All posts by David Bennion

David Bennion is an immigration lawyer and executive director of Free Migration Project. See also: blog post introducing David Bennion

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.

Executive Action, Not Legislative Reform, Is How U.S. Immigration Policy Gets Made Now

Last Thursday, President Obama announced several measures to liberalize U.S. immigration policy by executive action. First is an expansion of the program initiated in 2012 which gave quasi-legal status to undocumented youth, Deferred Action for Childhood Arrivals (DACA). The age limit for qualification for DACA has been removed, and the date before which an applicant must prove he or she entered the U.S. has been moved from 2007 to 2010. DACA-style benefits will also be extended to undocumented parents of U.S. citizen or permanent resident children who have been in the U.S. since January 1, 2010, and have not been convicted of certain crimes. This new program for parents will be called Deferred Action for Parental Accountability (DAPA). The White House estimates that these two reforms, along with an expansion of waivers for family members of U.S. citizens and permanent residents who are currently ineligible for green cards and reforms to certain employment visas, will protect about five million people from deportation. That’s in addition to the nearly 600,000 who have already benefited from the DACA program.

Vivek Wadhwa believes the changes to employment visa processing will be good for immigrants and tech companies that rely on immigrant labor. Prerna Lal and Dara Lind both posted helpful summaries of the deferred action programs.

Applications for DAPA will not be accepted for another six months. The Department of Homeland Security concurrently made changes to its guidelines on enforcement priorities which will become effective in January. The new guidelines will penalize recent entrants and those convicted of certain crimes, while deprioritizing people who had been deported and reentered the U.S. prior to 2014.

As Dara Lind noted, DACA was an improvement over earlier failed prosecutorial discretion initiatives because the program “has demonstrated that formalized protections work much better than vague promises.” Like DACA and Temporary Protected Status, a type of executive humanitarian relief, once granted, DAPA is unlikely to be taken away. The government emphasizes that deferred action is completely discretionary and can be revoked at any time and for any reason. In practice, it is very unlikely that President Obama would rescind or significantly restrict these discretionary programs once they are implemented. It is harder to take something away than to never grant it in the first place. DACA beneficiaries have been able to come out of the shadows, integrating into communities, making their status known to more people, and becoming more active politically. While excluded from the franchise, the moral power they possess as victims of systemic oppression amplifies their voices. It will be difficult politically for Congress or an antagonistic president to rescind DACA or DAPA in the foreseeable future. Any presidential candidate who runs on a promise to rescind the programs will lose the Latino vote by a large margin, effectively dooming his or her candidacy. These programs are here to stay and will hopefully be expanded further.

The deferred action program has serious flaws.

President Obama’s announcement fell far short of what activists had hoped for. The DAPA program excludes parents of DACA beneficiaries. The program leaves out anyone who has already been deported and prioritizes enforcement against those who try to come back to rejoin their families in the future. The president’s “Felons, not families” messaging is a slap in the face of communities of color targeted by an unjust criminal justice system. Queer immigrants are less likely to have U.S.-born children than hetero immigrants and hence less likely to qualify for the program, and agricultural workers were not included.

The number of DAPA beneficiaries will likely be much lower than projected. A good rule of thumb is to divide by half the projected number of beneficiaries to get the true number. 1.2 million people are purportedly eligible for protection under DACA, but after two and a half years, fewer than 600,000 have actually navigated the process successfully. This is due to the difficulty of documenting presence when one is undocumented, high filing fees, disqualification for minor criminal convictions, lack of reliable legal services, and ingrained distrust of the government.

DACA applicants have advantages in navigating the system that many older immigrants don’t have: most speak English and have been able to access information and resources online. But even many undocumented youth have been unable to apply for DACA or have had applications denied, though they are technically eligible for the program, because they have been unable to prove physical presence in the U.S. I expect this to be an even bigger factor with parents, since they will not have school records, as many DACA applicants did. It can be difficult to document your life when you are undocumented, but that is what the government requires. Many people have been living in a way so as to escape detection. Many have been unable to open a bank account, get a loan, buy a car, get health care, or do any number of things that middle class citizens take for granted that would create a paper trail. Now the government wants ironclad proof that applicants were here since a date certain, and too often begins with the assumption that evidence presented is fraudulent.

Whether it is acknowledged or not, the Department of Homeland Security’s primary mandate is to deport people. U.S. Citizenship and Immigration Services (USCIS) is the agency within DHS tasked with adjudicating DACA and DAPA applications. When reviewing applications, USCIS too often looks for reasons to deny rather than reasons to approve. The pattern with this administration has been to announce a policy reform that is supposed to benefit the undocumented community. By the time the policy is implemented, the cameras have turned away and DHS reverts to norm, denying applications for lack of evidence or using discretion against rather in favor of an applicant.

The DAPA program will exclude a large number of people with criminal convictions regardless of family ties or length of presence in the U.S. Convictions that might result in minor penalties for citizens, like a first-time DUI offense, categorically disqualify potential applicants. A third misdemeanor offense of any kind is a ground of ineligibility, which will screen out some undocumented activists who have participated in multiple civil disobedience actions.

In addition, as Dara Lind points out, for political reasons, the government may send contradictory messages about the program to applicants: “that they should apply now because the program is safe, but that it could be taken away at any time” by Republicans. This may discourage people from applying, especially since this president has deported more noncitizens than any other.

In all, I estimate that only two to three million people will be approved under the DAPA program, far below the five million projected by the White House. This may undercut the political benefits meant to accrue to Democrats as the shortcomings of the system once again come to the fore.

While the new programs are a flawed and partial remedy, and will make things worse for some people, obtaining benefits under the programs will be life-changing for many people. They will be able to work legally and live without fear of immediate deportation. They will become more visible and further integrated into their communities.

So, under these conditions, what can we expect going forward?

Deportations are likely to continue at a historically high rate.

The federal government is likely to continue deporting large numbers of people because DHS’s new enforcement priorities still cover more than enough people to maintain ICE’s existing deportation quota of about 400,000 per year. Unnecessary imprisonment of noncitizens will continue as the so-called bed mandate remains in place, which DHS construes to require it to imprison 34,000 immigrants at any given time for civil immigration violations. Operation Streamline, the federal program to criminally prosecute, jail, and deport immigrants crossing the border, is still in place. Many of those convicted through Operation Streamline were arrested while trying to rejoin families in the U.S., and now face 20-year or, in some cases, lifetime bars on returning to the U.S.

The new enforcement priorities escalate the government’s punitive response to refugees fleeing violence and corruption in Central America. The administration is going ahead with plans to construct the largest immigration prison in the country, primarily to jail refugee women and children until they can be deported. The president’s initiative calls for 20,000 additional border officers, though the mechanism for funding those officers is not yet clear to me.

The DOJ’s Office of Legal Counsel itself estimates that deportations will not significantly slow after the new policies are implemented:

[W]hile the potential size of the program is large, it is nevertheless only a fraction of the approximately 11 million undocumented aliens who remain in the United States each year because DHS lacks the resources to remove them; and, as we have indicated, the program is limited to individuals who would be unlikely to be removed under DHS’s proposed prioritization policy. There is thus little practical danger that the program, simply by virtue of its size, will impede removals that would otherwise occur in its absence.

Mark Noferi of the American Immigration Council notes that deportation numbers may remain high due to an increased use of expedited removal at or near (within 100 miles of) the border and the high-by-historical-standards levels of funding for immigration enforcement.

Given the low percentage of people I expect to successfully complete the process, seven to eight million undocumented people will likely still be in limbo, at varying degrees of risk of deportation. The deportation machine has been built and is running smoothly. It won’t disappear just because the president has placed some people off limits. DHS may now go after those who are not protected more aggressively than before.

Political divisions around immigration will become more entrenched.

The political dynamics that pushed the president to announce the deferred action measures are likely to persist. Legislative reforms are not on the horizon, and additional discretionary measures will be the only viable form of relief for the foreseeable future. The polarization and political salience of immigration policy will only deepen.

After the 2012 general election, I had begun to believe predictions that demographic changes in the electorate would inevitably lead to broad legalization relatively soon. Given the demands of the two-year election cycle, House Republicans might succumb to the temptation to demagogue immigrants. But, the thinking went, more reasonable voices in the GOP would prevail as the party looked ahead to 2016 and the prospect of failing to win the White House and the Senate. I read with interest Tim Dickinson’s analysis of Karl Rove’s political strategy in 2010 of winning state legislatures in order to reshape House districts more favorably for Republicans. Dickinson and others predicted that the strategy of spreading GOP voters among a larger number of districts–turning more districts red, but a lighter shade of red–would eventually backfire as the proportion of Democratic voters grew and turned the districts blue again. However, others rebutted this theory, arguing that the concentration of Democratic voters in urban districts, combined with the increased polarization of the electorate, provides Republicans with a structural advantage in the House that could forestall demographic electoral benefits to Democrats in that chamber for many years.

The Democrats’ demographic weaknesses in midterm elections become strengths in presidential elections. In elections where there is a high percentage of Latino voters and a sharp distinction between candidates on immigration policy, Democrats hold the advantage. This held true for Harry Reid in 2010 and President Obama in 2012. By announcing and implementing the new deferred action programs, the president may have secured the White House for the Democrats again in 2016. Arguably, this was the only way not to lose it.

GOP base voters, who are older and whiter than the electorate as a whole, view the demographic changes brought on by the liberalization of immigration laws in 1965 as an existential threat to the party and the country. They will not willingly compromise on this issue, and will punish Republican candidates who do not take a hard line. The base has now defined amnesty as any liberalization of immigration policy. While the GOP establishment beat Tea Party candidates in most cases this election cycle, the exceptions, such as Eric Cantor’s surprise primary loss to restrictionist-leaning David Brat, pushed even mainstream candidates far to the right on immigration policy. GOP Senate candidates Scott Brown and Tom Cotton ran on the urgent, yet mythical, threat of Ebola and ISIS overrunning the southern border. This in turn pushed Democratic politicians to take ridiculous positions, such as Kentucky Senatorial candidate Alison Lundergan Grimes’s accusation that Mitch McConnell had supported amnesty. Even one-time children’s rights advocate Hillary Clinton urged the government to deport refugee children who had crossed the border.

I believe that the GOP’s populist base will push the party to fight broad legalization until the party is overwhelmed by brute electoral force generated by the demographic tipping point as nonwhites become a majority in the U.S. This tipping point may be the most momentous political event in the U.S. in the coming decades, aside from possibly climate change. I believe immigration policy will track that broader demographic event. Until the political environment acknowledges the changing demographics (which, given California’s experience, should precede the actual demographic tipping point), individual GOP politicians will find political benefit–really, political survival–in opposing the legalization of undocumented immigrants.

But by opposing legalization, Republicans will find it very difficult to win national elections. The Latino electorate is growing each year, while the proportion of white voters shrinks. Immigration policy is a highly-salient issue for many Latino voters. The strategy of some Republicans will be to oppose the deferred action programs while claiming to support legislative legalization. GOP candidates who take this position will likely face primary challenges from the right. Meanwhile, many Latino voters will oppose any candidate who threatens to rescind the programs. This dynamic places the national GOP at a disadvantage, while also creating a hostile environment for comprehensive immigration reform.

If it’s true, as Talking Points Memo proposes, that Democrats won’t be able to win the House back until at least 2022, and the GOP views legalization of undocumented immigrants as an existential threat, then the U.S. may not see broad legislative legalization for another eight years or more.

Further reforms are likely to come from the executive before they come from Congress.

Because there are many shortcomings with the new executive measures and deportations may continue at a high rate, many immigrant rights activists will continue to criticize the president’s deportation record. In fact, some undocumented activists interrupted the president during his speech announcing the program in Las Vegas to ask why he left their parents out. The administration’s response to both pro and anti-migrant critics has been “pass a bill.” However, because of the factors I described above, it is unlikely that Congress will pass a bill in the next several years. This is why the most likely avenue for further expansion of immigrant rights in the U.S. is through further executive action from President Obama or the next president.

I hope to see more immigration civil rights litigation in the courts, which have historically been an important part of civil rights advances. However, the courts move slowly, and Congress and the president have for years strengthened the immigration system’s immunity to attack in the courts.

The legal justification for the deferred action programs rests in the ample discretion of the executive in matters of immigration and foreign policy. The president may have regretted his claim last year that he had no authority to stop deportations beyond the DACA program. The White House took greater care this time to insulate itself from future demands to expand the deferred action programs, but it is already being asked to do just that. The White House took the unusual step of making public the memo from the Office of Legal Counsel setting out the legal arguments for the DAPA program and against expanding the program to parents of DACA beneficiaries. The latter argument rests on dubious legal grounds that would have also precluded the initial DACA program. The OLC memo may cause the president or his successor problems down the road, as organizers pressure them to expand deferred action to parents of undocumented youth.

The increasing convergence and formalization of prosecutorial discretion immigration policies makes them more vulnerable to challenge by opponents. Offloading immigration policy into the realm of discretion is a function of the increased power of the executive vis-a-vis Congress, growing political polarization, and an immigration regime widely seen as morally illegitimate. Prosecutorial discretion works for immigrants when the president feels magnanimous, but not when he is the Deporter In Chief.

Oppressed people draw moral power from the fact of their oppression. Even before the DACA program was announced, “undocumented and undeportable” organizers had carved out a safe space for themselves by coming out publicly, fighting deportation defense campaigns for their peers, and staging civil disobedience actions. Changes in immigration policy reflect and reinforce changes in norms, as the line between documented and undocumented has become more and more blurry. “Illegal means illegal” is no longer a useful or even accurate catch phrase. This incremental, quasi-legal progress may provide a template for immigration liberalization in other assimilationist countries. It’s a type of adverse possession: physical presence eventually leads to legal rights based on moral considerations.

However, as is becoming more clear with respect to DACA beneficiaries, the deferred action programs also represent a step towards formal recognition of an underclass of workers who are legally, indefinitely excluded from full participation in U.S. society. This should remind U.S. citizens of the country’s shameful legacy of state-sanctioned stigmatization and exploitation of disfavored groups.

The promise of legislative legalization has eluded advocates for at least 15 years. Executive relief will likely be the only viable form of formal protection for undocumented immigrants for the next several years. Claims that Obama can’t expand deferred action further will ring hollow, given that he said the same thing about the programs he just announced. Activists and advocates would do well to remember how unreliable both major political parties have been and how fickle a reform strategy that relies solely on electoral politics can be. Comprehensive immigration reform should not be the sole focus of immigrant rights organizing. Now is the time to escalate action beyond elections and Congress and to utilize unconventional strategies to highlight the moral incongruities of the immigration system. Here are some ideas for action (though the DAPA program makes #7 moot).

The immigration system isn’t broken, it is working as intended. But it needs to be broken; we need to break it. The closed-border immigration system is a key element in a regime of global apartheid that mocks the ideals of justice, equality, and liberty. When we mourn those left out of the most recent reforms, let’s not forget those who’ve already been deported or who never had the chance to leave to pursue a better life.

Image credit: Steve Pavey, Portland Occupier

In 2013, the Dream 30 Fought to Come Home

Note: The National Immigrant Youth Alliance (NIYA) is not affiliated with the Open Borders website, and the views expressed herein are those of the author alone.

On September 30, 2013, 34 people crossed the pedestrian bridge from Nuevo Laredo, Mexico, and presented themselves to U.S. officials at the port of entry in Laredo, Texas. Thirty-one were Mexican citizens, two from Honduras, and one from Peru. None had permission to enter the U.S. They were dressed in the graduation caps and gowns that have become identified with undocumented youth and the DREAM Act, the perennial bill which would provide legal status to young people who grew up in the U.S. without papers. The group was accompanied by reporters covering the event for audiences across the U.S. and Mexico. Each of the 34 handed an ID to Customs and Border Protection (CBP) officials. Each was interviewed and expressed a fear of returning to his or her country of birth. All 34 were then taken into custody by CBP.

What these 34 individuals had in common is that each had previously lived in the U.S. without lawful status prior to being deported or “attritioned” due to anti-immigrant state and federal policies. Most were in their late teens or early twenties and would have qualified for the Deferred Action for Childhood Arrivals (DACA) initiative, a federal administrative reform that tracks the requirements of the DREAM Act, had they not been on the wrong side of the border on June 15, 2012, the date the policy was announced. A few had left the U.S. just weeks–even days–before that date.

This group became known as the Dream 30. Organizers at the National Immigrant Youth Alliance (NIYA) conceived of and coordinated the action. As an immigration attorney, my role was to provide legal advice to the participants and represent them in the immigration interviews and hearings that were to follow. The organizers built on a similar action which had taken place two months earlier with nine participants, dubbed the “Dream 9.” The Dream 30 differed from the Dream 9 in two important ways. First, four participants in the Dream 30 action were parents, older individuals who would not have qualified for DACA or the DREAM Act because of their ages when they came to the U.S. (This is one reason that the “Dream 30” shorthand was used even though there were 34 participants.) By contrast, each of the Dream 9 participants was a Dreamer, someone who had come to the U.S. as a child and grown up here without lawful immigration status. Second, three of the participants in the Dream 9 action had voluntarily crossed from the U.S. to Mexico for the purpose of participating in the action with the other six participants already in Mexico. This was a controversial and, to some observers, brazen element of the Dream 9 action which was not part of the Dream 30 action.

Life in Exile

The Dream 30 had departed the U.S. for a variety of reasons. Some were deported or left to join parents who had been deported. A disproportionate number hailed from Arizona and had been driven out by the campaign by elected officials there to purge the state of Latinos. Many had hit a wall after high school or college, unable to pursue work or continue education because of their immigration status. One had traveled to attend a green card interview based on an approved petition filed by her U.S.-citizen stepfather and was wrongly rejected and denied re-entry to the U.S.

Most of the Dream 30 were from Mexico. After returning to Mexico, they found a different country than the one they had left as children. The drug war that began in 2006 had claimed between 60,000 and 120,000 lives and is still raging in much of the country. Members of the Dream 30 came from states wracked by cartel violence like Sinaloa, Michoacan, Veracruz, and Guerrero. In much of Mexico, the authorities cannot be trusted. The entire police force of the city of Veracruz was deemed irredeemably corrupt by the federal government in 2011 and disbanded. Viligante self-defense groups have formed in Michoacan as lists emerged of government officials on the payroll of the cartels. Several of the Dream 30 were victims of extortion or threats by the police themselves. Many had relatives who were kidnapped or murdered. Most of the Dream 30 were readily identifiable as having lived in the U.S. due to their accents or appearance, or by word of mouth. Consequently, they were at risk of being targeted by the cartels or police on the assumption that they had relatives in the U.S. who could pay ransom. Some experienced persecution based on their race or sexual orientation. Some had left the U.S. to apply for visas “the right way” on the mistaken assumption that they would be able to return to the U.S. on student or visitor visas. Instead, they were told their sentence of exile was anywhere from 10 years to life. Many found their school credit didn’t transfer over to schools in Mexico and that their education and career opportunities were no better than in the U.S. They had become foreigners in the land of their birth. The situation was all the more painful because they had missed, some by days, the protections and opportunities they would have been afforded under DACA had they been able to remain in the U.S. until the date the policy was announced.

Fighting to Stay

Elsy, one of the Dream 30 from Honduras, crossed the footbridge with her severely disabled four-year-old U.S. citizen daughter. Elsy was released into the U.S. later the same evening to seek medical treatment for her daughter. Seven others–all minors and their parents–were released on October 1, the first day of the government shutdown. Another 17-year-old who was not accompanied by a parent was taken to San Antonio to be processed for release two weeks later as an unaccompanied minor. The remaining 25 participants were transferred into Immigration and Customs Enforcement (ICE) custody and transported to the El Paso Processing Center, a ten-hour drive from Laredo.

Each of the 25 Dreamers was scheduled for a telephone interview with one of a team of officers at the Houston asylum office the following week to determine whether he or she had a “credible fear of persecution” if deported. The asylum offices are part of U.S. Citizenship and Immigration Services (USCIS). USCIS, ICE, and CBP are sub-agencies of the Department of Homeland Security (DHS). The credible fear interview is only an initial step in the typically lengthy and difficult process of applying for asylum. Asylum is a status granted to those who meet the legal definition of a “refugee” but are either already inside the U.S. or are knocking at the door. The credible fear standard is lower than the standard that must be met for a grant of asylum in a full removal proceeding. As Professor Bill Hing wrote in a letter of support for the Dream 30:

The credible fear concept functions as a pre-screening standard that is broader and less rigorous than the “well-founded fear of persecution” standard that is required for an actual asylum application. A finding of credible fear merely gives the prospective immigrant the opportunity to apply for asylum in removal proceedings. Without this more generous screening standard, the nation risks returning immigrants to grave dangers, including situations involving political violence, police corruption, gang violence, and torture.

During the initial interviews on October 7, some of the interviewing asylum officers were openly skeptical and cut my clients off as they described their experiences. The asylum office refused to accept the asylum applications and packets of supporting documents we had prepared for each individual, as had CBP at the port of entry, saying the detailed information and evidence of persecution wouldn’t affect their decisions anyway as it would not be reviewed. (Later, after NIYA publicly criticized the asylum office, the officers agreed to accept and review some supporting evidence.) The asylum office took the unusual step of re-interviewing twelve of the participants on October 15 since, as a supervisor told me, these were high-profile cases.

The asylum office began issuing credible fear decisions shortly after the second set of interviews. The average credible fear denial rate nationally for Fiscal Year 2013 was about 8% (AILA InfoNet Doc. No. 13081316, p. 29). However, nine of the 25 Dreamers interviewed for credible fear were denied by the asylum office, a denial rate of 36%. The officers refused to acknowledge that the heightened risk of extortion, kidnapping, or murder by virtue of being a Dreamer warranted a full asylum hearing in front of an immigration judge. While the Houston asylum office is bound by the rulings of the conservative Fifth Circuit Court of Appeals, even there, the law governing the specific claim of fear of persecution based on being a member of the class of Dreamers is not settled. The majority of immigrants interviewed for credible fear are unrepresented by counsel, don’t speak English, and often lack formal education. Often there are discrepancies between the initial border interview and the subsequent credible fear interview. For instance, an applicant might tell a border official she was coming to work in the U.S. and later disclose the additional motivation of fear of persecution to an asylum officer. My clients requesting credible fear had all been educated in the U.S., were represented by counsel both prior to and during the interviews, and were fluent in English. There were no significant discrepancies between the border interviews and the credible fear interviews. I emphasized to my clients the importance of telling the truth, and I and the small team of lawyers and assistants working with us reviewed the case histories for consistency and accuracy. Anecdotally, it is rare for credible fear applicants represented by counsel to be denied by the asylum office. I would have expected the credible fear denial rate for the Dream 30 to be lower than the normal rate, not four and a half times higher. By comparison, all of the Dream 9 passed their credible fear interviews and were paroled into the U.S., including the three who had returned to Mexico for the purpose of participating in the action.

Little Help from “Champions” in Congress

Days stretched into weeks, and still ICE refused to release those of the Dream 30 with positive credible fear determinations. This was in violation of an ICE policy announced in 2009 to parole people found to have credible fear who do not pose a flight risk or danger to the community. I believed at the time that ICE’s intransigence was a form of retaliation for this unorthodox, highly-public action. Later, NIYA learned that ICE’s practice of holding asylum-seekers in violation of its own policy was more widespread than we had thought.

The mothers of two of the participants with negative credible fear findings–Jonathan and Rocio–traveled to Senator Bob Menendez’s D.C. office on October 24 to ask for his help. Menendez is the only Senator in the Congressional Hispanic Caucus (CHC) and is a visible proponent of immigration reform in Congress. Over the last few years, he and other members of congress had worked behind the scenes with NIYA and other youth organizations to persuade ICE to stop deportations in individual cases. But the Dream 9 and Dream 30 actions represented a bridge too far for most of the CHC and the immigrant advocacy organizations that guide the politicians’ decisions. Comprehensive immigration reform legislation was still on life support in October, and congressional Democrats and their organizational boosters feared the Dream 30 action might kill it by giving Republicans in the House another reason to oppose reform. Menendez and most of the CHC closed ranks and left the Dream 30 hanging, giving the green light to ICE to deport any who didn’t make it through the credible fear process. The two mothers refused to leave Senator Menendez’s office unless he agreed to help their children. Instead of helping, Menendez’s staff called the police to arrest the mothers. Defiant, Jonathan and Rocio’s mothers came back to the office the next day. Menendez still refused to help.

Meanwhile, the Dream 30 were becoming increasingly frustrated with their continued imprisonment. The men staged a sit-in on Friday, October 25. Most of the participants went on hunger strike over the weekend. Early the following week, ICE took some of the men to emergency care. I was later told that ICE attempted to obtain a court order to force feed the hunger strikers, but that the treating doctors refused to sign off on the request since the men were still in good health. Tuesday morning, October 29, an ICE officer called to ask me to persuade my clients to end their hunger strike, saying they could not be released while their health was in question. I suspected that the opposite was true, that the pressure tactics were working and ICE didn’t want the negative press that might come if the hunger strike continued. Around the same time, I received word that ICE had denied my last-ditch request to stop the deportation of Rocio, one of the participants whose negative credible fear decision had been rendered first. By the time I was notified of the decision, she was already on her way to Mexico. Later that evening, eleven Dreamers were released. Five more were released on Friday, November 1. While the hunger strike and protests going on around the country had not prevented Rocio from being deported, they had successfully brought others in the group home despite the best efforts of the U.S. government to keep them out.

The Dream 30 forged strong bonds at the migrant shelter in Nuevo Laredo where they met and in prison in El Paso. The 16 who had been released from the El Paso Processing Center promptly got in a van and Benito Miller, a NIYA organizer, drove them to Washington, D.C. The morning of Monday, November 4, they began a series of sit-ins in the offices of members of the Congressional Hispanic Caucus, including Representative Gutierrez. Gutierrez lashed out, declaring he was severing ties with NIYA. Mohammad Abdollahi, a NIYA organizer, dryly noted that NIYA hadn’t had a working relationship with Gutierrez’s office in years.

To deflect the negative attention the offices of Menendez and Gutierrez were getting in the press, staffers told the parents of the Dreamers that I had provided bad legal advice to their children and that they and their children were being manipulated by NIYA. Furious, Maria Hernandez, the mother of one of the Dream 30, wrote a scathing open letter to Gutierrez that was published in the Huffington Post. She wrote, in part:

Personally, these “manipulative” organizers, as the congressman calls NIYA and the Dreamers, have been a constant support to me, to all the parents and to our children, and to the community. Despite their young age they know what they do. But why do they know? Because they have lived it. Such a person can move the world. Thanks to them we have been reunited with our children, which is what these politicians should do.
. . .
Congressman Gutierrez said he will withdraw support from these organizers, but I say, what support? The only thing he has supported is the deportation of these two young people, Brandon and Rocio. Congressman Gutierrez and his colleagues in Congress are well aware that if they support these Dreamers, more Dreamers will come and that is what they do not want, family unity.

By trying to discourage the parents from pursuing the release of their children, the offices of Senator Menendez and Representative Gutierrez were in effect working with ICE to deport the Dream 30. The staffers, including lawyers who should have known better, attempted to impede my ability to represent my clients by giving false information to their parents.

Most of the national immigrant advocacy organizations ignored the Dream 30 action, as they had the Dream 9, hoping that the story would quickly disappear. The action didn’t fit with the approved narrative that Republicans are to blame for the nearly two million people deported during Obama’s presidency. The estimated 500,000 Dreamers living in Mexico are an inconvenience that most congressional Democrats would prefer to forget.

Challenging the System, Shifting the Debate

I and my nine clients who had received negative credible fear determinations asked for review by an immigration judge. The regulations provide for a limited hearing that falls far short of a full asylum hearing and its attendant due process protections, such as they are. Three of the negative decisions were overturned on review by a judge or after reconsideration by the asylum office. ICE deported the remaining six despite their strong ties to the U.S. and legitimate fear of harm in Mexico. Some of those deported had lived in the U.S. since they were toddlers. In all, 28 of the original 34 were released into the U.S. to pursue asylum or other relief in immigration court in their home states.

At the outset, I had hoped for the same outcome that the Dream 9 had achieved: parole of all participants after passing a credible fear interview. I believe the different result this time came from a combination of factors. The DHS agencies involved–CBP, ICE, and USCIS–closed ranks in an attempt to shut the action down. DHS was on notice after the Dream 9 action and wanted to discourage future attempts by exiled Dreamers to return to the U.S. The asylum office manipulated the legal standard for credible fear determinations in order to deny my clients’ cases at over four times the normal rate, and ICE ignored its own directives on discretionary release of low-priority detainees. Over the past couple of years, ICE rank and file officers have chafed at instructions from D.C. not to deport Dreamers. In the absence of support from legislators and the administration, ICE was free to treat the Dream 30 as though they weren’t Dreamers and deport some of them. A few prominent immigration lawyers gave the administration and the CHC political cover by publicly undermining the Dream 30’s legal cases.

It was important for DHS to discourage more Dreamers from trying to rejoin their families in the U.S. Otherwise the public might become aware that the consequences of U.S. immigration policy extend beyond our borders, and that people don’t vanish once they are deported. They keep living, they keep dreaming. As Prerna Lal aptly wrote

“the deported are not lost to us. They will come back because they are responsible, committed, and dedicated mothers, fathers, children, siblings.”

Even though those of the Dream 30 who were paroled have not secured permanent status in the U.S., they now have the time and resources to prepare to fight their cases. Inside prison, ICE has the upper hand, as legal representation and support networks are disrupted and the cases are heard on an expedited schedule. Immigration judges presiding over prison courts are among the harshest in the country. That dynamic is flipped once a person is released. With time to gather supporting evidence and locate reliable local counsel, and in front of more sympathetic judges, chances of success rise dramatically. But perhaps more importantly, upon release, my clients have likely secured their futures in the U.S. While it is impossible to predict the outcome of the individual cases, it is unlikely that ICE will detain and deport the Dream 30 even if they ultimately lose their cases. They are now embedded in a network of Dreamers and allies that will mobilize to protect them if necessary. The Obama administration says it doesn’t deport Dreamers, and the Dream 30 have become Dreamers on the right side of the border once again. If Congress crafts a DREAM Act that excludes the Dream 30 and the Dream 9, they and their supporters will fight back.

In the midst of the Dream 30 action and a series of civil disobedience actions coordinated by the National Day Laborers Organizing Network (NDLON) to disrupt ICE operations, Representative Gutierrez pivoted away from the comprehensive reform orthodoxy, acknowledging that piecemeal legislation would now be the only realistic way forward. The week following Gutierrez’s public dispute with NIYA, he criticized President Obama for saying one thing and doing another.

While pressure is rising on Obama to enact additional administrative reforms, immigrant rights supporters remain divided over who to target: the President or House Republicans. At the heart of the rift is a difference in objectives and analysis. The first approach involves a sustained push for compromise legislative reform, understanding that it may not produce results until long-term demographic changes work their way through the electoral system. Most analysts predict that the GOP will hold onto the House in 2014, and I believe that House Republicans will become even more resistant to immigration reform as the primary season progresses. I do not know if or when broad amnesty legislation will pass through Congress, but it could be years. The changes contemplated under existing proposals would not significantly alter the immigration system. The second strategy is to directly challenge the deportation system and and push for fundamental changes to the underlying immigration regime. Both approaches have their merits, but disputes are inevitable where the stakes are so high and the analysis so different. We are entering another window of opportunity for an administrative policy shift, as comprehensive immigration reform is stalled and public focus shifts back to Obama’s deportation record. Direct action keeps up the pressure and helps shape public opinion, challenging the “Democrats good, Republicans bad” narrative that has facilitated the administration’s deportation and attrition policies.

I can’t speak for the participants or organizers of the Dream 9 and Dream 30 actions or for the undocumented communities they represent. But to me, the actions represent a challenge to the border as an illegitimate construct, built in a misguided attempt to protect status and power in a changing world. The actions question the global immigration and citizenship regime which, perhaps more than any other single factor, perpetuates extreme social, political, and economic inequality. I believe the actions:

  1. Pushed for a new “Dreamer” particular social group to be defined as a protected ground under asylum laws.
  2. Reunited families.
  3. Helped shift control over policy messaging and strategy back to undocumented people themselves and away from citizen allies purporting to speak for undocumented communities.
  4. Put pressure on the administration and the Democrats to enact further administrative reforms.
  5. Raised awareness of the large number of exiled Dreamers and their family members, most of whom will be shut out of legislative or administrative reforms as currently proposed.

Too much, I have become hardened against the suffering endured by my undocumented clients. Perhaps it’s a necessary response to continue to do the work. Even so, I was powerfully affected by a stream of Facebook posts showing happy reunions with family and friends as members of the group finally made their way back to their homes in November. The Dream 9 and Dream 30 bravely challenged the morally illegitimate laws that would separate them from their families and their dreams. As the Twitter hashtag for the actions succinctly puts it, #BringThemHome.

How Undocumented Organizers Can Lead the Way to Open Borders

My perspective on open borders has been profoundly shaped by my work with undocumented organizers in the U.S. In this post, I make the argument that the people most directly affected by closed borders are best able to create the political conditions necessary for open borders because:

1. They have the most to lose and therefore work the hardest for change,

2. They can better analyze the issues and frame the arguments in support of open borders because they directly experience the consequences of closed borders, and

3. Because of 1 and 2, affected individuals are more persuasive messengers to the voting public than intermediaries.

Martin Luther King, Jr. argued that meaningful social change comes through the creation of tension in an untenable system. In a recent OB post, Paul Crider cited King:

You may well ask: “Why direct action? Why sit ins, marches and so forth? Isn’t negotiation a better path?” You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. . . . I am not afraid of the word “tension.” I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. . . . The purpose of our direct action program is to create a situation so crisis packed that it will inevitably open the door to negotiation.

King’s key insight found expression in the movement for Indian independence, the U.S. civil rights movement, the end of apartheid in South Africa, and the Arab Spring.

Undocumented youth in the U.S. have created tension by engaging in direct action to force the fact of their oppression into the public consciousness. The two most significant political events relating to immigration in the U.S. in the past few years were the DREAM Act vote in December 2010 and the Deferred Action for Childhood Arrivals initiative announced by President Obama in June 2012. Both resulted in large part from direct action by undocumented activists.

Undocumented Youth Push the DREAM Act to a Vote

Before 2010, immigrant rights barely registered with progressives, liberals, and libertarians who weren’t directly affected by the issue. In the 2009-2010 legislative session, with solid majorities in both houses of Congress and in possession of the White House, the Democrats didn’t even introduce a bona fide comprehensive immigration reform bill in either house of Congress until after it was clear it wouldn’t be voted on. Most Democrats preferred not to talk about immigration, much less push bills through Congress.

In early 2010, the debate around Arizona’s anti-immigrant law, SB 1070, started to change the conversation on the left. The vote on the DREAM Act in December 2010 further engaged mainstream progressives, who began to learn about immigration and started to pick a side. Even though the bill failed, undocumented youth emerged from the vote as the most visible and empowered segment of the immigrant rights movement.

It wasn’t preordained that the DREAM Act would be voted on at all. In early 2010, the national immigrant rights advocacy groups, then almost exclusively citizen-led, opposed bringing the DREAM Act up for a vote as a standalone bill. Their reasoning was that, having garnered solid bipartisan majorities in the past, the DREAM Act had to be bundled with comprehensive legislation as a sweetener so the larger bill could pass. They also believed that a failure on DREAM would doom any other immigration legislation for the foreseeable future. The advocacy groups told the Congressional Hispanic Caucus to hold the DREAM Act in committee, and the CHC communicated the message to Democratic leadership in Congress. The White House was almost entirely disengaged from immigration reform efforts at this time.

By early 2010, some undocumented youth activists were fed up with the hesitance and dissimulation coming from those purporting to speak for them. Through a series of direct actions, including a sit-in in Senate Majority Leader Harry Reid’s office, Reid changed course and agreed to bring the DREAM Act up as a standalone bill. This account of Reid’s conversion from restrictionist to immigrant advocate appeared in the New York Times recently.

But this is what really happened during the run-up to the 2010 mid-term elections.

Even though Reid had been mobilized through electoral politics, most Democrats in Congress were still stuck in a reactive mode. Reid couldn’t bring the Democratic caucus into line on the DREAM Act vote, losing five Democratic votes, which killed the bill given overwhelming Republican opposition.

Rubio Challenges Obama on Immigration and Fails

June 2012 marked another turning point. The GOP presidential primaries were in full swing, with each candidate trying to outdo the next in declaiming immigrants. Obama had little to fear from the Republican candidates themselves. Latinos were not likely to vote for the GOP given the party’s hard turn against immigrants over the previous decade. The question was whether Latino voters would turn out for Obama in sufficient numbers to push him over the top in swing states like Nevada, Colorado, and Florida. Obama’s mass deportation campaign, then in its fourth year, was hurting him with Latino voters.

In the spring of 2012, Senator Marco Rubio floated a proposal for a Republican DREAM Act. Observers speculated that Romney might try to undo the damage he’d caused with Latino voters in the primary by selecting Rubio as his running mate, and Rubio seemed to be working towards that outcome with his DREAM Act proposal. Rubio consulted directly with undocumented youth activists about the bill, acknowledging that their support would be crucial to his effort.

The National Immigrant Youth Alliance (NIYA), an undocumented youth group formed by the activists who led the first undocumented civil disobedience actions in 2010, came out early in favor of the Rubio proposal. United We Dream, the other, larger national undocumented youth organization, followed suit. Rubio had presented a way for the GOP to get out of the corner it had painted itself in with the Latino electorate. Obama was feeling pressure.

Then in early June, undocumented youth began staging sit-ins at Organizing for America offices in Oakland and Denver. Days later, President Obama announced the most significant immigration policy reform in over a decade: Deferred Action for Childhood Arrivals (DACA). The policy tracked the requirements of the DREAM Act, and offered formal protection from deportation to certain undocumented immigrants who came to the U.S. as children. With DACA, Obama neutralized whatever momentum for the GOP the Rubio proposal had sparked. The predictable backlash against DACA from Republicans, along with the ongoing public theater around Arizona SB 1070 and other anti-immigrant state bills, sealed a lopsided majority of the Latino vote for Obama in the 2012 presidential election.

Without the last several years of youth activism, there would have been no comprehensive immigration bill, as flawed as it is, passing last month in the Senate with a unified Democratic caucus and 17 Republican votes. There would be no generally-acknowledged connection between the future of the Republican Party and its position on immigration policy. Democrats would still be running from the issue or trying to out-enforce the Republicans. Obama likely wouldn’t have beaten Romney in the Latino and Asian-American vote by the margins that he did. Even had Obama won, the election results wouldn’t have been connected to a major immigration policy closely identified with the President–DACA–because the policy wouldn’t have existed without the organizing efforts that forced the President’s hand.

Documented and Afraid

Driving much of the change over the past few years has been a strategy developed by undocumented youth of publicly identifying themselves as undocumented and encouraging others to do so. The concept of “coming out” as undocumented and unafraid was adapted from the LGBT rights movement by LGBT undocumented activists. “Coming out” is an enormously effective strategy, but early adopters risk harsh penalties for challenging the dominant paradigm. As undocumented activists came out, they presented a different immigration narrative than the public had seen. Citizens came to realize that undocumented youth were not much different than their children or peers. Other undocumented youth saw those who had come out and were empowered to come out themselves. This had a ripple effect that rapidly changed the narrative about undocumented youth. The feared repercussions–deportation of those who exposed themselves as undocumented–never materialized.

Initially, most citizen advocates discouraged activists from being public about their undocumented status. “Know your rights” training sessions held by community organizations teach undocumented people never to disclose their immigration status to the police. Lawyers, advocates, and legislators have gone to great lengths to discourage undocumented activists from participating in civil disobedience actions, usually out of a misguided desire to protect the activists from themselves. Undocumented journalist Jose Antonio Vargas has talked about how most of the people he consulted before writing his seminal “coming out” piece in the New York Times in 2011 discouraged him from publishing it.

Not only did documented advocates fail to formulate effective organizing strategies, many actively tried to prevent undocumented activists from carrying out their own plans. While often based in good intentions, these efforts to suppress the political expression of oppressed people are patronizing and disempowering. This problem is caused by diverging incentives. Citizen advocates are not themselves at risk of harm, though some have loved ones who are at risk. Immigration lawyers like me–including those at legal services nonprofits–get paid whether we are fighting deportations or helping people apply for status; that is, whether immigration reform passes or not. Advocacy organizations can get funding for immigration work, whether to promote immigration reform or to implement it.

Undocumented activists were driven to riskier tactics out of desperation. Not long ago, ICE was routinely deporting all undocumented youth regardless of the balance of equities in individual cases. The risks the activists took in exposing themselves were real and extended to their families.

Citizen advocates are not only not the best immigrant rights analysts or strategists, but also not the best messengers. Over the past several years, I have appeared in my role as lawyer on panels or at interviews along with undocumented activists. Invariably, the interviewer’s or audience’s interest is drawn to the person who is herself affected, who herself risks imprisonment just by being there. For years, organizations and legislators have told the stories of clients or constituents to generate public support for immigration reform. On this, there is a fine line between empowerment and tokenism. Too often, advocates fail this test.

Leading the Way

Moving forward, affected people must continue to create the political conditions that will make better legislation possible. Momentum is on the side of the reformers. U.S. immigration laws are selectively and arbitrarily enforced. Counterintuitively, those who defy the immigration regime most publicly are the safest from deportation. This tells us that the legal system has become disconnected from the moral and political spheres. Citizen advocates and allies can play an important supporting role in reform efforts, but should not take the lead. If they do, they risk forestalling change yet again.

If Congress approves anything like the comprehensive bill passed by the Senate last month, opportunities for citizen civil disobedience will proliferate. For instance, citizens could unlawfully help deported immigrants re-enter the country or knowingly and publicly employ unauthorized workers. The more that citizen allies risk, the more moral authority they will wield. But few will have the incentive or resolve to risk long-term imprisonment–I know I don’t.

Most Americans are taught early on that U.S. democracy is principled, ordered, and fair. Opposing views on a topic are aired and consensus develops. Policymakers respond to and are held accountable by voters. While there were some hiccups in the past (slavery, Native American genocide) we’ve moved beyond those now.

The reality is that millions of noncitizens in the U.S. are exploited, targeted, and reviled with the sanction of the government and approval of the voting public. The U.S. political system not only produced and produces this result but is incapable of rectifying it. These problems are not unique to this time and place. Institutional systems of oppression are rarely overturned through sanctioned channels. Instead, oppressed people must themselves, through nonviolent direct action, create the political conditions necessary to reform the system.

The undocumented population in the U.S. and around the world is a small fraction of the total number of people profoundly harmed by closed borders. But undocumented organizers may present the best hope for reforming the global immigration and citizenship regime.

Undocumented youth in the U.S. are uniquely positioned to mobilize for legislative change because they are able to navigate U.S. culture while credibly speaking for the larger undocumented community. More than the citizens of most other countries, Americans claim to be willing to accept immigrants who make efforts to assimilate. This gives undocumented youth, who often pass as citizens, moral leverage they would not possess in most other countries.

As children, undocumented youth were promised the opportunities afforded to their citizen peers, finding those promises to be hollow only upon reaching adulthood. Straddling the line between global haves and have nots, undocumented youth in the U.S. personify the contradictions between the stated values of the political-economic order and the actual inequality and injustice that the order perpetuates. They blur that line and hint at the possibility of erasing it. If they are able to connect with victims of closed borders in other countries to organize transnationally, undocumented youth in the U.S. could point the way to achieving open borders on a much larger scale.