching, especially through their activism.

“I think that’s been such a sign of hope for me to not see fear winning or people who are vulnerable or in precarious situations, understandably cowering or going further under the radar into a kind of self-protective mode, but really rather showing us the way,” Heyer stated.

“I find hope in watching the narratives change dramatically about a variety of things, particularly about incarceration and the carceral state, which has taken a complete 180. I’m kind of waiting for a similar transformation in thinking about immigration,” Kanstroom said.

No More Deaths and the Kino Initiative—both groups working at the US-Mexico Border also offer him inspiration in the fight to save refugee lives.  

Holper also highlighted several groups in Massachusetts working with immigrants and refugees.

“The Massachusetts Immigration and Refugee Advocacy Coalition—the MIRA Coalition—have a whole list of nonprofits in the area that do legal services, organization work, ESL classes, Know your rights presentations,” she said.

Making mountains out of molehills and facts out of printers since the turn of the century