Excerpted From: Michael Kagan, In Defense of Deportation Defense, 56 U.C. Davis Law Review Online 1 (November, 2022) (107 Footnotes) (Full Document)


MichaelKaganThere should be a cure for cancer, but there isn't. Since World War II, progress in saving lives from cancer has been painfully modest, especially relative to modern medicine's dramatic successes against other major causes of death. Cancer still kills more than 600,000 people a year in the United States and disfigures or disables many more. Progress has been so limited that new treatments that only modestly improve patients' odds of surviving are hailed as major advances. For example, a relatively new immunotherapy drug improved five-year survival rates from 5 percent to 34 percent for one type of cancer and was announced as a huge step forward. Another new treatment hailed as “quite remarkable” improved certain cancer patients' chances of survival from just 6 percent to 15 percent. A bestselling book about such advances in the war on cancer is titled The Breakthrough. Yet, if the benchmark is curing everyone, then these are inadequate, depressing results. Nevertheless, these marginal improvements represent thousands of lives saved. They are miracles at the individual level, and they are the best that medicine can achieve for now. And, one hopes, they are also important steps toward an actual cure.

I start with the war on cancer as a framework for responding to the hesitations that some immigrant rights scholars have recently expressed about expanding legal defense for people fighting deportation. These hesitations appear in recent provocative articles by Laila Hlass and Angélica Cházaro. There is considerable nuance to each of their arguments. Neither Hlass nor Cházaro are actually against helping immigrants find lawyers to fight deportation. Cházaro opposes only expanding federal funding for deportation defense, while supporting local and state efforts. Hlass offers ideas for how problems with deportation defense can be minimized. Yet, for both of them, the headline argument is that expanding deportation defense may be in tension with the real goal of abolishing deportation altogether.

I write in response because I fear that it would be a mistake for the immigrant rights movement to adopt this line of thinking, for the same reason it would be a grave mistake to not pursue marginal improvements in cancer treatment. Much as breakthroughs against cancer do not in fact cure all cancer, deportation defense does not abolish all deportation. But just like cancer treatments save many patients, deportation defense stops many deportations, and it may be the most effective tool that we have right now that can accomplish this goal. Moreover, it responds to a longstanding crisis. Inadequate legal representation has long been a hallmark of American immigration adjudication. Of the 296,788 new deportation cases started in U.S. Immigration Courts in fiscal year 2021, the respondents in 80 percent--237,672 people--had no lawyer. Many of those people will be deported even though they could have avoided that fate if more deportation defense were available, even assuming all of the other problems with our immigration system. We can do something about this, and we should.

Hlass and Cházaro's hesitations about deportation defense are part of an abolitionist turn in immigration scholarship which is both important and overdue. Indeed, much immigration scholarship--my own included--tries to tinker with the existing system, aspiring to bring it closer to compliance with notions of constitutional and moral justice, and to reduce suffering in the process. Progress can and sometimes has been made in this direction. Yet, it is impossible to fully reform a system built on differentiating people based on who their parents are and where they were born. This is a system built on exclusion, prejudice, state violence, and cruelty. This fact should be more prominent in immigration scholarship, and in advocacy thinking about immigration policy. Cházaro is a particularly forceful and pioneering thinker on this front. For example, she critiques immigration advocacy that assumes the necessity of deporting people and limits itself to debating who should be deported and how it should be done:

Most pro-immigrant advocates have internalized the limits of the common sense of deportation ... Arguments across the political spectrum remain locked in on defining whom it is reasonable to deport and what are the appropriately humane technologies for carrying out deportations.

The trouble is that we are far from achieving abolition. A national poll taken in 2018 in the midst of the family separation crisis found that 54 percent of voters rejected abolishing Immigration and Customs Enforcement (“ICE”), with just 25 percent in support. Even progressive members of Congress who endorsed the “Abolish ICE” slogan in 2018 later reframed its meaning to stop short of abolishing all deportation. At the state level, proposals that are labeled “sanctuary” policies have typically not polled well. Moreover, there is a looming danger of another stridently anti-immigrant president winning the White House in the foreseeable future. This does not mean that abolition is impractical. Public opinion is moveable. But, at least at this moment, my working assumption is that it may take a generation of organizing and persuasion for full abolition of deportation to be politically attainable. We must both build for an abolitionist future and also find ways to defend people as much as possible in the interim under the current immigration regime. To be sure, neither Hlass nor Cházaro are against taking interim measures that can be achieved more quickly than full abolition of deportation. But they seem to see deportation defense as a problematic interim measure which might undermine the long-term goal under some circumstances.

In the case of deportation defense, there is no need to think that short- and long-term goals need to be in competition. In fact, I believe there is good reason to think deportation defense can strengthen the movement for immigrant rights generally. That is why I write in defense of deportation defense. I am concerned about a discourse that will discourage immediate practical efforts that would demonstrably help many people avoid a cruel fate. Is deportation defense enough? No. But, today, expanding deportation defense is one of the best treatments that we have for the disease of mass deportation and detention of immigrants.

In this Essay, I begin by laying out what I call the simple case for deportation defense, namely, its effectiveness and its immediate political feasibility. I then outline the main critiques and concerns articulated by Cházaro and Hlass and observe where they appear to be more or less convincing. I then articulate a broader, movement-building argument for deportation defense that goes beyond benefits to individual clients. This broader argument values deportation defense as an asset to the broader immigrant rights movement, rather than as a perceived liability.

[. . .]

In a 2019 Essay presenting original research on the legal defense of escaped slaves in the era of the Fugitive Slave Act, Daniel Farbman offered a definition of resistance lawyering:

A resistance lawyer engages in a regular, direct service practice within a procedural and substantive legal regime that she considers unjust and illegitimate. Through that practice, she seeks both to mitigate the worst injustices of that system and to resist, obstruct, and dismantle the system itself.

The fact that such lawyers work within a system they abhor can seem like a contradiction. But Farbman argued that the lawyers who defended people against the Fugitive Slave Law helped to bring about its abolition even while working within an unjust system. He wrote: “[I]t was their work against the Law from within its own procedural framework that was most legally and politically effective.” This was partly because lawyers were often successful in individual cases, though not in all or even in most of them. It was also because they helped build a narrative against slavery. As they fought for more due process case by case, they “created time and space for political organizing to take place.” Rather than legitimize slavery, “[w]ith every fugitive slave case, Northern lawyers drew more attention to the broader cause of abolition. Every case became an opportunity to broadcast an antislavery message to the community and the nation.” Deportation defense has the potential to play a similar role, and in many cases it already does.

If our goal is to stop deportations--and it should be--then pushing to expand deportation defense is one of the most important things we can do in the immediate future. It is politically feasible locally, at the state level, and maybe even federally. We should not worry that it will undermine the long-term goal of shrinking and dismantling the deportation system. There is little to no evidence that deportation defense holds back efforts to dismantle the system over time and there is good reason to think that vigorous deportation defense programs can reinforce community-based advocacy to build a more welcoming society.

Hlass and Cházaro offer some important warnings about how deportation defense can go awry. Perhaps more importantly, they offer an important warning about how to talk about the problems of the deportation system. A pitfall of deportation defense is that it encourages a fixation on procedural fairness only. But it need not be that way. Should the process be fairer, so long as it exists? Yes. Should that argument be used when it can make progress? Yes, sometimes. But the best case for deportation defense is that it is a good way to stop deportations. Period. One can support deportation defense without conceding that a single deportation should happen.

Advocates must not think of hiring more lawyers as the ultimate goal. It is just a step in the right direction, one of many we need to take. We must be cautious about framing the efficiency of a cruel system as a goal. We need to be wary of the strings that may be attached to public funding, and of the inherent limitations of lawyers who look only at how to smoothly process an individual person's case. But for all these cautions and warnings, deportation defense offers tremendous benefits. It literally stops deportations, often when nothing else will. In individual cases, it is abolition.

The American immigration enforcement system is racist and cruel in origin, design, and execution. Like cancer, we should just get rid of it. But we do not yet know how to do that. In the meantime, we have hard empirical evidence that there is a known treatment for the disease that works for many patients. It does not work for all, and it is not good enough. But it is the best we have. We need to make it available to as many people as possible. We need to expand deportation defense, immediately, and wherever we can. We need to do it right, but we should do it without hesitation.

Michael Kagan. Joyce Mack Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law and Director of the UNLV Immigration Clinic.