Teaching immigration law in the doctrinal or clinical context in current times provides rich opportunities to interrogate questions of race, power and agency, and to center lawyering principles that recognize and emphasize the many ways in which lawyers can support organized movements for social change. While immigration law courses tend to either follow a traditional chronological series of constitutional cases or take a practical approach to training students on immigration agency procedures, the following suggestions offer opportunities to consider the lived experiences of migrants directly impacted by these laws and policies, discuss how immigration law has been used to enforce structural racial, economic and gender hierarchies, and reflect on how organized resistance has shaped the evolution of immigration law.
Conceptualize immigration law and policy as a tool used to reinforce structural white supremacy and revisit this frame throughout.
- Start the discussion of the history of immigration law and policy with the Middle Passage and Native American genocide and connect those histories to deportation, mass incarceration and labor exploitation. Assign the Fugitive Slave Act and the Indian Removal Act. Daniel Kanstroom, Deportation Nation: Outsiders in American History (2007); Phillip Magness and Sebastian Page, Colonization after Emancipation: Lincoln and the Movement for Black Resettlement (2011); Francisco Balderrama and Raymond Rodríguez, Decade of Betrayal: Mexican Repatriation in the 1930s (1995).
- Teach the first naturalization laws designed to keep freed slaves from claiming citizenship and trace racial colonialist policy throughout the evolution of immigration law. Bill Ong Hing, Defining America through Immigration Policy (2004); Harsha Walia, Undoing Border Imperialism, 2013; Gabriel Chin, Regulating Race: Asian Exclusion and the Administrative State, 37 Harvard Civil Rts-Civil Liberties L. Rev. 1 (2002); Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (2004); Tendayi Achiume, Re-Imagining International Law for Global Migration: Migration as Decolonization? 111 J. of Int. L. 142 (2017).
- Trace the enforcement of gender norms and intersections with racial hegemony through the history of immigration law and policy. Approach family unity with a lens that critiques heteronormativity. Create a timeline of exclusion and deportation laws specifically targeting individuals viewed as sexual minorities. Discuss the leadership of trans migrants in the current immigrant justice movement. Eithne Luibhéid, Entry Denied (2002); Pooja Gehi, Struggles from the Margins: Anti-Immigrant Legislation and the Impact on Low-Income Transgender People of Color, 30 Women’s Rts. L. Rep. 315 (2008-2009); Jennicet Gutierrez on Resistance and Respectability Politics, YouTube (Nov. 3, 2015).
- Discuss racial profiling and its role in immigration enforcement. Teach the data showing an increase in racial profiling against Latino immigrants in local law enforcement arrests after officers are given access to deportation authorities. Read a successful motion to suppress evidence obtained through racial profiling in removal proceedings. Families for Freedom, Uncovering USBP (January 2013); Trevor Gardner II & Aarti Kohli, Racial Profiling in the ICE Criminal Alien Program, (Sep. 2009); Kevin Johnson, The Case Against Race Profiling in Immigration Enforcement, 78 Wash. Univ. L. Q. 675 (2000).
- Use examples of organized resistance in Muslim immigrant communities to profiling and surveillance. Teach the changes in immigration law after 9/11, including the creation of DHS and the NSEERS program, their connection to societal Islamophobia and the impact on Arab and South Asian communities. Connect the legacy of racial profiling in the war on crime to the war on terror and criminalization of immigrant communities. DRUM, In Our Own Words: Narratives of South Asian New Yorkers Affected by Racial and Religious Profiling (March 2012); Shoba Sivaprasad Wadhia & Kareem Shora, NSEERS: The Consequences of America’s Efforts to Secure Its Borders (2009); Ramzi Kassem & Diala Shamas, Rebellious Lawyering in the Security State, 23 Clinical L. Rev. 671 (2017).
- Teach the history of immigrant detention and its intersection with the explosion of mass incarceration. Discuss the use of immigrant detention on Angel and Ellis Islands. Consider the legacy of Japanese internment and the HIV detention camps in Guantanamo. Assign recent decisions on constitutional limits on indefinite detention. Tour a facility that incarcerates immigrants and meet with detainees or former detainees to discuss their experiences. Anil Kalhan, Rethinking Immigration Detention, 110 L. Rev. Sidebar 42 (2010); César Cuauhtémoc García Hernández, Naturalizing Immigration Imprisonment, 103 Cal. L. Rev. 1449 (2015); Puente Arizona, Puente Human Rights Movement Shadow Report: Torture and Human Rights Abuses Within Arizona Immigration Detention Centers (Sept. 15, 2014); Carl Lipscombe, Juliana Morgan-Trostle & Kexin Zheng, The State of Black Immigrants Part II: Black Immigrants in the Mass Criminalization System (Sept. 26, 2016).
Expand the concept of “push factors” beyond forced displacement and approach migration broadly to include motivations, transit, entry and integration.
- Explore the connections between free trade, globalization of labor and undocumented migration across the southern border of the United States. David Bacon, Illegal People: How Globalization Creates Migration and Criminalizes Immigrants (2008); Jennifer Lee, S. Workers Need Not Apply: Challenging Low-Wage Guest Worker Programs, 28 Stanford L. & Pol. Rev. 1 (2017).
- Connect the impact of free trade policies to a discussion of how US military operations have led to refugee displacement and discuss the complexities of refugee resettlement. Darryl Li, Offshoring the Army: Migrant Workers and the U.S. Military, 62 UCLA L. Rev. 124 (2014); Jaya Ramji Nogales, Migration Emergencies, 68 Hastings L. J. 609 (2017); 1Love Movement, Open Letter from Cambodian Deportees to Our Community in the United States (April 21, 2016) available at https://1lovemovement.wordpress.com/author/1lovemovement/.
- Include domestic and agricultural labor in discussions of human trafficking and read critiques of carceral responses to human exploitation written by survivors. Noy Thrupkaew, Human Trafficking Is All Around You, TED (July 2015); National Domestic Workers Alliance and Institute for Policy Studies, The Human Trafficking of Domestic Workers in the United States (2017); Jennifer Chacón, Misery and Myopia: Understanding the Failures of U.S. Efforts to Stop Human Trafficking, 74 Fordham L. Rev. 2977 (2005); Janie A. Chuang, Exploitation Creep and the Unmaking of Human Trafficking Law, 108 J. of Int. L. 609 (2014).
- Read memoirs of people who have crossed the southern border without documents since 1996. Provide data on the number of people who die crossing the border daily. Discuss the use of the natural environment as a weapon to control and enforce border policy. Who Is Dayani Cristal? (Pulse 2013); Rosa Linda Fregoso, The Complexities of Femicide at the Border, in The Color of Violence (2006); Jasmin Lopez and Brandon Thibodeaux, Deadly Divide: Migrant Death on the Border, Radio Project (Dec. 2014).
- Introduce alternative models for regulating migration, including open borders. Provide comparative examples of immigration laws that set different standards. Kevin Johnson, Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws (2007); Solidarity Across Borders, Principles for a Regularization Program in Canada (2017); Bryan Caplan, Why Should We Restrict Immigration?, 32 Cato J. 5 (2012).
Frame the overall course in terms of the rights of migrants and use the evolution of organized movements for migrant justice as the driving historical narrative.
- Incorporate writing, videos and guest lectures from individuals and organizations directly impacted by immigration laws throughout the syllabus, particularly voices of individuals who fall outside of the mainstream narrative of good/deserving/victimized immigrants. Introduce critiques of messaging and policy focused on innocence. Orange County Immigrant Youth United, Let’s Fight to Save DACA But Without Leaving Other Immigrants Behind, OC Weekly (July 18, 2017); Tania A. Unzueta, What Makes a City a Sanctuary Now, Mijente (Jan. 2017); Rebecca Sharpless, ‘Immigrants Are Not Criminals’: Respectability, Immigration Reform, and Hyperincarceration, 53 Houston L. Rev. 691 (2016). Angélica Cházaro, Beyond Respectability: Dismantling the Harms of “Illegality”, 52 J. on Legis. 355 (2015).
- Explore the possibilities and limitations for advocacy under international human rights laws. Use examples of domestic community organizing that uses a human rights framework in local policy advocacy. Read opinions of international courts that are unenforceable in the US. US Human Rights Network, Advancing Human Rights (December 2016); Jaya Ramji-Nogales, “The Right to Have Rights”: Undocumented Migrants and State Protection, 63 L. Rev. 1045 (2015).
- Challenge the assumption that all undocumented immigrants should hide their lack of legal status. Watch interviews with activists who are open about their undocumented status. Watch videos of protests where undocumented individuals have engaged in civil disobedience and intentionally risked arrest and reflect on how you would advise them as legal counsel. DreamActivistPA, Erika-Undocumented & Unafraid, Arrested in Norristown PA, YouTube (Jun. 28, 2012),
- Observe Master Calendar hearings in Immigration Court, including hearings with pro se individuals, with child respondents and hearings conducted through interpreters. Discuss the rights that students observe as asserted and/or unrecognized in the forum.
- Instruct students to attend a rally or community forum organized by a grassroots immigrant justice organization. Assign a reflection piece asking students to identify the demands of the organizers and discuss whether/how they could be achieved through legal advocacy.
- Invite an attorney who has represented an individual in deportation proceedings with a coordinated community campaign to stop the deportation. Discuss the outcome of the case, reflect on the impact that community organizing can have on individual cases as well as broader benefits of empowerment, support and leadership development. For students who are unfamiliar with movement lawyering principles, a successful case may open the door to a discussion about the potential impact of community organizing.
- Provide specific examples of litigation used to support the demands of organized movements. Invite community organizers with experience incorporating legal advocacy into broader strategies to discuss the challenges and opportunities of partnering with legal advocates and provide concrete examples of ways in which immigration lawyers can contribute to stronger movements.
** We are indebted to colleagues, including Jaya Ramji-Nogales, who have contributed valuable feedback and suggestions. Any errors and omissions are solely attributable to members of the Guerrilla Guides collective noted here.