- February 2017
- 13 Stan.J.C.R.& C.L.
Resistance and Immigrants’ Rights
We do not know yet the all of specifics of Donald Trump’s plans on immigration, beyond his broadly worded executive orders. But his rhetoric has been alarming. During his campaign for the presidency, Trump characterized Mexican immigrants as rapists and drug dealers and Muslim immigrants as terrorists and threats to women. Now by executive order, he has vowed to build a wall between the U.S. and Mexico and has threatened mass deportations for those in this country without papers. For many of us, Trump’s success in the election felt like a victory for his anti-immigrant, racist, and xenophobic rhetoric. How can we prepare and resist now and in the years to come?
I do not have the answer. But as I have worried about the effects of Trump’s immigration policies on immigrant families and communities, I have been returning to a few principles. Nothing in these principles is new. I draw from the wisdom of leaders like Bill Quigley and the example of the many activists who have forged a path forward in times of injustice. I have also learned from conversations with colleagues, friends, and students as we plan for immigrants’ rights advocacy in the Trump years.
I. Collaborate and Organize
As Bill Quigley says, “systemic social change comes not from courts or heroic lawyers or law reform or impact litigation, but from social movements.” Much has been written about law and organizing. The main message is that lawyers must work alongside and in collaboration with grassroots organizing efforts to be effective. In difficult times, immigrants’ rights lawyers can draw strength and ideas from engaging in the larger movement. We benefit from deepening our partnerships with immigrants, organizers, and others to advocate against restrictive proposals and for meaningful positive social change.
For many lawyers, working alongside those most affected by the government’s anti-immigrant policies requires putting aside ego. Law school is full of lawyer hero stories, but those stories tend to focus on lawyers as protagonists and leave out the organizations and other actors truly instrumental in effecting social change. Now, more than ever, it is time to assume a growth mindset as we learn from our colleagues and friends in the movement. We must embrace being uncomfortable around those who share our goals but disagree with our strategies. We need to continually re-examine our privilege and how it has shaped our perspectives. From self-examination and honest communication of discomfort comes trust and connection—the foundation for working together in a movement for equal human rights for all migrants.
On a practical level, litigation is important, but it is only one tool to combat anti-immigrant administrative action, regulations, or statute. In some cases, litigation has not yielded long-term change. In other contexts, litigation may not be available, whether because of court-stripping provisions in the immigration statute or because of the watered-down constitutional standards that often applied in immigration cases. To fight anti-immigrant, xenophobic policies, we will need to use every tactic we have, including—but definitely not limited to—litigation. This is not something new for most social justice lawyers, who have long employed a range of tactics, including local advocacy, media work, public education, and legislation.
II. Study History
It gives me hope to study the social movements that have caused lasting change for immigrant communities. One excellent example is the broad-based Central American solidarity movement that began in the 1980s and ultimately resulted in asylum and other immigration protections for Central American asylum-seekers. As Susan Coutin has detailed, the movement included religious organizations, political activists, refugees, and lawyers. Together, the lawyers and others in the movement employed a broad range of tactics, from civil disobedience to class action lawsuits, and from direct action to legislative reform. One of the signatures of the movement was the decision of churches to act as sanctuaries for refugees. The federal government filed criminal charges against the churches, and movement lawyers sued the government in court. The resulting lawsuit—American Baptist Churches v. Meese—established that Guatemalans and Salvadorans had a right to apply for asylum. Advocates followed this legal victory with legislative efforts to broaden legalization for all Central American refugees and migrants.
We can learn much from the sanctuary movement’s use of multiple modes of advocacy, engagement with unlikely allies, and persistence in the face of seemingly impossible odds. History gives us hope that disruptive, creative, movement-based lawyering can result in change, even when reform seems unattainable.
III. Witness and Speak Out
We must be vigilant and vocal to combat the government’s use of secrecy as a tool against immigrant communities and communities of color. During the Bush Administration (in the post-9/11 years), the government targeted Muslim immigrants for secret arrests, secret detentions, secret surveillance, and closed deportation proceedings. The government failed to meet its obligations under the Freedom of Information Act (FOIA) and refused to release responsive records during discovery in civil suits. Secret government actions isolated Muslim and other immigrant communities and insulated government action from necessary public oversight.
As we did during the Bush Administration, we may be called upon once again to combat secrecy by bearing visible, compassionate witness. It is often a first step toward uncovering injustice and standing in solidarity with vulnerable, targeted communities. After the Bush-era secret arrests and detentions, immigration lawyers and activists began to receive panicked calls from family members who did not know where loved ones were being held or what would happen next. An important step at that time was to uncover and share the stories of those who were being detained—stories of racist taunts, physical abuse, inedible food, constant lighting, strip searches, and other unbearable conditions. Shining the light on those government practices yielded representation for immigrants and a damages case that is now before the U.S. Supreme Court.
In describing what we uncover and see, words matter. In the post-9/11 years, anti-immigrant forces were quick to structure the discussion as a choice between civil rights/liberties and safety—a false framing that devalued the rights that characterize our national identity (and a framing that President Obama later disparaged). I hope we can structure the discussion during the Trump years from a pro-immigrant, pro-civil rights perspective and interrupt ongoing efforts to frame the choices we face as dichotomous.
IV. Represent Immigrants Facing Removal
Advocates fear that under Trump’s executive orders and other actions, the federal government will place more individuals into deportation proceedings. This would worsen an already terrible access to justice crisis. Even though immigration laws are extraordinarily complex and deportation can result in separation from family and community (and in some cases, physical harm or torture), the government does not provide attorneys for those in removal proceedings. Rather, immigrants must either pay someone to represent them or find someone to represent them for free. The result is that the majority of immigrants endure removal proceedings without the assistance of counsel.
One of the most critical things that attorneys can do to assist immigrants is to provide representation in removal (deportation) proceedings. Our recent study of San Francisco Immigration Court revealed that roughly two-thirds of immigrants lacked counsel at any stage in their removal proceedings. But detained immigrants with counsel were three times more likely to prevail than those without attorneys. Excellent studies of the effect of representation on deportation outcomes in New York, California, and nationwide confirm these findings.
Now is the time for attorneys—new and experienced, full-time or pro bono—to start representing individuals in removal proceedings. Attorneys can also join activists who have been agitating across the country to expand public funding for removal defense attorneys.
V. Engage in Creative Solutions at the Local and State Level
When the federal government has fallen short in protecting the rights of immigrant communities, state and local governments have stepped forward. California is a leader in this regard, enacting laws granting undocumented immigrants the right to driver licenses, in-state tuition, and state-subsidized healthcare. California has passed laws to protect unaccompanied noncitizen children and noncitizens with past convictions and to limit Immigration and Customs Enforcement (ICE) hold requests directed at local jails. California’s laws—and similar measures across the country (and at the local level)—reflect the tireless advocacy of immigrants’ rights groups who have long pushed to hold elected officials accountable to their diverse constituents.
Mayors, governors, and other elected officials across the country have stepped forward since Trump’s election to confirm support for pro-immigrant policies (sometimes called sanctuary policies). California legislators and others have already introduced a host of pro-immigrant bills. If Trump continues to target immigrants, then we must redouble our efforts to work with these pro-immigrant state and local officials to create a web of supportive policies and protections.
VI. Seek Out New Allies
One of the most effective lessons from past efforts to protect the rights of minority communities is the importance of building new alliances. In the sanctuary movement of the 1980s, allies ranged from churches to foreign governments. The DREAMers’ movement to gain status and rights for undocumented students has drawn on relationships with universities, schools, teachers, and others. Already, churches and other faith organizations have proclaimed their intent to provide sanctuary and stand in solidarity with Muslim immigrants now that the Trump administration has decided to target them based on their religion. My hope is that we can reach out to local, national, and international allies to strengthen and broaden the movement for immigrants’ rights.
VII. Prepare for a Long Fight
Without a doubt, we will suffer setbacks and defeats. And there will be times when we will feel exhausted. My last principle is to prioritize self-care and reflection. Self-care means different things to different people, but its result should be a feeling of energy, rejuvenation, and connection. Reflection is equally important. In the Immigrants’ Rights Clinic—which I direct—we emphasize a cycle of preparation, execution, and reflection, whether for client meetings, court appearances, community meetings, or any other important event in the course of representation. But sometimes, in times of crisis, I (and I suspect many others) jump into a mode of preparation and execution, without reflection. That is a mistake. As Angela Harris, Margaretta Lin and Jeff Selbin explain, “a mindfulness practice assists lawyers in understanding the place of their work in the larger struggle for peace and justice.”
* * *
My list of principles is by no means complete. Others have written eloquently of their advice for young lawyers and for social justice work more generally. I share my thoughts in the hope that they will contribute to the conversations I am having at Stanford and beyond about preparing for the Trump years. Tough times are here. But I believe we are ready to draw from our diverse strengths and experiences to respond strategically and creatively.
.See Ben Jacobs, Trump Says Mexico ‘Rapist’ Comments Were Planned in Deposition Video, The Guardian (Sept. 30, 2016, 17:06 EDT), https://www.theguardian.com/us-news/2016/sep/30/trump-comments-mexico-rapists-planned-deposition-video; Katie Reilly, Here Are All the Times Donald Trump Insulted Mexico, Time (Aug. 31, 2016), http://time.com/4473972/donald-trump-mexico-meeting-insult; Ian Schwartz, Trump: Mexico Not Sending Us Their Best; Criminals, Drug Dealers and Rapists Are Crossing Border, RealClearPolitics (June 16, 2016), http://www.realclearpolitics.com/video/2015/06/16/trump_mexico_not_sending_us_their_best_criminals_drug_dealers_and_rapists_are_crossing_border.html.
.See Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan 27, 2017) (mandating refugee ban and other restrictions); Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 25, 2017) (relating to the proposed border wall); Harper Neidig, Trump Stands By Plans to Build Wall, The Hill (Dec. 1, 2016, 9:15 PM EST), http://thehill.com/blogs/blog-briefing-room/news/308423-trump-says-he-still-plans-on-building-a-wall; Katie Reilly, Donald Trump Plans to Deport Up to 3 Million Immigrants, Time (Nov. 13, 2016), http://time.com/4569034/donald-trump-undocumented-immigrant-deportation.
.See Clara Jeffrey, Van Jones: “Hope for the Best, Expect and Prepare for the Worst”, Mother Jones (Nov. 14, 2016, 7:00 AM), http://www.motherjones.com/politics/2016/11/van-jones-donald-trump-sanders-clinton-racism.
.See William P. Quigley, Letter to a Law Student Interested in Social Justice, 1 DePaul J. for Soc. Just. 7 (2007); William P. Quigley, Reflections of Community Organizers: Lawyering for Empowerment of Community Organizations, 21 Ohio N.U. L. Rev. 455 (1995); William P. Quigley, Revolutionary Lawyering: Addressing the Root Causes of Poverty and Wealth, 20 Wash. U. J.L. & Pol’y 101 (2006).
.As Ascanio Piomelli succinctly advises: “To understand where we stand, how we got here, the roads others have walked, and the paths we might pursue, it behooves us to be intimately familiar with the extensive literature of the past thirty years about lawyering and social change. We should know well the work of Arthur Kinoy and Gary Bellow, of Jerry López, Lucie White, Luke Cole, and Jennifer Gordon, of Shauna Marshall, Bill Hing, Sameer Ashar, Bill Quigley, and a host of others. We also need to be well read in the literature about organizing, social activism, and liberation movements. We should be familiar with the stories and ideas of Ella Baker and Bob Moses, of Myles Horton and Paulo Freire, of Ernie Cortes, Wade Rathke, and Gary Delgado, of Cesar Chavez and Dolores Huerta, of Mahatma Gandhi and Martin Luther King.” Ascanio Piomelli, Sensibilities for Social Justice Lawyers, 10 Hastings Race & Poverty L.J. 177, 178-81 (Summer 2013) (citations omitted).
.See, e.g., Anna-Maria Marshall, Social Movement Strategies and the Participatory Potential of Litigation, in Cause Lawyers and Social Movements 164 (Austin Sarat & Stuart A. Scheingold, eds., 2006); Gabriel Arkles, Pooja Gehi & Elana Redfield, The Role of Lawyers in Trans Liberation: Building A Transformative Movement for Social Change, 8 Seattle J. for Soc. Just. 579, 614 (2010); John O. Calmore, A Call to Context: The Professional Challenges of Cause Lawyering at the Intersection of Race, Space, and Poverty, 67 Ford. L. Rev. 1927, 1936-37 (1999); Scott L. Cummings & Ingrid V. Eagly, A Critical Reflection on Law and Organizing, 48 UCLA L. Rev. 443 (2001); Charles Elsesser, Community Lawyering—The Role of Lawyers in the Social Justice Movement, 14 Loy. J. Pub. Int. L. 375, 377 (2013); Jayanth Krishnan, Lawyering for a Cause and Experience from Abroad, 94 Cal. L. Rev. 575, 577 (2006).
.See Nisha Agarwal & Jocelyn Simonson, Thinking Like a Public Interest Lawyer: Theory, Practice, and Pedagogy, 34 N.Y.U. Rev. L. & Soc. Change 455, 490-91 (2010) (describing discomfort that one new attorney experienced after examining his privilege, and the subsequent adjustment that he made).
.See Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change 5, 95, (1974); see also Gerald P. López, Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice (1992).
.See Margaret Taylor, Demore v. Kim: Judicial Deference to Congressional Folly, in Immigration Stories 343 (David A. Martin & Peter H. Schuck, eds., 2005); Hiroshi Motomura, Judicial Review in Immigration Cases After AADC: Lessons from Civil Procedure, 14 Geo. Immigr. L.J. 385 (2000); Hiroshi Motomura, Immigration Law after a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990).
.See Ascanio Piomelli, The Challenge of Democratic Lawyering, 77 Ford. L. Rev. 1383, 1385 (2009). See also Scott L. Cummings & Deborah L. Rhode, Public Interest Litigation: Insights from Theory and Practice, 36 Ford. Urb. L.J. 603 (2009) (summarizing study of public interest attorneys who use multiple modes of advocacy beyond litigation). See generally Jim Schultz, The Democracy Owners’ Manual: A Practical Guide to Changing the World (2002) (detailing practical tools like research, analysis, building and maintaining coalitions, messaging and media relations, lobbying, and leveraging the internet).
.Id. There is a substantial literature about litigation as integrated with political mobilization to advance social change. See, e.g., Cummings & Rhode, supra note 14, at 616-20, nn. 61-75 (collecting sources); Michael W. McCann, How Does Law Matter for Social Movements?, in How Does Law Matter? 76, 76-108 (Bryant G. Garth & Austin Sarat eds., 1998). For an overview and general analysis of cause lawyering’s role, see Stuart A. Scheingold & Austin Sarat, Something to Believe In: Politics, Professionalism, and Cause Lawyering (2004).
.See Top Ten Abuses of Power Since 9/11, Am. Civil Liberties Union, https://www.aclu.org/other/top-ten-abuses-power-911?redirect=top-ten-abuses-power-911 (last visited Jan. 16, 2017). See also Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002).
.See H. Comm. on Gov’t Reform, 109th Cong., On Restoring Open Government: Secrecy in the Bush Administration (2005); Ahmed A. Chehab, The Bush and Obama Administrations’ Invocation of the State Secret Privilege in National Security Litigation: A Proposal for Robust Judicial Review, 57 Wayne L. Rev. 335, 346-47 (2011).
.See, e.g., Turkmen v. Hasty, 789 F.3d 218 (2d Cir. 2015). See also Office of the Inspector Gen., U.S. Dep’t of Justice, The September 11 Detainees: A Review of the Treatments of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11th Attacks
(2003); Office of the Inspector Gen., U.S. Dep’t of Justice, Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York (2003).
.See Mark Memmott, Reject False Choice Between Security and Ideals, Obama Urges, NPR News (May 22, 2009, 10:38 AM EST), http://www.npr.org/sections/thetwo-way/2009/05/reject_false_choice_between_se_1.html. But civil rights groups have criticized the Obama Administration for its continued use of secrecy in a range of contexts. See, e.g., Establishing a New Normal, Am. Civil Liberties Union (July 2010), http://www.worldcantwait.net/files/EstablishingNewNormal.pdf.
.See Jayashri Srikantiah, David Hausman & Lisa Weissman-Ward, Access to Justice for Immigrant Families and Communities: A Study of Legal Representation of Detained Immigrants in Northern California, 11 Stan. J. C.R. & C.L. 207, 212-13 (2015).
.Attorneys can also assist immigrants who are not in removal proceedings with “affirmative applications” for immigration relief. See Elinor R. Jordan, What We Know and Need to Know About Immigrant Access to Justice, 67 S.C. L. Rev. 295, 319-21 (2016) (discussing affirmative applications).
.Id. The study drew from an existing Executive Office for Immigration Review (EOIR) dataset. It correlated representation to better outcomes but did not address causal issues (e.g., higher rates of success could have been due, in part, to case selection by attorneys).
.Eagly & Shafer, supra note 28, at 75-77; Cal. Coal. for Universal Representation, California’s Due Process Crisis: Access to Legal Counsel for Detained Immigrants (June 2016), http://www.publiccounsel.org/tools/assets/files/0784.pdf; Peter L. Markowitz et al., Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings (Dec. 2011), http://www.cardozolawreview.com/content/denovo/NYIRS_Report.pdf.
.New York City has led the effort to publicly fund removal defense through its NYIFUP program, which provides universal representation to every detained noncitizen facing removal in New York’s immigration courts. See Bettina Rodriguez Schlegel, New York Immigrant Family Unity Project Lays Groundwork for Constitutional Victory, Vera (Dec. 28, 2015), https://www.vera.org/blog/new-york-immigrant-family-unity-project-lays-groundwork-for-constitutional-victory. Los Angeles and San Francisco have recently announced that they are considering public funding, and the California legislature is considering a bill that would provide public funds for removal defense. See Dakota Smith & Cindy Carcamo, Responding to Trump, L.A. Proposes $10-million Legal Defense Fund for Immigrants Facing Deportation, L.A. Times (Dec. 19, 2016, 12:00 PM), http://www.latimes.com/local/lanow/la-me-ln-lafund-20161219-story.html.
.See Soumya Karlamangla, Medi-Cal Will Soon Cover Children in the U.S. Illegally. The Real Battle? Getting Adults Insured, L.A. Times (Apr. 27, 2016, 2:00 AM), http://www.latimes.com/local/politics/la-me-immigrants-medi-cal-20160427-story.html; Melanie Mason, California Gives Immigrants Here Illegally Unprecedented Rights, Benefits, Protections, L.A. Times (Aug. 11, 2015, 7:58 AM), http://www.latimes.com/local/california/la-me-california-immigrant-rights-20150811-story.html (“It started with in-state tuition. Then came driver’s licenses, new rules designed to limit deportations and state-funded healthcare for children. And on Monday, in a gesture heavy with symbolism, came a new law to erase the word “alien” from California’s labor code.”).
.See Josh Harkinson, California Mobilizes for War Against Trump (Jan. 13, 2017, 6:00 AM), http://www.motherjones.com/politics/2017/01/california-trump-immigration-climate-healthcare-marijuana-guns-tech (“A 2014 law bans state authorities from holding immigrants convicted of minor crimes for any longer than required by criminal law . . . . Many California cities have even broader ‘sanctuary city’ policies.”).
.See Harkinson, supra note 35 (“Last month, state legislators introduced a package of bills that would go even further: Legislation authored by de León would bar state and local authorities from enforcing immigration laws, limit records sharing with federal immigration officials, and create ‘safe zones’ at schools, hospitals, and courthouses where immigration enforcement would be prohibited.”).
.For an excellent overview of the legal issues surrounding the role of cities and states in integrating immigrant communities, see Hiroshi Motomura, Immigration Outside the Law, 108 Colum. L. Rev. 2037, 2055-68 (2008). See also Keith Cunningham-Parmete, Forced Federalism: States as Laboratories of Immigration Reform, 62 Hastings L.J. 1673 (2011); Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 Vand. L. Rev. 787 (2008) (exploring role of federalism in immigration context); Kevin R. Johnson, Immigration and Civil Rights: State and Local Efforts to Regulate Immigration, 46 Ga. L. Rev. 609 (2012); Sosa Thomas, “Mi Casa No Es Su Casa”: How Far Is Too Far When Cities and Localities Take Immigration Matters into Their Own Hands, 29 Chicano-Latino L. Rev. 103 (2010).
.See Coutin, supra note 15. See also Laurie Goodstein, Houses of Worship Poised to Serve as Trump-Era Immigrant Sanctuaries, N.Y. Times (Dec. 27, 2016), https://www.nytimes.com/2016/12/27/us/houses-of-worship-poised-to-serve-as-trump-era-immigrant-sanctuaries.html?_r=0.
.Kelsey Sheehy, High School Teachers Are Key Resource for DREAMers, U.S. News (Aug. 20, 2012, 8:00 AM); Kanyakrit Vongkiatkajorn, Colleges Across America Are Fighting Back Against Trump’s Deportation Threats, Mother Jones (Jan. 5, 2017, 6:00 AM), http://www.motherjones.com/politics/2016/12/sanctuary-campus-college-dreamers-deportation.
.Goodstein, supra note 39; Elizabeth Evans & Yonat Shimron, ‘Sanctuary churches’ Vow to Shield Immigrants from Trump Crackdown, Deseret News (Nov. 18, 2016, 3:08 PM), http://www.deseretnews.com/article/865667540/6Sanctuary-churches7-vow-to-shield-immigrants-from-Trump-crackdown.html.
.See generally Laura van Dernoot Lipsky, Trauma Stewardship: An Everyday Guide to Caring for Self While Caring for Others (2009); Ron Tyler, The First Thing We Do, Let’s Heal All the Law Students: Incorporating Self-Care into a Criminal Defense Clinic, 21 Berkeley J. Crim. L. (forthcoming 2017).
.See Jayashri Srikantiah & Jennifer Lee Koh, Teaching Individual Representation Alongside Institutional Advocacy: Pedagogical Implications of a Combined Advocacy Clinic, 16 Clinical L. Rev. 450, 469 (2009). See also Kenneth R. Kreiling, Clinical Education and Lawyer Competency: The Process of Learning to Learn from Experience Through Properly Structured Clinical Supervision, 40 Md. L. Rev. 284, 318 (1981) (describing the “supervision cycle” structure for clinical education and its relevance to legal practice more generally).