The Battle To Stay In America: Immigration’s Hidden Front Line

Author: Michael Kagan
Publisher: Reno, NV: University of Nevada Press 2020. 216p.
Reviewer: Stephen W. Bender | September 2021

Immigration law is an often dull labyrinth of complex rules, forms, and procedure that nonetheless holds lives in the balance. Michael Kagan, director of an immigration law clinic in Las Vegas, writes from a place and time when an immigrant hub was in the crosshairs of a U.S. president who spun anti-immigrant narratives for political gain. Kagan shares compelling and personal immigrant stories that counter the Trump narrative of undocumented immigrants from south of the U.S.-Mexico border as “bad hombres” who need to be deported to keep us safe. Although Kagan means to provide a mere taste of the complexity of substantive and procedural immigration law, he manages to convey a great deal of legal knowledge in this short book, made memorable by embedding it in the lives and struggles and dreams of some of the clinic’s immigrant clients caught in the Trump firestorm.

Kagan speaks to several audiences at the same time—to law students and lawyers seeking inspiration and lessons from his experience, to immigrants who desperately want to stay in the United States as offering our communities unmeasured value, and to neighbors and others seeking ready responses to counter the prevailing, but false, immigration narratives such as the existence of some realistic legal line that offers swift entry to the U.S. workforce. He also shows legal scholars and politicians how far we remain from compassionate immigration policies, and how existing law in the hands of an anti-immigrant demagogue can wage psychological warfare on immigrants, their families, and their neighbors.

Evident in the author’s account are numerous tensions that animate U.S. immigration law and policy. One is the disconnect between promises of fairness and equality on paper in the United States, and the reality of inconsistent and racially tinged immigration policy. Relatedly, Kagan posits a “big question” of immigration policy as being, which rights of personhood depend on having obtained a piece of legitimizing paper, and which depend on “just being a person?” Another tension is whether activists and policymakers should focus on the plight of young Dreamers in favorable narratives that omit too many other immigrants (even those in the same household) and imperil the solidarity needed for truly comprehensive reform. Yet another is the tension inherent in law school clinics that deliver education and practical experience to law students whose tuition supports their vital work, while at the same time their client base, here a ravaged immigrant community, needs help beyond those goals. Students who supply the advocacy workforce for immigrants unable to afford or find paid legal counsel also finish their semester in the clinic and graduate, but the need for immigrant advocacy (and for compassionate policy reform) survives the carousel of advocates in training, and even the careers of clinic directors and other more permanent advocates. All these tensions emerge in Kagan’s window into lawyering for individual immigrants during the Trump administration when immigration law was particularly seen and enforced through a criminal law lens. That enforcement emphasis stretching from federal officials to local police—the crimmigration experience—explains the irony of how a book ostensibly on U.S. immigration law and policy is reviewed here in a journal for criminal law and criminal justice texts.

Contradictions as well as tensions are evident too in Kagan’s account. In the everyday lives of Las Vegas immigrants (and those in other places) is the overarching contradiction that immigrants are integral to the economy and social fabric of the community, yet often are invisible (and thus easily ignored) in those same spaces. Additional contradictions include the traditional training of law students and the lore around lawyers and lawyering that depict the lawyer as a lone hero riding in to save the day — while as Kagan relates, the reality is that only a coalitional effort within and across the community can properly defend that community. Within U.S. immigration law, a fundamental contradiction is the original sin of unlawful entry that outweighs even decades of immigrant contribution to their communities, which ultimately doesn’t count “for much of anything.” Moreover, the law makes the type of persecution abroad relevant—making the ability to stay in the United States turn on the persecutor’s reason for inflicting sexual or other kinds of violence, rather than on providing a safe global haven for a victim of harm. As Kagan characterizes it, immigration law, rather than being about migrating someplace, is more often about trying to stay there in the face of government trying to deport you. And in some venues, such as Las Vegas, seeking asylum is less likely to succeed than other places due to the indeterminacy of the law, and differences among immigration judges. Moreover, these judges, rather than being true judges who are part of the judiciary, are employees of the Department of Justice.

Although focused on a few years of immigration defense during the Trump administration, The Battle to Stay in America transcends that narrow slice of time to reveal the marathon of immigrant entry coinciding or at odds with U.S. immigration law allowances and exclusions. The author details the experience of Chinese immigrants in 1800s Nevada, a group that experienced federal exclusion coupled with localized discrimination and violence against them. Today, immigrants from Mexico and Central America’s Northern Triangle dominate anti-immigrant narratives and enforcement efforts both at and away from the borderlands in places such as Las Vegas. Xenophobia remains palpable over time, while targeted groups shift from one bottom group in societal caste to another. While bottom groups shift, the view from the “top” stays constant. Despite the changing of the guard of the U.S. presidency from Clinton to Bush, then Obama to Trump, whether the executive is controlled by Democrats or Republicans does not fundamentally ease or expand enforcement prerogatives. As Kagan relates, an immigrant activist advised Latinx communities against relying on Washington D.C. for compassionate policy, no matter who was in power. The border armoring championed by Trump merely augmented the infrastructure Clinton had earlier helped to emplace, both increasing the cost and the peril of northward migration. Trump’s enforcement tactics in the interior followed the targeting of workers rather than their employers that Bush oversaw, as with the notorious Postville, Iowa raid in 2008. Obama putting immigrant children in cages inflicted harm well before Trump’s policies of family separation. But local politics were no compassionate refuge either, as Kagan describes the lack of protective intervention from a Democrat-led state legislature and (since early 2019) a Democratic governor, to help mitigate—in this case by not abetting—the federal enforcement onslaught in Las Vegas.

Against the backdrop of politics as usual (albeit with amplified volume under Trump), Kagan’s immigration clinic diverted from broader aims, and instead undertook short-term and defensive measures to ameliorate the damage of deportation-focused policies. As Kagan explains, the clinic was buying time, at best. But still, time had value in the moment of respite where, if only for brief days, immigrant families could be parents and children again. Ultimately, the survival of DACA (Deferred Action for Childhood Arrivals) and TPS (Temporary Protected Status) only was possible through the legal interventions of similar advocates seeking to protect those limited ameliorative measures from Trump’s efforts to extinguish them and deport their beneficiaries. Nevertheless, compassionate and more permanent policy change depends on more than defensive representation of individual cases by understaffed legal clinics and immigration advocates—it requires organized campaigns of coalition and a culture shift around the value of immigrants as workers, students, and more generally as good neighbors. And organizing must transcend elections to avoid the preservation of top-down migration enforcement across political parties, and in the case of extreme anti-immigrant officials such as Trump, being defenseless during their time in office. Kagan’s stories of immigrant struggle and humanity supply the narratives (and policy arguments) around which that culture shift can be built. Mindful that policy change often requires and follows humanizing the dehumanized, Kagan gives (fictional) names and faces to the huddled masses our immigration policies seek to exclude at the same time our addiction to cheap labor invites them in. As much as immigration advocacy depends on knowledge derived from the bottom groups and from immigrant clients telling their stories, Kagan details and reminds of the trauma inherent in children and other migrants retelling their painful stories as a counter to the “awful” stories repeated by media, social media, and politicians of isolated crimes within the United States by immigrants.

Because compassionate justice for immigrants, and the legal work of defending them, is a critical marathon spanning generations that awaits broadscale organizing and culture-shift, the most important lesson for advocates and activists is self-care. The Trump administration is over, but enforcement continues to reach deep into the community and social fabric of places like Las Vegas, as it has for decades despite change in leadership. A critical challenge for advocates like Kagan is how to protect and care for oneself while helping to protect a community—a challenge his own personal story reveals was not always met. In part that is because, as he points out, so much is needed on the front of human rights that anyone who steps up to do “a little” will soon be “under immense pressure to do everything.”

This book appropriately begins with a preface on terminology—of vital importance to shifting culture in the immigration field where pejorative references come daily from the mouths of politicians and news media. A quibble despite this sensitivity to words is Kagan’s repeated references to American (rather than to U.S.) immigration law, and even his title of battling to stay in America. Although increasingly the United States dictates the enforcement prerogatives of migrant-sending or migrant passage countries in the Americas such as Mexico, seemingly tying financial incentives and even COVID-19 vaccine distribution to stepped-up immigration enforcement abroad, the law that governs the migrant’s ability to enter or stay within the United States is strictly U.S. rather than regional (within the Americas) or international law.

Michael Kagan’s closing is the best encapsulation of that ongoing fight in our communities and within the bureaucracy of the U.S. immigration system to stay and work and live and learn in the United States: “This may be a very long fight. But it’s worth it.”

Steven W. Bender is Associate Dean for Planning and Strategic Initiatives and Professor of Law at Seattle University School of Law, and the author of such immigration policy books as Run for the Border: Vice and Virtue in U.S.-Mexico Border Crossings (NYU Press 2012) and How the West Was Juan: Reimagining the U.S.-Mexico Border (San Diego State University Press 2017); and the co-edited books Compassionate Migration and Regional Policy in the Americas (Palgrave Macmillan 2017) and Deadly Voyages: Migrant Journeys Across the Globe, published in 2020 by Rowman & Littlefield.