Court of Injustice
Law Without Recognition in U.S. Immigration
J.C. Salyer

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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.

Notes

1. Jeremy Bentham wrote this bon mot in an 1808 letter to James Mackintosh; however, he was not advocating this state of affairs. Indeed, Bentham was famously critical both of lawyers and of the uncertainty of the English legal system he sought to reform and codify (Bentham 1843, 10:429).

2. See Trump v. Hawaii, 138 S. Ct. 2392, 2492 (2018) (Sotomayor, J., dissenting).

3. Executive Order No. 13769, 82 Fed. Reg. 8977 (2017) (suspending entry for 90 days for foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen).

4. See Trump v. Hawaii, 138 S. Ct. at 2436 (Sotomayor, J., dissenting).

5. See Executive Order No. 13780, 82 Fed. Reg. 13209 (2017). Changes from EO-1 in the EO-2 version of the ban included removing Iraqi nationals from the banned list, allowing travel by individuals previously granted visas, and imposing a 120-day suspension on refugee admissions, followed by a permanent reduction in the overall annual number of refugee admissions.

6. Proclamation No. 9645, 82 Fed. Reg. 45161 (2017). The proclamation’s inclusion of nationals from North Korea and government officials from Venezuela covered only a handful of visa applicants and was “insubstantial, if not entirely symbolic.” Trump v. Hawaii, 138 S. Ct. at 2442 (Sotomayor, J., dissenting).

7. See Trump v. Hawaii, 138 S. Ct. at 2431–33 (Breyer, J., dissenting). In his dissenting opinion, Justice Breyer listed evidence that demonstrated that only “a miniscule percentage of those likely eligible for visas” received waivers and testimony from a consular official who admitted that consular officials did not actually have discretion to grant waivers and that the waiver provision was simply “window dressing.”

8. Trump v. Hawaii, 138 S. Ct. at 2418.

9. Trump v. Hawaii, 138 S. Ct. at 2418 (citing Fiallo v. Bell, 430 U.S. 787, 792 (1977)).