Tag Archives: Immigration

Who Should Set the Anti-Trafficking Agenda?

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.

Cite as: Jaya Ramji-Nogales, Who Should Set the Anti-Trafficking Agenda?, JOTWELL (March 8, 2017) (reviewing Janie Chuang, Giving as Governance? Philanthrocapitalism and Modern-Day Slavery Abolitionism, 62 UCLA L. Rev. 1516 (2015)), https://lex.jotwell.com/who-should-set-the-anti-trafficking-agenda/.
 
 

Problems Beyond Deportation

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.1

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.



  1. Nathalie Martin, Giving Credit Where Credit is Due: What We Can Learn from the Banking and Credit Habits of Undocumented Immigrants, 2015 Mich. L. Rev. 989, 1022-24 (2015). []
Cite as: Jill Family, Problems Beyond Deportation, JOTWELL (January 6, 2017) (reviewing Nathalie Martin, Survival in the Face of Scarcity: The Undocumented Immigrant Experience, 58 Ariz. L. Rev. 103 (2016)), https://lex.jotwell.com/problems-beyond-deportation/.
 
 

Undocumented Migrants and International Law

Jaya Ramji-Nogales, “The Right to Have Rights”: Undocumented Migrants and State Protection, 63 Kan. L. Rev. 1045 (2015).

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.

Cite as: Angela Banks, Undocumented Migrants and International Law, JOTWELL (June 30, 2016) (reviewing Jaya Ramji-Nogales, “The Right to Have Rights”: Undocumented Migrants and State Protection, 63 Kan. L. Rev. 1045 (2015)), https://lex.jotwell.com/undocumented-migrants-and-international-law/.
 
 

Getting it Wrong on Right to Counsel, By the Numbers

Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 64 U. Pa. L. Rev. 1 (2015).

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?

Data.

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.

Cite as: Juliet Stumpf, Getting it Wrong on Right to Counsel, By the Numbers, JOTWELL (May 30, 2016) (reviewing Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 64 U. Pa. L. Rev. 1 (2015)), https://lex.jotwell.com/getting-it-wrong-on-right-to-counsel-by-the-numbers/.
 
 

Rethinking International Law’s Responses to Refugee Flows

Tendayi Achiume, Syria, Cost-sharing, and the Responsibility to Protect Refugees, 100 Minn. L. Rev. 687 (2015).

Over the past few months, the world has been transfixed by the flows of Syrian refugees pouring into Europe. These mass movements were, of course, preceded by much larger populations fleeing Syria for neighboring countries such as Jordan, Lebanon, and Turkey; at last count, four million Syrians resided in these three states. Though international law mandates protection against refoulement, or return to Syria, for those who fit the definition of a refugee, the UN Refugee Convention says nothing about who should bear the costs of protecting these refugees. This is the gap that Tendayi Achiume seeks to fill in her forthcoming article, Syria, Cost-sharing, and the Responsibility to Protect Refugees.

The question of global cost-sharing for refugees is ground well-trod, perhaps most famously by Prof. Peter Schuck in his 1997 article, Refugee Burden-Sharing: A Modest Proposal. That controversial piece has since framed the debate around the topic. Prof. Achiume steps into this arena with a novel and provocative proposal: to leverage the international legal doctrine known as the Responsibility to Protect (RtoP) in order to frame international coordination around and equitable cost-sharing for refugees. Perhaps best known as the doctrine that enabled humanitarian intervention in Libya, RtoP is not without its critics, as Prof. Achiume readily acknowledges. Her article suggests using RtoP as a tool to address the free rider problem in responding to mass refugee flows while at the same time viewing the situation of Syrian refugees as a tool to rethink potential uses of RtoP on the world stage. Making this case is not a task for the faint of heart; Prof. Achiume’s combination of boldness and fine-grained attention to each layer of her complex argument will manage to convince even the most skeptical of readers to rethink their views of refugee cost-sharing and RtoP.

Prof. Achiume frames the situation in Syria as a problem of inequitable distribution of resources rather than a lack of resources. The primary responsibility for supporting Syrian refugees has fallen on its neighbors, who simply cannot bear the burden alone. Lebanon, which has been the hardest hit by the Syrian situation, now hosts approximately one million Syrians, a full quarter of its population. Yet donor countries have failed to provide adequate assistance; as of May 2015, the UN High Commissioner for Refugees’ Syrian Regional Refugee Response Plan, focused on assistance to Egypt, Iraq, Jordan, Lebanon, and Turkey was only 20% funded – one explanation for the large secondary flows of Syrians into Europe last summer. Prof. Achiume suggests that international law should frame international assistance for these refugees as obligatory rather than charitable in order to encourage the more equitable distribution of resources.

That law is of course nowhere to be found in the UN Refugee Convention, which studiously avoids the topic of mass influxes of refugees, let alone resources for addressing such flows. Rather than resuscitating the overused and threadbare argument that the Refugee Convention should be amended or otherwise updated to include such obligations, Prof. Achiume offers a novel insight: the situation of refugees is governed by multiple legal regimes. We can therefore locate elsewhere in existing international legal structures the obligation to equitably distribute resources to protect refugees.

Prof. Achiume steers the reader towards a particular structure: RtoP. This international legal doctrine, endorsed by UN member states and the UN Security Council, consists of three pillars. Pillar One focuses on a state’s obligations to its population; Pillar Two on the commitment of the international community to help states meet their Pillar One responsibilities, largely through international assistance and capacity-building; and the infamous Pillar three, which lays out the international community’s commitment to respond when a state “manifestly fails” to fulfill its responsibilities under Pillar One, first using pacific and, if those fail, coercive measures. The article focuses on Pillar Two and the role it could play in addressing the situation of Syrian refugees.

As Prof. Achiume recognizes, an RtoP approach is both less and more protective than an approach grounded in international refugee law. RtoP protects populations against only four relevant crimes: genocide, crimes against humanity, war crimes, and ethnic cleansing. While refugees fleeing Syria will be covered by this definition, in other scenarios, refugees who fall within the scope of the UN Refugee Convention definition will not be protected. But RtoP holds tantalizing promise, as Pillar Two is not territorially limited: it protects populations without regard to their geographic location. As long as they face a risk of RtoP crimes, refugees fall within the scope of RtoP wherever they are. Thus RtoP offers space for a nose under the tent of sovereign territoriality, a move that is all too rare when it comes to the movement of people under international law.

Prof. Achiume ends the paper with specific suggestions for implementing an RtoP approach, leveraging theoretical critiques of RtoP to design routes around the political roadblocks. She suggests that the UN Security Council could use its Chapter VII mandate to “maintain or restore international peace and security” to mandate compliance with a Comprehensive Plan of Action designed by the United Nations High Commissioner for Refugees. This is a creative approach, but the paper only gets more interesting from here. Taking on board the arguments of critical and realist skeptics, Prof. Achiume recognizes that both northern and southern states must support an RtoP approach for it to succeed. This is where refugee cost-sharing can revive RtoP – by prioritizing non-coercive measures, the doctrine could win the support of middle powers and southern states. This move also puts northern states in a double-bind; after supporting coercive action in Libya, they are hard pressed to reject non-coercive action. If they do, it will be clear that RtoP is simply, in Prof. Achiume’s words, “a Trojan horse for coercive foreign intervention.” In other words, this approach serves an information-forcing function that is useful regardless of the outcome. Substantively, northern states might also view the benefits to regional and international security as well as migration management from such an approach as in their self-interest.

Prof. Achiume’s article pushes the envelope in numerous exciting directions, not least by describing a mechanism for progressive development of international refugee law that does not require the drafting of a new treaty. While readers may quibble with some of its most ambitious proposals, the piece pushes the engaged reader to re-think deeply-held beliefs about refugee law and RtoP. This is exactly what the best scholarship should do.

Cite as: Jaya Ramji-Nogales, Rethinking International Law’s Responses to Refugee Flows, JOTWELL (May 16, 2016) (reviewing Tendayi Achiume, Syria, Cost-sharing, and the Responsibility to Protect Refugees, 100 Minn. L. Rev. 687 (2015)), https://lex.jotwell.com/rethinking-international-laws-responses-to-refugee-flows/.
 
 

A Need for Equity in Immigration Law (Congress, are you listening?)

Jason A. Cade, Enforcing Immigration Equity, 84 Fordham L. Rev. (forthcoming 2015), available at SSRN.

In the late twentieth century, Congress amended the immigration laws to severely limit the power of immigration judges, the agency’s adjudicators, to grant relief from removal on equitable grounds. At the same time, Congress expanded the categories of activities that render a foreign national removable. The result of the statutory tinkering was that it was much easier to be removable and much harder to be granted relief from removal.

The severity of those reforms is well known. Professor Jason Cade’s contribution to the discussion is that he persuasively argues that those statutory reforms from twenty years ago are linked to the most visible controversy in immigration law right now:  President Obama’s executive actions creating the chance for a temporary reprieve from removal.

Through Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), the executive branch has established criteria that agency adjudicators should consider in deciding whether to grant deferred action to an individual foreign national. Deferred action is a time-out from removal. It lets a foreign national know that he or she is a low priority for removal, but it does not erase removability, and provides no lawful immigration status. Deferred action is a revocable promise not to remove for a certain period of time. DACA is aimed at individuals who were brought to the United States as children but who do not have legal status. DAPA is aimed at parents of US citizens or parents of “green card” holders who do not have legal status.

Both DACA and DAPA are executive exercises of prosecutorial discretion. Congress does not appropriate to the executive sufficient funds to remove all 11 million individuals who are in the United States without permission. The executive prioritizes its removal efforts. DAPA has not been implemented, however, because a US District Court judge issued a preliminary injunction against it. According to the judge, DAPA violates the Administrative Procedure Act.

Professor Cade acknowledges this dispute about the legality of DAPA, but does not focus on it. Instead, Professor Cade ties DACA and DAPA back to those statutory reforms of the late twentieth century. His argument is that because Congress removed considerations of fairness and proportionality from the arena of immigration court adjudication, the pressure to inject equity into the system shifted to the executive officials who decide whether to begin removal proceedings. Back-end adjudicators used to be able to consider factors such as the nature of the offense, the length of residence and rehabilitation. Congress eliminated that kind of inquiry and replaced it with very high hurdles to cross to achieve cancellation of removal in immigration court. To Professor Cade, DAPA and DACA represent an effort to exercise prosecutorial discretion in a system where the “prosecutors”1 know that there is little chance for equity during adjudication. It is up to those deciding whether to place an individual in removal proceedings, then, to balance equities. If the initiation of removal proceedings surely will result in removal, then the executive branch may exercise its prosecutorial discretion to refrain from starting removal proceedings in the first place.

Professor Cade identifies several drawbacks to the status quo. He takes serious issue with the executive’s use of criminal history as a litmus test for whether an individual is worthy of prosecutorial discretion. Equity misses an entire population of foreign nationals, even if the encounter with the criminal justice system occurred tens of years ago and/or was a misdemeanor. Professor Cade argues that “some balancing should take place in individual cases, even for criminal aliens, in order for the removal system to be just.”(P. 45.) While Professor Cade acknowledges that it is good idea to give immigration enforcement agents the power to remove dangerous individuals, he stresses that “it does not follow that all removals of noncitizens with criminal history are justified.  . . . [N]ot all noncitizens with convictions or arrests are similarly situated.”(P. 45.)

Also, Professor Cade is uncomfortable with the inherent characteristics of what he calls “enforcement-based equity.”(P. 6.) He cites to the law enforcement bias of immigration prosecutors and their intense workloads as two reasons why equitable considerations and immigration enforcement are not a good fit. Professor Cade additionally observes that while equitable relief obtained from an immigration judge typically results in final, stable legal status in the United States, equitable relief obtained from an immigration prosecutor results only in a time out; it results in preservation of the status quo.

To ease the problems presented by enforcement-based equity, Professor Cade suggests statutory reform that would reinstate the ability of immigration judges to weigh equitable considerations in deciding whether an individual should be removed. This would release some of the pressure on front end enforcement officers, as there would be other avenues for equitable considerations to play a role. A parallel reform would be a statutory legalization program that would allow individuals to apply to become legal based on certain equities. This would shrink the pool of those eligible to be removed, allowing the executive to better focus on who of the remaining population should be removed.

I might dream a little bigger. I agree with Professor Cade that Congress stripped equity from the immigration court system and that we are feeling the repercussions. If there were a constitutional right to be with family, something akin to the Article 8 right to family life contained in the European Convention on Human Rights, then the entire analytical framework changes. Proportionality would become central to any decision to remove that involves the separation of family members. Congress would not be able to legislate away that kind of right. So far the Supreme Court has not acknowledged such a right, however.

Professor Cade is prudent to express his preferred solution, statutory reform, but at the same time to acknowledge that the congressional paralysis that has plagued immigration law reform likely will continue. In the absence of statutory reform, Professor Cade suggests that it will be up to executive exercises of discretion to inject equity into the removal process. He hopes that the executive branch continues to take seriously the burden Congress has placed on it by improving how it does so.

Congress, are you listening? It is time to reform the immigration statutes to inject equity back into the immigration court system. As Professor Cade observes, doing so not only would restore fairness to the system, but also would properly realign the equitable adjudication function to the immigration courts.

 



  1. Because immigration removal proceedings are civil, the government attorneys pursuing removal are not criminal law prosecutors. []
Cite as: Jill Family, A Need for Equity in Immigration Law (Congress, are you listening?), JOTWELL (November 10, 2015) (reviewing Jason A. Cade, Enforcing Immigration Equity, 84 Fordham L. Rev. (forthcoming 2015), available at SSRN), https://lex.jotwell.com/a-need-for-equity-in-immigration-law-congress-are-you-listening/.
 
 

Cultural Narratives and Legal Rights

A perennial question for scholars interested in social justice is how politically and socially marginalized groups can become full members of society. Jennifer Lee provides an important contribution to the literature addressing this issue. Building on insights from the social movement literature on strategic framing, Lee contends that strategic mainstreaming offers an opportunity for marginalized groups to obtain immediate benefits. Lee focuses on unauthorized immigrant workers and views strategic mainstreaming as a tool to successfully litigate workplace violations, petition for immigration status, and obtain desired public policy reforms.

Much has been written within the social science social movement literature about the role of frames and framing strategy in bringing about legal reform. Frames serve as tools for organizing and understanding information. Because of the relationship between cultural norms and law, framing offers a useful strategy for legal reform advocates. As Lee notes, “law is neither objective nor fixed but rather dependent on the relationship law shares with the dominant cultural and social patterns of society.” (P. 1068.) Consequently social movements seeking legal reform “are more powerful when the messages of the movement align with the values of mainstream culture.” (P. 1069.) Lee focuses on one type of framing strategy—mainstreaming. This is the process by which “interpretive frames correlated to dominant cultural values” are used “to create connections to mainstream society.” (P. 1064.) Through mainstreaming advocates seek to demonstrate common ground between those seeking reform and dominant cultural values.

Two interpretive frames have dominated the immigrant worker rights movement: the universality of being a worker frame and “immigrant workers as victims of criminal employers who fail to obey the rule of law” frame. (P. 1070.) Within the first frame immigrant workers are presented as “individuals who, like anyone else in the workforce, are seeking the same things out of life through the dignity of their work—the ability to survive independently and provide a better future for their children.” (P. 1069.) Immigrant workers are first and foremost workers. Average Americans are able to identify with immigrant workers through their common experience as workers. This frame also builds on the view of the United States as a place where anyone can accomplish the American Dream through hard work. The second predominant frame has been immigrant workers as victims of criminal employers. Within this frame immigrant workers are hard workers who have done what is expected of them and employers are criminals who steal wages and misclassify workers in order to reduce pay and benefits. This frame makes immigrant worker rights issues easy to address by creating a clear good actor (immigrant worker) and a clear bad actor (employer). This frame also resonates with an American tendency to criminalize social challenges. Lee demonstrates the effectiveness of these frames in the work of public interest lawyers and immigrant workers that address workplace violations in litigation, petitioning for immigration status, seeking public policy reform, and obtaining legal redress through direct action.

Lee does not simply advocate the use of mainstreaming by immigrant worker advocates, she argues for the use of strategic mainstreaming. Strategic mainstreaming builds on insights from the public interest lawyering literature. This literature has documented the various ways in which public interest lawyers contribute to the disempowerment of their clients by ignoring their voices. Lee seeks to avoid such disempowerment by requiring the participation of immigrant workers in the development and deployment of the cultural narratives used to draw connections between immigrant workers and mainstream cultural values.

Lee contends that strategic mainstreaming is an effective option for promoting not only the legal rights of immigrant workers, but also their broader inclusion in American society. Yet she acknowledges an important limitation of this approach to legal reform. Strategic mainstreaming does not attempt to transform dominant cultural values. Rather this strategy seeks to move immigrant workers from the margins of society by demonstrating their similarity to mainstream America. Yet relying on dominant cultural values may further entrench the justifications for the limited legal rights and protections for immigrant workers and other marginalized groups. For example, the immigrant workers as victims frame reinforces the idea that traditional civil law violations should be treated as criminal violations. While this frame may be useful for responding to wage theft and misclassifications, it also makes unauthorized immigrant workers vulnerable to claims that they are criminals due to their civil immigration violations. Furthermore it supports the idea that criminal law strategies should be used to address unauthorized migration. Lee acknowledges this as a challenge to using strategic mainstreaming. She notes that in the immigrant worker context use of this strategy can mean “disfavoring immigrant workers who do not fit the role of the ‘good immigrant’—the iconic hard worker or victim.” (P. 1066.) Despite this challenge, Lee concludes that strategic mainstreaming is worth pursuing because it results in “immediate benefits for real people, whether it is the receipt of monetary compensation, immigration status, or workplace reform.” (P. 1101.) She also views strategic mainstreaming as having the benefit of leading to personal empowerment when workers “own their own narratives.” It can also offer a way to develop alliances and coalitions based on broader identities such as the new working poor. (Pp. 1102-03.)

Lee offers a pragmatic approach for responding to the immediate needs of unauthorized immigrant workers. Her article thoughtfully utilizes the insights from the social science literature on social movements to change the perception of immigrant workers within the American imagination. This strategy can be successful in obtaining monetary compensation for wage theft, lawful immigration status, and specific workplace reforms. However, these achievements may come at the cost of reinforcing dominant conceptions of worthy immigrants.

Cite as: Angela Banks, Cultural Narratives and Legal Rights, JOTWELL (September 9, 2015) (reviewing Jennifer J. Lee, Outsiders Looking In: Advancing the Immigrant Worker Movement Through Strategic Mainstreaming, 2014 Utah L. Rev. 1063 (2015)), https://lex.jotwell.com/cultural-narratives-and-legal-rights/.
 
 

Questioning Compliance with Immigration Law

Lives and loves and wars have been lost because of assumptions about what other people thought or did. Our immigration laws and policies often rely on popular misconceptions about why people come to the United States without authorization and what will deter them or compel them to leave. Popular ideas about unlawfully present noncitizens have shifted over time toward a view that unauthorized border crossers are criminal aliens who constitute the kind of crisis that require the combined forces of the immigration and criminal enforcement systems to regulate.

Yet without knowing what unlawfully present noncitizens actually think or believe, it’s hard to say whether those laws and policies have it right. In Less Enforcement, More Compliance, Emily Ryo has confronted this question of what unlawfully-present people think about their own presence in the U.S. by doing what seems both obvious and fraught with obstacles: she asked them.

More precisely, she asked sixty-four current and prospective unauthorized immigrants from Latin America at migrant and day-labor centers and sites about why they decided to come, what that was like, and why they continue to work and reside in the United States in violation of U.S. immigration laws. The interviews explored their knowledge of U.S. immigration law, their border crossing experiences, and their attitudes toward the U.S. government, Americans, and U.S. immigration law.

I like this article (lots) because it exemplifies a trend that other intrepid legal scholars began of going into the field to explore interesting questions about crimmigration, like whether prosecutors really care about the immigration consequences of a conviction (they do), whether political partisanship is more significant than changing demographics in driving states and cities to pass anti-immigrant laws (it is), or whether race correlates with how immigration enforcement is rolled out (it sure looks that way).

Here is the question that intrigued Ryo: how does the unlawfulness of unauthorized border-crossing impact noncitizens’ view of themselves as law-abiding? She discovered that the people interviewed viewed themselves as “moral, law-abiding individuals who respect law and order” and not as “delinquents” and “criminals.” Moreover, many spoke of their respect for the sanctity of national borders and their belief that it is appropriate for sovereign nations to control their borders, invoking the analogy of the homeowner’s prerogative to decide to host a guest. How, then, do immigrants reconcile these views with their current or planned noncompliance with U.S. immigration law?

Ryo analyzes the “neutralization techniques”—culturally acceptable legitimations—that permit noncitizens to disobey U.S. immigration law and see themselves as law-abiding. She identifies a number of them; this post will highlight just a few.

First, the noncitizens raised narratives of personal blamelessness for their situation, combined with a higher loyalty they felt they owed their families, especially their children. While that higher responsibility “called for drastic action—even illegal action,” disobeying immigration law was of a different moral caliber than committing unrelated crimes or otherwise causing injury to others. Even dire poverty or familial need did not justify harm-causing criminal or civil disobedience. As one interviewee put it, “Immigration law is different from other laws. Immigrants who come to work should not be compared to those who kill or those who steal.”

This “neutralization” comes with a cost. When asked about whether unauthorized immigrants caused potential harm to native workers, racial stereotypes emerged, such as the trope of the black welfare recipient, that reinforced interviewees’ beliefs that they were not displacing native workers. Ryo explained that the “internalization of racial stereotypes and imagined racial hierarchy by newcomers who have yet to be assimilated into U.S. society is a testament to the continuing salience of race in American life and to an understanding of the American racial hierarchy that is international in its reach.”

Class and race played a much more nuanced role in the noncitizens’ perceptions of the legitimacy of the U.S. immigration system, in which only the rich obtain U.S. visas, and skin color plays a crucial role in evading enforcement. A broadly shared view was that immigrants from Latin America were at a significant disadvantage within the system as a whole, and “mixing” with Americans or passing as white was critical to the success of the project of unlawful entry and remaining. Seeing the system as fair was further endangered by the “prevailing sense that the U.S. immigration system granted greater opportunities for certain national-origin groups based on capricious and ever-changing international politics” rather than a clear set of rules.

Ryo concludes that these noncitizens’ belief that the U.S. immigration law system is immoral lends support to their view that violations of the system may be “the only viable moral choice under the circumstances.” Her prescriptions—that the U.S. craft a development strategy that promotes job opportunities, and set up an expanded temporary worker program that would permit circular migration of workers—lines up, perhaps for the first time, with empirical data about why those programs might increase compliance with immigration law.

Thanks to Ryo we now know that “legal” and “honorable” work and commitments to economic stability for family are moral values that influence decisions to engage in violations of immigration law. Establishing a viable, legal way to fulfill these moral values may encourage timely circular migration among those present in the U.S. and “motivate prospective immigrants to wait to enter legally rather than attempt to cross illegally.”

We’ve all had the experience of thinking we knew what someone else was thinking. Sometimes it pays just to ask.

Cite as: Juliet Stumpf, Questioning Compliance with Immigration Law, JOTWELL (June 26, 2015) (reviewing Emily Ryo, Less Enforcement, More Compliance: Rethinking Unauthorized Migration, 62 UCLA L. Rev. 622 (2015)), https://lex.jotwell.com/questioning-compliance-with-immigration-law/.
 
 

The Borders of Human Rights

Moria Paz, Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls (Stanford Public Law Working Paper No. 2526521), available at SSRN.

What is the relationship between international human rights law and migration? Though many might assume a simple one – human rights protect migrants – the reality is much more complex, raising profound questions about state sovereignty, politics, and the nature of international law. In her new paper, Human Rights, Immigration and Border Walls, Moria Paz maps out the central tension of this relationship, providing an insightful and balanced description of deep structural problems with the current human rights approach to migration.

Paz defines clearly for the reader the tension between sovereignty and individual rights that underpins the relationship between human rights and migration. She argues that the two normative doctrinal approaches available to resolve questions of migration necessarily clash. According to Paz, the human rights approach locates the right to a minimum level of human dignity in the individual, whether or not that individual has complied with formal immigration requirements. Yet these rights exist in a statist international legal regime that provides states with absolute authority to decide who can enter, “under what conditions, and with what legal consequences.” In other words, states and their members have the right to decide who can become a member of their political community and how the state’s resources will be allocated. This tension is, of course, grounded in age-old questions about international law’s ability to constrain state behavior. Yet the highly politicized nature of migration law sharpens this perennial conflict, leading to interesting and unexpected outcomes.

Paz argues that human rights courts and treaty bodies have increasingly resolved this tension in favor of human rights by expanding substantive protection standards in the direction of more absolute rights for migrants. The heart of her paper, and a terrific contribution to the literature, is here. She highlights an important structural problem with this approach: courts have extended the reach of human rights protection by grounding jurisdiction in theories of territory and effective control. In the context of migration, these theories are of course self-defeating, and Paz explains lucidly why they are so problematic. Here her paper steps beyond international law, and asks important questions about law itself and its ability to constrain politics. Paz offers a cautionary tale of overreach and backlash.

The structural problem she describes is an ongoing struggle with the legacy of Westphalia, the international legal scholar’s shorthand for the delineation of rights by territory and its proxies. Paz notes that this approach is problematic from both directions. For individuals, a territorial delineation of rights privileges proximity and capacity to gain access rather than substantive immigration or protection needs. It doesn’t work for the states either, as their allocation of migrants depends on whether they have accessible borders or suffering neighbors rather than on their ability to assist or incorporate those migrants.

As a result, Paz explains, not only has the human rights approach to migration failed, but it has actually given rise to border walls. She begins her explanation of this phenomenon by categorizing current jurisprudence into three buckets. First, the human rights tradition would find that states owe protective duties on both sides of the wall. In other words, jurisdiction is based on proximity to the border. Paz labels this the “wall as bridge” approach. Second, under a statist tradition, the state owes protective duties only to migrants who have entered the territory – the classic jurisdiction based on territory approach. This she labels the “wall as barrier” approach. Finally, Paz describes a compromise approach in which migrants obtain thin procedural rights outside and strong rights only inside the territory. In her words, the wall softens jurisdiction back to geography. Paz makes a compelling argument that these approaches are all problematic.

I won’t walk in detail through her exploration of “backdoor human rights protections” that the UN Human Rights Committee and European Court of Human Rights have implemented “to counteract sovereignty” – suffice to say that she offers a clear and detailed analysis of the case law that’s well worth a read. Paz describes the ways in which norms around family unity and private life as well as prohibitions on refoulement to torture have expanded to offer increased access to human rights by non-nationals. These adjudicators have both read norms more strictly and more absolutely, and have grown substantive protections beyond their original definitions. Yet jurisdiction has still been correlated with physicality grounded in territory. In other words, these human rights bodies offer more rights, but migrants have to reach a country’s shores in order to obtain those rights.

This grounding in territoriality enables backlash through “front-end strategies of immigration control.” Paz argues that because these rights attach to territorial access, states have responded by tightening their immigration policies through interdiction and border walls. In other words, in order to avoid activating these increasingly stringent human rights obligations, states have created physical boundaries to prevent entry by land or by sea. She offers several examples of human rights decisions about the latter situation, but notes that no human rights body has yet examined the question of rights that apply at a border wall.

Paz illustrates the shortcomings of current approaches by presenting this undecided question: when and how do human rights attach to individuals approaching border walls? Under the human rights tradition, she suggests, if human rights bodies guarantee rights to non-nationals approaching a wall, this may lead to withdrawal by states from their human rights obligations. The statist tradition suggests that a state has power to build a wall on its own territory and to decide to whom it owes obligations. Such an approach essentially would constitute a deferral to Northern states’ interests and a sacrifice of norms concerning universal and fundamental dignity. Finally, the compromise would be to distinguish between land and sea borders, providing different rights for different people. Again, Paz highlights the flaws in such an approach, as it would create too many distinctions that do not make sense.

The paper ends with a tantalizing proposal for reform. Paz suggests that international law should shift from its current concern with access to a focus on actual protection and consequences for the individual and the state. In terms of the individual, the international legal regime would focus on the nature of the misery to be alleviated and the process by which such misery should be assessed. For host states, this shift could create alternate means, apart from physicality, for distributing protective duties. Her vision leaves plenty of details to be worked out, which hopefully will be the topic of a future research project.

In the meantime, Paz has illuminated the central quandary in the relationship between human rights and migration. The current “focus on physicality . . . substitutes complex political criteria . . . with a set of arbitrary rules that require [answers to] relatively simple questions.” This approach hands to courts questions unresolved politically, thereby avoiding the messier, though potentially ultimately more effective, practice of negotiation, compromise, and politics.

Cite as: Jaya Ramji-Nogales, The Borders of Human Rights, JOTWELL (April 1, 2015) (reviewing Moria Paz, Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls (Stanford Public Law Working Paper No. 2526521), available at SSRN), https://lex.jotwell.com/the-borders-of-human-rights/.
 
 

Citizenship for the Worthy Children

Immigrant children are the subjects of varying narratives. To some, immigrant children fleeing Central America are invaders, while others view these children as innocent bystanders who are reaching out to the United States for protection from unimaginable violence. The narrative matters and it influences public perception. In Defining American: The DREAM Act, Immigration Reform and Citizenship, Elizabeth Keyes takes a close look at the narratives pursued in support of the DREAM Act and identifies danger posed by a narrative that promotes legal status and eventual citizenship for worthy and blameless immigrants. Keyes takes a narrative that seems unobjectionable and uncovers a major negative consequence.  Creating the worthy category necessarily creates a category of individuals undeserving under the law.

The Development, Relief, and Education for Minors Act, or DREAM Act, has been on the congressional agenda for almost 15 years, but has yet to make its way to the President for signature. The DREAM Act would put certain individuals who currently lack legal immigration status on a path to legal status, with the potential of eventual US citizenship. The criteria generally include entrance to the United States before the age of 16, achievement of certain educational milestones or military service, continuous residence in the United States, and possession of “good moral character.” In the face of legislative defeat of the DREAM Act, the Obama administration used similar criteria to implement the Deferred Action for Childhood Arrivals (DACA) program, which does not provide legal immigration status but does provide work authorization and a promise that the US government will not pursue deportation for two years.

Keyes focuses her attention on a narrative used to promote the DREAM Act and its policies of inclusion and formal recognition of attachment to the United States. Keyes identifies a “strategy of citizenship based on worthiness,” and then examines the hidden costs of that strategy. Keyes argues that promoting the DREAM Act as benefitting blameless immigrant youth with stories that connect with the traditional American dream narrows the category of those who generally are deemed worthy of citizenship.

By examining the efforts of those supporting the DREAM Act, Keyes identifies an overarching narrative that connects the story of DREAM Act eligible youth to the quintessential story of the American dream. Keyes explains that the “typical DREAMer narrative is one of success against great odds.” Immigrant youth, through no fault of their own, were brought to the United States without permission. Despite these beginnings, the DREAM Act would recognize those who have overcome the odds and achieved a high school diploma or more. These immigrants played no role in creating the fact of their illegal status—they are blameless—and their commitment to the American values of success and hard work establishes their worthiness as well. Keyes also notes that this narrative emphasizes the patriotism of the youth, either through qualifying military service or more generally through attachment to the United States. Those arguing in favor of the DREAM Act focus on how these immigrant youth already feel American and that their lack of citizenship is a formality. The idea is that these individuals are already citizens in their hearts, if not in the formal records of the US government. The narrative also promotes virtue by excluding all of those with criminal backgrounds except for the most minor offenses.

While Keyes recognizes that this narrative is not disingenuous and that it serves the noble purpose of pushing for legal status for a deserving and racially diverse group of foreign nationals, Keyes opens our eyes to the danger of pursuing a narrative that divides immigrants into categories of worthy and not worthy. In Keyes’ words: “The worthiness narrative that makes the DREAM movement compelling raises a challenging question: If worthiness is the way that these immigrants of color are able to claim citizenship—if the politics demand that high burden—does that open the door to denying citizenship to those deemed unworthy?”

This is, indeed, a challenging question, and Keyes guides us throughit. Keyes points out that the DREAM Act narrative of blameless children inherently creates a category of parents who are to blame, and generally sets a high bar for sorting immigrants worthy of gaining legal status from those who are unworthy. This has consequences for the debate over immigration reform generally, which would potentially provide a path to legal status for a wider group of individuals, including those who are arguably “to blame” for their current illegal status. Also, Keyes explains that the narratives of worthiness, virtue and patriotism make it possible to argue that those who have not achieved educational objectives or whose connections to the United States are not as lengthy are too different from the deserving group, the DREAM Act kids, to merit their own path to legal status. Keyes is not optimistic that the DREAM Act narrative will have positive trickle down effects for other immigrant groups. She views any coattails as very short.

Keyes presents us with a conundrum worthy of further inquiry. The dangers Keyes identifies illuminate the difficulties of line drawing once immigration advocates accept the broad proposition that some are more or less worthy of formal status within American society. As Keyes identifies, this phenomenon affects more than just the debate over who should be eligible to earn legal status. It also implicates birthright citizenship, as proponents of eliminating birthright citizenship have seized upon a narrative that those who benefit from US citizenship at birth simply because of geographic location in the United States at birth are not as deserving as those who earned US citizenship through perceived greater connections to the United States.

Keyes’ article leaves unanswered the question of where Keyes would draw the line between worthy and unworthy, or whether she would not draw a line at all. Keyes leaves us to wonder what alternative narratives DREAM Act proponents should pursue. Nevertheless, Keyes’ article opens our eyes to the downsides of the DREAM Act narrative and puts us in a position to examine questions that naturally follow her analysis. While political effectiveness may demand narratives that make immigration reform more palatable for some, Keyes reminds us that powerful narratives may have powerful unintended consequences.

Cite as: Jill Family, Citizenship for the Worthy Children, JOTWELL (November 17, 2014) (reviewing Elizabeth Keyes, Defining American: The DREAM Act, Immigration Reform and Citizenship, 14 Nev. L. J. 101 (2014)), https://lex.jotwell.com/citizenship-for-the-worthy-children/.