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

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