Abstract

Excerpted From: Geoffrey A. Hoffman, What Should Immigration Law Become?, 46 Houston Journal of International Law 1 (Fall, 2023) (53 Footnotes) (Full Document Requested)

This essay addresses the future of immigration law. What should it become in light of the recent drastic changes that have impacted the field? The question's importance at this time cannot be overstated or ignored. Given the state of affairs before the 2020 election, and in view of the devastating events for immigrants of the last several years, a re-evaluation of the entire field is in order. While the aspirations of any field may be underappreciated or undervalued, immigration law's goals and objectives are often mired in confusion and undertheorized. Given the complex and confusing nature of the immigration laws, disparate and conflicting interests have taken hold. Practicing lawyers, those most conversant with immigration law's problems, and by extension the possible solutions, find it difficult to effectuate change. In recent years, when change happens it may be through piecemeal litigation and not comprehensive reform. While important and even essential to progress, the changes brought about by individual or class-based representation many times are incremental, not to mention subject to reversal by the U.S. Attorney General and courts.

Practitioners had to contend with oppressive rules and restrictions issued by the former administration on a daily basis. Others, such as anti-immigrant factions and the voices of those then in power, attempted to obfuscate policy, as a strategy to prevent what they perceive as an expansion of immigrants' rights and forms of relief. A cadre of immigration restrictionists or those who support a reduction in immigration have greatly altered the field. Their changes have been wide-ranging, surgically targeted, as well as subtle, and not-so-subtle. Unfortunately and sadly, the measures were effective in eroding legal protections for immigrants.

The first step in beginning to think about a recalibration of the field is to reframe the overarching “paradigm”--the framework of a discipline or field--and to determine the assumptions of that paradigm. The underlying presuppositions of a field must necessarily prefigure and pervade any ensuing analysis, as well as the perception of the field as a whole. The paradigm must encompass those on the “inside,” i.e. those whose lives are impacted and altered by immigration law, as well as those on the “outside,” those bystanders who may never have represented an immigrant but often voice their intense feelings and thoughts upon which scaffold their arguments. If we cannot agree, as a polity, as a people, as a society, and as political parties, on an initial starting point, then we are talking past one another. In such a case, as we have seen for decades, no progress, no legislative change is possible.

In thinking about a starting place for immigration law, one can and should begin with human rights, ensuring international norms and protections are met, providing the most vulnerable urgent protections, as well as responding to humanitarian crises and concerns. In addition, and also simultaneously, immigration law can be viewed as a facet or subset of national security law, administrative law, or constitutional law, and at times all these sources acting at once upon a particular immigrant or set of immigrants. Other areas also of course impact the field. In reality, all these paradigms pull immigration law in different directions simultaneously, sometimes with disastrous consequences. That immigration law is pulled in so many directions is not surprising, as many fields of law can be similarly described. However, the number of passionate voices doing the pulling is so great in this field that it feels special, with frustrating and frequent revisions to existing restrictions.

Another way of asking the same question is: How do we begin to explore imaginative possibilities at fixing the broken immigration system? In determining what immigration law should become, this essay examines the possibilities inspired by three distinct “buckets” or categories:

(1) Supreme Court decisions;

(2) proposed and, thus far, unsuccessful legislation, including the immigration plan of President Joe Biden; and

(3) remedies and approaches inspired by other fields of law.

These buckets are chosen with the recognition that we will not be changing the system in a vacuum. In other words, the system, although broken has a history, numerous processes, and practices which will not be and cannot be changed instantaneously. We should build on the good and throw out the bad.

Moreover, former President Trump and his administration's efforts at restricting immigration also must be considered. What the former president did in terms of changing the immigration system is unprecedented. It is therefore obvious that any template for future change and for remedying current injustices requires grappling with and remedying the many obstacles to immigration, as well as the restrictions to adjudicatory review over immigration decisions of the Trump administration. That said, we must also not make the mistake of working solely at a project of piecemeal “fixes” concerning the changes brought about by the Trump administration, but instead (in my opinion) we should begin anew with a more robust conception of what we are trying to achieve: the protection of others, by effectuating humanitarian relief and considerations.

One further consideration before moving to categories as sources for change, as they inform our thinking about immigration law's future. During the COVID-19 pandemic, immigration law took a backseat to the enormous public health “emergency powers” of the president. While using public health as a justification for enacting restrictions is not unprecedented, the ways that President Trump used the pandemic as a pretext for furthering political ends should not go unnoticed. For example, virtually all asylum seekers were blocked at the border under the pretext of “protecting” Americans from the pandemic. Student visa holders would have been forced to leave the country if their schools had transitioned to online classes, despite a previous policy allowing them to stay. The new policy was fortunately partially abandoned due to the effective use of litigation by Harvard and MIT, in federal district court. Other attempts to politicize and weaponize the immigration system can be found in the widespread delays in naturalization, as well as immigration court backlog both of which have been well-documented.

[. . .]

This essay has discussed some ways the former administration has transformed the field of immigration law, and ways that these changes may be fixed (and reimagined) in a new administration. Necessarily, this is not an exhaustive study. This essay took as its starting point several of the most visible (and a few not so visible) changes in the last few years. The legal landscape has been twisted in ways that attorneys and advocates could scarcely have recognized five or ten years ago. Some of the changes were anticipated. But the extent of the damage to immigrants' rights and protections has been so pervasive that it could not have been predicted.

Given my thesis ab initio that protection of others is the natural starting point, I offer the following proposal for a new system of adjudication in the immigration courts. Track 1 would encompass immigrants without any criminal records and would also be expanded to include no one with any “serious” misdemeanors (e.g., no violent crimes) nor felonies. In addition, there should be some kind of statute of limitations on older convictions to allow for cases where the convictions happened years ago and rehabilitation has been accomplished. Track 1 respondents would not be subject to detention. This “serious” misdemeanor language will be familiar to everyone from the DACA requirements. Because the vast majority of immigrants are law-abiding and good people, many can be prioritized for relief (and many will qualify for relief available and which we already have with universal competent counsel assisting them to present their claims).

Track 2, on the other hand, could encompass those with violent felonies and/or “serious” misdemeanor convictions. Again, DACA can be a guiding template here. Based on my experience, I believe only a small proportion of all immigrants would fall into Track 2. Therefore, scarce judicial resources will be preserved. By dividing the cases this way, justice will be better served. Right now, there is a de facto but poorly run and conceived of track 1 and track 2 “division of labor” driven by a mismanaged system of detained versus non-detained dockets.

By reslicing the pie in a way that honors the fact that the vast majority of immigrants are good people, a better and more humane system can be implemented. This new proposed Track 1 and 2 division also should satisfy those who are concerned with the protection of society from violent offenders, as well as those concerned with the protection of immigrants' rights. It is not much different than the thrust behind the Obama-era prioritizing of enforcement in terms of ICE and other agencies. This proposal, however, would extend the prioritization (with a thumb on the scale for expediting relief for those “track 1” immigrants) to the immigration courts. Of course, whom to place in which track will be an important and difficult issue, as well as where to draw the line. But with clear rules we will gain a lot more traction over the 1 million-plus cases backlogged, at the moment, and find ourselves granting a lot more much-needed relief to many immigrants and their families.

I will end with a reference to one of my favorite books on legal analysis, Roberto Mangabeira Unger's pivotal work, What Should Legal Analysis Become? There, Professor Unger seeks to reconceptualize “legal analysis” as a whole, and thus his project is necessarily more abstract and generalized than the specific question before us. But his approach is nevertheless instructive. When approaching what any particular field of law should become it is essential to recognize ways that “legal analysis” itself entrenches outmoded ways of thinking. In the present context, we must clarify what the goals of immigration law should be in a way that protects immigrants' rights and people's rights, writ large. They should be founded upon the core values toward immigrants that our nation holds dear: justice, fairness, weighing the equities, allowing for discretion in appropriate cases, family reunification, protecting asylees and other vulnerable groups, ensuring due process, equal protection under law, and allowing for the intelligent and humane use of prosecutorial discretion.

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