Legal Limbo as Subordination: Immigrants, Caste, and the Precarity of Liminal Status in the Trump Era

Published date01 January 2021
Date01 January 2021
LEGAL LIMBO AS SUBORDINATION:
IMMIGRANTS, CASTE, AND THE PRECARITY OF
LIMINAL STATUS IN THE TRUMP ERA
NINA RABIN*
ABSTRACT
This Article describes the ways in which prolonged states of legal limbo
have grown more precarious, and thereby subordinating, under the Trump
administration. Liminal forms of status have long been a feature of U.S. im-
migration law. But under the Trump administration, legal limbo grew both in
prevalence and precarity. Due to Trump’s pursuit of an aggressive enforce-
ment agenda, the legal system has become so overwhelmed that non-detained
immigrants f‌ind themselves in protracted removal proceedings that routinely
last for years. During this time, immigrants are consigned to a marginalized
existence that harms their long-term ability to achieve social and economic
mobility and integration. In this way, legal limbo has become increasingly
tied to the creation and maintenance of a caste system in U.S. society.
This Article offers a new conceptual framework, the “spectrum of precar-
ity,” to analyze how and to what extent various types of liminal legal status in
immigration law marginalize immigrants. Application of this spectrum to the
states of limbo experienced by immigrants under the Obama and Trump
administrations reveals very different approaches and outcomes. President
Obama created liminal forms of legal status through specif‌ic policies and
programs: administrative closure and the Deferred Action for Childhood
Arrivals program (DACA). These efforts were explicitly designed to provide
immigrants with a measure of social integration, along with protection from
deportation. In contrast, immigrants in the Trump Era found themselves in
limbo due to ballooning backlogs in the over-burdened legal immigration
system. As a result, at the close of the Trump administration, immigrants with
pending visas and asylum-seekers live in a state of prolonged uncertainty and
fear that forces them into a marginalized existence in the shadows.
This state of affairs poses a challenge for removal defense attorneys of
non-detained immigrants, and calls into question the due process framework
* Director, Immigrant Family Legal Clinic, UCLA School of Law. The author wishes to thank
Jennifer Chacón, Ingrid Eagly, Blake Emerson, David Marcus, Hiroshi Motomura, Robert Rabin, and
Yemima Rabin for their feedback and comments on previous drafts of this paper. She is also grateful for
the excellent editorial assistance of the student editors of this journal. © 2021, Nina Rabin.
567
that often serves as a guiding structure for advocates in the immigration sys-
tem. Due process, with its focus on discrete legal events and its failure to pay
suff‌icient attention to the passage of time, risks causing attorneys to become
accomplices in the creation of caste. Instead, in the current dysfunctional and
disempowering legal immigration system, removal defense attorneys must
seek to counterbalance the marginalizing effects of legal limbo on their cli-
ents’ daily lives and future trajectories through multi-faceted, interdiscipli-
nary, and community-based models of lawyering.
TABLE OF CONTENTS
INTRODUCTION ......................................... 569
I. LEGAL LIMBO AND SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . 575
A. Overview .................................... 575
B. The Spectrum of Precarity........................ 577
II. CONTRASTING EXPERIENCES OF LEGAL LIMBO AND SUBORDINATION . . 580
A. The Obama Era: States of Limbo through Prosecutorial
Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 580
1. Limbo through Administrative Closure . . . . . . . . . . . 581
2. Limbo through DACA ....................... 583
B. The Trump Era: States of Limbo through Backlogs . . . . . . 585
1. Limbo for Applicants with Pending Visas . . . . . . . . . . 586
2. Limbo for Asylum-Seekers .................... 593
III. STATES OF LIMBO ON THE GROUND ....................... 600
A. Limbo through Administrative Closure: Marta......... 600
B. Limbo through DACA: Paula. . . . . . . . . . . . . . . . . . . . . . 601
C. Limbo through a Pending Visa: Pablo . . . . . . . . . . . . . . . 602
D. Limbo for Asylum-Seekers: Isabel & Mateo . . . . . . . . . . . 604
IV. LAWYERING AGAINST LIMBO: RESISTING SUBORDINATION THROUGH
HOLISTIC AND COMMUNITY-BASED REPRESENTATION . . . . . . . . . . . 606
A. From Subordination to Sanctuary: Resisting Precarity
through Policies That Promote Integration. . . . . . . . . . . . 607
568 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:567
B. From Due Process to Holistic Representation: Resisting
Precarity through Community Lawyering . . . . . . . . . . . . . 609
V. CONCLUSION: FINAL REFLECTIONS ON SUBORDINATION AND
MOBILIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
INTRODUCTION
It was March 16, 2020. Downtown Los Angeles was a ghost town. I drove
into the heart of the city in record time, easily found parking, and walked
through the eerily empty streets. It was only when I reached the federal build-
ing that houses the immigration court that I saw human beings: a line of peo-
ple, mostly of color, with a few lawyers in suits, waiting to be wanded by
security guards and permitted inside. There was no effort to keep people
spread out from one another, and no visible warning or guidance regarding
coronavirus.
Yet fear of the coronavirus had to be at the forefront of everyone’s minds
as they waited uncomfortably in line, passed through security, and rode ele-
vators to one of many courtrooms in the vast federal building that houses Los
Angeles’ non-detained immigration courts. Mayor Garcetti had declared a
local emergency on March 4; Disneyland had closed on March 12; President
Trump had declared a national emergency on March 13.
1
That same day, the
Los Angeles Unif‌ied School District, the second-largest school district in the
country, had announced it would shut down.
2
The Centers for Disease
Control issued guidelines against gatherings of f‌ifty or more people, and the
President advised against gatherings of more than ten.
3
For the unlucky immigrants with hearings scheduled for that week, how-
ever, there was no indication from the Executive Off‌ice of Immigration
Review (EOIR), the federal agency in charge of the immigration court sys-
tem, that it planned to respond to the public health crisis. As a result, the im-
migration clinic I direct had been dutifully preparing for an asylum hearing
on March 17. As the risk of attending the hearing became increasingly clear,
we decided to request a continuance. Early in the morning on March 16—
after numerous increasingly urgent calls from our clinic—the prosecuting at-
torney from Immigration and Customs Enforcement (ICE) agreed not to
oppose a continuance in light of the public health concerns raised by bringing
our clients, three law students, and several additional witnesses to court.
Unable to connect with anyone in EOIR by phone, I carefully navigated my
1. EMERGENCY ORDERS, MEMORANDUM, AND FILES RELATED TO COVID-19 (Aug. 5, 2020, 3:00
PM), https://www.lamayor.org/COVID19Orders; CALMATTERS STAFF, TIMELINE: CALIFORNIA REACTS
TO CORONAVIRUS (Apr. 1, 2020) [hereinafter California Coronavirus Timeline] https://calmatters.org/
health/coronavirus/2020/04/gavin-newsom-coronavirus-updates-timeline/ (last visited Aug. 5, 2020).
2. Id.
3. Derrick Bryson Taylor, A Timeline of the Coronavirus Pandemic, N.Y. TIMES (July 21, 2020),
https://www.nytimes.com/article/coronavirus-timeline.html.
2021] LEGAL LIMBO AS SUBORDINATION 569

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