Tag Archives: Immigration

Bringing Justice to Immigration Court, By the Numbers

Oct 14, 2026 Juliet StumpfImmigrationAdd a Comment

As the elevator rises through the federal office building in downtown Portland, Oregon, one expects the sliding doors to open onto rows of federal bureaucrats keystroking policy into reality. Instead, a narrow hallway leads to the lobby of two diminutive courtrooms. This administrative court, like others scattered across the nation, is where immigration judges daily determine whether noncitizens will be expelled from the United States or remain in permanent or liminal immigration status. Some noncitizens arrive with their lawyers. But many appear pro se, or sometimes not at all. Shining light on immigration courts, Ingrid Eagly and Steven Shafer published their groundbreaking study of immigrant representation in 2015, A National Study of Access to Counsel in Immigration Court. I fan-girled their work here, and watched their revelations impact legal scholarship, briefs, opinions, and media.

Then the world changed. Even as statutory reform remains stuck in cryo, immigration policy has lurched wildly—from lots of enforcement, to more, to still more, until now when proclamations of mass incarceration and deportation of the worst of the worst sear national headlines. Immigration courts have lurched in time, if not in tune, with these developments, with backlogs weighing down due process. Meantime, communities, NGOs, states and localities responded to the threat of removal of thousands of long-term residents by trying to expand representation of noncitizens in their communities. Eagly and Shafer did what any self-respecting empirical scholarly team would when faced with this new reality. They created a troika, adding co-author Renee Moulton, rolled up their sleeves, and went back to work. Access to Counsel in Immigration Court is a master class in translating empirical analysis into accessible and compelling analysis.

The scope of their project is so large you have to step back to see it. In this new report, the three authors analyzed more than 8 million deportation cases between 2006 and 2024 to deconstruct the state of legal representation in the U.S. immigration system. What they discovered is good news and bad news. Here’s the good news: more lawyers are representing more immigrants now than before, more immigration courts have more immigration judges (or had more), and when immigrants are represented in immigration court, they’re more likely to win. Here’s the bad news: the system is running a race it cannot win. More on that in a moment.

Here’s what you need to know first: the pool of people entering the deportation system today is much larger and more complex than twenty years ago. Nationality and geography heavily influence representation rates. Between the original study and this one, many nationalities saw their representation rates shift. The representation rates for Mexicans increased from 21 percent to 50 percent, and for Hondurans from 23 percent to 41 percent. But the study reveals a precipitous decrease in the rate of representation for Haitian nationals, from 71 percent to 43 percent. For immigrants from Colombia, the representation rate decreased from 64 percent to 35 percent.

Data from the last two decades shows a clear increase in the number of noncitizens with legal representation. As of 2012, only about 37 percent of immigrants were represented in court. After 2012, representation rates jumped to 52 percent. Representation of unaccompanied children played a major role in this change: their representation rate leaped to 62 percent. Part of this story is that between 2006 and 2024, the population of active representatives almost doubled. Most representation (99 percent) is provided by licensed attorneys. But representation by nonlawyers, such as law students and accredited representatives, makes important contributions to immigration court representation, and those experiences lead many accredited reps to become immigration lawyers.

Representation matters. Despite transformative shifts in the makeup of the client pool and the immigration bar, the study reveals that higher representation rates undoubtedly lead to better outcomes. Between 2013 and 2024, immigrants were overall 4.6 times more likely to avoid removal from the United States if they had counsel (14 percent versus 64 percent). For one thing, represented people tend to show up to court. Both studies consistently found that close to 94 percent of those who found representation attended all of their hearings. For those who claim that immigrants skip out on their hearings, more and better representation is the new bandwagon to jump on.

And representation for children really matters: with counsel, 73 percent of children succeeded in their removal cases, compared to only 15 percent of those without counsel. In other words, kids with lawyers were almost 5 times more likely to succeed than kids representing themselves. While it may seem obvious that kids with lawyers do (lots) better than kids without, not everyone seems to share that insight, so it’s nice to have data that backs it up.

Where an immigrant is located, and whether they are detained, makes a difference in whether they are likely to be represented and whether they are likely to succeed. Representation rates have risen in small cities and in courts attached to detention facilities. Detention matters now more than before: those released from detention or who were never detained saw a 13 percent jump in success in court since the last study period. Representation rates in detained courts ranged from a high of 22 percent in El Paso to close to zero in Tucson. For noncitizens held in carceral conditions, under tremendous pressure to end the ordeal by agreeing to deportation, representation can provide a reason to wait. And it often results in release on bond.

In the face of this news about the expansion of immigration representation, the authors sound a warning bell—several, actually. Representation in the ballooning number of pending cases decreased from 47% in 2012 to only 31% in 2024. Deportation defense practitioners are now stretched to the breaking point: In fiscal year 2024, only 16,976 representatives provided counsel for just over 1.4 million immigrants facing removal, leaving almost 2.9 million immigrants unrepresented.

The representation rate for those not detained has fallen from 66 percent to 57 percent between 2013 and 2024. The authors suggest that this decrease results from focusing resources on high-stakes detention centers, such as through Legal Orientation Programs. This drop in representation rates means that many immigrants are left to figure out the deportation system on their own. Geography matters too. Representation in non-detained courts varied from 87 percent in New York to just 47 percent in Kansas City and Atlanta.

And, although the immigration bar has grown, it is greener that it was in 2013. The median number of years of experience immigration attorneys have is three years. These rates suggest that a significant chunk of the immigration bar is new to the practice. The numbers may also indicate a rapid turnover rate.

Now, massive case backlogs, erratic policy changes in immigration adjudication, and an increase in resources dedicated to arrest, detention, and removal are pushing an increasing number of cases into immigration courts. Lawyers and courts are straining to keep up. The immigration case backlog has continued to balloon at a rate that outpaces the rate at which immigration judges decide cases.

And this brings me to my one complaint about this article, and that’s the title: (it’s Access to Counsel in Immigration Court, Revisited, in case you missed it). Don’t get me wrong—it is accurate, and it trips nicely off the tongue when spoken or sung (try it!). But it severely underplays the contribution the article makes. Broadly, this study comes to the same conclusion as the 2015 study, with data to back it up: that a lawyer can make or break the outcome of whether a noncitizen may stay or must go. But our authorial troika hasn’t merely revisited the original study. The piece makes a great leap forward, injecting valuable data and insights into scholarship, advocacy, and public dialogue, and it does so at a critical historical moment. I like it. Lots.

Beyond the Sovereign Prerogative: TWAILing Global Migration

Mar 19, 2026 Jaya Ramji-NogalesImmigrationAdd a Comment

What do we learn by reading the international law of migration from the perspective of migrants from the Global South? Deftly weaving together various strands from legal and social science literature to produce a brilliant new theoretical tapestry, Usha Natarajan’s book chapter, Third World Approaches to International Law (TWAIL) and Migration, offers a relational and contextual take on that question. She suggests three new ways of understanding international law in this sphere: as a harmful relationship between control and protection; as a constructor of categories that limit contestation; and as a phenomenon destructively co-constitutive of migration. This critique lays the groundwork for her proposal to build an international law of migration that is “more expansive, evidence-based and ethically consistent . . . as advocated for by TWAIL scholars.”

TWAIL is a movement of international legal academics that coalesces around a shared critique of the Global North’s domination of knowledge production in the field. TWAILers offer a diverse set of viewpoints and methodologies, yet share a commitment to foregrounding the perspectives of the people of the Third World in international law through policy-making, practice, and scholarship. Prof. Natarajan offers the reader both a useful overview of existing TWAIL literature on international migration law and an important new framing of that work, elucidating the synergies that emerge when the range of TWAIL insights are put in conversation with each other.

Prof. Natarajan’s first analytical move sets out two separate but related categories that constitute the international law of migration: laws of control, which determine who moves and who decides who can move, and laws of protection, which focus on the treatment of migrants. The chapter emphasizes the recency and contingency of control laws, describing how international law produces and normalizes the “sovereign prerogative,” manifested in extreme deference to state authority to control the movement of migrants. These laws of control construct the migrant as a vulnerable being, necessitating laws of protection to contest that vulnerability. Prof. Natarajan highlights the futility of this project, suggesting that laws of protection may be no more than an effort to salve the global community’s conscience in the face of exploitation and abuse of migrants, and to offer migrants hope for a brighter future that never materializes. She also explains insightfully the dangerous relationship between the two sets of laws, namely that “control laws ensure that protection laws are permanently necessary but inadequate.” This relational understanding of international migration law shines an incisive, critical light on the shortcomings of the field.

The second contribution draws together several strands of the legal and social science literatures, explaining the range of ways in which international law structures contemporary understandings of migration and limits the universe of available challenges. In short, international law fails to attend to migrants’ perspectives, instead constructing binaries and hierarchical categories that are disconnected from the reasons for and results of human mobility. The law creates exceedingly narrow categories of migrants who can avail themselves of the protections of non-refoulement, which is the only exception to the sovereign prerogative of border control. International law also prioritizes political and civil rights over social and economic rights as a basis for protection, creating arbitrary hierarchies of suffering. The law’s focus on crisis rather than systemic causes of migration precludes rational and sustainable governance of migration. These criticisms have been levied against international migration law and international law in general by a range of TWAIL scholars; the contribution of the chapter is to tie them together cohesively and coherently into an overarching critique of the law. Prof. Natarajan offers an important reminder that this constrained understanding is contingent, not natural, creating space to imagine more emancipatory futures.

Finally, the chapter offers a third valuable insight, namely that migration and international law are co-constitutive, defining and legitimating each other to the detriment of migrants. In the common understanding of international law, migration is a domestic matter, and all decisions about law, policy, and enforcement are made by the state. In other words, international law constructs a sovereign world that restricts human mobility by default, thereby creating the “migrant.” Prof. Natarajan contrasts contemporary international law’s restrictions on human movement with the centrality of migration to imperialism, supported by international legal legitimation of the mass migration of settler colonials from Europe to the Global South. She links this paradox with international law’s preoccupation with mobility to the Global North, and the looming specter of “brown hordes” at the border, despite the reality that most human movement occurs within the Global South. Without the “migrant” that it has constructed, the sovereign would lose substantial existential justification, and without the sovereign prerogative, Global South people on the move might be considered humans rather than migrants.

Prof. Natarajan offers an invaluable introduction to the TWAIL literature on international migration law, as well as an insightful synthesis of that work into an original theoretical framing of the field. She foregrounds a powerful call from TWAIL scholars to work towards a “legal framework more closely attuned to why people are moving, with a view to ensuring more humane and orderly population movement.” This chapter provides scholars and practitioners with a formidable foundation to guide the struggle towards that future.

Migration as Extraction

Jul 28, 2025 Jaya Ramji-NogalesImmigrationAdd a Comment

What would a theory of migration that takes seriously the lived expertise of migrants and their families contribute to the scholarly conversation? Drawing from extensive qualitative interviews in Mexico with community members who journeyed to the United States to seek work and those they left behind, Prof. Ragini Shah has a compelling answer: a theory of migration as extraction. The thesis of her new book, Constructed Movements: Extraction and Resistance in Mexican Migrant Communities, builds on prior work on decolonizing migration and migrations as reparations, evolving those critiques into a comprehensive theory of migration.

This brilliant new work begins with the voices of migrants themselves, offering insightful quotes and a firsthand understanding of the journey to El Norte and its impact on individuals, families, and communities. One of the invaluable contributions that this qualitative work offers is a clear description of the emotional cost of migration as extraction. The interviews provide powerful insights into this profound price that families paid and continue to pay, and the ongoing impacts on migrant communities. Prof. Shah describes a vicious cycle of dispossession, dismemberment of family relations, and exploitation, as well as a story of agency on the part of migrants.

Prof. Shah takes these lived expertise interventions seriously, not only for their individual perceptions, but also as a blueprint for the policy and theory contributions of the book. From the insights of her interviews with migrants and the loved ones they leave behind, Prof. Shah builds a comprehensive theory of migration as extraction. She provides the reader with invaluable historical context, describing the political economy dimensions of this migration, offering a structural framework to understand the exploitation and profound harms these families have suffered as part of a broader pattern imposed on migrant-sending countries by migrant-receiving countries. In particular, the book explains the role of global economic inequality and neocolonialism in constructing migration as extraction, dividing this phenomenon into three phases: dislocation, displacement, and entrenchment.

For the dislocation phase, Prof. Shah describes the uprooting of migrants in search of sustenance and the separation of families. Connecting the interviews with global neoliberal mandates, she explains how the International Monetary Fund’s policy of structural adjustment and the North American Free Trade Agreement profoundly weakened the public infrastructure in Mexico, driving down wages and dismantling access to education, two key factors that push families to migrate. For the displacement phase, Prof. Shah examines the process of labor recruitment and incarceration as well as the turn to coyotaje. She presents a timeline that delves deep into history, from Spanish colonization to the bracero programs to the maquiladoras, to provide a comprehensive description of the extractive nature of migration. For the entrenchment phase, Prof. Shah highlights the disinvestment cycle, family disintegration, and the remittance industry, explaining these phenomena and the role they play in perpetrating ongoing cycles of extractive migration.

These three phases are invaluable in describing the phenomenon of migration as extraction, and also lay a foundation for potential responses, examples of, and possibilities for resistance. Prof. Shah highlights the importance of the return of resources, local employment, and the repair of relationships with kin and land, a response that she describes as “the right not to migrate.” This right centers human autonomy, contesting the economic conditions at home that divest migrants of the choice to move. In particular, the lack of infrastructure, the lack of support for agriculture, and the lack of access to education are key problems that require investment in order to uphold the right not to migrate and to dismantle the phenomenon of migration as extraction. To this end, Prof. Shah highlights the importance of group-based resistance, drawing from the insight offered by one of her interviewees, Don Santos:

People think that migration is a benefit, but we don’t have anything in my pueblo. If we can get good work [in the United States], we can build a house for ourselves, buy clothes, a car. But it does nothing for the whole pueblo.

Immigration Detention Through the Lens of the County Jail

Apr 17, 2025 Rachel RosenbloomImmigrationAdd a Comment

With the Trump Administration threatening to carry out a wave of mass deportations, understanding the history of federal attempts to secure state and local cooperation in immigration enforcement feels more urgent than ever. Immigration law scholars have devoted considerable attention in recent years to the federal government’s deepening cooperation with state, county, and local law enforcement agencies, part of a growing focus within immigration law scholarship on the intersection of immigration law and criminal law (or “crimmigration law”). In large part, the story that legal scholars have told centers on the past three decades, a period in which both immigration detention and federal-state cooperation have dramatically expanded.

A new book from historian Brianna Nofil, The Migrant’s Jail: An American History of Mass Incarceration, makes a persuasive case for understanding such cooperation along a much longer timeline. Centering on the county jail, the book tells “a national story about local institutions” (P. 14), one that offers new insights into the dynamics of immigration federalism and the symbiotic relationship between the criminal legal system and the ostensibly civil regime of immigration law.

The Migrant’s Jail begins its story in 1903 in the Franklin County Jail in upstate New York, a 6-cell facility condemned as unsafe for use as a jail but used, regardless of its dangerous conditions, for holding Chinese migrants apprehended on the U.S.-Canada border. Most scholarship on immigration enforcement in the Chinese Exclusion era has focused on the Pacific coast, but Nofil offers a striking statistic: three-quarters of the Chinese migrants detained at the turn of the twentieth century were apprehended east of Ohio. Local jails in small towns like Malone, New York, played a central role in the machinery of Chinese exclusion, Nofil argues, and in the process, brought federal dollars into local economies. The sheriff in Malone, for example, could make a year’s salary in a single month by engaging in the “business” of detaining migrants.

This revenue stream is just one of the themes in Nofil’s account that will resonate with observers of contemporary immigration detention. Others include the government’s practice of moving detainees from one location to another to manipulate which court they ended up in; the government’s use of prosecutorial discretion to manage budgetary constraints and to defuse criticism when sympathetic cases garnered media attention; and the difficulties that detainees faced in accessing legal representation in remote locations.

From this starting point, The Migrant’s Jail traces the shifting geographies and institutional structures of migrant incarceration across the span of the twentieth century. By the 1920s, county jails held increasing numbers of Canadian and European migrants, including women and children. Local communities showed few qualms about subjecting racialized others to substandard conditions, but the specter of white women and children in such facilities prompted calls for reform. These debates played a substantial role, Nofil shows, in the establishment of the federal Bureau of Prisons in 1930.

The county jail temporarily recedes to the periphery in the middle chapters of The Migrant’s Jail, as the book turns to the expansion of federal facilities in the 1930s and ‘40s, the unprecedented scale of the detention of Japanese nationals as “enemy aliens” during World War II, the detention of suspected subversives at federal facilities such as Ellis Island in the postwar years, and the supposed decline of immigration detention with the passage of the McCarren-Walter Act in 1952. Nofil argues, however, that detention was far from over, and that “the immigration service never fully broke its bond with local jails.” (P. 85.) At the same time that the government was shutting down Ellis Island and beginning to release many European migrants on bond, it was also launching “Operation Wetback,” a massive enforcement campaign against Mexican migrants in the Southwest that depended on hundreds of county jails as well as newly constructed federal facilities.

The expansion of federal facilities in the Southwest, Nofil argues, “signaled that the federal government was ready to make serious investments in a permanent system of migrant incarceration.” (P. 117.) The Migrant’s Jail traces both the growth of these investments and the continuing salience of the county jail through the latter half of the twentieth century and into the twenty-first. Against the backdrop of the expansion of federal facilities and the advent of private prisons, Nofil’s focus remains on local cooperation and the flexibility that it offered the federal government.

Across these various contexts, Nofil documents the ways in which jails have long functioned as a “space that produced and confirmed racial difference.” (P. 30.) Detention, Nofil argues, has been most politically popular when it has targeted “people deemed racially unassimilable or unfit for citizenship – people whom many Americans imagined might belong in jail.” (P. 10.) In seeking local cooperation, the federal government has relied not only on offering financial incentives but also on promoting the idea of “unauthorized migration as an existential, racialized threat that demanded the assistance and resources of localities.” (P. 6.)

The Migrant’s Jail also shows, however, that this racialized, carceral logic has not gone uncontested. Drawing on an impressive range of sources, Nofil paints a vivid picture not only of the suffering and isolation that migrants experienced in custody, but also of the many acts of resistance, both large and small, that took place. County jails were “sites of coercion and neglect” but also “sites where migrants lodged legal claims, plotted escapes, organized with aid groups, and fought for the right to stay in the United States.” (P. 2.) Residents of cities and towns across the country have spoken out against contracts with federal immigration authorities and against federal detention facilities being situated in their communities. Immigrants’ rights groups have organized to protect detainees and have pursued sophisticated litigation strategies.

In telling this story, The Migrant’s Jail argues for a reconceptualization of the relationship between immigration enforcement and the criminal legal system. Crimmigration law scholars have written extensively about the importation of criminal law norms into the ostensibly civil realm of immigration law. Nofil argues that ideas traveled in both directions: “[I] immigration enforcement did not merely borrow the infrastructure, legal precedents, and practices of late twentieth-century criminal punishment. Instead, in countless small towns, suburbs, and cities, migrant incarceration activity expanded the power and capacity of local, state, and federal governments to imprison.” (P. 4.) Throughout the book, Nofil documents the emergence of an “interconnected carceral state.”

The Migrant’s Jail also offers a new perspective on immigration federalism. It is widely recognized that the power to restrict immigration shifted from state and local authorities to the federal government in the wake of the Civil War, and some have viewed recent attempts by states to reclaim some of this power as an attempt to turn back the clock. Nofil argues, however, that the post-Civil War shift was not as clear cut as it has been made out to be and that the detention of migrants in county jails in the early twentieth century returned some of the power to local communities, in ways that worked both for and against the interests of migrants: “Reliance on localities enabled unprecedented, large-scale deportations in some moments and incapacitated the immigration service in others.” (P. 13.)

The Migrant’s Jail is a welcome addition to recent scholarship on the history of immigration detention by scholars such as Kelly Lytle Hernández, Kristina Shull, Elliott Young, Jessica Ordaz, Ana Raquel Minian, and Carl Lindskoog. This growing body of work offers crucial insights that should inform the work of crimmigration law scholars.

Stateless Citizens and State Authority

Feb 17, 2025 Betsy FisherImmigrationAdd a Comment

When is a citizen stateless? This is not a children’s joke with a clever punchline; living with an entitlement to but without recognition as a citizen is the lived experience of untold numbers of people globally. It is also a matter of scholarly debate: are such individuals, entitled to nationality but unrecognized by their state, stateless? Or are they merely de facto stateless? Some have argued that such individuals are stateless, and that the term de facto statelessness is unhelpful. These scholars can point to the international definition of statelessness as someone ‘not considered as a national by any State under the operation of its law.’ The argument goes, if someone is entitled to nationality, but not considered as a national, they are stateless, full stop. Others point to the 1954 Convention’s failure to protect de facto stateless people as proof of its inadequacy to protect people without state protection.

Ghost Citizens joins this conversation, noting Prof. Jamie Chai Yun Liew’s view ‘that the legal fact of being conferred citizenship is important. As such, persons should be considered stateless until they are legally recognized as a citizen.’ But her monograph pushes further, arguing that we must also explore why the state determines who is a citizen to start with. Here, she joins the theoretical contributions arguing that genuine links to a state should establish a stateless person’s claim to citizenship.

Ghost Citizens focuses on the legal system and experiences of stateless people in Malaysia, but the volume understands that its lessons apply more broadly. Liew mentions that many of the book’s lessons would apply in other postcolonial states, and she also sees resonances from Canada, where she practices law. Indeed, the experiences of stateless people that she recounts strongly resemble the experiences of stateless people in the United States, which shares a fractured system with limited protections for stateless people and an emphasis on officials’ discretion.

Liew’s many talents as a lawyer, academic, storyteller, and interviewer are on display in this slim but rich and interdisciplinary book. Rooting the book in her family’s own experiences with statelessness, Liew engages with political and sociolegal theory; analyzes Malaysia’s legal system; and presents the personal experiences of stateless people, lawyers, and NGO representatives based on her ethnographic research.

The strength of this book lies both in its exploration of sociolegal theory as well as its meticulous evidence drawn from legal and ethnographic research with stateless individuals and advocates in Malaysia. Ghost Citizens offers a well-developed case study and provides a model framework for documenting and learning from stateless individuals and advocates. The volume expands the literature about the intersectionality of statelessness with gender discrimination, racial discrimination, and birth registration. It also further develops scholarship on statelessness in situ, offering an important caution against assuming the foreignness of stateless individuals and appropriateness of stateless determination procedures in all situations.

Finally, Liew’s concept of a ‘ghost citizen’ is an important theoretical contribution to the ongoing scholarly conversation on concepts of belonging and the right to nationality. Liew convincingly argues that we ought not to overly trust states, which are the primary obstacles for many stateless people in obtaining recognition as nationals, and that we should seek to move beyond state recognition of citizenship.

While attracted to Ayelet Shachar’s notion of jus nexi, Liew argues that theories of citizenship ought not to be separated from the experiences of stateless people. From her research and discussions with stateless people, she demonstrates that we should value any means by which states will recognize citizenship. She briefly introduces the concept of kinship as a possible basis to expand the concept of jus nexi, though this concept could use further development in future work.

Yet, this brings about a catch-22: Ghost Citizens argues that stateless people in situ ought to be able to gain citizenship based on their deep, social ties rather than through the state – but citizenship without state recognition is, simply stated, statelessness. State recognition as a citizen is essential to a stateless person not because states ought as a normative matter have the prerogative to decide who is a citizen, but because the state also decides who can access government services that make citizenship valuable. States are becoming more, not less, involved in determining who can access necessities like identification, healthcare, and education — and who can avoid criminalization and arbitrary detention.

Ghost Citizen, with its engaging style and insights, leaves one hoping that Liew will further develop the concept of kinship and the tension between social ties and the importance of state recognition in nationality. But Liew need not resolve this paradox; her call for citizenship based on genuine and effective links in no way conflicts with other strategies such as advocating with the state for recognition of individual’s claims to citizenship and pressing for broader inclusion of and access to services for noncitizens.