Legal Phantoms: The Specter of Failed Immigration Reform

Growing up in El Paso, Texas, with Mexican immigrants on her father’s side and an Irish-Italian American mother whose family had been stationed at Fort Bliss by the U.S. military, Jennifer Chacón (BA ’94) started asking herself big questions about national identity and immigration: “Why is it that I’m the beneficiary of what seems to be a lottery ticket in the form of U.S. citizenship and other people aren’t? What is the role of these armed agents who police this border space?” says Chacón, the Bruce Tyson Mitchell Professor of Law at Stanford Law School.

“I was always very interested in bureaucratic decision-making, in the power that it has to shape people’s everyday lives, and to shape their identities,” she says.

Jennifer M. Chacón: Bruce Tyson Mitchell Professor of Law
Jennifer M. Chacón, Bruce Tyson Mitchell Professor of Law

Chacón’s new book, Legal Phantoms: Executive Action and the Haunting Failures of Immigration Law (Stanford University Press), is a rigorous examination of those issues—and the product of more than a decade’s work at four different law schools. Before coming to Stanford in 2022, she was a law professor at UC Berkeley, UCLA, UC Davis, and UC Irvine. She is also the co-author of the immigration law textbook Immigration Law and Social Justice, now in its second edition.

Chacón, an expert on issues that arise at the nexus of immigration law, constitutional law, and criminal law and procedure, co-wrote Legal Phantoms with her UC Irvine colleagues Susan Bibler Coutin (MA ’85, PhD ’90) and Stephen Lee (BA ’98); UCI law professor Sameer Ashar also contributed to portions of the book.

A predominance of legal policy research is predicated on something that happened—the passing of a new law, the handing down of a decision, the promulgation of a new agency rule—but Legal Phantoms delves into the ramifications of something that did not happen: a decade’s worth of promised federal immigration reform.

Focused on Los Angeles and Orange County, and based on roughly 135 interviews with government officials, immigration advocates, attorneys at immigrant rights organizations, and individuals who stood to benefit from thwarted immigration reform programs, Legal Phantoms lays bare how years of broken promises and patchwork laws and policies have hurt not just intended beneficiaries of failed immigration reform proposals, but also the agencies charged with helping them and the broader community.

“This project is very much at the intersection of the law and social sciences,” says Chacón. “Our book is an exploration of what happens when the legal superstructure is insufficiently responsive to events moving and shifting around us. It is an atypical book in many ways, and not what we thought it would be at the outset. But ultimately, a lot of important and useful information can be gained when you talk to organizations, government officials, and individuals about how they are navigating a landscape of perpetual uncertainty and change.”

Interviews with immigrant advocacy groups, for example, illuminated how difficult it is for organizations to make strategic and financial decisions in the face of state and federal laws that shift with the political winds.

“There were hard questions that organizations were asking themselves about what they should be working on and where they should be putting their resources to prepare for the DAPA and DACA expansion, which of course never materialized,” Chacón says. “At the same time, they had to decide whether and how to allocate resources to assist asylum-seeking children arriving at the border. There are always trade-offs and hard questions, and these organizations have very limited resources while the needs just escalate.”

Talking to people living in the United States without lawful immigration status exposed the constant fear, frustration, and uncertainty they battle. One interviewee sought help from the police, only to have them impound her car. Another worried she would have no recourse if she were assaulted by tradesmen working in her home. Another cried because she could not be with her dying father in Mexico.

Plan, Then Pivot

In 2013, Chacón and her colleagues planned their research on the assumption that the Obama administration would work with Congress to pass comprehensive immigration reform. They were poised to study the myriad legal and public policy implications of granting citizenship to millions of undocumented people living in the United States. But the Border Security, Economic Opportunity, and Immigration Modernization Act, which received bipartisan support in the U.S. Senate, died in the House. Chacón and her co-authors shifted their focus to President Obama’s next proposal: expand the existing Deferred Action for Childhood Arrivals (DACA) program (dubbed DACA+) and roll out Deferred Action for Parental Accountability (DAPA), an initiative to grant citizenship to certain immigrants with children who were American citizens or lawful permanent residents.

Legal Phantoms: The Specter of Failed Immigration Reform 1

But DACA+ and DAPA also met an abrupt end. Republican-led states sued to block the programs, and the Supreme Court, in its 2015 decision in United States v. Texas, let stand a 5th Circuit decision blocking their implementation while the programs became subject to further legal challenges. When Donald Trump was elected president, the federal government stopped trying to enforce these programs altogether—in fact, the Trump administration sought to claw back protections offered by the existing DACA program.

Chacón and her team pivoted yet again, and Legal Phantoms started to take form. “It was clear that there was a larger story in the ‘non-event,’” says co-author Lee, a legal writing and research fellow at SLS from 2007 to 2009 (now known as the Grey Fellows program).

Lee took the lead on interviewing government agency officials who would have been charged with rolling out and administering DAPA and DACA+. “One of the most striking things we saw was the disconnect between the organizations that see themselves as fighting for the interests of immigrants and the perception among immigrants that they are not being seen or heard.”

Erosion of Trust

A recurring theme in the book, Chacón says, “concerns the role of trust between clients and constituents and organizations, and what it means for trust when organizations, in good faith, tell people something’s going to happen, but does not. A part of our story is also about how these disappointments influence the perceptions that people have of courts, governmental actors, and governmental agencies.”

Chacón stresses that Legal Phantoms takes a broad view of the Southern California immigrant communities and experiences. “Some of what we saw happening, particularly with a lot of the news coverage of DACA and subsequent books, was almost an exclusive focus on the Latino community, but we wanted to tell a story that did a better job of capturing Asian immigrants and other populations that would have been benefiting from expanded DACA or DAPA, and also try to develop a better sense about the organizations that were doing more work with those communities and whether the barriers and issues that they were facing were different from the organizations that were predominantly serving Latinos.”

Legal Phantoms relays numerous accounts of immigrants and their advocates as they navigate shifting immigration enforcement policies. “Much more of the book than we originally thought became a book about local government and policing,” Chacon says, “in great part because so many people we interviewed had stories to tell about being caught up in the cycle of over-policing and the criminalization of immigrants.”

Over-policing of immigrant communities, explains Chacon, is deeply intertwined with the effect of programs like DACA. “Because if police contact is the disqualifying issue for these programs, and your community is disproportionately under police surveillance, and you lack access to certain licenses or permissions that keep you out of trouble with the law, then these things double down on themselves.”