Court of Injustice: Law Without Recognition in U.S. Immigration 9781503612495

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Court of Injustice

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Court of Injustice Law Without Recognition in U.S. Immigration J.C. Salyer

Stanford University Press Stanford, California

Stanford University Press Stanford, California © 2020 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press. Printed in the United States of America on acid-free, archival-quality paper Library of Congress Cataloging-in-Publication Data is available on request. ISBN: 978-1-5036-1140-5 (cloth) ISBN: 978-1-5036-1248-8 (paperback) ISBN: 978-1-5036-1249-5 (electronic) Cover design: Michel Vrana Typeset by Motto Publishing Services in 10/14 Minion Pro

For Paige West

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Contents

Acknowledgments Introduction: The Paradoxes of U.S. Immigration Law and Deportation

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Migrants, Criminal Aliens, and Folk Devils

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A Social History of the Development of U.S. Immigration Law

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The Role of Lawyers and Judges in U.S. Immigration Law

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Law Without Recognition: Excluded Equities and Judges Without Discretion

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The New York Immigrant Family Unity Project: A Revolution Such as Lawyers Would Mount

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Conclusion: The Limitations and Possibilities of U.S. Immigration Law

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Notes

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Bibliography

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Index

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Acknowledgments

everyone at the Arab American Family Support Center (AAFSC), where I have been the immigration law clinic’s staff attorney for over a decade. I am particularly indebted to the legal program’s coordinator, Hizam Wahib, without whose assistance I could not do my job and without whose humor and friendship I would not want to. I would also like to express my thanks to the hundreds of clients I have represented at AAFSC for their trust and for sharing their experiences. For many of those clients, I have only been able to explain that under the current law there is nothing that I, as an immigration lawyer, can do to assist them and their families. In a way, this book is my response to the inability to address their needs as a lawyer within the current legal system. I also owe a debt of gratitude to the immigration lawyers who took time to speak with me as part of this project and to the numerous lawyers who have assisted me to better understand immigration law both as a researcher and an immigration attorney. Deserving of special gratitude is Nancy Morawetz of the New York University School of Law Immigrant Rights Clinic and the attorneys involved with the New York Immigrant Family Unity Project. As an anthropologist, I owe a huge debt of appreciation to Michael Blim, who is as generous with his intellect as he is with his friendship, which makes him my model of a good academic citizen. I would also like to thank my colleagues, whose scholarship and friendship I appreciate and depend upon: Joshua Bell, Andy Bickford, Jamon Halvaksz, Jerry Jacka, David Lipset, Alex Mawyer, Patrick Nason, Jason Roberts, G.S. Quid, and all of my colleagues in the Barnard Anthropology Department. For me, New York City is a home because of the friendship of Paul Thomas and everyone else at PSC, Latrice Tice, Elisha Omar, Colin Felsman, Aly Neel, Debra Minkoff, Silke Aisenbrey, F I R S T, I WA N T T O T H A N K

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and Noah Aisenbrey Minkoff. I also have a debt of gratitude to friends who live elsewhere, including Teresa Gionis, John Aini, Dani Smith, Amy Johnson, Michael Moore, David Wright, Robbie Ethridge, Colleen and Ed Bongiovanni, Mal Smith, and Bryant Green. I will also always be grateful for the friendships that I have had with Adam King, Keith Stephenson, Jennifer Harris, Guy Harris, Rob Adelson, Sammy Smith, and John Burns. Of course, I owe more of a debt to my family then I could ever hope to enumerate. I particularly want to thank my mother, Pat Wadsworth, for being an unceasing example of an engaged and empathetic person. I thank my sister, Lisa Braden, and her husband, Dennis Braden, for their warmth and humor. I would also like to thank Pat West for her friendship and expert cat-sitting services over the years. Finally, my best friend and wife, Paige West, has shown me what is important in life clearer than anyone else I know. I am as grateful for my life with her as I am unable to imagine my life without her.

Court of Injustice

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IN T RODUC T ION

The Paradoxes of U.S. Immigration Law and Deportation

The power of the lawyer is in the uncertainty of the law. Jeremy Bentham1 One has a good legal mind, under the prevailing ideology, if he can think of something tightly connected to some other thing but without thinking of that other thing. Arthur S. Miller

Donald Trump repeatedly called for a ban to prevent Muslims from entering the United States, stating, “We’re having problems with Muslims coming into the country.” Trump even justified his proposal by saying that Franklin D. Roosevelt “did the same thing” by interning people of Japanese ancestry during World War II.2 Within a week of taking office Trump acted on his promise to implement a “Muslim ban” by issuing an executive order (EO-1) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” which banned entry into the United States by foreign nationals from seven predominantly Muslim countries and also suspended the admission of refugees into the United States.3 After signing the order, Trump read the title out loud and said, “We all know what that means.”4 The immediate result of the order was to plunge international airports across the country into chaos and confusion. In arrival halls, people’s anxiety over the fates of their loved ones turned to tears of anguish as they realized their family members would not be allowed to travel to the United States or were being turned back by Customs and Border Protection (CBP) after arriving. Families and friends were tormented by the uncertainty of what W H I L E R U N N I N G F O R P R E S I D E N T,

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Introduction

would happen to their loved ones and feared that they might face lengthy separations or, even worse, that their loved ones would be returned to lifethreatening situations in places such as Syria or Yemen. The outrage over the travel ban took the form of large spontaneous public protests, and lawyers rushed to international airports to try and provide legal assistance to individuals affected by the ban. In New York City, the legal efforts coalesced under the name #NoBanJFK, with lawyers at JFK Airport essentially forming an around-the-clock de facto nonprofit legal organization in the seating area of the Central Diner in Terminal 4. In addition to lawyers, people with relevant language skills volunteered as translators, and computer experts created networks and programs to collect and organize information about individuals affected by the ban. The outrage over the injustice of the ban was not limited to immigration lawyers. The majority of volunteer lawyers practiced in other areas of law, and large corporate law firms contributed equipment and supplies and took turns keeping a running tab on corporate credit cards at the Central Diner to help compensate the restaurant for its entire seating area being overrun by lawyers. While the alleged justification for the ban was a claim of national security, its scope was spectacularly broad, encompassing everyone from infants to the elderly and banning people regardless of their reason for coming to the United States and regardless of their relationship to U.S. citizens, residents, and institutions. Most egregiously, the ban did not allow for any individual consideration of the people affected and applied regardless of whether there was any reason to believe that the banned individuals were actually terrorist threats or any kind of danger at all. While volunteering as a lawyer at JFK after the ban went into effect, I met U.S. citizens who had already had applications for immigrant visas for their elderly parents approved who were told their parents would not be able to join them, I met parents who were waiting to meet children who would not arrive, and I met a man who had petitioned to bring his fiancée to the United States only to be told she was being detained and would be returned on the next available flight. Most of these individuals were U.S. citizens or lawful permanent residents who would have been entitled to bring their family members to the United States had they been from any other country than the ones singled out by the travel ban. Within days of EO-1 going into effect, a number of federal courts issued injunctions prohibiting enforcement of the ban, while claims that it violated the Establishment Clause of the First Amendment and provisions of the Im-

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migration and Nationality Act (INA) were litigated. Once the ban was suspended, the arrival halls of JFK turned from scenes of despair and anxious waiting to deeply moving tableaus of the sort of profound joy that comes only from the reuniting of people with the people they care about. Parents and children, husbands and wives, and dear friends were allowed the banal yet transcendent experience of being together. Rather than continue to litigate the legality of EO-1 the Trump administration replaced it with a second executive order (EO-2),5 which banned individuals from six predominantly Muslim countries but purported to have case-by-case waivers available. Ultimately, the administration issued a presidential proclamation that continued the ban against those six predominantly Muslim countries and added bans that affected a miniscule number of individuals from North Korea and government officials from Venezuela.6 Like EO-2, the proclamation purported to have case-by-case waivers available, but in practice, scarcely any individuals from affected countries were given waivers.7 It was this version of the travel ban contained in the presidential proclamation that the U.S. Supreme Court ultimately considered on the merits in Trump v. Hawaii. In deciding the travel ban case, the Supreme Court was faced with the choice of either providing would-be migrants (and their U.S. citizen and lawful permanent resident relatives) with meaningful judicial review of their claims that the travel ban violated the religious protections afforded by the Establishment Clause or continuing the trend of issuing rulings that deny migrants equality, fairness, and justice under the law. In choosing the latter option, the Court relied on a long line of cases that defer to the political branches of government (i.e., the Congress and the executive) in matters of immigration. After briefly acknowledging that Trump had repeatedly called for a Muslim ban and had made other anti-Muslim comments, the Court limited their relevance by stating, “We must consider not only the statements of a particular President, but also the authority of the Presidency itself.”8 In the area of immigration, this meant that the Court would defer to the government’s claims that the ban was motivated by national security concerns rather than Trump’s impermissible religious bias, despite the abundance of evidence of Trump’s Islamophobia and the paucity of evidence of a security need for such a sweeping ban. In doing this the Court did not refute the evidence that the travel ban was improperly motivated by Trump’s Islamophobia; rather, it held that noncitizens seeking to come to the United States were not entitled to the

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Introduction

full protection of the Constitution. The Court’s decision reaffirmed its commitment to a robust plenary power doctrine, which mandates deference to Congress and the President in the area of immigration, stating, “This Court has recognized that the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’”9 The Court’s decision and rationale in upholding the travel ban starkly underlines some of the longstanding challenges faced by noncitizens seeking fairness and justice in the United States immigration system. First, the travel ban is based on an abstract fear of a particular group rooted not in tangible evidence but in prejudice, discrimination, and xenophobia. There is ample evidence of Trump making anti-Muslim statements, both as a candidate and as President, and using Islamophobic policies and promises to win support from his political base, and the travel ban is a clear manifestation of that Islamophobia. Second, the ban defines the threat so broadly as to negatively impact huge numbers of innocent individuals. Even if the ban were motivated by security concerns, it covered millions of men, women, and children regardless of whether there was any real reason to consider them a threat. Third, despite the existence of genuine factual and legal issues regarding the constitutionality of the ban, the Supreme Court withheld meaningful judicial review by deferring to the plenary power of the political branches of government to regulate immigration without judicial oversight. These problems did not begin with the Trump administration. Rather, the anti-immigrant actions of the Trump administration have been made possible by the preexisting social and legal disparagement of the rights of immigrants. The mistreatment of migrants within the U.S. immigration law system, as exemplified by Trump’s travel ban, results from a specific technique of power that has long operated to make mistreatment possible while simultaneously justifying it. Specifically, immigration law has operated in a state of exception whereby the legal rights, rational explanations, and expectations of fairness that ought to be afforded to individuals by a legal system are withheld. This state of exception is, in turn, justified and rationalized by portraying immigrants as racialized others who are seen as threats to society. The travel ban illustrated another aspect of the power relationships in immigration law. Many members of the general public watching the news about the travel ban’s implementation put great faith in legal structures, as well as the lawyers and legal organizations that were opposing the travel ban, to put

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rational limits on what appeared to be an obvious abuse of power. Although the Supreme Court ultimately balked at questioning the rationale of Trump’s travel ban, the legal battle and public discourse generated by it demonstrated how “[e]very power relationship implies, at least in potentia, a strategy of struggle” in which each opposing side “constitutes for the other a kind of permanent limit, a point of possible reversal” (Foucault 1983, 794). The challenge lies in both understanding how techniques of power target and oppress immigrants and in identifying where the potentials for reversals can bring about fairer outcomes for those within the immigration law system. Immigration policy in the United States is based on a set of racial, social, economic, and political ideologies. Law is able to both reinscribe and support these ideologies, but it is also capable of challenging and changing those ideologies. These ideologies shape immigration law but are also supported and reproduced through the application of immigration law; nevertheless, these ideologies and laws can, at times, be contested and subverted through legal challenge. This book will analyze these processes in three related ways. First, it will analyze the socio-legal processes in U.S. immigration law and policy that have resulted in the normalization of the discourse of immigrants as threats, as criminals, and as dangers to society who should and can be expelled. Second, it will use ethnographic examples to demonstrate the limits that those laws and policies place on migrants to have their personal situation considered. Finally, it will examine the socio-legal work that lawyers do to advocate for their clients, to destabilize the narratives of immigrants as threats, and to challenge the limitations on their clients’ claims for justice. In doing so, this book examines the statutes, policies, and mechanisms that comprise current immigration law in the United States and how they compel many of the results that seem unjustified, unfair, and excessively harsh. By drawing on my work as an immigration lawyer and based on interviews and interactions with other immigration practitioners, this book provides a clear description of the limitations and possibilities of the current law and process experienced by lawyers who represent immigrants in immigration court in New York City. The structure of immigration law determines the fate of millions of individuals and their families. For some individuals, immigration laws provide a path toward legalization of immigration status, while for many others the strictures of the current laws result in their remaining undocumented, losing immigration status, or being deported. These strictures, and the consequences they impose on the lives of individuals, stem from the implementation of spe-

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Introduction

cific statutes and provisions, and it is therefore important to examine the specifics of the laws and procedures that determine who is allowed legal status in the United States and who will be denied such a status. While it is possible, and valuable, to critique the immigration system and its results as a whole, it is also necessary to concretely identify the specific causes of its harms in order to be able to produce a more-fine-grained examination of immigration law and policy. Moreover, it is valuable to understand how advocates are able to seek just outcomes for their clients in a hostile legal climate. The need to understand where there are possibilities to achieve justice within the existing law is all the more important given the significant increase in anti-immigrant policies put in place under Donald Trump’s administration. Trump’s election has demonstrated to the general public the sweeping powers of the federal government to regulate, arrest, detain, exclude, and remove noncitizens as well as the personal hardships visited on individuals and families by the unfettered use of those powers. In many ways, the Trump administration has been unusual and extraordinary in terms of the breadth, depth, and overtness of its anti-immigrant policies. However, its actions are built on a deeply rooted discourse of immigrants as threats, decades of increasingly harsh laws, and a longstanding set of legal structures and principles that fail to protect the rights of individual migrants. The administration has shown itself to be opposed to lawful, as well as irregular, migration by proposing to reduce the overall availability of immigration visas to the United States, attempting to limit family-based immigration, drastically cutting refugee admissions, and imposing a ban on migrants from certain predominantly Muslim countries. In terms of enforcement, the administration has increased efforts to arrest and detain individuals believed to have violated immigration laws, with Immigration and Customs Enforcement (ICE) issuing a memorandum that stated, “Officers will take enforcement action against all removable aliens encountered in the course of their duties” (Albence 2017, 1). This memorandum reversed enforcement priorities put in place during the second term of the Obama administration that focused on individuals with criminal conduct or existing deportation orders. The administration’s failure to consider the equities of individual immigrants’ cases was dramatically illustrated by its order ending of the Deferred Action for Childhood Arrivals program (DACA), which the Obama administration had put in place to exempt young people from immigration enforcement if they had come to the United States as children. Given that political policies and enforcement priorities are be-

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coming increasingly anti-immigrant, it is all the more essential to understand the legal background against which these changes are taking place.

Understanding the Kafkaesque Immigration law is often described as “byzantine” and “Kafkaesque”; one Federal Court of Appeals’ opinion even referred to it as a “labyrinth almost as impenetrable as the Internal Revenue Code.”10 In this respect, I have the advantage of being a practicing immigration lawyer who has run an immigration law clinic at the nonprofit Arab American Family Support Center (AAFSC) for more than a decade. That is not to say, however, that I am so steeped in the ethos of immigration law culture as to be habituated to its assumptions, traits, and peculiarities. My academic interest in immigration law stems from the very fact that it is, in many ways, at variance with ideas, principles, and practices I associate with law and justice from my earlier work in other areas of the law. Prior to working in immigration law and prior to going to graduate school in anthropology, I had practiced constitutional, civil rights, and civil liberties law as a lawyer for the American Civil Liberties Union (ACLU) at the ACLU National Legal Department and at the ACLU of New Jersey affi liate. My experience with immigration law remained tangential until the government’s response to the 9/11 attacks resulted in large numbers of Muslim, Middle Eastern, and South Asian noncitizens being detained in county jails in New Jersey on the pretext of immigration violations, when the government’s actual goal was to investigate the terrorist attacks. Immediately following 9/11, then–attorney general John Ashcroft made clear that he intended to use the immigration system’s lax standards of due process protection to circumvent individual rights protected in the criminal justice system. On October 25, 2001, Ashcroft told a meeting of the United States Conference of Mayors that “taking suspected terrorists in violation of the law off the streets and keeping them locked up is our clear strategy to prevent terrorism within our borders.” To Ashcroft this policy meant “if you overstay your visa—even by one day—we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible” (Ashcroft 2001). As the staff attorney for the ACLU of New Jersey, I was contacted by family members of Muslim, Middle Eastern, and South Asian men who were arrested in the post-9/11 investigation in New York and New Jersey based on their immigration status. According to a 2003 report by the Department of Justice Office of the Inspector

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Introduction

General (OIG), 762 individuals were detained by the Immigration and Naturalization Service (INS)11 as a part of the 9/11 investigation conducted by the Federal Bureau of Investigation (FBI) in New York and New Jersey (Office of the Inspector General 2003). Although the OIG concluded that the individuals who were detained had generally violated some aspect of immigration law, there was no effort by the FBI or INS to differentiate between individuals who were out of immigration status from individuals for whom there was evidence to link them to the 9/11 attacks or terrorism of any kind. As a result, hundreds of individuals were held incommunicado in abusive conditions without access to legal counsel. Attempts by the ACLU and others to visit the detainees or even obtain an account of who was being detained were rebuffed by the government. I worked with a coalition of other organizations, law schools, and immigration lawyers, and we were eventually able to gain access to the individuals detained in New Jersey jails by organizing Know Your Rights presentations, which the INS detention guidelines allowed nonprofit organizations to present. The guidelines also allowed for individual consultation following the presentation, which we were able to use to conduct a survey of who was being held and to learn about the circumstances under which they were arrested and detained. Until I got involved with the Know Your Rights presentations, I was used to practicing constitutional law with the ACLU, where I could often resolve an issue, such as an abridgement of free speech rights, by sending a demand letter to the offending government agency or obtaining a preliminary injunction from a court. I quickly learned that immigration law was quite different when I began meeting with the detainees and hearing how they had been denied an opportunity to call a lawyer or had not been brought before a judge to be allowed to ask for release on bond or had not even received notice of the charges against them. When I expressed my outrage to one of the immigration lawyers assisting with the presentation, saying something along the lines of “Just because 9/11 happened doesn’t mean the government can simply ignore the law,” the immigration lawyer responded by explaining, with gentle condescension, “This is what immigration law has always been like.” I began to learn that while the treatment of noncitizens exemplified by the detentions that followed 9/11 was perhaps more dramatic than in the usual course of immigration law enforcement, it was the vulnerable position that existed long before 9/11 that allowed the abuses to these detainees to occur. Since 9/11, my experience as an immigration lawyer has taught me that

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the mistreatment experienced by migrants is rooted in systemic and historical processes that place them in a uniquely vulnerable legal position, I also learned that in some cases, for some people, it is possible to achieve a good result through the legal system and even to achieve larger reforms through legal advocacy. This book attempts to examine the relationship between these strongly determinative systemic forces and the outcomes of individual cases, including those outcomes that seem to contradict what one would expect to occur based only on an analysis of those systemic forces. Immigration lawyers have significant knowledge about immigration law and its effects on the lives of individuals. Including this knowledge within the many social science critiques of the current U.S. immigration law system will improve the content and usefulness of those critiques. For individuals within the immigration system, noncitizens facing deportation, lawyers attempting to assist their clients or representing the government, and judges responsible for implementation of existing law, there is a practical exigency that requires addressing the specifics of individual cases within the existing framework of current law. While the structure of the current system limits the sorts of arguments that can be made and the sorts of evidence that will be considered relevant, in some cases migrants and the lawyers who assist them are still able to achieve favorable results. In critiquing immigration law, understanding such successful outcomes is as important to understanding how the system operates as is identifying examples where the system seems unfair, inhumane, or unjust. By fully evaluating the potentials and the limitations of the current system, one can begin to formulate a critique that not only identifies the harms created by current law but also points toward possible alternatives and reforms that can make significant differences in the lives of individuals whose fates are controlled by these laws. Immigration lawyers, who need to practice law within the system as it is currently structured, are not precluded from forming opinions and critiques of the system in which they must operate; indeed, quite the opposite is true. Richard Rorty uses the term “ironists” to describe those who are conscious of the contingency and mutability of the “final vocabularies” employed to make sense of their lives yet are nonetheless committed to the values that those vocabularies embody (Rorty 1989, 73). Immigration lawyers (though they would not put it this way) are fully aware of the limits of the law to deliver justice and its role in causing harm but continue to seek out those principles of justice that the law is meant to embody. While the specific substantive laws they work with are

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Introduction

the historically and socially contingent products of abstract (and often racialized) fears of the possible dangers migrants pose to the safety and economic security of the United States, the idea of the law itself promises a concept of justice lacking in these actual statutes. When the specific laws are indeterminate, vague, or contradictory, lawyers are able to demand that judges fashion a rough justice from their crooked timber. By regularly applying, contesting, and attempting to expand this law, these lawyers gain an understanding of both its general application and its limits.

Damaged Democratic Practices Understanding the actual immigration law and its limits is inadequate for understanding the social contexts of the origins, application, and consequences of that law. When an immigration lawyer clearly has no viable legal argument to help a sympathetic client she may bemoan the limits of immigration law, but she will also understand that there is nothing more for her to do. From a social and political perspective, the specifics of such cases are the best evidence of how these laws fail to provide just outcomes and exert unequal and arbitrary social and political power over individuals. While the cases in which immigration lawyers are able to assist individuals highlight the importance of rights-based legal perspectives, the cases in which the compelling equities of an individual’s case are ignored demonstrate the limits of law and the need for democratic engagement to deepen the public understanding of the suffering caused by these laws. These differing sets of cases show the complex interplay and tension between individual legal rights and majoritarian politics as forms of democratic practice. In the area of immigration law, this tension is particularly complicated because of the uniquely political nature of immigration law itself. Focusing on the application of immigration law, both when it is able to provide relief and when it fails to do so, generates a more complete understanding of exactly how immigration law “created a new class of persons within the national polity—illegal aliens—whose inclusion in the nation was at once a social reality and a legal impossibility” (Ngai 2004, 57). More importantly, it shows in what ways the public and their representatives should reconsider the underlying assumptions of existing laws and empathetically reevaluate the consequences of those laws. The scale at which immigration policy is administered and discussed erases the humanity of the people involved and lumps diverse individual human lives into categories of “problems” that must be solved. The fates of mil-

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lions of individuals impacted by the travel ban can be dealt with as a single entity—as one hard decision to uphold a presidential proclamation—rather than as millions of individual lives that are being thrown into chaos. Foucault described this as a biopolitical regime of governmentality that uses dividing practices to construct differences within a population to justify unequal treatment of people (Foucault 2003). This phenomenon seems to have increased exponentially with the scale of “problems” expanding while the level of consideration people receive as individuals is decreasing. The exigency implied by the wicked problems of the world seems to justify greater and greater acceptance of loss and suffering. Moreover, purported importance of these “problems” and the seeming imperative to address them not only necessitates ignoring the particularity of the individuals involved, it justifies ignoring the historicity of the origins of the “problems” and the social, political, and economic relationships that brought them into being in the first place. In law and in anthropology, meaning is derived through the examination of individual cases. The specifics of the descriptions of experiences of individuals, the facts and contexts of their lives, often determine our understanding of the meaning of cases and of the lessons learned about social phenomena. This methodology articulates well with Nancy Fraser’s observation that “only when we contemplate what it would take to overcome injustice does our otherwise abstract concept of justice acquire content” (Fraser 2012, 43). In both anthropology and in law, it is context and specificity that illuminate injustices and form our demands for greater justice. In immigration law the examination of the individual facts of cases is often overtaken by the creation of a few broad statutory categories that deny the importance of considering or examining personal factors or contexts, and these categorical determinations seek only the thinnest description of individual lives. However, just because the categories utilized by current immigration law do not take into account the actual details of people’s individual lives does not mean those facts and experiences do not exist. By juxtaposing those thick descriptions with the process and outcomes of individual cases, one can show the fallacious assumptions inherent in the categories of current immigration law and the injustice they produce. If anything, anthropology’s turn to the suffering subject as an object of study is an attempt to refocus our attention to the particularity of situations, to the actual individuals, to the historical contexts, and to the unequal socioeconomic interests involved (see Robbins 2013). It is possible to shift both public attitudes and the terms of public debate by providing rich, varied, and

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Introduction

humanizing stories of real migrants in both ethnography and legal advocacy. Indeed, anthropologists and lawyers each have their own unique ways of adding important context and complexity to public discussions and societal assumptions and are able to render an inchoate picture of justice by painting detailed portraits of the actual injustices they witness. The precariousness of individuals is a social location, not a subjectivity, and stems partly from the historical, political, economic, cultural, and social causes of a group’s or individual’s legal positions. Those in precarious legal positions have arrived there due to multiple causes, oftentimes personal factors layered over historical, political, and economic terrains, and this process should be recognized and accounted for as their futures are considered. Consideration of this precariousness conveys the temporal instability of the position. Precariousness is not an essential part of anyone’s being; it is a contingent and constituted social relationship subject to alteration, for better or worse. Recognition of a person’s position of precariousness and understanding the origins of that precarity demand an affirmative choice be made to aid, aggravate, or ignore their position, its causes, and one’s own relationship to it. The issues surrounding inequity in immigration law are not restricted to the law itself but must be considered alongside wider social and political factors. The conceit of justice and law requires that like cases be treated alike, so for immigration law to treat immigrants unequally it is necessary for there to be a process that defines immigrants as ontologically different socially as well as legally. In this process, the legal and social othering of immigrants is a selfreinforcing process, and the hegemonic aspect of the biopolitical construction of abstract representations of immigrants as a group replaces the consideration of the individual people who are being categorized within that group. Indeed, it is because there is a reciprocal relationship between the social depiction of immigrants and the legal consequences they face that so much of the advocacy that takes place on behalf of immigrants attempts to undermine the hegemonic narratives that helped justify harsh legal categories by “humanizing” the individuals involved by telling the stories of real immigrants and their families. Immigration law has been chiefly the province of the political branches of government, and immigration laws have reflected the social and political climates of their time. Only rarely have the courts stepped in to invalidate an immigration law or policy as overreaching and violating the rights of noncitizens. This deference shown to the political branches by the courts in the

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area of immigration has resulted in political rather than judicial supremacy in immigration law and exempted cases from the limits of constitutional principles and individual rights. The regulation of immigration has generally fallen within a state of exception framed around perceived threats to the nation’s borders, sovereignty, and protection from a racialized other. Noncitizens are subject to exceptional treatment rooted in legal concepts of sovereign authority having plenary power to address emergencies, or perceived emergencies, facing the nation. In 1889, in the Chinese Exclusion Case,12 the Supreme Court held that large groups of immigrants were as much a threat to the nation’s sovereignty as an invading army and therefore justified granting the political branches exceptional, and unreviewable, prerogative power to address the threat. To this day, immigration is treated as a state of exception that is invoked to justify ignoring the individual rights aspects of the rule of law. The Supreme Court has repeatedly held that “[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.”13 This framing of the political state of exception eclipses the humanitarian state of emergency facing millions of migrants to the United States and obfuscates the fact that this emergency is rooted in longstanding political, economic, and military practices that destabilize the lives of people in migrant-sending countries; the acceptance and encouragement of the use of undocumented migrant labor for economic benefit; and the trend of increasingly punitive immigration laws that strip adjudicators of the ability to consider individual factors in a given person’s case. In the current system, the strict application of immigration statutes against individual immigrants who migrate under pressure from broad globalized forces is seen as justified because they are “illegal aliens” responsible for the hardships visited upon them and their families because they broke immigration law. This rhetorical use of the concept of rule of law to transform migrants into the culpable cause of their own abject fates is strikingly illustrated by the Trump administration’s broad denunciations of vague categories of “illegal immigrant” or “criminal alien” to justify separating children from their parents. In May 2018, Trump’s then attorney general, Jeff Sessions, announced that the Department of Justice would criminally prosecute any unauthorized crossing of the U.S.-Mexico border, even by asylum seekers, as part of a “zerotolerance” policy aimed at deterring migrants from attempting to come to the United States and, as a result, would systematically separate migrant children

14

Introduction

from parents who were put in criminal proceedings. Sessions warned migrant parents, “If you cross this border unlawfully, then we will prosecute you. . . . If you are smuggling a child, then we will prosecute you, and that child will be separated from you as required by law. If you don’t like that, then don’t smuggle children over our border” (Domonoske and Gonzales 2018). At least 2,700 children, predominantly from Mexico and Central American countries, were forcibly separated from their parents before public outcry and legal challenges resulted in the policy being replaced with one requiring that children be held in detention along with their parents (Devereaux 2018; Lind 2018; see also Domonoske and Gonzales 2018). While the scale and callousness of Sessions’s policy of separating children from their parents in an attempt to deter future migrants is extraordinary, the logic underpinning it is not new. A New York Times article from a decade earlier recounted how a young mother from Honduras was separated from her nine-month-old infant after she was arrested by ICE officers for being an undocumented migrant. The infant, a U.S. citizen by birth, had not yet been weaned and refused to take food for three days while in social service custody. A spokesperson for the Department of Homeland Security’s response was to say, “It’s a challenging situation. It’s unfortunate that children are impacted negatively by the decisions of their parents.” And a spokesperson for an antiimmigration organization said, more pointedly, “Children are not human shields. Nobody wants to hurt anybody’s kids. But any time parents break the law, it has an impact on their children” (Preston 2007). This single example highlights many of the issues in U.S. immigration enforcement policy across multiple presidential administrations. The young mother in the New York Times story was from Honduras, a Central American country that for many years has had the dubious distinction of being described as the murder capital of the world. The high crime rate in Honduras stems in large part from the drug trade to consumers in the United States (Meyer 2017) and makes life so dangerous and difficult that studies show that being the victim of a crime plays a large role in motivating many Hondurans to migrate to the United States (Hiskey et al. 2016). To claim that an expectant mother who has fled the lawlessness of Honduras has simply made a personal choice and must live with the negative consequences that befall her and her child fails to fully comprehend the context within which she decided to migrate to the United States. In addition to its drug trade and criminal gangs being supported by U.S. drug consumers, Honduras has a politi-

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15

cal and economic history that is deeply entwined with the United States. In the early twentieth century, the Honduran fruit industry was controlled by and served the interests of large U.S. corporations, and the U.S. military intervened to protect those interests on seven occasions during that period. In the 1980s, the United States had a large military presence in Honduras, which was used to support proxy wars the United States was fighting against communists in the neighboring countries of El Salvador, Nicaragua, and Guatemala. This bloody regional conflict’s destabilizing effects are still felt to this day in all of these countries. Honduras is a classic example of how the disruptions that cause migration and the linkages that direct how migration will take place are formed by actions and policies in migrant-receiving countries such as the United States. Although the history and social context in which this young mother came to the United States is deeply complex, the dominant discourse about immigration erases that context and makes it possible for immigration enforcement officials to see her simply as an “illegal immigrant” who deserves what she gets for ignoring immigration laws.

Immigration, “Illegality,” and Deportation Immigration policy is paradoxical because both legal and undocumented migration are multicausal social phenomena, but immigration law is written and enforced against people who are seen as individuals choosing to ignore immigration law for their own self-interest. This occurs in spite of the belief by many scholars and lawmakers that a range of socioeconomic factors influences why immigrants come to the United States.14 It is not illogical to exercise the sanction of immigration law against individuals who transgress its rules; however, current immigration law allocates the blame entirely against those individuals who are most subject to broad systemic forces and who are disenfranchised from the political process that creates the laws and situations to which they are subject. There are a multiplicity of historical, economic, political, social, and personal factors at play in migration patterns in general and in the life of someone who is undocumented or subject to deportation specifically. Under current immigration law, most of these factors are not held to be relevant and are not considered when answering the question of whether a person will be entitled to stay in the United States. In examining the workings of the immigration law enforcement system in New York City, my objective is to demonstrate the limitations on the ability to consider various historical, economic, political, social, and personal factors and to also identify where

16

Introduction

considerations of these factors may still be possible. In doing so, I will demonstrate the need for immigration law that reflects these realities and allows the consideration of these factors and equities in individual cases. The current political and social debate regarding immigration in the United States focuses on the core juridical concepts of law, legality, and illegality. Although these terms are used as if they are self-defi ning, they contain a vagueness and generality that implies that the immigration system is a system of justice while at the same time occluding the history and socioeconomic practices that have been developed from, motivated by, and enabled by the unequal legal status of migrants. As a result, it is not always recognized that the concept of “law” as applied in the context of immigration is vastly different from a concept of law that embraces principles of equality, due process, judicial independence, proportionality, and democratic belonging. In daily legal practice and in the enforcement of immigration laws, the historical and current socioeconomic context of migration to the United States is not generally relevant or given much consideration. In evaluating the U.S. immigration system, however, this context is required to both form policy judgments about current law and to evaluate how current law accounts for relevant factors. By focusing on how specific laws apply in various situations, it becomes clear that one of the main limitations of the immigration law system’s ability to consistently produce fair, just, and humane results is its lack of flexibility and discretion to take into account the circumstances and equities of different individuals’ lives and histories.

The Paradox of Migration and Exclusion In recent decades, the trend has been for the political branches to enact a series of procrustean laws and policies that apply to individuals whose conduct ranges across vastly different levels of culpability. The cruel irony is that the more desperate the plight of individuals becomes due to broad systemic socioeconomic, political, and historical forces, the greater the motive and need to migrate becomes. All too often, however, the response to increased migration is to increase anti-immigrant attitudes and the frequency and severity of modes of enforcement. The actual causes of migration lie with forces outside immigration law, and the enforcement of immigration law is powerless to impact those causes; nevertheless, migration is treated solely as an enforcement issue targeting individual migrants. When discussing immigration, there is often a division made between

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17

forced migrants, such as refugees, and voluntary migrants, sometimes called economic migrants. In reality there is a range or continuum of voluntariness. While it is fair to say that people choose to migrate, often they make the choice to migrate under circumstances not of their own choosing. In the modern world, people are generally not considered undifferentiated humans; rather, they are defined by their nation of origin and are seen as belonging to that place and belonging in that place. This status can be changed only under certain circumstances. For instance, those fleeing violence, natural disasters, or persecution are, in theory, seen as being able to raise the claim that they are entitled to move to a safer location and have their human rights respected. As has been repeatedly demonstrated—such as with the Syrian refugee crisis in Europe and the Trump administration’s hostility toward both refugees and asylum seekers—even this principle is limited in practice. At the other end of the spectrum, those individuals who suffer poverty and hardship because of the normal operation of uneven economic development across the globe are not seen as being entitled to object to the ticket they received in the birth lottery. The legal and physical barriers presented by national borders and the ideological commonsense belief in their necessity are indispensable to the maintenance of the inequality of global capitalism. Neoliberal globalization allows for mobility at the top of the socioeconomic strata, as a matter of privilege (Ong 2006; Sassen 1998) and to some refugees and asylum seekers as a gesture to the humanitarian principles of the modern world order, but for the vast majority of people it is considered justifiable to incarcerate them within the nation-state of their birth, regardless of the historical, economic, political, military, or personal entanglements that have crossed borders and affected the conditions under which they live. Current fears about the threats to security caused by immigrants rest in part on the growing loss of social and economic privilege and security that many Americans are experiencing due to the globalization of the economy and the neoliberalization of public policy. The mobility of capital, the flexibility and uncertainty of labor markets, and growing inequality has put many American citizens in positions of socioeconomic vulnerability, but narratives and policies placing responsibility with globalized capital, the actions of multinational corporations, and neoliberal ideology are difficult to conceptualize or enact. Neoliberalism has redefined the extent to which territorial citizenship protects individuals, and “[l]abor arbitrage as a neoliberal exception threatens to strip middle-class American men of their sense of entitlement to

18

Introduction

good jobs and the American Dream” (Ong 2006, 26). Responses to the anxiety brought about by globalization created an inward looking, geographically restricted, ethnocentrically conceptualized sense of place that focuses on a nostalgic historical narrative to justify a narrow restrictionist American identity (see Doreen Massey 1993). As a result, there is a sadism to current immigration policy, in which the violence and cruelty done to immigrants is meant to appeal to a public who is seen as feeling victimized but who has difficulty identifying an actual persecutor. Immigrants have been increasingly cast in the role of malefactor, and the revenge exacted against them has increased in frequency and intensity as the list of ills immigrants are blamed for has increased. Trump’s election in 2016, based in large part on such a message, has signaled an intensification of this anti-immigrant revanchist turn. While understanding and applying the black letter of immigration law does not require an understanding of the social, political, and economic causes of migration, understanding immigration law as a social fact does. The motivation for and structure of much of the migration from the Global South to the Global North originates with global and transnational processes that have their origins in migrant-receiving countries (Douglas Massey 2009; Sassen 1988). Increased capital mobility has led to foreign capital investment that simultaneously creates economic, political, cultural, and military links between sending and receiving countries as it disrupts local social structures and subsistence practices through the establishment of commercial agriculture and export manufacturing (Sassen 1988).15 When individuals are faced with this sort of displacement, they migrate to places that are already linked through economic, social, political, and historical relationships.16 At the same time, in developed countries such as the United States, the process of deindustrialization, the shrinking of the middle class, and the growth of service sector jobs means the economy is more dependent on the very sort of parttime flexible labor that migrants can provide (Sassen 1988, 53). Rather than migration being seen solely as the result of decisions and actions by individual migrants, migration is the result of global political economic processes instigated in migrant-receiving nations. Despite this identified complexity and despite the identification of multiple theories regarding the explanations and motives for migration, the assumptions underpinning U.S. immigration policy have largely been built on a straightforward neoclassical theory of economic push-pull factors. Policies such as the increased militarization of the border, increased detention and deportation of migrants, and other efforts

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19

to make life more difficult for the undocumented are aimed at shifting the cost-benefit calculation individual migrants are presumed to be undertaking before coming to the United States (Douglas Massey and Riosmena 2010; Ryo 2013). Such policies, which ignore other aspects of migration and focus exclusively on attempting to deter migration through the imposition of additional costs, have a poor track record in terms of meeting their enforcement aims. For instance, increased enforcement on the U.S.-Mexico border, known as “Prevention Through Deterrence,” has raised the cost of crossing to the United States in terms of time, money, and lives lost but does not appear to have appreciably deterred unauthorized migration across the border (De León 2015; see also Cornelius and Salehyan 2007). Paradoxically, the same globalized neoliberal economic pressures that increase migration also create the conditions for increased restrictionist attitudes in migrant-receiving countries. Specifically, the shift to globalized capital flows and the deindustrialization of the United States results in a reconfiguration of available jobs to flexible, temporary, and less secure employment. As a result, Douglas Massey argues that there is a “postmodern paradox,” because “while the globalizing economy unleashes . . . diverse flows of migrants . . . it simultaneously creates conditions . . . that promote the implementation of restrictive immigration policies by increasing the share of foreign-born residents, raising levels of inequality, and increasing economic insecurity” (Douglas Massey 2009, 33–34).17 In this way, broader socioeconomic factors not only influence migration from the Global South to the Global North, they play a large role in conditioning the negative attitudes toward migration and the punitive laws that are made regarding it. With the campaign and election of Trump, there has been an explicit appeal to these phenomena through the use of narratives that blame migrants for the hardships and economic instability faced by native-born workers in both rhetoric and policy.

Interpretations of the Role of Immigration Law Most social science interpretations of the role of immigration law share a goal of explaining what immigration law does in a social context and providing an explanation of the purpose, on a macro level, that the law is serving. At different times, immigration laws are either enforced or ignored, depending on various political and economic factors. As a result, irregular labor migration is sometimes tacitly accepted as an economic necessity, sometimes persecuted

20

Introduction

as a threat to the American public, and sometimes both at once. Susan Coutin (1996) considered the role immigration law plays in exerting power over migrants and in regulating their position in society and noted that many scholars see immigration law as unable to overcome the economic and structural forces that lead to undocumented immigration while, at the same time, politicians and a large segment of the public argue that stricter laws and enforcement against individuals will reduce undocumented immigration. Coutin argued that both groups fail to understand that the power of immigration law is not its ability to prevent illegal immigration but “its ability to constitute individuals within immigration categories” (Coutin 1996, 14). Similarly, to Nicholas De Genova there is an instrumentalist agenda behind the structure of immigration laws that “provides an apparatus for sustaining Mexican migrants’ vulnerability and tractability—as workers—whose labor-power, because it is deportable, becomes an eminently disposable commodity” (De Genova 2005, 215). The production of “illegality” is intended not to result in the exclusion of undocumented labor from the United States but rather to render it more exploitable: “[i]t is deportability, and not deportation per se, that has historically rendered undocumented migrant labor a distinctly disposable commodity” (De Genova 2002, 438). There can be little doubt that relations of production have exerted a massive, often determinative, gravity over law, policy, and practice in the area of immigration. Scholars such as Coutin and De Genova are right to highlight both the historic and current use of immigration policy to create a vulnerable population of flexible labor. However, there are other, often contradictory interests in play. Law has its own institutional setting and ideology as well as a unique set of institutional actors: legislators, immigration judges, government lawyers, and immigration lawyers. While the practice of immigration law takes place within this larger capitalist context, it is not always determined by that context, and explanations that do not take into account the specifics of this unique area of state action will both fail to accurately describe the deep flaws in the process and will fail to recognize areas where emancipatory potentials exist. As has been seen since the beginning of the Trump administration, the very same immigration laws can be enforced differently depending on the worldview and politics of the individuals involved.

Plenary Power Versus Due Process in U.S. Immigration Law Law, like much anthropology, purports to be a quintessentially hermeneutic endeavor, but law—at least a positivist understanding of law—excludes argu-

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ments and rationales that are extrinsic to the statutes themselves. The paradox in applying law is that law derives its legitimacy from the promise of providing an authoritative interpretation, but in reality, it is only through indeterminacy in the law and through the consideration of extrinsic factors that law has the ability to reach just results. A strict positivist understanding of law creates social and material categories and consequences, but it does so only within the domain of law—in the context of immigration court and immigration enforcement—and cannot dictate social, economic, and personal relationships in society in general. As Tanya Golash-Boza has pointed out, many noncitizens are able to fully participate in society, and “[i]t was only when they were placed in deportation proceedings that their political status as [lawful permanent residents] took on importance” (Golash-Boza 2013, 220). In society in general, the social meaning and material importance of immigration status are shifting and infinitely interpreted based on social and political contexts. As low-wage workers and economic consumers, migrants’ social participation is welcomed and encouraged; as consumers of social benefits (e.g., education and health care), their social participation is denied and vilified; and as scapegoats for societal ills, their social participation is criminalized. The contexts that generate migration, determine its form, and determine the lived experiences of individual migrants are not considered in the application of immigration laws. Law functions by attributing responsibility and liability to individuals and has trouble taking account of supra-individual factors. Such an interpretation of law that ignores context, particularity, and proportionality is based on a “thin description” of reality and is overdetermined to diverge from a social science view of reality. Therefore it is not unreasonable that in many social science understandings of immigration law, it is seen as either enactment of sovereign power by fiat (Agamben 1998, 2005) or a monolithic embodiment of socioeconomic interests (De Genova 2002, 2005). Nevertheless, the application of immigration law is more complex, and there remains room for more commodious legal interpretations that are informed by discourse on constitutional and human rights principles, narrations of the social context and human consequences of certain interpretations of immigration law, and alternative claims regarding the substantive meaning and content of preexisting formal legal categories. In an abstract sense, law is seen as a metonym for justice, which provides immigration lawyers a fulcrum to advocate for legal interpretations that better reflect the complex factors that generate the social position of migrants. Current immigration laws often result in outcomes of cases being deter-

22

Introduction

mined by a single factor to the exclusion of other aspects of a person’s life, circumstances, and personal equities. In particular, immigration law, especially since amendments made in 1996, makes it easier to deport individuals, harder to obtain relief under immigration law, and harder to obtain review of the merits of a deportation order. Even with this general trend of judicial discretion being limited in immigration cases, there are examples where judicial discretion has remained to some extent. Understanding the full range of the application of immigration law shows the need to reform the most inflexible aspects of the current immigration laws and restore greater judicial discretion to consider individual circumstances so as to ameliorate many of the harsh and seemingly disproportionate results in the current immigration system. The experience of immigration lawyers reflects the structural impediments in immigration law as well as areas where immigration lawyers believe there is room to advocate on behalf of deserving clients and obtain favorable results. While most lawyers in their day-to-day practice do not reflect on their jurisprudential philosophy, their experiences and stories reflect a belief that a legal system should provide sufficient flexibility to consider context, to recognize the myriad factors that differentiate one case from the other, and to allow an adjudicator to apply a modicum of “common sense.” To the extent that current immigration law lacks such nuance, denies judges discretion, and dictates draconian outcomes in cases based on inflexible legislatively mandated criteria, lawyers indicate the system is not working to achieve fair and consistent outcomes. Much of the social science literature on U.S. immigration law and its enforcement analyzes these laws and their application as a regime of biopolitical control rooted in racial, economic, and political agendas (Arnold 2011; De Genova 2005), and these accounts generally posit that only an increase in respect for human rights and cosmopolitanism will be able to counter the oppressive and exploitative nature of these laws (Arnold 2011; Benhabib 2004; Martinez 2009). These accounts rightly point out that the control exerted by these laws stems as much from their existence as from their enforcement with the negative impacts of the “production of illegality” being woven into the daily experiences of individuals and families, resulting in fear and exploitation without any direct involvement from immigration courts or detention centers (De Genova 2005; Coutin 1996; Talavera, Núñez-Mchiri, and Heyman 2010; Wong 2015). While critical of the results immigration law produces, they tend to accept the formalistic legal positivist ideas of law as emanating

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23

from lawmakers and political leaders and tend to ignore the possibilities of law emanating from the practice of adjudication in actual individual cases (see Dworkin 1986; Cover 1983; Calabresi 1982). In practice, immigration law is in a space where ideas of uncompromising national sovereignty and imagined national self-interest meet ideas of humanitarian beliefs and respect for individual rights. These two sides are not coterminous at the point where they meet and do not neatly articulate such that one set of ideas picks up where the other ends; rather, they overlap into each other’s domains. Although there are occasions when humanitarian concerns are seen as a hindrance to the protection of sovereign interests, such as claims that due process rights and an independent judiciary hamper immigration enforcement (Cornelius, Martin, and Hollifield 1994; Joppke 1998), generally, this area of overlap creates a crush zone where the plenary power doctrine, claims of national sovereignty, and imagined self-interest take precedence over humanitarian beliefs, legal rights, and the lives of individuals (Aleinikoff 2002). Nevertheless, there are both individual immigration lawyers and systemic efforts by organizations of lawyers such as the New York Immigrant Family Unity Project (NYIFUP) (see Chapter 5), who seek to achieve social justice even while using the immigration statutes that were designed to achieve very different ends. Such projects raise the longstanding jurisprudential issue of how much latitude an adjudicator has to interpret statutes and the source of the latitude that exists. Most commonly, adjudicators are seen as having room to act when there is indeterminacy within a statutory framework. By this claim, when there is indeterminacy in the statutory law, adjudicators are able to fi ll the gaps that inevitably result from the codification of prospective behavior because language will always be incomplete in terms of addressing all possible eventualities (Hart 1961). This positivist interpretation posits that adjudicators can act only when there is not enough law to cover the case at hand. There is, however, another possibility that posits that immigration statutes must be subject to interpretation because there is an abundance of law that should be brought to bear in evaluating them. The application of immigration statutes should not simply be a hierarchical application of sovereign power, with deportation being a foregone conclusion. Rather, the implementation of law in immigration courts should be subject to multiple influences, including the immigration statutes themselves, broader constitutional and human rights norms, and factual narratives of the actual experiences of individual migrants. Moreover, the outcomes of this process can exert an in-

24

Introduction

dependent sphere of influence either as legal precedent or by helping to frame future interpretive arguments. It is a mistake to simply treat an individual’s decision to immigrate solely as a self-serving act entirely unconnected to global political, social, and economic forces. Individuals’ motivations to migrate are related to transnational processes of global capital flows and foreign direct investment with attendant social and economic changes, social disruptions from military engagements, changing employment patterns and segmented labor markets in deindustrializing nations, and global climate change. It is beyond the jurisdiction and capacity of immigration courts, immigration judges, and federal appellate courts to remedy these situations, but it should not be beyond their authority to consider them when ruling on the cases of individuals who appear before them. Legal rules in a democratic society presuppose the existence of the social order they are meant to reflect. To the extent that there is identity between the practices and aspirations of a society and its laws, the legal system can protect and reform that social order. But when laws are meant to bring about an illusory social order that is not reflected in social practices, history, or shared aspirations, laws are not being asked to protect the social order but are being mobilized to bring about radical social change through force of law. People are compelled to make choices both as citizens and as moral agents, and in the U.S. political structure, the laws that represent people as citizens mandate results that are not always what people should accept as moral agents. The cognitive dissonance people feel as a result of the extreme hardships created by the current immigration system indicates that many people find that legal mandates are at odds with what they think is appropriate as a moral agent. While it may not always be possible to have total agreement between legal and moral dictates, when the divisions are great enough to cause serious misgivings, it should be incumbent on actors to question the situation and not merely accept it. This book argues that a necessary method of engaging in that investigation is to critically evaluate the origins and implementation of the laws that lead to such troubling results.

The Structure of the Book The first chapter, “Migrants, Criminal Aliens, and Folk Devils,” uses the ethnographic example of a young man named Omar to illustrate how history, political economic changes, and race are intertwined in the production of

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sweeping immigration laws aimed at the perceived dangers of criminal aliens and explores how the 1996 amendments to immigration laws were a manifestation of a neoliberal ideology that constructed “aliens and citizens as different kinds of persons” (Greenhouse 2013, 104). The chapter shows how a key aspect of these changes was removing discretion to make individualized judgments from immigration judges and how the restoration of this discretion is necessary to reach just results. The second chapter, “A Social History of the Development of U.S. Immigration Law,” addresses how the contemporary position of migrants relates to the historical development of U.S. immigration law. The chapter explores how more than a century of immigration legislation and judicial interpretation created both substantive and procedural limits on the protection of migrants’ rights. In particular, the chapter shows that the trend has been for perceived threats to be projected in the form of an abstract alien who embodies those dangers, but for the laws that are passed to be so broad that they affect actual individuals who do not present those threats. The third chapter, “The Role of Lawyers and Judges in U.S. Immigration Law,” draws on participant observation and interviews to examine current immigration law and focuses, in part, on areas where immigration judges still retain some discretion: asylum cases and cancellation of removal cases. The chapter explores how even within the relatively rigid system of laws that make up current immigration law, immigration lawyers are able to retain and exploit some flexibility to achieve favorable outcomes for the individuals they assist. The fourth chapter, “Law Without Recognition: Excluded Equities and Judges Without Discretion,” explores the particular provisions of contemporary immigration law and the effects they have on individuals. Drawing on participant observation and the experiences of immigration lawyers who were interviewed, the chapter illustrates areas where current immigration law is inflexible and fails to account for individual circumstances and equities and focuses on examples that illustrate both the possibility of a more humane immigration law and the process by which that possibility has been lost under current law. The fifth chapter, “The New York Immigrant Family Unity Project: A Revolution Such as Lawyers Would Mount,” provides a detailed account of NYIFUP, which is the first government-funded assigned counsel system for indigent detained migrants facing deportation. The chapter shows how

26

Introduction

NYIFUP is able not only to improve access to counsel for individual clients but also to use its institutional structure to make broader challenges to the existing laws and practices and to systematically document abuse, mistreatment, and injustice suffered by migrants in detention and in removal. The conclusion, “The Limitations and Possibilities of U.S. Immigration Law,” argues that one of the main failings of the current immigration system is its refusal to recognize individual equities, such as family relationships, hardships, and social participation and contributions. By examining the Supreme Court’s rationale in Trump v. Hawaii, this chapter analyzes how the socio-legal position of migrants is conceptualized. The chapter argues that while immigration law is not itself the sole or main cause of (or solution to) issues of inequality and injustice that relate to migration, its current formalistic and inflexible nature should not be allowed to reduce complex individual, historic, political, and economic events and relationships to narrow legal categories that limit the ability to provide justice to people in precarious positions not of their own making.

C H A P T ER 1

Migrants, Criminal Aliens, and Folk Devils

to be an attempted robbery, Omar1 cut someone in the face with a box cutter and the victim required numerous stitches. Although the jury in his first trial failed to reach a verdict, he was ultimately convicted on retrial of first-degree assault and sentenced to three to nine years imprisonment. After serving several years in prison Omar was released on parole. Following completion of his parole, at the age of twenty-seven, he was placed in immigration court proceedings and ordered deported from the United States as an aggravated felon who had committed a “crime of violence.” At the time of the offense, his first and only criminal offense, Omar was fifteen years old and had lived in the United States since immigrating with his family at the age of ten. According to a presentence report and psychological evaluations prepared by the New York Juvenile Offender Unit, Omar had serious cognitive and learning impairments that may have stemmed from a serious head injury he had suffered as a child. As a result, Omar’s cognitive and social skills were severely impaired, and his IQ test placed him in the borderline range between low-average intelligence and intellectually disabled. The evaluation also concluded that he was functionally illiterate and had impaired abstract thinking and social judgment. In fact, the report concluded that Omar’s intellectual ability was so limited that the evaluator was unsure if he grasped the significance of his criminal proceedings. Although the report from the Juvenile Offender Unit recommended that Omar be treated as a Youthful Offender rather than face criminal sanction as an adult, this advice was not followed, and Omar was tried and convicted as an adult. From the time Omar was released from prison until he was arrested by ICE officers, D U R I N G W H AT WA S A L L E G E D

28

Chapter 1

a period of almost six years, he had been working in his family’s business and had not been in any other trouble. Omar’s story is at the confluence of laws and policies that have created two separate but related socio-legal phenomena: (1) harsher treatment of children in the criminal justice system and (2) escalation in the punitive nature of immigration law. Although these two phenomena are not directly related historical processes, they came into being by way of similar socio-legal processes. In both cases, perceived threats to the interests of U.S. society and its citizens are projected in the form of an abstract enemy who embodies those dangers, and laws and policies aimed at that abstract enemy are created. In practice, these laws and policies are overly broad and affect actual individuals who do not present the imagined dangers that were enunciated to justify the creation of the laws and policies in the first place. In both the juvenile justice system and the immigration system, legislatures have removed or limited judges’ ability to consider the mitigating circumstances and positive equities of the people before them. This results in larger groups of people being defined as irredeemable and in need of being excised from or cast out of society, and the specifics of their lives and the context of their cases are ignored. Thus, a fifteen-yearold cognitively disabled boy can be treated as an adult in New York criminal court and be considered an aggravated felon in immigration court based on that New York conviction for something he did as a fifteen-year-old.

Juvenile Justice, Super-Predators, and Treating Children as Adults The first state juvenile court system was instituted in 1899 in Illinois, New York created its juvenile court system in 1922, and by 1925 every state had created some form of juvenile justice system separate from the adult criminal courts (Lazarow 2012–13, 599–600). Over the following decades, reforms evolved additional procedural and substantive safeguards for minors alleged to have committed offenses. Similarly, the federal court system came to recognize that a distinction between minors and adults is necessary “to remove juveniles from the criminal justice system so that they will avoid the stigma of a criminal conviction and to promote their rehabilitation.”2 The main method of taking account of the tender years of children who commit criminal acts has been to prosecute their cases in family court or juvenile court as delinquents rather than in criminal court and thus shield them from the inflexibility of the criminal justice system as well as from the lifelong negative consequences of a criminal conviction. Beginning in the 1970s, however, most

Migrants, Criminal Aliens, and Folk Devils

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jurisdictions have revised their laws to allow more and more juvenile offenders to be transferred from juvenile court to criminal court (Kupchik 2006). In 1978, a gubernatorial election year in New York, concerns about the rising number of juvenile offenses and the severity of violent juvenile crime grabbed headlines and became a focus of the election. Nationwide from 1960 to 1975, the arrests of individuals age thirteen to twenty for homicide increased 92 percent, and arrests for aggravated assault grew 129 percent (Zimring 1979). These increases in the overall number of offenses were in part due to population increases associated with the baby boom, and per capita rates of youth violence, in fact, fluctuated substantially during this period (Zimring 1979). Nevertheless, public perception and political discourse focused on the overall rise in juvenile crime as a mounting crisis, and newspapers reported that the current family court system was failing to address the problem, with headlines such as “Hordes of Teens Beat Serious Raps” (Daly 1978). At the time, New York’s governor, Democrat Hugh Carey, initially resisted demands from the Republican-led Senate for harsher laws that would treat younger offenders as adult criminals in more kinds of cases; however, as more sensational stories of juvenile violence circulated, he reversed his position. In particular, the case of fifteen-year-old Willie Bosket, who shot three people, killing two of them, on the New York City subway caused a firestorm of condemnation regarding the inadequacy of the family court system to deal with such offenders. A New York Daily News headline proclaimed, “He’s 15 and He Likes to Kill—Because It’s Fun” (Hirschfeld and Daly 1978), and another Daily News story quoted a police officer saying that Bosket committed the murders because he knew the maximum penalty in family court was three years.3 The demands that society must “get tougher” on juvenile offenders found expression not only in tabloids, they were also rehearsed in academic exercises, such as the work of James Q. Wilson, who advocated for protecting society by imprisoning miscreants as long as possible, with the rationale that “[w]icked people exist. Nothing avails except to set them apart from innocent people” (Wilson 1975, 209). As a result, New York’s 1978 Juvenile Offender Law was one of the nation’s first laws to provide for harsher treatment of juveniles by trying them in criminal court as adults for a host of serious offenses. Even prior to the passage of the Juvenile Offender Law, New York had one of the lowest ages at which a child could be prosecuted as an adult in the country, treating children sixteen years of age or older as adults for purposes of criminal prosecution (Peterson

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1988, 114; Cannon, Aborn, and Bennet 2010, 3). The Juvenile Offender Law went further and divested family court of jurisdiction in murder cases involving children as young as thirteen years old and provided for original jurisdiction in adult criminal court. It also provided that fourteen- and fi fteen-year-old children charged with other serious crimes (i.e., arson, assault, manslaughter, rape, criminal sexual acts, aggravated sexual abuse, burglary, arson, robbery, possession of a machine gun or firearm on school grounds, attempted murder, or kidnapping) would be tried in criminal court as adults. In doing this, New York reversed the presumption that had existed in juvenile justice that as a general rule, minors would be treated as juveniles unless a judge determined that a given case was exceptionally serious and should be transferred to adult criminal court, such as cases involving particularly severe violent offenses or recidivism. In contrast to this judicial transfer method, New York’s 1978 law amounted to a legislative transfer, in which the state legislature designated certain age and offense categories that will be prosecuted in criminal rather than in juvenile court (Kupchik 2006, 16).4 Under this law, New York had a procedure that allowed some minors convicted of criminal offenses to be designated as Youthful Offenders. If this occurred, the Youthful Offender adjudication would be substituted for the conviction, and the case would essentially be treated as a delinquency adjudication.5 Thus, the system presumed that many juveniles would be treated as adults and transferred them to family court or gave them a more lenient Youthful Offender designation only after they had affirmatively requested such relief and convinced the trial judge that they deserved such an act of favorable discretion. As a result of this system, most juveniles covered by the Juvenile Offender Act were treated as adults, and the New York Court of Appeals held in a case decided the year after the law went into effect that “under the present scheme it will only be in the unusual or exceptional case that removal [to family court] will be proper.”6 One study of cases in New York City found that out of 2,449 criminal court cases involving juvenile offenders from 2005 through 2008, 23.8 percent were dismissed, 14.7 percent were transferred to family court, and 61.5 percent remained in the adult system (Lazarow 2012–13, 598n17). This stands in marked contrast to a study carried out by sociologist Aaron Kupchik comparing New York’s legislative transfer system to New Jersey’s judicial transfer system. Under New Jersey’s system the presumption is that a juvenile will not be tried as an adult unless a judge determines that extraordinary circumstances make it appropriate to transfer the

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case to criminal court. Under this judicial transfer system only 1.2 percent of cases studied were transferred from New Jersey’s juvenile court to adult criminal court (Kupchik et al. 2003). Additionally, in studying 2,223 comparable cases in New Jersey juvenile court and New York criminal court, Kupchik found a vast disparity in average custodial sentence length, with an average of 9.5 months in juvenile court but 27.2 months in criminal court (Kupchik 2006, 115). Kupchik estimated that the odds of receiving a sentence of incarceration were 8.82 times greater in New York criminal court than in New Jersey juvenile court (Kupchik 2006, 115–17). Finally, Kupchik found that for adolescents in the New York system the benefits of a Youthful Offender adjudication were often unobtainable because “defendants who have hurt others physically and who cannot claim peer pressure as a mitigating factor face near certain imprisonment in the criminal court” (Kupchik 2006, 102). Throughout the 1980s and 1990s, all states enacted some form of statute that broadened exposure to criminal liability for juveniles (Bishop 2000, 84; Lazarow 2012–13, 604). If anything, popular representations of juvenile offenders became more sensationalized and histrionic. This trend is exemplified by the term “super-predators,” which was coined by criminologist John Dilulio, who predicted that on the horizon . . . are tens of thousands of severely morally impoverished juvenile super-predators. They are perfectly capable of committing the most heinous acts of physical violence for the most trivial reasons (for example, a perception of slight disrespect or the accident of being in their path). They fear neither the stigma of arrest nor the pain of imprisonment. They live by the meanest code of the meanest streets, a code that reinforces rather than restrains their violent, hair-trigger mentality. In prison or out, the things that super-predators get by their criminal behavior—sex, drugs, money—are their own immediate rewards. Nothing else matters to them. So for as long as their youthful energies hold out, they will do what comes “naturally”: murder, rape, rob, assault, burglarize, deal deadly drugs, and get high (1995).

Dilulio, as well as other commentators, argued that this super-predator phenomenon was the result of children growing up in moral and cultural poverty, which left them without a moral center, a sense of right and wrong, and empathy for other people. According to this view, these youths were not simply making bad decisions, suffering from poor impulse control, or being overwhelmed by societal pressures such as socioeconomic inequality; rather, they

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were a different kind of juvenile who could not be rehabilitated because they did not “fear the stigma of arrest, the pains of imprisonment, or the pangs of conscience” (Bennett et al. 1996, 26). This view of juvenile offenders was reflected in popular reporting during the late 1990s. For instance, the Washington Times warned, “The super-predator is on us” (Fields 1996), a Newsweek headline announced, “Superpredators Arrive: Should We Cage the New Breed of Vicious Kids?” (Annin 1996, 57), and a criminologist quoted in Newsday warned, “Unless we act today, we’re going to have a bloodbath when these kids grow up” (Garrett 1995). Interestingly, these fears of super-predators and legislative efforts to combat the problem by imposing harsher treatment on younger children occurred in spite of the fact that since the mid-1990s juvenile crime rates and arrest rates had been declining dramatically across all geographic areas and in all demographic groups (Levitt 2004). Nevertheless, most of the laws that were put in place as a result of these fears remain unchanged, and the more humane “traditional juvenile crime policy has been largely dismantled” (Scott 2013, 541). There has, however, been a dawning realization that the law should recognize aspects of childhood and adolescence that make juveniles both less blameworthy and undermine many of the rationales of criminal punishment. In New York, for instance, the law that resulted in Omar being treated as an adult was amended by the Raise the Age Act in 2017, which narrows the categories of juveniles that are prosecuted in adult criminal court. Moreover, in three cases decided since 2005, Roper v. Simmons,7 Graham v. Florida,8 and Miller v. Alabama,9 the U.S. Supreme Court has held that certain harsh sentences imposed on juveniles are unconstitutional under the Eighth Amendment’s prohibition against cruel and unusual punishment specifically because juveniles are more impulsive, have diminished decision-making capacities, are more inclined toward risk-taking, are less likely to foresee consequences, are more subject to peer pressure and social influence, and are more likely to be rehabilitated. Omar, as a fifteen-year-old defendant, was probably a better match for the Supreme Court’s description of a youth with diminished decision-making abilities, a lack of foresight, impulsivity, and a likelihood of being rehabilitated than he was for Dilulio’s description of a super-predator “perfectly capable of committing the most heinous acts of physical violence for the most trivial reasons.” Nevertheless, he was subject to the Juvenile Offender Act’s inflexible and harsh response to the perceived crisis of juvenile crime and was

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tried and convicted as an adult and made to suffer the unforgiving consequences of that conviction.

Inflexible Immigration Consequences Among the most severe consequences Omar faced as a result of his adult criminal conviction was being charged and detained as a deportable aggravated felon upon the completion of his term of parole. Having lived in the United States from the time he was ten years old, deportation amounted to banishment from his home and his family. Also, as an aggravated felon, Omar had to stay in immigration detention for more than a year while he fought his deportation case and at one point was sent to a jail nearly a thousand miles from his home and family. That this was considered a mandatory consequence of his conviction was primarily the result of a whole host of changes to U.S. immigration law that occurred in 1996 that made these laws more punitive and reduced the opportunity for individuals to obtain relief from these harsh consequences. When the 104th U.S. Congress convened following the “Republican Revolution” led by Newt Gingrich in the 1994 election, they brought an agenda that focused on reducing welfare, limiting the size of government, reducing capital gains and estate taxes, and promoting law and order issues. When this Congress turned to the subject of immigration, it made changes that affected lawful permanent resident immigrants as well as undocumented immigrants. In 1996, Congress passed a series of laws that had severe consequences for migrants in the United States: the Anti-Terrorism and Effective Death Penalty Act (AEDPA), the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), and the Personal Responsibility and Work Opportunity Act (Welfare Reform Act). The AEDPA and IIRIRA radically changed immigration law by expanding the reasons for which a person could be deported, significantly limiting the discretionary relief that an immigration judge could grant, and limiting the power of the federal courts to review deportation decisions. The 1996 laws were in part motivated by professed economic concerns regarding migrants taking jobs and resources from taxpayers, but they also fully embraced the narrative that certain migrants were inextricably linked to crime and were threats to public safety. For instance, the AEDPA was in part motivated by the 1995 Oklahoma City bombing, with provisions targeting immigrants included in the initial draft based on the mistaken assumption that

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the attack had been carried out by foreign terrorists. Even though it was subsequently revealed that the perpetrators were U.S. citizens, the law’s provisions making it easier to deport noncitizens and limiting their ability to contest those deportations remained in the statute (Morawetz 2005, 279; Reyes 2012, 662–63). As a result, the number of deportations increased steadily from 69,680 in 1996 to a record high of 438,421 in 2013.10 One of the main areas of increased immigration enforcement came in the form of targeting noncitizens with criminal records. The term “aggravated felony” was introduced in the Omnibus Anti-Drug Abuse Act of 1988 and covered only individuals who had committed the most severe types of crimes, such as murder and serious drug and weapons trafficking offenses. In 1990 the term was expanded to include drug offenses or crimes of violence that carried prison sentences longer than five years. The 1996 laws radically expanded the category of deportable offenses known as aggravated felonies from the most serious criminal offenses to a broad list that included crimes that were not necessarily felonies as well as cases in which people had not even been sentenced to time in prison, such as when an individual was given probation or a fine. For instance, IIRIRA defined any theft offense for which a sentence of one year or more is imposed as an aggravated felony, even though many state laws allow for a sentence of up to one year to be imposed for misdemeanor offenses. One court reviewing the law acknowledged that Congress “might be breaking the time-honored line between felonies and misdemeanors” but nevertheless allowed a misdemeanor offense to be considered an aggravated felony.11 In that case, the court was reviewing the claim of a man who had been convicted of shoplifting and sentenced to twelve months in prison with the sentence suspended. Even though the shoplift ing charge was a misdemeanor and even though the one-year sentence had been suspended, the court held that the offense met the definition of an aggravated felony. With respect to an assault conviction such as Omar’s, the 1996 law made a crime of violence, which carried a sentence of one year or more, an aggravated felony, expanding it from the previous definition of a crime of violence with a sentence of five years or more. The consequences of being considered an aggravated felon is deportation with virtually no form of relief from deportation available, regardless of hardship to the individual or their U.S. citizen family members. The 1996 laws removed most of the discretion that immigration judges previously had to con-

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sider an immigrant’s individual circumstances when deciding if he or she should be deported. Prior to 1996, immigrants who had been found deportable were entitled to present evidence that they should be given discretionary relief based on various factors. The 1996 laws made these avenues of relief more difficult to obtain, and in the case of immigrants who had committed aggravated felonies these forms of discretionary relief were eliminated altogether. For instance, prior to the 1996 laws, there was a provision under section 212(c) of the immigration statute that provided relief from deportation for some lawful permanent residents who had been convicted of certain crimes if they could prove that the equities of their case entitled them to a waiver (generally called a “212(c) waiver”). The 1996 laws eliminated 212(c) waivers, leaving many green card holders, such as Omar, who could have proven that they and their families would suffer genuine hardship if they were deported, with no possible form of relief. Another consequence of the 1996 laws has been an increase in the number of immigrants being held in detention. In 1996, 20,000 people were held in immigration detention. By 2008, that number had increased to 378,582 people having been held in detention. By 2012, the number had reached approximately 478,000.12 These increases began with the 1996 passage of the AEDPA and IIRIRA, which had provisions that expanded the grounds on which an immigrant was subject to deportation as well as expanded the categories of immigrants subject to mandatory detention. The effect of the 1996 legislation was so dramatic that it resulted in a 42 percent increase in the number of detainees from 1996 to 1997 (Clary and McDonnell 1998). These mandatory detention provisions require that immigrants in certain categories must be held without bond during their immigration cases regardless of whether the individuals have been determined to be dangerous or a risk of flight (the two factors that determine if a criminal defendant is entitled to a pretrial bond). Under the mandatory detention provisions, detainees are not even entitled to ask for a bond hearing before an immigration judge. Thus, even though Omar had committed only one criminal offense when he was fifteen years old, had been living in New York City while completing parole, and had been working for his family’s business for years, the 1996 laws required that he be detained while his immigration case was being decided. Just as Omar was caught by New York’s inflexible juvenile laws, which treated him as an adult at the age of fifteen without regard for his individual circumstances, he was caught in the

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inflexible system of U.S. immigration laws, which treated him as an aggravated felon without regard for his personal equities.

Super-Predators and Criminal Aliens The growing interplay of criminal law and immigration law since at least the passage of the 1996 laws has led to both a greater number of immigration law violations being prosecuted as crimes and an increase in the number of lawful permanent residents being deported based on criminal convictions. This convergence, which many scholars refer to as “crimmigration,” results in the harshest elements of both systems of law being brought to bear against those perceived to be criminal aliens (Stumpf 2006). Omar’s story is a striking example of this phenomenon. More importantly, however, Omar’s situation highlights the common socio-legal process that has occurred in both the juvenile justice field and the immigration enforcement field. A number of authors have described the legislative response to fear of juvenile crime as a moral panic (Pizarro, Chermak, and Gruenewald 2007; Scott 2013), and Welch (2002) has explicated the punitive turn in immigration as a moral panic. With reference to the imposition of greater criminal liability for juvenile offenders, Scott argues, “what distinguishes a moral panic from a straightforward response to a pressing social problem is the gap between the perception of the severity of the threat and the reality” (2013, 538). While disproportion is indeed a hallmark of moral panics (Goode and Ben-Yehuda 2009), the deeper implications of the concept have been explored by a variety of social scientists in other contexts. Stuart Hall, along with colleagues from the Birmingham School, in examining the moral panic regarding mugging in London during 1972 and 1973, explained that the intention of the project was “to situate the ‘moral panic’ as one of the forms of appearance of a more deepseated historical crisis, and thereby to give it greater historical and theoretical specificity” and recognize it as one of the “key ideological forms in which historical crisis is experienced and fought out” (Hall et al. 1978, 221). Thus, while the nature of moral panic—as a set of sensational examples of a particular threat to society played out in the fields of power such as media, politics, and law—makes it appear as an isolated event or episode, Hall explains that moral panics are surface expressions of deeper cultural or socioeconomic crisis. Moral panics and the extreme law and order responses they generate are situated within larger anxieties about the decline of society, culture, and the economy. As ideological displacements, moral panics provide an embodi-

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ment for anxiety over the state of society by identifying specific threats, which Stanley Cohen termed “folk devils,” that can be subdued and expelled from society (Cohen 2002). What Hall makes clear is that the demonization of a particular social group that takes place during a moral panic simultaneously identifies that group as the root of the societal ill while occluding the actual contributory causes that genuinely warrant social action. For instance, in the case of increasing rates of juvenile violence, the moral panic defined the folk devils as the children themselves and located the root of the societal threat within the inherent nature of those individual children. Such a narrative ignores the obvious truth that society’s material, political, and social mechanisms of reproduction have fundamentally failed those children. As a regime of biopower, it displaces the site of governmentality to the individual and prevents analysis that locates the root causes in such salient social aspects as economic inequality, racism, and the continuation of de facto segregation throughout society. Similarly, the narrative that supported the implementation of the 1996 immigration laws identified the folk devils as “criminal aliens” who ignored immigration laws and criminal laws and thereby threatened the nation’s fiscal health, depleted social welfare resources to the detriment of actual citizens, and posed a threat to public safety. In analyzing the implementation of neoliberal ideology in congressional legislation of the 1990s, Carol Greenhouse argues that in congressional discourse on the subjects of civil rights, welfare, and immigration law, “rights were constructed as a form of dependency,” and during debate on the 1996 immigration laws, “legislators most strongly in favor of restricting illegal immigration construct aliens and citizens as different kinds of persons” (Greenhouse 2013, 104). The 1996 laws are a prime example of how statutes aimed at addressing an abstract fear—in this case criminal aliens—are drafted so broadly that they also include significant numbers of individuals who do not present any of the dangers the law claims to address. Because the basis of the narrative is that the laws are targeting outside threats to society, there is no need to provide rights or protections to those dangerous outsiders. Indeed, in upholding the mandatory detention provision of the 1996 laws the Supreme Court explicitly held, “in the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.”13 As was the case in the juvenile justice context, making migrants the folk devil from which society must be defended using harsh and unforgiving immigration laws occludes the

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complex historical, economic, political, and social aspects of migration. Social problems related to migration are seen as the sole responsibility of individual migrants, and complexities such as historic and current acceptance of the benefits of migrant labor and the fact that economic, political, and military decisions made in the United States cause instability that leads to migration is obfuscated. Kenneth Thompson noted that contemporary moral panics are distinctive from the moral panics of previous eras because “contemporary panics seem to catch many more people in their net” (Thompson 1998, 2). Perhaps this is because at least some of these moral panics are creating folk devils to blame for ever-growing levels of palpable social inequality and insecurity as migrants serve as scapegoats for both the economic and social instability caused by the globalized, deregulated, privatized, rent-seeking socioeconomics in late modern capitalism as well as for perceived threats to public safety from crime and terrorism. Omar’s position at the confluence of two moral panics and the ruination it has brought to his life are typical of many of those caught up in punitive crimmigration policies. Moreover, the merging of these two narratives of social exclusion is not merely coincidental but rather an example of what Hall calls a “signification spiral,” or escalation. Escalation is the process whereby “one kind of threat or challenge to society seems larger, more menacing, if it can be mapped together with other, apparently similar, phenomena,” and the greater the perceived threat to the social order, “the tougher and more automatic is the coercive response” (Hall et al. 1978, 225–26). Here, the threat of criminal aliens is seen as so great that it warrants entirely disregarding the rights and interests of those who might be considered such a threat. The problem with this discourse of threat and the legislation created in response to it is that the threat is seen as warranting a state of exception where normal rules, rights, and fairness need not be applied, but this suspension of rules, rights, and fairness makes it impossible for any individual swept within the scope of the state of exception to demonstrate that they are not, in fact, the type of danger the state of exception was created to address. What is more, this state of exception has been justified through a variety of narratives, often rooted in claims of racial and/or cultural inferiority, whose ultimate conclusion is to lay the blame for poverty, inequality, and abjectness at the feet of those who are suffering. Max Weber used the idea of “theodicy” to understand how people explained social inequality and argued that given the widespread and unequally-distributed nature of human suffering, the de-

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mand for a rational and consistent explanation of the world and its events clashed with the concept of an omnipotent monotheistic deity. In The Protestant Ethic and the Spirit of Capitalism, Weber outlines specifically the Calvinist theodicy that is characterized by “an aristocracy which, with its character indelebilis, was divided from the eternally damned remainder of humanity” (Weber 1976, 121). The consequence of this division is that “the elect” had “an attitude toward the sin of one’s neighbor, not of sympathetic understanding based on consciousness of one’s own weakness, but of hatred and contempt for him as an enemy of God bearing the signs of eternal damnation” (Weber 1976, 122). In short, when there is an extreme disparity between the conditions of a privileged population and an abject population, those with privilege tend to lay the blame for these conditions on those who are suffering rather than questioning their own relative privilege, critiquing the structural conditions that have created inequality, or having an apostasy of the contemporary world’s moral order. Similarly, Foucault asked how the modern nation-state, which had unified society under governmentality of biopolitics, justifies the disparate treatment of groups within a population. The paradox of biopolitics is that the state’s political and economic activities are justified as fostering and improving life for individuals and society, but these very activities expose certain members of society to death, neglect, expulsion, and political ostracism. Foucault asks, “[g]iven that this power’s objective is essentially to make live, how can it let die?” (Foucault 2003, 254). Foucault claims that under the regimes of biopower in a modern state, racism is the primary “way of introducing a break into the domain of life that is under power’s control: the break between what must live and what must die” (Foucault 2003, 254). Within this view, those seen as inferior races or abnormal individuals suffer death (or “political death”) for the betterment of the population in general: “the death of the bad race, of the inferior race (or the degenerate, or abnormal) is something that will make life in general healthier: healthier and purer” (Foucault 2003, 255). Thus, the technique of biopower operates by defining a segment of the population as the norm and uses racism to define those individuals and populations that are seen as threats to the norm. In justifying the suffering that results from disadvantageous sociopolitical positions, Weber’s concept of theodicy shows how contempt and blame are added to the burden of inequality and rightlessness. Foucault demonstrates how the dividing practice of race creates an ontologically different population

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that is both feared and despised and can, therefore, be exposed to the unequal deprivation of life (and its opportunities) within the supposedly rational lifesupporting biopolitical nation-state. These mechanisms are two sides of the same process by which the abject and wretched come to be seen as dangerous and villainous, which in turn is used to deny them “the right to have rights” (Arendt 2004, 298). In immigration law we see this process create “legal violence . . . embedded in legal practices . . . and consequently seen as ‘normal’ and natural because it ‘is the law’” (Menjívar and Abrego 2012, 1,387). Specifically, immigration law “constructed a white American race” (Ngai 2004, 25), which is seen as deserving of protection from immigrants whose very presence is seen as a threat and who are seen as deserving whatever response is necessary to protect the “American” population. In Omar’s case, he committed a rash, impulsive, violent act as a fifteenyear-old child and was prosecuted as an adult and received a criminal conviction because New York’s Juvenile Offender Act applied much more broadly than to just the abstract threat of remorseless, dangerous, and incorrigible “super-predator” juvenile offenders to whom it was purportedly meant to apply. In immigration court, Omar encountered a law that deemed “criminal aliens” a threat to society but which was written so broadly that an enormous range of prior criminal convictions met the criteria of “criminal alien.” That Omar’s offense occurred when he was fifteen and would probably not have resulted in an adult conviction in the juvenile system in federal court, or in the majority of other state jurisdictions in the country, was irrelevant. Under the circular logic of the state of exception, his conviction alone was enough to classify him as the sort of “criminal alien” whose purported existence was used to justify the need for the law in the first place, but that same law prohibits examining the specifics of the offense or the context of Omar’s life to determine if he is in fact the sort of threat the law claims to be addressing.

Rules, Discretion, and Case-by-Case Analysis As the remainder of this book will demonstrate, the current immigration laws fail to provide any individualized consideration of the merits of a given noncitizen’s case both (1) because the immigration laws fail to differentiate between meaningful gradations of culpability or to account for personal context and equities that warrant consideration and (2) because even noncitizens who would be entitled to relief under existing immigration law are often without legal assistance and unable to articulate or support their legal claims. Since

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the ethnographic examples throughout this book highlight the harms that result from stripping immigration judges of discretion in individual cases, any consideration of increasing discretion of immigration judges needs to take into account the costs and benefits of allowing individual decision makers increased decision-making power. In fact, numerous immigration scholars have argued that immigration law is uniquely problematic in terms of how much unreviewable discretion administrative decision makers have (Coutin et al. 2017; Kanstroom 1997; Schuck 2000). In many contexts, immigration officials have unreviewable decisionmaking powers when granting or denying certain applications, ICE officers have free discretion over who to arrest, and the prosecutorial discretion of ICE attorneys to decide who to begin deportation proceedings against are generally unreviewable (Motomura 2011; Wadhia 2015). Indeed, in Arizona v. United States, the Supreme Court noted, “[a] principal feature of the removal system is the broad discretion exercised by immigration officials” to “decide whether it makes sense to pursue removal at all.”14 With respect to the actions of immigration judges, however, this statement is both true and not true. Immigration judges are both trial courts in need of broader discretion to consider individual circumstances of the cases before them and administrative officials in need of judicial oversight of how they exercise what discretion they have. As things stand now, they often lack both. The questions of what level of discretion is appropriate to reserve for judges, how to cabin such discretion to prevent judicial overreaching, and how to prevent acts of invidious discrimination are fundamental both to legal theory and the social science study of law. Currently, many immigration practitioners believe that one of the main hindrances to reaching fair results is the way current laws fail to give immigration judges discretion to consider the particular circumstances of the cases before them. Moreover, many immigration lawyers believe that in the cases where judges have broader discretion, such as asylum cases or cases controlled by pre-1996 immigration laws, they are often able to reach fair results. Thus, questions of how much discretion immigration judges should have and whether such discretion would be vulnerable to misuse is fundamental to questions of how the immigration enforcement system can be made more fair. Over the past several decades, both criminal law and immigration law have turned more punitive, which has resulted in legislative frameworks and judicial philosophies that are hostile to the concept of allowing judicial dis-

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cretion to mitigate harsh results in individual cases. There has been widespread condemnation of the idea that judges can and should do anything but mechanically apply statutes. In 2005, this view was epitomized during the Supreme Court confirmation hearing of John Roberts, who analogized the role of a judge to that of an umpire, saying, “My job is to call balls and strikes.”15 This limited view of the role of judges has not always predominated and at times has been critiqued as particularly problematic in cases where judges are ascribing culpability and punishment for the acts of individuals when circumstances, equities, and contexts vary from case to case. Morris R. Cohen, a philosopher and legal scholar, saw cyclical trends in openness to judicial consideration of equitable factors followed by retrenchment and argued that there were periodic waves of reform during which the sense of justice, natural law, or equity introduces life and flexibility into the law and makes it adjustable to its work. In course of time, however, under the social demand for certainty, equity gets hardened and reduced to rigid rules, so that, after a while, a new reform wave is necessary (Cohen 1933, 261).

Judge Learned Hand explained his view of the essence of the question of judicial discretion in the case of Yin-Shing Woo, who had had his application to become a citizen denied based on bad moral character grounds because he had twenty-three unpaid parking tickets. In that case, Hand explained that judicial discretion stems from the inability of the legislature to predict or provide for every factual situation that may arise.16 In this context, Hand conceded that some decisions are based on a judge’s personal judgment of the conduct involved, explaining that in many contexts “a legislature means to leave the judges the appraisal of some of the values at stake,” such as legal questions of “reasonableness,” in which courts are basically exercising “‘legislative’ power, although we call the issues questions of fact.”17 Thus, given that legislation is always unable to anticipate the facts and circumstances of every case that can arise, the options that are available to a legal system are to simply ignore the particularity of certain facts and circumstances or to trust judges to reasonably evaluate them as they apply laws and legal principles. In reversing the denial of Woo’s citizenship application, Hand held that failure to pay his parking tickets was not inimical to the “good order” of the United States under the naturalization laws and explained that judges must

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think in accord with the general purpose of the measures as the community would understand it. We are of course aware of the resulting uncertainties involved in such an interpretation; but the alternative would be specifically to provide for each situation that can arise, a substitute utterly impractical in operation.18

Hand observed that within certain limits judges “call this function ‘interpretation’” but that too broad a scope of individual judicial choice would be an invalid “‘delegation’ of legislative power.”19 Thus, for Hand, there was a role for judges in a zone between mechanically applying statutes and simply substituting their idiosyncratic preferences. For Hand, judges must apply statutes in light of the facts and context of each individual case, and this sort of judicial discretion is not only permissible but necessary if the law is going to reach reasonable and just results. Hand’s description of the role judicial discretion can and must legitimately play in legal decisions is also reflected in the work of Cohen, who argued, ethical views as to what is fair and just are, and always have been, streaming into the law through all the human agencies that are connected with it, judges and jurists as well as legislature and public opinion. Indeed, the body of the law could not long maintain itself if it did not conform in large measure to the prevailing sense of justice (Cohen 1931, 406).20

The views of Hand and Cohen reflect the ongoing attempts to balance between what Roscoe Pound termed “general security and the individual human life” (Pound 1922, 141). According to Pound, certain cases, such as issues of property rights and contract law, lent themselves to mechanical application of legislation, but in cases requiring “the weighing of human conduct and passing upon its moral aspects, legislation has accomplished little” (1922, 139), and such cases required that application of discretion, or what Pound called “individualization” (1922, 138). Cass Sunstein has argued that in law there is always a need “to choose between general rules and case-by-case decisions” but that to know which is the best judicial method requires a “highly contextualized inquiry into the levels and kinds of error and injustice via rules or via rulelessness, with special attention to the nature of the forum that will be making the crucial decisions” (Sunstein 1995, 957, 959). Analysis of the “error and injustice” that occurs under the current strictly rule-based immigration law demonstrates a need to

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increase the power of immigration judges to make case-by-case decisions and the need to allow judicial review of the decisions made in immigration court. In the case of immigration, current law is strict, inflexible, and provides little discretion to immigration judges to make case-by-case decisions based on individualized consideration of specific contexts, levels of culpability, equities, and hardships. As this book will demonstrate, this rule-based inflexibility is responsible for substantial injustice in the system, and immigration court is a forum that would be better served by having greater discretion to make case-by-case decisions. First, the overbreadth of immigration law, such as the 1996 provisions, is such that they apply to many long-term residents of the United States who bear little resemblance to the dangerous “criminal aliens” or threats to public safety that lawmakers cited as the justification for creating those laws. Indeed, numerous federal judges have lamented the harsh results mandated by the current inflexible immigration laws. For instance, in a dissenting opinion, Harry Pregerson of the Ninth Circuit Court of Appeals criticized the requirement of showing “exceptional and extremely unusual hardship” to the intending immigrant’s citizen or lawful permanent resident family members to obtain a form of relief known as cancellation of removal as an “onerous standard” and lamented, “[s]adly, our cancellation of removal statute does not honor the concept of family values and the need to keep families together.”21 Pregerson recognized that the unconscionable results in many cancellation of removal cases arose from both onerous standard in the 1996 laws and from the fact that those laws had stripped the federal courts of jurisdiction to review findings as to whether a hardship existed, so he placed responsibility for correcting these injustices with the legislature, stating, “I pray that soon the good men and women in our Congress will ameliorate the plight of families like the Cabrera-Alvarezes and give us humane laws that will not cause the disintegration of such families.”22 Similarly, in affirming the denial of cancellation of removal in another case, the Eleventh Circuit Court of Appeals lamented, “[t]his is one of those difficult cases where the law yields a conclusion that is onerous and, at its core, inequitable,”23 and a judge on the Third Circuit Court of Appeals, in concurring with the affirming of a removal order, complained that under the current law, “the result we must reach is as unjust as it is unreasonable.”24 If anything, these sorts of inequitable results have become even more the norm under the Trump administration, which has not been exercising

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any real prosecutorial discretion to differentiate between levels of culpability when deciding who to arrest and place in removal proceedings. As a result, numerous migrants who had been low priorities for immigration enforcement are facing arrest, detention, and deportation. For instance, CBP agents stopped an ambulance carrying a ten-year-old girl with cerebral palsy being taken to a hospital for an operation and determined that she was out of status because her parents had brought her to the United States as a three-monthold infant to receive medical care. After following the ambulance to the hospital, CBP agents waited outside of the girl’s room and took her into custody when she was discharged from the hospital. In defense of these actions, the CBP spokesperson stated, “The agent is wrong if he lets her go. We don’t have the discretion. It’s not a traffic ticket. We follow the letter of the law” (Burnett 2017). Obviously, a child who has lived nearly her entire life in the United States after being brought by her parents for medical treatment is not the sort of threat that immigration laws were written to address, but she nevertheless fits within “the letter of the law.” Without space somewhere in the system to exercise discretion based on the particular equities of a given case, immigration law produces results such as this one, which are nonsensical and shock the conscience. Second, for law to maintain its legitimacy, there must be some mechanism that accounts for the vastly different circumstances of the individuals in immigration court. Because there is no gradation or proportionality in terms of consequences for individuals deemed deportable under immigration laws, the lack of discretion to grant relief from deportation under the current laws means that someone who has been raising a family in the United States for a decade may very well be treated the same as someone who arrived in the United States for the first time a month ago. The law loses legitimacy when it ignores personal and social factors that most people understand should be taken into account. One indication that people do not believe the current immigration system produces fair results is that polls have consistently indicated that the majority of Americans believe that individuals who have been living in the United States should have an opportunity to legalize their status.25 The loss of discretion in immigration courts under the 1996 laws is parallel to the history of loss of discretion in federal criminal cases. Recently, however, federal criminal law has experienced a significant reauthorization of judicial discretion in the area of criminal sentencing after decades of judges having little or no flexibility over the sentences they were required to impose. In

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the 1980s, there were legislative changes that increased the severity of federal criminal laws and limited the role of judicial discretion as part of what has been called the “Crime Control Era” (Nowacki 2015). As with the 1996 immigration laws, reforms to federal criminal sentencing laws imposed harsh penalties while stripping judges of the ability to mitigate overly severe sentences or consider the individual context of a defendant’s case (Kim et al. 2016). Beginning in 1987, judges were required to follow the Federal Sentencing Guidelines, under which the only factors that were considered were the severity of the offense and the criminal history of the defendant. Based on the calculation of these two factors, the Guidelines provided a narrow permissible sentencing range within which the judge was generally required to impose a sentence. As a rule, individual circumstances and the context of the offense or of the defendant’s life were considered irrelevant. In fact, the Guidelines specifically forbade consideration of a defendant’s personal context, “including a history of misfortune or disadvantage, service to his country or his community, family responsibilities, and employment history” (Stith and Cabranes 1998, 4). In their critique of the Guidelines, Fear of Judging: Sentencing Guidelines in the Federal Courts, Kate Stith, a former federal prosecutor, and José Cabranes, a federal court of appeals judge, argue that taking sentencing discretion away from judges undercuts both the humanity and legitimacy of the criminal justice system. Stith and Cabranes, argue that “the criminal justice system exists not only to protect society in a reasonably efficient and humane way, but also to defend, affirm, and, when necessary, to clarify the moral principles embodied in our laws” (Stith and Cabranes 1998, 78). This “acknowledgement of the moral personhood of the defendant and the moral dimension of crime and punishment” requires that judges individually weigh all the purposes of criminal punishment and all of the “circumstances of a particular case” (Stith and Cabranes 1998, 78). In stripping judges of discretion in individual cases, the Guidelines “are based on a fundamental misconception about the administration of justice: the belief that just outcomes can be defined by a comprehensive code applicable in all circumstances” (Stith and Cabranes 1998, 168–69). While one of the stated goals of the guidelines was to reduce sentencing disparities based on factors such as race and geographic region, in fact such disparities persisted and even increased. In part, this was because in taking discretion away from judges in terms of sentencing decisions at the end of cases, the Guidelines increased the importance of the discretion prosecu-

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tors had when they made decisions about who to charge with what offenses at the beginning of cases (Engen et al. 2003). Moreover, more people were sentenced to prison, and sentences increased because the sentences dictated by the Guidelines were harsher and “judges could no longer consider the circumstances surrounding an offense” (Nowacki 2015, 1,366). This situation parallels changes to immigration law, where statutory provisions made deportation decisions more categorical and less flexible, thus reducing the discretion that immigration judges had to grant relief. However, these “statutory restrictions on discretionary relief have simply consolidated this discretion in the agency officials responsible for charging decisions. Prosecutorial discretion has thus overtaken the exercise of discretion by immigration judges when it comes to questions of relief” (Cox and Rodríguez 2009: 518–19). While important, such prosecutorial discretion is circumscribed by the contemporary political climate (Wadhia 2015). For instance, under the Obama administration prosecutorial discretion was generally withheld from individuals with any criminal background, and under the Trump administration prosecutorial discretion has been effectively eliminated completely, even for individuals without criminal convictions. Without the option of this prosecutorial discretion, the deportation rate for individuals without a criminal conviction in New York City has increased more than 265 percent during the first year of the Trump administration (New York City Comptroller 2019, 4). In federal criminal cases, judges were required to follow the Guidelines until 2005, when the Supreme Court, in United States v. Booker,26 ruled that having mandatory Guidelines would violate the Sixth Amendment, and therefore the Guidelines should only be considered advisory. In later cases, the Court explained that this meant a judge “must make an individualized assessment based on the facts presented”27 because the “sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him,” and that by articulating the basis for a given sentence, “the sentencing judge not only assures reviewing courts (and the public) that the sentencing process is a reasoned process but also helps that process evolve.”28 In overturning the mandatory nature of the Guidelines and restoring judicial discretion in sentencing, the Court noted that it had been the federal judicial tradition “for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.”29

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While the decision in Booker was based on the Sixth Amendment and therefore applies only to criminal cases and not immigration cases, the idea that individuals are entitled to an individualized hearing that accounts for the unique contexts of their case is no less a necessary element of a fair hearing in immigration cases, and the systematic denial of such individualized consideration is no less an injustice. In the immigration context, numerous lawyers and scholars have shown how the 1996 laws violate these legal principles and social norms (Arnold 2011; Kanstroom 1997; Morawetz 2000). For instance, Nancy Morawetz, who heads the New York University School of Law Immigrant Rights Clinic, explained that prior to 1996 the “deportation hearing process was a forum in which immigration judges considered the seriousness of the crime, the person’s rehabilitation, and the many additional factors—such as the impact on the person’s family—that were relevant to the deportation decision” (Morawetz 2000, 1957) and that “[b]y imposing mandatory deportation for vast new categories of criminal convictions, the [1996] laws permanently change the rights of legal permanent residents in the United States” (Morawetz 2000, 1,962).

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legal principles, policies, and structures that were framed within the social contexts of xenophobia, racism, and fear still control in U.S. immigration law. Therefore, understanding and analyzing current immigration law requires some reflection on the history of its development. At an event in New York City, I was seated between two intelligent, successful, professional individuals who were interested in my work as both an immigration lawyer and a researcher on the topic of immigration. Both of them explained that they were themselves the grandchildren of immigrants and that they strongly condemned contemporary anti-immigrant rhetoric because they had been told of the hardships suffered by earlier immigrants who encountered “Irish need not apply” signs or were denied jobs and educational opportunities because of their religious background. Nevertheless, they both drew a line between the conduct of their Jewish and Italian grandparents, who they explained had migrated “the right way,” and the conduct of contemporary migrants, who were seen as scofflaws or economic migrants coming to the United States out of self-interest. They had heard from friends and relatives that the schools in their communities did not have enough resources in part because of the children of new migrants. This narrative presents two ontologically different sets of migrants: the ancestors of presentday native-born Americans, who are seen as having overcome discrimination through hard work, and new migrants, who are seen as coming to take advantage of better opportunities at the expense of American citizens. Aihwa Ong has pointed out that such narratives are rooted in a “racial bipolarism” that “has historically been part of a classification system for differentiating among I N V E R Y PA L PA B L E WAY S

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successive waves of immigrants, who were assigned different stations along the path toward whiteness” (Ong 2003, 11). It is, therefore, necessary to correct, counter, and complicate such two-dimensional narratives by expanding and thickening the historical context of how different groups of migrants have been treated by considering the deeper complexities of why and how people migrate and by also interrogating the broader socioeconomic changes that better account for the diminishment of social resources for which new immigrants are often blamed. This chapter is not intended to be an exhaustive history of immigration law but rather is meant to highlight some of the social, economic, and political events that have had a lasting influence on the way immigration law has developed and to demonstrate the extent to which immigration law, in its current form, is the product of social assumptions that have often been rooted in erroneous beliefs about migrants and in prejudicial attitudes. In discussing the ways in which the Supreme Court seeks to root decisions in principles, Mark DeWolfe Howe explained that the Court had two related powers. The first is the power “to interpret history. The other is the power, through the disposition of cases, to make it” (quoted in Cover 1983, 18). Howe went on to explain, however, that it is a mistake “to think that because a majority of the justices have the power to bind us by their law they are also empowered to bind us by their history. Happily, that is not the case. Each of us is entirely free to find his history in other places than the pages of the United States Reports” (quoted in Cover 1983, 19).1 For Robert Cover, the significance of this observation was that alternative, complex, and contested historical narratives “still provide normative bases for the growth of distinct constitutional worlds” (Cover 1983, 19). One significant example of this process was the overturning of Bowers v. Hardwick,2 which had upheld the constitutionality of laws criminalizing consensual same-sex sodomy on the grounds that “millennia of moral teaching”3 condemned homosexual sodomy. In Lawrence v. Texas,4 the Court overruled Bowers, in part because the Court determined that “there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.”5 This reevaluation of history by the Court from Bowers to Lawrence most defiantly opened the possibility of a new constitutional world, one which culminated with the Court’s decision in Obergefell v. Hodges,6 which recognized the constitutional right to same-sex marriage. Therefore, we must recognize that complex histories that examine the assumptions that underpin our political, legal, and social conditions have

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the potential to be generative and productive “histories of the present” (Foucault 1977, 31). The intersection of social, economic, and political factors in various historical periods influenced how immigrants were viewed and treated in society at large and in law, as well as how courts determined what rights, if any, immigrants would be recognized as having. In general, the trend has been to rely on broad, vague social concerns in order to justify restrictive or punitive laws and policies and for courts to be reluctant to interfere with decisions of the political branches of government. Sweeping laws aimed at the exclusion of certain migrants have not simply regulated society but have been intended to redefine it and its membership. Perceived threats to the interests of the United States and its citizens from immigration are projected in the form of an abstract alien who embodies those dangers, and laws and policies aimed at that abstract alien are created. In practice these laws and policies have been overly broad, in that they negatively affect individuals who do not present the sorts of dangers that were enunciated to justify the creation of the laws and policies. Because the courts have been reluctant to intervene to protect the rights and interests of these noncitizens, individuals have been without recourse when they are caught within the sweep of harsh and punitive laws. In justifying their abstention, the courts have announced broad doctrines and policies rooted in concepts of national sovereignty while ignoring the specifics regarding the individuals affected and the transnational ties of American families of immigrant origin. Finally, in upholding the government’s power to disadvantage individuals based only on vague and attenuated clams of potential harm, the courts have repeatedly laid the groundwork for the next set of laws and policies that overreach legitimate interests. As was discussed in the Introduction, the Supreme Court’s upholding Trump’s Muslim travel ban is a prime example of this process. Historically, the consideration of race in immigration law was overt—blatant, even. More recently, race as a factor in immigration has been more or less submerged beneath economic, social, and safety and security claims. Of course, such claims can also be used as proxies for invidious discrimination, such as President Trump’s banning migration from several predominantly Muslim countries by claiming the ban was a national security measure. In a sense, one could read political economic factors through the lens of race, or one could read racial and social factors through the lens of political economy. Any interpretation that gives primacy to a single factor to the exclusion of the

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others would, however, miss significant aspects of the motives, structure, and practices that construct the inequalities and injustices within contemporary immigration law. Early immigration statutes specifically treated individuals differently based on their race. Notoriously, the Naturalization Act of 1790 barred anyone except “free white persons” from becoming naturalized citizens, and a series of statutes enacted in the late nineteenth and early twentieth centuries excluded first Chinese immigrants and then nearly all immigrants from Asia. Overtly racist enforcement also took place in the absence of immigration statutes that singled out particular races for disparate treatment. For example, in the 1930s, people of Mexican ancestry, both migrants and citizens, were targeted for mass deportation. While the de jure racist history of immigration law and enforcement is important in understanding contemporary immigration policy, the sources of the injustice within contemporary immigration law are not always so blatant. For more than fift y years, immigration laws have been free of racial exclusions and restrictionist national quotas, but enforcement strategies have continued, at times, to target individuals and groups based on race, ethnicity, political opinion, and religion. Similarly, while racist restrictions and quotas meant to favor particular national origins have been removed, limits and restrictions on immigration are harsh and pervasive, and they dramatically affect millions of people. At the same time, the United States is both “a nation of immigrants”7 and a nation that harbors deep fears about the dangerousness of immigration; throughout the past century of American history, there has been a consistent belief that those choosing to immigrate to the United States from elsewhere could, in fact, be threats to the nation’s wellbeing. America’s immigration history thus contains, on the one hand, events that bespeak a tradition of welcoming those who seek refuge and the promise of a better life and, on the other, expressions of hostility to immigration, such as obviously racist exclusionary laws, inconsistent and unfair enforcement of immigration laws, and repeated scapegoating of immigrants for a variety of problems. The anti-immigrant sentiments have generally been rooted in three often overlapping categories of concerns: (1) economic concerns, (2) concerns about security and safety, and (3) beliefs about race and nationalism. The concerns regarding the economy have centered on claims that immigrants both take jobs from American citizens and utilize taxpayer-funded government services and benefits, such as education, medical care, and welfare. Concerns over security

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and safety include fears that immigration contributes to increased crime rates and makes the United States more vulnerable to terrorism. Nationalistic and racist beliefs take the form of claims that newer immigrants come from cultures that make them less able to assimilate, claims that new immigrants fail to learn English, claims that the values and beliefs of these new immigrants are fundamentally incompatible with American society, as well as even more overtly racist claims regarding characteristics of newer immigrants. Numerous laws and policies embodying these anti-immigrant sentiments have been adopted on local, state, and federal levels. In addition, the debates and justifications regarding most of these laws and policies have included heated and divisive anti-immigrant rhetoric that is often propagated by various interest groups, espoused by politicians, and reported by the media, thereby further promoting anti-immigrant sentiments in society at large.

The History of U.S. Immigration Law in Social Context The Chinese Exclusion Act and the Plenary Power Doctrine Other than setting the eligibility criteria for naturalization, the federal government did not exert significant control over the regulation of immigration until the latter third of the nineteenth century (Kanstroom 2007; Ngai 2004). Beginning in 1875 and continuing throughout the 1880s, Congress started to create categories of individuals considered inadmissible to the United States. Categories of inadmissibility included those convicted of committing a crime involving moral turpitude, those considered prostitutes, those arriving as contract laborers, those with “dangerous and loathsome contagious diseases,” those considered “insane” or “feebleminded,” and those considered likely to become a public charge (Ngai 2004, 59). At this time, the Supreme Court, in Henderson v. Mayor of New York,8 held that the federal power over foreign commerce gave Congress the right to regulate immigration, despite no explicit constitutional delegation of power regarding the subject. From 1850 to 1880, the number of Chinese immigrants in the U.S. increased from approximately 7,500 to over 105,000, and Chinese immigrants made up a significant percentage of laborers in California, particularly in the agricultural sector (Kanstroom 2007, 102). Even with this increase in immigration from 1870 to 1880, Chinese made up only 4.3 percent of the total number of immigrants to the U.S. within the same period (Lee 2006, 10). Discriminatory attitudes against Chinese immigrants increased with the economic depression in the 1870s, which led to lower wages and higher unemployment.

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Despite the fact that Chinese labor had contributed greatly to both the construction of the Transcontinental Railroad and the gold mining boom in the West, the Chinese were increasingly targeted by unions and political organizations that claimed they were a threat to white working-class jobs (Roediger 1992), and politicians took advantage of these claims to place blame for the nation’s economic problems on the Chinese (Gyory 1998). These arguments were cast in terms of the unsuitability of the Chinese as a race and their lack of compatibility with American culture, and—in California, at least—the antiChinese movement and the labor movement overlapped significantly (Saxton 1971; Montgomery 1987). The Chinese Exclusion Act of 1882 banned Chinese laborers, skilled and unskilled, from immigration to the United States and was the first of a number of laws aimed at barring Chinese immigration to the United States, a policy that remained in effect until the ban was repealed in 1943. Eventually, discrimination against Asian immigrants expanded with the creation of the Asiatic Barred Zone in the Immigration Act of 1917, which restricted immigration from virtually all Asian countries. Lucy Salyer (1995) has argued that the creation of the U.S. Bureau of Immigration in 1891 as well as the enforcement regime created to enforce the Chinese Exclusion Act reconfigured immigration law from a system of judicial justice to one of executive justice with greatly reduced access to rights and due process. It was in the context of enforcing the Chinese Exclusion Act that the Supreme Court held, in Chae Chan Ping v. United States9 (also known as the Chinese Exclusion Case), that Congress had plenary power over the exclusion of immigrants and similarly held, in Fong Yue Ting v. United States,10 that the corollary sovereign power to the right to exclude was the right to expel. In the case of Chae Chan Ping, Chae had lived and worked in San Francisco for twelve years before traveling back to China in 1887. As the law then required, he obtained a reentry permit to document that he was a U.S. resident so that he would be allowed to return to the United States after his trip. While he was out of the country, the Chinese Exclusion Act was amended by the Scott Act of 1888 to completely ban Chinese laborers and retroactively rescinded reentry permits that had already been issued. Although the Constitution does not explicitly grant Congress authority to regulate immigration, in Chae Chan Ping, the Supreme Court held that “[t]he power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the Constitution” should not be limited by the judiciary.11 In justifying the sovereign

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power over immigration, the Court analogized the nation’s need to “preserve its independence, and give security against foreign aggression and encroachment,” regardless of whether the threat originated from a foreign government “or from vast hordes of its people crowding in upon us.”12 Here, the Court clearly adopted populist claims of threats from the “yellow peril” of Chinese migration and held that the “hordes” of migrants were the legal equivalent of an invading army. In upholding the Act and ruling that Congress has plenary power over the exclusion of immigrants, the Court explained that the political branches are the appropriate forum to balance the relative equities involved: We do not mean to intimate that the moral aspects of legislative acts may not be proper subjects of consideration. Undoubtedly they may be, at proper times and places, before the public, in the halls of Congress, and in all the modes by which the public mind can be influenced. Public opinion thus enlightened, brought to bear upon legislation, will do more than all other causes to prevent abuses; but the province of the courts is to pass upon the validity of laws, not to make them.13

While the Court in Chae Chan Ping clearly indicated that it would not second-guess Congress’s substantive decisions regarding what groups were entitled to immigrate, individual immigrants still had considerable success obtaining relief by fi ling habeas corpus petitions with federal courts, claiming that they were excluded or removed in violation of their procedural due process rights, such as being denied access to counsel, being denied the right to confront witnesses, or based on insufficient evidence (Barde 1994; Salyer 1995). In 1905, however, even that avenue was drastically limited when the Supreme Court, in United States v. Ju Toy,14 ruled that a person claiming that they were entitled to enter the United States was not entitled to a judicial hearing to make that determination and that Congress could delegate the task of deciding who was entitled to enter the United States. to an executive agency. According to Lucy Salyer, this decision marked a significant turn, in which anti-Chinese animus generated a legal structure wherein immigration laws would be created and enforced with little interference from the federal judiciary (Salyer 1995, 248). The treatment of Chinese immigrants in this era established three templates that would be repeated again and again in U.S. immigration law: (1) the scapegoating of particular immigrant groups for broader social and economic problems, (2) the courts’ deferral to the actions of the political branches of

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government, and (3) the diminishment of the legal rights and protections available to individuals in those groups.

The Quota Laws and the Restructuring of U.S. Immigration Law and Policy The Chinese Exclusion Law and the enforcement strategies that enforced it created a new philosophy of immigration and the rights of immigrants. It both limited substantive rights to immigrate based on invidious and arbitrary criteria and limited the rights and procedures that one could use to claim the right to enter or remain in the United States. The pattern established in the persecution of Chinese immigrants was soon expanded to encompass far more national and racial groups, reconfigured enforcement across the entire country, and radically altered the nature of immigration in the United States for decades to come. In particular, it would soon be repeated in the debate over the creation of the quota laws aimed at excluding Eastern and Southern Europeans (Saxton 1971). Economic and Social Debate and the Creation of the Quota Laws of 1921 and 1924 In the early part of the twentieth century, the relationship of immigrants to the economic system was a principal issue of conflict for immigration policy. Both industrial capitalists and American labor unions had complicated and conflicting relationships with immigrant labor. According to the 1910 census, “immigrants constituted more than 36 percent of the men engaged in the manufacturing industry and more than 45 percent of those in mining” (Downey 1999, 272n4). The growth of American industry had been possible only because of the huge increase in immigrant labor. From 1820 until 1920, more than 35 million immigrants arrived, mostly from Europe (Calavita 1984, 1). Although industry benefited from immigrant labor and had often used immigrant labor to break strikes and undermine domestic labor movements, industry also feared that immigrant workers would be more radical and provide dangerous allies to the domestic labor movement. Thus, the fortunes of industrial capitalists were closely linked to the exploitation of the labor of arriving immigrants but also required that those immigrants be rendered docile and controllable. American labor unions were essentially in the opposite situation. American workers had long argued that unchecked immigration drove wages down, provided industry with strikebreakers, and generally lowered the nation’s standard of living. However, unions were, at least in princi-

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ple, committed to the unity of the working class and did not want to alienate the third of the workforce who were immigrants. As importantly, in 1910 and 1911, the Dillingham Commission on immigration, which Congress had established in 1907, came out with a forty-onevolume report on the effects of immigration.15 The most important aspect of the report was its division of immigrants into categories of “old immigrants” and “new immigrants.” The “old immigrants” were defined as having come from the “most progressive sections of Europe,” such as the United Kingdom and Germany, and having assimilated quickly and diff used throughout the American social and geographic landscape. By contrast, the “new immigrants” came from the “less progressive and advanced countries of Europe” and monopolized the unskilled labor pool, lived in ethnic enclaves, and otherwise failed to assimilate (King 2000, 59–60). Worse still, the report concluded that “the new immigration as a class is far less intelligent than the old, approximately one-third of all those over 14 years of age when admitted were illiterate. Racially, they are for the most part essentially unlike the British, German and other peoples who came during the period prior to 1880” (King 2000, 61). In short, the Dillingham Commission attributed most of the social ills that had occurred since the beginning of the 1880s, such as rising unemployment, labor unrest, and urban poverty, to the rise in immigrants from Eastern and Southern Europe, who, according to the report, were less intelligent, less able to assimilate, and generally harmful to the American social and economic fabric. Also at this time, eugenicists were arguing that immigration policy was allowing too many undesirable individuals from Southern and Eastern Europe to enter the country. With the support of these eugenicists, a series of laws imposed a literacy requirement and reduced the number of immigrants from Southern and Eastern Europe. Ultimately, the long-term racist course of U.S. immigration law was set with the Johnson-Reed Immigration Act of 1924, which enacted permanent quotas based on nation of origin and ultimately resulted in 70 percent of the immigrant quotas going to immigrants from the United Kingdom, Ireland, and Germany and “was purposely designed to build up a northwestern European vision of American identity and nationality” (King 2000, 229–30). It is perhaps this ruthlessly efficient application of eugenic ideas that led Adolph Hitler, in Mein Kampf, to express his admiration of the Johnson-Reed Immigration Act as a model of using racist immigration laws to exclude “undesirables” (Crook 2002, 368).

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The Quota Laws and the Creation of the “Illegal Alien” In Impossible Subjects, Mae Ngai (2004) argues that the passage of the JohnsonReed Immigration Act in 1924 and the legal and policy changes it put into place was a paradigm shift in concretizing the category of “illegal alien” both legally and socially and in defining the limits this category placed on individuals as having “no right to be present, let alone embark on the path to citizenship” (Ngai 2004, 6). The law’s quotas applied to racialized groups of individuals, and in the process of creating a racial hierarchy that favored immigrants from some countries over others, the law not only ranked Europeans in “a hierarchy of desirability” but “constructed a white American race, in which persons of European descent share a common whiteness distinct from those deemed to be not white” (Ngai 2004, 24–25). In addition to setting limits on who might immigrate and in what numbers, the Immigration Act of 1924 expanded the administrative apparatus for enforcement of immigration laws. The law created the Border Patrol, eliminated the statute of limitations on deportations for individuals who entered the United States without inspection, and made such uninspected entries a crime for the first time. In these ways, immigration enforcement was moved to the interior of the national territory rather than simply excluding people at the border, and internal policing became an increasingly large part of the immigration services duties. Removals of people from the U.S. increased from “2,762 in 1920 to 9,495 in 1925 and to 38,796 in 1929,” with removals for being present without a proper visa cited as the main reason for removals (Ngai 2004, 60). The 1924 law, which barred “aliens ineligible to citizenship” from immigrating, built on the preexisting racial discrimination of the Naturalization Act that had limited naturalization to free white individuals. This racist restriction on naturalization and immigration had been amended in 1870, following the adoption of the Civil War Amendments to the Constitution, to allow citizenship to individuals of African descent but was otherwise maintained until the mid-twentieth century. Numerous lawsuits brought by individuals seeking to naturalize brought scrutiny to the question of who could be considered white for immigration and citizenship purposes, with the Supreme Court supporting the legislature’s racist restrictions by ruling that Japanese and Asian Indians were not white in Ozawa v. United States16 and United States v. Thind,17 respectively. In reaching this determination, the Court in Thind emphasized that “the words ‘free white persons’ are words of common speech, to be interpreted in accordance with the understanding of the com-

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mon man.” Thind had argued that, as a Hindu, he was both a Caucasian and an Aryan and thus should be considered white for purposes of naturalization. The Court, however, held that regardless of what ethnologists might say, the physical appearance of Asian Indians made them distinct from European immigrants and therefore unassimilable. Through this “common knowledge” test, the Court held that whiteness was a social determination, and the Court would protect these popular discriminatory beliefs through the exercise of legal power (López 2006, 3–7). Mexican immigrants, on the other hand, were not barred from naturalizing, despite deep-seated animosities and discrimination directed against them. At the end of the Mexican-American War, Mexican nationals in the territories ceded to the United States in the Treaty of Guadalupe Hidalgo of 1848 were considered U.S. citizens unless they declared their intent to remain Mexican citizens. Based on this treaty, a court decided in 1897 that Mexicans, regardless of appearance or contemporary anthropological race theory, were white for purposes of the naturalization statute.18 As Ngai noted, however, Mexicans being deemed white under the naturalization statute was “an unintended consequence of conquest” (Ngai 2004, 54) that did not protect them from discrimination or even exclusion or removal from the United States. As industrial agriculture spread throughout the Southwest, so did the numbers of Mexican migrant laborers employed as seasonal agricultural workers, and during World War I the attorney general suspended the literacy test and $8 head tax for new Mexican arrivals (Douglas Massey, Durand, and Malone 2002, 29). Similarly, when the Immigration Act of 1924 imposed national quota limits, it exempted countries in the Western Hemisphere, which meant that Mexican immigrants were not subject to quantitative limits on visa availability. By the 1920s, there were “an average of 62,000 legal and an estimated 100,000 undocumented entries a year” (Ngai 2004, 131). The view of Mexican immigrants as a vital source of labor but wholly undesirable as citizens continued to dominate law and policy. During a 1920 congressional debate on the subject of “Temporary Admission of Illiterate Mexican Laborers,” Mexicans were represented as being particularly well suited for manual farm labor and as more productive than other workers. As one witness advocating the liberalizing of migrant labor controls testified, “the prices that they charge are much less than the same labor would be from either the negro or the white man.” Moreover, it was argued that this increased productivity at a lower cost would result in increased production of food and clothing, which would ben-

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efit the country as a whole by reducing the cost of living. Those testifying on behalf of the proposal argued that while Mexicans were not “particularly desirable citizens,” this was not cause for concern because “they will stay here for four or five months until they have saved perhaps $150, and then they will go back to Mexico, go back to their homes, and when the money is gone they will come back to the United States” (U.S. House of Representatives 1920, 4–6). Thus, the arguments made in this hearing outline how Mexican labor would be utilized and conceptualized for the rest of the century. Mexican workers were economically beneficial, even necessary, but their presence in the United States would be tolerated only as an undesirable necessity; Mexican migrants would be encouraged to engage in circular labor migration but not to settle in the United States and would never be invited to enjoy social or political membership (Calavita 1992; Douglas Massey, Durand, and Malone 2002). With the arrival of the Great Depression in 1929, there was an even greater focus on reducing the number of individuals of Mexican ancestry in the United States, and the Secretary of Labor explicitly advocated the deportation of Mexicans as a way to create jobs for American workers (Kanstroom 2007, 215). From 1929 to 1937, 458,000 Mexicans were expelled from the United States, and many more left of their own volition rather than face continued persecution (Douglas Massey, Durand, and Malone 2002, 34). Many of these Mexican families included parents who had immigrated from Mexico and U.S. citizen children who had been born in the United States, but the mass removals often did not make this distinction, and the number of individuals removed to Mexico, including their U.S. citizen children, could have been as many as one million (Balderrama and Rodríguez 1995, 122). Ngai points out, however, that not all “illegal aliens” were subject to deportation. Beginning in 1933, legislation and policies were put in place to prevent deportation and family separation in “exceptionally meritorious” cases (Ngai 2004, 81). This relief came mainly in three forms: (1) waivers of deportation, (2) a process called pre-examination, in which an out-of-status immigrant could briefly leave the United States and return on a preapproved visa, and (3) the Registry Act, which allowed certain long-term residents to legalize their status. Using these methods, as many as 200,000 out-of-status immigrants legalized their status from 1925 to 1965 (Ngai 2004, 89). Mexican immigrants who were out of status, however, were generally not afforded this clemency. European “illegal aliens” were often presented as deserving of relief, while “Mexicans emerged as iconic illegal aliens. Illegal status became

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constitutive of a racialized Mexican identity and of Mexicans’ exclusion from the national community and polity” (Ngai 2004, 58). The status of Mexican migrants as laborers without political or social membership was formalized in the Bracero Program, which was originally established due to labor shortages during World War II and operated from 1942 until 1964, bringing more than 4.5 million Mexican workers to the United States under temporary and restrictive permits (Calavita 1992, 180; Kanstroom 2007, 219). The Bracero Program aided, and was primarily utilized by, large industrial farms that were consolidating land and replacing many of the smaller farms that were owner- or tenant-operated (Ngai 2004, 139). During the Bracero era the average farm size increased by 99 percent and the total number of farms decreased by 22 percent (Mitchell 2012, 402). Even though the wages of the program were ostensibly set by contract, many Braceros complained of being paid significantly less than the contract rate, and the program drove down wages in the agricultural sectors by providing abundant labor to commercial agricultural interests from politically disenfranchised workers (Melnick 2006, 261). Although one of the stated purposes of the Bracero Program was to provide an alternative to undocumented labor, in practice the program ended up increasing the overall number of undocumented workers entering the United States from Mexico. The reasons that the program also begot significant amounts of undocumented labor are numerous and, in hindsight, seemingly obvious. First, the program established recruitment, migration, and employment networks into the interior of Mexico and advertised the availability of well-paying work in the United States on the radio and in newspapers, but there were not nearly as many Bracero positions available as there were individuals interested in working in the United States (Ngai 2004, 152). Second, Mexico initially refused to include Texas, Arkansas, and Missouri in the program because of their Jim Crow discrimination against Mexicans, so farmers in these states recruited and hired undocumented immigrants. Indeed, even many farmers who had access to Braceros preferred to hire non-Bracero workers to avoid regulations and higher wages, and those who hired undocumented workers could do so without fear of consequence because the INS expressed little interest in preventing the use of undocumented labor (Kanstroom 2007, 220). In 1948, the INS District Director for El Paso told his staff, “Until Texas farmers are given the privilege of legally importing farm laborers from Mexico, their farms should not be indiscriminately raided” (quoted

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in Ngai 2004, 152). Similarly, in 1952, at the urging of the congressional delegation from Texas, a law making it a crime to transport an undocumented migrant or induce an undocumented migrant to stay in the United States was amended by the “Texas Proviso” to exempt employers of undocumented workers from liability, and “the amendment was interpreted by the INS as carte blanche to employ undocumented workers” (Calavita 1989, 158; Douglas Massey, Durand, and Malone 2002, 36). One of the longest-lasting effects of the Bracero Program was its creation of a permanent population of Mexican migrant laborers and its establishment of migration and employment networks. Those who participated in the program learned how to be U.S. workers, understand employer expectations, speak English, and negotiate American society (Douglas Massey, Durand, and Malone 2002, 42). By the time the Bracero Program ended in 1964, “the symbiosis between Mexican migrants and employers in the Southwest was well-entranced, the product of over fi ft y years of formal and informal policymaking” (Calavita 1989, 158).

The Hart-Celler Immigration Act of 1965 and the New Structure of Immigration Law The passage of the McCarran-Walter Act of 1952, also known as the Immigration and Nationality Act (INA), eliminated racial bars to immigration and naturalization, and the civil rights era Hart-Celler Immigration Act of 1965 amended the INA to abolish the national origins quota system that had restricted immigration to the United States based on ancestry and nation of origin since 1921. Undeniably, the Hart-Celler Act resulted in the liberalization of U.S. immigration policy, and these changes resulted in unprecedented numbers of migrants from areas of the world that had been significantly underrepresented in the past, including large numbers of lawful immigrant admissions from Asia and Latin America. Over the following decades, these changes reshaped American society as millions of immigrants and their families came to live and work in the United States. Although the Hart-Celler Act did impose limits on the number of migrants from the Western Hemisphere for the first time, other social, political, and economic factors were promoting immigration from Latin America. Direct capital investment and military involvement in Latin American countries disrupted social relationships and traditional livelihoods and created displaced and mobile populations. The same interventions by United States government and corporations that cre-

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ated the mobile populations also created linkages between the Unites States and the other countries, which made migrating to the United States both conceivable and materially possible (Sassen 1988). This process, along with the restructuring of the U.S. postindustrial economy to favor flexible part-time labor, explains how and why Latin American immigration rose even as changes to immigration laws, on their face, might have been expected to decrease such migration. In abolishing the quota system, the 1965 law put a cap on the number of immigrant visas that would be allocated according to a family-based and employment-based preference system. Initially, the numerical cap was allocated differently between countries in the Eastern Hemisphere and countries in the Western Hemisphere, but by 1978 a single worldwide cap of 290,000 visas per year was established, with a per-country limit of 20,000 visas per year. In addition to these visas, immediate relatives of U.S. citizens (i.e., spouses, minor children, and parents) were made eligible to immigrate without being subject to a numerical limit, although the visas they received would be deducted from the overall number of available visas. Since 1995, the total number of available family-based immigrant visas has been 480,000 per year, the total number of employment-based immigrant visas has been 140,000 per year, and the per-country limit has been 25,620. Also, an additional 55,000 visas are available through the diversity lottery to individuals from countries with low rates of migration to the United States, and the levels of refugee admissions are determined separately on an annual basis by the president. Many scholars and advocates have argued that the formal equality created under the per-country limit on available visas, which began in 1978, has in fact been the law’s main flaw due to the fact that the limit does not begin to accommodate the number of individuals from high-demand countries, such as Mexico, who seek to immigrate to the United States for family and economic reasons or to meet the labor demands of employers in the United States (De Genova 2005; Douglas Massey, Durand, and Malone 2002; Ngai 2004). Under this view, the law has not provided sufficient opportunities to immigrate legally, especially given the long-established patterns of labor migration between the United States and Mexico, and was a significant factor in the rise in the number of undocumented immigrants in the United States. These limits, aggravated by a series of amendments in the 1970s, meant that “[b]etween 1968 and 1980 . . . the number of visas accessible to Mexicans dropped from an unlimited supply to just 20,000 per year (excluding immediate relatives

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of U.S. citizens)” (Douglas Massey, Durand, and Malone 2002, 43). Similarly, Aristide Zolberg argued that with the end of the Bracero Program, in 1964, “illegal entries rose rapidly” as a result of the limitation of avenues for legal migration brought on by Hart-Celler, lax controls at the border, a pool of eager U.S. employers, and few meaningful penalties for working in the United States without authorization (Zolberg 2006, 334–35). As the economic disparity between the Global North and the Global South has increased, many people have migrated to the United States in an attempt to provide for themselves and their families, despite the lack of available visas. This trend is also encouraged by the fact that the U.S. economy is highly dependent on, and welcoming to, low-wage immigrant labor in such economic sectors as agriculture, construction, food services, hotels, custodial labor, and landscaping. Following the passage of the Hart-Celler Act, apprehensions of undocumented immigrants, a commonly cited metric to indicate changes in the size of the undocumented population, rose from 500,000 in 1970 to 1 million in 1977 (Lee 2006, 25). According to one estimate, approximately 28 million undocumented Mexican migrants entered the U.S. between 1965 and 1986, while only 1.3 million legally immigrated and only 46,000 came as temporary workers (Douglas Massey and Singer 1995). While there were earlier concerns regarding illegal border crossing, before 1964 the control of the U.S.Mexico border was seen primarily as an issue of managing labor rather than as one of sovereignty and national security. From the late 1970s to the early 1980s, there was an increase in expressions of concern over the growth of the undocumented population, particularly undocumented entry across the U.S.Mexico border. During this period, much of the rhetoric used to discuss the issue, even in mainstream news outlets, discussed immigration from Mexico as “an invasion” and a “reconquista,” in which Mexicans sought a Quebecstyle version of cultural and political autonomy. Leo Chavez, after reviewing feature stories about the U.S.-Mexico border that appeared in mainstream news magazines from 1965 to 1999, concluded, “[i]f there has been one constant in both pre- and post-9/11 public discourse on national security, it has been the alleged threat to the nation . . . posed by Mexican immigration and the growing number of Americans of Mexican descent in the United States” (Chavez 2009, 82). Additionally, in the early 1970s the U.S. economy was becoming increasingly deindustrialized, and lost manufacturing jobs resulted in U.S. workers facing high inflation, high unemployment, and decreasing wages (Douglas

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Massey, Durand, and Malone 2002, 43). By the 1980s the Reagan administration was enacting economic policies that stressed cutting government benefits and services, such as education, healthcare, and social services, in order to reduce taxes. As working-class and middle-class Americans began to feel economically vulnerable, legislation limiting or eliminating immigrants’ rights to government services and benefits was introduced. In 1975, for instance, the Texas legislature passed a law denying funds for the education of children not “legally admitted” into the U.S. and allowing schools to deny them admission. In the 1982 case Plyler v. Doe,19 the U.S. Supreme Court struck down the legislation, holding that the law violated the equal protection clause of the Fourteenth Amendment because it discriminated against children for a legal status they had no control over and because it would perpetuate a subclass of less-educated people within the general population. The Court’s decision, in a vote of five to four, was emblematic of the increasing division over how to address the growing undocumented population. The majority opinion recognized both U.S. society’s complicity in benefiting from migrant labor as well as the need to recognize migrants, or at least their children, as members of society, noting, “[t]his situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents.”20 The four dissenting justices echoed concerns that undocumented migrants were exacting high social costs on the welfare state and stated that they would have upheld the legislature’s right to allocate limited public resources to lawful residents only.21

The Immigration Reform and Control Act of 1986 Plyler was illustrative of both the growing sense that undocumented migration was an important issue as well as the fact that the U.S. public was somewhat ambivalent and divided about how to address it (Newton 2008, 67). Congress attempted to address the problem of undocumented migrant labor when it passed the Immigration Reform and Control Act of 1986 (IRCA), which combined a program of legalization for certain undocumented people, with increased enforcement aimed at deterring further undocumented immigration, including imposing sanctions on employers who hired undocumented workers. In discussing the congressional debate regarding IRCA’s legalization provision, Lina Newton (2008) identifies the various narratives that were deployed both for and against the legalization program. Those who opposed the

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passage of IRCA argued that the undocumented were lawbreakers who should not be rewarded for their malfeasance and that to do so would benefit lawbreakers at the expense of those waiting to immigrate lawfully as well as send the wrong message by rewarding lawbreakers (Newton 2008, 85–89). Those favoring IRCA’s amnesty provisions highlighted the deserving, hardworking character of undocumented immigrants, many of whom had children who were U.S. citizens, and also noted the ambivalence of the U.S. public, who both opposed undocumented migration but nevertheless wanted relief to be provided for individual undocumented friends and neighbors (Newton 2008, 89–91). One supporter, Congressperson Peter Rodino, argued that legalization should be available to “those aliens who have built up equities in this country and who have contributed for years toward our economic and social well-being” (Newton 2008, 90). Once passed, the two main mechanisms of IRCA’s legalization program were a general legalization program for individuals who had been present in the United States since January 1, 1982, and a program for Special Agricultural Workers who could demonstrate that they had performed at least ninety days of agricultural work in the past year. IRCA resulted in legalization of the status of approximately 2.7 million immigrants; however, it did not increase the number of available visas or other legal avenues for people to come to the United States in the future. Additionally, the employer sanctions were ineffective due to the limited number of immigration inspectors; therefore, given the low likelihood that an employer would be subject to an INS inspection, the employer sanction provisions of IRCA had little deterrent effect. Similarly, because the law punished only employers who “knowingly” hired someone who was undocumented, employers had a good-faith defense if they relied on documents presented by workers and largely escaped liability for hiring undocumented workers (Coutin 2003, 64). As a result, U.S. employers were able to continue to hire undocumented workers, and the undocumented population continued to grow despite the IRCA reforms. At the same time, effects that are often termed “push factors” increased, such as pressure to leave Mexico in search of greater financial security. Neoliberal regimes of currency devaluation, termination of agricultural protections, privatization of state-owned industries, and downsizing of government services all made migration, even undocumented migration, to the United States seem relatively appealing (Douglas Massey, Durand, and Malone 2002, 50; Zolberg 2006). Even though provisions to prevent the hiring of undocumented labor floundered, IRCA’s enforcement provisions signaled the beginning of an esca-

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lating security presence along the U.S.-Mexico border that had become an increasing focus of U.S. immigration policy. In the 1960s and 1970s, “the dominant rhetoric around immigration . . . portrayed immigration as an economic rather than a crime issue” (Macías-Rojas 2018, 3), and “the law allowed for gray areas in individual legal status,” but IRCA marked the concretizing of status as a “legal / illegal binary” (Arnold 2011, 36–37). In part, this took the form of large budget expenditures on border enforcement, a massive increase in the number of border patrol agents, the erection of fences and walls, and even the use of National Guard troops to patrol the border. Gilberto Rosas points to the passage of IRCA as a key moment when anxieties regarding the U.S.Mexico border began to create “border thickening,” with “border-making practices within the interior spaces” of the country (Rosas 2016, 125). Pressure to increase border controls also came in 1992, when conservative Republican presidential candidate Patrick Buchanan gained support from the far right of his party on a platform that included limiting immigration and building what he called a “Buchanan fence” along the border. Beginning in 1993, the Clinton administration began to dramatically increase the amount of resources directed to the policing of the U.S.-Mexico border, in what was called the Southwest Border Strategy and which included Operation Gatekeeper in California, Operation Hold-the-Line and Operation Rio Grande in Texas, and Operation Safeguard in Arizona. The Violent Crime Control and Law Enforcement Act of 1994 increased funding to the Border Patrol, and between 1994 and 2009 the number of Border Patrol agents grew from 1,700 to 20,000, and they began using military-style equipment such as motion sensors, stadium lighting, surveillance devices, and night vision equipment (Heyman 2011). As a result of these enforcement efforts, “the annual budget of the U.S. Border Patrol has increased more than ten-fold, from $363 million to more than $4.7 billion” between 1993 and 2018 (American Immigration Council 2019, 2). As a result of these policies, crossing the border became substantially more dangerous as migrants were funneled into remote desert regions in their attempts to cross the border, making them more vulnerable to hyperthermia, hypothermia, dehydration, robbery, and sexual assault. Using the dangers of the desert to deter migration is an intentional Border Patrol strategy known as “Prevention Through Deterrence,” and by conservative estimates, it has resulted in 5,596 migrant deaths between 1998 and 2012 (De Leon and Wells 2015, 36). In 1994 the state of California passed the broadly sweeping anti-immigrant Proposition 187, also called the Save Our State initiative, which was designed both to deny undocumented immigrants access to government benefits and

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social services as well as to require state employees to cooperate with federal immigration officials and to verify immigration status and enforce immigration laws. Additionally, Proposition 187 proponents hoped to challenge the holding from the 1982 Supreme Court case Plyler v. Doe by including a provision that would have denied public schooling to undocumented children. Calavita (1996) argued that the anti-immigrant sentiment motivating Proposition 187 stemmed from political-economic transformations that occurred with the “crisis of Fordism” in advanced capitalist economies. Drawing on David Harvey (1982) and Francis Fox Piven and Richard Cloward (1993), Calavita notes that the shift to globalized production and the deindustrialization within the United States led to increased unemployment, decreased real wages, and a restructuring of employment practices that turned more and more employment into flexible, temporary, and part-time labor (Calavita 1996, 293). Additionally, the unraveling of the Fordist structure led to the unlinking of corporate profits from wages and social welfare and the movement of capital into global financial markets, which meant that corporate profits could grow independent of real wages, resulting in a “jobless economic recovery” and increased economic inequality (Calavita 1996, 292, 294). According to Calavita, the anti-immigrant sentiment represented by the passage of Proposition 187 was a form of what Sidney Plotkin and William Scheuerman (1994) termed “Balanced Budget Conservatism,” which shifts responsibility for economic uncertainty to the welfare state, the poor, taxation, and government spending. Thus, Calavita argues that as “economic insecurity and anger intensify with the continued globalization of the economy and the displacement of domestic labor, Proposition 187 simultaneously channels that anger into anti-immigrant nativism and legitimates the backlash” (Calavita 1996, 300). Although Proposition 187 was blocked from going into effect by a federal court on the grounds that the federal government, rather than the states, has the power to regulate immigration, its passage had become a focal point for anti-immigrant arguments. Additionally, the fact that the incumbent governor, Republican Pete Wilson, was seen as having won reelection in large part because of his strong support for Proposition 187 raised the profi le of such anti-immigrant sentiments in national politics as a whole.

Immigration Legislation of 1996 The mid-1990s saw an intensification of anti-immigrant legislation in part because, even though Proposition 187 was enjoined from going into effect, pol-

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iticians took notice of the popular support it received. Additionally, Republican Patrick Buchanan had made his anti-immigrant views the centerpiece of his 1996 campaign for the Republican presidential nomination. Finally, the 1993 World Trade Center bombing, followed by the bombing of the federal building in Oklahoma City, which Congress initially—and incorrectly— assumed was perpetrated by foreign terrorists, increased fears about international terrorism and security in general. It was in this climate that both the AEDPA and IIRIRA were passed. Both of these pieces of legislation made immigration laws more punitive, eroded the rights of both immigrants with lawful status and undocumented immigrants, and set the stage for large increases in the numbers of detentions and deportations over the next decades. Equally importantly, these pieces of legislation firmly linked immigration and criminality in political rhetoric and in law. At the time, both Republican and Democratic lawmakers embraced the idea of getting tough on “criminal aliens,” which resulted in laws that dramatically affected both undocumented immigrants and lawful permanent residents (i.e., green card holders) and which have, in the ensuing decades, resulted in the separation of countless families (Lind 2016; Macías-Rojas 2018). Among the provisions of these laws were measures that made it easier to deport lawful permanent residents based on criminal conduct, made it harder for individuals who were out of immigration status to obtain lawful status, and made it harder for individuals to obtain due process. Provisions regarding criminal conduct expanded the criteria for crimes of moral turpitude for which people could be deported and significantly expanded the definition of aggravated felonies for which people could be deported with almost no possible relief, regardless of personal circumstances or hardships. Indeed, these laws were so broad that a conviction did not necessarily have to be a felony conviction to be considered an aggravated felony for immigration purposes. Additionally, these laws eliminated a form of relief known as §212(c) relief, which had given many people facing deportation based on a criminal offense the opportunity to present evidence that they should not be deported, such as evidence of rehabilitation, of hardship, or of family ties to the United States. This relief was replaced with a harder-to-obtain form of relief called cancellation of removal. IIRIRA also broadened the defi nition of what is considered a criminal conviction to include many adjudications that are not typically considered convictions in criminal courts, such as pretrial diversion programs in which defendants are allowed to obtain treatment or counseling.

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IIRIRA also created summary and expedited removal for certain people, such as individuals at the border without proper immigration documentation and individuals without documents arrested within one hundred miles of the border up to fourteen days after entering the United States. Individuals subject to expedited removal could be issued a removal order by a low-level immigration officer without an immigration judge or a formal hearing of any kind unless they claimed asylum by expressing a fear of persecution in their home country. In practice, studies have shown that expedited removal results in individuals being issued removal orders without being referred to the asylum system, even if they claim a fear of returning home (U.S. Commission on International Religious Freedom 2016). The 1996 laws also made it harder for people who were out of status to lawfully migrate to the United States by establishing a three-year bar to returning to the United States for migrants who were out of status for six months or more and established a ten-year bar to returning for migrants who were out of status for a year or more. The laws also limited access to due process and a fair hearing by limiting the discretion immigration judges had to consider the individual equities of people facing deportation on a case-by-case basis and stripped federal appellate courts of their jurisdiction to review many aspects of immigration cases, including most discretionary decisions made by immigration judges and many aspects of removal cases involving criminal convictions. Finally, the 1996 laws required mandatory detention for many immigrants facing deportation, especially individuals with criminal convictions. This provision severely limits an individual’s ability to obtain legal representation or gather evidence and prepare an argument for her deportation case. As a result of these significant changes to the immigration law, the annual number of deportations has increased steadily from 69,680 in 1996, before the law went into effect, to a record high of 435,498 by 2013 (see Chart 1).22 Since that time, the number of deportations has subsided somewhat, decreasing to 333,592 in 2016.23 At the same time, however, the number of backlogged deportation cases awaiting adjudication in immigration court has steadily risen to more than 900,000 as of May 2019 (Transactional Records Access Clearinghouse 2019). The 1996 laws were clearly rooted in generalized fears of “criminal aliens,” which was a population, in the Foucauldian biopolitical sense, that was constructed first by the rhetoric and narratives of IRCA, Proposition 187, and the 1996 election campaign, and then by the passage and implementation of the

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Number of deportations (in thousands)

500 450 400 350 300 250 200 150 100 50 0

1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 Year

C H A R T 1. Number of Deportations from 1996 to 2014. Source: Yearbook of Immigration Statistics: 2014. Department of Homeland Security, Office of Immigration Statistics.

AEDPA and IIRIRA. The severity of the perceived threat was seen as justifying both the expansion of the category of criminal alien to include individuals with only minor infractions as well as the indiscriminate application of extreme measures to the population as a whole, regardless of whether a giving individual could reasonably be seen as a threat. Undoubtedly, the 1996 amendments’ reorientation of immigration law to focus on “criminal aliens” remains one of the most influential aspects of current immigration enforcement and has created a system where the rights of noncitizens who have had contact with the criminal justice system are outweighed by abstract fears and attenuated concerns about the dangers of the category “criminal aliens.” This situation is seen nowhere more clearly than in the context of the mandatory detention provisions of the 1996 laws, which require migrants with certain criminal convictions to remain in detention without a bond. Under these provisions, the specifics of the immigrant’s criminal conduct is irrelevant, as is any evidence of hardship she will suffer. The legislative history of the mandatory detention provisions illustrates the attitude that went into the creation of these laws. A 1995 Senate report erroneously speculated that illegal migration and illegal conduct were probably linked because individuals who migrated “illegally have no legitimate sponsor and are prohibited for holding jobs . . . Criminal conduct may be the only way to survive” (quoted in Sa-

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varesse 2013, 299) and then concluded, “there is just no place for non-citizens who commit criminal acts here. America has enough criminals without importing them” (quoted in Savaresse 2013, 299). Thus, the report conflated irregular migration with crime as a justification for removing rights from migrants and then extended that removal of rights to all migrants, including lawful permanent residents. Since 1996 the number of immigrants held in detention rose steadily, with approximately 478,000 people being detained in 2012. The daily average population of people being held in immigration detention has gone up from 6,785 in 1994 to 38,106 in 2017 (Reyes 2018). In addition to requiring mandatory detention for individuals subject to removal based on criminal conduct, many immigration detainees are denied bond and held in jails even though they have no criminal records at all. For instance, a 2009 study found that the majority of immigration detainees did not have criminal convictions, and a 2012 study found that less than 10 percent of all detainees had committed violent crimes (Reyes 2018). The 1996 laws have led to immigrants, including asylum seekers, being detained for long periods while their immigration cases proceed. For instance, Mohammad Azam Hussain was in detention for three years while he contested his deportation before ultimately winning his case by proving he was entitled to remain in the United States under a form of relief based on the U.N. Convention Against Torture (Heeren 2010). This trend of increasing immigration detention can be expected to continue under the Trump administration. During his first week in office, Trump signed an executive order that directed the Department of Homeland Security to increase detention capacity,24 and his budgets have included requests for substantial increases in detention capacity (Reyes 2018).

Post–September 11 Laws and Policy Far from being exceptional, the treatment of Arab, Muslim, and South Asian immigrants after the September 11 terrorist attacks on the World Trade Center and the Pentagon was predicated on the historical disempowerment of immigrants under U.S. law. Following the attacks, the Department of Justice targeted noncitizen Arab, Muslim, Middle Eastern, and South Asian males for its dragnet of investigation, arrest, and detention. In the process, the government used selective, and unorthodox, enforcement of the nation’s immigration laws as a pretext to arrest individuals, detain them without charges, hold them incommunicado, question them without access to legal counsel, and try them in secret immigration court proceedings.

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The scapegoating of immigrants in response to what was perceived as a national emergency following 9/11 was made easier by decades of attacks on immigrants that undercut their claims to fair and equal treatment. In particular, the 1996 laws stigmatized noncitizens by considering them potential threats to national security and national economic prosperity. Perhaps the most lasting impact of the 9/11 attacks on immigration policy came from the fact that they halted nascent attempts at reforming immigration laws and retrenched notions that immigration and migrants were a source of uncertainty and danger. One area where this shift is apparent is in how the Supreme Court viewed the 1996 laws’ detention provisions. Prior to the 9/11 attacks, the Supreme Court had begun to ameliorate the harshness of some of these provisions. In Zadvydas v. Davis,25 the Court reviewed a provision that purported to allow indefinite detention of an individual who had a deportation order but could not be removed for some reason, such as her country of origin’s refusal to allow her return. The Court held that such indefinite detention without procedural safeguards, such as an individualized hearing, raised serious constitutional concerns and interpreted the statute to require such protections if detention continued for more than six months. In Demore v. Kim,26 a case brought after the 9/11 attacks, the Court rejected the argument that an individual subject to mandatory detention while his immigration case proceeded was entitled to an individualized bond hearing if his detention lasted longer than six months. Despite the similarity of the cases, both challenging the government’s authority to incarcerate individuals without an individual determination by a judge that detention was necessary, the Court held that this mandatory detention provision was permissible, because “[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.”27 If the decision in Zadvydas represented the rarely exercised ability of the Court to impose basic and reasonable due process requirements on the most severe aspects of the immigration system, the decision in Demore represents a return to the status quo ante of deferral and abdication.

Congressional Inaction and Executive Authority Although the fundamental legislative structures of immigration law have not significantly changed in the decades since the 1996 amendments, executive policies and administrative procedures have had significant impacts on the lives of migrants. In particular, enforcement priorities and decisions about

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when to exercise prosecutorial discretion have greatly impacted the overall number of people subject to immigration enforcement as well as determining which individuals are subject to enforcement. Since the mid-1970s, the INS and Immigration and Customs Enforcement (ICE) have issued memorandums that outline factors to be considered in exercising prosecutorial discretion and the factors that should be considered in prioritizing enforcement. Legal scholar Shoba Sivaprasad Wadhia has argued that this prosecutorial discretion is “a decision by a government employee or attorney or the immigration agency (as opposed to a judge) to abstain from enforcing the immigration laws against a person or group of persons” and “is critical to ensuring that individuals with compelling equities . . . are protected from removal” (Wadhia 2015, 1, 6). This prosecutorial discretion is seen as being particularly important because it can help protect disfavored political minorities from overly punitive legislative enactments that would deprive them of their “physical liberty” (Markowitz 2017). Nevertheless, the exercise of discretion “responds to political and economic pressures that fluctuate over time and locales” such that “immigration law itself can operate outside the rule of law” (Motomura 2014, 4). Under the Obama administration, enforcement priorities focused on recent unauthorized arrivals and immigrants with criminal records. These policies led to large numbers of immigrants with criminal records being placed in removal proceedings, including large numbers of green card holders. By Fiscal Year 2012, the immigration enforcement budget had expanded to $18 billion, which was 24 percent higher than the combined budgets of all other federal criminal enforcement agencies combined (Chishti, Pierce, and Bolter 2017). As a result of these priorities, there were over three million formal removal orders during the Obama administration, leading some critics to dub Obama the “Deporter in Chief” (Chishti, Pierce, and Bolter 2017). During his second term, Obama narrowed the scope of interior enforcement (Capps et al. 2018). Although the Obama administration continued to focus on deporting noncitizens with criminal records throughout both terms in office, after attempts to reform some of the harshest aspects of immigration laws were rebuffed by Congress, Obama took administrative action to aid certain groups of immigrants. Specifically, the Deferred Action for Childhood Arrivals program (DACA), announced in 2012, made certain undocumented individuals who came to the United States as children eligible for deferred action from removal and made them eligible for work authorization.

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Under the Trump administration, there have been multiple policies that increase the breadth of immigration enforcement and detention and have even further reduced what little discretion was available in cases with humanitarian factors and strong personal equities. Trump’s executive order entitled “Enhancing Public Safety in the Interior of the United States” ordered that immigration laws be enforced against “all removable aliens” and essentially removed prosecutorial discretion to not pursue removal in sympathetic cases.28 Under the Trump administration, there has also been an increase in individuals being detained while their cases are pending (Capps et al. 2018; Reyes 2018). In addition, the Trump administration has implemented policies that affect large groups of noncitizens, including attempting to rescind DACA protection, imposing the travel ban, and its “zero-tolerance” policy, which led to thousands of children being forcibly removed from their parents. Without any statutory changes in the immigration laws, the Trump administration has used executive authority to alter immigration enforcement policies, remove prosecutorial discretion, and make the United States substantially more hostile to noncitizens. Moreover, Trump’s first attorney general, Jeff Sessions, further restricted what little discretion immigration judges had over individual cases. Specifically, because both immigration judges and the members of the Board of Immigration Appeals (BIA), which hears administrative appeals from immigration court, are employees of the Department of Justice, the attorney general has the authority to certify cases to himself and the power to overrule decisions he disagrees with, and both Sessions and his successor have used this power to nullify BIA case law that developed over the course of many years. For instance, in Matter of Castro-Tum,29 Sessions used this certification process to reverse BIA precedent that held that immigration judges had the authority to temporarily pause a deportation case for a range of reasons, such as to allow a noncitizen to pursue relief from deportation based on an application to a federal or state agency outside the jurisdiction of immigration court. In striking down the right for immigration judges to administratively close cases without the government’s consent, Sessions further eroded the independence of immigration judges and their ability to reach fair results.

Conclusion This history of immigration legislation and policies can be seen as having three different but intertwined effects. First, it has led to a structure that views

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the rights of migrants as less than that of citizens, and the courts have repeatedly allowed the political branches of government wide latitude in how they treat noncitizens. Because of this latitude and subsequent changes in legislation, immigration law has taken on a regulatory character much different than areas of law that allow for greater judicial review. Second, the strictures of immigration law sweep a broad range of conduct within their ambit, and immigration judges are often without authority to differentiate between cases that involve serious malfeasance and those in which offenses may be quite minor or where counterbalancing equities are present. Finally, neither immigration law and policy nor individual immigration proceedings take account of the responsibility that U.S. policy and U.S. actors have in promoting, facilitating, and benefiting from undocumented migrant labor, both historically and through to the present day. These three aspects of the history combine to create a system of harsh and punitive laws enforced in immigration courts, which are often unable to consider the equities of the individuals before them, in a legal system where constitutional standards and judicial review is limited or unavailable.

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The Role of Lawyers and Judges in U.S. Immigration Law

of the current system, such as expanded grounds for deporting someone under the 1996 laws, the loss of discretion to provide relief, limitations on appellate review of immigration court decisions, and increasingly harsh procedures such as mandatory detention, have limited the ability of the immigration system to consider equities and provide fair results in many cases. Nevertheless, many immigration lawyers in New York also express confidence in their abilities to reach positive results for their clients, are laudatory of many of the immigration judges in New York, and are often satisfied with the treatment most of their clients receive. This chapter will examine immigration lawyers’ opinions and views of immigration courts and immigration judges by considering two areas where immigration judges still retain some discretion to determine the outcome of cases in the immigration system, specifically cases in which individuals are seeking asylum and cases in which individuals seek to avoid deportation through a process known as cancellation of removal. Consideration of these areas demonstrates both the importance of providing individuals facing deportation with legal representation, such as occurs under the New York Immigrant Family Unity Project (see Chapter 5), and points to the sorts of reforms that are needed if immigration proceedings are going to provide fair individualized determinations and reach just results. Currently, the areas where immigration judges can and cannot exercise discretion in favor of sympathetic or otherwise deserving individuals are uneven and at times seemingly arbitrary. In addition to areas where immigration judges apply discretion, there have always been instances where discretion is exercised not as part of immigration court proceedings but as a matter THE STRUC TURAL DEFICIENCIES

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of discretion by immigration officials, often under political pressure, in an unequal manner on behalf of particular individuals and groups. It is important to understand how these selective and uneven applications of grace have been applied and to ask how relief for deserving individuals can be made more uniformly available. Even though the situation in New York City immigration courts is somewhat atypical, it is also a particularly good site in which to explore these issues. While immigration law is meant to be uniform across the United States, in reality the results that individual immigrants achieve differs significantly based on where in the country they appear in immigration court. Across the United States as a whole, the asylum grant rate in fiscal year 2017 was about 20 percent; however, in Atlanta the grant rate was only about 3 percent, while in New York it was almost 80 percent (American Bar Association 2019, UD 2–5). Nevertheless, New York is an important case study because it is one of the largest and most diverse immigration court systems in the United States and because, as will be discussed in Chapter 5, it is the first jurisdiction to create a system that provides immigration lawyers to all detained indigent immigrants facing deportation. It is, of course, vitally important to document the worst abuses in the immigration system, but it is also vital that we learn from the areas where immigrants and their advocates are able to achieve just results despite the enormous obstacles they face. Because the goal of this book is to concretely demonstrate ways that the immigration enforcement system could be reformed to better recognize the individual circumstances of migrants in immigration court, it focuses on the immigration court in New York City because there are a number of factors that already exist there to support such efforts and that demonstrate the latent possibilities for better justice within the existing system.

The (Limited) Power of the Lawyer It is a common experience for immigration lawyers to meet with new clients for the first time, in a process called intake, to hear these people’s life stories, to learn about their problems and hardships, and to then be forced to explain that immigration law does not have any compassion for them, their family, or the millions of similarly situated people facing similar problems. In my own practice, before I meet potential clients, my assistant has often spoken to them, obtained copies of whatever legal documents they have, and gotten a basic understanding of the nature of their problem. In many cases the stric-

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tures of immigration law, as they apply to a given case, are clear. A person will have arrived on a visitor’s visa, overstayed their period of authorized stay, and have no basis to regularize their status. Maybe this person will have already received a deportation order at some point. Before even meeting with this person or her relatives, it is clear that there is nothing that I can do to help. The law is clear that they have no options, and my job is simply to explain their situation to them and warn them not to give money to one of the many unscrupulous lawyers, or notarios,1 who will take their money in exchange for false hope. This simple task is made far less simple when you hear the many other facts of their lives that are, unfortunately, irrelevant to the legal aspects of their cases. Having young children in the United States, even children who are U.S. citizens, does not necessarily provide any basis for obtaining lawful status, nor does having spent many years in the United States, perhaps since childhood. Serious medical issues and family tragedy are often not considered germane. For individuals who entered the United States without inspection, their options are even more limited. As a lawyer who understands immigration law, it may be obvious to me that nothing can be done for a woman who overstayed her visa, started a family, and lived in the United States until she was arrested and removed by immigration officials based on an old deportation order. Despite the obvious clarity of the law, it is virtually impossible to have these laws, and their lack of options, make sense to the woman’s crying sixteen-year-old son. Such situations are so common that one immigration lawyer, Emily, explained that she simply cannot focus on them. In one case, she said she had represented a client who “committed a drug offense ten years ago, and there is nothing I can do for him. He has a wife, two kids, and he’s locked up.” Emily said that a younger associate working on the case was distraught by the family’s plight, and she had to explain to the associate, “You know what, we didn’t make the law, and you’ll kill yourself if you worry about it. You’ll die in this field if you think about it too much.” By the same token, however, this exposure to the personal hardships created by the current immigration laws is very much why many immigration lawyers find their job satisfying and rewarding. Matthew, who has worked almost his entire career in public interest law, explained how he viewed his role as an immigration lawyer: We are stuck with having to meet people. That’s the worst part of this job, it’s the best part of the job, it’s meeting people, and it’s why I do this, because I find Thursdays, when I do intake, are the most exhausting day but the most

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exciting. I have the most amount of fun because I just meet people. It’s like, my gosh, life is so rich and so interesting, but yet I wish I hadn’t met them, because now I have to go research all of this because I can’t say no.

With this, Matthew gestured with both arms to his desk stacked high with legal fi les before continuing: Because there is something I can do, there is a way I can help, and perhaps just one at a time. Every story is a life, and so as a lawyer I feel I have power now, power to help this person, and I should use it. That’s why I’m here. I have power.

But Matthew quickly added, with a laugh, that he did not have “complete and unadulterated” power. For immigration lawyers like Emily and Matthew, the biggest challenge is to get the system based on immigration laws, which are frequently very strict and inflexible, to recognize the importance of individual stories and lives. At times, it is very much a process of first making elaborate technical legal arguments, such as dissecting the elements of a state criminal conviction to show that it should not be considered a deportable offense. At other times, it may be trying to put overwhelming equities forward and hoping that the government’s lawyer and the immigration judge will be persuaded not to insist on deporting a particular person. As noted in Chapter 2, when he was attorney general, Jeff Sessions used his position as head of the Department of Justice to order immigration judges to no longer administratively close cases. Prior to Sessions’s ideological interference, administrative closure had provided a mechanism to obtain some space for cases in which legal remedies were not immediately available. For instance, Tariq, an experienced private immigration lawyer, recounted a case in which the client had no legal argument for relief but was able to get the case administratively closed based on the strength of the equities. His client was a Bengali woman who had lived in the United States for decades, was suffering from cancer, and had just had a hysterectomy. Tariq said that the woman had no formal grounds for relief from deportation because her earlier case under the 1986 IRCA “amnesty” provisions had been incorrectly fi led. Nevertheless, when the case got to immigration court, Tariq explained, “the judge said, ‘There’s no way I’m deporting you.’ And they just admin closed the case and said, ‘Whenever you have a chance to do something, do it.’ I think if you present the case the right way, things generally turn out properly.” What Tariq was referring

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to here as an “admin close” was not so much a remedy as the absence of a bad result, when an immigration judge would essentially agree to suspend a case. While administrative closure of a case was not a perfect result—it did not provide any immigration status—it was the best result available under otherwise hopeless circumstances. While virtually no immigration lawyer is happy with the current state of immigration law, they are actively trying to work within it to achieve the best possible outcomes for their clients and even sometimes find that immigration judges are willing to assist them in those efforts. Many lawyers feel that, in New York City at least, immigration judges are fair. For instance, Grace, a lawyer with her own practice that focuses on asylum cases and who has been practicing immigration law since 1990, feels that “[i]n New York we are pretty lucky, we’re pretty lucky. We have a pretty openminded corps of immigration judges.” Similarly, Tariq estimated that “90 percent of the time the clients get treated extremely well, and the 10 percent of the time they don’t, it just happens to be that IJ [immigration judge], the judge who will just give you a hard time. But I’m surprised at how easygoing the courts are.” Indeed, this same attorney recognized that it might be considered impolitic for an immigration attorney to acknowledge that he felt the immigration courts were fair but nonetheless felt the need to praise the immigration courts: I know this is going to sound terrible. I think they are incredibly open-minded, maybe to a fault. I think there are very few judges who have negative preconceived notions about the case and know what they are going to do. And I think with the majority of judges, if they have a preconceived idea, it’s positive. It’s like, “Okay, you’re going to win your case by doing this, this, and this. I don’t see this in the fi le. We’re going to grant a continuance. Go bring me this, and we’ll take care of your client.” So I think it’s fine. The court’s fantastic.

This is certainly a different perspective of immigration courts than is generally presented, and it is quite different from the situation that was reported after 2002, when then–attorney general John Ashcroft implemented procedural changes that created a system that reduced scrutiny of immigration court decisions by the Board of Immigration Appeals. Following those changes, there were a number of published opinions from the various circuits of the U.S. Court of Appeals criticizing and upbraiding immigration judges by name (Liptak 2005; Rivera 2007). In one opinion, Judge Richard A. Posner of the Seventh Circuit Court of Appeals wrote, “The adjudication

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of cases at the administrative level has fallen below the minimum standards of legal justice.”2 In addition to many cases containing legal and factual errors, there were complaints regarding some immigration judges’ attitudes and demeanor towards immigrants. One Court of Appeals decision overturned a denial of asylum, noting, “the tone, the tenor, the disparagement, and the sarcasm of the [immigration judge] seem more appropriate to a court television show than a federal court proceeding,”3 and another found “the [immigration judge’s] assessment of Petitioner’s credibility was skewed by prejudgment, personal speculation, bias, and conjecture.”4 Anna, a sole practitioner who has practiced immigration law her whole career, explained that she had had a similar experience while presenting an asylum case. At the time she was eight and a half months pregnant; nevertheless, she said, “the judge kept yelling, screaming at me, and I was so surprised because I was so pregnant, I had the baby a few days later, and it was a very compassionate bona fide case.” Anna said that the judge’s abuse made her think, “Wow, if you’re abusing a pregnant lawyer with a good case, my God, what if it’s not such a good lawyer or pro se [an unrepresented person]?” For Anna, the judge’s conduct raised concerns not only because of what it meant for her client’s case but because she realized that such abuse must be even worse for pro se individuals, whose lack of a lawyer not only deprives them of legal representation but also means there is no one to witness how they are treated in immigration court. Although most lawyers seemed to feel there were still a few instances of immigration judges who were abusive, biased, and unprofessional, Emily, a lawyer who has been practicing since 1995 and is active in the immigration lawyers association, believes that the situation has been approved by the appellate courts’ publicly highlighting problematic immigration judges and inappropriate behavior: I think, for the most part, the judges that we have are thoughtful, they’re good, and they are watching them. And now, since you can’t go into district court [on appeal], it goes into the Second Circuit [Court of Appeals], they don’t want to make fools out of themselves. We had that big spurt [in 2005], where everyone was in the newspapers, the Second Circuit was slamming everybody, that scared the crap out of a lot of judges, and the judges that are bad are having problems.

The question of whether immigration lawyers consider immigration judges to be fair, unbiased, and open-minded, however, might not address an impor-

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tant structural issue within the immigration court system. During a lengthy and wide-ranging discussion with a longtime public interest lawyer, Matthew, he repeatedly raised the idea that there was a “culture” that results in immigration judges being enforcement-oriented and hesitant to protect the rights and interests of the immigrants before them. “[I]n a sense, the judges are just part of Customs Border Protection, in or out. It’s kind of engaging the flow of people rather than the rights of people under the law, and I think that’s a tension probably that exists naturally.” Matthew noted that this probably stems from the nature of the position and wondered if it was a situation where “the judges are affected by the culture of immigration judgeship, or are they people who bring this to the job because of where they came from and how they are appointed and what they had to do to get those jobs?” By this, Matthew was referring to the fact that the vast majority of individuals selected to be immigration judges come from the ranks of the Office of Chief Counsel, who are the lawyers who represent ICE in immigration court—essentially immigration prosecutors. From this point of view, Matthew saw immigration court as a system very different from a system of justice, rather, It is ultimately deciding who gets to stay and who gets to go . . . It’s not a place which is defined by the idea that it’s a place where a person gets to have their rights defended or upheld as a federal court. Its raison d’être is still part of the assessment of the flow of people.

To Matthew, immigration judges, who are employees of the Department of Justice, are “part of this executive function of the administration of a plenary power . . . so in a sense, the judges are just part of Customs and Border Protection” and are more concerned with regulating “the flow of people than the rights of people under the law.” This structural conflict has also been remarked on by Dana Leigh Marks, the president emerita of the National Association of Immigration Judges, who noted that immigration judges are considered “lawyers” employed by the Department of Justice and argued, “as long as we are part of the nation’s top law enforcement agency, there will continue to be tensions between their two conflicting functions” (Marks 2013). This tension is exacerbated by the fact that the 1996 laws have limited the ability of federal courts to review decisions made by immigration judges, meaning that important aspects of immigration cases do not receive any independent judicial review. Indeed, because of this situation, Daniel Kanstroom argued that “if judicial review of administrative orders depriving noncitizens of the

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opportunity to live in the United States is an essential part of the rule of law, then 1996 may well become known as the year in which the rule of immigration law died” (Kanstroom 1997, 704).

Relief from Deportation: Cancellation of Removal What is one to make of these seemingly contradictory views of immigration judges in which they are presented, on the one hand, as open-minded, fair, and at times even compassionate, and, on the other hand, as simply an extension of the punitive immigration enforcement structure? Certainly some of the disjuncture can be explained by the fact that individual immigration judges are either more or less open to providing relief to immigrants. There are, however, also differences in the kinds of legal claims that immigration judges hear. In some kinds of cases it is clear that immigration judges have discretion to grant relief, whereas in others, the discretion of immigration judges is more restricted—or, at least, many immigration judges believe it is. Even though the 1996 amendments to the INA have limited the ability of immigration judges to provide discretionary relief, in those cases where there is still some kind of relief available, many lawyers are positive about their ability to help their clients. Emily said, “most judges in New York, if they see the person is otherwise doing the right thing, does it really kill anyone to grant them cancellation so their two American kids can live here?” Specifically, this attorney is referring to the form of relief known as cancellation of removal, which was created in 1996 to replace the more generous forms of discretionary relief that were abolished. The changes to the INA created two separate forms of cancellation, one for individuals who were already lawful permanent residents (LPRs) subject to deportation, often called “LPR cancellation,” and one for individuals with no legal status called “non-LPR cancellation” or “tenyear cancellation.” Both forms of cancellation have statutory preconditions that limit who is able to apply for them, and both are considered discretionary because once an applicant has met those statutory preconditions, the immigration judge has the discretion to either grant cancellation of removal or not. The preconditions for LPR cancellation require that a person have been a lawful permanent resident for at least five years—that is, have been a green card holder for at least five years and have been living in the United States for at least seven years after having been lawfully admitted in any status. LPR cancellation is also limited because it is not available to an individual who has been convicted of certain crimes, such as aggravated felonies. Additionally,

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individuals who commit certain other crimes or who are placed in immigration proceedings before they have been in the United States for seven years are not eligible. Crimes that may make someone ineligible include controlled substances offenses, even simple possession, and certain crimes involving moral turpitude if the sentence imposed was at least a year, even if the sentence was suspended and the individual was never incarcerated. Even if an LPR is not barred from seeking cancellation of removal under these statutory requirements, they must convince the immigration judge that they are entitled to a favorable exercise of discretion. Eric, whose practice is primarily deportation defense, explained: If you’re talking about a cancellation case for a lawful permanent resident, I mean, if it’s a serious criminal offense or if there is a pattern, it’s going to be very difficult to win. And if people, in those cases, it can be difficult if someone has been here a long time but they’re kind of poor, they don’t pay much taxes. That’s a very difficult case. So I think, in terms of types of factors judges usually look at with discretion, they tend to be the standard sorts of things: children, paying taxes, record of employment.

Others who have considered the implicit biases of immigration law and immigration judges support Eric’s observations about the preconceived image immigration judges have about which immigrants are deserving of relief (Marouf 2011; Mendelson 2010). For instance, by examining the arguments and evidence presented in cancellation of removal cases, Mendelson argues that “immigration courts function as a forum for the production and performance of American identity narratives and that this process of myth construction has deep roots in American legal history” (Mendelson 2010, 1015; cf. Bosniak 2006; Honig 2001). She determined that migrants who can demonstrate that they are hardworking, pay taxes, own property, attend church, are in monogamous relationships, volunteer at schools and churches, and speak English are far more likely to be found deserving of the “administrative grace” of cancellation of removal (Mendelson 2010, 1040–46). Left out are the migrants who have been rendered abject by poverty and lack of educational chances, not to mention those migrants who have failed to properly Americanize. Mendelsen concludes that “discretion functions as a double-edged sword” that provides a narrow avenue of relief for some “but lining the way with hypernormative vocabulary and imagery that both caricature the immigrant and shape the broader culture. At the same time that discretion reflects longing for greater

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humanity in the immigration process, it has also amplified a narrow notion of our polity” (Mendelson 2010, 1057). The available relief under non-LPR cancellation is even more limited. For someone who in the United States without a lawful immigration status, cancellation of removal is available only if they can show that they have been continuously present in the United States for ten years, have been a person of good moral character for ten years, have never been convicted of a crime that would make them inadmissible or deportable, and can show that their deportation would result in “exceptional and extremely unusual hardship” to a spouse, child, or parent who is a U.S. citizen or an LPR. These provisions make cancellation unavailable to a great many individuals facing deportation based on a criminal conviction and explains why Emily’s client, who was discussed at the beginning of this chapter, is deportable because of one minor drug offense, without regard to the hardship to him or his U.S. citizen family members. That this standard was intended to be extremely difficult to meet is evidenced by the fact that the statute creating non-LPR cancellation limits the number of green cards available based on non-LPR cancellation to four thousand per year. The result of these rigid requirements is that it is not available to most individuals in immigration court. For instance, if someone fails to meet any of the statutory requirements, such as not having been present in the United States for ten full years, she will not be eligible for cancellation of removal regardless of any other sympathetic equities she may have. To Eric the application of these strict rules seems somewhat arbitrary: “obviously, you have to have laws and rules, but there are a lot of people who, in terms of a general kind of moral way, are arguably deserving of something, and there may be nothing you can do.” In fact, Eric expressed obvious frustration with the lack of options for clients who were long-term residents in the United States but who he was unable to help. “Somebody’s been here nine and a half years and they have a family and they are not eligible for cancellation . . . well, that’s a pretty tough thing to have to tell somebody.” For individuals who have been in the United States for more than ten years and have clean criminal records, there is still the enormous burden of demonstrating “exceptional and extremely unusual hardship” to a spouse, child, or parent who is a U.S. citizen or an LPR. Cancellation of removal was introduced as part of the 1996 laws to replace the more generous form of relief called suspension of deportation. Most immigration lawyers acknowledge that non-LPR cancellation of removal is an extremely difficult burden to meet

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but also feel that it can depend a great deal on individual immigration judges. Tariq explained that he felt the need to seek cancellation of removal in marginal cases because he had so many clients who had lived in the United States for long periods of time and had family but no other obvious form of relief: There were so many cases where we had everything but the hardship and then you always want to say, “I won’t be able to find a job to take care of my family.” But that doesn’t qualify as a hardship. You would talk about children and their education, but again, the law says that’s not enough, but then I didn’t realize that asthma or allergies for most judges do qualify as a hardship. So I guess when you are forced into doing a case, you learn what’s acceptable, what’s not acceptable, but then I think it really depends on the judge, on the IJ [immigration judge] you are in front of.

As Tariq points out, in immigration law, separation from family, economic adversity, and loss of educational opportunities are not considered unusual hardships but are simply seen as the normal and foreseeable consequences of the deportation system operating as it was designed to. While it is clear that to qualify for cancellation of removal a hardship must be severe and unusual, it is often difficult to predict what evidence will meet the required hardship threshold. Matthew also relayed his experience of the hardship standard being unclear, inconsistent, and being subject to broad interpretations by individual judges: I think the standards are very different from judge to judge and so what is exceptional, extreme, unusual hardship seems to change from judge to judge. I actually think it seems to change within a judge. A judge will say, “I think cancellation cases are all about proving medical hardship.” And I will literally go in the next day with a case that doesn’t have any medical hardship, and she grants it. So, I don’t know, did she change her standard, too? So I do think it’s a fairly loose practice in that sense.

Many practitioners, however, see this very looseness as a virtue because it allows the individual circumstances to be considered. Eric, however, noted the double edged nature of immigration judges having broad discretion, explaining that he thought, “It’s probably good that there is a fair amount of discretion,” but because there is wide discrepancy between judges, he explained that if “you get a bad judge, you often can be screwed. And especially some-

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thing involving discretion, it would to be very difficult to win on appeal.” In the current system of constant precarity and rightlessness, having any chance to make one’s individual case is often seen as desirable. Nevertheless, this sense, that a good case can be lost if one gets an unsympathetic immigration judge, is the other side of judicial discretion and is also a particular concern for attorneys in asylum cases.

Relief for Deportation: Asylum Asylum law should be the area of immigration law that cleaves closest to international human rights norms. The Refugee Act of 1980 implemented aspects of the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 United Nations Convention and Protocol on the Status of Refugees and adopted the international law definition of who would be considered a refugee. U.S. asylum law also recognizes, to some extent, the international law principle of non-refoulement, which is meant to protect people from being returned to a nation where they could be killed or persecuted. Even with this broader incorporation of human rights principles, many lawyers are troubled by the extent to which the immigration process can result in grants or denials of asylum based on factors other than the merits of a given case. Asylum is by far the most common form of relief from deportation requested in immigration court and requires an applicant to demonstrate, among other things, past persecution or a well-founded fear of future persecution based on her race, religion, nationality, political beliefs, or membership in a particular social group. Because there is often a lack of clear documentation of such persecution, cases are often decided on the basis of whether the immigration judge credits the applicant’s testimony. In discussing the issue of how lawyers prepared for asylum cases, it was clear that finding out which immigration judge would hear the case was seen as one of the most important factors. Matthew said that while he believed most judges began cases without preconceptions and were fair, with the few judges who are seen as hostile to asylum applications, “I try to encourage the client to move, quite frankly, because it’s a waste of time for them. I say, ‘If you are serious about your case, you internally displace yourself within the United States’” so that they can bring their case in a different jurisdiction and, hopefully, draw a more favorable immigration judge. Anna, an attorney in private practice, recounted how when she was just starting out, she had an asylum case that she was sure should be granted because her client had been politically active in his home country and had

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150 scars that a doctor had verified were the result of torture. When she spoke to a colleague, he warned her that the immigration judge hearing the case denied virtually all of the asylum cases he heard. I was stunned, and I said, “How could he deny this? We have a psychological report, we have scars, he has a visa, we have documentation he was in university, we have the transcripts. Clearly, he’s so bright he had to have been in university. He would have been politically active,” and he said, “Anna, it doesn’t matter if Anne Frank were in Nazi Germany in 1933. This judge would tell her to go to the south of Germany to escape the Nazis in the north.” And I told that client to move because he would be denied.

Similarly, at least one study has shown that perhaps the single largest factor in an asylum case is who is assigned to decide it (Ramji-Nogales, Schoenholtz, and Schrag 2007). For instance, although New York immigration courts as a whole have one of the highest rates of granting asylum, the rate of grants can vary widely from judge to judge. One immigration judge granted only 7 percent of asylum applications, and another granted only 8 percent, while at the other end of the spectrum, one judge granted 89 percent of applications and another 91 percent (Ramji-Nogales, Schoenholtz, and Schrag 2007, 334). However, not all attorneys believe that which judge hears a case is entirely determinative. When I asked Grace, who specializes in asylum, if she advises clients to move if they draw a difficult immigration judge, she said, I don’t always do that. You know, when you have a bad judge, you have to make sure your evidence is perfect, and it’s more of a burden on you to make sure the case is extremely well put together. I mean, they all are, but you have to hit home with the client how important, because it’s likely they are going to be doing an appeal. So they have to have a good record for appeal.

She explained that in her cases she is able to provide corroborating evidence for all of her claims, and she uses expert witnesses in all of her cases to provide evidence on country conditions and to provide medical evidence. Although she recognized the importance of individual immigration judges, because “with asylum cases, there has always been discretion,” she said that in her experience, “I can’t think of any time where I’ve ever had a case that was statutorily eligible for asylum and not granted on discretion, ever.” Though, at first glance, Grace’s experience may seem to be at odds with statistics that show that particular immigration judges grant asylum applications at signifi-

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cantly different rates, in fact, Grace said she generally does not do cases of detained asylum seekers, and statistics show that the immigration judges who handle detained asylum cases have significantly lower grant rates. For instance, from 2007 to 2012, the three immigration judges who heard detained asylum cases had the lowest asylum grant rates in New York City, whereas the rest of the immigration judges in New York City, who heard nondetained cases, have asylum grant rates significantly higher than judges in the country as a whole (Transactional Records Access Clearinghouse 2018). This discrepancy is partly due to the fact that asylum seekers in detention are far less likely to be able to obtain legal representation, documentary evidence, and expert witnesses. As discussed in Chapter 5, this situation has changed in New York City with the advent of the New York Immigrant Family Unity Project, which began providing legal representation to detained immigrants facing deportation in 2013. According to Grace, the biggest issue facing asylum seekers is whether they receive adequate legal representation, because there is simply no way for a pro se applicant to know what information is important. She recounted how she had a client whom she had worked with extensively, having met with him, prepared his asylum application, and had him recount his ordeal, but it was not until they were preparing to go to his interview with the asylum office that she asked him if he had any physical marks or scars. When he showed her a huge scar that he had not mentioned previously, she asked him why he had not mentioned it before, and he told her that he simply did not know that it was important. From her point of view, a qualified lawyer with adequate resources should be able to win a meritorious asylum case in front of just about any immigration judge in New York, or at least on appeal, but pro se applicants and people with incompetent or under-resourced legal representation are unable to have their case adequately presented or considered. Additionally, Emily felt that the number of nonmeritorious cases fi led had damaged immigration courts’ receptiveness to asylum cases. She explained that she felt some judges were more open-minded than others in terms of hearing cases but also felt that “all the judges in New York are sort of jaded when it comes to political asylum” because “this is probably the most abused court system when it comes to political asylum—here and California and maybe Miami—but in terms of frivolous, a lot of Chinese asylum that sort of makes the whole system a joke, and people were tired of it.” A survey of immigration judges, which received anonymous responses from 98 of the 215 immigration

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judges then working, provides unique insight into how immigration judges view their job, including deciding asylum cases (Lustig et al. 2008). One judge stated, “The most frustrating thing for me is the high incidence of fraud in asylum cases that makes it all the harder for legitimate asylum seekers to prevail,” and another stated, “It makes me feel ill to grant asylum to someone who I believe is probably lying, but it also makes me sick to think that I have denied protection to someone who really needs it” (Lustig et al. 2008, 76–77). Specifically, in New York, there was a case where a number of immigration lawyers and their staff, who had fi led thousands of asylum applications for Chinese applicants, were arrested for fi ling fraudulent and fictitious asylum claims (Simple, Goldstein, and Singer 2014). By submitting these fraudulent claims, these lawyers not only imperiled their own clients, who would face investigation by ICE, they also made it more difficult for applicants with legitimate asylum claims, particularly Chinese applicants. As in other areas of immigration law, the 1996 amendments imposed strict procedural barriers that limited individuals’ ability to seek asylum. Chief among these changes was the imposition of a one-year statute of limitations, which requires an individual to seek asylum within one year of arriving in the United States or within a reasonable time if changed or extraordinary circumstance prevented her from seeking asylum within the one-year period. Under this provision, a person is barred from receiving asylum if she did not fi le within this one-year deadline, regardless of the merits of her case. As Matthew said, regarding some of the absolute statutory bars to relief, such as the one-year statute of limitation, “I think those very dry, terse, pithy legal provisions are pretty devastating.” While the law establishing this one-year bar contains exceptions for changed or extraordinary circumstances, many asylum practitioners find that these bars can still provide barriers to individuals seeking protection from persecution. While most immigration practitioners feel that it is common for an asylum seeker to be suffering from post-traumatic stress disorder or other psychological disorders as a result of the very persecution they are seeking asylum from, it can be difficult to provide sufficient evidence to immigration judges to convince them that this should excuse failing to meet the one-year deadline. The experience of Grace, who specializes in asylum cases, illustrates how difficult it can be to overcome this bar: The change that affected my practice was when they, I guess it was in ’97 they instituted the one-year bar. 5 And that’s really very unfair. I have people who come to me, and they really just didn’t know or they were traumatized to a

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point, but they have waited so long at that point that it’s really difficult. You know, you have to get psychological forensic exams done to see whether or not the individual is suffering trauma so much that he would have been prevented from fi ling on time. And then you have to get to the next step, which is, given that trauma, is it reasonable that he waited twelve years or one year or beyond that one year, whatever. It’s almost impossible to overcome. I won a case a few years back with a judge, and he said, “This is the very first case I am granting with a one-year issue based on a psychological.” And I was like, “Wow.” I couldn’t . . . he’s a good judge. I mean he’s fair, I think he’s fair. He wasn’t one of the best judges, by any means, but I was shocked. He’s been on the bench for twenty years, and he’s never granted an exception to the one-year bar based on psychological trauma.

A study of affirmative claims6 for asylum bears out the anecdotal claims regarding the toll that the one-year bar is taking on asylum applicants (Shrag et al. 2010). The study looked at all applications for affirmative asylum fi led from April 16, 1998, to June 8, 2009, and concluded that of the affirmative cases fi led with the Department of Homeland Security (DHS), 54,141 applications, or 17.8 percent, were rejected because of failure to meet the one-year deadline or one of its exceptions (Shrag et al. 2010, 716–17). The authors of the study estimated that absent the one-year bar, 15,000 more genuine refugees would have had their asylum cases granted and that this number would have increased to 21,000 individuals if one includes dependent relatives of asylum seekers who would have also been entitled to asylee status as derivative beneficiaries (Schoenholtz et al. 2014; Shrag et al. 2010, 754). The above-mentioned study examined data only from affirmative cases fi led with DHS asylum officers and did not look at defensive cases, but, according to some asylum lawyers, immigration judges are often suspicious of asylum seekers who assert defensive claims to asylum and can be unsympathetic to claims that people delay fi ling for asylum because of emotional scars from persecution. Grace, whose client was granted an exception to the oneyear bar, explained: If they have suffered in their country, there’s an element where they don’t really want to deal with the case. It’s an avoidance . . . The government, and the judges also, usually don’t see that. Especially when someone is picked up after they have been ordered deported, and then you’re trying to . . . You know, they’ll make the argument “Oh, well, now they’re applying because they were

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picked up.” As if it would go against the credibility of the case. My argument is “Of course now they are applying, because now there is a real danger of being returned to where they would be persecuted.”

Individuals who are barred from seeking asylum because of either the one-year statute of limitations or another statutory bar to receiving immigration, such as certain criminal convictions, but who can nevertheless demonstrate that they would be harmed or persecuted if they were returned to their nation of origin may still be eligible for some protection from deportation—specifically, a migrant who can show she will probably be persecuted or tortured if deported is eligible for withholding of removal under the INA, or withholding of removal or deferral of removal under the United Nations Convention Against Torture (CAT). Both of these forms of relief have different requirements than asylum and do not have the same benefits as asylum, such as the fact that certain relatives of asylees are eligible to be derivative asylum beneficiaries, while the relatives of those who receive a grant of withholding or relief under CAT are not able to receive such protection. Additionally, asylees are eligible to become green card holders and eventually may apply to naturalize and become U.S. citizens. Those with withholding or CAT relief do not receive any status other than the right not to be deported to where they would be harmed. Indeed, under certain circumstances, recipients of withholding or CAT relief could be held in detention in the United States, could be sent to a third country, or could be returned to their nation of origin if circumstances change. Because when someone applies for asylum, immigration courts also consider the propriety of granting these other forms of relief, some immigration lawyers worry that immigration judges may sometimes “compromise” by awarding one of these lesser forms of relief rather than adopting more generous interpretations of asylum eligibility. Matthew explained that in his practice, sometimes a client may simply be unwilling to remain in the United States without her family, and in those cases it may be worth taking the risk of receiving no relief at all rather than accepting withholding of removal but not having any prospect of being reunited with her family: Let’s say you have a weak one-year case, you have a decent asylum case. I would be tempted in some instances to, say, arguably even back off from the withholding and put the judge in a box on the one-year and just engage her sense of guilt around that question, because I think she feels that “Well, I can always compromise out,” then that makes everyone feel better, except for the

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client and his family. So there is something to be said about that, in a sense, in playing that game, but it’s kind of high-stakes. And it has backfired, and it’s also not backfired.

Here, Matthew is hoping to blur the issue of the one-year bar by forcing the immigration judge to focus on the merits and consequences of the asylum claim itself. In essence, the “high-stakes” game that he is playing is to force the immigration judge to eschew some of the harshest aspects of the INA, barring someone from relief based on a late fi ling in favor of the individual equities of the case, providing a victim of persecution and their family with protection. Asylum is by nature more amenable to this sort of brinksmanship because of the inherently sympathetic nature of many of the cases and because immigration judges in asylum cases still have relatively broad discretion. In other types of cases immigration judges may be more willing to accept the harsh consequences of strict interpretations of the law. As Rachael, a law professor who runs an immigration clinic, put it, “I think a lot of judges would really like to do the right thing in some cases, and I think they have developed this sort of thinking: ‘Well, there’s a problem, but it’s not my fault, it’s Congress’s fault.’”

Immigration Judges’ View of the Immigration Law System An anonymous survey of immigration judges shows that in general, immigration judges share the view that they have the expertise and experience to provide the best results but are undermined by the political branches of government that control the operation of the immigration courts. The judges feel that they are doing difficult but vital work. One judge stated, “While it is emotionally very difficult to listen to the testimony of individuals who have experienced persecution and even torture . . . I consider it a great privilege to have been given the authority to extend the protection of the U.S. government to such individuals” but that “it is very frustrating to cope with such a large caseload. IJs should not be pressured to do more than two cases a day. Can headquarters understand that we are dealing with issues that affect real people, that we are deciding their fate?” (Lustig et al. 2008, 74, 66). The judges feel they are simply under-resourced to do the job they are asked to do. One judge expressed this sentiment by saying, “We are told to keep producing, to get the cases done, without regard to the fact that we have insufficient support staff, insufficient time to deliberate and to complete cases, and outdated equipment,” and another judge lamented, “this job is supposed to be about

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doing justice. The conditions under which we work make it more and more challenging to ensure that justice is done” (Lustig et al. 2008, 64, 73). While immigration judges acknowledge that they make errors, some blame the size of their workload, a lack of resources, and a bad work environment—“Those who provide our oversight and those who provide commentary and criticism from the circuit courts of appeal have no clue or concern about the conditions and pressures under which we work”—and some judges believe there is a “lack of judicial (or even administrative) respect for the efforts of the majority of immigration judges giving their all to support the immigration policies of Congress” (Lustig et al. 2008, 72). One judge explained that immigration judges are given an important job with control over people’s lives but are not given the power to do that job: Knowing that as an Immigration Judge we have the burden and the responsibility of being the first line judicial body and probably the only judicial body which many aliens will ever deal with or render due process of law regarding them, and yet, in spite of this heavy responsibility, neither Congress or the President has delegated the necessary authority to Immigration Judges to execute that responsibility (Lustig et al. 2008, 73).

Even before the Trump administration, the immigration court system was backlogged, under-resourced, and, because of its location within the Department of Justice, subject to political manipulation (Chavkin 2012; Marks 2013; Saslow 2014). If anything, the conditions within which immigration judges work have worsened significantly under the Trump administration. Backlogs have increased to over 900,000 cases as of May of 2019, which means that with only 424 immigration judges total, an average judge has over 2,000 cases on his or her docket (Transactional Records Access Clearinghouse 2019). Beginning in October 1, 2018, the Executive Office of Immigration Review, which oversees the immigration courts, issued new performance guidelines that require immigration judges to complete at least 700 removal cases a year to be given a “satisfactory” evaluation (American Bar Association 2019, UD 2-11). Former immigration judge Jeffery Chase has argued that quotas will have a substantive impact on immigrants’ ability to make their claims for relief and pointed out that immigration courts with the highest completion rates are also the ones with the highest rates of denial of relief. For instance, in Atlanta, where judges average 1,500 completions a year, the asylum grant rate in 2017 was 3 percent, whereas in New York City, where judges average 566 comple-

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tions a year, the asylum grant rate was 41 percent (Chase 2019; Executive Office for Immigration Review 2017, 28). Many past and current immigration judges have objected to the new guidelines as pitting judges’ self-interest in receiving a satisfactory evaluation against the due process rights of those appearing before them (American Bar Association 2019, UD 2-11). Additionally, as noted in Chapter 2, the attorney general has repeatedly overruled immigration court decisions with which he disagrees, further undermining the impartiality and fairness of the immigration courts. As a result, there have been widespread calls for Congress to use its powers under Article I of the Constitution to establish an independent immigration court system, similar to the U.S. Bankruptcy Court or the U.S. Tax Court, to protect immigration judges from the undue political interference and conflicts of interest that the current system allows. Thus, the apparent contradiction between the opinions of immigration lawyers that say immigration judges are generally trying to reach a fair result and criticisms like Matthew’s claim that immigration judges are primarily managing people within a system of immigration control in a manner that is quite different than what would occur in a regular court of law are not mutually exclusive. If the immigration judges’ statements are to be credited, many of them seem to strive to achieve “justice” but find themselves constrained by both material limits on resources, by statutory limits on their authority to reach just outcomes, and by political pressure due to their lack of independence.

Recognition Without Rule of Law While the preceding examples show that sometimes, in compelling cases, equities are considered and fair and just results can be achieved, more often, such equities cannot be introduced, and immigration law dictates harsh and inflexible results (see Chapter 4). Ironically, one of the problems with the immigration system, which stems directly from the lack of flexibility within the law, has been a practice of simply ignoring the mandates of immigration law in some high profi le sympathetic cases and thereby avoiding the need to address the structural nature of the system’s injustices. For instance, in 2007, when a house fire in the Bronx killed nine children and one adult, including the wife and four children of Mamadou Soumare, an undocumented taxi driver, the tragedy received significant media coverage. For days New Yorkers were collectively stunned by the scale of the loss and read daily coverage

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of the scope of the tragedy and its effects on the survivors. Politicians, including the mayor and the governor, paid their respects and visited the surviving family members. Numerous people and organizations made donations to aid the families including $21,000 from the office of the Bronx borough president, an offer to pay the funeral expenses from the New York Yankees, and a donation of the air travel to transport the bodies and family members to Mali for the funeral from Air France (Alpert 2007; Fernandez 2007a and 2007b; Santos 2007). The public reaction was understandably sympathetic, particularly when it came to light that Soumare was undocumented and that if he returned to Mali with his family members’ bodies for the funerals, he would be unable to return to the United States. As it turned out, Soumare had applied for asylum in 1992, but when the case was not approved he continued to live in the United States without documentation. Pressure mounted to allow the man to return home to bury his family, including from the Bronx’s congressperson and both of the senators for New York, Charles Schumer and Hillary Clinton, all of whom requested that Soumare be given a reentry permit on humanitarian grounds (Dobnik 2007). In the face of this pressure, the U.S. Citizenship and Immigration Service (USCIS) announced that they would reopen his decade-and-a-half-old asylum case and grant him a travel document based on that case. One immigration official stated she could not comment on the specifics of the case but noted that it was “heart-wrenching,” and a USCIS spokesperson commenting on the issuance of the travel document said, “We’re happy we’re able to do it” (Dobnik 2007). There is no reason to think that the immigration officials in the story were insincere or any less moved by Soumare’s plight than any other New Yorkers had been. Indeed, it is almost assured that they found the situation heartwrenching and were happy to provide some assistance to him. Nor is the result problematic. Obviously, it hurt no one for Soumare to have been afforded what little solace could be had by being present to lay his family to rest. What is problematic about this story is that the result was achieved by ignoring laws and procedures that strictly limit immigrants’ ability to have their cases reopened and by ignoring the material contradiction of reopening an asylum case (which is, in essence, a claim that Soumare could not safely return to his home country) so that he could be provided with travel documents to temporarily return to his home country. It was only through having the public’s attention turned to the immigration system and through pressure exerted by political figures that the strict, unyielding immigration system was trans-

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formed, momentarily, into a deus ex machina that resolves the seemingly insoluble. Sadly, such solutions are rarely and unevenly deployed and are no substitution for having a process that actually allows officials to address specific hardships as a matter of course. Moreover, cases such as Soumare’s leave the misimpression that immigration law is a flexible system with the ability to achieve commonsense solutions. It should also be noted that this magnanimous behavior, in this and similarly sympathetic cases, is not solely the result of human compassion; rather, the government has often ignored or bent the harsh mandates of immigration law when a particularly sympathetic case garners public attention as a matter of strategic self-interest. The ICE guidelines on when to use prosecutorial discretion to not pursue deportation in a given case, also called “deferred action,” states that deferred action may be appropriate in sympathetic cases because of “[t]he presence of sympathetic factors which, because of a desire on the part of administrative or judicial authorities to reach a favorable decision, could result in a distortion of the law with unfavorable implications for future cases.”7 Thus, ICE’s own policies recognize that current law often lacks the flexibility to achieve a “favorable decision” and that, in the most extreme cases, immigration officials, immigration judges, and federal judges might balk at imposing unreasonably harsh results on particularly sympathetic individuals and will avoid this result by using rationalizations that create precedents that might undermine the general application of these harsh immigration laws. While this is fine for the minute number of universally acknowledged sympathetic cases, it leaves the inflexible system in place for the vast majority of individuals who also deserve a chance to have their hardships and equities considered. An even more striking example of this phenomenon is a policy called Parole in Place (PIP) for spouses, children, and parents of members of the U.S. military, which provides a mechanism for these family members to adjust status and receive a green card in the United States, even though they entered the United States without inspection. People who entered without inspection (commonly called EWI) are generally prohibited from adjusting status to obtain a green card within the United States, regardless of the fact that they may be close relatives of a U.S. citizen, such as a spouse, who can petition for them. This stems from the immigration statute that states that a person cannot adjust status in the United States to become a lawful permanent resident if they were not “admitted or paroled” into the United States.8 While theoretically, such a person could travel to their country of origin while their U.S. cit-

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izen relative petitions for them to receive an immigrant visa to return to the United States, in reality, most people in this situation will run afoul of a separate law that is meant to punish people who are present in the United States without authorization by barring them from returning to the United States for up to ten years after they leave.9 As a result of these two provisions, many individuals in mixed-status families have a U.S. citizen relative who can file a relative petition on their behalf but have no way to take advantage of the petition by adjusting status because they entered without inspection, and they cannot leave the United States to obtain a visa at a U.S. consulate because they have been present without authorization and would be subject to a ten-year bar once they left the United States.10 Because many undocumented immigrants belong to mixed-status families with U.S. citizen relatives, there are a sizable number of people in this situation who are the family members of people serving in the U.S. Armed Forces. In 2007, this issue came to popular attention when news stories reported that Yaderlin Hiraldo, the wife of Army Specialist Alex Jimenez, was in deportation proceedings because she had entered the country in an irregular manner when she came to the United States in 2001 (Stock 2011). The couple lived in Corona, Queens, and had been married since 2004, and Jimenez had petitioned for Hiraldo before he was deployed to Iraq; however, because Hiraldo had not been “admitted or paroled,” she was ineligible to adjust status in the United States. When Jimenez was reported Missing in Action, news reports of the government trying to deport the wife of an MIA soldier resulted in bipartisan demands that ICE somehow remedy the situation (Simmons 2007; Stock 2011). Ultimately, in response to a letter from then-senator John Kerry of Massachusetts, the Secretary of the Department of Homeland Security (DHS) granted discretionary parole to Hiraldo, and her green card application was quickly approved (Stock 2011). To reach this result, DHS had to repurpose a provision of immigration law that gives the Secretary of DHS authority to “parole” for “urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States.”11 The purpose of the law was to provide a mechanism to allow individuals with an urgent need to enter the United States for reasons such as medical treatment or to participate in judicial proceedings to do so. While the practice of granting parole to individuals who entered the United States in an irregular manner and allowing them to adjust status had been used before (specifically in the case of Cubans who came to the U.S. by boat

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and were paroled into the United States when they were released from immigration custody), granting PIP to individuals who already reside in the United States so they may adjust status was not what was contemplated when the parole provision was enacted.12 Indeed, the heading under which the parole provision was enacted is entitled “Temporary admission of nonimmigrants.”13 Since the time that Yaderlin Hiraldo was paroled and allowed to obtain a green card, local USCIS offices have continued to grant Parole in Place on an ad hoc basis, and various members of Congress have continued to express concerns about the hardships that immigration law has visited on the families of members of the armed forces. Subsequently, a memorandum from USCIS created a uniform policy for PIP and provided instructions on adjudicating PIP requests. The memorandum states that the policy is needed because military families “face stress and anxiety because of the immigration status of their family members in the United States,” which adversely effects military preparedness because active-duty service members have to “worry about the immigration status of their spouses, parents and children.”14 Additionally, the policy extends to the family members of veterans “who have served and sacrificed for our nation” and who “can face stress and anxiety because of the immigration status of their family members in the United States.”15 My intention in discussing the PIP policy is not to claim that it was an unprincipled instrumentalist interpretation of the law to reach a particular result. Indeed, the authority used by the Secretary of DHS is clearly in the language of the law that gives him or her discretion to parole “any alien applying for admission to the United States.” Ironically, being able to apply that authority to longtime residents of the United States who entered without inspection is made possible by one of the 1996 amendments to the INA, which created the legal fiction that any noncitizen who was not lawfully admitted into the United States remains “an applicant for admission” regardless of their physical location or length of residence in the United States.16 While the intent of the law was to limit the rights afforded to individuals who had not been lawfully admitted to the United States, it also laid the groundwork to allow the use of parole authority under the PIP policy. While the conceit that a person who has lived for years, even decades, in the United States is being paroled into the United States from outside its jurisdiction may seem to strain credulity, it is in fact a consistent application of a law that in most other cases operates to the detriment of noncitizens. Under an executive order issued by Trump in 2017, the future of PIP is un-

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clear because the order states that enforcement agencies should ensure that parole is not “illegally exploited to prevent the removal of otherwise removable aliens.”17 Here, the use of PIP is entirely within the letter of the law and cannot fairly be said to be “illegal.” What the Trump executive order is really objecting to is not a violation of law but the idea that law can be applied to achieve a favorable outcome for immigrants. Indeed what is truly problematic about the PIP policy is not its existence but that it is applied too narrowly. There is no statutory reason that PIP can be exercised on behalf of military families but not in other cases in which there is an urgent humanitarian need or a significant public benefit. For instance, one report showed that between 2005 and 2010, 87 percent of the completed deportation cases in New York City involving parents of U.S. citizen children resulted in deportation, which equates to at least 7,111 parents of U.S. citizen children being deported during that period (New York University School of Law Immigrant Rights Clinic 2012). Similarly, another study showed that nationwide in the first six months of 2011, 46,000 parents of U.S. citizen children were deported, which shows a rise in the rate of deportations of the parents of U.S. citizen children from 8 percent of those deported between 1998 and 2007 to 22 percent of those deported in the first half of 2011 and that these deportations resulted in more than 5,000 children being admitted into the foster care system (Wessler 2011). Thus, while the hardships, stress, and potential harm to the national interest that have been cited in support of the use of PIP on behalf on military families are no doubt real, they are not the only hardships and harms caused by not allowing individuals who entered the United States without inspection to adjust their status and obtain green cards based on relationships to U.S. citizens. The outcry from members of Congress when the laws, which Congress itself created and allows to remain in place, will result in the deportation of the wife of a member of the military contrasts sharply with their opinion of the same law being applied to other families. For instance, when an eleven-year-old girl who was a U.S. citizen asked Republican congressman Scott DesJarlais what could be done to help her father who was in deportation proceedings, he responded, “We have laws, and we need to follow those laws, and, you know, that’s where we’re at” (Balcerzak 2013). The point of raising this contradiction between how undocumented migrants who benefit from the PIP program are characterized and how other undocumented immigrants are portrayed is to show that the definition and enforcement of immigration categories is not now, nor has it ever been, based

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on inflexible “rule-of-law” principles. As Ngai (2004) showed, when the category of “illegal alien” was first being defined after the passage of the 1924 Quota law, not all undocumented migrants were treated the same (see Chapter 2). When “European and Canadian immigrants had come face-to-face with a system that had historically evolved to justify arbitrary and summary treatment of Chinese and other Asian immigrants,” there was public outcry that “deportation policy was applied in arbitrary and unnecessarily harsh ways, resulting in the separation of families, with no social benefit” (Ngai 2004, 76–77). As a result, hundreds of thousands of undocumented European migrants were afforded the opportunity to legalize their immigration status through waivers of deportation, pre-registration, or the Registry Act, while similar opportunities were not afforded to undocumented Mexican migrants who had come to be seen as the quintessential “illegal aliens.” It is this same sort of value judgment regarding which undocumented migrants are worthy of a chance to legalize their status that is currently taking place with the PIP program or, more precisely, with the failure to expand a similar policy beyond just military families. One could make the argument that the spouses and other immediate family members of members of the military are a special case warranting extraordinary measures in a way that no other immigrants are. For instance, advocates of the PIP program rightly point to the unconscionable situation of individuals risking their lives in defense of a country that is simultaneously attempting to deport their family members as justification for the program. While this justification is both compelling and supports the continuation of the PIP program, it is also a justification based on the consideration of the very sorts of judgments about substantive personal equities that are deemed irrelevant under immigration law in most other cases: What is the individual’s relationship to society and the nation-state? What sorts of de facto social membership should be recognized? What kind of recognition is an individual who has lived, worked, and raised a family in the United States owed by society? Linda Bosniak, in discussing how citizenship contains both inclusionary and exclusionary aspects, notes that noncitizens pose a problem for many progressives arguing for greater social justice because defining equal membership in terms of citizenship has long been seen as “a necessary condition for preservation of the community within which the struggle against social subordination takes place” (Bosniak 2006, 11). She notes that “[i]n the critical

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literature across the disciplines, it is common to come upon laundry lists of the vectors of subordination—such as race, ethnicity, gender, class, sexual orientation, religion, disability, and appearance—that fail to include or even acknowledge the category of alienage” (Bosniak 2006, 10). If liberal legal notions of equality have amounted to the “coded denial of experience” for citizens of differing socioeconomic positions (Corrigan and Sayer 1981, 33), the denial of the experiences of noncitizens in the legal realm has been all the more severe. Indeed, the subordinate relationship that noncitizens have in society is not only conditioned by their material circumstances but is defined by legal categorization. Thus, while the inability to recognize material reality and lived experience is characteristic of all impersonal formal rational legal systems (Weber 1954 [1922]), this lack is particularly acute in the area of immigration law. Both John Rawls (1971) and Michael Walzer (1983) assumed that establishing membership was a prerequisite for the discussion of social and distributional justice. The PIP program and, to a lesser extent, the DACA program and cases such as Mamadou Soumare’s indicate that societal membership is not coterminous with legal citizenship and that society can value and recognize social and personal relationships, social and civic participation, physical presence, and labor and material contributions as a basis to recognize membership. These ideas are at odds with both the letter and the spirit of the 1996 immigration laws, and these ideas reverse the formula that social justice always flows from citizenship and instead posit that social justice can form the basis for recognition and membership. What is problematic is that these sorts of equities are only observed in the breach and not in standard practice. Moreover, as we have seen with Trump’s attempts to end DACA, these sorts of ad hoc accommodations provide mercurial protection. While it is possible to achieve a just and fair result in deserving cases, as the examples in this chapter demonstrate, there is nothing about the structures or procedures of immigration law that necessarily require that just results be achieved or even mandate that reaching such just results is the goal of immigration law.

C H A P T ER 4

Law Without Recognition Excluded Equities and Judges Without Discretion

in a county jail somewhere being detained by ICE the night before your deportation case, what would you want to tell the immigration judge who would decide your fate? You might want to explain that you grew up in a rural area of Mexico and left for the United States when the land your family had access to could no longer support your parents and siblings and that you have been working for over a decade in the United States to send money home to support your family. You might want to explain that since coming to the United States, you have gotten married and had children of your own, who are U.S. citizens. You might also want to explain that you work multiple jobs, putting in far more than forty hours per week, and that because of these efforts your family is healthy and happy and your children are excellent students making strides to achieve the American dream. Because you do not have a lawyer and because you do not understand the document that outlines the reasons the government says you should be deported, you decide the best you can do in your defense is tell the judge about yourself and your family and hope that she will see that you are not a bad person and that since coming to the United States you have lived like a good “citizen.” If the next morning you were sitting on the bench in an immigration courtroom, charged with deciding which people are entitled to stay in the United States and which people are to be removed—possibly separating them from their spouse, their children, even the only country they have known since childhood—what would you want to know about the people who come before you? Would you want to know about their families, the length of time they have lived in the United States, why they came to the United States, whether IF YOU WERE SIT TING

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they were law-abiding during their time in the United States, and whether they had been hardworking? Under current U.S. immigration law, these sorts of facts and life stories are often irrelevant in the determination of the fate of migrants in the immigration system because the laws that determine whether someone is entitled to a lawful immigration status or whether someone will be deported often do not allow for consideration of personal history, achievements, hardships, merits, rehabilitation, and equities. For many people, the act of entering the United States without authorization means that they are without hope of obtaining a lawful immigration status regardless of any other aspect of their life. Even those who have lawful immigration status, such as green card holders, can find that a single criminal offense, such as minor drug conviction, will result in deportation without any possibility of relief. As a result of these laws, in many cases immigration judges have no discretion when determining the fate of individuals who appear before them. Even though every individual charged with violating immigration law has a different history and a different life story, the only punishment for violating immigration law is to be deported from the United States. Unlike other areas of law, such as criminal law or torts, where there are degrees of culpability, consideration of equities, and gradations of punishment, in immigration law there are scant opportunities to consider ameliorating justifications or equities, and there is little gradation in consequences. Someone’s immigration status is not innate, it is not inborn, and often, it is not immutable. It stems from what lawyers and judges might call legally relevant facts, aspects of people’s lives that may give rise to legal consequences. In the immigration context, such facts may include facing persecution in one’s home country, having certain relatives who are U.S. citizens, overstaying a visa, coming into the United States without inspection, or being convicted of certain crimes. Which of these facts make someone deportable from the United States or is a basis to remain is generally determined by the laws Congress passes, and, for the most part, the determination of whether these facts exist in an individual case is determined by an immigration judge. Since the 1990s, the laws Congress has created in this regard have broadened the list of circumstances under which an individual can be considered inadmissible or deportable, while limiting the facts that an immigration judge can consider when deciding if an individual should be spared deportation. This chapter will examine how the drawing of these lines, especially in recent decades, affects individuals who face deportation in immigration court.

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Early on a weekday morning, the line in front of the Jacob K. Javits Federal Office Building at 26 Federal Plaza in New York City can feel like a large, inefficient TSA security line at a busy airport. Unlike people waiting at an airport, however, the people waiting in this line are not anxious to get through security so they can catch a plane to some far-off destination—quite the opposite, actually. Inside 26 Federal Plaza is one of approximately sixty immigration courts located around the country where roughly 424 immigration judges have over 900,000 pending removal cases that take place in as many as 258 languages (Executive Office of Immigration Review 2017; Human Rights First 2016; National Immigration Forum 2018b; Transactional Records Access Clearinghouse 2019). For many of the people who wind their way through this and similar lines every year, the trips they ultimately take will be oneway and might result in separation from their spouses, children, and friends. Their trips will be virtual banishment from the United States and the communities where they often have spent years, even decades, building their lives and their homes. In addition to those waiting in security lines to enter immigration courts such as the one at 26 Federal Plaza, there are many on their way to immigration court from the 250 immigration detention facilities that house as many as 34,000 immigration detainees on a given day (Urbina and Rentz 2013). In the past decade, many of the individuals who have ended up in immigration court are there because they had some encounter with the criminal justice system. For instance, from 2008 to 2014, the Secure Communities program operated by having local law enforcement submit the fingerprints of arrestees to ICE who determined if they should be detained and subject to immigration removal. According to the ICE website, the Secure Communities program had the stated policy of “prioritizing the removal of individuals who present the most significant threats to public safety as determined by the severity of their crime, their criminal history, and other factors—as well as those who have repeatedly violated immigration laws.” Secure Communities, and other policies claiming to focus enforcement efforts on “criminal aliens,” have been a significant part of the increase in immigration deportations in recent years and illustrate how immigrants who have encounters with the criminal justice system receive the harshest treatment and are seen as undeserving of sympathy. The breadth of this enforcement, however, means that individuals who are scarcely “significant threats to public safety” end up being swept up by the program. Immigration advocates have criticized such enforcement

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efforts because they result in large numbers of detentions and removals of individuals who have not been convicted of crimes or have committed only minor offenses. For instance, in 2011, 29 percent of individuals deported under Secure Communities had just misdemeanor convictions, and 26 percent of the individuals deported as a result of Secure Communities had only immigration violations and no criminal convictions (Waslin 2011, 3). Although the Secure Communities program was discontinued in 2014, due to heavy criticism from advocates as well as state and local governments that had faced lawsuits that held that Secure Communities violated the Fourth Amendment, it was replaced in 2015 by the Priority Enforcement Program, which continued to have the avowed goal of using of fingerprints from local law enforcement to locate individuals who have been arrested and may be deportable. After his election, Trump reinstated the Secure Communities program, ensuring that this focus on “criminal aliens” would continue to be a main focus of immigration enforcement. One such example is that of Abdul, who arrived in the United States about a decade and a half ago and overstayed his visitor’s visa. After about a year, he was married, and he and his wife applied for him to receive a green card, but before his case was completed he became ill, and during that period of illness, his wife divorced him. Contrary to popular belief about immigration law, simply being married to a U.S. citizen does not confer immigration status, legal rights, or benefits. Rather, being married to a citizen creates the basis to obtain lawful permanent resident status so long as the noncitizen is not considered inadmissible under immigration law for some reason, such as having crossed the border without authorization or having certain criminal convictions. Even if someone is admissible, it can take up to a year or more to receive a green card. Because Abdul’s wife had divorced him, he no longer had any claim to be eligible for a green card and was placed in removal proceedings. About five years ago, his case ended with the court ordering that Abdul be deported. Because Abdul was not in court the day he was ordered removed, the deportation order was not carried out; however, the fact that he has a deportation order prevented him from obtaining regular employment, so he worked as a street vendor. One day he was arrested for selling a bottle of water without a vendor’s license, taken to the police station, fingerprinted, and given a summons to appear in criminal court. Abdul came to my office because he knew he had to answer the court summons, but he was also afraid to appear in court because of his undocumented status. Abdul’s concern was

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that his fingerprints would be checked against the ICE database to determine his immigration status. The rhetoric around immigration enforcement is that it is necessary to protect U.S. society from dangerous “criminal aliens,” but if Abdul were to go to answer his court summons, there was a good chance that the ICE officers would arrest him, even though selling a bottle of water without a license probably does not constitute a serious threat to public safety. Because of this concern, I contacted a lawyer who has worked extensively on the intersection of immigration law and criminal law, and he warned that it is not unusual to have ICE officers present at New York Criminal Court, the lowestlevel criminal court, which hears only misdemeanor offenses and minor violations. Although Abdul is obviously not a danger to the public or a criminal alien, his case is typical of how the current enforcement regime has increased the number of individuals who are deported even though they do not have serious criminal convictions and in spite of the fact that they have longstanding ties to the United States.1 On the other hand, given that Abdul does have a deportation order and appears to have no claim under existing immigration law to obtain a legal status, it is fair to ask: What is the problem with executing an existing deportation order and removing someone if the order was issued by an immigration judge in accordance with immigration law? By way of answering that question, this chapter will examine how the law and the process by which such deportation orders are produced operate, to provide a better understanding of the content of these orders and what they actually represent. Specifically, what factors and aspects of a person’s life are considered in determining if someone should be ordered deported? What aspects are ignored or held to be irrelevant to the process? What structural aspects of the immigration system, such as limitations on access to legal representation and imprisonment of immigrants while their cases are being heard, limit the ability of individuals to demonstrate why they should be entitled to remain in the United States? Considering the specific provisions of immigration law that dictate how deportation orders are produced complicates the answer to the question “What is wrong with enforcing a deportation order?” As importantly, considering the specifics of how the immigration system produces deportation orders allows one to identify alternatives to the way the immigration system currently operates.

Rule of Law Without Recognition One of the paradoxes of immigration enforcement is that immigration is the result of historical, economic, social, and political forces that take place

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across vast stretches of time and space, even as the enforcement of immigration laws presumes that individual immigrants have simply chosen to break immigration law and therefore should be punished accordingly. For instance, the growth of the undocumented population involves a long history of acceptance, encouragement, and dependence on migrant labor (see Chapter 2). The social reality is a complex and contradictory equation that entails the tacit acceptance of the benefits of migrant labor, sympathy and empathy for immigrants, anxiety over the loss of “American jobs,” and resentment at having to share dwindling social benefits from the vanishing welfare state. This situation is made more complicated by the fact that as circumstances change, attitudes and policy regarding immigration change, such that behavior that was once accepted, or even encouraged, is now prohibited and punished, and the severity of enforcement tactics have ebbed and flowed with changing attitudes towards immigrants. The passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) in 1996 was the culmination of growing anti-immigrant sentiment in the 1990s, and they radically changed immigration law for both documented and undocumented immigrants. Among the changes that these laws put in place were punitive provisions that made it much harder for undocumented immigrants to avoid deportation, because they severely limited the opportunity for immigrants to regularize their status based on hardship or family relationships. Another 1996 law that represented this shift ing attitude was the Personal Responsibility and Work Opportunity Act (the so-called Welfare Reform Act), which essentially withdrew the social safety net for all undocumented immigrants and severely limited social benefits for other noncitizens, even those with legal status. Currently, U.S. immigration law does not contain a great deal of room to consider individual circumstances or to take the measure of a person beyond her immigration status or some infraction that makes her deportable. Many of the requirements are set out in strict terms, which leave immigration judges little room to exercise discretion, even in cases where the results seem disproportionate or unduly harsh. In law in general, the courts defer to legislative line-drawing on the theory that when a decision needs to be made as to who will benefit and who will suffer from a given legislative action, the legislature is better equipped to make such distinctions and is more responsive to the public should it strike the balance incorrectly. Even with this deference, however, there is recognition in many areas of law that there is a need for judicial discretion (see Chapter 1). In criminal law, for instance, one gener-

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ally expects that those with greater culpability and who do the greatest harm will be punished with the most severe sentences, and one expects that individuals whose conduct is the most understandable and excusable will be extended the greatest leniency.2 Indeed, the concept of proportionality is a constitutional right. For instance, the U.S. Supreme Court ruled in United States v. Booker3 that the criminal Federal Sentencing Guidelines were merely advisory and that judges retain discretion in determining the lengths of sentences based on multiple factors, including the specifics of the offense and the history and characteristics of the defendant. In immigration cases, the discretion of immigration judges has been sharply circumscribed, resulting in stricter rules with harsher consequences than in other areas of the law. The system of immigration law lacks this sort of graduated recognition of culpability and much of the flexibility to extend leniency. Rather, many of the rules and requirements are absolutes and apply to situations where one might find the harsh results surprising. In many cases, people who would seem to have significant equities that should weigh in their favor, such as families and long-term residency in the United States, are deportable, and there is no mechanism to balance the equities involved. This is particularly the case after the changes that occurred to immigration law in recent decades. The Supreme Court recognized these changes in a case mandating that noncitizen criminal defendants be informed of the immigration consequences of pleading guilty to certain crimes, explaining, The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The “drastic measure” of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes.”4

Of course, a legal system is, in part, an exercise in line-drawing. In the case of immigration there are always going to be people who are excluded or removed based on where lawmakers decide to draw the lines. Almost all of the immigration lawyers I spoke with expressed their belief that some people should be excluded for violating immigration laws but felt there were many people who deserved a chance to regularize their status but had no way to do so. Tariq, a lawyer who has his own small law firm that focuses on immigra-

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tion law but also works in other areas of law such as real estate, explained, “I am real big on this compromise idea. I don’t think they should let people into the country illegally; I think they should control the borders,” but at the same time, he said he felt “horrible” for the millions who “are just sitting and waiting for immigration reform” and are helpless because “they can’t vote. They have no voice.” Another lawyer, Eric, expressed a similar sentiment, saying that there should be a process to legalize the millions of individuals who are currently out of status. “I am in favor of another sort of amnesty-type program . . . I think it’s really bad policy to have all these people here and make it impossible to legalize.” Although most immigration lawyers feel there should be control of the borders and limits on migration, such as with individuals who have significant criminal histories, they also expressed the feeling that how the lines were drawn and who they excluded were often unfair and unreasonable. Eric’s statement was typical of many immigration lawyers when he said, “Certainly you can have criteria, and people with significant criminal histories, it’s reasonable to prevent them from [legalizing their status]. But, I mean, if you’ve been here a while and you have significant ties and you have a job, I think they need to legalize these people.” For many immigration lawyers, the question is not whether there should be limits (“lines”) but what those limits should be, who should decide, and what factors should be considered. As things stand now, the answer is that Congress decides on a very general, abstract level, and the number of individual factors that are considered when deciding where the line falls in a given case are sharply circumscribed. Moreover, as Tariq noted, those most affected by those decisions are without a vote or a voice in the process.

Excluding Equities Under the current system, it could be said that the immediate relatives of U.S. citizens hold the most favored place in immigration law. Like many things in immigration law, the definition of “immediate relative” differs somewhat from what might be commonly understood. For immigration purposes, immediate relatives are the spouses of U.S. citizens, their children who are under the age of twenty-one, and the parents of U.S. citizens, if the citizen is over twenty-one years of age. The latter requirement prevents an undocumented individual from obtaining an immigration benefit simply by giving birth to a child in the United States and is why the term “anchor baby” is as incor-

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rect as it is offensive. For those who are immediate relatives, the advantages are significant. For instance, there is no categorical limit on the number of immigrant visas made available each year to the immediate relatives of U.S. citizens, which means that there is no backlog of eligible people waiting to receive permission to immigrate. Individuals who are attempting to immigrate based on family relationships other than immediate relatives of U.S. citizens, such as the spouse and children of green card holders or the adult children of U.S. citizens, are often subject to delays because only a limited number of visas are available in a given year for each category. Because the number of relative petitions of people hoping to immigrate to the United States exceeds the number of visas available in a given year, a backlog begins to form. Often, the wait for an available visa is measured in years. For instance, as of June 2019, the unmarried adult children of U.S. citizens can expect to wait about seven years for a visa, and the unmarried adult children from a country with high demand for visas, such as Mexico, can expect to wait more than twenty-one years.5 In addition to avoiding lengthy delays, the immediate relatives of U.S. citizens who violated certain immigration laws, such as overstaying their visa or working without authorization, are still allowed to regularize their status and receive a green card. This contrasts with the situation of non-immediate relatives for whom violating immigration law presents serious, sometimes permanent obstacles to obtaining a lawful status. At the other end of the spectrum from immediate relatives are individuals who cross into the United States without being inspected by immigration officers. Those who enter without inspection are especially disfavored in immigration law, and someone who has entered the United States without inspection, even the immediate relative of a U.S. citizen, faces a set of laws that often mean they are barred from regularizing their status indefinitely. In the immigration system, the line-drawing is primarily done by the legislature at the highest level of abstraction, and the laws do not have flexibility to take individual circumstances into account. Thus, if someone has entered without inspection, the law draws a bright line, and other aspects of the person’s life and circumstances are usually legally irrelevant. It is this aspect of immigration law that necessitated the policy of non-enforcement of the law embodied by the Obama administration’s Deferred Action for Childhood Arrivals program (DACA), which essentially promised not to deport certain undocumented individuals who were brought to the United States as children. Even with the seemingly sympathetic character of the young people who are

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covered by the DACA program, there are many who believe that anything but the full enforcement of immigration law violates rule of law principles. For instance, this has been the Trump administration’s justification for attempting to end the DACA program and for curtailing prosecutorial discretion to not pursue deportation in sympathetic cases. Arguably, however, adherence to such an interpretation of rule of law should put an additional onus on lawmakers to ensure that the actual results of the laws they create are desirable and fair. In law school, one is often warned that “hard cases make bad law,” which is meant to explain that maintaining a coherent, consistent interpretation of law may sometimes result in outcomes that seem harsh to a sympathetic party in a case, that the compassionate extension of clemency in a case will set a precedent for unforeseeably problematic applications down the road. However, this formulation has been criticized because it could be equally true that bad law makes hard cases, and what is needed is law that is flexible enough to fairly address the variability of actual cases.6 As the Supreme Court noted in the quote from Padilla v. Kentucky, cited above, the harsh, inflexible nature of the rule of law that occurs in current immigration law is the result of a series of legislative changes that have expanded the grounds by which a person can be deported and limited discretionary relief. It is a cynical tautology to say that the undesirable results of these punitive laws must be allowed to continue by refusing to amend the laws so that the integrity of the rule of law can be preserved. This is particularly the case when the laws have the peculiarly undemocratic quality of being passed to regulate noncitizens for the benefit of citizens. Even for people with green cards, current immigration laws have expanded the reasons a lawful permanent resident can be deported, have limited the power of immigration judges to grant discretionary relief, and have limited the power of the federal courts to review deportation decisions. As a result, a significant number of cases in immigration court involve people who have lived in the United States for years, even decades, sometimes as lawful permanent residents, being subject to deportation for seemingly minor offenses for which immigration judges lack the discretion to balance equities and consider mitigating factors. For instance, Emily, an immigration attorney who has a private practice specializing in deportation defense in cases involving individuals with criminal convictions, explained that her clients generally have numerous sympathetic traits: “People have been here a long time, they are married to a citizen, usually they always have children, for the most part. I can’t think of

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any clients who don’t.” Nevertheless, she explained how her clients are often subject to deportation with little chance for relief: Like, this guy ten years ago committed a drug offense and hasn’t done anything since and has a wife and kids. There’s no reason. We’ve lived with him for ten years; we have to deport him now? That kind of stuff doesn’t make sense to me. It’s not like he is a murderer who just came out of jail. They went and invited him to come in and discuss his immigration situation. Foolishly for him, he didn’t think to maybe talk to an immigration lawyer beforehand, and so he went in, and they arrested him like that. That’s not necessary. That’s not necessary. The guy is coming in. He is not going anywhere; he’s got a family. Do you really need to detain him? That kind of stuff is unfair to me, but that is not ICE, that’s our law. Mandatory detention is what it is.

In the above example, the individual being subject to deportation has a wife and children who are U.S. citizens and has lived in the United States for more than a decade. Examples such as this are representative of many people’s situations because noncitizens in the United States are not isolated individuals separate from the rest of society. Although in certain circumstances these factors may be taken into account, in others there is no mechanism under the law to consider these equities. In a case such as this, for instance, an individual convicted of any drug offense other than “a single offense involving possession for one’s own use of 30 grams or less of marijuana” is deportable.7 Given that this law makes any drug conviction other than having roughly one ounce of marijuana a deportable offense, immigration lawyers such as Emily find that “there are a lot of people who have done stupid things, and just that one stupid thing has destroyed their life in this country, and it is quite often that you see it” in practice. Here, Emily expresses her frustration with the immigration system’s rigidity: a client who has committed one offense, something as small as simple drug possession more than a decade ago, is essentially barred from any relief regardless of his personal family equities, the amount of time he has been in the United States, and the sort of life he has led in the past ten years. The above quote also expresses the arbitrary and harsh nature of the immigration enforcement process itself. The individual in question has done nothing wrong since his one drug offense—as his lawyer says, “We’ve lived with him for ten years; we have to deport him now?”—and is arrested by ICE and put in detention only because he is trying to talk to USCIS about regularizing his immigration status. What is more, despite there being no reason

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to believe that he is a danger to the community or a flight risk, the fact that he has a drug conviction means that he is subject to mandatory detention and is not entitled to a bail hearing.

Complex, Harsh, and Arbitrary Laws What emerges from examining the inner workings of the immigration enforcement system is a map of some of the areas where inflexibility leads to harsh and, in the opinion of many immigration lawyers, unjust results. Additionally, such an examination reveals the areas in which lawyers, government officials, and immigration judges work the edges of the inflexible system to sometimes ameliorate some of that harsh injustice. This more complex understanding is even more crucial because even these limited mechanisms are being attacked and eroded by the Trump administration’s efforts to increase immigration enforcement and maximize deportations. As illustrated in the above quote, it is common to hear immigration lawyers complain that certain aspects of immigration law have essentially created immigration “death penalties” for which an individual can never be forgiven or granted clemency. Again, regarding the issue of people with drug convictions, a different attorney, Eric, recounted the plight of a client whose case seems hopeless because of a minor drug conviction: I have a client now who is a successful guy, is married to a U.S. citizen, and he actually doesn’t have a green card but has been here legally on work visas, and . . . he wanted to adjust status through his wife, so he actually applied before he came to me, and it was denied because he actually has a conviction for possession of ecstasy from about six years ago . . . I think it is really extremely harsh, and I would change that law if I could. I think there has got to be more flexibility. There is no reason that drug offenses should be singled out as being completely unforgivable, permanently. I think that’s very harsh.

As with the first example, this individual was unaware of the nature of U.S. immigration law. Many individuals simply do not understand that a simple drug conviction can render them deportable and believe that they will receive some mercy based on either their length of time in the United States or their status as the spouse or parent of a U.S. citizen. In both of these examples, the individuals went to speak with immigration officials voluntarily because they simply could not anticipate that the law would be so harsh and unforgiving. Many people do not think that something that is not treated as a

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“big deal” in any other area of life,8 or even the criminal justice system, can have such dire and life-changing consequences in the context of immigration, and thus they fail to consult an immigration lawyer before applying for an immigration benefit or before talking to an immigration official. Perhaps the most surprising aspect of some cases is that people can be subject to immigration detention while their case runs its course; Eric also decried the use of this mandatory detention: The idea that you could be here for twenty, thirty years, and suddenly they decide to put you in proceedings for a drug offense, a single isolated drug offense you committed twenty years ago. And you’re subject to mandatory detention, you have a family, you have kids, everything, you have a green card, and you have a job, and they are like, “No, we are going to detain you for the next could be a year, could be two years, could be more.” So it’s really, that’s pretty horrible.

This was not always the case. Beginning with the Reagan-era war on drugs, drug-related conduct became more broadly a basis for inadmissibility, and the opportunities to have equities considered and have inadmissibility waived were sharply circumscribed (Morawetz 2008). Additionally, the immigration laws were changed in 1996, most notably by the AEDPA and IIRIRA, to further expand the grounds for deportation and limit the avenues of relief available to individuals in immigration court. The 1996 laws expanded the use of mandatory detention for individuals facing deportation so that it applied to many individuals even when there was no reason to believe they were a danger to the community or a risk of flight. Eric, who has represented many people facing removal due to criminal convictions, feels that these changes have resulted in a lot of the unfair results he sees: “I think the criminal scheme should go back to the way it was before IIRIRA and—what was the other one?— AEDPA. These are very harsh. It does seem to be a trend, and obviously, it’s not just what crimes make you deportable. Also, they’ve narrowed the discretionary relief available—you know, abolished 212(c).” The discretionary relief that Eric is referring to in the above quote, known as 212(c) relief, acted as a safety valve in cases where strict enforcement of deportation rules results in unconscionably harsh results. Abolishing 212(c) in the 1990s is illustrative of the changes that have taken place in U.S. immigration law more generally and how the ability to consider individual equities in a case have been stripped out of much of the system. The forerunner of

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212(c) relief goes back to the Immigration Act of 1917, and section 212(c) has been interpreted to allow certain lawful permanent residents facing deportation based on a criminal conviction to apply for discretionary relief. To qualify for relief, the individual had to maintain a lawful domicile in the United States for at least seven consecutive years immediately prior to fi ling the application for relief. Additionally, under 212(c), an applicant was required to demonstrate to an immigration judge that she warranted a waiver by essentially showing that positive factors, such as family ties to the United States, a long duration of residency in the United States, economic ties to the United States, rehabilitation, service or benefit to the community, and other evidence of good character outweighed negative factors, such as seriousness and severity of exclusion grounds, other immigration violations, having a criminal record, and other evidence of bad character. Such a balancing of equities vested immigration judges with the authority to decide cases based on individual circumstance by considering a broad array of factors. Given that to be considered for 212(c) relief, an individual would have to already have lived in the United States for at least seven years in a lawful immigration status and had to convince an immigration judge that he or she warranted a favorable exercise of the judge’s discretion to grant the waiver, it hardly constituted a blanket waiver of exclusion or deportation. Nevertheless, in the 1990s, growing anti-immigrant sentiment caused the limiting and eventual abolishment of 212(c) relief. In the Immigration Act of 1990, 212(c) was amended to make it unavailable to individuals who were considered aggravated felons and who had served five or more years in prison. The much more severe 1996 laws first limited availability even further, in the AEDPA, and a few months later, in IIRIRA, abolished it completely. Even after IIRIRA, some individuals remain eligible for 212(c) relief because in 2001, the Supreme Court ruled in INS v. St. Cyr9 that lawful permanent residents must be allowed to seek a waiver if their “convictions were obtained through plea agreements [prior to the repeal of 212(c)] and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect.”10 In essence, the Court held that because individuals may have taken guilty pleas with the expectation that they might be able to avoid deportation by seeking a 212(c) waiver, those expectations must be protected. As a result, there is still a (rapidly diminishing) number of cases where individuals are put in immigration proceedings based on a pre-IIRIRA conviction, who can still seek a waiver based on the Supreme

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Court’s ruling in St. Cyr. An examination of such a case, where an individual was still able to seek a 212(c) waiver, shows with stark contrast the harsh and unforgiving nature of our current immigration system, in which this sort of consideration of personal equities is no longer available.

Weighing Equities Anna was clearly moved by and proud to tell me about her client Jane, a real immigration law success story. It embodied all the reasons many people go into law: the ability to use intellectual acuity, personal tenacity, and the mastery of a complex specialty to help a deserving individual achieve justice. The story, which unfolded over the course of decades, also embodies many of the changes and trends both within immigration and in society at large. It is the kind of story that promises that good results can be wrested from an imperfect system, even a broken system, at least sometimes. Jane immigrated to the United States legally along with her family when she was just six years old. By the time her parents naturalized, she was already too old to derive citizenship automatically from them, so she would remain a lawful permanent resident until she could herself naturalize. As a young woman, Jane had a couple of relationships with abusive boyfriends, one of whom sold drugs. Jane was present at a buy-and-bust with her boyfriend and was charged, pleaded guilty, and was sentenced to a lengthy prison term. While in prison, she took advantage of every opportunity made available to her and was ultimately able to earn a master’s degree while still in prison. By the time she was released, IIRIRA had been passed, and Jane was put into deportation proceedings as a “criminal alien.” Although she had pleaded guilty to a serious drug charge, it was her first and only criminal offense, and there were extenuating circumstances, given that she was the victim of an abusive relationship. Moreover, she had virtually no ties to her country of birth, which she had left when she was six and which she had visited on only a couple of holidays; in addition, she did not have relatives there, as all of her family lived in the United States. Finally, Jane was a poster child for rehabilitation, having obtained an education, received an advanced degree, and gotten a job in higher education after her release from prison. At this time, Anna was in law school and working at an immigration clinical program in which law students represent people in immigration court under the supervision of a professor. Anna, through the clinic, represented Jane, and explained, “She had something like forty witnesses from the postman to priests and nuns to the per-

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son who had mentored her for her master’s degree. She had a stellar number of witnesses available, but the judge could not entertain the case because she had been stripped of jurisdiction and had no discretion to hear it.” Anna had wanted to show that Jane was rehabilitated and had many mitigating and positive factors and hoped to present that to the immigration judge, but because the law had been changed in 1996, “she went to her individual hearing, and the judge had no discretion because of IIRIRA.” Ultimately, Anna “had managed to get her deferred action for a criminal conviction even though she was considered an aggravated felon. It was through congressional support.” In immigration law, deferred action is a state of limbo where an individual who is facing deportation and has no avenue of legal relief available is able to convince the government’s lawyer that they should have their deportation case put on hold in an act of benevolent procrastination.11 In Jane’s case, this was achieved by convincing a member of Congress to express support for granting her deferred action. Deferred action can be indefi nite and can allow time for the individual to seek legal relief that may become available in the future. Although deferred action is certainly better than being deported, it does not grant a legal status, and the individual is still subject to deportation anytime the government chooses to resume action. As Anna explained, for Jane, “that meant that she could be picked up at any time. When 9/11 happened, she was suddenly called down to . . . the deportation unit, and every month she had to report.” Jane had achieved great success in her career: she was pursuing a Ph.D. and was an important member of the administration of a community college, but she was still required to check in with her deportation officer once a month and had to live with the uncertainty of her lack of immigration status. Years after Jane had been released from prison and received deferred action, the Supreme Court ruled in St. Cyr that people like Jane, who had entered a guilty plea when 212(c) relief was still available, should still be allowed to apply for it, and in September 2004, the Department of Justice issued its final rule, establishing a process for people facing deportation to apply for 212(c) relief and setting a deadline of April 25, 2005, for applications. By this time, Anna had finished law school and had her own immigration law practice. While attending an American Immigration Lawyers Association conference, she saw in the program that there was a presentation regarding the new process for fi ling for 212(c) relief and realized that it would apply to the case she handled back when she was a law student. However, her husband had been ill, and before she was able to contact Jane, her husband’s prognosis worsened.

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My husband’s oncologist rang, and I got off track. I shut up my shop a couple of days later to take care of him, and he died shortly thereafter, and I came back to work with literally a foot-and-a-half stack of paper, and in that paper, something like three and a half weeks before the deadline, I find this piece of paper. And I remembered, “Oh, yes, that relief, oh my God.” And we fi led it; we got it in the day before, and a couple years later, applied successfully for 212(c) relief. But there’s an example, too, of somebody who’s been in the system. She was in deportation, in the deportation unit. She’d been through the top tiers, and there is no accountability by immigration officials to notify her about eligibility. I swear it was my dead husband’s ghost, because he had helped me with her case. Actually, it was a long story, but it was fortuitous that I had found out about it. I wasn’t even her attorney anymore.

As this story illustrates, there are indeed cases that have the positive outcomes they deserve, but there is nothing about the system itself that mandates that that be so or that would make it possible to claim that, in general, or even more often than not, a just result is reached. Here, Anna points out that Jane was in the immigration system and was required to check in with the deportation office on a monthly basis, but there was no effort to notify her, and those similarly situated to her, that relief might be available. She was fortunate that Anna decided to pursue immigration law after law school, that Anna kept current with legal developments and had the presence of mind, despite her personal tragedy, to reach out to a former client she worked with back in a law school clinic. This is an immigration success story but one that required a major holding from the Supreme Court, congressional intervention, dogged determination by an immigration lawyer over many years, and many fortuitous circumstances. Additionally, Anna’s use of 212(c) to regain her lawful permanent resident status highlights how the first two examples of families being destroyed because of minor drug offenses are not the only way that “rule of law” can be interpreted. The current law has created a system that does not trust immigration judges to be able to evaluate individuals and their conduct as a whole, balance equities, and render a just decision. What is more, even though Jane’s story is extraordinary, it is not exceptional for individuals with strong equities to have to face rigid, unforgiving immigration laws. In 2010, at the end of his term in office, then–New York governor David Paterson issued dozens of pardons to individuals who would be subject to deportation based on criminal convictions. In his statement ac-

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companying the pardons, Paterson said, “. . . it became abundantly clear that the Federal government’s immigration laws are often excessively harsh and in need of modernization,” and explained that “[t]he individuals pardoned today committed past offenses but paid their debt to society. They now make positive contributions to our State and nation, and I believe they should be protected from inflexible and misguided immigration statutes” (Paterson Press Release 2010). Accompanying the announcement were summaries of cases that illustrated the inflexibility that Paterson decried. For instance, the following examples, which are taken directly from the press release, are typical stories of individuals who have complex personal stories and personal equities that current immigration law does not have the capacity to take into account: •

•

•

•

Carol Hamilton, now a Reverend, was convicted of two class A misdemeanors of Criminal Possession of Marijuana in the Fourth Degree in 1995 and 1986, for which he was sentenced to a conditional discharge and a fine, respectively. He has now earned a Bachelors and a Masters Degree and works as an ordained minister, counseling youth, exoffenders and people living with HIV/AIDS. A pardon should assist him in fighting his deportation, allowing him to remain in the United States with his wife and three young children. Juan P. Ramirez, who was then the owner of a bodega, was convicted in 2003 of two misdemeanors. Since these convictions, he has been gainfully employed, supporting his wife and children. He has been an active member of his community who has devoted himself to helping others. The pardon should remove all grounds of deportability and allow him to have his green card restored. Laurenton Rhodon has been a lawful permanent resident of the United States for twenty years, but now faces removal as a result of a 1995 conviction for Attempted Criminal Possession of a Controlled Substance in the Third Degree, for which he was sentenced to five years probation. Rhodon has sole custody of his 12-year-old daughter. The pardon will make him eligible to seek cancellation of removal, but because he was convicted of a controlled substance offense, there is no guarantee that he will be permitted to remain in the United States. Fredy C. Rojas, a veteran of the U.S. Army and after having served our country for 8 years, is deportable as a result of a single misdemeanor drug possession conviction in 1995. Since that time, he has completed

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drug treatment and, together with his wife, who is a citizen, he is raising his 7-year-old daughter and working as a truck driver. Jose Sanchez was granted lawful permanent resident status in 1998, even though he disclosed to immigration officials that he had been convicted in 1989 of fift h-degree criminal possession of a controlled substance and sentenced to five years on probation. Eleven years later, after Sanchez has built a stable life in New York, Immigration and Customs Enforcement is seeking to deport him for that same conviction. Melbourne Sinclair has been a lawful permanent resident of the United States since 1986. He was convicted in 1990 of the misdemeanor offense of fourth-degree criminal sale of marijuana and sentenced to a fine. As many permanent residents do, he applied for naturalization, unaware that he was ineligible as a result of his conviction, and he now faces the likelihood of being placed in deportation proceedings. If removed, he would be torn from his wife, who is a citizen, and sons, who would likely be unable to continue their college attendance without their father’s support and assistance. If he is placed in proceedings, the pardon will make Sinclair eligible seek cancellation of removal, but will not guarantee that he will be permitted to remain in the United States (Paterson Press Release 2010).

These cases also underscore how a significant front in the war on drugs has been waged against noncitizens. Since 1917 there had been some provisions to allow for the deportation of noncitizens convicted of committing a crime in the United States; however, in the 1980s and 1990s, immigration law began to focus on “criminal aliens,” and the sorts of convictions for which an individual could be deported began to expand dramatically, while the opportunities to contest such deportations began to diminish. The Omnibus AntiDrug Abuse Act of 1988 established the category “aggravated felons,” which was limited to murder and trafficking in drugs or weapons. The aggravated felon category was expanded in the Immigration Act of 1990, and various forms of relief, including 212(c) relief, began to be limited. The AEDPA and IIRIRA, both passed in 1996, brought the most drastic changes and expanded the aggravated felon category even further, increased other grounds by which a noncitizen could be deported, and eliminated much of the relief that had been available previously. In the case of controlled substances offenses, any drug conviction is grounds for deportation, with the only exception being a

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waiver that is available for a single possession of marijuana of less than thirty grams. The inflexibility of these provisions is apparent in the cases where Governor Paterson granted pardons, such as the case of Reverend Carol Hamilton. In Hamilton’s case, two misdemeanor convictions for possession of marijuana from 1995 and 1986 rendered Hamilton deportable. Even though he has many impressive equities and considerations that weigh in favor of allowing him to stay in the United States, such as having a wife and three children and having established a ministry in the community that works with youth, ex-offenders, and people living with HIV/AIDS, current law brands him a criminal alien, and the individual facts of his life are simply not relevant.

Practicing Law in a Broken System For many immigration lawyers, the loss of judicial discretion after the 1996 laws is the largest obstacle to reaching fair and just results in cases like the ones described above. As one lawyer put it, “Judges need to have discretion again. If you are not going to do that, don’t call them judges, okay, because there’s no point. You have to trust them, and the government can appeal.” The result is that rather than judges being able to balance the facts of a case, lawyers find it very difficult, and sometimes impossible, to find a legal argument that can help a client, even if they have sympathetic or compelling equities. Rachael, a lawyer who oversees a law school immigration clinic and who has practiced immigration law since before the 1996 laws went into effect, explained how the loss of judicial discretion has changed the approach lawyers have to take and what sorts of evidence are even considered relevant: I think the law is designed now in a way where it is very hard to have what most people, at a common-sense level, would think would be the relevant facts, to have them be in some way relevant to the case. So one winds up having to litigate over a lot of technical legal issues and a lot of, you know, sort of more complicated arguments. Our clinic, we often take cases where we feel there’s a glimmer of something there. We don’t know what it looks like, and it’s sort of, like, a problem, and we will ultimately try to come up with something that is a hook for the judge, but often the judge has thought, “Jeez, this is a sympathetic case, but I don’t know what I can do with that.” And I think that is sort of the fundamental problem after ’96. I think that there aren’t the obvious discretionary relief mechanisms that would allow for consideration of facts, and so what has happened is that this new structure has legalized all of

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these questions, so one ultimately has to make a very technical legal argument in order to prevail in a case.

The loss of avenues for relief, such as §212(c), and the expansion of the grounds of deportation, have left many individuals without obvious forms of relief and have necessitated that immigration lawyers make complex and creative arguments to circumvent the narrow technical readings of statutes that may prevent an individual from even being able to present their personal equities and request relief in the first instance. This is true even when the lawyer and immigration judge feel that justice would best be served by providing some form of relief. As Rachael explained, this is particularly an issue for individuals who are being threatened with deportation based on having been convicted of a crime: You know, if you have someone who is a fairly minor character in a conviction—it’s their only conviction, they have a whole lot of other things they can say about their life—you would want to sort of know, well, how bad was the crime, and what does the rest of their life look like, but instead, you usually can’t do that. You usually have to argue all kinds of very technical issues about what the New York law looks like, what federal law looks like, what was in the jury instructions in this particular case, and all sorts of other things like that.

Although not all criminal offenses are considered deportable, many seemingly minor criminal convictions can be the basis to deport someone. Since the 1990s, a broad array of crimes has been designated “aggravated felonies,” which are deportable offenses over which an immigration judge has no authority to grant relief except for the limited protection of withholding under the U.N. Convention Against Torture (see Chapter 3). In cases where individuals are charged with being deportable as an aggravated felon, their only chance is to argue that the conviction they have does not meet the legal definition of an aggravated felony. Since the list of aggravated felonies in the INA often defines them generally or by reference to conduct that is illegal under federal laws, it is not always clear if a given conviction can be considered an aggravated felony. In such cases, the person’s fate often depends on comparing criminal statutes to the specific aggravated felony definition to try to show that the criminal conviction does not match the aggravated felony ground of removal. Rachael provided an example of a case handled by her clinic that illustrates how these technical statutory issues have totally replaced consider-

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ations of the character of the individual facing deportation and a balancing of equities: We had one person who had come here and gotten asylum and become a permanent resident and had one conviction, and we moved to terminate proceedings, saying that the conviction did not fit the requirements of the [aggravated felony defi nition in the] statute. We thought this was completely clear from the plea agreement in the [criminal] case. The judge didn’t really understand how to read the plea agreement. Ultimately, he was willing to keep the issue open, but only if we went to the U.S. Attorney and got the U.S. Attorney, the prosecutor in the case, to say that he agreed with us. So, meanwhile, we were forced to put together an extremely difficult case, proving asylum twenty years after the fact, very old facts, very difficult with the client in detention with a language barrier. It was very difficult to get interpreters, and under a very tight time schedule that is applied for detained cases. We ultimately got the U.S. Attorney to find time in his busy schedule to write the document we needed, which led to the whole case being thrown out. And that only happened because one of the students at the clinic called up the U.S. Attorney, who had for months been telling us he agreed with us but just didn’t have time to write a letter, and said, “I’ve cleared my calendar, and I am coming down to Virginia to meet with you.” At which point he said, “Don’t come down, I will send you something.” You know . . . we had three students working on this case, working incredible hours on this case, for one person.

In this case, an individual who was granted asylum and lived in the United States for decades had a conviction for buying and selling cigarettes without tax stamps on them and was charged with being an aggravated felon. Because criminal indictments, plea colloquies, and other documents in criminal cases are not prepared with immigration law consequences in mind, it is often unclear if a given individual’s crime should be considered an aggravated felony. Under the INA, a fraud that results in a loss to the victim of more than $10,000 is considered an aggravated felony, but under criminal law, the $10,000 threshold has no particular significance, so the criminal records may contain no clear statement of what the size of the loss was. Here, the individual’s offense did not rise to the level of an aggravated felony, and thus he was not deportable, but it took an extraordinary effort and exertion of resources to terminate a case that should never have been brought in the first place. What is more concerning is that under our current system, this extraordinary effort

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and expenditure of resources by an experienced law professor and three law students was absolutely necessary to unravel the nature of the conviction and convince the immigration judge that it was not a deportable offense. There is simply no way that a non-lawyer in detention facing deportation would have known where to begin looking to determine if he really was deportable, much less how to go about proving that he was not. An example such as this is particularly salient when one considers that about half of the individuals who have had their cases decided in immigration court are pro se—that is, without legal representation (Eagly and Shafer 2015; New York Immigrant Representation Study Steering Committee 2011).

“That’s a Pretty Crazy Kind of System”: Incarcerated and Unrepresented Immigrants According to the Executive Office for Immigration Review, the branch of the Department of Justice responsible for overseeing the immigration courts system, in fiscal year 2011, 51 percent of individuals whose cases were completed in immigration court were represented, in 2010 only 49 percent were represented, in 2009 and 2008 only 45 percent were represented, and in 2007 48 percent were represented (Executive Office for Immigration Review 2012). A 2011 study of legal representation in New York City immigration courts showed that 60 percent of detained immigrants and 27 percent of nondetained immigrants were unrepresented (New York Immigrant Representation Study Steering Committee 2011, 3). This situation is compounded by the fact that individuals accused of being aggravated felons are subject to mandatory detention, which magnifies the difficulties in locating legal assistance or trying to marshal evidence to support one’s case. According to this study, the two biggest factors in determining whether a case had a successful outcome, defi ned as receiving relief or having the case terminated, are whether an immigrant is represented and whether she is detained. The study found that of those who were represented and not detained, 74 percent had successful outcomes; of those who were represented but detained, 18 percent had successful outcomes; of those who were unrepresented but were not detained, 13 percent had successful outcomes; and of those who were unrepresented and detained, only 3 percent had successful outcomes (ibid.). Thus, the result of expanding the grounds of deportability, limiting immigration judges’ discretion, instituting mandatory detention, and increasing the technical complexity of immigration law is not simply that immigration law makes more people deportable but

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that even people who should not be deportable, even under those harsher laws, are unable to contest their deportability. As Rachael, the lawyer who runs the immigration clinic, explained: I feel that in pre-1996 days, that a person could have been on his own, in front of a judge, could have said, “Judge, I’m really sorry. It’s the only conviction I have ever had. I’ve never done anything else wrong,” and could have had a hearing, and it all might have been disposed of that way. But instead it became this complicated legal point with extensive briefs where the judge had to sort of sort out these different questions with the documents. And meanwhile this client could have been sent back to a place where the U.S. government had previously determined he would be persecuted.

Under current immigration law, there is a confluence of factors that have made it difficult for individuals who want to contest their deportability in immigration court. There has been a broadening of the grounds on which someone can be made deportable; there are drastic limitations on an immigration judge’s ability to grant relief; there is a need to be able to make complex legal arguments to qualify for what relief is still available; and there is an increase in individuals being detained while they are in immigration proceedings. Moreover, because immigration proceedings are considered civil and not criminal, migrants are not provided with legal representation if they cannot afford to hire an attorney or find pro bono assistance. In criminal trials in which a defendant faces imprisonment, the Supreme Court has held that the Constitution requires defendants to be provided with legal representation. In 1963, when the U.S. Supreme Court unanimously found the right to criminal defense counsel in Gideon v. Wainwright,12 it stated that it was an “obvious truth” that an indigent defendant could not receive a fair trial in a criminal case without assistance of counsel. More than fi ft y years after Gideon, the Court continues to hold that there is no right to appointed legal counsel in immigration proceedings because they are civil rather than criminal proceedings, and thus the Sixth Amendment right to counsel does not apply. Nevertheless, the adversarial nature of process, the difficulties a non-lawyer has understanding complex law, and the seriousness of the consequences are strikingly similar to criminal proceedings in which legal representation is required. For instance, like criminal trials, immigration hearings are proceedings brought by the government against an individual in which the government is represented by a lawyer and, like criminal trials, the consequences

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to the individual are dire and involve the loss of liberty. Indeed, the Supreme Court has acknowledged that “deportation may result in the loss of all that makes life worth living,”13 which means the stakes are often much higher for someone facing deportation than for someone facing prosecution for a minor criminal offense. Under current laws, many people the government considers criminal aliens are subject to detention while their immigration cases proceed, and this further limits their ability to find an attorney or to be able to work so that they can pay an attorney. It is often individuals accused of being deportable based on a past conviction, like the asylee who was accused of being an aggravated felon because he sold untaxed cigarettes, whose cases turn on complex legal issues that can be unraveled only by an attorney. According to a report by the New York State Bar Association, “[t]he increase in immigration enforcement, coupled with the acute shortage of competent immigration attorneys, has resulted in a crisis in immigration representation” (New York State Bar Association 2012, 3). As noted above, the outcome of these laws and policies is a huge disparity in the number of successful outcomes based on whether an individual is represented and not detained (a 73 percent success rate) and individuals who are not represented and detained (a 3 percent success rate). In part, the problem is due to the breadth of mandatory detention policy, which requires detention for certain classes of immigrants facing deportation regardless of whether there is an actual determination that they pose a danger to the community or risk of flight. For instance, the asylee who sold cigarettes without tax stamps was subject to mandatory detention despite the fact that no one considered him to be dangerous or likely to abscond. As his lawyer explained, the current system is costly to society as well as individuals facing deportation: And, ultimately, it turned out our client should have never been detained. Everyone agreed our client should never have been detained. The judge threw out the case, but our client had been detained for over six months at a facility that was costing about $200 a day,14 and, you know, do the math. You know, 180 days at $200 a day, that’s over $35,000 in taxpayers’ money that’s been spent on something that never should have happened, not to mention the hardship to the individual.

The success this individual ultimately obtained in having his case dismissed was based on the happenstance that he was being detained with a cli-

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ent of mine and was therefore able to explain his situation to me and that I, recognizing that he had a potential defense to deportation, was able to put him in touch with Rachael at the law school clinic, who was able to represent him pro bono. Under the structure of immigration law, there is no reason to believe that other individuals in his situation would have had the same luck. In discussing the treatment of migrants facing deportation due to a criminal conviction with Rachael, she highlighted the unprecedented nature of the current system. The power to detain people doesn’t exist in any other civil system. It does exist in the criminal system, but the criminal system, you then have the right to a lawyer. So the power to detain without a lawyer is a pretty extraordinary thing, and that has never been exercised on the mass scale that is happening today. I mean, it is unprecedented in the history of the United States to have those two things going together. Even if the courts have upheld the power to detain and upheld the right not to have a lawyer, the mixing of those two is a huge, huge fact.

Thus, it is a confluence of factors at work that deny people the opportunity to have their individual circumstances and histories heard and considered. Moreover, even when it is possible to make a legal argument that may entitle a person to have her individual equities considered, economic constraints may be determinative of whether someone gets a lawyer and those arguments are able to be heard. Rachael pointed out that because someone in immigration proceedings does not have the right to an attorney unless she can afford to hire one or is able to find pro bono representation, the outcome of many people’s cases is dependent on the kind of lawyer they are able to afford: And going along with that is the huge number of people who are not represented or are represented by the kinds of lawyers you can get for a few thousand dollars, which is often no better than no lawyer at all. Or are represented by so-called accredited representatives, some of whom are good, but some of them are appalling. So I think when somebody’s liberty is at stake, that’s a pretty crazy kind of system.

An unrepresented person facing deportation may enter an immigration court believing that the immigration judge holds his fate in her hands and that he must convince the judge of why she should let him remain in the United States, in his community, and with his family. In many cases, however,

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this perception of the court and the judge as an authority is a mirage. Before the proceedings even begin, the outcome is a fait accompli based on determinations that have little to do with him as an individual. Of course, if there is going to be a system of rules regarding immigration, some individuals are going to run afoul the lines that have been drawn. From the point of view of many immigration practitioners, however, the current state of immigration law is too harsh and inflexible to consider relevant equities, and the system results in unjust and unequal treatment of people, based more on a lack of flexibility in the law than on rational or consistent policy goals. Although there is currently no indication that Congress intends to amend the existing structure of the substantive provisions of U.S. immigration law, the New York City Council, as well as other institutions in the city, has established a system to provide appointed legal representation to detained indigent migrants facing deportation. As will be discussed in Chapter 5, the creation of the New York Immigrant Family Unity Project to provide a public defender style system of representation provides not only a systemic response to the problem of individuals being deported simply because they cannot obtain legal assistance but also an unprecedented institutional structure with which to challenge the current immigration enforcement system more broadly.

C H A P T ER 5

The New York Immigrant Family Unity Project A Revolution Such as Lawyers Would Mount

in the United States for decades by the time I met him. He had arrived on a visitor visa and at some point had gotten married and applied for a green card based on that marriage, but he had not been able to continue that case once he separated from his wife. He continued to live in the southern United States for years without any formal legal status but also without too much difficulty. In early 2017, Aaron was arrested based on a warrant from an old traffic violation that he had already paid, but by the time he was able to straighten out the recordkeeping error, the local police had already informed ICE, who requested that Aaron be detained for immigration enforcement. Aaron was transferred from the state where he lived to a private detention facility owned by the Corrections Corporation of America in a rural area hundreds of miles from his home and anyone he knew. Although Aaron did not know it as he languished in ICE custody, he was entitled to an immigration designation known as Temporary Protected Status (TPS) because of the brutal civil war that was devastating his home country of Yemen. Specifically, TPS is a designation that the Secretary of the Department of Homeland Security is allowed to make to provide a temporary immigration status to individuals in the United States who are from countries where conditions such as civil war or natural disaster make it unsafe for them to return. Beneficiaries of TPS are protected from being deported from the United States, and TPS status prevents them from being detained based solely on their immigration status. Additionally, they are entitled to work authorization, and they can even apply for a permit that allows them to travel abroad and be readmitted to the United States. Although TPS is, by definition, A ARON HAD BEEN

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temporary and has become even more precarious under the Trump administration, which has terminated TPS designations for numerous countries, TPS still has the potential to provide some legal protections for months and even years. Certain serious criminal offense may make someone ineligible for TPS, but it is generally available to anyone from an authorized country who is present in the United States when the designation is made and who meets the fi ling deadline. Aaron certainly would have been entitled to TPS had he applied, but he was unaware that it existed. Despite the fact that he was in regular contact with ICE officers during his detention, no one mentioned that there was a TPS designation for his country of origin or suggested that he apply for its protection. Indeed, even when he was brought before the immigration court, which was housed within the private prison in which he was detained, neither the ICE attorney representing the government nor the immigration judge mentioned that he was probably eligible for TPS. Without having access to an attorney of his own, Aaron did not realize that he could apply for TPS, ask that his case be closed based on his entitlement to TPS, and ask to be released from detention. Instead, Aaron grew hopeless and depressed during his imprisonment and finally agreed to take a deportation order. Because he could not be deported due to the very conditions in his country that would have prompted the TPS designation, he was eventually released on what is known as an order of supervision. Under the order of supervision, Aaron was required to regularly report to an ICE officer who would review the likelihood of his being deported. Eventually his supervision was transferred to the ICE office in New York City, and he found his way to my office. By the time Aaron was released and had an opportunity to speak to an immigration lawyer, the deadline for applying for TPS had long since passed, and he did not have any legal basis to register late. Thus, even though he had been in the custody of ICE and in front of an immigration judge during the period he was eligible to register for TPS, none of these government officials had explained to him that he was eligible for this status. According to Aaron, the government’s lawyer and the immigration judge in his case seemed to be friendly with each other, and he felt they were essentially working together to have him removed. Aaron, who felt that his experience of immigration court was not unique, explained that almost none of the other immigrants in the courtroom had legal representation and therefore did not know what their rights and options were any more than he did.

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Aaron’s story shows how making the legal determination of whether someone is entitled to some form of relief from deportation or humanitarian protection is complicated and nearly impossible without the assistance of an immigration lawyer. However, at the same time, enforcement practices such as increased detention and enforcement-oriented immigration courts make it difficult for many individuals to access legal assistance. Under these conditions, there is little assurance that immigration enforcement is reaching the legally correct determinations. Indeed, two studies from political scientist Tom Wong and his colleagues indicate that significant numbers of “undocumented” individuals are potentially eligible for a legal status but are unaware of this fact (Wong et al. 2014). One survey conducted among DACA applicants indicated that 14.3 percent of DACA applicants screened were also eligible for a more permanent legal status, and a study of immigrants seeking assistance at legal clinics run by the Catholic Legal Immigration Network, Inc. (CLINIC) in seven southern states indicated that 15.4 percent of undocumented migrants were potentially eligible for a legal status of which they were unaware (CLINIC 2017). In Aaron’s case, it is very likely that he would have ended up with a different result if he had been in detention while appearing before an immigration court in New York City. That is because, in New York City, the New York Immigrant Family Unity Project (NYIFUP) now provides legal representation to virtually every individual who is being held in detention while facing deportation. Whereas nationwide, only 35 percent of detained immigrants have legal representation, in New York City, NYIFUP provides representation to all detained indigent immigrants facing deportation (Stave et al. 2017, 7). In general, in immigration court there is no provision made to provide legal representation to migrants facing deportation. The INA does allow for migrants in removal proceedings to “have the privilege of being represented (at no expense to the Government) by such counsel . . . as he shall choose”1; however, there has been no recognition of a right to counsel in immigration removal proceedings for those individuals unable to afford to hire a private attorney. Although the Supreme Court held in Gideon v. Wainwright2 that in the criminal court context, “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him,” the logic of this decision has not been applied to individuals facing deportation because the Supreme Court has ruled that immigration proceedings are civil, rather than criminal, in nature and therefore do not require the same level of

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due process protection (Markowitz 2008). If migrants are unable to afford to hire an attorney on their own or to obtain pro bono representation, they are forced to attempt to navigate the complexities of immigration law and the procedures of immigration court without legal assistance (see Chapter 4). Various individuals and organizations in New York City have attempted to address this problem for decades, and since November 2013 the New York City Council and charitable foundations have funded a system to provide lawyers to detained migrants who cannot afford to hire a private attorney. The system creates two sources of free legal representation for indigent migrants, NYIFUP and the Immigrant Justice Corps (IJC), to form the first assigned counsel system for indigent migrants facing deportation anywhere in the United States. The NYIFUP program, which provides legal representation to any detained migrant facing deportation whose income is below 200 percent of the federal poverty line, is a system that operates essentially the way a public defender system operates in criminal court cases. The IJC is a program funded by private foundations that places young lawyers and college graduates into existing organizations to assist with those organizations’ efforts to provide legal assistance to immigrant communities. By 2015, the NYIFUP program was able to provide near-universal representation to detained indigent migrants facing removal in New York City. Although the project is in its nascent stages and legal representation does not solve many of the substantial problems created by the substantive immigration law and lack of judicial independence in immigration court, being able to examine the outcomes in New York immigration courts both before and after the advent of this system allows one to further pinpoint areas of problems and of potential. As importantly, the successes being achieved by NYIFUP and IJC demonstrate that there are multiple possible strategies to contest the punitive structure of current immigration law and policy, including ones that are not dependent on legislative changes to existing law. The establishment of an institutionalized assigned counsel system ensures that individuals will have the equities and specifics of their cases considered to the maximum extent possible under current laws, and having the support of an institutionalized structure greatly expands the possibility for migrants to make constitutional challenges to those existing laws. As importantly, having universal representation for all migrants in immigration detention allows for the systemic collection of information about how migrants are treated both in immigration court proceedings and detention. Finally, as advocates continue to succeed in reaching

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positive results for their clients in court and continue to collect evidence of the abusive nature of the system, they are able to change the public narrative about both who the government is trying to deport and the nature of the system by which these deportations are carried out. Most of the problems with U.S. immigration law are long-standing and systemic, and therefore, addressing these issues requires a systemic response. Many migrants and their advocates have long been engaged in resistance to harsh and punitive laws (e.g., Coutin 2003), but the advent of a public defender– like system provides an institutional base from which to evaluate and challenge aspects of immigration law in an unprecedented manner. Although there has been a long history of advocacy and scholarship around the right to legal representation in immigration court, NYIFUP and IJC have their direct origins in a speech given by Robert Katzmann, a judge on the U.S. Court of Appeals for the Second Circuit, which he presented as the Marden Lecture at the Association of the Bar of New York City on February 28, 2007 (reprinted in Katzmann 2008). In the lecture, Katzmann described his view from the Court of Appeals, where cases come on appeal from the immigration system. Referring to the number of appeals as an “avalanche of immigration cases (ranging from thirty-two to forty-eight cases per week)” (Katzmann 2008, 3), he explained that having competent legal representation at the beginning of a case in immigration court was a crucial determinant of whether a migrant would receive a just outcome: “The reviewing appellate judge, who is constrained at the time the case comes before her, is left with the feeling that if only the immigrant had secured adequate representation at the outset, the outcome might have been different” (Katzmann 2008, 9). Katzmann highlighted the lack of available legal resources for individuals who could not afford to hire an attorney, noting that in 2005, migrants were unrepresented in 65 percent of the cases completed in immigration court (Katzmann 2008, 20). As significant as the lack of representation was the serious problem of private attorneys who provided incompetent or inadequate counsel to their clients, whom Katzmann called “‘stall’ lawyers, who hover around the immigrant community, taking dollars from vulnerable people with meager resources” and who fi le briefs that are “barely competent, often boilerplate submissions” (Katzmann 2008, 9, 10). In urging the members of the New York Bar to address this crisis, Katzmann, whose father was a refugee from Nazi persecution (Katzmann 2016, 140), appealed to the lawyers’ sense of having a unique place in the administration of justice as an autonomous profession with an essential monopoly

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to act as intercessors between individuals and the state. He argued that “[t]he lawyer’s function is grounded in role morality, the notion that special obligations attach to certain roles—in the lawyer’s case, to serve justice” (Katzmann 2008, 4). He ended with a quote from John Adams, which was equal parts flattering, cajoling, and shaming to his audience: “to what greater object, to what greater character, can we aspire as lawyers than to assist the helpless and friendless in a worthy cause . . . To devote your skill and energy to the plight of another, without the promise of a material reward for oneself, is what sets us apart as professionals” (Katzmann 2008, 29). Katzmann noted that as a federal judge, it was not appropriate for him to advocate for any particular legislative solution; rather, he created a narrative that told the Bar they had a special institutional obligation to see justice done and that they needed to address the structural socioeconomic factors that were causing the crisis of unrepresented immigrants. In 2008, based on interest generated from his lecture, Katzmann formed a working group called the Study Group on Immigrant Representation (Study Group), made up of “some fift y lawyers from a range of firms; nonprofits; bar organizations—the Federal Bar Council, the New York City Bar, the New York State Bar Association, the New York Lawyers County Association, the American Immigration Lawyers Association; immigrant legal-service providers; immigrant organizations; law schools; federal, state and local governments,” and another judge from the Second Circuit Court of Appeals, Danny Chin (Katzmann 2016, 140). In discussing the formation of the Study Group, Peter Markowitz,3 the Director of the Cardozo Law School Immigration Justice Clinic, told me, “we started meeting in the basement of the Second Circuit for 7 a.m. meetings a few times a year and breaking out into subcommittees and developing pilot projects and studies on a number of different fronts.” Markowitz took the lead on the subcommittee that focused on collecting data on the need for legal representation in the immigration system, which ultimately produced two reports under the heading of the New York Immigration Representation Study. The result was two reports released over two years, the fi rst of which analyzed the scope and consequences of the problem of migrants having to face immigration proceedings without representation (New York Immigrant Representation Study Steering Committee 2011), and the second, which laid out a blueprint for addressing the problem on a local level (New York Immigrant Representation Study Steering Committee 2012). Using information collected from the studies, organizations associated

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with the study group, including the Vera Institute for Justice (Vera), Make the Road by Walking, the Center for Popular Democracy, the Northern Manhattan Coalition for Immigrant Rights, and the Immigration Justice Clinic of Cardozo Law School, were able to construct a budget and lobby the City Council. In 2013, the City Council provided $500,000 for a pilot study of NYIFUP, in which three existing legal service providers, Brooklyn Defender Services, the Bronx Defenders, and the Legal Aid Society, would provide legal representation for detained individuals facing deportation. Based on the success of the pilot study, the City Council appropriated $4.9 million for 2015 to fund NYIFUP in providing universal representation to all detained New Yorkers facing deportation proceedings, and the City Council has continued to increase the budget to meet demand, with budgets of $5 million by 2015, $6.2 million by 2017, and $10 million in 2018 (Abraham 2017; Stave et al. 2017). Markowitz explained that this was achieved in part because even though only three legal service organizations would receive funding as part of the program, “we had virtually every immigrant rights organization, every immigrant legal services organization in the city, sign on and say [NYIFUP] should be a funding priority” because, despite the fact that these organizations often have to compete for limited city funding, “there is a real sense of shared mission that people are involved in some kind of historic project that is of significance.” Andrea Sáenz, a NYIFUP supervising attorney at Brooklyn Defender Services, had spent the three years after the pilot study was funded working at the Cardozo Immigration Justice Clinic doing budget advocacy to try to get NYIFUP fully funded. She explained that the first year was trying to locate policymakers who would listen, “going to talk to the administration, to the criminal justice court coordinator, to the city council, to the speaker, finding who is it that has any ability to fund this that would listen.” Because NYIFUP was aimed at benefiting primarily detained migrants facing deportation who had previously had some sort of contact with the criminal justice system, Sáenz said an enormous amount of time was spent demonstrating that there was a wide range of people who were being held in detention and facing deportation without lawyers. She explained that after the pilot program began, one of the key advocacy tools has been to gather client stories, because they “really put the face on who’s in detention, which I think people genuinely didn’t know.” Even the name “New York Immigrant Family Unity Project” was the product of group deliberation to try to change perceptions about who

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is being held in immigration detention. The advocacy efforts thus attempted to combine rational arguments based on fundamental legal principles about the right to legal representation with sympathetic stories that corrected perceptions about who was actually facing detention and removal: I think it’s simple for all of us in the field who all knew that lawyers mattered, but going into those initial meetings with the New York Immigrant Representations Study documents from the Katzmann group, which had hard numbers from EOIR [the agency in charge of the immigration courts] that show because people didn’t have lawyers, and they were all losing and pairing that with stories and examples of who’s in detention—real people, fathers and mothers—and that was compelling, and to just say, “We just need a chance. We just need a little bit to start something to show you that there are people in our communities that deserve to be back working and being with their families, and that that would be a benefit.” Even though I say all of that, there’s still an aspect of . . . I still don’t know how they said yes to this project, because one thing I’m proud of in this advocacy, we never hid the ball that people were coming with criminal records or, at the time, they were coming straight from Rikers Island [Jail]. But we had a very sympathetic ear to say they are still New Yorkers.

Finally, the advocates for NYIFUP needed to satisfy the mundane necessities of contemporary governmentality’s audit culture (Shore and Wright 2015). To achieve this, they were able to partner with the Vera Institute for Justice, which describes its mission as addressing issues of social injustice through data-driven projects in partnership with government to achieve “[j]ustice systems that are fairer, more humane, and more effective for everyone.”4 Sáenz explained that, Vera’s role was critical in the beginning as a known quantity who’s good at data and quality assurance, so they were the original contractor, and then the three organizations were the subcontractors, and then Vera has been the data collector and has separate and special funding to do an in-depth two-year evaluation to show that the program works in a very rigorous way.

Although Sáenz believes the role to Vera was essential in securing initial funding and she believes their evaluation of the effectiveness of NYIFUP will be critical to maintaining permanent funding for the program, she also explained that “they certainly don’t exert any influence over the way we liti-

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gate or anything like that.” Nevertheless, in her position both as someone who worked directly on advocating for the budget to start NYIFUP and as a supervising attorney at the Brooklyn Defender Services, Sáenz recognizes that “the challenge is trying to figure out what’s the sustainable level of litigation . . . because for the city, you want to tell them that this is an affordable replicable program, and from the management perspective, you don’t want to ask your people to take on an absurd caseload.” One can see that these issues of accountancy and management are not merely academic while waiting in the lobby of Brooklyn Defender Services. Alongside the two rows of chairs and standard rack of magazines is a very large collection of children’s toys and books. There is a dollhouse, a zebrashaped hobbyhorse, and a large blue tube full of stuffed animals, above which is a sign that reads, “Please help yourself to take any of the stuffed animals home.” The day I visited their office was the day after Father’s Day, and one of the clients was wearing a new T-shirt that said “SuperDad.” The office is far more family-oriented than most waiting rooms in a business or medical office. The 1996 immigration laws were written based a generalized fear of an abstract category of dangerous “criminal aliens” that seems to bear little resemblance to the people for whom this waiting room was intended. For decades since these laws went into effect, their harsh and unforgiving provisions have caused a steep uptick in the number of people subject to detention, the number of people deported, and the number of families broken apart. The likelihood that Congress will reform these laws seems vanishingly small, and NYIFUP is the first large-scale response that seeks to counter the harmful effects of these laws by providing universal legal assistance. Demonstrating that local and state governments can sustainably afford to provide legal representation to individuals subject to these laws, and even benefit from it, is important not just to NYIFUP clients in New York City, but it provides a model for other jurisdictions across the country. Sáenz grew up in a Mexican-American family with a mother who was a teacher and a principal who instilled in her a sense that people are supposed to help each other and their community. When she finished college, she taught with Teach for America with immigrant students in Texas. She explained that the students “were just wonderful. I loved working with these students. They were inspirational, but they also didn’t know how they would go to college. They didn’t know what their future would look like, and that really motivated me to go to law school and study immigration.” While in law

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school, working in the Harvard immigration clinic, 361 people were arrested by ICE in a large immigration raid in nearby New Bedford, Massachusetts, “on a leather goods factory, and several hundred mostly Brazilian and Central American folks were detained and rounded up. They brought in the dogs and helicopters. It was just a very military-style raid on very nonthreatening people.” As a result of her experience with that raid and seeing what it did to the families in that community, Sáenz decided she wanted to focus her work on representing people in detention. Like Sáenz, Markowitz’s interest in immigration law stems from work he did in law school, when he worked in an immigration clinic while at New York University Law School. He was able to help prevent a nineteen-year-old from being deported based on a Youthful Offender conviction, and he said, “It was a very powerful experience for me to be involved in, and it kind of set me on that path.” Since 2002, Markowitz has practiced removal defense, primarily in the Varick Street Immigration Court, which hears deportation cases of individuals who are being held in detention, and said, the state of affairs over at that court in the pre-NYIFUP period was an extremely scary state of affairs. Person after person going up there, and as you sat in the gallery, waiting for your case to be called, you would see unscrupulous, incompetent lawyers not asserting entirely valid defenses—applications for relief. You would see unrepresented folks detained for continuance after continuance after continuance unnecessarily, looking for counsel. You would see unrepresented folks getting deported for non-deportable offenses or where they have relief available. The state of affairs was kind of desperate prior to NYIFUP.

Since the implementation of NYIFUP, Markowitz believes there has been a substantial, if incomplete, change in the immigration courts in New York City. “What I like to say is we have replaced the horrific dysfunction of the immigration courts with the normal dysfunction of the criminal courts. Not that it isn’t entirely dysfunctional in many ways still, but it is dysfunction with all sides represented by extremely competent and zealous advocates.” In contrast with the state of affairs Markowitz witnessed in the Varick immigration court prior to NYIFUP, he said now, “It’s extraordinary to go sit and watch master calendar after master calendar one afternoon at NYIFUP. The quality of the representation is phenomenal.” He attributes this in part to the fact that the three legal service organizations selected to participate in NYIFUP—the

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Bronx Defenders, Brooklyn Defender Services, and Legal Aid—were already highly respected legal service programs. As importantly, however, Markowitz thinks the institutionalization of the representation is having great benefits: “Having a community of lawyers working on these issues . . . has just elevated the level of practice well beyond what I thought I was doing as a really good job when I was practicing in that court fifteen years ago, but it’s well beyond what I used to be able to do.” Sáenz explained just how the representation NYIFUP was presenting differed from the earlier situation. She said that in the past, the detained immigrants who were most likely to receive representation were those with easyto-identify relief, like people with obvious asylum claims or those who were eligible to receive a green card through a U.S. citizen relative. She explained that NYIFUP is able “to raise two kinds of claims that were not previously litigated very much.” The first is to contest whether green card holders whom the government is seeking to deport because of a criminal conviction are actually deportable by showing that their convictions are not deportable offenses. Because the legal issues involved in whether a particular conviction makes someone deportable are extremely complex, in the past, there simply were not enough lawyers to litigate those issues. The second types of cases are ones in which a client may not immediately appear to be eligible for relief from deportation, but there is a possibility that a claim to relief might be developed through a more thorough investigation. For instance, Brooklyn Defender Services won a couple of cases for individuals with mental illness who were facing deportation to El Salvador. Although on the surface, it did not appear that the clients would be eligible for any type of relief from deportation, Sáenz said that after investigating further and consulting with human rights experts, their lawyers were able to document “that if a mentally ill client with no support system was deported to El Salvador, that he was going to end up in this particular hospital in which he would be treated in a manner that would be equivalent to torture.” For Sáenz, the fact that NYIFUP is a network of multiple providers with multiple lawyers creates benefits that were not available before. In a formal sense, there is a listserv for lawyers to share winning strategies and other information about important developments, but she also noted that in an informal sense, “you can wait a long time at Varick [immigration court] waiting room, and everyone’s there in the Varick waiting room, saying, ‘What are you doing?’ ‘What are you here for?’ and there’s a community of defenders that

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there wasn’t before.” NYIFUP is even organizing happy hour events so people “feel like they can say, like, ‘Have you tried this with Judge Mulligan?’ ‘What about with Judge Buchannan?’ . . . We’re finally building that knowledge.” Another aspect of the knowledge that is being created and disseminated as a result of NYIFUP stems from the fact that this is the first time there have been lawyers working collectively, constantly, in immigration court and in detention centers. Whereas before, lawyers had anecdotal accounts of abuse and problematic practices, now there is a much more comprehensive insight into the immigration system. For instance, NYIFUP attorneys are learning about and addressing systemic problems regarding provision of medical care to their detained clients. Additionally, having a network of lawyers working on so many detention and removal cases allows them to have a more in-depth picture of the people subject to these laws and the effects the laws are having on them and their families. For NYIFUP, educating judges and the public about the consequences of the current system is as important as making legal arguments, because creating a more complete, humanizing narrative about migrants is necessary to win individual cases, to influence public perception, and to change laws more generally. Using data collected by NYIFUP about their clients and their cases, Vera produced a report that both documented the success of the program and provided a picture of exactly who was facing detention and removal in New York City (Stave et al. 2017). NYIFUP’s data shows that people facing deportation in New York City are very much like the rest of the general population of the city and have deep ties to the community. On average, they have lived in the United States for sixteen years, and many came to the United States when they were quite young (Stave et al. 2017, 18). The workforce participation rate for NYIFUP clients is essentially the same as for the city’s general population (Stave et al. 2017, 17), and 30 percent of their clients were green card holders (Stave et al. 2017, 18). Finally, many NYIFUP clients have spouses and children who are U.S. citizens or lawful permanent residents. Forty-seven percent of clients have children in the United States, the vast majority of whom are U.S. citizens or have another lawful status, and more than a third of clients are married, and the majority of those spouses are U.S. citizens or have another lawful status (Stave et al. 2017, 20). Luis Mancheno, an immigration lawyer who works at the Cardozo Law School Immigrants Rights Clinic with Markowitz, also sees having an organized institution providing immigration representation as having great benefits to clients and as a step toward affecting systemic change. Although Man-

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cheno has not been practicing law as long as Markowitz and Sáenz have, his experience with immigration law goes back to when he came to the United States from Ecuador at age twenty-two and represented himself in a successful application for asylum. Mancheno explained that his own experience ignited his interest in becoming an immigration lawyer: “After going through that process, I realized how much help was needed in my community, so I decided to pursue immigration law, went to law school. After law school I went to work at the U.S.-Mexico border in Arizona.” After working on the border in Arizona, Mancheno became an IJC fellow for two years at the Bronx Defenders, where he worked alongside NYIFUP lawyers. To explain the effects that he saw NYIFUP and IJC having, he contrasted it with the experience he had in the immigration courts in Arizona: “When I came to New York, I noticed the difference in the way that the judges were being educated by advocates, and that made a huge difference. The judges were much more competent because they have a competent immigration attorney who is educating them.” Mancheno explained that NYIFUP and IJC attorneys regularly put forward new and creative arguments that unrepresented migrants and less competent attorneys could not make, which in turn is helping immigration judges to be open to such arguments. Overall, Mancheno said that compared with his experience in Arizona, New York immigration courts seemed more formal and more structured and provided “something a little bit closer to due process . . you actually felt that the people that were going before those courts were actually getting their day in court, which they’re not getting anywhere else in the country.” Mancheno also sees the organizations involved in providing services for NYIFUP and IJC as having a culture of cooperation: “We are in constant communications between the three offices for the three providers. We have a listserv where we share our concerns all about things that are going on in court . . . We all understand this is hard work, so when we can, we help each other.” To illustrate the tangible outcomes of NYIFUP, Mancheno pointed to Lora v. Shanahan,5 a case decided by the Second Circuit Court of Appeals, which held that a provision of the 1996 laws that subjected noncitizens with certain criminal convictions to mandatory detention during their removal proceedings would be an unconstitutional violation of due process if it were interpreted to allow for indefinite mandatory detention. Therefore, the court ruled that for the detention provisions to be constitutional, migrants subject to mandatory detention were entitled to an individual hearing within six months of

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their detention and were entitled to be released on bond unless the government could prove by clear and convincing evidence that they were a danger to the community or a flight risk. The case was initially brought as a federal writ of habeas corpus by an NYIFUP attorney at Brooklyn Defender Services who then worked with the New York University Immigrant Rights Clinic, which was lead counsel on the appeal. To Mancheno, the victory showed how well the NYIFUP system is working, with the NYIFUP attorney raising the issue and creating the record for appeal, and then, “thanks to all the camaraderie that we have and cooperation that we have between organizations, the NYU clinic was able to take that case.” Similarly, Markowitz said he believed the Lora case demonstrates that NYIFUP addresses one of the main concerns that Judge Katzmann raised in his Marden Lecture, that the lack of competent legal representation at the outset of immigration cases made it such that the issues and records of cases were not being properly preserved for appeal, and as a result, the appellate court was not able to address numerous important legal issues. Now that NYIFUP attorneys represented migrants from the outset of their cases, Markowitz said, we have a huge pipeline of cases now that are working their way to the Second Circuit that have been litigated exceptionally, and that I think we’re going to see in five years from now, looking back, a host of precedents coming out of the Second Circuit that are the product of this . . . That’s going to be one of the legacies of NYIFUP that’s going to be really fun to look back at in a few years.

After the Lora case was decided, NYIFUP clients had the right to a bond hearing in front of an immigration judge and had the right not to be detained unless the government could prove that they were likely to be a danger to the community or a flight risk. As a result of the Lora decision, hundreds of NYIFUP clients received bond hearings, but their attorneys still needed to convince the immigration judges that their clients deserved to be released from detention. According to Sáenz, after Lora there remained many challenges to winning a bond hearing for a client. Immigration judges having discretion to grant release was “a double-edged sword,” because even though it presented the opportunity for clients held in detention to be released, immigration judges could simply choose not to exercise discretion in their clients’ favor. Sáenz explained that after the Lora decision it was hard to convince some immigration judges that simply having a conviction does not make someone a risk to the community and that to not consider all aspects of some-

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one’s case would deny them the individualized hearing that they were entitled to under the Lora decision. Each of the three defender organizations participating in NYIFUP has ten or eleven NYIFUP attorneys, some support staff, and a social worker to handle their NYIFUP docket. Sáenz noted that the fact that they need a full-time social worker demonstrates how complicated winning release can be. To make the case that a given client should be released, the lawyers needed to make a legal and factual argument that the client was not dangerous; needed to demonstrate that they had a strong likelihood of winning the immigration case such that the client would be motivated to actually attend the hearings; and needed to show that there was a reasonably stable living situation for the client to return to, which required social workers to do such things as arrange for residential placement or other necessary services. The amount of work that went into preparing bond hearings for all of their detained clients is memorialized in the hallway of Brooklyn Defender Services with a handwritten cartoon that says, “I Survived Hurricane Lora.” The cases following the Lora decision also demonstrate that one consequence of the 1996 laws has been to slow the development of case law in immigration cases. Because for decades most immigration detainees have been subject to mandatory detention without judicial review, there has not been any litigation on what standards justify detaining people, such as the definition of a risk to the community or the definition of a flight risk, and as a result, all of the case law on the subject is decades old. After Lora, NYIFUP attorneys began to appeal these issues and make new case law on the subject. More than two years after the Lora decision, the Supreme Court overturned its holding in a case arising out of California, Jennings v. Rodriguez.6 In Jennings, the Court held that as a matter of statutory construction, the 1996 laws’ mandatory detention provision did not allow for a bond hearing for immigrants being held while they litigate their deportation cases. Although the decision meant that for the time being, some NYIFUP clients would not be entitled to a bond hearing, it also set the stage for courts to decide if holding individuals in detention without a bond hearing while they litigate their deportation cases is unconstitutional. For immigrants to prevail in such a constitutional challenge to the mandatory detention statute, it is vital that the cases raising such a challenge build a strong factual record regarding the harms done by the provisions and present the legal issues as well as possible, which has been a core strength of NYIFUP. The aftermath of the Lora decision shows there are significant challenges to achieving fairer results in im-

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migration court but that having an institutionalized system of representation creates real opportunities to make significant gains amidst those challenges. Another area where NYIFUP is making a significant difference is in cases of migrants being placed in removal proceedings based on criminal conduct. Because the immigration law regarding criminal conduct is very technical and complex, many migrants who are in fact not deportable under the law are powerless to contest their removal (see Chapter 4). Markowitz explained, “Those are people who are actually not subject to deportation under the law but were being deported routinely and in other parts of the country are still being deported routinely because they lack the capacity to identify or advance those arguments.” For instance, two cases originating from NYIFUP, decided by the U.S. Court of Appeals for the Second Circuit, have led to precedents that changed the law for thousands of litigants who otherwise would have been charged as deportable aggravated felons. Because of the complexity of determining if a given state criminal law meets the definition of an aggravated felony under federal immigration law, these cases involve complicated statutory construction arguments. Put simply, a single state statute may make a number of different sorts of conduct illegal, and if a person is convicted under that statute, the conviction could be based on any one of a number of different prohibited activities. Under federal immigration law, however, it is possible that only some of the conduct in the statute would be a deportable aggravated felony and other conduct covered by the statute would not be a deportable offense. In one case, Harbin v. Sessions,7 the New York statute outlawed the sale of a number of substances, including a particular substance (chorionic gonadotropin) that was not included in the federal definition of an aggravated felony drug offense, and because of the mismatch between the state law and the federal “aggravated felony” definition, the court held that the conviction did not demonstrate that Harbin’s conduct made him an aggravated felon. Similarly, in Hylton v. Sessions,8 the plain language of the statute included sorts of drug distribution (such as distribution of less than an ounce of marijuana without payment) that would not meet the definition of a drug-trafficking aggravated felony under federal immigration law, and therefore a conviction under that statute did not demonstrate that someone was an aggravated felon. These NYIFUP cases have helped to cabin the definition of who can be considered an aggravated felon, and by winning these arguments in the federal court, NYIFUP lawyers have provided a level of insulation from

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both ICE and immigration courts, who favor broader applications of the aggravated felon category (Immigrant Defense Project 2019).9 NYIFUP was created to respond to the fact that federal law and Supreme Court precedent do not provide for a right to counsel in immigration cases, despite the severe and life-altering consequences that flow from a deportation order and despite the fact that immigration law and procedure is too complex for a person to navigate without legal assistance. Interestingly, the very existence of NYIFUP may make recognition of a constitutional right to counsel in immigration cases more likely. Markowitz, who has worked extensively on issues of right to counsel in immigrant proceedings, believes that something like NYIFUP is, as a practical matter, necessary before the Supreme Court would hold that there is a right to counsel, because “the Supreme Court and federal courts in general are very cognizant of the practicalities and making sure they are not going to disrupt the system in some kind of unworkable way.” Looking back at the cases in which the Court found a constitutional right to counsel in other contexts, such as criminal court cases and juvenile court cases, Markowitz explained, “In each and every case, a precursor to the finding of a constitutional right was the existence of scalable workable public defender models already in place.” Markowitz noted that there are serious efforts underway in other areas of the country to replicate NYIFUP because it is showing that such a project can work and be sustainable. As of November 2017, a dozen jurisdictions have established some sort of immigration representation system, and a dozen more are planning such programs (Stave et al. 2017). Although the purpose of NYIFUP is to intervene in the current system of immigration enforcement and is motivated by a recognition that current laws are punitive, inflexible, and unjust, the program is not in fact in opposition to the general institution of immigration law or the immigration courts or even the government agencies that enforce current immigration laws. Markowitz even explained that the cooperation of the attorneys from ICE, who represent the government, has been crucial to the success of the program: “ICE has been a really important partner in NYIFUP from the outset. There’s some logistical stuff where they could have really thrown up roadblocks and really didn’t.” For instance, to ensure that cases move as quickly as possible, ICE delivers the charging documents to NYIFUP attorneys prior to the initial hearing (called a master calendar) so that the attorneys can meet with their clients and con-

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duct legal research prior to the master calendar “and really make that first appearance really meaningful.” Similarly, Sáenz notes that “ICE has been extremely cooperative, and they don’t have to. They’ve given us space to put our books and papers in Varick.” Nevertheless, Sáenz explained that the introduction of NYIFUP has created some tension with the ICE attorneys because it’s a level of litigation they haven’t had to experience before . . . Some of them are a little taken aback at the level at which we will litigate a case: we’ll deny the allegations until they put the papers in front of us, we’re fi ling more motions, more briefs, making more complex arguments, appealing the decisions, so I think that’s been a culture shift for them, but I think we’re all going to come through it, and it’s just going to be the new normal—there’s a lawyer on both sides, and so some things are going to get more heavily litigated and contentious, but that’s as it should be, in my mind.

In New York City, NYIFUP attorneys, ICE attorneys, immigration judges, deportation officers, and appellate courts are engaged in redefining what the nature of the institution of immigration court will be. Although substantial reform of the current immigration laws seems unlikely in the foreseeable future, their meaning, substance, and application are being challenged and transformed by a struggle that is occurring within the existing institution but without challenging the existence of the formal institution itself. It is the nature of the legal system that control imposed by legislation must contend with the agency and resistance of those affected by the law. Ideally, it is the function of the legal profession to bring its own institutional weight to that resistance. By drawing on the facts of their clients’ lives, invoking competing legal principles and values, and creating new institutional forms, NYIFUP lawyers are opposing the application of immigration laws and transforming their meanings. Before the advent of NYIFUP, it was clear that individual lawyers were, at times, able to achieve some level of justice for some of their clients, even within the existing context of unfavorably punitive immigration laws. The introduction of an institutionalized form of legal representation for migrants has allowed not simply for such individual successes to be more frequent, but it is beginning to challenge the injustices of the current system on a systemic scale, to transform the practices of the system, and to open up the possibility of more justice within the system overall. There is an understandable tendency in much scholarship on immigration to critique the immigration enforcement system as a monolith that produces

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inhumane results. Given that that structure will probably not change anytime soon, we need to look at the content of the system with greater specificity to also tease out where liberatory possibilities exist. NYIFUP is one such example, and it has successfully begun to use the ethos of the legal profession to demand that the immigration system attend to both the logos and pathos of the claims being made by migrants. This is no small feat, given that our immigration laws and policies currently reject both logic and compassion.

C ONC LUSION

The Limitations and Possibilities of U.S. Immigration Law

bodegas are necessities of life. Store owners rely on their keen understanding of the needs and desires of their fellow community members to curate a collection of goods that meet local residents’ needs and desires twenty-four hours a day, seven days a week, inside a cubbyhole-sized space. Oftentimes, stores are run with the assistance of a charismatic bodega cat, which serves as both a beloved neighborhood pet and certification of a rodentfree environment. On February 2, 2017, the Yemeni-American bodegas across New York City closed, and thousands of the bodega owners and workers staged a demonstration in front of Brooklyn Borough Hall to protest President Trump’s executive order imposing a travel ban against seven predominantly Muslim countries, including Yemen. One bodega had a sign on its door explaining, “My family is stranded overseas we are closed.” Through their protests, the Yemeni bodega workers were demonstrating that deep transnational ties already existed between migrant New Yorkers, the communities they served, and their families abroad and that the travel ban had arbitrarily severed those ties. To members of the Yemeni community in Brooklyn and their supporters, it was obvious that in imposing the travel ban, Trump was making good on his campaign promises to impose a “Muslim ban” on immigration into the United States and that they and their family members were being discriminated against because of their religious beliefs. Legal challenges to the ban argued that the ample record of Trump’s campaign promises to impose a Muslim ban, combined with his other Islamophobic remarks, demonstrated that the ban was motivated by animus against Muslims, in violation of the Establishment Clause of the Constitution. When IN NEW YORK,

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the travel ban reached the Supreme Court, in Trump v. Hawaii,1 the Court said it would give the question of the constitutionality of the proclamation only the lowest level of judicial review, rational basis review. This meant that the Court would uphold the ban so long as the government could articulate any reasonable explanation for the ban “independent of unconstitutional grounds,” and the Court admitted that it “hardly ever strikes down a policy as illegitimate under rational basis scrutiny.”2 Under this low level of review, the Court accepted the government’s claim that the ban was motivated by concerns about national security. In constitutional law, rational basis review is generally considered appropriate only when reviewing laws that do not appear to impinge on a fundamental right or raise the specter of invidious discrimination. By applying it to the travel ban case, in which both fundamental religious rights and issues of discrimination were clearly present, the Court essentially provided no judicial review of the ban’s constitutionality and accorded virtually no weight to the rights of people, like the bodega workers in Brooklyn, who were being separated from their families. The Court’s ruling highlighted two related aspects of its view of sovereignty and the rule of law in the area of immigration. First, the ruling shows that the Court does not consider itself a participant in the exercise of sovereign power in areas of immigration law. Second, as a result of this view, the political branches of government are largely able to operate in a state of exception free from constitutional restraints or judicial oversight in the area of immigration law. Significantly, just weeks before its ruling in Trump v. Hawaii, the Court had ruled, in a different religious liberty case, that the enforcement of Colorado’s state anti-discrimination laws against a baker who refused to make a cake for a same-sex wedding violated religious freedom specifically because comments by some state enforcement officials indicated an anti-religious bias.3 Nevertheless, the Court took the opposite position when considering Trump’s Islamophobic remarks and the extent to which they demonstrated an anti-Muslim motive for the ban. The Court briefly acknowledged the existence of the statements but ultimately dismissed their significance, stating, “We must consider not only the statements of a particular President, but also the authority of the Presidency itself.”4 By separating the actual remarks and motives of the person occupying the White House from the power vested in the presidency and then considering only the legal power of the presidency, the Supreme Court’s decision is reminiscent of Ernst Kantorowicz’s idea, in The King’s Two Bodies (1957), that the explanation for the perpetuity of sover-

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eign power lies in the paradox of the king having both a material body and a political body that “form one unit indivisible, each being fully contained in the other. However, doubt cannot arise concerning the superiority of the body politic over the body natural” (Kantorowicz 1957, 9). Thus, the Court saw “the Presidency itself” as equivalent to the “body politic,” possessed of the absolute powers of the sovereign notwithstanding the obvious infirmity of the “body natural” of Trump the person. For Giorgio Agamben, Kantorowicz’s “metaphor of the political body appears . . . as the cipher of the absolute and inhuman character of sovereignty” that illuminated the “absoluteness of political power” and the origin of the state of exception (Agamben 1998, 62). Dating back to the Chinese Exclusion Case, in which the Supreme Court announced what would become known as the plenary power doctrine, the courts have exhibited deference to the political branches of government on matters of immigration. The history of immigration regulation in the United States has been particularly subject to social and political currents, and a variety of social, economic, and political factors have dictated how immigrants are viewed and how they are characterized and treated under immigration law. Although public views about any issue on immigration policy tend to be divided, even polarized, based on differing narratives of U.S. society’s complex relationship with immigration, once one view is concretized as law, that complex socioeconomic history is no longer considered in the law’s application. This is particularly true if the paradigmatic view of immigration that prevails in the legislature is one that characterizes migrants in negative terms as threats to societal interests, the economy, and law and order itself. For instance, the laws that currently regulate the treatment of immigrants, especially the 1996 laws, had their origin in contested views and discourses about immigrants, but once these laws were passed, they radically changed how the law viewed and treated immigrants, and the laws shifted societal inertia so that cracking down on “illegal immigrants” and “criminal aliens” became a bureaucratic and a public objective. Based on this view of immigrants, there is no need to provide sympathy, fair treatment, or due process to a population made up of “different kinds of people” (Greenhouse 2013, 104) who are seen as outside society, responsible for society’s problems, and deserving of the hardships the law visits upon them. Laws that negatively affect immigrants are perhaps easier to pass and harder to change than legislation that negatively affects other social groups because noncitizen immigrants are axiomatically not represented politically. Ideally, the courts are supposed to act as an anti-

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majoritarian counterbalance because, as Alexander Hamilton argued in the Federalist Papers, meaningful limitations on the power of the legislature “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”5 In practice, however, courts have been reluctant to fulfi ll this role in the area of immigration. In abdicating its responsibility to review the application of immigration law in individual cases, the Supreme Court’s chief justification has been to invoke the plenary power doctrine, under which a court will not engage in constitutional scrutiny of actions by the political branches of government; “[t]he Supreme Court explains its deference to Congress and the executive in these cases by relying on the concept of sovereignty, reminding us of the government’s ultimate responsibility to protect the national interest” (Saito 2007, 5). By failing to require a justification for limiting the rights of specific individuals before enforcing immigration law against them, the courts have allowed immigration enforcement to proceed based on determinations that do not consider law in relation to facts but rather look only at the legal categories that define the individuals involved as outsiders. In many immigration cases, the relationship between law and fact has become compounded to the point that legal definitions such as “aggravated felon” are determinative to the exclusion of all other facts. The system is a dichotomy based on status rather than a context-specific analysis based on the individual. This has led to anomalous results, such as individuals who have been convicted of minor offenses such as misdemeanor shoplift ing, who have never served jail time for the offense, being branded aggravated felons, with life-altering consequences for them and their families. The role the plenary power doctrine plays in preventing individuals from having their rights considered is made clear in a report issued by the Center for Immigration Studies (CIS), an organization that advocates for strict immigration restrictions and enforcement and raised concerns that pro-immigrant rights organizations were attempting to erode the application of the plenary power doctrine. In the report, CIS argued that the “attempt at erasing the plenary power must not go unaddressed. Without the plenary power doctrine, the judicial branch—rather than elected members of the political branches— would be in control of much of the nation’s immigration system as courts apply constitutional or ‘constitutional-like’ standards to all exclusion and deportation cases” (Feere 2009, 2). Thus, the plenary power doctrine, with its

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singular focus on the recognition of sovereign authority, is the regulation of population in its most Hobbesian sense. The power of the sovereign and its protection is simultaneously the goal of, the justification for, and the authority for the regulation, and there is no need to consider how individual rights or experiences are affected. In this sense, the plenary power doctrine, and much of immigration law, fits within what Agamben called a “state of exception.” Agamben characterized the state of exception as “an attempt to include the exception itself within the juridical order by creating a zone of indistinction in which fact and law coincide” (Agamben 2005, 26). Looking back at the origin of the plenary power doctrine, the rationale for the abdication of judicial review in the area of immigration law, as expressed in Chae Chan Ping v. United States (the Chinese Exclusion Case), was that the sovereign power of the nation could be executed to “preserve its independence, and give security against foreign aggression and encroachment.”6 The Court’s decision not to act on Chae’s claim that his due process rights were violated by the Scott Act of 1888 retroactively revoking the reentry permits of Chinese who resided in the United States was not premised on a factual or a legal determination that his rights had not been violated. Rather, the Court’s decision was based on acquiescence to that violation of rights as an exercise of sovereign power, specifically an act of sovereign power to defend the nation from an outside threat. Paradoxically, up until the Scott Act rescinded Chae’s reentry permit, he was not an outsider but someone legally entitled to enter and reside in the United States; thus, the condition the Court relied on in upholding the Scott Act—security from foreign encroachment—did not exist in Chae’s case at the time the law was passed because Chae’s outsider status was created by the Scott Act itself. The case is a quintessential example of Agamben’s “zone of indistinction in which fact and law coincide” (Agamben 2005, 26). The Scott Act was upheld not based on external facts or independent analysis of the law but because it provided both its own justification for being upheld, by defining the Chinese as an external enemy, as well as its own material facts by redefining Chae from the status of resident to that of an outsider. For Agamben, “the paradox of sovereignty consists in the fact that the sovereign is, at the same time, outside and inside the juridical order” (Agamben 1998, 15), and it is impossible to determine if the necessity proceeds law or whether the necessity originates from the law, because the origin of the necessity is at “a threshold where fact and law seem to become undecidable” (Agamben 2005, 29). According to Agamben, the sover-

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eign has not only the right to act in the event of a threat but to declare whether such a threat exists, because “necessity clearly entails a subjective judgment, and that obviously the only circumstances that are necessary and objective are those that are declared to be so” (Agamben 2005, 30). Because the exercise of sovereign power is “at the same time, outside and inside the juridical order” (Agamben 1998, 15), “one of the paradoxes of the state of exception lies in the fact that in the state of exception it is impossible to distinguish transgressions of the law from the execution of the law” (Agamben 1998, 57). Agamben’s idea that the state of exception is “a zone of indistinction between . . . exception and rule,” where “the very concepts of subjective rights and judicial protection no longer [make] sense” (Agamben 1998, 170–71), can describe much of the application of immigration law. Legislatively, categories of deportable and excludable people, which bear little relationship to levels of personal culpability, determine the fates of individuals with no opportunity for them to have their own circumstances considered. At the same time, a program like Parole in Place (PIP) was created to protect military families from the severe consequences of these immigration laws at the behest of the very same congresspeople who created those laws based on the sole justification that it was needed to protect the sovereign’s military interest (see Chapter 3). Here is a situation where the law as drafted is deemed too harsh to be suffered by military families, so a policy to issue parole is invoked for their benefit alone. In a case such as this, it is indeed difficult to determine if the law is being applied (using the parole statute) or ignored (not enforcing the prohibition on entry without inspection), but what is certain is that the PIP policy is an exception outside the standard legislative or juridical process that is not available to other deserving immigrants. It is an exception rooted in the recognition that current immigration laws are too strict, too punitive, and too inflexible to apply to military families without actually having to consider if and how the laws are too strict, too punitive, and too inflexible for other families. Agamben’s formulation of the state of exception is relevant and illuminating as applied to the prerogative power that is granted to the political branches of government by the plenary power doctrine, but the picture he paints is one in which the sovereign is free of virtually all constraints; as he says, “The normative aspect of law can . . . be obliterated and contradicted with impunity by a governmental violence” (Agamben 2005, 87). Such a view does not fully represent the practice in immigration proceedings and federal courts. Although

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there are, to be sure, numerous instances when the unvarnished assertion of sovereign power determines the outcome of cases to the exclusion of other factors, there are also instances when claims rooted in constitutional rights, due process, and fairness find purchase and are able to ameliorate the substantive content of immigration law both in individual cases and systemically. Additionally, Agamben’s presentation discounts the possibility of other forces of resistance having influence in the formulation or application of law and is particularly dismissive of the legal profession’s ability to resist such states of exception. In the concept of liberal democracy, which is meant to order the sovereign power of the United States, majoritarian rule is only one principle among three irreducible elements. In addition, there also need to be anti-majoritarian checks on the actions of the majority and their representatives in the form of respect for the individual rights of political minorities and in the form of checks and balances through the separation of powers. What this book demonstrates is that in the context of immigration law, both respect for the individual rights of minorities and the protection of an impartial judiciary are generally absent. Moreover, the withholding of these essential democratic protections and institutions is justified by claims that immigrants are not members of the body politic and are therefore subject to a state of exception that justifies not recognizing their rights. The circular logic of this state of exception makes it impossible for individuals to demonstrate that they are not strangers but rather community members based on historical, economic, social, political, and personal relationships, and it denies them the ability to appeal to an impartial decision maker to adjudicate these claims. As Jeremy Bentham pejoratively noted in the epigraph that begins this book, “The power of the lawyer is in the uncertainty of the law.” Saskia Sassen has more generously observed the transformative power of uncertainty in legal and political institutions: “Incompleteness enables a formal institution to incorporate change, including change that is potentially lethal to that institution, without losing its formal character. . . . These types of institutions can be brought down, no matter how powerful their formalization and their supporters” (Sassen 2011, 6–7). Sassen’s view of how institutional change can come about is very much in line with Foucault’s ideas of how power operates and is resisted. For Foucault, power is dispersed and omnipresent, and we misrecognize crystallizations of power, such as the sovereign or the law, as sources of power rather than as aggregate products of power. As the biopolitical dis-

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courses of division, fear, and entitlement prevalent in Trump’s postelection revanchist anti-immigration policy demonstrate, the actual thickness or permeability of the socio-legal division between citizens and noncitizens matters significantly and is affected by social and political forces outside the law itself. Thus, there is not an external point of resistance from which to attack repressive structures: “Just as the network of power relations ends by forming a dense web that passes through apparatus and institutions, without being exactly localized in them, so too the points of resistance traverses social stratifications and individual unities” (Foucault 1978, 96). As a result, “[w]here there is power, there is resistance, and yet, or rather consequently, this resistance is never in a position of exteriority in relation to power” (Foucault 1978, 95). Although Foucault recognizes that there are occasionally “radical ruptures,” more often it is “the strategic codification of these points of resistance that makes revolution possible, somewhat similar to the way in which the state relies on the institutional integration of power relationships” (Foucault 1978, 96). Ideally, law is the sort of process in which these sorts of flows of power and resistance can test the merit of society’s formal institutions against the empirical reality of lived experience. Current immigration law, however, is not that sort of law. Law should be rooted in an actual reflection of social relationships, not merely abstract rules and decrees. Law should have a level of mutuality to society and people such that it reflects as well as dictates social behavior and norms. To achieve this, law must balance latitude and flexibility with certainty and determinacy so that it is able to admit and consider a plurality of norms and principles. Under this sort of structure, fundamental change to core institutions is not just possible but inevitable. The path from Bowers to Lawrence to Obergefell was laid with the adoption of a more commodious jurisprudence that accepted that the power to define core social institutions comes with the obligation to recognize when the existing limits of those institutions have been overcome by social resistance and change (see Chapter 2). The work of immigration advocates and lawyers, such as those at NYIFUP, along with the ethnographic work of anthropologists, illustrates the thick connections migrants facing detention and deportation have to U.S. society and demonstrates how those connections are severed with little concern for individual rights or consequences. Reforms based on information from this work should focus on creating a system that provides respect for individual rights, adjudicated by impartial and independent magistrates, under laws that

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can take account of the individual contexts and equities of the people who face banishment from their homes, communities, and families.

Law, Society, and Immigration Law There are three related aspects to my criticism of U.S. immigration law, policy, and enforcement. First, throughout history, immigration laws and policies have been created to address perceived crises in the economy, public safety, and the racial or cultural makeup of the United States, or some combination of these fears. Often these fears have taken the form of a moral panic in which migrants are painted in the most negative terms possible. Many of these laws, meant to address a specific perceived threat, have in practice broadly encompassed individuals who do not resemble the threat that the laws were initially enacted to address. For example, the breadth of the “criminal alien” provisions of the laws adopted in 1996 covers individuals who have only minor criminal offenses. This process is uniquely undemocratic in that the political branches are expressly seeking to regulate noncitizens for the alleged benefit of their citizen constituents. Second, the courts have deferred to the political branches of government in the creation and implementation of these laws, thereby depriving migrants of the protection that the judicial branch is, at least in theory, supposed to afford political minorities. This history is apparent from the time that it was held that the federal government had plenary power to exclude the Chinese “hordes” in Chae Chan Ping v. United States, to the use of immigration laws to detain Arab, Muslim, and South Asian men following the 9/11 attacks without access to counsel or any determination that they presented a threat to public safety, to the ratification of mandatory detention in Demore v. Kim,7 to the Supreme Court’s ratification of Trump’s travel ban. Finally, these two aspects of the law combine to create a situation in the application of immigration laws in which the individual circumstances and equities of a person’s life are often deemed irrelevant in determining whether that individual will be permitted to live in the United States. Law, and its enforcement, has a major effect on how immigrants, particularly undocumented immigrants, are perceived and treated in society. Law is not separate and apart from society; it exists as a unique institution within society, both effecting social change and being directed by social change. As the history of immigration law shows, which immigrants were welcomed or rejected changed depending on economic, political, and social factors, and the definitions of what sorts of immigration were permissible or excludable dif-

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fered over time. Since the 1990s, hostile attitudes toward undocumented immigrants have been represented in laws to a greater and greater extent. These laws have resulted in greater numbers of individuals being detained and deported and a significant increase in the militarization of the border. These increased enforcement activities have not merely reflected legal mandates of these new laws, they have conditioned social expectations regarding what legal norms are, who is subject to immigration law enforcement, and the manner in which that enforcement should take place. The implementation of the 1996 laws resulted in a massive increase in enforcement and detention. The number of deportations has increased steadily, from 69,680 in 1996 to 435,498 in 2013 (see Chapter 2). Of those people deported, a significant number are the parents of U.S. citizen children. One study showed that in the first six months of 2011, 46,000 parents of U.S. citizen children were deported and that these deportations resulted in more than 5,000 children being placed in the foster care system (Wessler 2011). As the Trump administration increases interior enforcement, there is even greater potential for large-scale disruption of families, because at least 9.5 million people live in mixed-status families, with at least 5.5 million children having at least one parent who is undocumented (Preston 2011). The number of immigrants held in jails and other detention centers for violating immigration laws increased exponentially, and many of those detained were held in conditions where abuse and neglect were commonplace (Dow 2004). In 1996, approximately 20,000 people were held in detention. By 2012, the number had reached approximately 478,000 (see Chapter 2). When the 1996 amendments were passed, there were 6,280 beds available for immigration detention; by 2012, the daily average number of individuals in detention had increased to 32,953, meaning more people were held on a single night than were held for the entire year of 1996 (Siskin 2012). This massive increase in deportations and detentions based on a person’s immigration status reflects the “war on illegal immigration” approach that has existed for the past two decades. The misery and suffering it brings to immigrants and their families is rooted in social theodicy that justifies the rightlessness of immigrants by framing them as threatening outsiders who do not deserve the same rights or considerations as decent members of society. In some respects, this enforcement could be self-justifying and self-perpetuating, because many people may assume that surely the government would not go to all of the effort and expense to detain these individuals and treat them like

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threats to public safety if it were not necessary. The Trump administration has taken this to new extremes by repeatedly making false claims about the number of crimes committed by noncitizens (Bump 2018). These policies have also become entrenched sources of income for both private prison companies and county jails that contract with the federal government to incarcerate immigration detainees and receive a significant portion of the more than $3 billion that the federal government spends on immigration detention annually (National Immigration Forum 2018a; Selway and Newkirk 2013). This trend has continued, and on November 9, 2017, the day after Trump’s election, a billion dollars of market equity was added to private prison corporations that run immigration detention facilities, with the price of Corrections Corporation of America shares going up nearly 50 percent in a single day as investors anticipated increasing numbers of immigrant detentions (Wieczner 2016). Indeed, the treatment of migrants over the past two decades is an important part of the broader development of the contemporary U.S. carceral state (Kalhan 2010). In part because of these changes in law and enforcement policy, there is a tendency to think of immigration law as a monolithic and punitive power. This view is understandable and in many respects justified; however, it is incomplete and thus fails to identify not only the problematic aspects of immigration law but also the areas where resistance and change are possible. The preceding chapters illustrate a range of situations encountered in immigration law, from individuals who have legal avenues to present their personal circumstances and equities to those individuals with no available avenues of relief because of the strictures of current law. The difficulties people face stemming from immigration law can be divided into two types: (1) cases where the bureaucratic strictures and structural impediments make obtaining relief difficult but not impossible to obtain and (2) cases where the problem stems from the categorical inflexibility of immigration law, which makes obtaining relief seemingly impossible. Examples of the first type are cases where individuals are at risk of deportation but nonetheless have some avenue of relief open to them, such as applying for asylum or cancellation of removal. In this category, individuals still face considerable obstacles, such as the one-year statute of limitations for asylum applicants (see Chapter 3) or obtaining the necessary legal assistance to be able to present a persuasive case, but they at least still have an opportunity to have their individual circumstances considered. As discussed in the preceding chapters, the

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burdens faced by individuals in this category can be severe, such as the difficulties faced by detained and unrepresented individuals facing deportation when contrasted with nondetained and represented individuals. In the second category are those individuals who are irredeemably excludable from U.S. society and who will be removed even if it means separating them from their families after they have been living in the United States for decades. These include individuals with even minor drug offenses, those who fall under the expanded definition of aggravated felon, and those who simply have no way to obtain a lawful status (see Chapter 4). In these cases, difficulties arise because of specific provisions of immigration law mandate deportation and because current laws have reduced the amount of discretion that immigration judges have to grant relief regardless of individual circumstances and equities. The problems created by immigration law in the first category and in the second category are fundamentally different, and they raise different critiques and invite different solutions. As Lenni Benson has argued, “‘Due process’ alone without a corresponding robust limit on government power to deport may be insufficient. The process may always seem unfair and stacked in favor of the government if Congress does not provide any formal mechanism for individual clemency or adequate paths to regularization of status” (Benson 2017, 337). The first category of cases, where an individual may have a chance to establish a claim for relief, is in some ways more complicated. Even if the possibility for relief exists, the individual may still need to navigate the procedural complexities of the system, attempt to understand and comply with the legal requirements of the available relief, and face the possibility of having her case heard by an immigration judge who is not truly impartial, independent, and competent. Again, some of the critical problems faced by individuals seeking relief from deportation also stem from structural impediments created by the 1996 amendments. For instance, the increase in the grounds on which individuals can or, in some cases, must be detained during their case creates a significant burden for many individuals and prevents them from being able to present the merits of their cases. As discussed in Chapter 4, being detained affects an individual’s ability to both obtain and pay for legal assistance and is therefore the ultimate determination of whether someone receives a favorable outcome. In one study in New York City, before NYIFUP was established, 60 percent of detained individuals did not have legal representation, and the consequences of being unrepresented were significant. For instance, 74 percent of individuals with legal representation who were not detained had favor-

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able outcomes, while only 3 percent of individuals who were unrepresented and in detention had favorable outcomes (New York Immigrant Representation Study Steering Committee 2011). Given the complexity of immigration law, it is unrealistic to assume unrepresented individuals are receiving a fair opportunity to be heard. This was illustrated by the case of Rachael’s client, discussed in Chapter 4, who had previously been granted asylum and who had been living in the United States for decades as a lawful permanent resident but was being threatened with removal as an “aggravated felon” for having sold untaxed cigarettes. Once this man obtained legal representation, his lawyer was able to demonstrate that his conviction was not a deportable offense, and he was eventually released from detention. But outside of cities like New York City, where the City Council has created NYIFUP, there is nothing in the current immigration system that requires that an individual facing deportation receive legal assistance, and the current detention policy actually makes it less likely that individuals will be able to obtain legal assistance. A nationwide study looking at representation between 2007 and 2012 showed that only 14 percent of immigrants being detained while facing deportation were represented and only 37 percent of all immigrants facing deportation were represented (Eagly and Shafer 2015). Since that time, the rate of representation has improved, but the lack of right to legal counsel remains a fundamental barrier to achieving due process in immigration court. Many of the sorts of cases that fall within the second category—that is, individuals whose equities are pretermitted by the strictures of current law— result from the 1996 amendments to the INA. For instance, the abolishment of §212(c) relief, as discussed in Chapter 4, has left many green card holders who have criminal convictions without any possible relief. As illustrated by Jane’s case, which Anna recounted, being able to apply for relief under §212(c) allowed Jane to show the immigration judge that there was more to her as a person than a single criminal offense that would have made her deportable. Through that process, Jane was able to show the judge that her arrest arose out of an abusive relationship, that it was her only offense, that she had taken every opportunity to better herself through educational and professional achievement, and that no public benefit could result from deporting her from the only country she had known since her arrival as a six-year-old. Under the INA, as amended by the 1996 laws, all of those factors would be irrelevant, and the immigration judge would have had no choice but to order Jane deported. Additionally, the 1996 amendments replaced the more generous form of re-

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lief, called suspension of deportation, for undocumented individuals who had long-standing ties to the United States with the much more limited cancellation of removal for undocumented residents, which requires ten years of continual presence in the United States, a determination of good moral character, and a showing of “exceptional and extremely unusual hardship” to a qualifying U.S. citizen or lawful permanent resident relative. The high threshold of this law means that a person who has a family and good character but who has lived in the United States for only nine and a half years would simply be ineligible for relief from deportation. Moreover, because the hardship standard is set so high, the vast majority of undocumented immigrants are unable to meet it even if they have lived in the United States for decades and even if they have U.S. citizen children and spouses. The problem with the current limitations of the laws is reflected in various quotes from federal judges who lament about the cases before them that “our cancellation of removal statute does not honor the concept of family values and the need to keep families together” and that “this is one of those difficult cases where the law yields a conclusion that is onerous and, at its core, inequitable” (see Chapter 1). For most immigration lawyers, having a system where many cases are decided without reference to the facts of the individual case and where immigration judges do not have the power to provide relief when circumstances and equity warrant it is the main flaw of the current system. As one lawyer put it, “Judges need to have discretion again. If you are not going to do that, don’t call them judges, okay, because there’s no point.” NYIFUP obviously does not solve all the problems with the current immigration system; as Peter Markowitz, one of its original architects and proponents, said, it “replaced the horrific dysfunction of the immigration courts with the normal dysfunction of the criminal courts.” Nevertheless, NYIFUP shows that there are creative ways to expand possibilities in both categories of cases. Clearly, it addresses the cases in the first category of immigrants who have been unable to defend against deportation because they lacked adequate legal counsel and who are now provided a lawyer with the ability to develop the legal and factual arguments in their cases. As importantly, the ability to win precedent-setting cases regarding what due process requires has the potential to alter the structure of immigration court proceedings in ways that may improve immigrants’ chances of prevailing in their cases. Moreover, having an institution of competent lawyers continually raising original arguments as to the merits of their clients’ positions educates immigration judges

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and alters the culture of immigration court, with the goal of moving toward a “new normal,” in which immigrants receive greater respect. Even with regard to the second category of cases, NYIFUP attorneys are able to challenge whether their clients are really subject to particular inflexible provisions of the current immigration law by contesting the substantive meaning of the categories and the breadth of their application, such as limiting the scope of the definition of “aggravated felon,” as in the Harbin and Hylton cases discussed in Chapter 5. Additionally, they are beginning to mount challenges to the constitutionality of some of the provisions of the 1996 laws, such as occurred in the Lora case. Even in cases where immigration judges have discretion to grant relief to an individual facing deportation, an additional issue is the manner in which some immigration judges exercise that discretion and the ability to challenge those decisions on appeal. Many lawyers expressed the opinion that while they felt most immigration judges were fair and open-minded at the beginning of a case, some judges were predisposed to deny relief even when it was available. This impression is supported by one study of New York immigration judges, which showed that overall, New York judges have a high rate of granting asylum relief, but a few judges have very low rates of granting asylum relief, with one judge approving only 7 percent of cases and another granting only 8 percent (see Chapter 3). It may, on the surface, seem paradoxical to argue that immigration law requires immigration judges to have greater discretion but then criticize the manner in which that discretion is exercised. Here, too, however, there is an issue with how immigration law has been structured by amendments to the INA in both the 1996 amendments and, more recently, with the REAL ID Act of 2005. In reviewing immigration cases, appellate courts have less ability to review decisions made by immigration judges than courts do when reviewing other types of decisions from administrative agencies. Specifically, the scope and standard of review that an appellate court has when reviewing the factual findings made by immigration judges and how judges assess the credibility of an asylum seeker has been narrowed. Similarly, in other non-asylum cases, appellate review has been even more sharply curtailed. Prior to the 1996 amendments, federal courts could review denials of discretionary relief, such as waivers, under an abuse-of-discretion standard of review, meaning that discretionary decisions by immigration judges could be reversed if they were arbitrary, capricious, or based on suppositions that were unsupported by the evidence. After the 1996 amendments, determinations by

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immigration judges regarding an exercise of discretion are not subject to judicial review. The concern is not simply that immigration judges commit errors in the exercise of their discretion—indeed, that happens in every area of law. The problem is that amendments to immigration law have curtailed the ability of appellate courts to review and correct those errors as is possible in other areas of law when judges commit errors. Indeed, this loss of judicial review led Daniel Kanstroom to argue that “1996 may well become known as the year in which the rule of immigration law died” (Kanstroom 1997, 704).

A Citizen’s Guide to U.S. Immigration Law Lawyers, academics, activists, journalists, and migrants themselves have demonstrated the inflexible, disproportionate, and inhumane nature of existing immigration law and enforcement policies. Although the current system of immigration law enforcement is as complicated as it is harsh, this book attempts to elucidate what every U.S. citizen should understand about the process, what is wrong with it, and what can be done to reform it. Immigration law is a profoundly undemocratic institution. Politicians, who are in theory beholden to an electorate of citizens, make laws to regulate, incarcerate, and expel noncitizens. Moreover, the courts have exacerbated this state of affairs by stating that the regulation of noncitizens is the domain of the political branches of government, and as a result, the courts have often withheld application of constitutional rights, principles, and protections. Therefore, changes to these laws and practices must come from the demands of citizens who speak out against the unjust and inhumane laws that are put forth in their names. While this book has in part demonstrated that in many instances lawyers are powerless to introduce the facts of their individual clients’ lives into the determination of whether they will be deported, there are other areas where they are able to influence the outcomes of their clients’ cases. Between these two poles, one is able to map those areas of law that are intractable as well as those that are more flexible. From this map, one can chart a course that will allow for greater consideration of all of the elements and factors in a given case such that more reasonable and fair outcomes are possible. The problems with U.S. immigration law outlined in this book are interlacing strands that amount to a system that does not even promise, much less deliver, results that are consistent, rational, and just. Although these seemingly intractable issues have developed over decades from a variety of social, economic, and historical causes and through numerous political and legal de-

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cisions, it is vital to identify areas where demands for reform should be targeted. The following prescriptions are certainly not the only areas in need of change—and for some parts of the country they are not even the most urgent. They do, however, address the broad structural infirmities identified from a careful ethnographic examination of the immigration enforcement system in New York City.

Establish Due Process in Immigration Courts and Federal Courts Many immigration judges in New York City strive to be fair and open-minded, but there is nothing about the immigration court system that mandates that all judges behave that way. For instance, the disparity between the high asylum grant rates in New York City versus less hospitable jurisdictions, such as Atlanta, shows that the structure of the law and the immigration courts do not require that such a judicial temperament be the norm. Additionally, external and political pressures, such as lack of resources, massive backlogs, administratively mandated productivity quotas, and interference from political actors in the Department of Justice, mean that immigration courts cannot be fair, efficient, and impartial. As has been recommended by numerous organizations for a number of years,8 Congress should use its power under Article I of the Constitution to establish an independent U.S. Immigration Court and Appellate Division that is independent of and not responsive to the influences of law enforcement agencies like the Department of Justice and the Department of Homeland Security. Such a court system would allow for principles of judicial independence to be structurally supported and allow for immigration law to develop based on the actual cases that came before the court rather than based on the ideological commitments of a given attorney general. Additionally, though the federal courts have sometimes intervened to cabin the overbroad application of some immigration statutes, such as by limiting the application of aggravated felony statutes, they have tended to withhold constitutional scrutiny of laws aimed at noncitizens because of the plenary power doctrine. This state of exception places noncitizens outside the Constitution’s protections and thereby makes legislative claims that they are dangerous criminal aliens and potential terrorists beyond factual or rational inquiry, as occurred in the Supreme Court’s decisions on mandatory detention and the Muslim travel ban, for example. An independent U.S. Immigration Court whose decisions were subject to substantive appellate review would allow for the development of immigration law that evaluates the law as ap-

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plied to individual people, rather than categorically condemning people under the law.

Adopt Flexible and Proportional Immigration Laws Previous legislation has created harsh and inflexible penalties and limited due process protections, especially the AEDPA and IIRIRA, which were passed in 1996. These statutes radically changed immigration law by expanding the reasons for which a person could be deported by significantly limiting the discretionary relief that an immigration judge could grant and by limiting the power of the federal courts to review deportation decisions. As a result, the number of removals has increased dramatically. In many cases, people who would seem to have significant factors that should weigh in their favor, such as families and long-term residency in the United States, are rendered deportable, and there is no mechanism to balance the equities involved in their individual cases. This has particularly been the case when lawful permanent residents are facing removal based on a criminal conviction. Although criminal conduct has long been a focus of immigration enforcement, the passage of the 1996 laws broadened the list of conduct that can result in deportation while severely limiting the possibility for discretionary relief. As a result, long-term legal residents of the United States have faced permanent separation from their families and, in some cases, banishment from the only country they have ever known, based on convictions for relatively minor offenses. The chief harm of the 1996 laws in this respect is the elimination of discretion on the part of immigration judges. Immigration judges should be allowed to balance all of the factors in a case, such as the severity of the crime, evidence of rehabilitation, ties to the community, and harm to family members, so that they may arrive at a just and equitable result, and those decisions should be subject to review by appellate courts to ensure that they conform to both the law and constitutional standards.

End Mandatory Detention The 1996 laws should be reformed to eliminate the detention of immigrants who have not been determined to be a flight risk or a danger to the community. The detention provisions of the AEDPA and IIRIRA have resulted in excessive and costly detention of individuals facing immigration proceedings. The current detention policy creates emotional and financial hardships to families, limits access to legal representation, and costs U.S. taxpayers more

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than $3 billion a year. Since the adoption of the 1996 laws, the average number of people held in immigration detention each day has gone up from 6,785 in 1994 to 38,106 in 2017. Studies have shown that an individual’s chance of success in immigration court hinges largely on whether he or she is represented and whether he or she is detained. In a New York study, individuals facing removal in immigration court who are not detained and who have legal representation prevail 74 percent of the time, while individuals who are detained and unrepresented prevail only 3 percent of the time (New York Immigrant Representation Study Steering Committee 2011). As one immigration lawyer pointed out, the current practice of incarcerating hundreds of thousands of people without providing legal representation is unprecedented and “a pretty crazy kind of system” (see Chapter 4).

Fair Immigration Proceedings Require the Right to Counsel There should be a right to legal counsel for indigent immigrants facing removal in immigration court. Someone in deportation proceedings faces complex and confusing immigration laws and procedures, a trained government attorney, and the possibility of banishment from home and family. Nonetheless, significant numbers of people face removal without access to legal assistance. A study of the impact of NYIFUP providing universal legal representation to indigent detained immigrants showed that successful case outcomes increased by over 1,000 percent (Stave et al. 2017). As the examples in this book show, for an immigrant facing removal, having access to legal representation is an irreducible minimum requirement for obtaining justice and the possibility of relief as well as being allowed to remain in the United States with one’s family. Even though federal law does not require it, the fact that the New York City Council chose to provide indigent legal defense in immigration court shows there are creative ways to rewrite prevailing narratives and to make substantial interventions that benefit individual migrants and their families while also making systemic changes. The advent of NYIFUP, and other programs like it around the country, is truly a remarkable indictment of the current immigration system. It shows that local municipalities such as New York City recognize that allocating scarce funding is the only way to defend its community members and families from the destructive effects of unreasonable federal immigration laws and policies. At the same time, it is also a

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clear example of how contestations about the relative significance of sovereign rights and individual rights, the meaning of rule of law, and the validity of conflicting narratives of membership can substantially alter the meaning and content of the formal institution of the immigration enforcement system from within the immigration system itself.

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Notes

Introduction . Jeremy Bentham wrote this bon mot in an 1808 letter to James Mackintosh; however, he was not advocating this state of affairs. Indeed, Bentham was famously critical both of lawyers and of the uncertainty of the English legal system he sought to reform and codify (Bentham 1843, 10:429). . See Trump v. Hawaii, 138 S. Ct. 2392, 2492 (2018) (Sotomayor, J., dissenting). . Executive Order No. 13769, 82 Fed. Reg. 8977 (2017) (suspending entry for 90 days for foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen). . See Trump v. Hawaii, 138 S. Ct. at 2436 (Sotomayor, J., dissenting). . See Executive Order No. 13780, 82 Fed. Reg. 13209 (2017). Changes from EO-1 in the EO-2 version of the ban included removing Iraqi nationals from the banned list, allowing travel by individuals previously granted visas, and imposing a 120-day suspension on refugee admissions, followed by a permanent reduction in the overall annual number of refugee admissions. . Proclamation No. 9645, 82 Fed. Reg. 45161 (2017). The proclamation’s inclusion of nationals from North Korea and government officials from Venezuela covered only a handful of visa applicants and was “insubstantial, if not entirely symbolic.” Trump v. Hawaii, 138 S. Ct. at 2442 (Sotomayor, J., dissenting). . See Trump v. Hawaii, 138 S. Ct. at 2431–33 (Breyer, J., dissenting). In his dissenting opinion, Justice Breyer listed evidence that demonstrated that only “a miniscule percentage of those likely eligible for visas” received waivers and testimony from a consular official who admitted that consular officials did not actually have discretion to grant waivers and that the waiver provision was simply “window dressing.” . Trump v. Hawaii, 138 S. Ct. at 2418. . Trump v. Hawaii, 138 S. Ct. at 2418 (citing Fiallo v. Bell, 430 U.S. 787, 792 (1977)). . Escobar-Grijalva v. I.N.S., 206 F.3d 1331, 1334 (9th Cir. 2000). . The INS was the branch of the Department of Justice that administered immigration and naturalization until 2003. INS was abolished in the restructuring that occurred in the wake of 9/11, and its duties were transferred to three agencies in the newly created Department of Homeland Security: (1) U.S. Citizenship and Immigra-

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tion Service (USCIS), which is responsible for adjudicating applications for immigration benefits, such as permanent resident status and naturalization; (2) Immigration and Customs Enforcement (ICE), which is responsible for enforcement and policing of immigration and customs laws; and (3) Customs and Border Protection (CBP), which is responsible for enforcing immigration and customs laws at the border. . Chae Chan Ping v. United States, 130 U.S. 581 (1889). . Demore v. Kim, 538 U.S. 510, 521 (2003). . Saskia Sassen has recognized this paradox, observing, “There is a strong tendency in immigration policy in developed countries to reduce the process to the actions of individuals. The individual is the site for accountability and enforcement. Yet it is now increasingly being recognized that international migrations are embedded in larger geopolitical and transnational economic dynamics” (Sassen 1999, 17). . Massey makes a similar point, observing that “[c]ontrary to common perceptions, international migration does not stem from a lack of economic development, but from development itself . . . The fact of the matter is that no nation has yet undergone economic development without a massive displacement of people from traditional livelihoods” (Douglas Massey, Durand, and Malone 2002, 144). . Sassen argues that U.S. business, military, and diplomatic activities create material and ideological linkages that induce migration and that this explains why immigration occurs from certain countries and not others, even if they share common economic conditions that neoclassical theorists would expect to impel migration equally. Sassen argues, “The presence of foreign plants not only brings the United States or any other ‘western’ country closer, but ‘westernizes’ the less developed country and its people. Emigration to the United States emerges as an option” (1988, 20). . Massey, synthetizing a number of previous studies, identified three main factors that lead to restrictionist immigration policies: (1) macroeconomic health, such as the relative wages of unskilled workers and unemployment rates; (2) volume of immigration; and (3) ideological currents such as desire for social conformity (Douglas Massey 2009, 32–33).

Chapter 1 . Throughout this book both individual migrants whose cases are discussed and the lawyers who were interviewed about the clients they represent will be identified by pseudonyms. The only exception are the lawyers I interviewed in Chapter 5 regarding the creation of the New York Immigrant Family Unity Project, who are not discussing the cases of individual clients. . United States v. Juvenile Male #1, 47 F.3d 68, 71 (2d Cir. 1995). . In fact, the maximum penalty in family court was five years confinement, which is what Bosket was sentenced to upon pleading guilty to the murders. . New York’s 2017 Raise the Age Act reformed some of the harshest aspects of New York’s juvenile justice system by no longer automatically prosecuting all sixteenand seventeen-year-olds as adults. . See N.Y. Crim. Pro. L. §§720.10 et seq.

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. Vega v. Bell, 47 N.Y.2d 543, 553 (NY 1979). . 543 U.S. 551 (2005) (death penalty unconstitutional for acts committed as a juvenile). . 560 U.S. 48 (2010) (sentence of life without possibility of parole is unconstitutional for non-murder juvenile offenses). . 567 U.S. 460 (2012) (mandatory sentence of life without possibility of parole is unconstitutional for juvenile murder conviction). . Department of Homeland Security. Immigration Enforcement Actions: 2013. Accessed at https://www.dhs.gov/sites/default/fi les/publications/Enforcement_Actions _2013.pdf. . U.S. v. Christopher, 239 F.3d 1191 (11th Cir. 2001). . Department of Homeland Security. Immigration Enforcement Actions: 2012. Available at https://www.dhs.gov/sites/default/fi les/publications/ois_enforcement_ar _2012_1.pdf. . Demore v. Kim, 538 U.S. 510, 521 (2003). . 567 U.S. 387, 396 (2012). . Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr., J., D.C. Circuit). . Yin-Shing Woo v. United States, 288 F.2d 434 (2d Cir. 1961). . Id. . Id. . Id. . The similarity of the views of Hand and Cohen are not merely coincidental. In a letter to Cohen responding to one of Cohen’s papers on the topic of judicial discretion, Hand stated, “A judge’s discretion is the point in his system where he takes his nourishment directly from his mother—ethics.” (Jordon 2013, 48). . Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1014 (9th Cir. 2005) (Pregerson, J., dissenting). . Id. . Martinez v. United States Att’y Gen., 413 F. App’x 163 (11th Cir. 2011). . Cheruku v. Att’y Gen. of the United States, 662 F.3d 198, 209 (3d Cir. 2011) (McKee, C.J., concurring). . According to polls conducted by Quinnipiac University between 2012 and 2017, a large majority of respondents have consistently believed that undocumented residents of the United States should have an opportunity to stay in the United States. https://poll.qu.edu/images/polling/us/us09282017_trends_Uj32ghhx.pdf (accessed February 18, 2018). . 543 U.S. 220 (2005). . Gall v. United States, 552 U.S. 38, 50 (2007). . Rita v. United States, 551 U.S. 338, 357 (2007). . Gall v. United States, 552 U.S. at 52 (quoting Koon v. United States, 518 U.S. 81, 113 (1996)). Similarly, the Supreme Court has found that a system that mandates impo-

174

Notes to Chapters 1 and 2

sition of the death penalty for certain offenses without allowing the weighing of individual circumstances is unconstitutional because it excluded from consideration “the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind” and fails to treat defendants “as uniquely individual human beings.” Woodson v. North Carolina, 428 U.S. 280, 304 (1976).

Chapter 2 . United States Reports is the official published record of the decisions, orders, and proceedings of the U.S. Supreme Court. . 478 U.S. 186 (1986). . Bowers, 478 U.S. at 197 (Burger, J., concurring). . 539 U.S. 558 (2003). . Lawrence, 539 U.S. at 568. . 135 S. Ct. 2584 (2015). . Under the Trump administration, even this minor acknowledgement of the United States’ immigrant history is apparently unacceptable, as the term “nation of immigrants” was removed from the U.S. Citizenship and Immigration Services’ mission statement in February 2018 (Rezaian 2018). . 92 U.S. 259 (1875). . 130 U.S. 581 (1889). . 149 U.S. 698 (1893). . Chae Chan Ping, 130 U.S. at 609. . Chae Chan Ping, 130 U.S. at 606. . Chae Chan Ping, 130 U.S. at 603. . 198 U.S. 253 (1905). . The Dillingham Commission was supposed to issue a forty-second volume, an index to the previous volumes, but this volume was never issued. . 260 U.S. 178 (1922). . 261 U.S. 204 (1923). . In re Rodriguez, 81 F. 337 (D.C.Tex. 1897). . 475 U.S. 202 (1982). . Plyler, 475 U.S. at 218–19. . It should be noted, however, that even the dissenting justices stated that if they were legislators rather than judges, as a matter of public policy, they would be in favor of providing publicly funded education, regardless of immigration status. . Yearbook of Immigration Statistics: 2014. Department of Homeland Security, Office of Immigration Statistics. Accessed at https://www.dhs.gov/sites/default/fi les /publications/ois_yb_2014.pdf. . Yearbook of Immigration Statistics: 2014. Department of Homeland Security, Office of Immigration Statistics. Accessed at https://www.dhs.gov/immigration-statis tics/yearbook/2017/table39. . Executive Order 13767, 82 Fed. Reg. 8793 (2017). . 533 U.S. 678 (2001).

Notes to Chapters 2 and 3

. . . .

175

538 U.S. 510 (2003). Demore v. Kim, 538 U.S. at 521. Executive Order No. 13768, 82 Fed. Reg. 8799. Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).

Chapter 3 . Notarios refers to individuals who hold themselves out as qualified to provide immigration law advice even though they are not lawyers or authorized to practice immigration law. In many Latin American countries the term notario publico refers to an individual who has received legal training and is authorized to provide legal representation. Because of this, some unscrupulous notary publics are able to fool immigrants into believing they are legal experts authorized to practice immigration law. Notario fraud results in immigrants both spending their hard-earned money on dubious legal assistance and being placed in legal jeopardy from negligent representation. . Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005). . Wang v. Attorney General, 423 F.3d 260, 269 (3d Cir. 2005). . Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1054 (9th Cir. 2005). . The one-year bar was passed in 1996 as part of IIRIRA and went into effect on April 1, 1997. . “Affirmative” asylum seekers are individuals who come forward voluntarily and apply to the Department of Homeland Security (DHS) for asylum, as opposed to “defensive” asylum seekers, who are individuals who apply only after being placed in removal proceedings. . ICE Detention and Removal Operations Policy and Procedure §20.8(b)(2) (2006). . INA §245(a). . Under INA §212(a)(9)(B) someone who leaves the United States after being unlawfully present in the United States for more than six months is barred from returning for three years, and someone who leaves after being unlawfully present for more than a year is barred from returning for ten years. . It should be noted that it is possible to obtain a waiver of this ten-year bar if the would-be immigrant can show that their U.S. citizen or lawful permanent resident spouse or parent will suffer extreme hardship if they are barred from returning to the United States. . INA §212(d)(5)(A). . A USCIS Policy Memorandum discusses the authority for the Parole in Place policy and cites the memorandum authorizing paroled Cuban immigrants to adjust status as the precedent for the policy. See “Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i),” dated November 15, 2013 (PM-602-0091). . INA §212(d).

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Notes to Chapters 3 and 4

. Op. cite FN 12 at 2. . Op. cite FN 12 at 2. . INA §235(a)(1). . “Border Security and Immigration Enforcement Improvements,” Executive Order No. 13767, 82 Fed. Reg. 8793 (2017).

Chapter 4 . ICE arresting people in New York courts became such a hindrance to the operation of the court system that the New York courts banned ICE from arresting individuals in courthouses unless they had an arrest warrant from a federal judge (Hamilton 2019). . While it is well documented that these principles are often subverted in the criminal justice context by invidious considerations of race and by the material inequities of class (see Alexander 2010), it still provides a basis by which to measure the inequities that arise due to race and class, as opposed to the situation in immigration court, where the failure to consider humanity and the equities of an individual is simply standard procedure. . 543 U.S. 220 (2005). . Padilla v. Kentucky, 559 U.S. 356, 360 (2010) (citations omitted). . National Visa Bulletin, June 2019, Number 30, Volume X. U.S. Department of State, Washington, D.C. . For instance, the legal scholar John Chipman Gray noted, “If hard cases make bad law, bad law makes hard cases. The temptation for professional men, judges and jurists alike, is to subordinate the welfare of persons subject to a system of Law to the logical coherency of the system itself . . .” (Gray 1909, 263). . INA §237(a)(2)(B)(i). . Regardless of how one feels about the appropriateness or inappropriateness of the current criminal justice approach to drug use, it is clear that in other areas of life, past drug use does not disqualify individuals from holding positions of trust and authority, such as becoming an FBI agent or even the president of the United States (see Morawetz 2008). Although there are other serious consequences that flow from drug convictions, such as limits on the ability to obtain financial aid for college, immigration consequences are among the harshest. . 533 U.S. 289 (2001). . INS v. St. Cyr, 533 U.S. at 326. . Under the Trump administration, the availability of this sort of prosecutorial discretion has been sharply curtailed (American Immigration Council 2018). . 372 U.S. 335 (1963). . Bridges v. Wixon, 326 U.S. 135, 147 (1945). . In its report to Congress on the cost of detention, the Department of Homeland Security estimated the average daily cost of detention to be $122 per bed. A report by the National Immigration Forum estimates that the cost would be $166 per detainee if ICE’s payroll and operational costs were included in the calculation (Na-

Notes to Chapters 4, 5, and Conclusion

177

tional Immigration Forum 2011). By fiscal year 2018, this rate went up to $208 per day per detainee, meaning that DHS spends $8.43 million a day, or $3.076 billion annually, on immigration detention (National Immigration Forum 2018a).

Chapter 5 . INA §292. . 372 U.S. 335, 344 (1963). . In previous chapters, in which the lawyers I interviewed were discussing specific examples of actual cases they had handled, I used pseudonyms for both the clients and lawyers mentioned to ensure confidentiality. Since this chapter discusses the formation and operation of NYIFUP and not specific cases, these attorneys are not kept anonymous. . Vera Institute for Justice website at http://www.vera.org/about-us. . 804 F.3d 601 (2d Cir. 2015), vacated by Shanahan v. Lora, 200 L. Ed. 2d 415 (2018), dismissed as moot by Lora v. Shanahan, 719 Fed. Appx. 79 (2d Cir. N.Y. March  30, 2018). As discussed later in this chapter, the Supreme Court overturned the holding in Lora in a subsequent case, Jennings v. Rodriguez, 138 S. Ct. 830 (2018); however, the decision in Jennings has left open the question of whether it is constitutional to detain immigrants indefinitely without a hearing. . 138 S. Ct. 830 (2018). . 860 F.3d 58 (2d Cir. 2017). . 897 F.3d 57 (2d Cir. 2018). . There are 13 circuits of the U.S. Court of Appeals, 11 regional circuits and the D.C. Circuit, whose jurisdiction is defi ned geographically, and the Federal Circuit, which hears specific subject matter disputes, such as patent cases. The Second Circuit has jurisdiction over New York, Connecticut, and Vermont, and thus its precedents are binding in any immigration cases that take place in those states. Therefore, NYIFUP’s precedent-setting victories also benefit immigrants outside New York City.

Conclusion . 138 S. Ct. 2392 (2018). . Trump v. Hawaii, 138 S. Ct. at 2420. . Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018). . Trump v. Hawaii, 138 S. Ct. at 2418. . Federalist, no. 78 (Alexander Hamilton). . 130 U.S. 581, 606 (1889). . 538 U.S. 510 (2003). . Organizations that have advocated for the establishment of an independent Article I U.S. Immigration Court include the American Bar Association, the Federal Bar Association, the American Immigration Lawyers Association, and the National Association of Immigration Judges, which is the union that represents immigration judges.

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Index

AAFSC (Arab American Family Support Center), 7 abstract fears, laws aimed at, 4, 37, 71 acceptance of loss and suffering, 11 ACLU (American Civil Liberties Union), 7–8 Adams, John, 136 adjudicators, latitude needed by, 13, 22–23 administrative closure, 75, 80–81 adults: children of U.S. citizens, 112; juveniles prosecuted as, 27–33, 35, 40, 172n4 AEDPA (Antiterrorism and Effective Death Penalty Act), 33, 35, 69–71, 109, 116–17, 122, 167 African descendants, citizenship for, 58 Agamben, Giorgio, 152, 154–56 aggravated felonies: in 1996 laws, 34–35; as deportable offenses, 124–25; designation of, 122, 124–25, 53, 164; and elimination of §212(c) relief, 69, 117; mandatory detention for, 126; no LPR cancellation for, 84; NYIFUP cases, 146–47, 164; in Omnibus Anti-Drug Abuse Act (1998), 34; cigarette sales as aggravated felony, 125, 128 aliens: as abstract menace, 51; versus citizens, 37 American Civil Liberties Union (ACLU), 7–8 “anchor baby,” 111 anthropology, 11–12, 59, 157 Arab American Family Support Center (AAFSC), 7 Arizona immigration courts, 67, 143

Arizona v. United States, 41 Arkansas, 61 Ashcroft, John, 7, 81 Asian immigrants, 7, 52, 54, 58–59, 102, 158 asylum: under 1996 amendments, 91; affirmative claims for, 92, 175n6; behavior of judges, 82, 125, 143; denials of, 82, 92; fear of persecution, 70; fraud, 91; grant rates, 78, 81, 90, 95–96, 164, 166; and international human rights norms, 88; judicial discretion in, 41, 82, 88; seekers of, 13, 17, 70, 72, 77, 97; statute of limitations for, 160; U.S. asylum law, 88–94 Atlanta, 78, 95, 166 author: discussion with grandchildren of immigrants, 49; as immigration lawyer, 2, 5, 7–8, 78–80; and untaxed cigarette seller case, 125, 128–29, 162 baby boom and crime rate, 29 bail, 115 “Balanced Budget Conservatism,” 68 Benson, Lenni, 161 Bentham, Jeremy, 1, 156, 171n1 BIA (Board of Immigration Appeals), 75, 81 biopolitics, 11–12, 22, 39–40, 70, 156–57 biopower regimes, 37, 39 birth lottery, 17 Board of Immigration Appeals (BIA), 75, 81 bodega protest, 150 “body politic” and “body natural,” 152 bond hearings, right to, 35, 73, 144–45

194

Index

border control operations, 67 Border Patrol, 58, 67 Bosket, Willie, 29, 172n3 Bosniak, Linda, 102–3 Bowers v. Hardwick, 50, 157 Bracero Program, 61–62, 64 Breyer, Stephen, 171n7 British immigrants, 57 Bronx Defenders, 137, 141, 143 Brooklyn Defender Services, 137, 139, 141, 144–45 Buchanan, Patrick, 67, 69 Cabranes, José, 46 Cabrera-Alvarez, Edmer, 44 Calavita, Kitty, 68 California: Chinese immigrants in, 53–54; Operation Gatekeeper, 67; Proposition 187 (Save Our State Initiative), 67–68 cancellation of removal, 44, 69, 77, 84–88, 122, 160, 163 capital mobility, 18 Cardozo Immigration Justice Clinic, 137, 142 Carey, Hugh, 29 caricatures of deserving immigrants, 85 CAT (U.N. Convention Against Torture), 72, 93, 124 CBP (Customs and Border Protection), 1, 45, 172n11 Center for Immigration Studies (CIS), 153 Center for Popular Democracy, 137 Chae Chan Ping v. United States (Chinese Exclusion Case), 54–55, 154, 158 character indelebilis, 39 Chase, Jeffery, 95–96 Chavez, Leo, 64 Chief Counsel, Office of, 83 Chin, Danny, 136 Chinese immigrants, 13, 52; Chae Chan Ping v. United States, 154; Chinese Exclusion Acts (1882, 1889), 13, 52, 53–54, 152; current Chinese asylum cases, 90– 91; quota laws (1921, 1924), 56–58; as threat to white working class, 54. See also Plenary Power Doctrine cigarette sales as aggravated felony, 125, 128 circular labor migration, 60 CIS (Center for Immigration Studies), 153

citizens: aliens versus, 37; children of undocumented parents, 79; citizen rights not applied, 13; dependents of undocumented people, 114; inclusionary/exclusionary aspects of citizenship, 102 Citizen’s Guide to U.S. Immigration Law, 165–69 Civil War Amendments, 58 CLINIC (Catholic Legal Immigration Network, Inc.), 133 Clinton, Hillary, 97 Clinton administration, 67 Cloward, Richard, 68 “coded denial of experience,” 103 Cohen, Morris R., 42–43, 173n20 Cohen, Stanley, 37 “common knowledge” test of whiteness, 59 Corrections Corporation of America, 131, 160 Court of Appeals. See U.S. Court of Appeals Coutin, Susan, 20 Cover, Robert, 50 “Crime Control Era,” 46 crime(s): concerns about, 53; and immigration ineligibility, 85; of moral turpitude, 53, 69, 85; public overestimation of rates, 32 “criminal alien(s),” 71; children as, 13; definition of, 40, 152; enforcement focus on, 69–71, 106–8, 122, 152, 158; fear of, 25, 36, 44, 70, 139; as folk devils, 37; Jane as, 118; Omar as, 38; and state of exception, 38, 166; subject to detention, 128; Trump administration use of term, 13 criminal conduct, removal based on, 6, 69, 71–72, 146, 167 “crimmigration,” 3, 386 “crisis of Fordism,” 68 “cruel and unusual punishment,” 32 Cuban boat lifts, 99–100 Customs and Border Protection, 1, 83, 172n11 DACA. See Deferred Action for Childhood Arrivals program danger to the community, 115–16, 128, 144, 167

Index

195

deference to political branches, 4, 12–13, 109, 152–53 deferral of removal, 93, 119 Deferred Action for Childhood Arrivals program, 6, 74–75, 103, 112–13, 133 De Genova, Nicholas, 20 deindustrialization, 18–19, 64, 68 delinquency adjudication, 30 Demore v. Kim, 73, 158 Department of Homeland Security, 14, 92, 99–100, 131, 175n6 deportations: under 1996 laws, 77, 84, 109, 159; for aggravated felons, 124; cancellation of removal, 44, 69, 77, 84–88; criminal conduct removal proceedings, 146; defense against, 80, 85, 88–94; deportability of illegal immigrants, 20, 22, 33–34, 47–48, 127–28; of lawful permanent residents, 69; mandatory detention prior to, 70; number of, 70, 71; under Obama administration, 74; of parents of U.S. citizen children, 101; statute of limitations eliminated, 58; Supreme Court comment on, 110. See also NYIFUP “Deporter in Chief,” Obama as, 74 DesJarlais, Scott, 101 detained asylum cases, 90 detention, cost of, 176–77n14 DHS. See Department of Homeland Security Dillingham Commission, 57, 174n15 Dilulio, John Jr., 31–32 discretionary parole, 99 discretionary relief, 41, 84–88; §212(c) relief, 35, 69, 116–20, 122, 124, 162; as double-edged sword, 85, 144; loss of, 34– 35, 45, 109, 113, 164, 167; need for, 16, 22, 33; under Obama versus Trump, 47. See also judicial discretion drug: enforcement, 34, 79, 86, 105, 114–16, 146; offenses, 86, 115–16, 118, 176n8 Drug Abuse Act. See Omnibus Anti-Drug Abuse Act of 1988 due process rights, 20–23, 54–55, 69–70, 134, 161, 166–67

employer sanctions, 65–66 English, knowledge of, 53, 62, 85 equal protection clause, 65 Establishment Clause, 2–3, 150 eugenics, 57 EWI (entered without inspection), 98 exclusion policies: toward Eastern and Southern Europeans, 56; upheld by Supreme Court, 4, 16. See also Chinese immigrants Executive Office for Immigration Review (EOIR), 126 executive orders, 1–3, 171n5; “Enhancing Public Safety in the Interior of the United States,” 75; EO-1 and EO-2 executive orders, 1–3, 171n5

Eastern European immigrants, 56–57 economic concerns, 17, 52, 68 El Salvador, 15, 141

German immigrants, 57 Gideon v. Wainwright, 127, 133 Gingrich, Newt, 33

families: family court system, 28–30, 172n3; family ties as claim for relief, 69; immigrant visas, 63; separating of, 44, 69 FBI (Federal Bureau of Investigation), 8, 176n8 Fear of Judging (Stith & Cabranes), 46 Federal Bureau of Investigation (FBI), 8, 176n8 Federal Court of Appeals. See U.S. Court of Appeals Federalist Papers (Hamilton), 153 Federal Sentencing Guidelines, 46–47, 110 “final vocabularies,” 9 fingerprinting, 106–8 fl ight risk, 35, 116, 128, 144–45, 167 “folk devils,” 37–38 Fong Yue Ting v. United States, 54 forced migration, 17 foster care, children of deported parents in, 101, 159 Foucault, Michel, 5; biopolitics, 11, 39, 70, 156–57; on dividing practice of race, 39; “histories of the present,” 51 Fourteenth Amendment, 65 Frank, Anne, 89 Fraser, Nancy, 11 “free white persons,” 52, 58–59

196

Index

globalization: capital flows, 19, 24; global migration, 18; Global North and South, 64; and moral panic, 38; and neoliberalism, 17–19; of production and markets, 68 Golash-Boza, Tanya, 21 gold mining boom, 54 good-faith defense, 66 gradations of culpability, punishment, 40, 45, 105 Graham v. Florida, 32 Gray, John Chipman, 176n6 Great Depression, 60 green card holders: asylees, 93; children of, 112; as “criminal aliens,” 69; deportation of, 113; drug offenses and, 115–16; loss of §212(c) waivers, 35, 162; LPR cancellation for, 84; NYIFUP cases, 141–42; Obama administration removals of, 74; PIP (Parole in Place) program, 98, 100– 101. See also lawful permanent resident Greenhouse, Carol, 25, 37, 152 Guatemala proxy war, 15 Hall, Stuart, 36–38 Hamilton, Alexander, 153 Hamilton, Carol, 121, 123 Hand, Learned, 42–43, 173n20 Harbin v. Sessions, 146, 164 hardship defense, 69, 86–87, 98, 109, 163 Hart-Celler Immigration Act of 1965, 62–65 Harvey, David, 68 head tax for Mexican arrivals, 59 Henderson v. Mayor of New York, 53 Hiraldo, Yaderlin, 99–100 “histories of the present,” 51 Hitler, Adolph, 57 Honduran migrants, 14–15 “hordes” of migrants, 55, 158 Howe, Mark DeWolfe, 50 “humanizing” of immigrants, 12 Hussain, Mohammad Azam, 72 Hylton v. Sessions, 146, 164 ICE. See Immigration and Customs Enforcement IIRIRA. See Illegal Immigration Reform and Immigrant Responsibility Act

IJC. See Immigrant Justice Corps “illegal aliens”: creation of, 10, 58, 102; as deserving of hardship, 13; as disposability commodity, 20; European versus Mexican, Asian, 60, 102 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 33– 35, 69–71, 109, 116–19, 122, 167 “immediate relatives,” 63, 111–12 Immigrant Justice Corps (IJC), 134–35, 143 Immigration and Customs Enforcement (ICE): discretionary powers of, 41, 74, 98; lawyers for, 83; maintaining fingerprint database, 106–8; New Bedford raid, 140; in New York, 147–48, 176n1; Office of Chief Counsel, 83; under Trump administration, 6 Immigration Act (1917), 54, 117 Immigration Act (1924), 57–59 Immigration Act (1965, Hart-Cellar), 62–65 Immigration Act (1990), 117, 122 Immigration and Nationality Act (INA), 2–3, 62; 1996 legislation, 22, 46, 48, 68– 73, 77, 84, 100, 162, 164; uncertain meaning of aggravated felonies, 124–25; section 212(c) relief, 35, 69, 116–20, 122, 124, 162; withholding of removal provision, 93–94, 133 Immigration and Naturalization Service (INS), 8, 61–62, 66, 74, 171–72n11 immigration judges, 96; administrative closure, 75, 80–81; areas of discretion, 24, 77, 80, 144; confl icting functions of, 83; considered “lawyers,” 83; enforcement-oriented “culture,” 83; fairness of, 81; heavy caseload, lack of resources, 94–95; loss of discretion, 34, 41–44, 70, 75; performance guidelines for, 95; view of immigration law system, 94–96 Immigration Justice Clinic of Cardozo Law School, 137 immigration law, 9; 1996 legislation, 22, 46, 48, 68–73, 77, 109, 143; after 9/11, 72– 73; habeas corpus petitions, 55; Immigration Act (1917), 54; limits of, 9–10; need for flexibility and proportionality in, 167; need for multiple influences on,

Index

23; overbreadth and inflexibility of, 44, 98; political supremacy in, 12–13; prior to 9/11, 8; role of, 19–20; rules-based, 43; scholarship on, 20–22; as state of exception, 12–13; two categories of, 160–61 immigration lawyers: advocates for common sense, 22; advocates for reinterpreting law, 21, 124; arrested for fraud, 91; author’s law practice as, 7; powers of, 78–84; and views of system, 77, 110–11 Immigration Reform and Control Act of 1986 (IRCA), 65–68, 80 impartiality, 96, 156–57, 166 impersonal formal rational legal systems, 103 Impossible Subjects (Ngai), 58 INA. See Immigration and Nationality Act inadmissibility, drugs as basis for, 116 incarcerated immigrants without representation, 126–30 independent judiciary, 23 indeterminacy in statutory law, 21, 23 indigent migrants, representation for, 78; in New York City, 130, 133–34, 168; Supreme Court on, 127. See also NYIFUP “individualization,” 43, 47 individual versus majoritarian rights, 10, 153, 156 industrial agriculture, 59, 61 INS. See Immigration and Naturalization Service INS v. St. Cyr, 117–18 intake process, 78–79 IRCA (Immigration Reform and Control Act of 1986), 65–68, 80 Irish immigrants, 49, 57 “ironists,” 9 Islamophobia, 3–4 Italians as unwelcome immigrants, 49 Japanese-American internment, 1 Japanese ruled not white, 58 Jennings v. Rodriguez, 145, 177n5 Jews as unwelcome immigrants, 49 JFK Airport, 2–3 Jim Crow, 61 Jimenez, Alex, 99 “jobless economic recovery,” 68

197

Johnson-Reed Immigration Act of 1924, 57, 58 judicial discretion: in asylum cases, 88; in criminal law, 109–10; in hardship cases, 87; in immigration cases, 22, 41, 44–47, 110, 123; judges on, 42–43, 173n20; judge not understanding statute, 125; and legally relevant/irrelevant facts, 104–5; loss of, 123–24, 163; moving clients in response to, 88–89; reauthorization of, 45–47; wide discrepancies in, 87–88 judicial oversight, 4, 41, 151 judicial transfer, 29–31 judicial versus executive justice, 54 jurisdiction to review, 44, 70 justification for restrictive, punitive laws, 1–5; under biopolitics, 39; immigrant threats to society, 4, 44, 51, 53; national security, 2; under neoliberalism, 17; state of exception, 156; by Supreme Court, 13, 153–54; under theodicy, 38–39, 159; toward lawful permanent residents, 72; toward military families, 102, 155; under Trump, 1, 113 juveniles: crime rates, 32; death penalty unconstitutional, 173n7; girl taken from hospital, 45; history of state juvenile court system, 28; Illinois juvenile court system, 28; and juvenile justice system, 28–33, 36; Juvenile Offender Law (NY 1978), 29–30, 32, 40; and moral panic, 36–38; Raise the Age Act (2017); separated from parents, 13–14, 75, 84; tried as adults, 29–32, 35, 172n4; Youthful Offender adjudication, 31. “Kafk aesque” immigration law, 7–10 Kanstroom, Daniel, 83–84, 165 Kantorowicz, Ernst, 151–52 Katzmann, Robert, 135–36, 138, 144 Kerry, John, 99 King’s Two Bodies, The (Kantorowicz), 151–52 Know Your Rights presentations, 8 Kupchik, Aaron, 29–31 labor arbitrage, 17 labor migration, irregular, 19–20 labor unions and immigrant labor, 56–57

198

Index

Latin America, 62–63, 175n1 law: loss of legitimacy of, 45; as metonym for justice, 21; as unique institution within society, 158. See also immigration law lawful permanent residents, 21, 162–63, 167; and 1996 “Republican Revolution” laws, 33, 35–36, 44, 69, 72; deportation of, 113; discretionary relief for, 117; Jose Sanchez, 122; Laurenton Rhodon, 121; “LPR cancellation,” 84–85; Melbourne Sinclair, 122; NYIFUP clients, 142; obtaining status as, 98, 107; and travel ban, 2–3. See also green card holders Lawrence v. Texas, 50, 157 Legal Aid Society, 137, 141 legal assistance, need for, 40 “legal / illegal binary,” 67 legalization. See IRCA legally relevant/irrelevant facts, 104–5 legal positivist ideas of law, 20–23 legislative transfer, 30 “letter of the law,” 45, 101 liberal democracy elements, 156 line-drawing, legal, 109–10, 112 literacy requirements, 57, 59 Lora v. Shanahan, 143–45, 164, 177n5 LPR vs non-LPR cancellation, 84–86 majoritarian rights, 10, 153, 156 Make the Road by Walking, 137 Mancheno, Luis, 142–44 mandatory detention, 71–73, 114–16, 126– 28, 143, 167–68 marijuana use as deportable offense, 114 Markowitz, Peter, 136–37, 140–42, 144, 146–47, 163 Marks, Dana Leigh, 83 Massey, Douglas, 17, 19, 172nn15 Matter of Castro-Tum, 75 McCarran-Walter Act of 1952, 62 medical issues, 45, 79, 87, 89, 99, 142 Mein Kampf (Hitler), 57 Mendelson, Margot K., 85–86 mental illness and deportability, 141 Mexican-American War, 59 Mexican migrants: as “invasion,” “reconquista,” 64; Jim Crow discrimination, 61; mass deportation of, 52; U.S. citi-

zen children of, 60; U.S. citizens, 52, 59; views of laborers, 59–60 migrants: blamed for U.S. problems, 19, 38; death of crossing desert, 67; as disposable commodity, 20; encouraged and criminalized, 21; as “folk devils,” 37; “old” versus “new,” 49; rights as less that citizens’, 76 migration, reasons for, 18 militarization of border, 18 military families and parole in place, 98– 102, 155 Miller, Arthur S., 1 Miller v. Alabama, 32 minor as legal category, 28 misdemeanor offense, meaning of, 34 Missouri, 61 mixed-status families, 99, 159 mobility based on social status, 17 “moral panic,” 36–38, 158 Morawetz, Nancy, 48 Muslim travel ban, 1–4, 11, 51, 150–51, 158, 166 myth construction, 85 national origins quota system, 52, 62 national sovereignty issue, 23, 51 “nation of immigrants,” United States as, 52, 174n7 nation of origin, 17, 57, 62, 93 native-born Americans and “racial bipolarism,” 49 nativism, 68 Naturalization Act of 1790, 52, 58 neoclassical push-pull theory, 18 neoliberalism: aliens vs. citizens mentality, 25, 37; and globalization, 17, 19; pushing migration to U.S., 66 New Jersey, 7–8, 30–31 Newton, Lina, 65–66 New York City, 5, 15, 49; asylum grant rates in, 78, 90, 95, 166; bodega protest, 150; deportation of parents of citizens, 101; deportation rate under Trump, 47; immigration lawyers and judges in, 2, 77, 81; Jacob K. Javits Federal Office Building, 106; JFK Airport response to ban, 2; juvenile court system, 28–30; legal representation rate in, 126; legislative

Index

transfer system, 30; Raise the Age Act (2017), 32; Willie Bosket case, 29. See also NYIFUP Ngai, Mae, 10, 40, 58–62, 102 Nicaraguan proxy war, 15 9/11 attacks. See September 11 attacks and aftermath 1996 amendments, 68–73; based on fear, 139, 152, 158; creating structural impediments, 161–62; increasing enforcement and detention, 159; limiting judicial discretion, 22, 46, 77, 164–65; Lora v. Shanahan, 143, 145, 164; slowing case law development, 145; violating principles and norms, 48, 103, 127. See also AntiTerrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) #NoBanJFK, 2 non-refoulement, principle of, 88 Northern Manhattan Coalition for Immigrant Rights, 137 North Korea, 3, 171n6 notarios, 79, 175n1 NYIFUP (New York Immigrant Family Unity Project), 23, 137–46; demonstrating thick connections, 157; providing counsel, 163, 168; as public defenders, 130, 133–35; purpose of, 147–48, 161–62 Obama administration, 6, 47, 74, 112 Obergefell v. Hodges, 50, 157 OIG (Office of the Inspector General), 7–8 Oklahoma City bombing (1995), 33, 69 Omnibus Anti-Drug Abuse Act of 1988, 34, 122 Ong, Aihwa, 17–18, 49–50 order of supervision, 132 othering of immigrants, 12 Ozawa v. United States, 58 Padilla v. Kentucky, 110, 113 Parole in Place (PIP), 98, 100–103, 155, 175n12 part-time labor, 63, 68 Paterson, David, 120–23 permanent caste of undocumented aliens, 65

199

persecution, proof of, 88 Personal Responsibility and Work Opportunity Act (Welfare Reform Act), 33, 109 PIP (Parole in Place), 98, 100–103, 155, 175n12 Piven, Francis Fox, 68 plenary power doctrine, 4, 20–21, 23, 54– 55, 152–55, 166 Plyler v. Doe, 65, 68 political economy, 51 Posner, Richard A., 81 post-traumatic stress disorder, 91 Pound, Roscoe, 43 power and resistance, 157 power of uncertainty, 156 precariousness, 12 pre-examination process, 60 Pregerson, Harry, 44 pretrial diversion programs, 69 “Prevention Through Deterrence,” 19, 67 Priority Enforcement Program, 107 private detention facilities, 131 privatization of state-owned industries, 66 “production of illegality,” 22 proportionality, 21, 45, 110 prosecutorial discretion, 41, 45, 47, 74–75, 98, 113, 176n11 pro se individuals, 82, 90, 126–30 Protestant Ethic and the Spirit of Capitalism, The (Weber), 39 proxy wars, 15 psychological trauma, 92 public defenders, 130, 133–35, 147 public schooling for undocumented children, 68 “push factors” for migrants, 66 quota laws, 52, 56–59, 62–63, 95, 102 race and racism: Foucault on, 39; in immigration law, 51; and nationalism, 52–53; “racial bipolarism,” 49–50 Raise the Age Act (NY 2017), 32, 172n4 Ramirez, Juan P., 121 rational basis review, 151 Rawls, John, 103 Reagan administration, 65, 116 REAL ID Act of 2005, 164 recognition without rule of law, 96–103

200

Index

Refugee Act of 1980, 88 Registry Act, 60, 102 religious liberty cases, 151 removal proceedings, 45, 74, 107, 133, 143, 146 “Republican Revolution,” 33 resentment over job loss, 109 restrictionist American identity, 18–19, 52 restrictionist immigration policies, causes of, 172n17 Rhodon, Laurenton, 121 rights as “form of dependency,” 37 right to counsel, 126–33, 146–47, 168–69 right to exclude, expel, 54 “right to have rights,” 40 risk of fl ight, 35, 116, 128, 144–45, 167 Roberts, John, 42 Rodino, Peter, 66 Rojas, Fredy C., 121–22 role of immigration law, 19–20 Roosevelt, Franklin D., 1 Roper v. Simmons, 32 Rorty, Richard, 9 rule-based versus case-by-case decisions, 43–44, 102

social safety net, 109 social science literature, 9, 19–22 societal membership versus legal citizenship, 103 sodomy case, 50 Soumare, Mamadou, 96–98, 103 Southern European immigrants, 56–57 Southwest Border Strategy, 67 sovereign power over immigration, 21, 23, 54–55, 151, 154–56 Special Agricultural Workers program, 66 ‘stall’ lawyers, 135 state of exception, 4, 12–13, 38–40, 151–56, 166 statute of limitations for asylum, one-year, 91–93, 160 Stith, Kate, 46 strikebreakers, immigrants as, 56 Study Group on Immigrant Representation, 136–37 summary and expedited removal, 70 Sunstein, Cass, 43 “super-predators,” 31–32, 36–37, 40 Syria, 2, 17 systemic responses, need for, 130, 135

sadism in immigration policy, 18 Sáenz, Andrea, 137–41, 144–45, 148 Saito, Natsu Taylor, 153 Sanchez, Jose, 122 sanctions on employers, 62, 65–66 Sassen, Saskia, 16, 156, 172n14 scholarship on immigration, 148–49 Schumer, Charles, 97 Scott Act of 1888, 54, 154 seasonal agricultural workers, 59 section 212(c) relief, 35, 69, 116–20, 122, 124, 162 Secure Communities program, 106–7 sentencing discretion, 22, 41, 44–47, 110, 123 September 11 attacks and aftermath, 7, 72– 73, 119, 158 service sector economy, 18 Sessions, Jeff, 13–14, 75, 80, 96 shoplift ing as aggravated felony, 34, 153 “signification spiral,” 38 Sinclair, Melbourne, 122 Sixth Amendment, 47–48, 127

targets for reform, 166–69 Teach for America, 139 “Temporary admission of nonimmigrants” provision, 100 Temporary Protected Status (TPS), 131–32 “ten-year cancellation,” 10, 84, 86, 175nn9 terrorism concerns, 8, 33, 53, 69, 72, 109 Texas: Lawrence v. Texas, 50, 157; no Bracero program, 61; no education funds for migrant children, 65; Operation Hold-the-Line, 67; Operation Rio Grande, 67; Teach for America, 139; “Texas Proviso,” 62 theodicy, 38–39, 159 thick descriptions, 11, 157 “thin description” of reality, 21 Third Circuit Court of Appeals, 44 Thompson, Kenneth, 38 TPS (Temporary Protected Status), 131–32 Transcontinental Railroad, 54 travel ban, Trump administration, 1–4, 11, 51, 150–51, 158 Treaty of Guadalupe Hidalgo (1848), 59

Index

Trump, Donald, 1; and biopolitics, 156–57; and “body politic,” 152; election of, 18– 19; Islamophobia of, 3–4; use of executive authority, 75, 100–101 Trump administration: curtailing prosecutorial discretion, 44–45, 47, 176n11; and DACA, 6, 75, 103, 113; descriptions of immigrant children, 13–14; enforcement of immigration law, 20, 44–45, 75, 159; false claims of immigrant crime, 160; hostility toward refugees, asylum seekers, 17, 157; immigration backlog under, 95; increasing detention capacity, 72; limiting lawful immigration, 2–4, 6; limiting TPS designations, 132; maximizing deportations, 115; Muslim travel ban, 1–5, 11, 51, 150–51, 158; and PIP policy, 100–101; reinstating Secure Communities program, 107; removal of “nation of immigrants” term, 174n7; separating children from parents, 75; Trump v. Hawaii, 3, 7, 151, 171nn6 §212(c) relief, 35, 69, 116–20, 122, 124, 162 U.N. Convention Against Torture (CAT), 72, 93, 124 U.N. Convention and Protocol on the Status of Refugees (1967), 88 U.N. Convention Relating to the Status of Refugees (1951), 88 undocumented immigrants, 5, 63–64, 159; ambivalence toward, 66; California Proposition 187 (Save Our State), 67–68; categorization of, 20; cost-benefit analysis of, 13, 19; as “criminal aliens,” 13, 69; as “disposable commodity,” 20; as “invasion,” 64; IRCA (Immigration Reform and Control Act of 1986), 65–68; as multicausal phenomenon, 15; public schooling for, 65, 68; “Republican Revolution” laws against, 33; separating mothers and infants, 14 undocumented migrant labor, 13, 59–62, 65–66, 76 uninspected entries, 58 United Kingdom, immigrants from, 57 United States Conference of Mayors, 7 United States v. Booker, 47–48, 110 United States v. Ju Toy, 55

201

United States v. Thind, 58–59 unlinking of corporate profits from wages, 68 unreviewable discretion, 41 U.S. Armed Forces, deportation of family members, 99 U.S. asylum law, 88–94 U.S. Bureau of Immigration, 54 USCIS (U.S. Citizenship and Immigration Service), 97, 100, 114, 171–72n11, 175n12 U.S. Constitution: Article I, 96, 177n8 (Conclusion); Eighth Amendment, 32; Fourth Amendment, 107; proportionality, 110 U.S. Court of Appeals, 7, 81–82, 177n9; Second Circuit, 82, 135–36, 143–44, 146; Third Circuit, 44; Seventh Circuit, 81; Ninth Circuit, 44; Eleventh Circuit, 44 U.S. Immigration and Customs Enforcement (ICE). See Immigration and Customs Enforcement U.S.-Mexico border security, 67 U.S. Supreme Court: Chinese Exclusion Case (1889), 13; on deportation statues, 110; on federal power over foreign commerce, 53; plenary power doctrine, 4, 20–21, 23, 54, 152–53; powers of, 50; on right to counsel, 147; Trump v. Hawaii, 3–5, 151, 171n6–7; on diminished rights of noncitizens, 37; upholding Muslim travel ban, 51, 150–51 Varick Street Immigration Court, 140– 41, 148 vectors of subordination, 103 Venezuela, 3, 171n6 Vera Institute for Justice, 137–38, 142 Violent Crime Control and Law Enforcement Act of 1994, 67 visas, 58, 63, 79 voluntary migrants, 17 Wadhia, Shoba Sivaprasad, 41, 47, 74 waivers of deportation, 60, 102, 117–18, 123, 171n7 Walzer, Michael, 103 “war on illegal immigration” approach, 159 Weber, Max, 38–39, 103 Welch, Michael, 36

202

Index

Welfare Reform Act (Personal Responsibility and Work Opportunity Act), 33, 109 well-founded fear of persecution, 88 “white American race” as construct, 40, 58 “whiteness” of European immigrants, 49– 50, 58–59 Wilson, James Q., 29 Wilson, Pete, 68 withholding of removal, 93 Wong, Tom, 133 Woo, Yin-Shing, 42 Woodson v. North Carolina, 173–74n29 World Trade Center bombing (1993), 69.

“yellow peril,” 55 Yemen, 2, 131 Yemeni-American bodega protest, 150 Youthful Offender designation (New York), 27, 30–31, 140 Zadvydas v. Davis, 73 “zero-tolerance” immigration policy, 13– 14, 75 Zolberg, Aristide, 64 “zone of indistinction,” 154–55