By David Bennion
(Editor’s Note: The following article was originally written in August 2017 for the site OpenBorders.info)
Jawziya Zaman, a former immigration attorney, wrote a piece in Dissent Magazine last month about why she left the practice of immigration law. She wrote about the internal conflict attorneys face in advocating for their clients’ material interests by collaborating with the government to suppress clients’ inherent human dignity.
Zaman practiced immigration law in San Francisco for four years, leaving her job shortly before Trump was elected. She relayed some positive aspects of her work: working with supportive and dedicated colleagues and achieving life-changing outcomes for her clients. Yet, the frustrations of the work eventually drove her from the profession, even before Trump’s candidacy and election unleashed a whirlwind of chaos and hostility upon immigrants in the U.S.
My frustration with the job, I learned, had to do with how I felt implicated in the flawed premises of immigration law, including its reductionist narratives about other countries and its dehumanization of foreigners. In virtually every case involving defense against deportation, the law insisted that I reinforce tired stereotypes about the global South and force clients to undergo a ritual flagellation before they could be granted the privilege of remaining in the country.
As an attorney gradually extracting myself from the daily practice of immigration law after nearly 11 years, Zaman’s analysis resonated powerfully with me. The contradictions and hypocrisy of the immigration system, which reflects the U.S.’s problematic position in the world and the injustice of the current global order, became too much for me to bear.
Zaman highlights the dissonance of protesting detention of Muslims at airports while ignoring civilian victims of U.S. bombing in Yemen and other predominantly Muslim countries. She asks, “Is it only by virtue of seeking entry into this country that foreigners become human beings worthy of our regard?”
She notes the irony of a legal system that rejects and punishes migrants fleeing from problems caused by U.S. foreign policy. She writes about the wrongs the U.S. has committed in the guise of national defense, foreign policy, development, and trade. Many of these policies have contributed to violence, poverty, and instability that have made migration the least bad choice for many people. For the U.S. to not only reject but morally condemn those same migrants constitutes rank hypocrisy.
Zaman highlights several grating elements of the immigration legal system:
[T]o add insult to injury, the law demands that immigrants renounce the place of their birth and take a kind of medieval oath of fealty to the United States.
. . .
The bedrock upon which the defense and the prosecution build their arguments in virtually every case is the same: America is the superior option—it’s better than wherever you came from.
. . .
Different circumstances call for different forms of legal relief, but a central feature in many of our cases is that our client did wrong and now he’s terribly sorry. Confession and penance are akin to sacraments in immigration law, and the process of asking the government to pardon your client’s digressions is a disconcerting combination of formulaic and theatrical.
These assertions are consistent with my experience. Arbitrary outcomes and nonsensical legal concepts like “crimes involving moral turpitude” support the argument that immigration adjudication is more a moral or social judgment than a legal one.
Immigration law often departs from formal principles of the rule of law such as predictability, transparency, and impartiality. Immigration law is complex and opaque, with laws, regulations, case decisions, policies, and guidelines scattered across dozens of court and agency websites.
Few sources of law are available in any language other than English, which of course many immigrants do not speak or read. Some immigration laws have been retroactively applied. Due to gridlock in Congress, much of immigration law has shifted from clear statutory rules to discretionary or temporary guidelines, which further decreases predictability of outcomes.
In the wake of the influx of Central American child refugees in 2014, the president of the National Association of Immigration Judges described immigration cases as “death penalty cases heard in traffic court settings.” Immigration Courts are administrative courts that are part of the executive branch, not the independent judiciary. As a part of the Department of Justice, they retain an implied prosecutorial mandate.
Asylum denial rates among judges vary from 3% to 99%, a disparity that demonstrates the incredible discretion vested in judges. Due process is more limited in the immigration context than in the criminal system. The federal rules of evidence do not formally apply and are often waived or ignored by immigration judges. Many immigrants in deportation proceedings do not have a lawyer, since court-appointed counsel is not required to be provided even for indigent non-citizens. Perhaps unsurprisingly, these systemic factors make deportation defense so difficult that hundreds–perhaps thousands–of U.S. citizens are likely deported every year.
If the immigration legal system is disconnected from the principles of rule of law, something else must be driving immigration adjudication. Following up on Zaman’s piece and based on my own experience, the unwritten principles of immigration law can be distilled as follows:
- You have no right to be here. Your presence depends on the government’s forbearance and your willingness to participate in your own ritual humiliation. This country and the people who truly belong here owe you nothing, which is why judges, bureaucrats, prosecutors, and even your own defense counsel can transgress social norms and ethical rules with impunity. By being here, you have violated a critical norm. This is true even if your presence in the U.S. is technically legal, for instance, if one of the federal immigration agencies made a legally erroneous determination that landed you in court or if you applied for asylum, which is legal under domestic and international law.
- Your country of origin is inferior to the U.S. in some essential way. Your government abuses or neglects its people; your compatriots subscribe to racist, homophobic, or misogynist ideas; your legal and economic systems are irredeemably corrupt and ineffective; or your culture fails to produce in its people whatever characteristic makes Americans successful and prosperous. The U.S. has avoided these pitfalls through the perseverance and foresight of its people. At home and abroad, the U.S. government respects human rights and the rule of law, fosters prosperity, and is, in the words of Ronald Reagan, “a beacon of freedom and opportunity.” Americans are always and everywhere the good guys; you and your culture, however, are guilty until proven innocent.
- You are nothing–less than nothing–but if you prove yourself worthy, you too can receive the bounty that awaits the chosen few. In its benevolence, the U.S. has opened its arms to you, one among the huddled masses yearning to breathe free. But only if you don’t screw up the paperwork. Your diligence in that regard will signify your worthiness.
Of course, these “principles” have little to do with justice, rule of law, security, or any defensible moral code. Instead, they are predicated on the racist underpinnings of the immigration system and fundamental ingroup/outgroup dynamics.
In her piece, Zaman captures the indignity of the performative humiliation that is often required of clients in order to avoid deportation. Defense counsel is typically expected to join in the ritual shaming. Not doing so can imperil the defense in individual cases and even damage the advocate’s ability to effectively represent other clients. Maintaining cordial relationships with counsel for the government can pay clear dividends, as the ICE and DOJ attorneys have remarkable influence to impact the ultimate decision under the legal principle of “prosecutorial discretion.”
To conserve law enforcement resources, prosecutors have ample discretion regarding the filing of charges, availability of defenses, and ultimate outcome. During the Obama administration, prosecutorial discretion became even more central to the immigration regime. Prosecutorial discretion provided the legal justification for the Deferred Action for Childhood Arrivals (DACA) program, the proposed extension of deferred action to a larger subset of immigrants, and the enforcement priorities guidelines that allowed tens and possibly hundreds of thousands of people to stave off deportation.
While hostile judges can find a justification under the law to deny almost any case that comes before them, sympathetic judges and prosecutors can utilize discretion to grant relief in cases that would not warrant relief under a strict reading of the law. The robust discretion granted to prosecutors and judges creates an incentive for counsel to try to stay in their good graces.
As Zaman notes, immigration cases typically begin with a concession of the defendant’s deportability. Early in the Obama administration, a colleague and I challenged that presumption at the outset of several cases at the legal services nonprofit we worked at, filing “motions to suppress” evidence of nationality in an effort to stop deportation cases before they could really begin. We argued that the government did not have sufficient evidence to prove legal deportability, having obtained the evidence in violation of the Constitution’s prohibition on unlawful search and seizure through home raids or pretextual police stops.
While this legal strategy had been pioneered in other courts by attorneys like Rex Chen, it was new to the Philadelphia Immigration Court. The ICE prosecutors’ response to our approach was one of disbelief and indignation. The judges were initially baffled. We weren’t playing along like we were supposed to: first yield, then plead for mercy. Eventually, the judges and ICE attorneys got used to suppression cases, and they became another tool in the litigator’s toolbox.
Zaman described a particular case where a client of hers, an older Korean man, was initially unwilling to perform penance to win his case. He wasn’t willing to relinquish his inherent dignity so easily. But when confronted with the immense situational pressure of an immigration hearing, and fearing the stark consequences of failure, he submitted.
Reading that description, I recalled a former client of mine who had committed some minor infraction, the details of which now escape me, and was applying for his green card. He had a forthright and unapologetic demeanor. I suggested, with the infraction in mind, that he adopt a more humble attitude during his green card interview. As soon as he figured out what I was trying to say, he said he would do nothing of the kind. His case was approved anyway, and I regretted my advice.
I fear that many of my undocumented clients have internalized U.S. society’s expectations of them: to be humble, law abiding, hard-working, and family oriented. They are defined by their economic contributions and family connections to U.S. citizens. They ask for nothing more than the opportunity to work to support their families.
This narrative is demeaning and ratifies the de facto caste system our immigration system produces. It elides the exploitative nature of the U.S. economic system. I am encouraged when immigrant activists and organizers refuse to adopt the deferential attitude they are expected to have.
Undocumented immigrants have suffered systemic oppression for decades, without regard to the party in power. The scenarios that clients of mine or of my colleagues have endured are too numerous to recount here. They include:
- A man knocked unconscious by police in pursuit of another suspect was charged with assaulting the police and put into deportation proceedings.
- An asylum applicant who panicked and tried to flee to Canada to apply for asylum there was stopped by U.S. border patrol on his way across the border, imprisoned, and deported back to his birthplace. (He would not have been subject to the Safe Third Country Agreement, had he been able to enter Canada.)
- An infant 10 days old was imprisoned with her asylum-seeking mother. U.S. officials claimed the baby was on her way to the U.S. to work.
- After a 19-year-old mother imprisoned with her daughter at one of President Obama’s infamous “baby jails” was the victim of institutional rape by a guard, the prison forbade the inmates from wearing “tight-fitting” clothing. The prison added several paragraphs to the Spanish version of the inmate handbook instructing women how to modify their behavior to avoid being assaulted at the prison, instructions that were missing from the English version.
- A woman who had been trafficked into sex work by a transnational criminal syndicate was “freed” by ICE in a raid of the house where the women were being held. ICE referred her to a local nonprofit and washed their hands of the matter. She declined to fight her deportation, since the traffickers had threatened her children who had remained in her country. She most likely either remained in the U.S. or left and was re-trafficked, either way returning into the arms of her traffickers.
- A woman presented herself at a port of entry at the U.S.-Mexico border as part of a group seeking asylum. To pressure her to relinquish her claim, U.S. officials took her U.S.-citizen children into custody and turned them over to local child welfare officials to be placed into the foster system.
Each of these examples occurred under the Obama administration. It didn’t matter to these people whether or not George W. Bush and Donald Trump were “worse” on immigration policy than Obama. The system designed to crush immigrant lives has long been a bipartisan endeavor.
In evaluating a client’s mental state in order to provide evidence of trauma to support an application for relief in immigration court, mental health practitioners unfamiliar with the immigration system at first point to causative factors stemming from the deportation process itself.
These factors can include detention or the threat of detention, the threat of long-term separation from family members, and the paralyzing uncertainty produced by an open-ended and inscrutable legal process. Experienced mental health evaluators know that most judges and prosecutors are blind to harm caused by the deportation process. Even judges who might empathize with a client typically discount such factors, following conventional interpretation of case law. Immigration attorneys soon find that one of their jobs is to persuade clients to jettison their existing ideas about what U.S. society claims to value, since traversing the treacherous path to safety may require it.
I’ve started to tally asylum cases where the harm visited on my clients by the U.S. government or actors the government is unable or unwilling to control would satisfy the legal standard for asylum, were that harm to occur in another country. It happens more often that we might like to admit.
As Zaman notes, the practice of compelling people to denounce their home countries and cultures is troubling. Migrants’ relationships to their birthplaces can generate a complex mix of powerful, sometimes contradictory emotions.
Governments in countries of origin are often corrupt and hypocritical. Bigotry in its various forms is deeply embedded in many places. But leaving one’s home, family, and culture is rarely easy. And the U.S. has little standing to criticize other governments, given its own failings. Yet the U.S. immigration system tends to expect a reductive and derogatory accounting of immigrants’ experiences in their countries of origin.
Over time, practitioners get worn down. It’s easier not to fight each routine indignity. I’m inspired by my colleagues in the immigration bar who don’t reflexively concede, the troublemakers and reprobates, the pugilists and iconoclasts. (You know who you are.) And the immigrant fighters who stand up to a system meant to destroy them are simply heroes.
In the course of learning about immigration law and its problematic norms, I became more and more aggravated. Blogging and providing support to immigrant rights organizers helped temper my frustration. Later, I encountered the Open Borders website and a nascent online community of proponents of radically freer immigration policies that the site fostered.
My gradual acculturation to the immigration system, and my resignation to the reality that zealous advocacy on behalf of any individual client usually meant participating in their degradation, signaled that it was time to leave the daily practice of immigration law.
Last year, I incorporated a nonprofit organization to advocate for open borders. I stopped taking on new clients. I felt as though a burden had been lifted. While my obligations to existing clients mean that I’ll be working on immigration cases for years to come, I am able to think about my work with optimism again.
Before I left the United States, I spent much time wondering why our legal system is so intent on shaming immigrants before granting them any rights. For undocumented immigrants, especially, the unspoken assumption seems to be that they demand what isn’t owed.
Zaman astutely identifies the core assumption underlying the immigration regime: that immigrants are owed nothing since the right of the sovereign state to restrict immigration outweighs the immigrant’s right to migrate in almost all cases. But that assumption is wrong. Immigrants are owed their basic human rights, including the right to enter, the right to remain, and the right to full economic, social, and political inclusion. Those who do demand those things should be supported, not shamed or silenced.
A small but growing number of activists, attorneys, and organizers argue that immigration restrictions should be abolished altogether. Scholars like Joseph Carens and Bryan Caplan have set out a compelling conceptual framework justifying open borders. Attorney Steven Sacco has argued that immigration lawyers can assist their clients to resist the oppressive immigration system, but that does not alone satisfy their moral obligation to be abolitionists. In her piece, Zaman aptly articulates the cognitive dissonance that results from working to promote human rights within a system that is incompatible with human rights. But there is a way forward, and it begins with dismantling the immigration regime.
David Bennion is an immigration lawyer and executive director of Free Migration Project.