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Not many peoplebesides immigration law wonks had probably heard of Section 1325, before Julin Castro called for repealing it during the first Democratic presidential primary debate this summer. The law in question makes it a federal crime to enter the U.S. without permission turning an immigration offense into a criminal one. President Donald Trump used a policy of zero tolerance for breaking that law to justify separating families at the border, but under George W. Bush and Barack Obama before him, 1325, along withillegal reentry coming back after being deported was already being used to jail and deport more and more immigrants. In fact, immigration-related crimesnow make up the majority of all federal criminal prosecutions.

Castros proposal to repeal 1325 might have seemed to come out of left field, but its the exercise of the law that is historically the outlier: While laws criminalizing entry have existed since 1929, they were largely ignored for a century, the lawyer and scholar Csar Cuauhtmoc Garca Hernndez reminds us in a new book, Migrating to Prison: Americas Obsession with Locking Up Immigrants. In 1975, he noted a mere 575 people were charged with an immigration crime; in 1993, only 2,487. Contrast that with fiscal year 2018, when prosecutors brought 105,692 federal immigration charges.

Image: Courtesy of The New Press

The criminalization of immigration, especially the scale at which it happens now, is a relatively recent trend, Hernndez argues. And it ought to be reversed. His book joins a number of recent works that put contemporary immigration politics in the same light that scholars and activists have shone on mass incarceration showing it to be a phenomenon inextricably linked to the history of land, race, and capitalism in the United States. The immigration prison is a reminder that human bondage based on racial and economic markers of undesirability cant be relegated to some distant past, Hernndez writes. If were willing to lock people up, well find a reason. Most of the time the targets will be people of color. We can call this coincidence, but we would be lying to ourselves.

Hernndez lays out in a lucid, linear fashion the evolution of immigration law and its enforcement in the United States, from laws restricting the movement of certain people across state lines formerly enslaved people, for instance to the Chinese ExclusionAct of 1882, the first in a series of acts that barred Asian immigrants for decades.

Any history of how the notion of illegality in migration took root has to consider the experience of Mexicans. While the first U.S. immigration laws focused with explicit racism on excluding Asians, Mexicans were the ones often physically targeted by Border Patrol harassed, removed, or allowed to pass to satisfy the desires of powerful Southwest planters. In Hernndezs words, Border Patrol detained and deported their way to a scared workforce. Many of those workers, whether unauthorized or sanctioned under the bracero program, which ran from 1942 to 1964, were rendered illegal by the 1965 Immigration and Nationality Act, which got rid of national quotas and more or less established the United States current immigration regime, wherein countries are allotted a certain number of visas. Though ostensibly a progressive measure doing away with the racist quotas and nationality bans of previous eras, when it came to Mexico, the act, also known as Hart-Celler, ignored thecloseness ofthe nations and subjected Mexicans to a national cap nowhere near high enough to accommodate traditional migration levels. Perversely, the Hart-Celler Acts formal equality turned immigration law against Mexican migrants, Hernndez writes. Mexicans became illegal, and illegal aliens became racially coded as Mexican.

Its focus on detention sets Hernndezs book apart from other recent histories of immigration and the border, including Kelly Lytle Hernndezs history of the Border Patrol;Undocumented Lives: The Untold Story of Mexican Migration, by Ana Raquel Minian; and Greg Grandins The End of Myth: From the Frontier to the Border Wall in the Mind of America. Early immigration prisons were atrocious dockside facilities, like a two-story wooden shed on the San Francisco wharf run by the Pacific Mail Steamship Company, where Chinese migrants waited to be approved entry by U.S. officials. Ironically, it was to address these terrible conditions in company-run centers that the federal government got involved, creating facilities like Ellis Island in the New York Harbor, which opened in 1892, and Angel Island in the San Francisco Bay. For the first time, Congress required inspection officers to detain anyone not clearly and beyond doubt entitled to admission, Csar Cuauhtmoc Garca Hernndez writes inMigrating to Prison. In 1896, the Supreme Court emphatically declared that immigration imprisonment was constitutionally permissible.

Yet it was a relatively brief experiment. By 1954, under Dwight D. Eisenhower, Immigration and Naturalization Service (the precursor to todays immigration agencies) had all but abandoned its detention policy. Ellis Island shut down with little fanfare. Hernndez concludes that, in fact if not in law, the United States came remarkably close to abolishing immigration imprisonment. While that was, in the words of the attorney general at the time, a step in the direction of humane administration of the immigration laws, it was also self-interested, Hernndez notes. Immigration prisons were costly, and, as has been the case throughout U.S. history, businesses wanted migrants out of prison so they could be used as cheap labor.

A group of Chinese and Japanese women and children wait to be processed in a wire mesh enclosure at the Angel Island Internment barracks in San Francisco Bay in the late 1920s. The Angel Island Immigration Station processed one million immigrants from 1910 to 1940, mostly from China and Japan.

Photo: AP

Again, Hernndez connects this history to that of incarceration writ large in the U.S.There was a timewhen, even within Richard Nixons Justice Department, the utility of prison was questioned. Butthe 70s ushered ina politically orchestrated crime panic, and the war on drugs, which led to mandatory minimum prison terms and sentencing disparities for powder cocaine and crack.A parallel process played out with immigration. Migrants, like black Americans, were linked to drugs, crime, and unrest, and portrayed as leeches on government services.

In the 1980s and 90s, legislation introduced new levels of criminality for immigrants, which in turn expanded the population of imprisoned people. As Hernndez writes, Congress denied immigration judges the discretion to release anyone convicted of an aggravated felony, which includes serious offenses like murder but also shoplifting and tax fraud. Detention and deportation, once decided with considerable discretion, became mandatory for all sorts of offenses. The link between mass incarceration and immigrant incarceration is clear in the legislative history: The same 1986 law that created mandatory minimum sentences for crack cocaine created detainers, requests to local police to hold someone in jail until they can be picked up by immigration. Liberals were complicit too. As Grandin notes, Bill Clinton played a key role, signing a number of extremely punitive crime, terrorism, and immigration bills into law, which created the deportation regime that exists today.

Muslims and other immigrants from majority-Muslim countries suffered the racist expansion of immigration detention after September 11, 2001, as counterterrorism envelopedimmigration into the ballooning national security apparatus. And, as with the incarceration of U.S. citizens, black migrants have been disproportionately impacted by the shift to crimmigration, as scholars call it more likely to be detained for a crime, and more likely to be removed.

Considering the recent explosion in immigration detention, Hernndez explores federal contracts with local law enforcement and private prison companies. He looks not just at U.S. Immigration and Customs Enforcement but also the U.S. Marshals Service, which holds some 60,000 people a day in pre-trial detention, making deals with state and local jails around the country (the deaths of immigrants in Marshals custody were recently investigated by Seth Freed Wessler for Mother Jones). Again, the degree to which immigration offenses dominate the criminal justice system is stark in 2013, marshals detained 97,982 people on immigration crimes, compared with 28,323 drug defendants. The Office of Refugee Resettlement, under the Department of Health and Human Services, had 49,000 children in custody in 2018, in shelters that range in comforts offered but which are all tightly controlled. Whatever agency officially holds them, Hernndez argues, to the migrants who are under constant surveillance and whose liberty has been denied there is little difference.

Detention is also used with the idea that it will dissuade people from coming. Although Hernndez points out this is legally suspect detention of asylum-seekers and people accused of other non-criminal immigration offenses is not supposed to be a punishment multiple administrations have invoked deterrence as a reason to keep people locked up.

U.S. Border Patrol agents detainpeople caught near a section of privately built border wall under construction on Dec. 11, 2019, near Mission, Texas.

Photo: John Moore/Getty Images

Trying to separate immigrants who deserve imprisonment and those who dont, distinguishing between shelters and detention centers and jails, obscures the workings of the whole system, Hernndez says, which is designed to punish people for nothing more than being born in the wrong place. Migrants are expected to live out the exceptionalism that U.S. citizens imagine in themselves, he writes. The legal immigration system rewards wealth, education, and family connections, while the immigration enforcement system has no tolerance for human error.

Daniel Denvirs forthcoming book, All-American Nativism: How the Bipartisan War on Immigrants Explains Politics as We Know It, complements Hernndezs by focusing on political history. He, too, traces the development of anti-immigrant sentiments and policies alongside anti-black ones, arguing that resistance to desegregation, a white identity politics of racial grievance, mass incarceration, the war on terror: all were dedicated to a quixotic mission to keep dangerous others from crossing U.S. borders and to restrict the free movement of those inside them.

Democrats likewise fell into the trap of demonizing illegal immigrants and criminal aliens, believing that by doing so they could protect legal immigration from hard-right restrictionists and defend themselves from soft-on-crime accusations (just as theyd attempted to do by jumping on the war-on-drugs bandwagon).

Image: Courtesy of Verso Books

The bipartisan embrace of immigration enforcement, Denvir argues, was the product of the elusive quest for so-called comprehensive immigration reform, which would combine a path to legalization for people already in the country with the liberalization of legal immigration goals sought by immigrant rights groups and big business alike. In order to get it, Democrats andsome Republicans, from Clinton through Bush and Obama, tried to appease nativists with promises of border security, miles of fencing, massive increases in the Border Patrol, and surveillance systems befitting a war zone. Each time, however, the nativists were not, in fact, appeased, crying amnesty and sabotaging the prospect of reform. The long-term advantage, of focusing on enforcement, Denvir writes, would accrue to the Right, which was better positioned to link the immigrant threat to crime, welfare, black people and terrorism. Trumps attempt to demand funding for his pet wall in order to save the Deferred Action for Childhood Arrivals, or DACA, program last year, was a repeat of the same pattern. In the end, Trump plowed ahead with construction (literally, through delicate desert ecosystems), and DACAs fate remains unsettled.

Over time, the left flank of immigration activism has grown wary of both comprehensive immigration reform (finding those reforms incremental) and the attempt to distinguish good immigrants from bad ones. As Denvir notes, lots of good immigrants were being deported too. And how bad were the bad ones, given the vast number of individuals convicted of crimes in the carceral state?

Hernndez ends his book with the case for abolishing immigration detention, while admitting that few people have a specific vision for how to do it. Denvir ends with an analysis of an electorate that might be willing to try. As he puts it, record deportations and a radicalizing racist right has triggered a revolt among the Democratic Partys increasingly young and diverse base, and Democrats under Trump have become staunchly pro-immigrant and more hostile to enforcement. Hernndez also decides to see Trumps hostility to immigrants not just as horror but also as opportunity. Has the bipartisan consensus of immigration is a problem that needs fixing finally broken? Will Trumps nativist wish list of anti-immigrant, anti-refugee policies permanently shift Democrats away from their position that enforcement is always necessary?

Decriminalization of entry and reentry is a start, as Denvir and Hernndez advocate (among the remaining Democratic presidential candidates, Bernie Sanders, Elizabeth Warren, Pete Buttigieg, Cory Booker, and Andrew Yang have said they agree). Denvir also calls for downsizing the Border Patrol, destroying existing physical barriers, breaking up agreements between ICE and local law enforcement, and increasing opportunities for legal immigration, especially from Central America and Mexico. Hernndez urges, on a personal and institutional level, divestment from private prison companies. Eliminating cash bailand giving every migrant the right to a lawyer would drastically increase their odds of success, as would case management offering help with housing and legal assistance.

These types of measures might actually lead to better compliance with immigration law, satisfying the obsession with people migrating the right way. But they would not offer concessions to a nativist right that wants any and all nonwhite immigration restricted, and they would have to resist the scare tactics bent on tying immigrants to crime and the rhetoric of scarcity that will inevitably accompany an economic downturn and worsening climate conditions. The court cases challenging the most horrendous aspects of confinement in immigrant detention centers are important. But if radical changes come, Hernndez writes, it wont be because the law demands it. It will be because people demand it.

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Can Immigration Detention Be Abolished? - The Intercept

Congressman Fred Upton is hoping legislation intended to ease the labor shortage faced by farmers each year could eventually lead to immigration reform. He tells WSJM News the House this month passed his Farm Workforce Modernization Act. It establishes a program that enables migrant farm workers to get legal status in the U.S. if they commit to five years of farm work and pass background checks.

And if they complete that five years, theyre able to go and become a citizen, they go to the end of the line, but thats an option for them if they choose later on, Upton said.

Upton says migrant workers are desperately needed by farmers.

A good number of our growers have lost hundreds of thousands of dollars almost every growing season because they did not have the workforce, the migrant labor that we need.

Upton says he hears from southwest Michigan farmers all of the time about the issue. He tells us the large approval margin received by the legislation in the House could hopefully get it some attention in the Senate, leading to final passage.

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Legislation Would Create Incentive For Migrant Farm Workers - News/Talk 94.9 WSJM

Teenager Greta Thunberg and countless other Gen-Zers are leading the way in the causes they care about.

Hundreds of people, mainly students, attend the speech by the young Swedish activist Greta Thunberg ... [+] during the ''Friday for the future'' event against climate change, in Piazza Castello on December 13 in Turin, Italy. (Photo by Massimiliano Ferraro/NurPhoto via Getty Images)

They may be kids, but Generation-Z is rocking the world with their activism around gun control, immigration reform, and other causes. Now, 16-year-oldGreta Thunberg of Sweden is the youngest individual ever named Times 2019 Person of the Yearan earthshaking nod to her worldwide climate-change youth movement.

With a do-or-die dedication to her mission, Thunberg is not aloneamong her generation. She hasinspired hundreds of thousands of young people toparticipate in climate strikes, demonstrably influencingworld leaderslike noone before themin their call for transformative and urgent change.

Whether you support Thunbergs views and tactics or not, theres nodenying that she and her Gen-Z peersare a force to be reckoned with. Theyrenottryingto change the world; theyrealready doing it and, inmany cases, theyre leading the way. Here arethree key reasons why.

Bottom line: dont underestimate Generation-Z and the passionate commitment they bring to the problems our world faces. They are prepared to stand up for what they believe in, regardless of the cost. And meeting these global-scale challenges head on, as Thunberg and her generation are already doing, will call out every ounce of their tremendous potential.

Originally posted here:
Gen Z Is Already Changing The World. Just Ask Times 2019 Person Of The Year - Forbes

We cant reckon with the extreme inequalities and inherent injustices of immigration policy without an analysis of how borders, the state and capitalism function to create them.

Current liberal immigration news is often centered on reducing current harm resisting Trumps border wall and expansion of concentration camps, advocating for immigration reform and countering attacks on the asylum process. All of these efforts are critical to preventing more unnecessary death and suffering and should not be dismissed. We need more of them.

However, if we truly want to live in a world that is equal, just and inclusive to all, a more honest conversation is required about the politics of borders and migration.

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In order to understand immigration policy, it is important to acknowledge that we live in a world of global apartheid propped up by borders and nation states that exist to protect capital and territory, and restrict mobility. Border militarization is necessary in global capitalism in order to maintain a system of resource and labor exploitation that persists among nations, particularly in the NorthSouth Divide.

Nandita Sharma a professor of sociology at the University of Hawaii in Mnoa and an activist in feminist, anti-racist, anti-capitalist, and the autonomous worldwide No Borders movement told Truthout: Every immigration policy is designed to exclude. You can fine-tune it but at the end of the day, who are we to decide who gets to move and who doesnt get to move who gets to live and who gets to die?

Immigration policies will never be just or fair. Lets break it down.

For almost a century after the Declaration of Independence was signed, the United States had open borders. Restrictive immigration laws did not exist in the U.S. until 1875 when the Page Act was signed, which primarily targeted unfree Chinese laborers, or coolies, and women brought for lewd and immoral purposes.

The Page Act was a precursor to the Chinese Exclusion Act of 1882, which dramatically shifted immigration policy and laid the foundation for more restrictive mobility laws, and the U.S. grew into the contemporary nation state we know today.

There is a debate on what is meant by the nation state and when it emerged historically, but all states want to control peoples mobility, Sharma told Truthout. Nation states control mobility by preventing people from entering. They tend to be less concerned with people leaving.

The border controls migration materially and in our mind. It exists in one place and yet, the border is everywhere and is constantly shifting, said Marisa Holmes an activist filmmaker, graduate student at Rutgers University, and organizer with the Metropolitan Anarchist Coordinating Council (MACC) in New York City in an interview with Truthout. In other words, the border is pervasive, making its way into everyday life even well within the confines of the country: It exists at Border Patrol checkpoints, as agents on New York busses, ICE raids in Mississippi, migrant detention facilities in Philadelphia.

Alejandra Pablos an immigrant rights and reproductive justice organizer and a member of the migrant justice group Mijente told Truthout that in Arizona, its super militarized.

Theres always police, added Pablos, who has been in deportation proceedings since 2011. Theres always check points. Theres always soldiers.

With her Mexican passport, a paper that lets you cross borders, Pablos said she can travel easily into Mexico from Arizona, but she can just never come back again to this side of the wall.

According to Roberto Lovato, a writer and journalist working out of the San Francisco Writers Grotto who has worked or reported on Central American refugee issues for almost 30 years, the border is an illusion, a deadly, murderous, memory-destroying thing.

To create a border, states have to destroy the memory of what came before it.

Many of the memories destroyed by borders have to do with connection. Borders separate and rank people, helping to create and solidify hierarchies of identity. The creation of identities is woven into the fabric of national laws and ideology, and those laws and ideologies reinforce which identities belong (white, male, heterosexual, Christian), and which do not.

Nationalism is an ideology that legitimizes the idea of the nation and organizes a political community on that basis, said Sharma.

Whiteness is a sociopolitical construct, an American lie, as James Baldwin called it, that was created because of the necessity of denying the Black presence, and justifying the Black subjugation.

It is in The Naturalization Act of 1790, which stated that any alien, being a free white person, could apply for citizenship as long as they lived in the U.S. for two years and in the state where they filed for at least one year.

Whiteness has evolved in the U.S. over time and is inextricably attached to power and labor. It was essentially an adjective for the ruling class, said Sharma.

Whiteness, nationalism and immigration controls are systems of exclusion and hierarchy that the ruling class uses to maintain power. Solidarity among workers is fractured both within the state and across borders, as people imagine themselves to be divided by races and nations.

It is a strategy to dupe this part of the working class into thinking they were something other than working class people, Sharma added. That portion [which] imagines themselves as white continually falls for it over and over again.

Leftist migration scholars and activists point to two common misconceptions of the border. The first is that a wall, borders, or even the entire Department of Homeland Security can stop people from migrating when they need to move. All evidence and studies on this show that tougher immigration policies do not deter people from migrating.

The second, perhaps bigger fallacy according to Sharma, is believing that immigration controls are meant to stop people from entering. Theyre designed to weaken them once they get in, said Sharma. The whole system from start to finish is one that makes money off of all of this misery.

Billions have been spent on border enforcement, migrant detention and surveillance. From detention camp contractors like CoreCivic and the GEO Group to tech companies like Amazon, Microsoft and Dell, and data-mining companies such as Palantir, who all contract with U.S. Immigration and Customs Enforcement (ICE), to the staffing of nearly 20,000 Border Patrol agents whose salaries start just above $55,000, to the private prison firms who lobby Republicans, the list of who profits from migration policing and surveillance goes on and on.

For Pablos, borders and capitalism go hand in hand. Were reproducing global mass displacement through our capitalism, said Pablos, who spoke about how the North American Free Trade Agreement (NAFTA) fueled migration. Meanwhile, the criminalization of migrants ensures that at the same time, capitalism thrives.

Capitalists also profit off of those who make it across the border. When you have 11 million people with no legal status, who risked their lives to get here, who spent their life savings or went into debt in the process, you create a labor pool that is vulnerable, cheap and exploitable.

Trump himself has historically benefitted from undocumented labor and even admitted this is a common hiring practice among employers as a way that people did business.

A cutoff of undocumented labor could well cause a recession and lead the economy to contract.

Entire sectors of the American economy would effectively cease to exist were it not for undocumented immigrants, Sharma said.

Transcending borders and nation states is a revolutionary project. The institutions that sustain them will not be taken down by politicians in our current political system, no matter how progressive that person may be, although the most left candidate might create the political conditions to expand our horizons in terms of challenging borders, according to Sharma.

Like any revolutions in our past, dismantling these systems would require massive mobilization, direct action, organizing, political education, and drastic shifts in consciousness across all borders.

When I talk about abolition, Im talking a lot about creation, Pablos said. Organizers like myself do have that new vision, and were ready to have these conversations. And again, if people created the structures, we can create new things. We can create new values, new principles.

Note: Both Roberto Lovato and Nandita Sharma have books that will be released in 2020. Lovatos reported memoir about the Salvadoran diaspora will be released in the fall. Sharmas Home Rule: National Sovereignty and the Separation of Natives and Migrants will be released by Duke University Press in February.

This story was produced with support from the Freedomways Reporting Project, a fellowship program for journalists in the U.S. South whose reporting advances justice.

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We Can't Obtain Immigration Justice in a World of Borders and Nations - Truthout

Practical obstacles to implementing policy illustrate how agencies assess their own constitutional authority.

Since 2017, the Trump Administrations successive executive orders and administrative actions have relentlessly assaulted the asylum process, dismantled foundational refugee protections, and distorted the immigration admissions system. A new administration must address the damage inflicted on individuals, institutions, and the rule of law. Because legislation is only a remote possibility, reversing recent policies and restoring a semblance of integrity will depend on decisive and effective executive actions

This essay offers personal reflections on some of the bureaucratic barriers to achieving change that a new administration must anticipateregardless of whether its most immediate efforts are merely restorative to return to the 2016 status quo ante or more ambitiously reformative to pursue new normative immigration policies. Although the threshold challenge for an administration is to determine its policies and priorities, the key to actually achieving meaningful reform will depend on the harder task of overcoming bureaucratic inertia and implementing new policies. That will be even more difficult than usual because of the norm-breaking practices of the current administration and the whiplash effect of reversing recently adopted measures.

I write based on my experience as a political appointee in the Obama Administration during the adoption of a series of immigration reform measures in 2014. For two years, I participated in the development and implementation of many of those reforms and in the day-to-day operation of the immigration adjudication apparatus as senior counselor to the Director of U.S. Citizenship and Immigration Services (USCIS) and then as the senior immigration counselor to the Secretary of Homeland Security. My background is atypical for someone in these positions. I spent most of my career litigating cases against federal immigration agencies as the founder and director of the ACLU Immigrants Rights Project, and I had neither the benefit nor the encumbrance of any prior executive branch experience. My discussion reflects on my experiences and elaborates on some of the real-world hurdles to implementing policy pronouncements, such as bureaucratic inertia, resistance to delegating discretion, cumbersome internal legal and policy processes, and the U.S. Department of Justices review of agency action.

Preference for Stasis. One embedded bureaucratic instinct I encountered firsthand is the well-known resistance to change, or perhaps more accurately preference for stasis. Although this might be explained by adherence to predictability, I experienced it as driven more by the entrenchment of the status quo independent of any purported normative valuesat least when the proposed changes were designed to move in a more immigrant-friendly direction.

An especially revealing experience arose from efforts to modify a categorical disqualifying factor in the adjudication of certain immigration benefits. The goal was to dial back just slightly a new ground for disqualification and to authorize adjudicators to exercise case-by-case discretion based on individual circumstances. After considerable intra-departmental discussion, I presented a proposed consensus approach to senior career managers. To my surprise, they opposed the change despite their earlier reported opposition to adopting the disqualification in the first place. I asked if they had supported the bar that we now proposed softening, thinking navely that confronting them with their own earlier views might diminish their current opposition. But that was not the case. Oh no, said one. Instead, the rule was wrong to begin with and a big mistake when it was adopted. But now that its the rule, we dont want to change it.

The preference for the status quo could be motivated by the burden of implementing changes, the risk of never-settled policy, the instinct that future cases should not be treated differently than those already completed, a general opposition to expansion of discretion, and perhaps a shift in normative preferences. But whatever the reason, a new administration intending to reverse recent policies must anticipate substantial bureaucratic resistance to abandoning any entrenched practices, no matter how recently adopted, and even if the career civil servants themselves strongly objected to adoption of the recent policies in the first place.

Resistance to Broad Discretion. A second experience was the bureaucratic resistance to conferring discretionary authority on adjudicators. This phenomenon arose in the context of trying to ameliorate some of the especially harsh consequences of particular immigration provisions where the law conferred greater discretionary authority than was being exercised, and some of us at USCIS sought to expand it.

Contrary to my expectations, I discovered a general opposition from many senior career public servants to expanding the authority of adjudicators to exercise discretion. The managers resisted because they viewed discretion as inviting arbitrary and inconsistent outcomes. Like cases should have like results, they insisted. If individual adjudicators were vested with substantial discretion, then similarly situated individuals would receive different results. Although not expressly framed in constitutional values, the resistance seemed rooted in the due process norms of equality, fairness, and consistency. Invoking the related value of transparency, career managers also explained that outcomes should appear legitimate to the applicant and to the public and thus should be based on identifiable criteria that cash out similarly in similar circumstances.

Yet interestingly, these due process-like concerns for limiting discretion did not seem to generate support for other fairness-enhancing improvements to the adjudication process, such as greater in-person applicant participation, a more active role for counsel, or increased explanation of outcomes. Some reforms of this type might, of course, impose costs that do not arise when restricting the exercise of discretion. But it is noteworthy nonetheless that asserting a fairness norm in one setting did not translate into concern for improved procedures across the board.

Another reason for resisting broader discretionary authority that was less explicit but that I strongly sensed is what political scientist Christopher Hood has called the blame game. Civil servants understandably fear they will be blamedby the public, the media, agency leadership, or their immediate superiorsif favorable exercises of discretion later lead to negative publicity or outcomes. Restricting discretion or choosing to exercise it negatively avoids that risk of blame. The goal of blame avoidance leads to an obvious asymmetry whereby negative decisions denying benefits or relief are safer than granting relief, especially in the immigration context where the subjects of government action are nearly invisible and powerless andunlike powerful regulated industriesrarely able to impose any consequences or costs on an agency that takes negative action.

In a related manifestation of the blame game, it appeared to me that career civil servants were also likely to view with skepticism or suspicion political leaders who sought to delegate discretionary authority to career employees. Such delegation was perceived not as an expression of confidence in the career bureaucrats but as a tactic by senior leaders to deflect accountability or to avoid blame if a decision later became controversial or turned out badly.

The resistance to conferring discretion led to a bureaucratic insistence on rules over standards, for bright lines over multi-factor tests, and for clear guidelines and prescriptive instructions governing any exercises of discretion. In my experience, when such direction is not articulated in some formal policy, the pressure for clarity shifts downstream to insistence on greater specificity in training materials, operating instructions, internal FAQs, or similar, less visible directives. But that, in turn, leads to diminished transparency if lower-level instructions are less subject to public disclosure. In any case, expanding individual discretion as a mechanism for injecting greater flexibility into harsh substantive provisions or prohibitions will encounter bureaucratic resistance.

The Review and Approval Process. The agencys deliberation and approval process is a further hurdle to overcome. One aspect, especially relevant to issues of administrative constitutionalism, is how agencies assess their own legal and constitutional authority.

At the U.S. Department of Homeland Security (DHS), primary responsibility for legal analysis lies with the chief counsel of the respective agencies who manage hundreds of career lawyers and report to the DHS Office of the General Counsel. Agency counsel and their staff decide in the first instance whether a proposed policy is legally authorized, requires formal rulemaking, meets constitutional criteria, and satisfies other legal requirements.

As part of that internal review processwhether for drafting proposed regulations, policy memos, field guidance, or new training materialsworking groups are composed of subject matter experts, operational representatives, members of the policy department, specialist lawyers from counsels offices, perhaps representatives of the agencys political leadership, and any other unit that has equities in the policy. The members work together over considerable time to craft and review draft documents until rough consensus is reached. Logjams are broken by elevating disagreements to more senior career managers or to the political leadership of an agency. This process is enormously time-consuming and subject to foot-dragging if any of the participating members raise objections or insist on consulting more widely. In my experience, the processthough working largely as intended to build consensuswas agonizingly slow and open to interminable delay and potential manipulation by those who opposed change.

Moreover, if a significant legal objection arises during this process, the issue must be resolved for the working group to continue, either by satisfying the lawyer who raised it or by elevating the issue through the legal chain of command. Very occasionally, in matters of great importance and where competing persuasive views among senior lawyers or advisors exist, DHS leadership might adjudicate the issue to make a policy choice after considering a range of legal advice. Although the General Counsels Office receives great deference, during my tenure the leadership of DHS was itself composed of enormously accomplished lawyers who actively engaged with legal issues, invited detailed presentations and debate, and exercised judgment to resolve divergent views.

The Department of Justice. The Justice Department plays a prominent role in assessing the legality of potential policies, most formally through the Office of Legal Counsel (OLC). The OLC process was striking to me because of the absence of a mechanism akin to the intense adversarial briefing and argument that I was accustomed to in litigation. During my time, I observed OLC publish a major opinion on the legality of the Obama Administrations Deferred Action for Parents of Americans initiative. The OLC process seemed intensely insular indeed what I would call bureaucratically monasticin that OLC considered and resolved legal questions through its own internal analysis and deliberations. Although expertise may be invited by soliciting the views of agency counsel, there appeared to be no institutional mechanism by which differing views from outside OLC could be openly presented, interrogated, and tested against each other.

The OLC process seems especially risky when dealing with a statute like the massively complex and convoluted Immigration and Nationality Act where the OLC approach is in danger of omitting or overlooking important perspectives and insights. OLCs role as the quasi-adjudicator of legal questions would be enhanced if its procedures recognizedas judges understandthat the crucible of adversarial testing is crucial to sound judicial decision-making and will yield insights (or reveal pitfalls) we cannot muster guided only by our own lights.

Lastly, the Justice Department may assess the litigation risk that a new policy could present. But doing so reinforces a status quo bias. Although assessing potential exposure to lawsuits is valuable, litigation risk is not the same as legal impermissibility. A judgment as to whether a policy might reasonably face some legal challenge should not be conflated with the range of permissible agency actions under the law. Otherwise, risk-averse assessments will preemptively constrain lawful agency initiatives.

A new administration can powerfully address the damage done to immigrants, the immigration system, and the rule of law since January 2017 by acting decisively and strategically. But effective implementation of change requires overcoming entrenched policies, anticipating bureaucratic realities, enlisting dedicated career civil servants, and streamlining baroque review processes. Appreciating these institutional realities is essential to overcoming them and to achieving reform when the opportunity comes.

Lucas Guttentag is the Martin R. Flug Lecturer in Law and Senior Research Scholar in Law at Yale Law School and Professor of the Practice of Law at Stanford Law School.

Lucas Guttentag is grateful for the encouragement and advice of Nicholas Parrillo and the excellent research assistance of Arjun Mody.

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Reflections on Bureaucratic Barriers to Immigration Reform - The Regulatory Review