Abstract
Excerpted From: Richard Delgado and Allen Slater, Interest Convergence in Immigration Law and Theory, 73 Case Western Reserve Law Review 771 (Spring, 2023) (125 Footnotes) (Full Document)
The two of us have written about policing in minority communities, as well as about immigration law and practice. Because of a growing suspicion that the two systems operate in similar fashion and serve many of the same ends, we were pleased by the invitation by the Case Western Reserve Law Review to offer a few thoughts about one of those systems (immigration) through a lens--critical race theory--that we have found useful in discussing the other (policing). We take as our point of departure a recent book on the role of the President in formulating U.S. immigration policy.
In The President and Immigration Law, Professors Adam Cox and Cristina Rodríguez analyze that body of law and offer suggestions for improving it. Their analysis proceeds largely in structural and separation-of-powers terms and notes that the underlying policy purposes that the immigration system purports to serve shift markedly from one period to another, thus making it tempting for presidents to take initiative in changing immigration policy.
This structural approach, very common among scholars in this field, although appealing in its simplicity, can easily disserve many of the constituents--namely, immigrants--whose rights, livelihoods, and well-being are at stake. This perspective also takes little note of a body of scholarship-- critical race theory--that seems directly relevant to the concerns of immigrants since (1) many of them are minority group members, as are many immigration law scholars; and (2) many of the currents that roil the sea of immigration regulation are overtly racial.
Most recent books on immigration, with only a handful of exceptions, likewise rely heavily on conventional analytical tools such as economic efficiency, fidelity to regulatory principles, and cost-benefit analysis. Even though a May 2021 online symposium in the Yale Journal on Regulation discusses the Cox-Rodríguez book from many angles, none of the contributors use the terms “critical race theory,” “interest convergence,” or “white nationalism,” even though to any reader versed in critical thought these concepts would seem to practically jump off the page of any history of the U.S. immigration system.
Although a few scholars profess to be applying critical thought to immigration law, their work does not address why a developed country such as the United States has operated such a highly restrictive system of immigration throughout history. To be sure, an occasional legal writer mentions critical race concepts when discussing the Muslim Ban or the practice of family separation. But these amount to little more than gestures, not deep analysis. If critical race theory does appear in the body of prominent scholarship on immigration, it is very hard to find--not in the indexes of the major books nor discoverable by a reasonably diligent search of the law review literature in this field.
The failure to apply critical race theory to immigration law and practice is surprising considering that at least one principal tool of critical thought lies close at hand. Years ago, Derrick Bell, the father of critical race theory, taught that society is likely to tolerate and encourage advances for people of color only when these will also benefit elite whites. Bell put forward his “interest convergence” hypothesis in connection with Brown v. Board of Education, an education case. Mary Dudziak subsequently confirmed it with original archival research, and others have shown how it explains a number of other civil rights breakthroughs.
This Article posits that significant change is unlikely to arrive in immigration law by pointing out that many of its practices are lacking in procedural protections, are inefficient, are reviewed by courts under the wrong standard, or are even racist or inhumane. Rather, critics must show that it lies in the self-interest of influential majoritarian groups to modify the current system in a fundamental fashion. In Part I, we review a sample of some of the leading literature in this field, including the main exceptions noted just above. In Part II, we outline Derrick Bell's interest-convergence hypothesis and discuss its influence in subsequent civil rights scholarship and litigation.
In Part III, we show that immigration policy currently operates to the detriment of six separate groups: retirees, the military, major corporations, the U.S. State Department, minorities who reside legitimately in this country, and all who find cruelty distasteful, offensive, and wrong, particularly when it is conducted in their names. These six constituencies would likely benefit from a change in the current paradigm and unite in a movement in favor of it.
How likely is such a movement to form and make headway? Part IV considers the most likely objections to a liberalized immigration policy, even one that promises to advance the interests of elite and non-elite whites. These include that immigrants from certain cultures will change ours if we let too many of them in the door. Sometimes called the “replacement” theory, put forward by Samuel Huntington and adopted today by a number of white supremacist groups and prominent politicians, this approach wielded much influence during the Trump administration and still does with many of his followers, many of whom believe that even if immigration benefits the economy, we should discourage it because it will change the nature of our society.
Our application of critical race theory, particularly interest convergence, to the area of immigration is forward-looking rather than historical, substantive rather than procedural. We posit that interest convergence offers a strategy to achieve a better future. We also believe that it explains the past and that reviewing certain key chapters of immigration history such as the Chinese Exclusion Act, the Bracero Program, Haitian interception, and the Cuban resettlement program from the perspective of interest convergence will explain an otherwise chaotic-seeming story. But that exercise awaits another day and, perhaps, another article.
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Getting the procedure right, while a worthy goal, does not guarantee right results. One must pay at least as much attention to substantive values and the myriad respects in which wrongful action can work serious injustice. This is nowhere truer than in the field of immigration, where a wrong decision may consign a person or group to a life of abject misery. Coloring between the lines cannot be the only goal. Sometimes one must ask about the picture that will emerge in the drawing and raise questions about the person who created the coloring book. Critical race analysis helps raise these questions and shows how society may gain from addressing them.
Richard Delgado, John J. Sparkman Chair of Law, University of Alabama.
Allen Slater, Clerk, Colorado Court of Appeals. J.D., University of Alabama School of Law, 2021.
