Court of Injustice: Law Without Recognition in U.S. Immigration

Author: J.C. Salyer
Publisher: Stanford University Press, 2020. 216 pages
Reviewer: Anita Maddali ǀ November 2021

Harkening back to when he was working as an attorney for the ACLU just after 9/11, J.C. Salyer recounts his shock at the lack of constitutional protections for detained immigrants. After expressing his outrage, an immigration attorney responded, “[t]his is what immigration law has always been like” (p. 8). Years later, now as a seasoned immigration attorney himself, and an anthropologist, Salyer frames his book, Court of Injustice: Law Without Recognition in U.S. Immigration, around the Supreme Court’s decision in Trump v. Hawaii, by highlighting the plenary power doctrine, which gives Congress and the President nearly unfettered discretion in the realm of immigration. While many hoped that the Supreme Court would find President Trump’s travel ban unconstitutional, Salyer explains that the “state of exception” within which immigration law operates and is justified “by portraying immigrants as racialized others threatening to society,” is one that immigration attorneys, but not necessarily the public, know all too well (p. 4).

Through detailed accounts of the immigration system – both historical and contemporary – Salyer removes the veil on presumed notions of justice, equality and fairness in order to reveal the techniques of power used in the context of immigration, which dehumanize and blame immigrants. Salyer demonstrates how laws and policies have operated to oppress immigrants. Similarly, though he does not reference them, both Talal Asad and Hannah Arendt have articulated the ways in which the dominant power often reveals itself through discourses on mobility. For instance, Asad has written, “[i]f people are physically and morally uprooted, they are more easily moved, and when they are easy to move, they are more easily rendered physically and morally superfluous” (Asad p. 10-11). In this way, the dominant power finds unity through “differentiating and classifying practices” — the very practices Salyer uncovers and reveals throughout his book (Ibid. p. 17). As Salyer himself writes about Foucault’s theory of power, dividing practices are used “to construct differences within a population to justify unequal treatment of people” (p. 11).

While he aptly details the inequities and punitiveness of immigration laws and policies, the author also explores how law emanates from the practice of adjudication, rather than only emanating from lawmakers and political leaders. In doing so, his aim is constructive, finding possible reversals of power through the adjudication of individual cases, or, at the very least, providing a more nuanced perspective on the system by discussing its limitations, as well as successful outcomes within it. Salyer notes that understanding successful outcomes in individual cases “is as important to understanding how the system operates as is identifying examples where the system seems unfair, inhumane, or unjust” (p. 9). His expertise in both immigration law and anthropology allows him to provide on- the- ground insights through personal accounts from immigration lawyers, as well as through his keen understanding of the intricacies of both the law and its adjudication.

Salyer begins with a chapter entitled Migrants, Criminal Aliens and Folk Devils, in which he outlines the historical parallels between the harsh treatment of children within the juvenile and criminal justice systems with the increasingly punitive treatment of immigrants. In moments of “moral panic,” he explains, groups of people are identified as irredeemable, and extreme laws are enacted to quell social and cultural anxieties around perceived declines in the moral functioning of society (p. 36-38). In the context of immigration, lawmakers have constructed a binary relationship between aliens and citizens, with aliens representing dangerous others who pose a threat to society. Salyer demonstrates how, historically, the loss of discretion in criminal law mirrors the loss of discretion within immigration law, where immigration judges are, in many cases, unable to consider personal and social factors to offer relief from deportation.

From there, he takes a step back to provide an historical overview of the development of immigration law within the United States, illustrating the ways in which immigration laws and policies were built within social contexts of xenophobia, racism and fear. He asserts that these contexts still control U.S. immigration law.

Salyer’s significant contribution begins when he merges his legal expertise with his anthropological ethnography work. Through his fieldwork, he explores the role of immigration lawyers and judges in New York City. He comes to understand their role from interviews with lawyers, and from an anonymous survey of immigration judges who shared their perspectives. From these interviews and the survey results, we learn of the frustrations that both judges and lawyers face within a system that is rigid and unforgiving, placing people into legal categories, rather than allowing judges to consider the equities of individual cases. At the same time, we are offered a glimpse into the motivations of attorneys who continue to persist within such an unforgiving system. They regularly use their legal acumen, creativity and grit to advocate on behalf of their clients, and in doing so, have found some immigration judges who would assist them in this work.

This fieldwork also allows the author to provide a more nuanced and complex understanding of the role of the “rule of law” on matters of immigration, relying on anecdotes from real cases to demonstrate how deportation orders are invoked expansively, often without recourse for the immigrant. For instance, rather than laws targeting the “dangerous criminal,” the intended target according to legislative discourse, in practice, it was the individual, Salyer informs us, who was convicted after buying and selling cigarettes without tax stamps on them, who had been placed in removal proceedings. Because judicial discretion is nearly absent in immigration courts, judges are far too often precluded from reviewing the equities of individual cases, and are required to issue an order of deportation when a person falls within the expansive categories created by the law. Moreover, many immigrants are placed in removal proceedings and lack legal representation to defend them against deportation.

Salyer’s last chapter describes a unique program in New York City that assists immigrants within the system that, perhaps, will help shift the public narrative around immigration. Specifically, the New York Immigrant Family Unity Project provides legal representation to individuals held in detention who are facing deportation. Salyer hopes that programs like that one will lead to changes across the country.

This book impressively combines legal and anthropological expertise, contrasting the nuance of law and practice with the on-the-ground experiences of individuals working within the system. There is much to deconstruct in the realm of immigration law, but by interrogating the every day experiences of lawyers, we are able to catch a glimpse of effective forms of resistance, such as the program in New York City, absent legislative reform. By understanding the intricacies of the practice of immigration law, Salyer offers his readers insight into both the challenges and complexities of practicing within this system, and the possibilities for liberatory change.

Though he sets out to envision creative possibilities – areas of resistance – they are confined to the legal system. That makes sense, since his focus, as an attorney and scholar, is on the legal system. While he mentions in his conclusion that citizens play a role in speaking out against and resisting punitive laws and policies that target and oppress immigrants, it would be interesting to explore in greater depth the role that resistance by those outside of the legal system, including people who do not have the legal status of citizen, has played. The thousands of people who showed up at airports to protest President Trump’s travel ban brought the public’s attention to the punitive realities of immigration law, as did the public outcry following Trump’s policies that separated parents from their children at the border. Moreover, undocumented students, without legal status, have bravely revealed their status to advocate for change and, in doing so, have shown their own resistance and power, pushing up against narratives that have insisted that they are undeserving lawbreakers. While Salyer indicates that such public attention has changed the trajectory of some individual cases, perhaps large-scale public resistance might challenge the existing frameworks of systems, including the legal system, that frequently seeks to uphold the status quo.

While the New York program may, as one attorney and legal scholar described it, transform the “horrific dysfunction” of immigration courts to the “normal dysfunction” of criminal courts, limiting the focus to “normal dysfunction” may blind us to the imaginative possibilities that go beyond the “normal dysfunction” of the legal system, toward something more inclusive (p. 140). As Salyer indicates when discussing Linda Bosniak’s scholarship, citizenship includes both inclusive and exclusive practices. For instance, the application of criminal laws disproportionately targets persons of color, despite their legal status as citizens. It would be interesting to hear more from Salyer about possible reversals of the exclusion power – perhaps by further discussing an idea he briefly touches on at the end of chapter three, noting, “social justice can form the basis for recognition and citizenship” rather than social justice being predicated on citizenship (p. 103). The power of exclusion that we see in immigration law, though in some ways operating in a “state of exception,” is also a technique of power that exists outside of immigration law, rendering some people, some groups, outside of full membership, despite being citizens, while including others. In this regard, we can see the ways in which systems within democracies repeatedly facilitate both inclusion and exclusion. What might it look like, then, if social justice formed the basis for recognition and citizenship?

Salyer’s work is an important contribution that should inform academics, the public and policy makers. It is also particularly useful for attorneys working within unjust systems who may feel that their work is for naught. This book shows how critically important their work is and the positive changes that may result from it.

References:

Asad, Talal. Genealogies of Religion: Discipline and Reasons of Power in Christianity and Islam. Baltimore: Johns Hopkins University Press, 1993.

Anita Maddali, Associate Professor of Law & Director of Clinics, Northern Illinois University College of Law