Abstract

Excerpted From: Kevin R. Johnson, Teaching Racial and Social Justice in the Immigration Law Survey Course, 67 Saint Louis University Law Journal 473 (Spring, 2023) (69 Footnotes) (Full Document)

A law review symposium on the teaching of U.S. immigration law and policy could not be more timely. Since publication of the first immigration law casebook in 1985, the field has matured. Moreover, contemporary events, such as the Russian invasion of Ukraine resulting in an exodus of refugees from that country, have brought considerable national attention to immigration law and enforcement, with student interest in the subject having grown significantly in recent years. Keeping immigration in the headlines and sparking controversy, discussion, and debate, the administration of President Donald J. Trump pursued a full array of controversial aggressive immigration enforcement measures. Those initiatives included, but were not limited to:

• the proposed construction of a wall spanning the U.S./Mexico border;

• a “zero tolerance” approach to undocumented immigrants;

• the controversial policy of separating migrant children from their parents in immigrant detention;

• the “Remain in Mexico” policy requiring asylum seekers from Central America to await decision on their claims in Mexico;

• a proposed public charge rule designed to limit the ability of noncitizens of modest means to immigrate to the United States; and

*476 • the ban on the admission of noncitizens from a group of nations predominantly populated by Muslims adopted in the name of national security.

One did not need to be especially knowledgeable about the intricacies of those policies to appreciate their widespread racial and social justice impacts.

In vigorously and consistently supporting tough immigration measures, President Trump, unlike any other modern president, regularly disparaged immigrants of particular races and national origins. Kicking off his presidential campaign by decrying Mexican immigrants as “criminals” and “rapists,” he later proclaimed that the United States should not be admitting noncitizens from “s –––– countries” such as El Salvador and Haiti. President Trump's sustained verbal assaults on Mexicans, Salvadorans, Haitians, Muslims, Asians, and other noncitizens left no doubt that race was at the heart of his thinking about immigrants and immigration. His sustained advocacy for building a border wall powerfully symbolized the overall goal of the Trump administration of keeping Latina/o noncitizens out of the United States as well as removing as many as possible from the country. In light of the fact that Latina/os comprise more than ninety percent of the noncitizens, including long-term lawful permanent residents, deported year in and year out, the racial impacts of immigration enforcement are undeniable.

Acting in more measured fashion than President Trump and without the frequent crude verbal attacks on immigrants, the Biden administration generally has sought to narrow the immigration enforcement priorities of the U.S. government. Both ends of the political spectrum, however, have vigorously criticized his policies. Moreover, the courts have not always been receptive to the Biden administration's efforts to roll back President Trump's immigration enforcement initiatives. For example, one federal district court enjoined President Biden from reinstituting the original policy of accepting initial applications for Deferred Action for Childhood Arrivals (“DACA”) and only permitted applications for renewal of DACA relief, thus severely limiting the number of beneficiaries (almost all of whom are noncitizens of color) of the policy. Congress has failed to intervene. Despite widespread recognition among Democratic and Republican leaders that the U.S. immigration laws need drastic reform, Congress time and again has failed to pass meaningful reform legislation and appears unlikely to do so in the foreseeable future.

More than twenty years ago, Professor George Martínez identified a burgeoning paradigm shift in immigration law scholarship toward an increased focus on race and racism in the analysis. Race since then has emerged as a standard frame for analyzing immigration law and policy matters. Such an approach makes eminent sense in light of the racially disparate impacts of immigration enforcement and the fact that contemporary public debate over immigration frequently reveals deep racial antipathies. Latina/o and Asian American civil rights groups readily appreciate the racial undertones of the *478 national debate and the racial consequences of the nation's treatment of immigrants. Moreover, anti-Black racism is evident in the history of interdiction and detention of Haitian asylum seekers and, more recently, the deeply disturbing 2021 video clip of armed Border Patrol officers on horseback chasing Black asylum seekers from Haiti along the U.S./Mexico border.

Racism was a defining characteristic of immigration enforcement long before the presidency of Donald J. Trump. Especially when viewed through contemporary eyes, U.S. immigration law and its enforcement historically have raised many serious racial and social justice concerns. For example, although not well-known among the general American public today, Congress's blatantly racist treatment of Chinese immigrants in the 1800s remains a deeply disturbing chapter of U.S. history.

In contrast to the hey-day of Chinese--which Congress later expanded to Asian-- exclusion, color-blindness and race-neutrality often dominate modern immigration laws and policies. Consequently, the tools for contemporary enforcement of racial borders often obfuscate the systemic racism embedded in immigration law and allow for plausible deniability of claims that the laws and their enforcement are racist. As I previously observed, “[t]he U.S. immigration laws [today] readily provide color-blind, facially neutral proxies that are often conveniently employed by groups that, among other things, seek to target for immigration investigation, enforcement, and prosecution of persons of particular races and classes, specifically working-class Latina/os.”

In light of that background, this article makes the case for the integration of racial and social justice sensibilities into the teaching fabric of the immigration law survey course. Part I briefly summarizes the historical and modern racial and social justice implications of U.S. immigration law and its enforcement. Part II discusses the tangible benefits of teaching immigration law through a racial and social justice lens. That approach fits almost naturally because so many of the cases--as a cursory reading of the case names and decisions suggest--involve immigrants of color from the developing world, where the demand for immigration to the United States is at its highest. Part III identifies an immigration law casebook literally tailor-made for a racial and social justice approach to teaching immigration law.

[. . .]

From the perspective of persons interested in racial and social justice, the immigration law survey course is nothing less than an amazingly rich class to teach. Reviewing the basic legal doctrine for students is obviously important. However, it is far too easy for a class to get bogged down in the quicksand of the many nooks-and-crannies of the Immigration and Nationality Act and lose sight of the bigger racial and social justice picture. An overarching racial and social justice theme helps to make that picture clear and to pull together the course's seemingly disparate threads. It further requires students to grapple with the fundamental fairness of the operation of immigration laws and their enforcement, as well as how Congress might overhaul the laws to achieve more just results. Ultimately, a racial and social justice approach provides nothing less than an ideal theme for the course and is likely to spark greater student passion for immigration law and policy.

Dean and Mabie/Apallas Professor of Public Interest Law and Chicana/o Studies, University of California, Davis School of Law.