Legal Phantoms
Executive Action and the Haunting Failures of Immigration Law
Jennifer M. Chacón, Susan Bibler Coutin, and Stephen Lee


chapter abstract

This book tells a story of government action gone awry, the continued immiseration of immigrants in limbo in the United States, and advocates and organizers navigating shifting and complex terrain. This chapter provides critical background information to this story with a particular focus on the key laws, terms, and concepts in immigration policy between 2012-2022. As we explain, deferred action programs and the broader failures of immigration policy all point to the limits of political imagination, sharply restricted by the central logic of U.S. immigration law and policy as it has developed in the past century—a logic rooted in racism and manifested in discretionary, racialized enforcement. At the same time, advocates and organizers advanced a transformative vision showing how policy discourse could be made elastic to accommodate new terms. Rooted in an expansive political imagination, this vision still has the potential to transform immigration law and policy today.

chapter abstract

This chapter explores how recent changes in immigration enforcement practices in the U.S. were playing out in the lives of immigrant residents in Southern California in the period from 2014 through 2016. Our interviews revealed that many long-time immigrant residents had complex immigration histories. Collectively, interviewees' experiences suggest that the federal turn toward cooperative interior immigration enforcement had normalized and further institutionalized longstanding policing practices designed to identify and exploit the status vulnerabilities of immigrants. Latinx residents repeatedly reported to us that police routinely profiled them on the basis of race and class markers precisely because law enforcement viewed certain characteristics as markers of undocumented immigration status. Even when local officials limited their cooperation with federal immigration enforcement officials, many of the Latinx and API immigrant residents we interviewed felt that they were still policed differently, and more aggressively, than were white residents of their cities.

chapter abstract

This chapter explores how high-ranking immigration officials sought to structure decisions about the exercise of removal power. Seeking to inject immigration enforcement policies with greater pragmatism and humanitarianism, these officials coupled these efforts with aggressive expansions of enforcement. Immigration enforcement choices made during the first Obama term established the benefits and boundaries of the DACA program, even as they limited the practical effects of enforcement discretion. DACA unquestionably changed lives for the better. And the related deferred action programs would have undoubtedly done likewise had they been implemented. But the various deferred action programs affirmed and legitimized an immigration enforcement system that racialized, criminalized, and illegalized migrants. By occupying the negative space created by expanding enforcement policies, programs like DACA enabled immigration officials to offer and dispense relief at their discretion and on their terms.

chapter abstract

This chapter reveals the ways that individuals pushed back against the limitations of being subjected to discretionary power, both through activism and through their own life strategies. The stigmatization of undocumented immigrants for allegedly undermining the rule of law differed sharply from interviewees' senses of their own merit. Despite uncertainty, many of the unauthorized immigrants we interviewed attempted to move forward with their life projects anyway: they established families, built social networks, moved through the various stages (school, graduation, parenthood, employment) that marked time, and practiced forms of integration, such as working, volunteering, organizing, and developing institutional connections. In short, interviewees resisted being consumed by uncertainty, even as they were also compelled to live with it.

chapter abstract

This chapter focuses on various immigration advocacy groups in Los Angeles and Orange Counties. Advocates had differing ideas as to the sites and methods of effective advocacy, from electoral to legislative to direct actions and protests. They were all subject in varying degrees to ambiguity, contradiction, and confusion as to how the state saw them and their clients/constituents. They grappled with aggressive front-line ICE agents, distant and unreliable allies within government, and judges and justices up and down the federal court system. In so doing, advocates fought to preserve possibility and create moments of respite for immigrants and their families. This chapter is their story in the context of the larger picture that this book presents.

chapter abstract

This chapter describes the immigration enforcement regime in place in Los Angeles and Orange Counties. Describing the changes in law and policy at the state, county and city levels, this chapter focuses on the period from 2014 through 2018. The chapter then explores how these laws and policies shaped the lives of immigrant residents of these counties, highlighting the fear of police across counties, the different political climates of the two counties, and whether state sanctuary laws were perceived as effective countermeasures to federal enforcement policies. Policies like California's AB 60—which allowed undocumented residents to apply for driver's licenses, thereby removing one of the most significant status vulnerabilities of Southern California residents—were at least as important, if not more important, than sanctuary policies in providing security for immigrant residents even though such protections did not eliminate residents' perceptions that police unfairly targeted them, particularly around traffic infractions.

6Performing Citizenship
chapter abstract

This chapter focuses on the different ways that migrants and advocates were able to "speak back" to the state, staking claims to belonging while also mitigating the impacts of illegalization and criminalization. The comments of many interviewees demonstrate the pervasive and often insidious nature of the "bad immigrant/good immigrant," "felon/family" dichotomy that underlies immigration enforcement and limits regularization opportunities. Interviewees' narratives of deservingness and accounts of their own lives engaged with but also sought to transform this dichotomy. This chapter highlights the alternative worlds offered by advocates and constituents in which society would recognize the economic and human value of noncitizens' lives. Through discursive and embodied performances of citizenship, immigrants and their allies became shapeshifters. Many described mental health impacts, physical effects, and social deprivation that cumulatively result in considerable harm. Yet, interviewees also exhibited resilience, through activism, persistence, and the development of new individual and collective strategies.

chapter abstract

This chapter details the broader implications of this book. First, it shows how the phantom quality of the various deferred action programs stayed with would-be beneficiaries long after those programs expired. These experiences complicate the uplifting narrative that often surrounds DACA and that greeted the announcement of DAPA and DACA+. Second, the voices and experiences of the people in this book both deepen and broaden our understanding of processes of racialization, particularly in Latinx and API communities. The book offers some comparative perspective that elucidates how immigration policies contribute to the racial projects that target Latinx and API communities, two groups that continue to grow in numbers, not just through reproduction, but also through the arrival of new migrants. Finally, this chapter discusses how the migrants and advocates we interviewed often utilized the phantom-like quality of the various deferred action programs to shape their advocacy and organizing efforts.