Jennifer Chacón Discusses the Failures of U.S. Immigration Policy and How the Law is Developing

Jennifer M. Chacón: Bruce Tyson Mitchell Professor of Law

Control of the border and illegal immigration are again in the headlines and the centerpiece of a divisive presidential campaign. Here to help make sense of recent legal successes and failures is immigration law expert Jennifer Chacón, the Bruce Tyson Mitchell Professor of Law at Stanford. The author of the new book, Legal Phantoms: Executive Action and Haunting Failures of Immigration Law, which offers insights into the human stories and governmental challenges shaping contemporary immigration debates, Chacon discusses the complexities of immigration policy,  its intersection with constitutional law, criminal law, and societal perceptions of identity and belonging. 

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Jennifer Chacón: We hear a lot in immigration about people being lawbreakers or line jumpers and I think in many ways we’re a nation of lawbreakers and line jumpers if you look at our long and illustrious history. And so, I think we need to find better ways to think about who we are as a country and what we want for our future.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan with Rich Ford. Please subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all our new episodes as soon as they are available.

Today we’re lucky to be joined by our colleague here at Stanford, Jennifer Chacón, who’s the Bruce Tyson Mitchell Professor of Law. She researches issues that arise at the nexus of immigration law, constitutional law, and criminal law and procedure. Her writings show how legal frameworks on immigration law and immigration law enforcement shape individual, collective understandings of racial and ethnic identity, citizenship, civic engagement, and social belonging. Her most recent book is Legal Phantoms: Executive Action and the Haunting Failures of Immigration Law, published earlier this year by Stanford University Press. Welcome to the show, Jennifer.

Chacón: Thank you so much for having me.

Rich Ford: So, immigration policy is an evergreen topic. There was a period of time not that long ago when it looked like we might have bipartisan support for comprehensive immigration reform. That’s clearly not where we are today. And we’ve had a stalemate on policy and legislation in Congress for many years. Just recently, President Biden has issued a new executive order to begin to address some of the ongoing crisis at the border. But not that much attention is paid to some of the stories of the individuals behind the policy, both the individuals trying to enter the United States or who were in the United States and might be deported, but also the governmental agencies that are working with this population. And you’ve done some groundbreaking research looking into those issues. Could you tell us a little bit about your new project?

Chacón: Oh, I’d love to. So, in some ways you started with the mention of comprehensive immigration reform that never came into existence. And that was really the starting point for this project. Our initial plan was to study the rollout of comprehensive immigration reform. So, this was … you’ll all remember the heady days of 2013. Senate Bill 744 had been passed by the Senate. And we thought there’s going to be a significant legalization program. I will be interesting to see how the government agencies and organizations implement that significant legalization program. Wouldn’t it be great if we could sort of track that on the ground? And so we had reached out to a number of immigrant-serving organizations in Southern California that we thought would be taking the lead on this issue with a number of immigrant communities in SoCal and we were ready to watch the process in action.

But as you noted, it never happened. And so we pivoted at that point. Because we’d already begun to work with organizations, begun to think about how we might watch a program rollout. We were excited that President Obama was thinking about an executive action to fill some of the gaps that comprehensive immigration reform failure necessarily left.

And so he was at that point, the people in his administration were formulating something that would be an expansion on his earlier 2012 Deferred Action for Childhood Arrival programs. And so in late 2014, President Obama announced a Deferred Action for Parents of Lawful Permanent Residents and Citizens and an expansion of the DACA program that would have removed some of the age limitations that was keeping the program unavailable to some, particularly some of the people who were older, and who otherwise would have been eligible for DACA. And so these two deferred action programs would have built on DACA. And there were estimates that it might have covered as many as 3 million long- term residents in the United States who have been living here without legal authorization. And so we thought well, we can’t study comprehensive immigration reform because that didn’t happen, but we can see many of the same issues when we watch the program rollout of DAPA and DACA plus.

And once again, our optimism was thwarted. President Obama’s proposed programs never went into effect. So he announced them in late 2014 and they were said to go into effect in early 2015, but the state of Texas and several other states sued on both statutory and constitutional grounds, arguing that these programs both violated the Administrative Procedures Act and the Constitution, and the programs were enjoined by a federal district court judge in Texas.

Karlan: Can I stop you for just a sec, Jennifer, to explain to our listeners what deferred action is?

Chacón: Yeah, so that’s a great question because I take it for granted that everyone knows what deferred action is. But deferred action is a longstanding power that the president has exercised in cases where individuals are not present with a legal status under the statute, but where there are humanitarian or other reasons to allow them to remain in the country.

And so we saw the sort of large scale enactment of a Deferred Action Program in 2012 when Obama announced the Deferred Action for Childhood Arrivals Program. And that program meant that people who had come to the United States as children, and who were qualified in other ways for the program, that is, they didn’t have certain criminal convictions, they had attained certain educational landmarks—those individuals could remain in the country would be de prioritized for deportation so would not be removed. But it doesn’t bestow a permanent legal status on them. So there’s a deprioritization for removal, it’s prosecutorial discretion. We’re not going to deport you. And with it, because of the operation of regulations, it comes with a work authorization for individuals who have that deferred action status, which is pretty important because if you’re not authorized to work in the United States, it’s illegal to work and very difficult to navigate life in the U.S. And so individuals were given work authorizations and they were deprioritized for deportation, but it’s not a permanent status in any meaningful sense. And so what that means is every two years, these individuals have to reapply. They have to pay again for their work authorization. They pay a substantial amount of money for that work authorization. And they have to once again demonstrate that they are still eligible to remain under the terms of the program.

So, that’s how Deferred Action has operated, and it’s operated not just for DACA recipients, but before that it’s operated for a variety of individuals who have been designated for Deferred Action by the Secretary of Homeland Security, and prior to that the Attorney General, and so we have a longstanding history of this program operating, and it’s basically a gap filler. It means that when you have an individual whose individual equities suggest that they shouldn’t be deported for a variety of reasons, including predominantly humanitarian, but not exclusively humanitarian reasons, that they can remain.

But again, only Congress can give them status. Only Congress can give them lawful permanent resident status. Only Congress can give them citizenship. So, it’s a sort of limited tool that the executive branch has to enable people to remain and to work lawfully while ideally, and I think this was President Obama’s vision with DACA, ideally, Congress would then enact legislation that would provide more permanent solutions for these individuals.

Ford: So, these orders are just filling a gap, hoping for subsequent legislation that would be more comprehensive, but you looked at the effect of these stop gap measures on the subject populations and, what are some of the things that you found? Because I think a lot of people look at the crisis at the border and they just see a faceless mass of people who are trying to come to the United States or they have an image in their mind without knowing anything about the people actually involved.

Chacón: Yeah. I think it was important for us to humanize people, which shouldn’t be necessary, but somehow seems perpetually necessary when we’re talking about immigration. I think one thing that it’s important to stress is that the individuals that we were speaking to in this context are people with long periods of time living in the United States and deep ties to the United States. And so when we’re talking about the Deferred Action for Parents program or the DACA expansion, we are, by definition, talking about the individuals who would have been qualified for those programs are people with deep ties in the United States and, in many cases, very long time residents in the United States. And so I think it’s important to understand that in some distinction to recent arrivals at the border, which is are related, but a different set of issues.

And one of the things that we do note in this book is the way that the language of border crisis and sort of a recurring narrative or drumbeat around notions of border crisis is often used to diffuse political support for giving legal solutions to long-term residents. And we saw that actually pretty pointedly while we were, conducting our study. So, we were interviewing people in the Los Angeles and Orange County area in the period from 2014 to 2017, and as the litigation around the Deferred Action for Parents Program was ongoing, as the litigation for the DACA expansion was ongoing, there was also increasing focus on the rising numbers of unaccompanied minors who were arriving at the southern border from Central America.

And the overall numbers were not big. If we’re talking about the number of actual people arriving at the border, they were not particularly substantial. It was a notable percentage increase in the number of unaccompanied children who are arriving at the border and there are a variety of legal reasons that it was happening in that way.

But what was interesting to us was the way that percentage increase in the number of unaccompanied children who are arriving at the border was converted into a story of a border crisis and how that narrative of border crisis was directly used to explain or to frame why it was that deferred action for parents or deferred action for childhood arrival expanded would be bad policy.

So, there’s this sort of problematic and unsubstantiated linkage between what is happening at the border. And what solutions are possible for people who are long term residents. So that’s one….

Karlan: So do the people who are long term residents, do they see these as two separate issues or is it you who are seeing these as two separate issues?

I just wonder about, the folks, for example, who’ve been living in the United States for a decade. What’s their view? How do they think about the linkage between these two things?

Chacón: One thing that you learn very quickly when you start to interview immigrant residents who have lived in the U.S. for a long time is that people have a wide array of views, political and otherwise, and a wide variety of views on questions of immigration, on questions of border policy and how that impacts their own status. So, I think here, in the same way you see a wide array of responses and feelings….So I think there were some people who felt like the kind of the fact that people there was an increase in people coming to the southern border and that there was a lot of attention to this was a problem for them. And they were, in their view, wanted to be given priority. We should be prioritizing the needs of people who’ve lived here a long time. We should be prioritizing their legal solutions for this population. And if that means dealing more harshly with people who are coming to the southern border, then so be it.That’s a tradeoff that we think is fair.

There were other people though, and I would say probably the more people who saw this as more of a linked issue in the sense that harsher responses to border policy, they saw as more likely to engender harsher responses to them and to their loved ones. And they didn’t think that they were going to get any political gain out of seeing harsher border policies. And in fact, we talked to some people who—you might remember that in the same period that we had these rising numbers of unaccompanied children coming to the border from Central America, the Obama administration also engaged in a series of raids in the Southern California area in order to target recent arrivals, and of course the difficulty of conducting any sort of enforcement action on the ground targeting recent arrivals in immigrant communities is you’re also going to come across long-term residents in immigrant communities who are also undocumented. And so there was a sense that the enforcement efforts that were purportedly aimed at recent arrivals or purportedly aimed at this new problem was something that was directly impacting the way that people felt they were policed in their own neighborhoods and communities. And so they viewed the kind of border crackdown rhetoric as something that had a direct impact on their own lives.

Pam, I guess the long, the short answer to the long answer is the reactions were pretty varied. And some of it depended on how they felt like the policing in their own communities was tied to what was happening at the border. And some of it also depended on whether they saw themselves in these recent arrivals.

And there are differences of views on that as well. So some people were individuals who had arrived 10, 20 years ago on a temporary visa for work and overstayed, and they viewed themselves as a very different category than people who were trying to cross the border, fleeing from situations in Central America. And so they did not view themselves as in the same category. So, as with many things, it’s complicated.

Ford: So, the people that you talked to in the course of your research, what’s their relationship to the federal government and in particular agencies that are trying to help them? I’m thinking about some work that I’ve done with the EEOC in the employment context where the EEOC has no relationship to immigration and indeed would never …. it wants to ensure that undocumented people have access to all of the legal rights that any employee has. But a real challenge for the agency is getting the people in question to believe that. They see a federal agency and think, we’re going to get deported if we talk to people involved in this agency. Did you see problems like that in the course of your research?

Chacón: So I think we see, again, a complicated story. Many of our interviews wound up taking place over the very tail end of the Obama administration and then into the early days of the Trump administration. I think certainly Trump’s rhetoric made a lot of people very edgy about interactions with the federal government. There was a sense that if they had to have interaction with the federal government that it was likely to be disastrous for them. And so I think in that context, you did see system avoidance. But again, it’s complicated. And one of the things that I think our book really fleshes out is the way that during the Trump, kind of the early Trump days, a lot of the activism and organizing around immigration issues really pivoted, focusing away from the federal government and to the state government and localities.

And so, what can local governments do to make the lives of immigrant residents more viable in a context of increased federal enforcement and increased antagonism between the federal government and undocumented residents? What can state governments do to make life more viable for people who are long-term residents, but who may be facing immigration consequences at the federal level?

And so I think people … it was interesting when we would talk to people and we would talk about government, people have a fairly sophisticated understanding of federalism, right, in the context of immigration. People understood the difference between the governor’s policies on immigration and what they were getting out of the state of California, versus what the federal government was doing on immigration. I thought that was really interesting that, I think you can go through life without really knowing the difference between a federal or a local official, but if you’re navigating life as an immigrant, you really have to understand some of these nuances: Are my school officials the same as a federal official? No. And does that matter? Well, yes, it does. And so I think we saw a lot of nuance in terms of how people were understanding government, and we also saw a lot of sophistication in organizing and activism around local governments in terms of thinking what is the interstitial space that’s left by federal law in which local governments can act to make life safer and more protected and better for people who are long-term members of the community, and that is around education and that is around employment protections and that is around criminal law and policing and that’s where we saw a lot of the activism focus in that time.

Ford: So, Jennifer, where do you think we should go now? What would be an ideal reform from your perspective, given the work that you’ve done in this area?

Chacón: That’s a million-dollar question that I don’t know that I have all the answers to. I will say, I think what I can safely say is I think current events revealed that the issues that we uncovered that we talk about in depth in the book continue to be salient. We were just talking about the relationship between how we think about border, the border and border enforcement policies, and how we think about long-term immigrant resident populations and the possibility of reform for them. And I think if we look at what’s happened recently in the Biden administration, we can see the way that those two, two different problems really still travel together in the minds of policymakers.

So we saw President Biden announce new restrictions on asylum at the southern border, placing a sort of a cap on asylum that’s not in the statute, right? And is somewhat inventive. But the notion is that when the number of arrivals gets to a certain point, then there just won’t be asylum processes available to individuals who don’t qualify through other channels.

And so we see that notion of there are too many people coming, or we need to limit the number of people coming and able to seek asylum. And we see that coupled with his more recent announcement that is aimed at long-term residents, in this case, the spouses of U. S. citizens. And the idea here is to give parole in place for individuals who are the spouses of citizens, meaning that they have now been given a way to more smoothly apply for and go through the process of obtaining a green card without having to leave the country for consular processing and face potential bars.

So this is a way of addressing the needs of the population that’s here, that has deep family ties, and doing so in a way that at least at the level of messaging, is coupled with language about being more restrictive at the border and that sort of coupling is exactly the kind discourse that we saw in our own writing in the period from 2014 to 2017, we saw this, we’ve seen this many times. We see this if we look back to the Immigration Reform and Control Act in 1986 when there was a combining of large scale legalization program with increased enforcement measures designed to stop the purported job magnet that was drawing people into the United States. This kind of coupling is not at all new, but I think it’s really interesting to see it happening and so clearly and so vibrantly again with the Biden administration’s two recent announcements.

Karlan: I mean, do you think it’s actually possible to do immigration reform that doesn’t do that kind of coupling in the United States?

Chacón: No, I don’t think that it is. Would I like it to be possible? No…. Yes, I would. I think it is both pragmatic and feasible to enact a large-scale legalization program without necessarily doing anything else. But I think that politically, it’s impossible. Politically, everything seems impossible. We saw just a few months ago what appeared to be some bipartisan hammering out of some immigration policy changes and at the last minute Republican support completely collapsed. And so we are a long way from 1986 and the Immigration Reform and Control Act being signed by President Reagan. So, I don’t know how much is possible even when you throw in the additional restrictions, but I certainly think that immigration reform in the absence of those restrictions seems politically impossible.

Ford: So, what in your ideal world, what would a piece of legislation to begin to address these problems look like?

Chacón: Yeah, so I guess, again, a difficult question, but maybe not that difficult. I think one thing that we know is that a lot of people have been here for a very long time, are very deeply integrated with their communities, and really need a way to navigate their lives more fully than they’re being allowed under current law. And I don’t think it would be at all a problem from a policy perspective to give these individuals lawful permanent residence and a path to citizenship. So, if you think there are about 11 million people who are in the United States without authorization, who have lived here for a long time. We estimate the undocumented population to be about 11 million, and it’s estimated that more than half of those people have been here for more than 10 years, so they’re long-term residents, deeply integrated into communities.

And so I think providing some sort of legalization solution for the majority of that population makes good sense. That, as Pam’s question pointed out, probably needs to be paired with some thinking about the border. But I do think that we’re thinking in ways that are deeply troubling about the border rather than in ways that are pragmatic. So, what we need to be thinking about when we think about the border is how to streamline and effectuate processing for asylum claims. There are lots of people coming with legitimate asylum claims and we need to find ways to grapple with that. The immigration courts currently have a backlog of about 3 million cases. It takes years for people to have their claims adjudicated in immigration courts. That’s not a sustainable way to be, so if you want effective solutions around immigration, you need immigration courts that actually are processing claims in a timely way, you need people who have a legitimate asylum claim to be able to be processed. And we seem to be comfortable spending a lot of money on things like customs and border protection.

But we haven’t been spending the money and the resources that we need to spend on basic processing, whether that be at USCIS, which is entirely fee-funded, largely fee funded, or whether that’s in our immigration courts, which just are not up to the capacity necessary to actually process the number of cases. So, I think. If you were looking, if you were seriously looking for solutions, and you were seriously looking for something that’s democratically feasible, you would be looking at increasing immigration court capacity. You would be looking at increasing processing capacity for people with asylum claims at the southern border. And you would be looking at long term legalization or short-term legalization—immediate term legalization—for long term residents. And I particularly think here about individuals who have received Deferred Action for Childhood Arrivals. President Obama announced that program in 2012. Those people have been living in this cycle of continual need to renewal, this continual liminal status for 12 years now. There is no reason that they couldn’t be citizens tomorrow. They’re already functioning as citizens. And so I think, thinking about Making sure that we’re attentive to these dynamics and that we don’t forget about the amount of time and the amount of energy that these individuals who put into the United States. I think we need to come up with something for them, really yesterday, but certainly as soon as possible.

Karlan: One thing that just concerns me is. You’ve been giving the kind of optimistic view of: here’s what we could be doing, but we have at least one major presidential candidate whose solution is quite different from yours, which is, let’s go in and deport millions of people who are already here. How do you respond to that?

Chacón: One response I have is part of the reason that we wrote the book is because we thought it was important to tell a more complex story about who immigrants are in the U. S. It’s not the only reason we wrote the book, but it is part of the reason for the book, is to step outside of the caricatured narrative about who immigrants are and what they’re doing. And I think there’s a lot of political traction to that narrative that immigrants are, to use the words of Candidate Trump “poisoning the blood” of the United States that they’re overwhelmingly criminals and otherwise a threat to the nation. That is really powerful rhetoric, and it is rhetoric that is amplified in a variety of media outlets, generating fear, stoking horror, and stoking dehumanization.

So, I think it’s a message that has a larger audience than it probably should. It’s a message that we need to be thinking more about how to counteract and humanize. But you’re right: Ultimately, at the end of the day, it means there’s popular support for a candidate who has made these kinds of statements and whose immigration policy platform is mass deportation. He alluded with great nostalgia to the mass deportation campaigns of the 1950s. And so, I think it is a very real possibility that a year from now, we could have a president who is not at all interested in creating pathways for citizenship and is, in fact, interested in removing as many people as he possibly can.

I think there are some challenges that any president would run up against in that situation, some of them legal, but some of them purely economic and practical. You don’t … when you think about who does a lot of work that keep the country running, it is, unauthorized labor. So there’s going to have to be, there will be a series of compromises that any president makes. And this president will not deport everybody, but he will make everybody feel deportable in ways that I think increase the ability of unscrupulous employers to exploit people and generate all kinds of vulnerabilities of populations to being victimized by crime and discrimination. So, I think that’s a dark picture. It’s not a picture of total removal of everyone who could be removed, but it’s a picture of selective removal in a way that renders everybody, and I don’t just mean undocumented immigrants, but all immigrants and anyone who might be presumed to be immigrant, makes all of those people more vulnerable.

And so that is a fear that I have and I’m not naive enough to think that there’s not a very real chance that is where we’re looking at being in nine months. And that’s why I think it’s particularly important that we engage in this project of telling different stories about what is possible and about who we are. We hear a lot in immigration about people being lawbreakers or a line jumpers.

and I think in many ways, we’re a nation of lawbreakers and line jumpers if you look at our long and illustrious history. And so I think we need to find better ways to think about who we are as a country and what we want for our future.

Karlan: Thanks so much, Jennifer, for talking with us today. This is Stanford Legal. If you’re enjoying the show, tell a friend and please leave us a rating or review on your favorite podcast app. It’ll help us improve and get new listeners to discover the show. I’m Pam Karlan along with Rich Ford. See you next time.