David Bennion: January 2012 Archives

In deportation defense work, immigrant rights organizers can work most effectively to stop a deportation when they collaborate with a reliable immigration attorney. Viewed from another perspective, an attorney can often better serve his or her client with the help of organizers. However, complications can arise with this type of collaborative work.

In recent years, collaboration between organizers and attorneys has most commonly involved Education Not Deportation (END) campaigns to stop the deportation of undocumented youth. END cases were rare before the summer of 2009. Now the federal government routinely agrees not to deport undocumented youth who would qualify for the DREAM Act, were it to be enacted, and who reach a certain threshold of visibility and public support. (The government routinely deports tens of thousands of DREAM-eligible youth who remain invisible to the public--and even some who have strong public support.)

I have worked on several END cases since 2009 as an immigration attorney. In my experience, an END case has the best chance of success when an attorney works closely with organizers and the client's existing support network. Attorneys have access to and relationships with immigration officials that organizers and family members usually lack. Organizers have the trust of the community and are not afraid to directly challenge the government. Organizers, attorneys, and others worked together on the early END cases and created the existing END model. Organizers and attorneys are better able to stop deportations when they work together.

Unfortunately, this does not always happen. Communication between the attorney and organizers sometimes breaks down, to the detriment of the client. Attorneys sometimes have a limited view of what is possible in a given jurisdiction, failing to acknowledge successes in similar cases elsewhere. Attorneys can be too cautious, apprehensive of damaging delicate relationships with Immigration and Customs Enforcement (ICE) attorneys or deportation officers. Out of habit, attorneys can shut supporters and organizers out of the case, foregoing the collaborative model for a "what I say goes" approach. It's worth taking a closer look at how and why these problems arise, and what can be done to address them.

Birthright Lottery cover

Last year, I read Ayelet Shachar's important book, The Birthright Lottery: Citizenship and Global Inequality.  She discusses the book herself here, and I won't replicate that concise summary (though it is worth reading).  The book's core insights are powerful:

  • Birthright citizenship is a form of property entitlement by which relatively wealthy people transfer a bundle of rights and opportunities to their children.  

  • The global citizenship regime acts to seal poor people into enclosed political and economic systems which limit their life opportunities.  The result of these limitations, backed by the full force of the sovereign state, is that only 3% of the global population migrate from their countries of origin. 
     
  • This regime is unjust.  It is based solely on accident of birth.  It is grossly inconsistent with democratic principles held in liberal societies.  
Shachar's premises seem obvious once seen in print, and  you wonder why these ideas aren't more widely acknowledged.  In Birthright Lottery, she builds a new legal framework for defining citizenship based on those premises.  

The existing citizenship regime is built upon two legal principles: jus soli (citizenship defined by place of birth) and jus sanguinis (citizenship defined by blood).  These principles represent an improvement upon previous regimes based on transfer of rights and property within bounded family groups alone, and have led to a just legal and political theoretical framework within liberal sovereign polities. 

But the framework falls apart in an anarchic international political system of sovereign states of radically disparate wealth and power, and becomes instead a mechanism for perpetuating inequality.  Those who are excluded from the citizenry of wealthy states do not have political equality or equality of opportunity.  Meanwhile, a global educated elite can travel, and often live and work, abroad.  Members of the cosmopolitan elite have easier access to membership in polities outside of their countries of origin.  They can freely transfer capital across sovereign boundaries.  They are not constrained by the international political system; rather, the system works to preserve the elite's wealth and status much as the aristocratic transfer system of Old Europe did in years past.  


Shachar proposes a new legal principle for defining political membership groups: jus nexi.  This new framework would "[establish] that the social fact of membership offers a valid foundation for access to political membership" and would "[highlight] the significance of developing ties and identification with the country over time as the basis for bestowing citizenship and its benefits on long-term residents."