Tag Archives: Immigration
Jennifer M. Chacón, Producing Liminal Legality
, 92 Denver U. L. Rev.
(forthcoming), available at SSRN
Jennifer Chacon’s Producing Liminal Legality is a must read, and not only because the title so aptly reflects the liminality of the article itself. The work is betwixt and between criminal and immigration law, between formal and functional analysis, pointing back in history and forward towards social change. It appears in a symposium issue, itself a liminal form of academic discourse, suspended between the immediacy of the academic blog post and the timeless stand-alone academic article. In light of the seemingly permanent status of liminal legality, this article promises to be both hot and timeless, with an illumination in every section.
Chacón draws from the cresting edge of the social science around liminal legal subjects, using it to uncover and critique the legal mechanisms that produce liminal legality. She describes the liminal legal statuses that are proliferating within immigration law and beyond it. Liminal legal categories function in two ways: “to effectuate administrative resource conservation through community-oriented risk management strategies” and to allow governmental actors to assert control over identified populations in ways that avoid the rights-protective schemes of the twentieth century.
The piece begins with a taxonomy of liminal legal status. Liminal status is rooted in the experiences of marginalized noncitizens and the ever-present threat of being plucked away from one’s settled life through a contemporary form of banishment. Central examples of liminal statuses are the administrative granting of immigration parole and “deferred action,” two feats of affirmative administrative inaction. A noncitizen granted parole or deferred action experiences “a reliance on administrative grace to effectuate freedom from banishment, an obligation to pay one’s way to prevent that banishment, experiences of heightened monitoring by governmental actors, and a related vulnerability to control, exclusion, and abuse by private actors.” (P. 709.) This is two moves in one: Chacón reveals how an official decision not to act serves to create a pseudo-status, or what Geoffrey Heeren calls “The Status of Nonstatus.” More, Chacón evokes in the reader a sense of what it’s like to exist in such a state of liminal grace, simultaneously suspended by mere inaction and locked in a Damoclean suspense.
Chacón’s next conceptual move is to expand the class of those living in liminal legality beyond the group on the edge of banishment. She reveals as liminal the groups of noncitizens who have seemingly more stable legal privileges, such as lawful permanent residents “who live in heavily policed, restrictionist jurisdictions and who have old criminal convictions that might appear to render them deportable” and who “may experience greater liminality and a greater likelihood of banishment than an unauthorized noncitizen who is a low priority for removal and lives in a more immigrant-friendly jurisdiction.” (P. 732.) Liminality, then, is less dependent on formal immigration status categories than on the functional elements of time, place, and social context.
Liminality then crosses the citizenship divide to include citizens embedded in immigrant communities as well as citizens who don’t, but who nonetheless have regular contact with law enforcement officials. This is an important move, because it expands the map of liminal status in several ways. First, it illuminates how the operation of liminal legality is not confined to noncitizens, but affects citizens as well. Second, it demonstrates how the commonality of contact with law enforcement is a more accurate predictor of legal liminality than which system of governance—immigration or criminal justice—is operating on an individual.
Chacón advocates for using liminal legality because its transubstantive nature offers advantages over topical frames like “crimmigration.” She would return crimmigration scholarship to its original grounding in membership theory, thereby “reinvigorating the discussion of the role that race, class, and place play in structuring governance strategies both at the border of criminal and immigration law and beyond it.” (P. 764.)
This is why I think Producing Liminal Legality is such an important work for the current moment. Returning to membership theory with a transubstantive legal analysis like liminality is one way to stem the tide of immigration exceptionalism that the Executive Branch is now relying on to maximize its ability to exclude groups like Muslims and refugees. Also, Chacón uses the notion of liminality to make a series of connections that immigration scholarship often struggles with: the tenuousness of distinctions among the authorized citizenship and immigration statuses, the governance functions played by the interlacing of criminal and immigration law, and the role of race, class, and place in that complex interlacing. Having erased the citizenship line as a significant analytical boundary, and exchanged it for the level of governance through law enforcement that an individual or community experiences, the presence of race and class come into focus like elephants in a room.
As immigrant communities and immigrants’ rights advocates stare down the barrel of the Trump administration, anti-trafficking appears to be the sole immigration-related issue that might gain bipartisan traction. As has historically been the case with refugees and asylum seekers, Democrats and Republicans may find common ground in concern over the situation of trafficked individuals, especially those subject to sexual trafficking. Refugee advocates and scholars have long raised concerns about the impact of collaborations with strange bedfellows on law and policy-making. Janie Chuang’s article, Giving as Governance? Philanthrocapitalism and Modern-Day Slavery Abolitionism, raises a similar set of worries around the anti-trafficking agenda, introducing a new character to the cast: the philanthrocapitalist. This piece presents a comprehensive and thoughtful set of concerns about the outsized and largely unaccountable role of a new generation of hyperengaged donors in shaping the anti-trafficking policy agenda.
In Prof. Chuang’s words, philanthrocapitalism is a “relatively new form of philanthropy, born of a new generation of the ultra-rich who aspire to use their business skills to fix the world’s social problems.” She explains that these donors play a much more direct role in shaping responses to societal issues than philanthropists in previous eras, who gave money to support third parties’ efforts to effect social change. This is a sound analysis, though it then raises the question of whether these are differences of degree or of kind. Philanthropists have always had some control over policymaking agendas through their selection of projects and varying levels of control through reporting and funding mechanisms. What is different about these new philanthrocapitalists?
Prof. Chuang provides several answers to this question through the case study of trafficking. The most meaningful difference is that for previous generations of philanthropists, external critiques of the organizations they funded were not viewed as criticisms of the donors themselves. This is a distinction in kind; because the policy work is directly identified with a very wealthy donor, philanthrocapitalism quells critique in a new and substantially more dangerous way. Another concern raised by Prof. Chuang, that philanthrocapitalists, as successful market actors, are more likely to focus on changing individual behaviors of actors rather than the “structures that undergird global labor markets and labor relations,” is apt, but a difference of degree. Other philanthropists, past and current, have often been marked by a similar hesitance to fund projects that undermine the foundations of their financial success; the same is true for government funding and policymaking. Similarly, Prof. Chuang’s charge that philanthrocapitalists lack accountability constraints is one that could be applied, though less powerfully, to non-governmental organizations funded by philanthropies. These organizations are not subject to democratic processes, and the accountability mechanisms that exist are limited to those created and enforced by donors.
Set in the context of the anti-trafficking movement, Prof. Chuang argues that the dominance of philanthrocapitalism has had particularly pernicious results. She explains that philanthrocapitalists have promoted a discourse equating trafficking and forced labor with slavery. Though powerful rhetorically, this framing focuses attention on the actions of individuals, both traffickers and the trafficked. It thereby absolves the state and corporations for their roles in constructing and perpetuating global economic structures that push individuals to migration as an economic strategy. The “modern-day slavery” frame also enables a crime-control approach to traffickers, and a victimhood approach to the trafficked, who become subjects of rescue and pity rather than agency-bearing individuals.
Prof. Chuang explains that the anti-trafficking movement is currently grappling with the choice between a criminalization approach or a broader strategy that would challenge global systems of exploitation. The corollary concern, of course, is that philanthrocapitalists have outsized power to influence this decision. Prof. Chuang identifies several problems with their dominance of the marketplace of ideas. First, philanthrocapitalists have deep faith and investment in the ability of markets to determine the effectiveness of social programs. In other words, they’re using capitalist tools to fix the shortcomings of the capitalist system. Again, it seems that other philanthropies and state programs would fall into a variation of this critique; these actors are similarly unlikely to present radical challenges to “the current economic and political status quo of global capitalism.” However, a starker difference arises from philanthrocapitalists’ embrace of market-based tools; in particular, Prof. Chuang notes their embrace of quantifiable metrics to assess social programs. This approach, which risks essentializing the complexities of social problems, seems to present a difference in kind from the approaches of other philanthropists, who might encourage the use of metrics but not likely to the exclusion of other assessment methods. An even more concerning shift in kind is the concentration of power in the hands of a few individuals who may own or donate generously to media outlets. The core of Prof. Chuang’s critique of philanthrocapitalism lies here in the consolidation of policymaking authority by a few powerful individuals who are able to effectively quell traditional avenues of criticism and accountability.
Prof. Chuang completes her analysis with a specific case study of the Walk Free Foundation (WFF), which exemplifies many of the concerns she raises earlier in the paper. WFF aims to “end modern slavery” through the use of indicators, namely its annual Global Slavery Index, to measure the problem; the coordination of funds via a public-private partnership; and the vehicle of corporations as change agents. While Prof. Chuang’s critique of the use of ill-defined and unevenly applied indicators to set governance agendas was compelling, her concern about the abandonment of categories separately defined and regulated under international law in favor of the term “modern-day slavery” assumed a rationality to the law and its categories that this reader was less inclined to take at face value.
Otherwise, Prof. Chuang’s concerns are borne out in concrete example. WFF seeks to criminalize the behavior of traffickers and encourage ethical corporate behavior but fails to even raise, let alone enforce, two crucial tools in protecting workers against exploitation: labor standards and inspections. Prof. Chuang also raises a broader point about development discourse: WFF assumes that as economic development increases, slavery will decrease, an approach that points the finger at the global South for the problem of trafficking while absolving the global North of responsibility for global economic inequality that makes migration a crucial economic strategy for the poor. She traces the disturbing muting of critical perspectives and lack of accountability with regard to the work of WFF, though her proffered counterexample, of Humanity United allowing NGOs to set the agenda, retained versions of these accountability and democratic legitimacy problems.
Prof. Chuang closes with a powerful critique of philanthrocapitalism: that needs are determined from the top down, with a preference for dramatic and quick results rather than long-term projects leading to sustainable systematic change. She has made a convincing case to support this argument, though many of her criticisms can also be levied, to a lesser degree, against traditional philanthropies and state-based governance and policymaking. The quest for bottom-up policymaking is noble and necessary, but the challenges of creating real democratic accountability in setting the anti-trafficking agenda remain substantial, as they do more broadly when it comes to global governance of migration.
For undocumented immigrants, deportation is a constant looming threat. Given the harsh and broad categories of things that an immigrant can do to become deportable, the unfairness of the deportation adjudication system, and the devastating consequences of deportation, it makes sense that immigration law scholars focus on the phenomenon of deportation. Nathalie Martin, whose primary scholarly focus is not immigration law, reminds immigration law scholars that, unfortunately, there are many problems to explore beyond deportation.
Martin explores themes of scarcity by reporting on what she learned through a qualitative study of 50 undocumented immigrants in New Mexico. The study, funded by the National Conference of Bankruptcy Judges, investigates the banking and credit habits of undocumented immigrants through a snowball sampling technique. In Survival in the Face of Scarcity, Martin uses data from the study to explore how issues of scarcity are compounded for a population without legal status. As Martin explains, her findings “show a perfect storm” (P. 109) where individuals with limited rights are fearful to assert any legal rights they have.
Scarcity means having less than one needs. Martin adopts Sendhil Mullainathan and Eldar Shafir’s work on scarcity theory to help frame her study results. In her study population, Martin recognizes the bandwith tax (P. 111) discussed by Mullainathan and Shafir. The “drastic economic scarcity” (P. 114) of her subjects clearly was taking its toll, mentally and emotionally, especially in terms of the ability to cope with unplanned expenses. This economic scarcity itself was not surprising; , more surprising to Martin was the discovery that her subjects categorized unplanned expenses differently than she did. To her subjects, job loss was an expected event. Martin concluded that creating a budget as an undocumented immigrant “just doesn’t work.” (P. 119.)
After exploring how scarcity affects her study population, Martin argues strict immigration laws that allow no hope of regularizing status, the threat of deportation, and ineffective consumer protection laws create a scarcity tornado that is difficult to escape. Martin’s subjects know that they are vulnerable. They know that their lack of legal immigration status means they do not have a level hand in economic transactions or in employment relationships. This makes them hesitant to exercise any legal rights they may have outside of immigration law, either informally (for example, complaining about a billing error) or more formally through the courts.
Participants in the study were asked “if they feel comfortable using the court system to right a wrong.” (P. 130.) Only 32% answered yes. For 42% of the study participants, court was not an option, and 26% were not sure if they would use the court system. Participants expressed fear of deportation or an acceptance that a lack of legal status means one should not expect fair treatment as reasons not to pursue a legal claim. This means that fear of deportation (even if wholly unrelated to a potential legal claim) and a general sense of second-class status keep the individuals in Martin’s study from vindicating the legal rights that they do have in the employment, contract, and landlord-tenant contexts.
Interestingly, despite the scarcity in which they live, participants in Martin’s study expressed reluctance to accept government benefits. Undocumented immigrants are ineligible for most kinds of government aid. Even when an individual or someone in the individual’s mixed status family might be eligible for a benefit, Martin reports that the study participants expressed a strong preference to make it on their own.
Martin’s study reminds us that being an undocumented immigrant is not easy. This may seem like a simple lesson, but it is one that bears repeating. While Martin’s study group is only a small slice of the undocumented population, Martin’s study helps to rebut misleading political discourse that promotes a narrative that it is uncomplicated to be undocumented in the United States. Of all the challenges identified by Martin, the one that perhaps should be most disconcerting to law professors is a grudging acceptance that the vindication of legal rights is not practical. This is a major problem beyond deportation. Martin’s study prompts us to ask whether this is an acceptable status quo.
And here is where immigration advocates, policymakers, and scholars will step in with their expertise. The immigration laws of the United States are badly in need of reform. That reform must include a path to legalization for undocumented immigrants. Only then will Martin’s study participants be able to begin to escape the scarcity and vulnerability that negatively impacts their lives and the lives of their U.S. citizen relatives.
Cite as: Jill Family, Problems Beyond Deportation
(January 6, 2017) (reviewing Nathalie Martin, Survival in the Face of Scarcity: The Undocumented Immigrant Experience
, 58 Ariz. L. Rev.
103 (2016)), http://lex.jotwell.com/problems-beyond-deportation/
International human rights are often described as universal rights. The universality of this legal regime leads many people to view it as an appropriate resource for addressing the plight of undocumented migrants. Yet the legal protections provided within the international human rights regime are often unavailable to undocumented migrants, or the rights that are most important to them are not protected. International and immigration law scholars rarely acknowledge these limitations, which makes Professor Jaya Ramji-Nogales’ article such an important contribution. “The Right to Have Rights”: Undocumented Migrants and State Protection provides an excellent analysis of the limits of international human rights law in protecting undocumented migrants.
Two of the central challenges that undocumented migrants face are vulnerability within their states of residence due to their limited “recourse against exploitation due to fear of deportation” and “the rupture of family and community ties through deportation.” (P. 1050.) The rights to territorial security (by which Ramji-Nogales means the right to remain in one’s state of residence), family unity, and the absence of discrimination due to immigration status are important rights for addressing undocumented migrants’ central challenges.
To examine the ability of international human rights law to address these challenges, Ramji-Nogales uses Hannah Arendt’s critique of human rights law in The Origins of Totalitarianism as a template. Accordingly, Ramji-Nogales explores (1) the fact that sovereign states decide what rights will be protected and how; (2) the idea that certain groups’ rights are exceptional and protected outside of the domestic legal order; and (3) that individuals’ dependence on sovereign states to protect their individual rights limits the ability of international human rights law to protect undocumented migrants. Arendt found these factors hindered protecting the rights of minorities and stateless individuals, and Ramji-Nogales finds the same for undocumented migrants.
First, while international human rights are conceptualized as universal rights, they actually exclude the rights that are the most important to undocumented migrants. International human rights treaties are state-created instruments, and as a result, “sovereignty interests are deeply embedded in these treaties.” (P. 1060.)
Second, undocumented migrants are exceptional and outside of the international human rights regime. In a number of critical ways, international human rights treaties exclude undocumented migrants from protection. For example, no international human rights treaty supports a narrow right to territorial security. The United Nations Human Rights Committee (“HRC”) is the body responsible for interpreting the International Covenant on Civil and Political Rights (“ICCPR”). The HRC has noted that the ICCPR “does not recognize the rights of aliens to … reside in the territory of a State party.” (P. 1051.) The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families “states in no uncertain terms that it does not offer any right to ‘regularization’ for undocumented migrants or their families.” (Id.) The universal claims of the international human rights framework are only plausible if undocumented migrants are understood as being legitimately outside of the system.
Finally, human rights protection depends on state enforcement, and undocumented migrants “have no political voice, and are largely excluded from legal protections in their host states.” (P. 1061.) In order for the international human rights regime to be useful for undocumented migrants, the state protection gap has to be addressed. In a state-created system, state interests significantly shape what substantive rights will be protected and how. Additionally, the enforcement of protected rights depends on having a state act on one’s behalf.
Ramji-Nogales proposes three responses to the state protection gap. First, undocumented migrants could utilize a social movement approach in which they build networks, exchange information, publicize issues that are important to them, and engage in protests. This approach would allow undocumented migrants to “openly challenge the political determinations that define the scope of international human rights law” without relying on the state (P. 1063).
Second, migrant-sending states could demand better treatment of their nationals in receiving states. Undocumented migrants’ home states would discuss the harms their nationals face and work to have receiving states recognize as rights the issues important to undocumented migrants.
Finally, Ramji-Nogales discusses a multilateral approach in which a number of migrant-sending states create a “permanent institution to contextualize the situation of undocumented migrants and advocate for equal treatment.” (P. 1064.) This strategy would differ from current multilateral approaches to coordinate state migration action because it would “aim to radically restructure discussion around the undocumented.” (Id.)
Ramji-Nogales acknowledges the challenges and shortcomings for each of these responses: the coordination challenges involved in organizing a social movement; the comparative power differential between social movements and states; the limited political power of migrant-sending states vis-à-vis receiving states; and the conflicting interests that sending states may have because they simultaneously may be both sending and receiving states.
While none of these responses to the state protection gap offer a guaranteed solution, they begin an important conversation for immigration and international human rights law scholars. Until recently there has been little acknowledgement of the very limited role that international human rights law has been able to play in addressing the needs of undocumented migrants. By identifying specific substantive and institutional challenges, Ramji-Nogales provides a framework that immigration and international human rights scholars and advocates can use to reimagine an international legal regime that is truly universal.
I admit it. I’m a data geek. Not that I produce any of it myself—regression analysis makes my hair stand on end—but I am really good at admiring the work of people who are really good with data. And the data I really like (lots) sheds light on issues we all really care about. Presumptuous of me, you might think, to think I know what you care about. But don’t you care about lawyers?
You will, if you don’t, after you read Ingrid Eagly and Steven Shafer’s A National Study of Access to Counsel in Immigration Court. Before delving into it, recall Judge Richard Posner’s less-than-oblique critique of the immigration bar in 2015:
There are some first-rate immigration lawyers, especially at law schools that have clinical programs in immigration law, but on the whole the bar that defends immigrants in deportation proceedings … is weak—inevitably, because most such immigrants are impecunious and there is no government funding for their lawyers.
Eagly and Shafer begin where Judge Posner left off—with the story of the momentum toward establishing a first-rate public defender system for poor immigrants facing deportation. Judge Robert Katzmann, Peter Markowitz, Stacy Caplow, and Claudia Slovinsky led the most prominent of these efforts, which culminated in the New York Immigrant Family Unity Project. That project provides detained New Yorkers with representation in removal proceedings at state expense. And what convinced the New York state legislature to support such a scheme, aside from Judge Katzmann’s gravitas and Stacy Caplow and Peter Markowitz’s irresistible charm?
The Study Group on Immigrant Representation that Judge Katzmann convened (and on which sat some of the law school clinicians that Judge Posner excepted from his critique) found that 60 percent of New York’s detained immigrants did not have legal representation. Of that unrepresented 60 percent, only three percent won in court, in contrast with a 74 percent success rate for the non-detained represented population. That data was critical to convincing the New York state legislature that it was worth ponying up the $500,000 for a pilot program to provide appointed counsel for New Yorkers in removal proceedings.
The program and the data, however, are confined to New York. The debate about appointing defense counsel for immigrants is national. The cost-benefit analysis of whether to institute government-appointed removal counsel has been heavy on the cost side (lawyers are not cheap), and light to helium on the benefit side (do lawyers increase accuracy and efficiency in immigration cases?).
There is no shortage of information about the cost of erroneous outcomes in immigration court—the social and economic costs of unnecessary detention and erroneous removal include the rending apart of families, etc. versus the cost to society of erroneously granting immigration relief.
But there has been a scarcity of national information about the benefits of government-provided deportation defense counsel. In other words, if noncitizens already can obtain affordable counsel, or are able to obtain accurate outcomes without lawyers, then the debate is merely sound and fury. Until now, we have had no way to know.
Eagly and Shaffer fill this cavernous ignorance. Theirs is the first national study of the difference that immigration lawyers make, and it’s powerful medicine. They examined (with the help, I can only assume, of everyone they know) over 1.2 million deportation cases decided between 2007 and 2012. Two percent (2%) of the studied noncitizens obtained pro bono representation. Thirty-seven percent (37%) overall obtained a lawyer. What was the difference that a lawyer makes? Not obvious to a layperson (especially one unversed in the complexities of U.S. immigration law) is that the most salient issue in immigration cases is not whether a deportability ground applies. Instead, most cases rise and fall on relief from an applicable deportability ground. And if you don’t ask for relief, odds are that good that you won’t get it.
Representation makes a difference, it turns out. Noncitizens with representation were fifteen times more likely to seek relief in immigration court, as compared to those without counsel. And the odds were five and a half times greater that immigrants with counsel, as opposed to those without, obtained relief from removal.
That’s great for the individual noncitizens, and their friends and family and anyone else who would have had to (a) exist, and (b) support them in order for their bid for relief to be successful. But what’s in it for everyone else, like U.S. taxpayers?
For one thing, representation is efficient. Here’s what they found:
[I]nvolvement of counsel was associated with certain gains in court efficiency: represented respondents brought fewer unmeritorious claims, were more likely to be released from custody, and, once released, were more likely to appear at their future deportation hearings.
But Eagly and Shaffer don’t stop there. They were curious about what factors affect the level of representation and what barriers might exist. There are three: detention, geography, and nationality.
The nationality figures are striking. We knew that Mexicans were by far the largest nationality group in removal proceedings. We might have suspected that they were also the least likely to be represented by counsel. But check out this disparity: Only 21% of the 574,448 Mexicans in removal proceedings had an attorney. “In sharp comparison,” say our authors, “the 40,397 Chinese placed in removal proceedings were represented in 92% of the cases.” And those are just the Mexicans who had access to immigration court, rather than experiencing administrative removal.
Recall that 37% national representation rate? That number drops to 14% for detained immigrants. Consider the fact that almost one-third of detained cases are adjudicated where most detention centers are located, in rural areas and small cities where immigration attorneys are in short supply, and you end up with facts like these:
The highest detained representation rate of 22% was in El Paso. The lowest—a shocking .002% over the entire six-year period of our study—occurred in Tucson, Arizona. We investigated further and learned that immigration judges in Tucson utilize a “quick court” in which expedited hearings are held in Border Patrol detention stations and judges’ chambers. The end result is the lowest representation rate in the country and lightning-fast processing times (97% of detained cases in Tucson were processed in one day).
Even Dr. Who couldn’t prepare for a removal hearing in that nick of time.
Here’s my one beef with this piece: the authors are a bit too mellow about the significance of their work. They state: “This research provides an essential data-driven understanding of immigration representation that should inform discussions of expanding access to counsel.”
That statement is not wrong. It’s just incomplete. The rest of it should read “and therefore our study should be airdropped on Congress and every state legislature in the country.” Some of them will like it. Lots.