The theme of this Article contrasts the perspective of Papa Francisco on the subject of migration, juxtaposing his blueprint of mercy as the point of departure, with the oppositional resistance, which is based on various dimensions of fear. This perspective will be contextualized within the framework of both American immigration law and within the parameters of international human rights and transnational migration. Part I of this Article will consider the paradigm of mercy and fear in light of the various provisions of federal American immigration law in their historical context. It will recount many of the restrictive and nativist episodes encapsulated in United States immigration law and policy, suggesting that, for most of our history, federal law has been driven by the dark side of human morality. That being said, it is also recognized that more noble callings have inspired exceptions to that general tenor that resulted in the enactment of law that more closely reflects an ideology of mercy. In his address to American bishops, Pope Francis commended the steps that the United States has taken to unify families and to assimilate refugees. Recognizing it as the zenith of mercy in federal law, this Article will recount the particular experience of regularization of status that occurred as a result of the enactment of the Immigration Reform and Control Act of 1986 and the participation in its implementation by the Office of Migration and Refugee Services of the U.S. Catholic Conference. Subsequently, and particularly concerning events that are transpiring at the time of this writing, the United States has tragically returned to federal law and policy that is seemingly inspired by fear. Part II of this Article explores the legal response to migration after World War II, outlining the main sources and development of international law on forced migration. It also examines categorization of forced migrants based on international law and current practices in light of the reasons for and causes of flight. The issue of categorization is connected to the treatment of migrants, and this Article highlights Papa Francisco’s refugees. Part III of this Article considers the various reservations different nations have toward migrants. This Article collates relevant data collected by the United Nations, the Pew Research Center, Amnesty International, and the Cato Institute. Such reservations are characterized as “fears,” within its thematic construct. This analysis builds on Papa Francisco’s teaching on the power of mercy and the significance of the corporal and spiritual work of mercy. The antithesis of the power to love and its concomitant power of mercy is the power of fear.
Gilbert Paul Carrasco and Iryna Zaverukha, Mercy Versus Fear, or Where the Law on Migration Stands, 40 SEATTLE U. L. REV. 1283 (2017).