Immigration Restrictions Hurt Americans Too

American immigration restrictions inflict immense suffering on immigrants and would-be immigrants. Thousands have died attempting to enter the U.S. through the desert, and others have perished attempting to make sea journeys. Tens of thousands languish each year in detention centers. Others are abused by government agents or criminals. Many are deported from the U.S. after having lived many years here. Millions of undocumented immigrants live anxious lives, not knowing if or when they will be arrested and deported.

Another group is also harmed by the restrictions: American citizens. Like immigrants, they suffer in myriad ways.

To begin with, Latino citizens sometimes must endure profiling by authorities seeking undocumented immigrants. NBC News notes that “Latino and immigrant groups say that due to increased enforcement, being Latino in some places is enough to be pulled over under the guise of a minor traffic stop and be asked to prove American citizenship.” Several years ago Sheriff Joe Arpaio in Arizona (who is no longer sheriff) was ordered by a judge to cease stopping people to check their immigration status because the stops amounted to racial profiling. And “the ACLU, border-town residents, members of Congress and even some border patrol agents argue that the rapid and vast expansion of immigration enforcement in the years since the Department of Homeland Security was created, without expanded oversight to match it, has turned the southern border of the U.S. into an occupied police state, where abuses of power and harassment by agents are an everyday occurrence.”

Some American citizens actually have been detained and perhaps deported by immigration authorities. Over the last decade hundreds of U.S.. citizens have been detained, either at local jails at the request of immigration officials or at immigration detention centers, even though immigration agents do not have the authority to detain citizens. One citizen was imprisoned for over three years because he was mistakenly considered to be a non-citizen. Another spent almost two years in detention. One researcher suggests that some citizens have actually been deported in recent years. Looking further back in history, probably hundreds of thousands of citizens of Mexican descent were deported to Mexico in the 1920s and 1930s.

In addition, deportations and detentions of non-citizens often negatively impact U.S. citizens. This is because, in the words of a report by the Center for American Progress, “undocumented immigrants do not live separate and walled-off lives from the documented, but instead live side by side in the same communities and in the same families.” It is estimated that about 4 million children who are citizens have one or more undocumented parents, and The Washington Post reports that more than 100,000 citizens lose a spouse or parent to deportation each year. (See here and here.)

Deportations separate citizen children from parents and, for families who have not yet experienced deportation, create fear among children that they could be separated from their parents in the future. Detentions also are traumatizing for children. For example, after a father of two U.S. citizens had been in detention for six months, his wife reported that “her 2-year-old son wakes up crying for his father every night, while her 3-year-old daughter has refused to learn to count or tie her shoes until he comes home.” (See also here.) Citizen children also experience raids on homes by immigration agents.

Adult U.S. citizens, like citizen children, suffer when immigration enforcement targets family members. In one case, an American wife of a man facing deportation was diagnosed with situational depression after he was detained. Another American wife accompanied her husband when he was deported but wanted to be able to return to the U.S. with him and their child, stating “’We do not have any family or friends here (London). We are all on our own… We desperately want to come home.’”

Immigration enforcement also hurts many U.S. businesses. Farmers sometimes can’t find enough workers to harvest their crops because of immigration restrictions. (See here and here.) Different kinds of firms suffer if their workers are deported. (See here.) Businesses can be punished for hiring undocumented workers.

At the same time, citizen workers in some cases may endure poor working conditions because employers, using the threat of reporting undocumented coworkers to immigration authorities, can stifle efforts to unionize or report labor violations. As one article noted, “immigrants’ inability to invoke their rights results in weakened employment protections for all American workers—and in some instances, means that American workers are subject to violations of minimum-wage and overtime protections, wage theft, and other forms of employment violations, such as unsafe working conditions.”  In 2009 the AFL-CIO and other organizations reported that

One of the most devastating illegal employer tactics is the threat to call immigration authorities on workers. The chilling impact of employers’ unlawful threats is felt not only by undocumented workers, but by their co-workers. Documented workers and U.S. citizens may be reluctant to organize their workplaces because properly timed threats to turn workers over to immigration authorities can undermine the union election process. And if workers should win a union election, deportation of their undocumented co-workers will dilute the power of the bargaining unit. No industry relies solely on an immigrant workforce. The Census Bureau’s 2007 American Community Survey found that of more than 330 occupations, only two have immigrant majorities. This means that threats to call immigration authorities deprive workers in nearly every industry of their right to a voice at work.

Open borders would end all of this suffering endured by so many American citizens. Citizen spouses and children wouldn’t have to worry about or experience the arrest, detention, and deportation of a loved family member. Citizens themselves wouldn’t be detained or deported. Workers’ efforts to report labor violations or organize wouldn’t be undermined by immigration enforcement, and businesses could depend on a free flow of needed labor. Open borders would benefit immigrants and citizens alike.

The Cognitive Dissonance of Immigration Law

Jawziya Zaman, a former immigration attorney, wrote a piece in Dissent Magazine last month about why she left the practice of immigration law. She wrote about the internal conflict attorneys face in advocating for their clients’ material interests by collaborating with the government to suppress clients’ inherent human dignity. Zaman practiced immigration law in San Francisco for four years, leaving her job shortly before Trump was elected. She relayed some positive aspects of her work: working with supportive and dedicated colleagues and achieving life-changing outcomes for her clients. Yet, the frustrations of the work eventually drove her from the profession, even before Trump’s candidacy and election unleashed a whirlwind of chaos and hostility upon immigrants in the U.S.

Zaman writes:

My frustration with the job, I learned, had to do with how I felt implicated in the flawed premises of immigration law, including its reductionist narratives about other countries and its dehumanization of foreigners. In virtually every case involving defense against deportation, the law insisted that I reinforce tired stereotypes about the global South and force clients to undergo a ritual flagellation before they could be granted the privilege of remaining in the country.

As an attorney gradually extracting myself from the daily practice of immigration law after nearly 11 years, Zaman’s analysis resonated powerfully with me. The contradictions and hypocrisy of the immigration system, which reflects the U.S.’s problematic position in the world and the injustice of the current global order, became too much for me to bear.

Zaman highlights the dissonance of protesting detention of Muslims at airports while ignoring civilian victims of U.S. bombing in Yemen and other predominantly Muslim countries. She asks, “Is it only by virtue of seeking entry into this country that foreigners become human beings worthy of our regard?” She notes the irony of a legal system that rejects and punishes migrants fleeing from problems caused by U.S. foreign policy. She writes about the wrongs the U.S. has committed in the guise of national defense, foreign policy, development, and trade. Many of these policies have contributed to violence, poverty, and instability that have made migration the least bad choice for many people. For the U.S. to not only reject but morally condemn those same migrants constitutes rank hypocrisy.

Zaman highlights several grating elements of the immigration legal system:

[T]o add insult to injury, the law demands that immigrants renounce the place of their birth and take a kind of medieval oath of fealty to the United States.
. . .

The bedrock upon which the defense and the prosecution build their arguments in virtually every case is the same: America is the superior option—it’s better than wherever you came from.
. . .

Different circumstances call for different forms of legal relief, but a central feature in many of our cases is that our client did wrong and now he’s terribly sorry. Confession and penance are akin to sacraments in immigration law, and the process of asking the government to pardon your client’s digressions is a disconcerting combination of formulaic and theatrical.

These assertions are consistent with my experience. Arbitrary outcomes and nonsensical legal concepts like “crimes involving moral turpitude” support the argument that immigration adjudication is more a moral or social judgment than a legal one. Immigration law often departs from formal principles of the rule of law such as predictability, transparency, and impartiality. Immigration law is complex and opaque, with laws, regulations, case decisions, policies, and guidelines scattered across dozens of court and agency websites. Few sources of law are available in any language other than English, which of course many immigrants do not speak or read. Some immigration laws have been retroactively applied. Due to gridlock in Congress, much of immigration law has shifted from clear statutory rules to discretionary or temporary guidelines, which further decreases predictability of outcomes.

In the wake of the influx of Central American child refugees in 2014, the president of the National Association of Immigration Judges described immigration cases as “death penalty cases heard in traffic court settings.” Immigration Courts are administrative courts that are part of the executive branch, not the independent judiciary. As a part of the Department of Justice, they retain an implied prosecutorial mandate. Asylum denial rates among judges vary from 3% to 99%, a disparity that demonstrates the incredible discretion vested in judges. Due process is more limited in the immigration context than in the criminal system. The federal rules of evidence do not formally apply and are often waived or ignored by immigration judges. Many immigrants in deportation proceedings do not have a lawyer, since court-appointed counsel is not required to be provided even for indigent non-citizens. Perhaps unsurprisingly, these systemic factors make deportation defense so difficult that hundreds–perhaps thousands–of U.S. citizens are likely deported every year.  

If the immigration legal system is disconnected from the principles of rule of law, something else must be driving immigration adjudication. Following up on Zaman’s piece and based on my own experience, the unwritten principles of immigration law can be distilled as follows:

  1. You have no right to be here. Your presence depends on the government’s forbearance and your willingness to participate in your own ritual humiliation. This country and the people who truly belong here owe you nothing, which is why judges, bureaucrats, prosecutors, and even your own defense counsel can transgress social norms and ethical rules with impunity. By being here, you have violated a critical norm. This is true even if your presence in the U.S. is technically legal, for instance, if one of the federal immigration agencies made a legally erroneous determination that landed you in court or if you applied for asylum, which is legal under domestic and international law.
  2. Your country of origin is inferior to the U.S. in some essential way. Your government abuses or neglects its people; your compatriots subscribe to racist, homophobic, or misogynist ideas; your legal and economic systems are irredeemably corrupt and ineffective; or your culture fails to produce in its people whatever characteristic makes Americans successful and prosperous. The U.S. has avoided these pitfalls through the perseverance and foresight of its people. At home and abroad, the U.S. government respects human rights and the rule of law, fosters prosperity, and is, in the words of Ronald Reagan, “a beacon of freedom and opportunity.” Americans are always and everywhere the good guys; you and your culture, however, are guilty until proven innocent.
  3. You are nothing–less than nothing–but if you prove yourself worthy, you too can receive the bounty that awaits the chosen few. In its benevolence, the U.S. has opened its arms to you, one among the huddled masses yearning to breathe free. But only if you don’t screw up the paperwork. Your diligence in that regard will signify your worthiness.

Of course, these “principles” have little to do with justice, rule of law, security, or any defensible moral code. Instead, they are predicated on the racist underpinnings of the immigration system and fundamental ingroup/outgroup dynamics.

In her piece, Zaman captures the indignity of the performative humiliation that is often required of clients in order to avoid deportation. Defense counsel is typically expected to join in the ritual shaming. Not doing so can imperil the defense in individual cases and even damage the advocate’s ability to effectively represent other clients. Maintaining cordial relationships with counsel for the government can pay clear dividends, as the ICE and DOJ attorneys have remarkable influence to impact the ultimate decision under the legal principle of “prosecutorial discretion.” To conserve law enforcement resources, prosecutors have ample discretion regarding the filing of charges, availability of defenses, and ultimate outcome. During the Obama administration, prosecutorial discretion became even more central to the immigration regime. Prosecutorial discretion provided the legal justification for the Deferred Action for Childhood Arrivals (DACA) program, the proposed extension of deferred action to a larger subset of immigrants, and the enforcement priorities guidelines that allowed tens and possibly hundreds of thousands of people to stave off deportation. While hostile judges can find a justification under the law to deny almost any case that comes before them, sympathetic judges and prosecutors can utilize discretion to grant relief in cases that would not warrant relief under a strict reading of the law. The robust discretion granted to prosecutors and judges creates an incentive for counsel to try to stay in their good graces.

As Zaman notes, immigration cases typically begin with a concession of the defendant’s deportability. Early in the Obama administration, a colleague and I challenged that presumption at the outset of several cases at the legal services nonprofit we worked at, filing “motions to suppress” evidence of nationality in an effort to stop deportation cases before they could really begin. We argued that the government did not have sufficient evidence to prove legal deportability, having obtained the evidence in violation of the Constitution’s prohibition on unlawful search and seizure through home raids or pretextual police stops. While this legal strategy had been pioneered in other courts by attorneys like Rex Chen, it was new to the Philadelphia Immigration Court. The ICE prosecutors’ response to our approach was one of disbelief and indignation. The judges were initially baffled. We weren’t playing along like we were supposed to: first yield, then plead for mercy. Eventually, the judges and ICE attorneys got used to suppression cases, and they became another tool in the litigator’s toolbox.

Zaman described a particular case where a client of hers, an older Korean man, was initially unwilling to perform penance to win his case. He wasn’t willing to relinquish his inherent dignity so easily. But when confronted with the immense situational pressure of an immigration hearing, and fearing the stark consequences of failure, he submitted. Reading that description, I recalled a former client of mine who had committed some minor infraction, the details of which now escape me, and was applying for his green card. He had a forthright and unapologetic demeanor. I suggested, with the infraction in mind, that he adopt a more humble attitude during his green card interview. As soon as he figured out what I was trying to say, he said he would do nothing of the kind. His case was approved anyway, and I regretted my advice.   

I fear that many of my undocumented clients have internalized U.S. society’s expectations of them: to be humble, law abiding, hard-working, and family oriented. They are defined by their economic contributions and family connections to U.S. citizens. They ask for nothing more than the opportunity to work to support their families. This narrative is demeaning and ratifies the de facto caste system our immigration system produces. It elides the exploitative nature of the U.S. economic system. I am encouraged when immigrant activists and organizers refuse to adopt the deferential attitude they are expected to have.  

Undocumented immigrants have suffered systemic oppression for decades, without regard to the party in power. The scenarios that clients of mine or of my colleagues have endured are too numerous to recount here. They include:

  • A man knocked unconscious by police in pursuit of another suspect was charged with assaulting the police and put into deportation proceedings.
  • An asylum applicant who panicked and tried to flee to Canada to apply for asylum there was stopped by U.S. border patrol on his way across the border, imprisoned, and deported back to his birthplace. (He would not have been subject to the Safe Third Country Agreement, had he been able to enter Canada.)
  • An infant 10 days old was imprisoned with her asylum-seeking mother. U.S. officials claimed the baby was on her way to the U.S. to work.
  • After a 19-year-old mother imprisoned with her daughter at one of President Obama’s infamous “baby jails” was the victim of institutional rape by a guard, the prison forbade the inmates from wearing “tight-fitting” clothing. The prison added several paragraphs to the Spanish version of the inmate handbook instructing women how to modify their behavior to avoid being assaulted at the prison, instructions that were missing from the English version.
  • A woman who had been trafficked into sex work by a transnational criminal syndicate was “freed” by ICE in a raid of the house where the women were being held. ICE referred her to a local nonprofit and washed their hands of the matter. She declined to fight her deportation, since the traffickers had threatened her children who had remained in her country. She most likely either remained in the U.S. or left and was re-trafficked, either way returning into the arms of her traffickers.
  • A woman presented herself at a port of entry at the U.S.-Mexico border as part of a group seeking asylum. To pressure her to relinquish her claim, U.S. officials took her U.S.-citizen children into custody and turned them over to local child welfare officials to be placed into the foster system.

Each of these examples occurred under the Obama administration. It didn’t matter to these people whether or not George W. Bush and Donald Trump were “worse” on immigration policy than Obama. The system designed to crush immigrant lives has long been a bipartisan endeavor.

In evaluating a client’s mental state in order to provide evidence of trauma to support an application for relief in immigration court, mental health practitioners unfamiliar with the immigration system at first point to causative factors stemming from the deportation process itself. These factors can include detention or the threat of detention, the threat of long-term separation from family members, and the paralyzing uncertainty produced by an open-ended and inscrutable legal process. Experienced mental health evaluators know that most judges and prosecutors are blind to harm caused by the deportation process. Even judges who might empathize with a client typically discount such factors, following conventional interpretation of case law. Immigration attorneys soon find that one of their jobs is to persuade clients to jettison their existing ideas about what U.S. society claims to value, since traversing the treacherous path to safety may require it.

I’ve started to tally asylum cases where the harm visited on my clients by the U.S. government or actors the government is unable or unwilling to control would satisfy the legal standard for asylum, were that harm to occur in another country. It happens more often that we might like to admit.

As Zaman notes, the practice of compelling people to denounce their home countries and cultures is troubling. Migrants’ relationships to their birthplaces can generate a complex mix of powerful, sometimes contradictory emotions. Governments in countries of origin are often corrupt and hypocritical. Bigotry in its various forms is deeply embedded in many places. But leaving one’s home, family, and culture is rarely easy. And the U.S. has little standing to criticize other governments, given its own failings. Yet the U.S. immigration system tends to expect a reductive and derogatory accounting of immigrants’ experiences in their countries of origin.

Over time, practitioners get worn down. It’s easier not to fight each routine indignity. I’m inspired by my colleagues in the immigration bar who don’t reflexively concede, the troublemakers and reprobates, the pugilists and iconoclasts. (You know who you are.) And the immigrant fighters who stand up to a system meant to destroy them are simply heroes.

In the course of learning about immigration law and its problematic norms, I became more and more aggravated. Blogging and providing support to immigrant rights organizers helped temper my frustration. Later, I encountered the Open Borders website and a nascent online community of proponents of radically freer immigration policies that the site fostered. My gradual acculturation to the immigration system, and my resignation to the reality that zealous advocacy on behalf of any individual client usually meant participating in their degradation, signaled that it was time to leave the daily practice of immigration law. Last year, I incorporated a nonprofit organization to advocate for open borders. I stopped taking on new clients. I felt as though a burden had been lifted. While my obligations to existing clients mean that I’ll be working on immigration cases for years to come, I am able to think about my work with optimism again.

Zaman writes:

Before I left the United States, I spent much time wondering why our legal system is so intent on shaming immigrants before granting them any rights. For undocumented immigrants, especially, the unspoken assumption seems to be that they demand what isn’t owed.

Zaman astutely identifies the core assumption underlying the immigration regime: that immigrants are owed nothing since the right of the sovereign state to restrict immigration outweighs the immigrant’s right to migrate in almost all cases. But that assumption is wrong. Immigrants are owed their basic human rights, including the right to enter, the right to remain, and the right to full economic, social, and political inclusion. Those who do demand those things should be supported, not shamed or silenced.

A small but growing number of activists, attorneys, and organizers argue that immigration restrictions should be abolished altogether. Scholars like Joseph Carens and Bryan Caplan have set out a compelling conceptual framework justifying open borders. Attorney Steven Sacco has argued that immigration lawyers can assist their clients to resist the oppressive immigration system, but that does not alone satisfy their moral obligation to be abolitionists. In her piece, Zaman aptly articulates the cognitive dissonance that results from working to promote human rights within a system that is incompatible with human rights. But there is a way forward, and it begins with dismantling the immigration regime.

The Most Privileged Target the Most Disadvantaged

Opportunity means having the option to work towards a life with sufficient or even prodigious resources. Unfortunately, equal opportunity does not exist either within or between countries. Differences in opportunity are, however, especially pronounced between countries. This is a major reason why open borders is so attractive; open borders would reduce the opportunity gap by allowing those who live in countries with very little opportunity to improve their circumstances by moving to a country with more opportunity. It is also why efforts by the most privileged individuals in developed countries to deny open borders to the disadvantaged of less developed countries are so egregious.

The hierarchy of opportunity in the world looks roughly like this. The most privileged are those born into wealth in both developed and less developed countries. Next on the rung would be those born into the middle class of the developed countries. (It is unclear where the middle classes of the less developed countries would appear on the hierarchy; it probably depends on the individual country.) The working classes in the developed countries would follow, with those in countries with stronger safety nets above the U.S. working class. The poor in developed countries would follow, with the poor in less developed countries occupying the bottom. This group itself could be ordered according to the level of poverty and political dysfunction they experience. At the very bottom would be residents of Syria, Yemen, Somalia, and South Sudan, where people must survive apocalyptic conditions.

The wealthy U.S. President Donald Trump has always occupied the top level of this hierarchy. He was born into wealth in a stable liberal democracy (which some would argue he is working to undermine). Chuck Collins, author of Born on Third Base, notes that Trump “was set-up for success.”

Rather than adopt a perspective of noblesse oblige, Trump is targeting those at the bottom levels of the privilege hierarchy: undocumented immigrants in the U.S. and would-be immigrants from poor and/or violent countries. (The majority of undocumented immigrants come from Mexico and other less developed countries.) The Trump administration has moved to make it easier to deport people. It is also attempting to ensure the detention of asylum seekers from Central America while their cases are pending and to punish Central American parents for trying to get their children into the U.S. His homeland security secretary even raised the idea of separating children and parents who arrive in the U.S. from Central America to deter others from coming, and Attorney General Jeff Sessions has directed federal prosecutors to make cases against those who cross the border illegally a higher priority. Trump also has promised to build a wall along the U.S.-Mexico border and has tried to stop the entrance of Syrian refugees into the U.S. altogether.

Trump is not the only very privileged American to target disadvantaged immigrants and refugees. Representative James Sensenbrenner of Wisconsin is the chairman of the House immigration subcommittee. He supported a 2005 bill that would have made being in the U.S. without authorization a criminal offense. According to The New York Times, he “has no tolerance for illegal immigrants, either in his political life or personal life.” At the same time, he is also among the wealthiest members of Congress, with a net worth of almost $25 million in 2014. The New York Times reports that he received “a fortune” from a great-grandfather, and ABC News lists him among the “top five political heirs.”

While apparently not born into wealth, Jeff Sessions, Trump’s aforementioned attorney general, was listed among the wealthiest members of Congress, with a net worth of over $7 million in 2014. The Washington Post has noted that in his previous job as senator “Sessions has opposed nearly every immigration bill that has come before the Senate the past two decades that has included a path to citizenship for immigrants in the country illegally.”

At the same time, apparently more privileged Americans, as represented by a higher level of education, are generally more receptive to immigration than their less privileged peers. In fact, a National Academy of Sciences report suggests that well off Americans benefit from immigration. Thomas Edsall quotes from the report: “In summary, the immigration surplus stems from the increase in the return to capital that results from the increased supply of labor and the subsequent fall in wages. Natives who own more capital will receive more income from the immigration surplus than natives who own less capital, who can consequently be adversely affected.” (Note that some economists assert that immigrants have little or no effect on workers with relatively little education.)

So it is surprising when privileged Americans voice opposition to immigration, since they apparently gain financially from it. Of course, such individuals may be concerned about the cultural impact associated with immigration, or they may be concerned about its impact on their disadvantaged compatriots. Or, if running for public office, they may be cynically appealing to voters’ fears about immigrants.

Whatever their motivation, from a moral perspective it is appalling when privileged Americans, among the most privileged people in the world, oppose the immigration of individuals who are among the most disadvantaged. It is especially disconcerting when they have the political power to realize this opposition, as in the cases of Donald Trump, Jeff Sessions, and James Sensenbrenner.

The Practice of Immigration Law as Manumission

I do not want to equate the evil of chattel slavery with the evil of immigration restrictions. They may or may not be equal in one person’s experience or another’s, but I am not out to make a claim one way or another. I want to avoid at all costs what Elizabeth Martinez terms an “oppression Olympics,”1 referring to the weighing of which group is more or less oppressed than another such that the comparison succeeds in turning oppressed people against each other, which is of course a win for the oppressor. All I want to do here is re-frame the moral context of immigration law practice by way of analogy to the practice of manumission law in centuries past.

I. Manumission Law and Immigration Law

During the centuries that chattel slavery persisted in the Americas, there existed also in many jurisdictions the law of “manumission,” or the emancipation of a person from status as a slave through legal means, such as by purchasing or contracting for their freedom from their owner, or having it granted to them by their owner’s will and testament, making them a “free person.”2 Sometimes this involved slave owners asking a tribunal to manumit the human beings they themselves owned,3 but in other contexts it involved enslaved people directly asking the court to allow themselves to be manumitted,4 sometimes with representation by counsel.5 It is this latter scenario of self-manumission through an advocate that we’re referring to here – where an advocate argued on behalf of an enslaved person for their freedom.

The practice of immigration law6 is the lawful application for enhanced liberty or rights for individuals without U.S. Citizenship, before and against a government agency designed to restrict their liberty and their right to have rights, as Hannah Arendt put it.7 The immigration law practitioner petitions a government officer or judge for their recognition of a human being’s right to move, work and survive. This is to say, the non-citizen, through their immigration lawyer, asks the government officer or judge for permission to be treated as a full human being; put even more simply, a non-citizens asks the government, through counsel, to recognize their humanity.

The same law that affords the non-citizen the ability to petition for this recognition and permission is the same law that endows that officer or judge with the unchallenged power to dismember families, crush freedom and sentence deportees to death. Just as the enslaved person asked for their freedom on the authority of their owner’s will or contract – the same owner with the power to end their family, their freedom or their life. But, without comparing the degree of dehumanization or the frequency of torture and murder visited upon human beings within either of these institutions, what other aspects of them appear comparable?

In both instances the law afforded a narrow route of escape (albeit with limited rights to the escapee) from the institution. In both instances a legal advocate, a lawyer, had to work within the laws of the time and make arguments based on those laws and the assumptions that undergird them – seeking relief from the same power that presumed the authority to destroy their client. In both instances, engaging in this kind of advocacy against the institution did not actually challenge the institution’s authority or legitimacy, but rather reinforced them.8 Certainly it failed/fails to challenge but reinforces the artifice of white supremacy. In both cases the advocacy nonetheless enhanced the liberty of individual people on a case-by-case basis

One author describes manumission this way: “Slaves used the law designed essentially to keep them as slaves to win their freedom, and free people of color used the law to maintain and often to fight vigorously to safeguard their liberty.”9 Replace “slaves” with “undocumented people” and the former part of this explanation could easily describe removal defense and bond hearings while the latter could just as easily describe applications for legal permanent residence or naturalization.

II. Moral Tension

Another way in which the practice of manumission is comparable to the practice of immigration law is that neither was/is devoid of moral ambiguity. In each case well-meaning people were working within an institution they may have fundamentally disagreed with or even hated. In doing so they obeyed the rules of that institution and called upon the authority of the slave owner’s ownership to manumit, and thus arguably kowtowed to its authority, thereby legitimizing and reinforcing it. In this sense they were to some degree complicit in the crimes of the institution itself. When we ask the government today to give a person relief from deportation or detention, we imply that we agree that the government has the authority to destroy that person’s life; inasmuch as we appeal to a power, we also consent to it.

But at the same time, there’s a strong moral argument that an attorney’s practice of manumission law to secure a client’s freedom was necessary for a simple reason: it saved lives. It did require a lawyer to play by the rules of slavery, but practically it also saved the lives of individual human beings, shielding them from torture, murder and rape – just as deportation defense often does today.10 Ultimately manumission won an individual person’s liberty (or at least reduced their level of bondage11), albeit without injuring or truly challenging the evil institution from which they were liberated. The same can be said of the practice of immigration law today – like manumission before it, it may be necessary to save lives.

Historian Jessica Millward, in her article discussing how enslaved women used manumission laws to gain their freedom, describes this moral tension:

Manumissions were granted on an individual basis and never jeopardized the balance of power, which positioned the laws of the slaveholding South as an omnipresent force in the lives of African Americans. After all, manumission laws were slaveholders’ laws, and any space left for a slave to gain freedom through them was a loophole, not an open door. However, the ability to negotiate one’s manumission and that of one’s kin became a very important vehicle of resistance for enslaved women.12

As immigration lawyers, especially in the world of public interest law, we take enormous emotional shelter in the perception that we are on the just side of a war between right and wrong, and with good reason – we are. But we do not enough acknowledge the moral tension Millward describes in the context of manumission, where that tension is more obvious: we are doing the right thing, yes, but in a context that is so wrong that any proximity to it at all puts us closer than we want to be to culpability. As such that proximity deserves our scrutiny and critical thoughtfulness.

So this comparison is not to say that a lawyer’s practice of manumission or immigration law was/is evil in and of themselves; rather manumission practice, like immigration practice, could be a necessary vehicle of resistance (to use Millward’s words) when and inasmuch as it becomes a necessary intervention to save lives and protect people from harm. This comparison prompts us to conclude that their practice does not by itself satisfy the moral responsibility of the practitioner. Such a practice is necessary, but insufficient. It was not enough for a lawyer to advocate for the manumission of individuals during a time when the terrorism of slavery thrived – rather the minimum level of moral responsibility required that they call for the abolition of slavery as an institution.

Thus, like legal manumitters before them, it is not enough for immigration lawyers to practice the law – we must be abolitionists. It is morally insufficient to fall somewhere in the middle or to fail to take that position. And it is in that sense too that these two areas of law are analogous – not in the depth of the cruelty of the institution that they were a part of – no oppression Olympics please – but in their failure of each in and of themselves to be morally adequate conduct on the part of the practitioner in each of their respective contexts.

For both the manumitter advocate and the immigration lawyer, it is a failure of their moral imagination to believe that their responsibility ends with their legal work. Our duty does not end with advocacy on behalf of someone’s life or liberty, but with calling for the abolition of the institution that threatens them in the first place. Our job may begin with filing a Notice of Appearance, but it ends only with speaking out in favor of abolishing the border.13

Footnotes

1 Martinez, Elizabeth. 1993. “Beyond Black/White: The Racisms of our Times.” Social Justice 20 (1/2): 22–34.
2See, e.g., Michael P. Mills, Slave Law in Mississippi from 1817-1861: Constitutions, Codes and Cases, 71 Miss. L.J. 153, 184-188 (2001); Andrew Kull, Restitution in Favor of Former Slaves, Symposium: The Jurisprudence of Slavery Reparations, 84 B.U.L. Rev. 1277-78, 1280-81, 1286 (Dec. 2004); Warran T. Burns, Book Review: Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862, 78 Tul. L. Rev. 2339, 2340 (“slaves nevertheless continued to enter into contracts for self-purchase during the antebellum period”).
3 A. Leon Higginbotham, Jr. & F. Michael Higginbothom, “Yearning to Breathe Free”: Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U. L. Rev. 1213, 1255 (Dec. 1993); Michael P. Mills, Slave Law in Mississippi from 1817-1861: Constitutions, Codes and Cases, 71 Miss. L.J. 153, 184-188 (2001).
4 See Warran T. Burns, Book Review: Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862, 78 Tul. L. Rev. 2339, 2340 (“slaves in Louisiana had the right to bring suits for their freedom in their individual capacities . . .”); A. Leon Higginbotham, Jr. & F. Michael Higginbothom, “Yearning to Breathe Free”: Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U. L. Rev. 1213, 1260-61 (Dec. 1993).
5 See Eric Foner, Gateway to Freedom: The Hidden History of the Underground Railroad 42, 133 (2015).
6 I don’t use this phrase here to refer to attorneys who work for Immigration and Customs Enforcement or Citizenship and Immigration Service – although they are practicing immigration law as well, inasmuch as a lawyer representing a slave state in opposition to an enslaved persons request for manumission could be said to have been practicing manumission law.
7 Hannah Arendt, The Origins of Totalitarianism, new edition 296 (1968).
8 This is probably not the case with federal impact litigators who might challenge an immigration law on constitutional grounds, for example, since they may be challenging the institution itself, just as, say, the 13th Amendment did to slavery, or Brown v. Board of Education did to slavery’s later incarnation, Jim Crow.
9 Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans at xiii (Jan. 2003).
10 In truth, the lawyer defending the person from deportation does not “save” that person – but merely engages in a partnership in which the non-citizen saves themselves through that partnership, and the same can be said for any attorney who defended an enslaved person against a nineteenth century tribunal.
11 Manumission did not restore a former slave to full human being-status – they could still face violence and discrimination and in some jurisdiction could be re-enslaved to pay off their owners debts. Likewise, a non-citizen may win Legal Permanent Residence before an immigration court, but could still be deported if they commit a crime or engage in any number of other actions.
12 Jessica Millward, The Relics of Slavery: Interracial Sex and Manumission in the American South, Frontiers: A J. of Women Studies, Vol. 31, No. 3 (2010), pp. 22-30, at 26.
13 And when I say abolishing the border I mean abolishing the border.

Resistance to U.S. Immigration Restriction: Echoes of the Opposition to the Fugitive Slave Laws

In the 18th and 19th centuries, the United States enacted laws to facilitate the recapture of escaped slaves. The Fugitive Slave Act of 1850 required citizens to help recapture slaves and delegated power to federal commissioners to decide whether those arrested would be freed or sent back to slavery. Both this law and its predecessor, the Fugitive Slave Act of 1793, imposed fines on those who interfered with the recapture process.

There was resistance to the laws in the free states. As history.com notes, “… most Northern states intentionally neglected to enforce” the 1793 law, with some establishing laws making it more difficult for slaveowners to recapture their slaves. There was also resistance to the 1850 law: “States like Vermont and Wisconsin passed new measures intended to bypass and even nullify the law…” At the same time, individuals assisted runaway slaves, including helping slaves migrate to Canada. Groups of activists in the North even physically liberated escaped slaves from federal control.

The current tension between a U.S. government intent on apprehending and deporting large numbers of undocumented immigrants and states, localities, and individuals working to shield these individuals from immigration enforcement is reminiscent of this history.

One parallel is the wide resistance from non-federal governments to both the fugitive slave laws and immigration enforcement. An article in The New York Times reports that five states “limit how much the local police can cooperate with federal immigration agents” and that over six hundred counties across the U.S. “limit how much the local police cooperate with requests from federal authorities to hold immigrants in detention.” Similarly, many big cities “have reaffirmed plans to defy the administration and act as a kind of bulwark against mass deportations.” In an unpublished paper, Allan Colbern cites a scholar who notes that the city of Chicago refused to enforce fugitive slave law in the 1850s and that today it similarly balks at enforcing immigration law. (At the same time, some localities currently resisting immigration enforcement are located in former slave states.)

Another parallel is the financial threat for interfering with federal law. As with the ability to fine those protecting fugitive slaves, the federal government apparently can withhold federal money from localities that restrict local law enforcement from passing along information to immigration authorities about the immigration status of prisoners. The Trump administration has threatened to punish localities in this way for not cooperating with immigration authorities.

A third parallel is the involvement of individuals in protecting those being pursued, whether slaves or immigrants. The New York Times reports that “members of churches and synagogues are again offering their houses of worship as sanctuaries for undocumented people fearing deportation…” Hundreds of houses of worship are either providing refuge for undocumented immigrants in their buildings or are providing resources such as legal aid. Families in various states also are making their homes available as safe havens for undocumented immigrants. Moreover, a “modern-day underground railroad” may be created to help undocumented individuals move “house-to-house or into Canada.” (Similarly, a farmer in southern France has helped smuggle migrants through France without compensation and has criticized the government for blocking the entrance of African migrants from Italy. (See here and here.))

Furthermore, resisting immoral institutions is a likely motivation behind the efforts to assist both runaway slaves and undocumented immigrants, whether the institution is slavery or immigration restrictions (or at least deportation). People generally won’t help murder suspects or convicts on the run, but they might help individuals who are oppressed for reasons beyond their control, such as the color of their skin or their place of birth. (In the case of local governments limiting their cooperation with immigration authorities, the motivation often may be concerns that collaboration with those authorities would interfere with law enforcement because residents fearful of immigration enforcement might be unwilling to report crimes to the local police.)

The Fugitive Slave Laws were eventually repealed during the Civil War, and slavery itself was abolished shortly after the war. Hopefully, immigration restrictions will disappear as well in the not too distant future.

Creative Commons License Immigration Restrictions Hurt Americans Too is licensed by Joel Newman under a Creative Commons Attribution 3.0 Unported License.