Immigrant Defense Funds for Utopians
Immigrant Defense Funds for Utopians
C?sar Cuauht?moc Garc?a Hern?ndez 0 1
0 University of Denver Sturm College of Law
1 Thi s Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information , please contact , USA
C?sar Cuauht?moc Garc?a Hern?ndez*
I. Introduction.................................................................... 1393?
II. Converging Interests...................................................... 1396?
III. Immigrant Defense Funds............................................. 1400?
IV. Playing with Morality .................................................... 1405?
V. This is Not a Morality Play ........................................... 1412?
VI. Embracing Utopias ...................................................... 14200?
VII. Conclusion ...................................................................... 1423?
There was a cold front hitting the Eastern Shore of Canada
and the United States in February 2008 when my partner and I
left Boston for a long weekend in picturesque Quebec. Stopping for
lunch at Derby Line, Vermont, we entered the one-room opera
house turned library. Like something from the Wizard of Oz, a
strip of yellow tape marked the boundary between the two
countries. Books were displayed in the United States, the
circulation desk sat in Canada. Just outside, a sign halfway up the
block marked the dividing line yet again. Quickly, we walked
around the block, my fascination acting as a buffer against the
sub-zero temperatures. Born and raised in south Texas, I was
astonished at the contrast. There were no guards, no guns, no
fences. Only cute houses and piles of snow.
Borders are not born; they are made. As creatures of law and
brute force, they shift shapes. Speaking at a large industry
* Associate Professor of Law, University of Denver. Publisher,
convention called the Border Security Expo in early 2018, Elaine
Duke, the Deputy Secretary of Homeland Security, alluded to the
role that law and law enforcement play in turning geographical
spaces into juridical dividing lines.1 ?We used to distinguish
between border security and interior enforcement. Now we?re
lumping it all under border security,? she said.2 The border, it
seems, is now everywhere.
Duke?s comments laid bare the ugly, uninterrupted reality
that has existed in many communities of color for many years. Just
as the nation?s interior is now the border, the United States border
has long been the interior. Three decades ago, the internal
operations of my poor, Mexican community in south Texas were
my personal and communal interior; this was the place I called
home just as millions of others do now. Yet my interior was
someone else?s border. Immigration policing, the keen observer of
urban life Mike Davis wrote almost twenty years ago, sits in
Latinos? front yard.3 The border could be policed exceptionally
because it was removed from the lived experiences of legislators
and policy advocates in the nation?s interior. Meanwhile, my
border was someone else?s interior. Stepping off an airplane for the
first time as a high school student, I visited the foreign landscape
of Washington, D.C. A few years later, I drove from south Texas to
Rhode Island, staring bewilderingly at the changing landscape and
New England?s foreign culture. As Duke?s comments suggest, law
and policy alter borders. So, too, do culture and rhetoric.
In the second year of the Trump Administration, legislators
and advocates find themselves facing shifting borders in another
way. Political norms that were once off-limits are now accepted
pressure tactics. This is no more evident than in tensions over
1. Elaine Duke, Deputy Secretary, Department of Homeland Security,
Opening Keynote at the Border Security Expo (Jan. 31, 2018).
2. See Roque Planas (@RoqPlanas), TWITTER (Jan. 31, 2018, 6:45 AM),
https://twitter.com/RoqPlanas/status/958712785189433345 (last visited Sept. 20,
2018) (on file with the Washington and Lee Law Review). A similar development
is occurring in Southern Europe. See MATTEO AMBROSINI, IRREGULAR IMMIGRATION
IN SOUTHERN EUROPE 68 (2018) (?Border controls . . . are increasingly being
supplemented with policies of exclusion and discouragement of those unwanted
aliens who passed the border.?).
3. MIKE DAVIS, MAGICAL URBANISM: LATINOS REINVENT THE U.S. CITY 59
immigration policies. As the Trump Administration continues to
ratchet up the severity of the federal government?s immigration
policing tactics, state and local officials find themselves in an
unfamiliar light. To high-level officials in the Trump
Administration, elected officials who do not follow the
Administration?s heavy-handed approach to immigration law
enforcement are no different from the migrants the federal
government is targeting. They are, as acting head of the
Immigration and Customs Enforcement agency Thomas Homan
said of the Oakland mayor, akin to gang members.4
The Trump Administration?s equivalent vilification of
migrants and their allies presents an opportunity, but not one
without substantial complications. Liberal elected officials, long
accustomed to avoiding the ire of personal liability, are seeing their
traditional insulation come under attack.5 Faced with federal
officials who view them as complicit in endangering the public,
they are presented with the opportunity to embrace a politics of
solidarity with migrants by pushing the boundaries of previously
acceptable policies.6 No example has gained more currency since
President Trump entered the White House than immigrant
defense funds, pools of public or private dollars intended to assist
migrants facing the possibility of immigration imprisonment or
removal.7 Several immigrant defense funds now exist, and others
are in the planning stages.8 As they have gained currency,
however, immigrant defense funds have become sites of
contestation between competing visions of who deserves to belong
in the United States.9 Membership in the political community is
4. US Immigration Attacks Oakland Mayor for Warning of Raid That
Arrested 150, GUARDIAN (Feb. 28, 2018),
https://www.theguardian.com/usnews/2018/feb/28/ice-immigration-raid-northern-california-oakland-mayorwarning (last visited Sept. 20, 2018) (on file with the Washington and Lee Law
5. See infra notes 19?24 and accompanying text (discussing the acting ICE
Director?s criticism of public officials? efforts to limit cooperation with ICE).
6. See infra notes 19?24 and accompanying text (describing the acting ICE
Director?s frustration with ?sanctuary cities?).
7. See infra Part III (discussing immigrant defense funds under the Trump
8. See infra Part III (describing an increase in immigrant defense funds).
9. See infra Part III (noting the debate surrounding the funds?
being hashed out through debates about limitations on the use of
immigrant defense funds? finite resources.10
This Essay examines the increasing popularity of immigrant
defense funds with a critical lens toward common exclusions
against people convicted of certain crimes.11 It argues that framing
these funds as progressive responses to the Trump
administration?s unjustified targeting of migrants is conceptually
and politically problematic.12 Treating migrants as victims of
excessive cruelty fosters an innocence narrative that is factually
misleading because migrants in need of legal counsel are not any
more innocent than anyone else.13 Constructing defense funds
around false narratives means that the rationale for the defense
funds? existence is likely to crumble and, with it, the funds
themselves. For the many migrants who stand to benefit
enormously from defense fund legal representation, this is too
much of a risk. Instead, this Essay urges advocates and elected
officials to envision immigrant defense funds as responses to
embedded racial and class discrimination in the substance and
procedure of criminal and immigration law practices as they have
melded into crimmigration.14
II. Converging Interests
For good reason, elected officials are insulated from
prosecution for carrying out their legislative duties.15 Free of the
threat of imprisonment, they are able to serve ?the public good.?16
Elaborating, the U.S. Court of Appeals for the Tenth Circuit
Legislative immunity enables officials to serve the public
without fear of personal liability. Not only may the risk of
liability deter an official from proper action, but the litigation
itself ?creates a distraction and forces legislators to divert their
time, energy, and attention from their legislative tasks to
defend the litigation.?17
Protecting the public by insulating their representatives, wrote
Justice Clarence Thomas for a unanimous Supreme Court, has
been part of Anglo-American law since ?the Parliamentary
struggles of the Sixteenth and Seventeenth Centuries? and was
?taken as a matter of course by those who severed the Colonies
from the Crown and founded our Nation.??18
Despite the doctrine of legislative immunity?s impressive
lineage and adamant support within the judiciary, a Trump
Administration top immigration law enforcement official became
harshly critical of legislators who took positions out of line with
administration objectives.19 A holdover from the Obama
Administration, Thomas Homan served as Immigration and
Custom Enforcement?s (ICE) acting director for most of the
administration?s first two years.20 Homan took a broad view of
ICE?s authority that fits comfortably within the heavy-handed
approach favored by President Trump and Attorney General Jeff
Sable v. Myers, 563 F.3d 1120, 1123?24 (10th Cir. 2009).
Bogan v. Scott-Harris, 523 U.S. 44, 48?49 (1998).
19. Acting ICE Director Wants Politicians in Sanctuary Cities Charged with
Crimes, CBS NEWS,
https://www.cbsnews.com/news/acting-ice-director-wantspoliticians-in-sanctuary-cities-charged-with-crimes/ (last updated Jan. 3, 2018,
11:54 PM) (last visited Sept. 20, 2018) [hereinafter ICE Director] (explaining that
Homan believes politicians who run sanctuary cities should be charged with
crimes) (on file with the Washington and Lee Law Review).
20. Homan stepped down before action on his confirmation. See Tom Homan,
Acting Director of Immigration and Customs Enforcement, Set to Retire, CBS
NEWS (May 1, 2018, 7:17 AM),
https://www.cbsnews.com/news/tom-homan-actingdirector-of-immigration-and-customs-enforcement-set-to-retire/ (last visited
Sept. 20, 2018) (?Tom Homan, the acting director of the agency charged with
combating illegal immigration, is stepping down . . . .?) (on file with the
Washington and Lee Law Review).
Sessions.21 Like his colleagues, Homan frequently criticized city
and county efforts to limit cooperation with ICE as ?sanctuary
cities.?22 In December 2017, Homan broke ground among leading
administration officials by endorsing criminal prosecution of
elected officials in these jurisdictions.23 In an interview aired on
Fox News, Homan said, ?We?ve got to take these sanctuary cities
on, we?ve got to take them to court and we?ve got to start charging
some of these politicians with crimes.?24
Calling for criminal prosecution of elected officials who
support policies that Homan thinks are unwise, even illegal, is a
new development in the long-heated political fray over
immigration. To threaten political opponents with
prosecution?presumably even with imprisonment upon
conviction?is to move far beyond the realm of acceptable discourse
for top representatives of the federal government. Despite that
breach of a political norm, actual conviction and imprisonment is
unlikely of any elected official simply for taking a friendlier
approach toward migrants than Homan and his colleagues would
like. The current political moment is not the first period in which
ideological battles have been pitched.25 In the midst of Cold War
hysteria, the Supreme Court noted, ?In times of political passion,
dishonest or vindictive motives are readily attributed to legislative
conduct and as readily believed.?26 Decades later, the legislative
immunity doctrine remains robust.27
Nonetheless, Homan?s comment illustrates one way in which
the Trump Administration has redrawn political alliances related
to immigration. A strong immunity doctrine may prevent
21. See ICE Director, supra note 19 (describing Homan?s strong approach to
California?s ?sanctuary state? law).
24. Elise Foley & Roque Planas, Trump ICE Chief Wants to Prosecute
Politicians Who Won?t Lock Up More Immigrants, HUFFINGTON POST
(Jan. 3, 2018),
https://www.huffingtonpost.com/entry/immigration-ice-sanctuarypolicies_us_5a4d6610e4b06d1621bd0682 (last visited Sept. 20, 2018) (on file with
the Washington and Lee Law Review).
25. See e.g., Tenney v. Brandhove, 341 U.S. 367, 380?83 (1951) (debating
legislative free speech against a backdrop of fascism and civil rights).
26. Id. at 378.
27. See Bogan, 523 U.S. at 49 (?State and regional legislators are entitled to
absolute immunity from liability.?).
conviction, but it does not stop prosecution and the heavy toll the
mere threat of criminal punishment entails. To Homan and his
administration?s supporters, the distinction between migrant
lawbreakers and some supportive elected representatives has
blurred to the point of irrelevance. Perhaps it has ceased to exist
altogether. President Trump seems to see himself as waging a
hero?s fight against the myriad forces allied against a white,
Christian citizenry. In that battle between good and evil, Trump
Administration officials are on the side of good; everyone else has
lined up with the enemy.
The Trump Administration?s fairy tale version of
contemporary politics opens the possibility of innovative
oppositional alliances. In his canonical 1980 article, Brown v.
Board of Education and the Interest-Convergence Dilemma, the
late Derrick Bell offered a stinging critique of school desegregation
litigation and an equally damning assessment of the hegemony of
racism in the United States.28 ?The interest of blacks in achieving
racial equality will be accommodated only when it converges with
the interests of whites,? he wrote.29 Bell?s theory painted racial
group interests too broadly,30 but its central theoretical
contribution remains persuasive: the possibility of forward-moving
shifts in the law exist in moments in which elite interests align
with those of subordinated groups.31 Like immigration law
policing, the law?s borders can move. Through the power of
opportunistic alliances, the Trump Administration?s virulent
attacks on the political elites of cities, counties, and states offers a
tantalizing moment of interest convergence.32 If nothing and no
one is safe from the Trump Administration?s threats, then elected
officials might as well do what they think is right to defend
III. Immigrant Defense Funds
This leads, of course, to the most important question: what is
the right thing to do? The U.S. Department of Homeland Security
(DHS) can deploy ICE and Border Patrol agents where and how it
sees fit in the United States.33 With almost 40,000 law enforcement
officers between them, this is a sizable policing apparatus.34
Despite renewed interest in ?sanctuary? city declarations, no
sub-federal government entity can actually guarantee freedom
from immigration imprisonment and deportation.35 As a result,
some activists and academics have correctly noted that the
?sanctuary? label is incomplete and potentially misleading.36
attacks on political figures) (on file with the Washington and Lee Law Review).
33. See U.S. DEP?T OF HOMELAND SEC., OFFICE OF INSPECTOR GEN., AN
ASSESSMENT OF THE PROPOSAL TO MERGE CUSTOMS AND BORDER PROTECTION WITH
IMMIGRATION AND CUSTOMS ENFORCEMENT 17 (2005) (describing the division of
immigration law enforcement authority split between the DHS Customs and
Border Protection, including the Border Patrol, and Immigration and Customs
34. See C?sar Cuauht?moc Garc?a Hern?ndez, ICE Enforcement Actions:
Something Old, Something New, CRIMMIGRATION (Feb. 14, 2017, 4:00 AM),
http://crimmigration.com/2017/02/14/ice-enforcement-actions/ (last visited Sept.
20, 2018) ([W]ith 40,000 employees as his disposal . . . he does have the ability to
throw the nightmare of the last eight years into overdrive.?) (on file with the
Washington and Lee Law Review).
35. See Michael Kagan, The Truth About Sanctuary Cities, NEV. INDEP. (June
29, 2017, 3:00 AM),
https://thenevadaindependent.com/article/sanctuarycampaigns-a-political-liability (last visited Sept. 20, 2018) (?To declare their
territory to be a ?sanctuary? sounds like active resistance, implying that they will
somehow obstruct federal officers, or that they can grant some kind of immunity
from federal law. Of course, they can?t. And they don?t.?).
36. See, e.g., id. (?The word ?sanctuary? suggests a place of safety, protection
and shelter. Merriam-Webster says that it can also mean ?the immunity from law.?
Therein lies the problem.?); Michael Kagan, What Do We Mean When We Talk
About Sanctuary Cities?, NEV. INDEP. (May 14, 2017, 3:40 AM),
https://thenevadaindependent.com/article/what-do-we-mean-when-we-talk-aboutsanctuary-cities (last visited Sept. 20, 2018) (?No one knows exactly what a
sanctuary city is.?) (on file with the Washington and Lee Law Review); Shakeer
Rahman & Robin Steinberg, Sanctuary Cities in Name Only, N.Y. TIMES (Feb. 15,
Whether or not the sanctuary label is used, some elected
officials are promoting migrants? place in the United States
through the creation of immigrant defense funds.37 From New York
City?s pioneering example in 2013 to efforts in Chicago, Los
Angeles, and smaller cities like Seattle and Denver, elected
officials are attempting to protect migrants by sheathing them
with the law.38 By equipping migrants facing the possibility of
removal with legal counsel, local communities can limit the
number of people removed because they were too poor to hire a
lawyer.39 Instead of suffering from the morally indefensible
vagaries of poverty, communities that have created immigrant
defense funds embrace the hallmark of access to justice campaigns;
the outcome of judicial processes is not legitimate if people are not
equipped to understand, as Justice Sutherland wrote on behalf of
the majority of the Supreme Court in Powell v. Alabama,40 ?the
science of law.?41 Hauled into immigration court without counsel,
migrants are essentially forced to fight for their right to remain in
https://www.nytimes.com/2017/02/15/opinion/sanctuary-cities-in-nameonly.html (last visited Sept. 20, 2018) (?It?s not enough for cities like New York to
declare themselves ?sanctuaries,? which simply means that the local police won?t
detain noncitizens on the federal government?s behalf.?) (on file with the
Washington and Lee Law Review); Sophie Quinton, Controversy Over ?Sanctuary?
Campuses is Misleading, Legal Analysts Say, PBS (Dec. 17, 2016),
visited Sept. 20, 2018) (?There?s no consensus on what it means to be a sanctuary
campus. And the word ?sanctuary? inflates the relatively minor demands that
activists are asking of college administrators.?) (on file with the Washington and
Lee Law Review); Alex Kotlowitz, The Limits of Sanctuary Cities, NEW YORKER
(Nov. 23, 2016),
https://www.newyorker.com/news/news-desk/the-limits-ofsanctuary-cities (last visited Sept. 20, 2018) (?What these mayors didn?t say,
however, was how their municipalities would be able to prevent the federal
government from exerting its authority?and what they mean by the term
?sanctuary city.??) (on file with the Washington and Lee Law Review).
37. See, e.g., Maura Ewing, Should Taxpayers Sponsor Attorneys
for Undocumented Immigrants, ATLANTIC (May 4, 2017),
https://www.theatlantic.com/politics/archive/2017/05/should-taxpayers-sponsorattorneys-for-undocumented-immigrants/525162/ (last visited Sept. 20, 2018)
(exploring how some cities and states are funding pro-bono legal counsel for
deportation proceedings) (on file with the Washington and Lee Law Review).
41. Id. at 69.
See id. (describing municipal legislation funding defense funds).
See id. (describing the funding of pro-bono legal services).
287 U.S. 45 (1932).
the United States blindfolded and with one hand tied behind their
backs. Defense funds are one concrete attempt to force a sense of
fairness into immigration law, long criticized as a present-day
bastion of de jure discrimination.42
The success that immigrant defense funds ultimately have is
constrained by multiple design limits. Funding is the most obvious.
Cities, counties, and states are facing the prospect of making
sizeable financial contributions to the well-being of migrants.
Offsetting some of the cost, a number of individual and private
philanthropists have shown themselves willing to partner with
government entities.43 In addition, the small number of fiscal
analyses that have been done of immigrant defense funds indicate
that they partly offset their operational costs by avoiding expenses
associated with facing immigration court cases without legal
counsel.44 Nonetheless, the financial outlay is substantial.45 Where
the political will is present, though, some governments at least
have proven themselves able to find the money.46
42. See, e.g., Kevin R. Johnson, Doubling Down on Racial Discrimination:
The Racially Disparate Impacts of Crime-Based Removals, 66 CASE. W. RES. L.
REV. 993, 1010 (2016) (explaining that ?law enforcement agencies frequently
employ race as a central investigatory tool in contemporary criminal and
immigration enforcement?); D. Carolina N??ez, Inside the Border, Outside the
Law: Undocumented Immigrants and the Fourth Amendment, 85 S. CAL. L. REV.
85, 87?88 (2011) (criticizing a Supreme Court opinion holding that the Fourth
Amendment did not apply to a Mexican citizen arrested and brought to the United
States at the behest of United States law enforcement officers and whose home
was searched by United States agents); Kevin R. Johnson, Race, the Immigration
Laws, and Domestic Race Relations: A ?Magic Mirror? into the Heart of Darkness,
73 IND. L.J. 1111, 1133 (1998) (describing the disparate impact of facially neutral
immigration laws since 1965).
43. See, e.g., Press Release, Vera Inst. of Just., SAFE Cities Network
Launches: 11 Communities United to Provide Public Defense to Immigrants
Facing Deportation (Nov. 9, 2017) (describing the Vera Institute of Justice?s Safe
Cities Network as providing, among other things, grant funds to governments
willing to use public money to operate immigrant defense funds) (on file with the
Washington and Lee Law Review).
44. See JENNIFER STAVE ET AL., EVALUATION OF THE NEW YORK IMMIGRANT
FAMILY UNITY PROJECT: ASSESSING THE IMPACT OF LEGAL REPRESENTATION ON
FAMILY AND COMMUNITY UNITY 58 tbl.14 (2017) (estimating that New York City?s
immigrant defense fund resulted in $2.7 million in federal, state, and local taxes
A second implementation obstacle arises directly from the
question of political will. As immigrant defense funds have been
planned and launched, advocates and policymakers have
repeatedly grappled with the question of eligibility.47 That is, who
should the fund help? In search of cost-cutting measures,
policymakers have frequently supported an exclusion for people
convicted of certain criminal offenses.48 These people are
prohibited from accessing services paid for by immigrant defense
funds.49 To date, almost all jurisdictions that have created an
immigrant defense fund have excluded people with certain
criminal histories.50 Even in New York City, which pioneered
immigrant defense funds and where a robust advocacy network
exists that is firmly committed to universal representation, the
mayor has held firm to his position that people convicted of well
over 100 crimes should not receive city funding.51 After a heated
campaign, opposing sides agreed to find private dollars to cover the
people who the mayor wanted to exclude.52
Going far beyond measuring a jurisdiction?s ability to allocate
financial resources, immigrant defense fund exclusions implicate
important normative questions of membership. Debates over
excluding some people and not others flag important but hidden
ideological commitments about who deserves to make claims on
the United States. As articulated in immigration scholarship,
membership theory focuses attention on the markers of belonging
in a particular community.53 While it is clear that migrants
participate in United States civic, economic, and political life, it is
equally clear that, as a matter of law, they are not considered full
members in the political community.54
The historical treatment of migrants as ?Americans in
waiting?55 has become much more attenuated, especially for
individuals who have engaged in criminal activity. For most of its
history, the United States did not rely heavily on criminal law to
indicate that a particular migrant was poorly suited to live or work
within its borders. By the end of the twentieth century, though,
criminal law and immigration law had become heavily entangled.56
The Supreme Court recognized this radical restructuring of both
areas of law in its landmark 2010 decision Padilla v. Kentucky.57
Though formally focused on the Sixth Amendment right to
effective assistance of counsel, the Court prefaced its doctrinal
intervention through a historical exegesis:
While once there was only a narrow class of deportable offenses
and judges wielded broad discretionary authority to prevent
deportation, immigration reforms over time have expanded the
class of deportable offenses and limited the authority of judges
to alleviate the harsh consequences of deportation. The ?drastic
measure? of deportation or removal is now virtually inevitable
for a vast number of noncitizens convicted of crimes.58
Membership theory is remarkably well situated to examine the
exclusions being debated and built into immigrant defense funds.
?In its simplest form, membership is about belonging and
inclusion,? writes D. Carolina N??ez.59 At times defined according
to territorial presence, at times according to status recognition
conferred by formal law, membership theory arises in immigrant
defense fund conversations as a ?substitute for a more principled
analysis of an individual?s membership in the United States.?60
IV. Playing with Morality
Policymakers? consistent insistence on excluding people with
certain criminal records from accessing immigrant defense funds
suggests that criminality is a reliable measure of moral worth.
This loose approach runs through immigration law and policy
rhetoric. From President Trump to Attorney General Sessions to
ICE Acting Director Homan, high-ranking officials repeatedly
harp about the dangers migrants pose.61 President Obama
famously described his Administration?s immigration law
enforcement priorities as targeting ?felons, not families. Criminals,
not children. Gang members, not a mom who?s working hard to
provide for her kids.?62 For his part, President Trump repeated his
depiction of migrants as murderous gang members throughout his
campaign and in more rarified events such as his 2018 State of the
Excluding migrants from defense funds because of their
interactions with the criminal justice system follows in this vein.
It presupposes that some people are not worthy of the
government?s assistance and that criminal histories are suitable
proxies of worth. This logic is as simple as it is flawed. Accepting
the logic that crime is a suitable marker of membership requires
ignoring a series of prudential and normative pitfalls. First, this
logic assumes that it is possible to determine who has engaged in
criminal activity and who has not. To begin, people who have been
convicted of a crime cannot necessarily be said to have performed
the required actions, along with the mandated mental state, to
satisfy the various elements of a given offense of conviction. Almost
all convictions in recent years have resulted from the ?horse
trading? of plea negotiations between prosecutor and defense
counsel, leading the Supreme Court to declare plea bargaining ?not
some adjunct to the criminal justice system; it is the criminal
justice system.?64 Numerous examples exist of people who pleaded
guilty only to have scientific evidence later unravel the
conviction.65 Similarly, it is common for people to plead guilty to a
lesser offense to ensure that a prosecutor backs off pursuing
conviction for a more serious crime. Though judges are required to
ensure that there is a factual basis for a plea before accepting it,66
it would defy all but the most superficial familiarity with plea
negotiations to believe that this standard is fail-safe.
Second, focusing solely on the formal metric of criminality is
imprecise because the very gauge used to determine if criminal
activity occurred?a conviction?is itself contested. The definition
of ?conviction? used for purposes of immigration law does not
conform to many penal definitions of the term, thus treating as
criminals some people who the criminal justice system has not
marked as such.67 The Immigration and Nationality Act explicitly
treats as a conviction any proceeding in which an ?adjudication of
64. Missouri v. Frye, 566 U.S. 134, 144 (quoting Robert E. Scott & William
J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909, 1912 (1992)).
65. See BRANDON GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL
PROSECUTIONS GO WRONG 150 (2011) (noting that, of the first 250 convicted
individuals who were later exonerated by DNA evidence, 6% had been convicted
66. See FED. R. CRIM. P. 11(b)(3) (?Before entering judgment on a guilty plea,
the court must determine that there is a factual basis for the plea.?).
67. See generally INA ? 101(a)(48)(A), 8 U.S.C. ? 1101(a)(48)(A) (2012).
guilt has been withheld.?68 Many states do not.69 As such, it is not
unusual for a state criminal proceeding to decline to impose
criminal punishment on the very individual who is viewed as a
criminal for purposes of federal immigration law.70 This results in
the odd, but common, situation in which a person is both a criminal
and not a criminal: a criminal under federal immigration law, but
not a criminal under the state criminal law that actually governed
the person?s criminal proceeding.71
Third, neither policing nor substantive criminal law in the
United States aspire to comprehensively identify all perpetrators
of crime. On the contrary, ?discretion is essential to the criminal
justice process,? the Supreme Court explained in McCleskey v.
Kemp.72 Most crime is not reported to the police.73 When it is, police
officers are not required to investigate all allegations of criminal
activity.74 On the contrary, individual officers and law enforcement
agencies are afforded substantial discretion about how to deploy
investigative resources.75 Likewise, prosecutors are rarely under
an affirmative obligation to pursue criminal charges.76 The
strength of evidence is irrelevant.77 The Supreme Court is quite
clear that the judiciary will rarely second-guess prosecutorial
decisions.78 In McCleskey, the Court turned in part to ?the policy
considerations behind a prosecutor?s traditionally ?wide discretion?
[which] suggest the impropriety of our requiring prosecutors to
defend their decisions to seek death penalties? to reject a racial
justice-motivated constitutional challenge to death sentences.79
Even then, courts will only examine claims that prosecutions have
moved forward on the basis of discrimination for a protected
reason, and they will do so with a ?presumption of regularity.?80 As
a result of the combined discretion granted to law enforcement and
prosecutors, most criminal activity in the United States is not met
with conviction.81 Quite simply, most criminal offenders go free.
Fourth, using criminal activity to determine qualification for
membership in the political community requires accepting that
criminal activity marks people as good or bad. A prominent strain
of criminal law?s theoretical justifications certainly claims to
anchor criminal law in a collective morality.82 The problem with
this theory is that it no longer stands the rigor of close scrutiny, if
ever it did.83 The gap between shifting visions of morality and
penal prohibitions is simply too large when it comes to many of the
activities that lead migrants to immigration troubles because of
susceptible to the kind of analysis the courts are competent to undertake.?).
78. See id. (noting a potential chilling effect on law enforcement).
79. McCleskey, 481 U.S. at 296.
80. United States v. Armstrong, 517 U.S. 456, 463?64 (1996) (internal
81. See German Lopez, The Great Majority of Violent Crime in America Goes
Unsolved, VOX (Mar. 1, 2017, 3:10 PM)
https://www.vox.com/policy-andpolitics/2017/3/1/14777612/trump-crime-certainty-severity (last visited Oct. 2,
2018) (?Meanwhile, less than half of violent crimes and less than one-fifth of
property crimes that are reported are actually cleared by police and referred to
prosecution.?) (on file with the Washington and Lee Law Review).
82. See, e.g., Tropp v. Dulles, 356 U.S. 86, 86 (1958) (describing one of the
functions of criminal law as ?reprimand[ing] the wrongdoer?); MODEL PENAL CODE
& COMMENTARIES ?? 1.02(1)(a), (c) (1962) (claiming that the Model Penal Code is
primarily concerned with preventing harm to people and to exclude from
criminalization ?conduct that is without fault?).
83. See Richard C. Fuller, Morals and the Criminal Law, 32 J. CRIM. L. &
CRIMINOLOGY 624, 625 (1942) (describing examples of conduct ?although criminal
in the legal sense, is not offensive to the moral conscience of a considerable
number of persons?).
criminal activity. No shift in public attitudes toward criminalized
activity is more well-known than possession and use of small
amounts of marijuana.84 While this remains a federal crime, by the
start of 2018, eight states and Washington, D.C. had legalized
recreational possession and use.85 Most other states have
decriminalized or legalized marijuana use for medical purposes.86
My university, located in the heart of the country?s pioneering
experiment with recreational use legalization, offers courses on
marijuana regulation and one of my colleagues holds a
professorship in marijuana law.87
Despite this movement in public attitudes, reflected in public
opinion polls, curricular course offerings, and state penal codes,
federal immigration law remains constant. The Immigration and
Nationality Act?s two controlled substance offense provisions
promise imprisonment and removal for ?violation[s] of any
law . . . of a State, the United States, or a foreign country relating
to a controlled substance.?88 Criminal law?s claim to mark moral
84. See Scott W. Howe, Constitutional Clause Aggregation and the
Marijuana Crimes, 75 WASH. & LEE L. REV. 779, 782 (2018)
(?Through acts of
direct democracy, eight states plus the District of Columbia since 2012 have
?legalized,? within tight limits, the possession, use, cultivation and distribution
of marijuana for recreational purposes.?)
85. See State Marijuana Laws in 2018 Map, GOVERNING (Mar. 30, 2018),
http://www.governing.com/gov-data/state-marijuana-laws-map-medicalrecreational.html (last visited Sept. 20, 2018) (demonstrating current state
marijuana laws) (on file with the Washington and Lee Law Review).
86. See id. (detailing states where marijuana use is acceptable for medicinal
87. See, e.g., Daniels Launches Business of Marijuana Class (Mar. 24, 2017),
http://news.du.edu/daniels-launches-business-of-marijuana-class/ (last visited
Sept. 20, 2018) (describing a course at the University of Denver?s Daniels School
of Business) (on file with the Washington and Lee Law Review); Cannabis
Journalism, https://www.du.edu/specpro/interterm/fall/cannabis.html (last
visited Sept. 20, 2018) (on file with the Washington and Lee Law Review); Faculty
and Staff Directory: Sam Kamin, U. DENV. STURM C.L.,
https://www.law.du.edu/faculty-staff/sam-kamin (last visited Sept. 20, 2018)
(listing Sam Kamin?s title as the ?Vicente Sederberg Professor of Marijuana Law
and Policy,? named after a prominent marijuana industry law firm) (on file with
the Washington and Lee Law Review).
88. See INA ? 212(a)(2)(A)(i)(II), 8 U.S.C. ? 1182(a)(2)(A)(i)(II) (2012)
(declaring individuals who are convicted of or commit this activity inadmissible
to the United States); id. ? 1227(a)(2)(B) (declaring individuals who are convicted
of this activity deportable from the United States). Though the deportation
worth loses its persuasiveness when immigration consequences
attach differently based on the jurisdiction in which identical
activity occurs. Possession of marijuana is celebrated as a pillar of
Colorado?s economy and a contributor to what makes the Denver
metropolitan region a top destination for young internal
migrants.89 Two states over, Texas continues to criminally punish
low-level drug offenses.90 Is moral worth to be assessed differently
because the drug use happens in Denver rather than Dallas?
Relying on criminal laws that treat similar conduct so differently
to mete out immigration law consequences subverts the power of
immigration law to lay claim to a national standard of morality.
Lastly, using criminal adjudications as the foundation upon
which to apply immigration consequences requires a misplaced
faith in the ability of government officials to properly assess
citizenship. While United States citizens and migrants are both
subject to criminal law, citizens are immunized from immigration
imprisonment and removal.91 Law?s formal immunization of
citizens falls apart when government officials incorrectly identify
a person?s citizenship status. It is not clear how often this occurs,
but academic findings, complemented by journalistic exposes,
indicate it does with alarming regularity.92 Political scientist
provision exempts individuals convicted of ?a single offense involving possession
for one?s own use of 30 grams or less of marijuana,? migrants are subject to the
inadmissibility provision if they ever leave the United States and attempt to
return. Removal under either provision results in mandatory detention. Id.
89. See Diego Zambiasi & Steven Stillman, The Pot Rush: Is Legalized
Marijuana a Positive Local Amenity?, IZA Discussion Paper No. 11392, at 12
(2018), ftp://repec.iza.org/RePEc/Discussionpaper/dp11392.pdf (concluding that
?potential migrants [from elsewhere in the United States] view legalized
marijuana as a positive amenity? leading to increased in-migration after
recreational use of marijuana was legalized); Marijuana Tax Data, COLORADO
DEP?T OF REVENUE,
https://www.colorado.gov/pacific/revenue/colorado-marijuanatax-data (last visited Oct. 2, 2018) (reporting a consistently growing rate of
revenue generated from marijuana taxes, licenses, and fees) (on file with the
Washington and Lee Law Review).
90. See, e.g., VERNON?S TEX. CODE ANN., HEALTH & SAFETY CODE ? 481.121(a)
(2009) (?[A] person commits an offense if the person knowingly or intentionally
possesses a usable quantity (criminalizing possession of marijuana).?).
See generally INA ? 101(a)(48)(A), 8 U.S.C. ? 1101(a)(48)(A) (2012).
92. See Jacqueline Stevens, U.S. Government Unlawfully Detaining and
Deporting U.S. Citizens as Aliens, 18 VA. J. SOC. POLICY & L. 606, 6
Jacqueline Stevens estimates that from 2003 to 2011, ICE
detained approximately 20,000 United States citizens.93 Whatever
the actual number, the impact on affected individuals is enormous.
Davino Watson, for example, was imprisoned by ICE for 1,273
days?roughly three and a half years?before convincing a judge of
his citizenship.94 Luis Fernando Ju?rez was deported and
convicted of illegal reentry, a federal felony, before also convincing
a judge that he had likely been a United States citizen for years.95
The experiences of citizens mistaken for non-citizens means that
even at its most basic level (demarcating between citizens and not),
immigration law routinely fails. Adding immigration consequences
to criminal adjudications means that citizens will be doubly
Despite these problems, using criminal law to distinguish
between desirable and undesirable people remains alluring. Its
simplicity is appealing. Its morality tale is clear. There is a
palpable comfort to tarring migrants stained by criminality even
where the staining process is riddled with deficiencies because the
mysticism of legal processes makes room for delusion. Declarations
that ?the law is the law? or ?what don?t you understand about
illegal?? highlight a barebones perspective on law and legal
processes that does not reflect the reality of either. The rush to
mark some migrants as dangers who are properly cast out from the
political community reveals a desire to shape the composition of
the political community along the same racial and class cleavages
that are prevalent in United States criminal and immigration law
The messiness of the actual law or legal processes as they in
fact transpire are relegated to the margins of relevance because of
the underlying ideological function that criminal law and
immigration law perform. As these two areas of law have
converged into crimmigration, they have augmented each area?s
(detailing the rate at which ICE is detaining and deporting U.S. citizens).
93. See id. (discussing the significant number of ICE detentions).
94. See Watson v. United States, 865 F.3d 123, 136 (2d Cir. 2017) (?In sum,
there is no doubt that the government botched the investigation into Watson?s
assertion of citizenship . . . .?).
95. See United States v. Juarez, 672 F.3d 381, 384?85 (5th Cir. 2012)
(describing his various attempts to prove citizenship).
membership selection power. Both, writes Juliet Stumpf in her
article articulating crimmigration law for the first time, ?are, at
their core, systems of inclusion and exclusion. They are similarly
designed to determine whether and how to include individuals as
members of society or exclude them from it. Both create insiders
and outsiders.?96 She might have added that both are also
constitutive of the other. There can be no insiders without
outsiders. Marking some people as unworthy of participation in the
political community means that others are worthy. Targeting
people thought to be migrants based on the moral stain attached
to criminality allows everyone who escapes this target to imagine
themselves as more deserving. Physical segregation?whether
through imprisonment or forcible removal to somewhere outside
the territorial boundaries of the United States?is therefore
justified by a commitment to an ideology of marginalization and its
corollary, exploitation. By identifying some people as less worthy
than others, it is possible to shift them around the face of the
earth?from the isolation of an immigration prison to the distance
of another country?with little concern for the psychological and
physical toll that they or their loved ones experience. Indeed, the
deservingness trope permits the deserving to feel good about
hoisting pain onto others. There is pleasure in the infliction of pain
because the latter is the price of the rule of law; the price of
legality; the cost of civilization. Without pain, the rule of law, law
itself, our way of life would crumble?or so goes the tale.
V. This is Not a Morality Play
The poor fit between morality on the one hand and law and
legal processes on the other illustrates that fights over
membership are not primarily about moral worth.97 Rather,
contests about the proper composition of any political community
are principally concerned with ideology and politics?with the
questions of the jurisdiction?s imagined identity and the process of
creating and maintaining that self-image. In her analysis of early
twentieth century war-torn Europe, Hannah Arendt revealed the
ideological dimension of modern humanity?s most significant moral
failure.98 Jews, she wrote, became the ?scum of the earth? because
they were marked by law as unworthy.99 As the dregs, they were
stripped of juridical rights.100 In the legal framework of the era, the
law no longer recognized them as people.101 Having lost the ?right
to have rights,? they could then be ?exp[elled] from humanity
altogether? and stripped of life.102 The civilized communities could
turn their backs on Jews? pleas, shut the doors to safety as Jews
knocked seeking refuge, and let them meet their waiting fates?all
because the law had marked them as outside its protective
embrace.103 Having lost a claim to citizenship in a state, they were
ejected ?out of legality.?104 Law had instead marked them as fodder
for civilization?s engine.105 Arendt?s analysis of the Holocaust and
post-war Europe signals the extreme end of using law to carve the
world into deserving and undeserving enclosures.106
Immigrant defense funds arise in a vastly different context,
but they similarly suffer from an egotistical belief that some people
are good and others bad, and that law and legal processes can
determine who falls into which box.107 This is politics performed
under the guise of morality.108 To exclude people from legal
representation based on categorical assessments of worth
measured by criminal histories is to ignore the nuances of law and
98. See generally HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM (1948)
(Harcourt Brace & Company ed. 1973).
99. Id. at 269.
102. Id. at 297.
103. See id. at 296 (?Even the Nazis started their extermination of Jews by
first depriving them of all legal status (the status of second-class citizenship) and
cutting them off from the world. . . .?).
104. Id. at 294.
107. See supra notes 47?52 and accompanying text (describing New York
City?s choice to limit its defense fund).
108. See supra notes 47?52 and accompanying text (noting that funding was
available for those without violent felony convictions).
legal processes in favor of feel-good self-righteousness. By
excluding people with certain criminal histories, defense funds
treat those individuals as disposable. They are characterized as
unworthy of public funding because public funding should be
reserved for the meritorious uncriminals, the bulk of people who
have escaped the criminal label whether or not they have avoided
engaging in criminal activity.109 Casting people with criminal
histories as morally unworthy can deflect attention from the
ideological function of racially biased criminal and immigration
legal processes, but it cannot sanitize?and should not be allowed
to conceal?the deceit. Defense fund exclusions, as the latest
example of policymakers standing in judgment and distributing
the fruits of the public fisc through racially biased policies, offers a
renewed opportunity to expose the subterfuge at play. An
immigration law enforcement regime built on top of a racially
biased criminal justice system is not suddenly, magically cured of
that bias. On the contrary, the bias is just buried.
This willingness to write off some human lives because they
have been marked with the stigma of criminality represents an
opportunity to expand political alliances and subvert dominant
discursive frames. In the spirit of Derrick Bell?s interest
convergence theory, the development of defense funds offers an
opportunity to draw parallels between migrants? rights and the
decades-long denigration of African American and Latino youth
based on racialized markers of undesirability.110 In many of the
urban areas where immigrant defense funds have been created,
advocates and elected officials have long grappled with the
complexities of race-based criminal policing.111 Those
conversations provide fertile ground for similarly critical
discussions of crime-based immigration consequences.
109. See supra notes 47?52 and accompanying text (excluding over 170
individuals from funding for violent felonies).
110. See Bell, supra note 28, at 526?33 (explaining why school desegregation
has failed and offering ideas for what can be done to bring about change).
111. See, e.g., Floyd v. City of New York, 959 F. Supp. 2d 540, 588?89
(S.D.N.Y. 2013) (describing racially biased criminal policing in New York City);
PAUL CHEVIGNY, EDGE OF THE KNIFE: POLICE VIOLENCE IN THE AMERICAS 39?57
(1995) (describing race-based criminal policing in Los Angeles).
In highlighting the troubling ideological genealogy of
crime-based exclusions to immigrant defense fund participation,
the goal should not be to humanize migrants. They are already
human. Suggesting that participation in a newly created
immigrant defense fund would humanize migrants is, as Agon
Hamza wrote of the arrival of Middle Eastern and African refugees
in Europe, to ?reduc[e], problematically, complexities to a moral
order.?112 While morality forms part of the story of the
criminalization of migration, it is only a supporting actor. The lead
role is left to political ideology. The discursive focus of immigrant
defense funds, therefore, must likewise remain on the political
ideology of criminalization.
As with all political contests between competing ideologies,
there is substantial risk that immigrant defense funds will develop
embedded with familiar racial and class biases. It is difficult
enough to launch an immigrant defense fund that the urge to forgo
tough political fights about demonized individuals is intense.
Measured through the narrow lens of legislative affairs, it is much
easier to support exclusion of people with criminal histories.113
Many campaigns to create immigrant defense funds risk falling
into this marginalizing pattern due to the politics of the current
historical moment, but it is worth remembering that migrants did
not have an easy time under President Obama either.114
Nicknamed ?deporter-in-chief? because he presided over the
largest number of removals in the history of any presidential
administration,115 President Obama also governed during a period
of a historically unprecedented number of criminal prosecutions
for immigration activity116 and a similarly unusually high rate of
immigration imprisonment.117 Yet with the exception of New York
City, none of the immigrant defense funds that currently exist
were launched during the Obama era.118 Instead, elected officials
and many advocates turned to immigrant defense funds only after
Donald Trump won the presidency.119 Perceiving the Trump
Administration as radically more antagonistic toward migrants
than its predecessor, elected officials and advocates settled on
immigrant defense funds as a means of muting some of the Trump
administration?s anti-migrant fury.120
116. Compare C?sar Cuauht?moc Garc?a Hern?ndez, Immigration Continues
Lead Role in Federal Criminal Prosecutions, CRIMMIGRATION (Mar. 28, 2017, 4:00
http://crimmigration.com/2017/03/28/immigration-continues-lead-role-infederal-criminal-prosecutions/ (last visited Sept. 20, 2018) (noting that there were
68,314 defendants prosecuted for immigration crimes in fiscal year 2016) (on file
with the Washington and Lee Law Review), and C?sar Cuauht?moc Garc?a
Hern?ndez, Immigration Took Center Stage Among Federal Criminal Cases
During FY 2011?12, CRIMMIGRATION (Jan. 29, 2015, 4:00 AM)
http://crimmigration.com/2015/01/29/immigration-takes-center-stage-amongfederal-criminal-cases-during-fy-2011-12/ (last visited Sept. 20, 2018)
there were over 90,000 immigration crime cases concluded in fiscal year 2012)
file with the Washington and Lee Law Review), with C?sar Cuauht?moc Garc?a
Hern?ndez, Immigration Crime Cases in the 1970s, CRIMMIGRATION (Feb. 26,
2018, 12:18 AM),
http://crimmigration.com/2018/02/26/immigration-crime-casesin-the-1970s/ (last visited Sept. 20, 2018) (reporting that from 1970 to 1979, there
were no more than 14,147 immigration crime prosecutions in a single year) (on
file with the Washington and Lee Law Review).
117. See C?sar Cuauht?moc Garc?a Hern?ndez, Supreme Court to Hear
Another Immigration Imprisonment Case, CRIMMIGRATION (Mar. 20, 2018, 5:28
http://crimmigration.com/2018/03/20/supreme-court-to-hear-anotherimmigration-imprisonment-case/ (last visited Sept. 20, 2018) (describing average
daily population data for the former Immigration and Naturalization Service and
ICE from 2001 to 2016) (on file with the Washington and Lee Law Review); C?sar
Cuauht?moc Garc?a Hern?ndez, Immigration Prison Population Since 1990s,
CRIMMIGRATION (Sept. 19, 2017, 4:00 AM), http://crimmigration.com/2017/09/19/
immigration-prison-population-since-1990s/ (last visited Sept. 20, 2018)
(describing the number of prisoners held by the United States Marshals Service
and Bureau of Prisons for immigration offenses from 1994 to 2013 and 1990 to
2015, respectively) (on file with the Washington and Lee Law Review).
118. See Ewing, supra note 37 (?The New York Immigrant Family Unity
Project, launched in 2013 . . . .?).
119. See id. (?Lawmakers in Los Angeles; San Francisco; Chicago;
Washington, D.C.; and New York City have likewise designated public dollars for
counsel in immigration courts, . . .?).
120. See id. (?The governors of New York and California vehemently oppose
The concern about migrants? welfare that erupted in the
aftermath of Trump?s victory is a well-meaning and generally
positive development, but it is also conceptually limited and
ideologically perilous. Envisioning immigrant defense funds as
anti-Trump tactics suggests that the present historical moment is
unique in its dangers to migrants. The Trump-era spike in
popularity suggests that defense funds are needed because the
Trump Administration?s immigration enforcement practices are so
roguish that they are victimizing migrants who do not deserve to
be targeted. This rhetoric adopts the discursive frame of migrant
criminality and, with it, the ideological commitment to exclude
some people from the realm of the deserving. Designing immigrant
defense funds around crime-based measures of deservingness
suggests that the public?s goodwill is reserved for victims of
unhinged Trump Administration enforcement practices. Because
they are being attacked by a federal government unmoored from
reason, cities, counties, and states should step in to offer protection
at public expense. This logic reveals a disturbing vision of migrants
as victims lacking any agency. Seemingly, they are worthy of
collective protection only if they are innocently attacked. Lose
either the innocence or the attack and the public?s goodwill
evaporates. ?We love our victims innocent,? writes Mladen Dolar;
?we empathize with them as long as they appear to be innocent,
but the moment they display some trait that is not entirely
amiable . . . the sympathy is cut short.?121
Deploying a characteristic of crimmigration laws and policies,
defense fund exclusions use criminal adjudications as markers of
lost innocence. In Los Angeles, a Democratic member of the city
council pushed to ensure that people convicted of ?heinous crimes?
could not access the city?s contribution to an immigrant defense
fund.122 As an example, she pointed to people who engage in human
trafficking.123 Even the example of human trafficking cannot be
reduced to a binary that categorically separates victims from
perpetrators. The United States, writes Jennifer Chac?n, has
adopted a problematic understanding of trafficking that requires
people to evidence no consent at any stage of the transportation or
employment process to win the ?victim? label.124 As a result, people
who willingly participate in their own transportation or unlawful
employment are written out of federal anti-trafficking
protections.125 They are, in effect, juridically prohibited from being
trafficking victims. Implementing the lost innocence frame, federal
officials have sought to remove people who willingly participated
in their unauthorized presence in the United States even where
they were among the lucky who survived gruesome conditions in
the back of a tractor-trailer.126 Applying Chac?n?s analysis, this
comes as no surprise.127 The innocence-laden anti-trafficking legal
regime, she writes, reflects the United States? ?out-sized fear
of . . . criminal immigrants.?128 Stripped of innocence, they are
deemed unworthy of assistance.
In addition to immigrant defense funds? troubling reliance on
criminality to gauge morality, their newfound popularity among
liberal elected officials reveals the political dimension of these
officials? notion of attack. The nightmare that President Obama
oversaw was not sufficient to constitute an attack, but the
ramped-up nightmare of President Trump?s first months in office
file with the Washington and Lee Law Review).
123. See id. (?Convictions for human trafficking, child abuse, domestic
violence and pimping could prevent someone from accessing the fund . . . .?).
124. Jennifer M. Chac?n, Misery and Myopia: Understanding the Failures of
U.S. Efforts to Stop Human Trafficking, 74 FORDHAM L. REV. 2977, 3022 (2006).
125. See id. at 3027 (?Congress is now satisfied that the TVPA protects the
only ?true victims? of human trafficking . . . .?).
126. See Ryan Devereaux, Cami?n de la Muerte, INTERCEPT (Oct. 1, 2017, 8:00
https://theintercept.com/2017/10/01/immigrants-helped-prosecutors-afterescaping-death-in-a-smugglers-truck-now-theyre-being-deported/ (last visited
Sept. 20, 2018) (detailing a story of immigrants who survived in the back of a
tractor-trailer and are now being deported) (on file with the Washington and Lee
127. See generally Jennifer M. Chac?n, Feminists at the Border, 91 DENV. U.
L. REV. 85 (2013).
128. Id. at 107.
was somehow measurably different.129 Surely more migrants are
worse off under President Trump than under President Obama,
but treating Trump-era policies as a radical diversion from
reasonable normalizes the heavy toll of Obama-era immigration
policies.130 Uncritical claims that Trump?s policies are heinous
suggests that all was fine prior to Trump?s assumption of power.131
This is problematic for the many people whose lives were forever
upended under President Obama. It is equally troubling as an
ideological matter because it supposes that a significant amount of
human devastation is acceptable so long as it is less devastation
than is currently being meted out by Trump and his officials.
Line-drawing of this sort is imprudent and impossible. As a
practical matter, normalizing Obama-era immigration policies
shifts the baseline of acceptability to what was then a historically
severe level. Separately, it is impossible to adequately line draw
between acceptable practices under Obama and excessive practices
under Trump.132 No one can precisely pinpoint the division
between acceptable and unacceptable human suffering. An
immigration system that forces many people into legal limbo,
commodifies the marginality that results, then capitalizes on that
marginalized labor, is, at best, morally dubious. At worst, it further
buries the very human catastrophe of immigration law
enforcement premised on divisions between deserving and
undeserving baked in criminal processes that disproportionately
penalize poor people and people of color.
There is a crisis in immigration law enforcement, but the crisis
did not begin with Trump?s ascendance nor will it end with his final
day in office. Rather, the immigration law crisis of the early
twenty-first century is not so different from the immigration law
crisis of the late twentieth century.133 The crisis arises from
129. See supra notes 62?63 and accompanying text (comparing immigration
policies under the Obama and Trump administrations).
130. See supra note 62 and accompanying text (presenting the Obama-era
131. See supra note 62 and accompanying text (describing immigration
policies in the Obama Administration).
132. See supra notes 62?63 and accompanying text (comparing how Obama
and Trump discussed immigration policies).
133. See supra note 62 and accompanying text (describing immigration
immigration law?s convergence with criminal law to birth a
crimmigration regime that operates ideologically to create easily
exploitable labor. Through its reliance on substantive and
procedural laws that impact communities of color most harmfully,
crimmigration reproduces racial subordination while
simultaneously producing material wealth for the privileged.134 In
the words of Yolanda V?zquez, ?crimmigration disparately affects
Latinos and . . . reif[ies] the conclusion that Latinos break more
criminal and immigration laws due to their behavior
choices . . . .?135 This has the effect, she adds, of ?maintaining the
status quo of white racial dominance.?136 At the same time, the
network of public and private parties that profit from
crimmigration policies is vast.137
VI. Embracing Utopias
Despite the problematic aspect of immigrant defense funds
sudden popularity, they offer enormous actual and potential value.
Most importantly, the development of immigrant defense funds
means that many people will receive legal representation in
removal proceedings who otherwise would have faced off alone
against a government prosecutor.138 Bringing a trained legal
advocate to the immigration courtroom is a significant
improvement that cannot be overstated.139 To many migrants, it
policies in the Obama administration).
134. See generally Yolanda V?zquez, Constructing Crimmigration: Latino
Subordination in a ?Post-Racial? World, 76 OHIO STATE L.J. 599 (2015).
135. Id. at 607.
137. See C?sar Cuauht?moc Garc?a Hern?ndez, Naturalizing Immigration
Imprisonment, 103 CALIF. L. REV. 1449, 1507?11 (2015) (naming third parties that
benefit from the choice to use imprisonment as a means to enforce immigration
138. See Ingrid V. Eagly & Steven Shafer, A National Study of Access to
Counsel in Immigration Court, 164 U. PA. L. REV. 1, 2 (2015) (detailing the results
of the first national study of access to counsel in United States immigration
139. See id. at 9 (?[I]immigrants who are represented by counsel do fare better
at every stage of the court process?that is, their cases are more likely to be
terminated, they are more likely to seek relief, and they are more likely to obtain
means all the difference between a life with their family in the
place they call home, and the loss ?of all that makes life worth
living,? as Justice Brandeis described deportation?s toll many years
ago.140 Secondarily, defense funds offer an opportunity to launch
critical conversations locally about the problematic expansion of
migrant criminality norms. Activists with diverse foci are able to
wield their collective knowledge about criminal justice and
immigration proceedings.141 Advocates in New York have done so
splendidly as they have formed diverse, expansive coalitions to
resist the mayor?s attempts to exclude people with certain criminal
records from the city-financed defense fund.142 Moreover, in the
spirit of Bell?s interest convergence theory, the present moment
creates an opportunity for elected officials to align with readily
exploitable migrants.143 To paraphrase Homan, if migrants and
elected officials are similar threats, they might as well ally.144
As conversations continue about immigrant defense funds, it
is likely that exclusions will remain part of the political jockeying.
It seems inevitable that, at some point, someone who obtains legal
assistance through a defense fund will be arrested for a crime. It
is even possible that the accusation will center on indefensible
violence. No amount of reference to the lower crime rate among
migrants than native-born individuals145 will suffice to stop the
the relief they seek.?).
140. Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).
141. See e.g., Press Release, Legal Aid Soc?y, NYC Immigrant Advocates to
Mayor de Blasio: Don?t Deny New Yorkers Due Process (May 11, 2017) (describing
the immigrants? rights advocates coalition as consisting of legal aid lawyers, city
council members, public defender organizations, ?local advocates, labor unions
and leading progressive groups?) (on file with the Washington and Lee Law
143. See supra note 28 and accompanying text (explaining why school
desegregation has failed and offering ideas for what can be done to bring about
change by aligning black and white interests).
144. See supra note 22 and accompanying text (explaining that Homan
believes politicians who run sanctuary cities should be charged with crimes).
145. See Jacob I. Stowell & Stephanie M. DiPietro, Ethnicity, Crime, and
Immigration in the United States: Crimes By and Against Immigrants, in THE
OXFORD HANDBOOK OF ETHNICITY, CRIME, AND IMMIGRATION 505, 508 (Sandra M.
Bucerius & Michael Tonry eds., 2014) (studying the results of twentieth and
twenty-first century scholarship about criminal activity by migrants).
chorus of complaints that the defense fund?s existence endangered
the community. Regardless of the details, it will be an opportunity
to attack the defense fund?s continued viability.
Framing immigrant defense funds around notions of migrants
as victims leaves too much space for the inevitable tragedy to
become an immigrant defense fund?s death knell. Instead,
constructing the political rationale for an immigrant defense fund
around the vagaries of using criminality as a marker of morality is
likely to increase a fund?s resilience in the face of criticisms. Rather
than imagine defense funds as protecting victims of Trump-era
excessiveness, they are more solidly built as limits on the
government?s coercive powers deployed through crimmigration law
and law-enforcement procedures along the axes of race and class
It is certainly a heavy lift to shift conversations about
immigrant defense funds away from a frantic reaction to the
perception that migrants in the United States are currently living
through an unprecedented emergency named Trump.147
Embracing a more nuanced critical analysis aimed at the more
foundational crimmigration legal regime that has received
bipartisan support for decades is indeed unlikely. Political
calculations designed to address emergent, seemingly exceptional
circumstances do not lend themselves easily to nuanced,
contextualized critiques of accepted maxims.148 As such, urging
reevaluation of immigrant defense funds even as they become
increasingly common in major metropolitan areas throughout the
United States admittedly appears utopian. But, as Hamza writes,
?it seems increasingly clear that in desperate situations such as we
are currently facing, utopias are the only viable solution.?149
Proposing a utopian perspective on immigrant defense funds
is not to embrace futility. It is, rather, an effort to preserve the
hard-fought victory that established defense funds represent. If
they are premised on the trope of migrant victimization, they are
146. See supra Part VI (explaining the actual and potential value of
immigrant defense funds).
147. See supra Part V (discussing public and political reactions to
immigration policies in the Trump Administration).
148. See supra Part V (noting the unique challenges presented by the Trump
149. Hamza, supra note 112, at 176.
essentially the policy version of a papier-m?ch? figurine: nice to
look at, but easy to destroy. Ironically, the utopian vision of defense
funds conceived as responses to a crimmigration legal regime that
supports racial subordination and reproduces class privileges is
the most likely to keep defense funds from becoming policies for
this historical moment only. In this sense, the utopian approach to
the development of immigrant defense funds may be the approach
that most realistically stands a chance of solving the problem of
migrants pushed into the immigration detention and removal
pipeline without the benefit of legal counsel.150
Immigrant defense funds are an important development in the
long struggle to expand migrants? position within the United
States. Framing these pools of money as responses to the Trump
Administration?s rabid approach to immigration law enforcement
is reactionary and limiting.151 Migrants, their families, and their
communities were detrimentally impacted by immigration law
enforcement practices well before Trump entered the White
House.152 With immigration law being entangled with criminal
law, the marker of criminality has become the stigmatizing feature
of choice for people interested in carving the migrant population
into desirable and undesirable.153 Pointing to criminality as a
measure of a person?s moral worth, however, ignores the well-worn
racial and class biases of the criminal justice system.154
150. See SLAVOJ ?I?EK, AGAINST THE DOUBLE BLACKMAIL: REFUGEES, TERROR
AND OTHER TROUBLES WITH THE NEIGHBORS 9 (2016) (describing a ?[u]topian?
response to refugees as ?the only realist one?).
151. See supra Part V (discussing public and political reactions to
immigration policies in the Trump administration).
152. See supra note 62 and accompanying text (describing pre-Trump
153. See Yolanda V?zquez, Crimmigration: The Missing Piece of Criminal
Justice Reform, 51 U. RICH. L. REV. 1093, 1118?19 (2017) (describing
crimmigration law?s realignment of the criminal justice system to target migrants
and its consequent effect of ?restructuring social categories?).
154. See supra notes 73?80 and accompanying text (detailing the
discretionary nature of the justice system).
Instead of ignoring the faults of building an immigration law
regime on top of discriminatory criminal justice practices,
advocates and elected officials intent on creating welcoming
atmospheres in their communities for migrants and their loved
ones should dispense with the migrant-as-victim trope.155 As a
whole, migrants are nothing more and nothing less than imperfect,
fallible people. States, cities, and counties are right to expand
access to legal counsel for individuals facing the possibility of
forcible removal from the United States for the simple reason that
removal proceedings are complicated affairs affecting, perhaps for
a lifetime, complicated people.156 Flagged for removal by criminal
law proceedings embedded with racial and class biases, the
imperative only increases.157 Excluding some people because they
were ensnared by discriminatory criminal justice practices only
conceals the earlier indefensibility.158
Immigrant defense funds are a form of resistance, but not
against anything unique to Trump or his top immigration officials
in DHS or the Justice Department.159 These funds, rather, present
advocates and elected officials the opportunity to hold back the
growth of exploitative laws and legal processes.160 By recognizing
markers of criminality as inherently flawed assessments of moral
worth, advocates and elected officials can resist the urge to exclude
people from obtaining legal counsel under the auspices of an
immigrant defense fund because of a criminal record.161 If they do
this, they will stop immigration law from being just another
adjunct of the United States? long history of race and class bias. If
they cave to the urge, defense funds are likely to fall prey to the
fearmongering that will inevitably develop. When that happens,
155. See supra Part VI (explaining the value of immigrant defense funds).
156. See Press Release, Vera Inst. of Just., supra note 43 (describing the Vera
Institute of Justice?s Safe Cities Network as providing grants to governments
willing to use public money to operate immigrant defense funds).
157. See id. (explaining the racially disparate impacts of crime-based
158. See id. (discussing the disadvantages of crime-based exclusions).
159. See supra Part III (providing an overview of the rise of immigrant
160. See supra Part VI (explaining the potential impact of immigrant defense
161. See supra Part VI (noting the differences in criminality between
immigration law and criminal law).
28. See generally Derrick A . Bell , Jr., Comment , Brown v. Board of Education and the Interest-Convergence Dilemma , 93 HARV. L. REV. 518 ( 1980 ).
29. Id . at 523.
30. See Justin Driver, Rethinking the Interest-Convergence Thesis , 105 NW. U. L. REV. 149 , 156 , 165 - 69 ( 2011 ) (?[T]he theory's overly broad conceptualization of 'black interests' and 'white interests' obscures the intensely contested disputes regarding what those terms actually mean .?).
31. See Bell, supra note 28 , at 528 (? Further progress to fulfill the mandate of Brown is possible to the extent that the divergence of racial interests can be avoided or minimized .?).
32. See Cathleen Decker, Trump's War Against Elites and Expertise, L.A. TIMES ( July 27 , 2017 3:00 AM), http://www.latimes.com/politics/la-na -pol-trumpelites-20170725-story . html (last visited Oct . 2 , 2018 ) (discussing Trump's various 47 . See Emma Whitford, Immigrant Advocates Say NYC Legal Defense Funding Plan Limits Due Process , GOTHAMIST (May 11 , 2017 , 3 :30 PM), http://gothamist.com/ 2017 /05/11/immigrant_legal_defense_nyc. php (last visited Sept . 20 , 2018 ) (?Mayor Bill de Blasio highlighted $ 16 . 4 million to fund legal representation for non-citizen defendants in immigration court . . . [b] ut the funding is conditional, excluding New Yorkers who have been convicted of any of 170 felonies . . . .?) ( on file with the Washington and Lee Law Review) .
48. See id. (excluding those who have committed felonies deemed ?violent and serious?).
49. See id. (noting the felony exemptions from New York City's sanctuary protections ).
50. Id .
51. Id .
52. See Emma Whitford, Anonymous Donation Secures Immigrant Defense Funding Without Restrictions , GOTHAMIST (Aug. 1 , 2017 , 10 :42 AM), http://gothamist.com/ 2017 /08/01/anonymous_donation_secures_immigran. php (last visited Sept . 20 , 2018 ) (?An injection of private cash is behind a compromise this week that will fund legal representation for all indigent immigrant New Yorkers at risk of deportation regardless of their criminal history . . . .?) ( on file with the Washington and Lee Law Review) .
53. See infra notes 59-60 and accompanying text (examining immigration scholarship that addresses membership theory).
54. See Immigration and Nationality Act (INA) ? 101(a)(3), 8 U .S.C. ? 1101(a)(3) ( 2012 ) (defining ?alien? in opposition to ?citizen?).
55. See generally HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES ( 2007 ).
56. See Yolanda V?zquez, Enforcing the Politics of Race and Identity in Migration and Crime Control Policies , in RACE , CRIMINAL JUSTICE , AND MIGRATION CONTROL: ENFORCING THE BOUNDARIES OF BELONGING 142, 144 (Mary Bosworth et al. eds., 2018 ) (describing recent effects of criminal law and immigration law's entanglement) .
57. 559 U.S. 356 ( 2010 ).
58. Id . at 360 (quoting Fong Haw Tan v . Phelan , 333 U.S. 6 , 10 ( 1948 )).
59. N??ez , supra note 42, at 112.
60. Id . at 138.
61. See , e.g., Jane C. Timm , Trump Says ' Caravans' of Immigrants are Headed for the U.S. What's He Talking About? , NBC NEWS APR. 2 , 2018 , 4 :43 PM), https://www.nbcnews.com/politics/politics-news/ trump-says-caravans-immi grants- are-headed-u-s-what-s-n862136 (last updated Apr. 5 , 2018 , 11 : 20 AM ) (last visited Sept . 20 , 2018 ) (discussing the President's tweets about the dangerous ?caravans? of immigrants headed to the U.S. border, bringing drugs and crime with them) (on file with the Washington and Lee Law Review) .
62. Barack Obama , President of the U.S., Remarks by the President in Address to the Nation on Immigration (Nov . 20, 2014 ).
63. See Donald J. Trump , President of the U.S., State of the Union Address (January 30 , 2018 ) (?For decades, open borders have allowed drugs and gangs to pour into our most vulnerable communities .?).
68. Id .
69. See C?SAR CUAUHT?MOC GARC?A HERN?NDEZ , CRIMMIGRATION LAW 28-29 ( 2015 ) (describing the state standards for criminal conviction ).
70. See id. (highlighting the differences between the criminal and immigration systems) .
71. See id. (emphasizing inconsistencies that result from different definitions of ?criminal?).
72. 481 U.S. 279 , 296 ( 1987 ).
73. See JENNIFER L. TRUMAN , U.S. DEP'T OF JUSTICE , CRIMINAL VICTIMIZATION , 2015 5 ( 2016 ), https://www.bjs.gov/content/pub/pdf/cv15.pdf (reporting that, in 2015, less than half of violent crime and property crime was reported to police).
74. See Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 YALE L .J. 543 , 552 ( 1960 ) (noting that police officers sometimes do not investigate activity that they believe constitutes crime).
75. See Mariano-Florentino Cu?llar , Choosing Anti-Terror Targets by National Origin and Race, 6 HARV . LATINO L. REV. 9 , 32 ( 2003 ) (?[S]carce resources do not permit officers to investigate everyone .?).
76. See Wayte v. United States , 470 U.S. 598 , 607 ( 1985 ) (explaining that the prosecution has broad discretion as to whom to prosecute).
77. See id. (?Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily
96. Juliet Stumpf , The Crimmigration Crisis: Immigrants, Crime and Sovereign Power , 56 AM. U. L. REV. 367 , 380 ( 2006 ).
97. See supra Part IV (explaining that immigrant defense funds exclude people with certain criminal records).
112. Agon Hamza , The Refugee Crisis and the Helplessness of the Left, in THE FINAL COUNTDOWN: EUROPE, REFUGEES AND THE LEFT 167 , 176 (Jela Kre?i? ed., 2017 ).
113. See supra notes 47-52 and accompanying text (noting that New York City's policy to exclude felons was a way to comply with the pressure from the Trump Administration's immigration policy demands).
114. See supra note 62 and accompanying text (explaining Obama's immigration policies ).
115. See C?sar Cuauht?moc Garc?a Hern?ndez , Removals & Returns , 1892 - 2015 , CRIMMIGRATION (Feb. 16 , 2017 , 4 :00 AM), http://crimmigration. com/ 2017 /02/16/removals-returns-1892 -2015/ (last visited Sept . 20 , 2018 ) (displaying annual removal data from 1892 to 2015) (on file with the Washington and Lee Law Review) . Trump's policies.?).
121. Mladen Dolar , Who is the Victim?, in THE FINAL COUNTDOWN: EUROPE, REFUGEES AND THE LEFT 67 , 70 (Jela Kre?i? ed., 2017 ).
122. See Dakota Smith , A $ 10 - Million Fund Will Help Immigrants Fight Deportations. But Should It Help Those With Violent Criminal Convictions? , L.A. TIMES (Apr. 17, 2017 , 3 :00 AM), http://www.latimes.com/local/lanow/la-me -ln-lajustice-fund-20170417-story . html (last visited Sept . 20 , 2018 ) (discussing the proposal that those convicted of ?heinous crimes? could not access the fund) (on