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

By J.C. Salyer

Court of Injustice reveals how immigration lawyers work to achieve just results for their clients in a system that has long denigrated the rights of those they serve. J.C. Salyer specifically investigates immigration enforcement in New York City, following individual migrants, their lawyers, and the NGOs that serve them into the immigration courtrooms that decide their cases.

This book is an account of the effects of the implementation of U.S. immigration law and policy. Salyer engages directly with the specific laws and procedures that mandate harsh and inhumane outcomes for migrants and their families. Combining anthropological and legal analysis, Salyer demonstrates the economic, historical, political, and social elements that go into constructing inequity under law for millions of non-citizens who live and work in the United States. Drawing on both ethnographic research conducted in New York City and on the author's knowledge and experience as a practicing immigration lawyer at a non-profit organization, this book provides unique insight into the workings and effects of U.S. immigration law. Court of Injustice provides an up-close view of the experiences of immigration lawyers at non-profit organizations, in law school clinics, and in private practice to reveal limitations and possibilities available to non-citizens under U.S. immigration law. In this way, this book provides a new perspective on the study of migration by focusing specifically on the laws, courts, and people involved in U.S. immigration law.

• Language: English
• Publisher: Stanford University Press
• Release date: Jun 2, 2020
• ISBN: 9781503612495

Book preview

Court of Injustice

Law Without Recognition in U.S. Immigration

J.C. Salyer

Stanford University Press

Stanford, California

Stanford University Press

Stanford, California

© 2020 by the Board of Trustees of the Leland Stanford Junior University.

All rights reserved.

No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press.

Printed in the United States of America on acid-free, archival-quality paper

Library of Congress Cataloging-in-Publication Data is available on request.

ISBN: 978-1-5036-1140-5 (cloth)

ISBN: 978-1-5036-1248-8 (paperback)

ISBN: 978-1-5036-1249-5 (electronic)

Cover design: Michel Vrana

Typeset by Motto Publishing Services in 10/14 Minion Pro

For Paige West

Contents

Acknowledgments

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

1. Migrants, Criminal Aliens, and Folk Devils

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

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

4. Law Without Recognition: Excluded Equities and Judges. Without Discretion

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

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

Notes

Bibliography

Index

Acknowledgments

FIRST, I WANT TO THANK everyone at the Arab American Family Support Center (AAFSC), where I have been the immigration law clinic’s staff attorney for over a decade. I am particularly indebted to the legal program’s coordinator, Hizam Wahib, without whose assistance I could not do my job and without whose humor and friendship I would not want to. I would also like to express my thanks to the hundreds of clients I have represented at AAFSC for their trust and for sharing their experiences. For many of those clients, I have only been able to explain that under the current law there is nothing that I, as an immigration lawyer, can do to assist them and their families. In a way, this book is my response to the inability to address their needs as a lawyer within the current legal system. I also owe a debt of gratitude to the immigration lawyers who took time to speak with me as part of this project and to the numerous lawyers who have assisted me to better understand immigration law both as a researcher and an immigration attorney. Deserving of special gratitude is Nancy Morawetz of the New York University School of Law Immigrant Rights Clinic and the attorneys involved with the New York Immigrant Family Unity Project.

As an anthropologist, I owe a huge debt of appreciation to Michael Blim, who is as generous with his intellect as he is with his friendship, which makes him my model of a good academic citizen. I would also like to thank my colleagues, whose scholarship and friendship I appreciate and depend upon: Joshua Bell, Andy Bickford, Jamon Halvaksz, Jerry Jacka, David Lipset, Alex Mawyer, Patrick Nason, Jason Roberts, G.S. Quid, and all of my colleagues in the Barnard Anthropology Department. For me, New York City is a home because of the friendship of Paul Thomas and everyone else at PSC, Latrice Tice, Elisha Omar, Colin Felsman, Aly Neel, Debra Minkoff, Silke Aisenbrey, and Noah Aisenbrey Minkoff. I also have a debt of gratitude to friends who live elsewhere, including Teresa Gionis, John Aini, Dani Smith, Amy Johnson, Michael Moore, David Wright, Robbie Ethridge, Colleen and Ed Bongiovanni, Mal Smith, and Bryant Green. I will also always be grateful for the friendships that I have had with Adam King, Keith Stephenson, Jennifer Harris, Guy Harris, Rob Adelson, Sammy Smith, and John Burns.

Of course, I owe more of a debt to my family then I could ever hope to enumerate. I particularly want to thank my mother, Pat Wadsworth, for being an unceasing example of an engaged and empathetic person. I thank my sister, Lisa Braden, and her husband, Dennis Braden, for their warmth and humor. I would also like to thank Pat West for her friendship and expert cat-sitting services over the years. Finally, my best friend and wife, Paige West, has shown me what is important in life clearer than anyone else I know. I am as grateful for my life with her as I am unable to imagine my life without her.

INTRODUCTION

The Paradoxes of U.S. Immigration Law and Deportation

The power of the lawyer is in the uncertainty of the law.

Jeremy Bentham¹

One has a good legal mind, under the prevailing ideology, if he can think of something tightly connected to some other thing but without thinking of that other thing.

Arthur S. Miller

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

The outrage over the travel ban took the form of large spontaneous public protests, and lawyers rushed to international airports to try and provide legal assistance to individuals affected by the ban. In New York City, the legal efforts coalesced under the name #NoBanJFK, with lawyers at JFK Airport essentially forming an around-the-clock de facto nonprofit legal organization in the seating area of the Central Diner in Terminal 4. In addition to lawyers, people with relevant language skills volunteered as translators, and computer experts created networks and programs to collect and organize information about individuals affected by the ban. The outrage over the injustice of the ban was not limited to immigration lawyers. The majority of volunteer lawyers practiced in other areas of law, and large corporate law firms contributed equipment and supplies and took turns keeping a running tab on corporate credit cards at the Central Diner to help compensate the restaurant for its entire seating area being overrun by lawyers.

While the alleged justification for the ban was a claim of national security, its scope was spectacularly broad, encompassing everyone from infants to the elderly and banning people regardless of their reason for coming to the United States and regardless of their relationship to U.S. citizens, residents, and institutions. Most egregiously, the ban did not allow for any individual consideration of the people affected and applied regardless of whether there was any reason to believe that the banned individuals were actually terrorist threats or any kind of danger at all. While volunteering as a lawyer at JFK after the ban went into effect, I met U.S. citizens who had already had applications for immigrant visas for their elderly parents approved who were told their parents would not be able to join them, I met parents who were waiting to meet children who would not arrive, and I met a man who had petitioned to bring his fiancée to the United States only to be told she was being detained and would be returned on the next available flight. Most of these individuals were U.S. citizens or lawful permanent residents who would have been entitled to bring their family members to the United States had they been from any other country than the ones singled out by the travel ban.

Within days of EO-1 going into effect, a number of federal courts issued injunctions prohibiting enforcement of the ban, while claims that it violated the Establishment Clause of the First Amendment and provisions of the Immigration and Nationality Act (INA) were litigated. Once the ban was suspended, the arrival halls of JFK turned from scenes of despair and anxious waiting to deeply moving tableaus of the sort of profound joy that comes only from the reuniting of people with the people they care about. Parents and children, husbands and wives, and dear friends were allowed the banal yet transcendent experience of being together.

Rather than continue to litigate the legality of EO-1 the Trump administration replaced it with a second executive order (EO-2),⁵ which banned individuals from six predominantly Muslim countries but purported to have case-by-case waivers available. Ultimately, the administration issued a presidential proclamation that continued the ban against those six predominantly Muslim countries and added bans that affected a miniscule number of individuals from North Korea and government officials from Venezuela.⁶ Like EO-2, the proclamation purported to have case-by-case waivers available, but in practice, scarcely any individuals from affected countries were given waivers.⁷ It was this version of the travel ban contained in the presidential proclamation that the U.S. Supreme Court ultimately considered on the merits in Trump v. Hawaii.

In deciding the travel ban case, the Supreme Court was faced with the choice of either providing would-be migrants (and their U.S. citizen and lawful permanent resident relatives) with meaningful judicial review of their claims that the travel ban violated the religious protections afforded by the Establishment Clause or continuing the trend of issuing rulings that deny migrants equality, fairness, and justice under the law. In choosing the latter option, the Court relied on a long line of cases that defer to the political branches of government (i.e., the Congress and the executive) in matters of immigration. After briefly acknowledging that Trump had repeatedly called for a Muslim ban and had made other anti-Muslim comments, the Court limited their relevance by stating, We must consider not only the statements of a particular President, but also the authority of the Presidency itself.⁸ In the area of immigration, this meant that the Court would defer to the government’s claims that the ban was motivated by national security concerns rather than Trump’s impermissible religious bias, despite the abundance of evidence of Trump’s Islamophobia and the paucity of evidence of a security need for such a sweeping ban. In doing this the Court did not refute the evidence that the travel ban was improperly motivated by Trump’s Islamophobia; rather, it held that noncitizens seeking to come to the United States were not entitled to the full protection of the Constitution. The Court’s decision reaffirmed its commitment to a robust plenary power doctrine, which mandates deference to Congress and the President in the area of immigration, stating, This Court has recognized that the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’⁹

The Court’s decision and rationale in upholding the travel ban starkly underlines some of the longstanding challenges faced by noncitizens seeking fairness and justice in the United States immigration system. First, the travel ban is based on an abstract fear of a particular group rooted not in tangible evidence but in prejudice, discrimination, and xenophobia. There is ample evidence of Trump making anti-Muslim statements, both as a candidate and as President, and using Islamophobic policies and promises to win support from his political base, and the travel ban is a clear manifestation of that Islamophobia. Second, the ban defines the threat so broadly as to negatively impact huge numbers of innocent individuals. Even if the ban were motivated by security concerns, it covered millions of men, women, and children regardless of whether there was any real reason to consider them a threat. Third, despite the existence of genuine factual and legal issues regarding the constitutionality of the ban, the Supreme Court withheld meaningful judicial review by deferring to the plenary power of the political branches of government to regulate immigration without judicial oversight. These problems did not begin with the Trump administration. Rather, the anti-immigrant actions of the Trump administration have been made possible by the preexisting social and legal disparagement of the rights of immigrants. The mistreatment of migrants within the U.S. immigration law system, as exemplified by Trump’s travel ban, results from a specific technique of power that has long operated to make mistreatment possible while simultaneously justifying it. Specifically, immigration law has operated in a state of exception whereby the legal rights, rational explanations, and expectations of fairness that ought to be afforded to individuals by a legal system are withheld. This state of exception is, in turn, justified and rationalized by portraying immigrants as racialized others who are seen as threats to society.

The travel ban illustrated another aspect of the power relationships in immigration law. Many members of the general public watching the news about the travel ban’s implementation put great faith in legal structures, as well as the lawyers and legal organizations that were opposing the travel ban, to put rational limits on what appeared to be an obvious abuse of power. Although the Supreme Court ultimately balked at questioning the rationale of Trump’s travel ban, the legal battle and public discourse generated by it demonstrated how "[e]very power relationship implies, at least in potentia, a strategy of struggle in which each opposing side constitutes for the other a kind of permanent limit, a point of possible reversal" (Foucault 1983, 794). The challenge lies in both understanding how techniques of power target and oppress immigrants and in identifying where the potentials for reversals can bring about fairer outcomes for those within the immigration law system.

Immigration policy in the United States is based on a set of racial, social, economic, and political ideologies. Law is able to both reinscribe and support these ideologies, but it is also capable of challenging and changing those ideologies. These ideologies shape immigration law but are also supported and reproduced through the application of immigration law; nevertheless, these ideologies and laws can, at times, be contested and subverted through legal challenge. This book will analyze these processes in three related ways. First, it will analyze the socio-legal processes in U.S. immigration law and policy that have resulted in the normalization of the discourse of immigrants as threats, as criminals, and as dangers to society who should and can be expelled. Second, it will use ethnographic examples to demonstrate the limits that those laws and policies place on migrants to have their personal situation considered. Finally, it will examine the socio-legal work that lawyers do to advocate for their clients, to destabilize the narratives of immigrants as threats, and to challenge the limitations on their clients’ claims for justice. In doing so, this book examines the statutes, policies, and mechanisms that comprise current immigration law in the United States and how they compel many of the results that seem unjustified, unfair, and excessively harsh. By drawing on my work as an immigration lawyer and based on interviews and interactions with other immigration practitioners, this book provides a clear description of the limitations and possibilities of the current law and process experienced by lawyers who represent immigrants in immigration court in New York City.

The structure of immigration law determines the fate of millions of individuals and their families. For some individuals, immigration laws provide a path toward legalization of immigration status, while for many others the strictures of the current laws result in their remaining undocumented, losing immigration status, or being deported. These strictures, and the consequences they impose on the lives of individuals, stem from the implementation of specific statutes and provisions, and it is therefore important to examine the specifics of the laws and procedures that determine who is allowed legal status in the United States and who will be denied such a status. While it is possible, and valuable, to critique the immigration system and its results as a whole, it is also necessary to concretely identify the specific causes of its harms in order to be able to produce a more-fine-grained examination of immigration law and policy. Moreover, it is valuable to understand how advocates are able to seek just outcomes for their clients in a hostile legal climate.

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

Understanding the Kafkaesque

Immigration law is often described as byzantine and Kafkaesque; one Federal Court of Appeals’ opinion even referred to it as a labyrinth almost as impenetrable as the Internal Revenue Code.¹⁰ In this respect, I have the advantage of being a practicing immigration lawyer who has run an immigration law clinic at the nonprofit Arab American Family Support Center (AAFSC) for more than a decade. That is not to say, however, that I am so steeped in the ethos of immigration law culture as to be habituated to its assumptions, traits, and peculiarities. My academic interest in immigration law stems from the very fact that it is, in many ways, at variance with ideas, principles, and practices I associate with law and justice from my earlier work in other areas of the law.

Prior to working in immigration law and prior to going to graduate school in anthropology, I had practiced constitutional, civil rights, and civil liberties law as a lawyer for the American Civil Liberties Union (ACLU) at the ACLU National Legal Department and at the ACLU of New Jersey affiliate. My experience with immigration law remained tangential until the government’s response to the 9/11 attacks resulted in large numbers of Muslim, Middle Eastern, and South Asian noncitizens being detained in county jails in New Jersey on the pretext of immigration violations, when the government’s actual goal was to investigate the terrorist attacks. Immediately following 9/11, then–attorney general John Ashcroft made clear that he intended to use the immigration system’s lax standards of due process protection to circumvent individual rights protected in the criminal justice system. On October 25, 2001, Ashcroft told a meeting of the United States Conference of Mayors that taking suspected terrorists in violation of the law off the streets and keeping them locked up is our clear strategy to prevent terrorism within our borders. To Ashcroft this policy meant if you overstay your visa—even by one day—we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible (Ashcroft 2001). As the staff attorney for the ACLU of New Jersey, I was contacted by family members of Muslim, Middle Eastern, and South Asian men who were arrested in the post-9/11 investigation in New York and New Jersey based on their immigration status. According to a 2003 report by the Department of Justice Office of the Inspector General (OIG), 762 individuals were detained by the Immigration and Naturalization Service (INS)¹¹ as a part of the 9/11 investigation conducted by the Federal Bureau of Investigation (FBI) in New York and New Jersey (Office of the Inspector General 2003). Although the OIG concluded that the individuals who were detained had generally violated some aspect of immigration law, there was no effort by the FBI or INS to differentiate between individuals who were out of immigration status from individuals for whom there was evidence to link them to the 9/11 attacks or terrorism of any kind. As a result, hundreds of individuals were held incommunicado in abusive conditions without access to legal counsel. Attempts by the ACLU and others to visit the detainees or even obtain an account of who was being detained were rebuffed by the government.

I worked with a coalition of other organizations, law schools, and immigration lawyers, and we were eventually able to gain access to the individuals detained in New Jersey jails by organizing Know Your Rights presentations, which the INS detention guidelines allowed nonprofit organizations to present. The guidelines also allowed for individual consultation following the presentation, which we were able to use to conduct a survey of who was being held and to learn about the circumstances under which they were arrested and detained. Until I got involved with the Know Your Rights presentations, I was used to practicing constitutional law with the ACLU, where I could often resolve an issue, such as an abridgement of free speech rights, by sending a demand letter to the offending government agency or obtaining a preliminary injunction from a court. I quickly learned that immigration law was quite different when I began meeting with the detainees and hearing how they had been denied an opportunity to call a lawyer or had not been brought before a judge to be allowed to ask for release on bond or had not even received notice of the charges against them. When I expressed my outrage to one of the immigration lawyers assisting with the presentation, saying something along the lines of Just because 9/11 happened doesn’t mean the government can simply ignore the law, the immigration lawyer responded by explaining, with gentle condescension, This is what immigration law has always been like. I began to learn that while the treatment of noncitizens exemplified by the detentions that followed 9/11 was perhaps more dramatic than in the usual course of immigration law enforcement, it was the vulnerable position that existed long before 9/11 that allowed the abuses to these detainees to occur.

Since 9/11, my experience as an immigration lawyer has taught me that the mistreatment experienced by migrants is rooted in systemic and historical processes that place them in a uniquely vulnerable legal position, I also learned that in some cases, for some people, it is possible to achieve a good result through the legal system and even to achieve larger reforms through legal advocacy. This book attempts to examine the relationship between these strongly determinative systemic forces and the outcomes of individual cases, including those outcomes that seem to contradict what