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Law Without Recognition: the Lack of Judicial Discretion to Consider Individual Lives and Legal Equities in United States Immigration Law

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Law Without Recognition: the Lack of Judicial Discretion to Consider Individual Lives and Legal Equities in United States Immigration Law City University of New York (CUNY) CUNY Academic Works All Dissertations, Theses, and Capstone Projects Dissertations, Theses, and Capstone Projects 10-2014 Law Without Recognition: The Lack of Judicial Discretion to Consider Individual Lives and Legal Equities in United States Immigration Law John Clark Salyer Graduate Center, City University of New York How does access to this work benefit ou?y Let us know! More information about this work at: https://academicworks.cuny.edu/gc_etds/377 Discover additional works at: https://academicworks.cuny.edu This work is made publicly available by the City University of New York (CUNY). Contact: [email protected] LAW WITHOUT RECOGNITION: THE LACK OF JUDICIAL DISCRETION TO CONSIDER INDIVIDUAL LIVES AND LEGAL EQUITIES IN UNITED STATES IMMIGRATION LAW. by JOHN CLARK SALYER IV A dissertation submitted to the Graduate Faculty in Anthropology in partial fulfillment of the requirements for the degree of Doctor of Philosophy, The City University of New York 2014 © 2014 JOHN CLARK SALYER IV All Rights Reserved ii This manuscript has been read and accepted for the Graduate Faculty in Anthropology in satisfaction of the dissertation requirement for the degree of Doctor of Philosophy. Dr. Michael Blim_________ ____________ _____________________________________ Date Chair of the Examining Committee Dr. Gerald Creed__________ ____________ _____________________________________ Date Executive Officer Dr. Michael Blim__________ Dr. Donald Robotham______ Dr. Glenn Petersen_________ Supervisory Committee THE CITY UNIVERSITY OF NEW YORK iii Abstract Law Without Recognition: The Lack of Judicial Discretion to Consider Individual Lives and Legal Equities in United States Immigration Law. by John Clark Salyer IV Advisor: Michael Blim Law is not separate and apart from society but exists as a unique institution within society both being directed by social change and affecting social change. The history of U.S. immigration law shows that immigrants were welcomed or rejected depending on economic, political, and social factors (such as racial attitudes) and the legal definitions of what sorts of immigration were permissible or excludable differed over time. Since the 1990s, hostile attitudes towards certain immigrants have been represented in laws to a greater and greater extent, most significantly with the 1996 amendments to the Immigration and Nationality Act. As a result of these laws, immigration judges often have no discretion to consider personal circumstances and equities of the individuals who come before them. The effects of these laws have resulted in greater numbers of individuals being detained and deported and a significant increase in the militarization of the border. In this work, I examine the workings of the immigration law enforcement system in New York City, including government agencies and immigration courts, from the perspective of the immigration lawyers who advocate on behalf of migrants within that system. Drawing on the experience and expertise of these lawyers, as well as my own participant observation experience as an immigration lawyer at a community based organization, I demonstrate the limitations of the current immigration law system to consider the various historical, economic, political, social, and iv personal factors of migrants; demonstrate where these sorts of considerations may be possible; and demonstrate the need for immigration law to be better able to consider and attend to these individual factors and equities. Additionally, this work demonstrates that consideration of the complexity of specific immigration statutes, regulations, and practices provides a clearer understanding of the limitations and possibilities in U.S. immigration law. v Acknowledgements While I owe a number of debts of gratitude to individuals at the Graduate Center, chief among them is the debt I owe to the members of my committee: Michael Blim, Donald Robotham, and Glenn Peterson. I owe a special thanks to my outside reader, Marco Jacquemet of the University of San Francisco, for his careful reading and thoughtful comments, which he generously provided on unreasonably short notice. In particular, I owe a debt of appreciation to my dissertation Chair, Michael Blim, who patiently provided me with advice, direction, encouragement, and friendship throughout this entire process. Additionally, I express my thanks to Shirley Lindenbaum who served on my second exam committee and was a reliable source of advice and encouragement during the early part of my studies at the Graduate Center. I also owe a special debt to Ellen DeRiso, for her unfailing skill at navigating all things Graduate Center. Finally, I owe thanks to Neil Smith, without whom I probably would not have attended the Graduate Center. Neil was always supportive and encouraging both when I first spoke to him about the possibly going to graduate school and later in the numerous courses I took with him. I also owe a debt of gratitude to the immigration lawyers who took time to speak with me as part of this study and to the numerous lawyers who have assisted me in better understanding immigration law both as a researcher and as an immigration attorney. Deserving special mention is Nancy Morawetz of the New York University Law School Advanced Immigrants Rights Clinic for her generosity of time and her scope of knowledge and insight. I also want to thank everyone at the Arab American Family Support Center (“AAFSC”), where I am the immigration law clinic’s staff attorney. I am particularly indebted Hizam Wahib without whose assistance I could not do my job and without whose humor and friendship I would not want to. I would also vi like to express my thanks to the hundreds of clients I have represented at AAFSC for their trust and for sharing their experiences. There are also a number of individuals in my more distant past without whom I would never have considered myself able to conduct academic work in any serious way. John Brauer, who was my grade school teacher for eight years, allowed me to realize whatever modest potential I had thorough his patient, good humored, and persistent efforts. I am sure that with a less engaged and committed teacher I would still be struggling to read at a fifth grade level much less be able to complete a dissertation. Similarly, I owe debts to David Halley and Mark Williams at the University of Georgia, Department of Anthropology, both of whom provided me with numerous opportunities while an undergraduate and showed considerable more faith in my abilities and level of responsibility than I reasonably deserved. Also, while an undergraduate at the University of Georgia, I was introduced to graduate level work in the best way possible, by being befriended by the greatest cohort of graduate students to have ever existed. In particular, Adam King, Keith Stephenson, Jennifer Harris, Guy Harris, Robbie Ethridge, Paige West, and Sammy Smith along with her husband John Burns, showed me boundless friendship and kindness. Of course, I owe more of a debt to my parents, sister, and family then I could ever hope to enumerate. Particularly, I want to thank my mother, Pat Wadsworth, for being a consistent example of an engaged and empathetic person. I would also like to thank Pat West for her friendship, support, and expert cat sitting services. Additionally, Colleen and Ed Bongiovanni have provided support, kindness, and humor in good times and bad. I would also like to thank Silke Aisenbrey, Debra Minkoff, and Noah Aisenbrey-Minkoff for essentially being my family in New York City. vii One of the most famous expressions of gratitude is Yogi Berra saying, "I want to thank you for making this day necessary" to the fans on Yogi Berra Day in 1947. In my case there was absolutely nothing necessary about returning to graduate school, pursuing this research, and completing this dissertation. I was already a practicing lawyer with a satisfying position as a staff attorney with the American Civil Liberties Union and quitting my job to go back to school was certainly not a conventional – or wise – career decision. My motivation stemmed from a dawning realization that the purpose of life was to explore the world and satisfy one’s curiosity during the limited time we have on this spectacular plant. For this realization, I must credit my best friend and wife, Paige West, who has shown me what is important in life clearer than anyone else I know. viii Table of Contents Abstract iv Acknowledgements vi Table of Contents ix List of Tables and Illustrations x Chapter 1. The Complexity of U.S. Immigration Law and Deportation 1 Chapter 2. A Social History of the Development of U.S. Immigration Law 42 Chapter 3. Law without Recognition: Excluded Equities and Judges without Discretion 100 Chapter 4. The Role of Lawyers and Judges in U.S. Immigration Law 133 Chapter 5. The Limitations and Possibilities of U.S. Immigration Law 164 Appendix 185 Bibliography 187 ix List of Tables and Illustrations Figure 1: “Close the Gate,” a political cartoon from 1919 67 Table 1: Number of Deportations from 1996 to 2012 92 x Chapter 1 The Complexity of U.S. Immigration Law and Deportation Introduction If you were sitting in a county jail somewhere in New Jersey the night before you were to be transported to immigration court in New York City to go before a judge to have your fate decided, what would you want to tell that judge? You might want to explain that you grew up in a rural area of Mexico and left for the United States when the land your family had access to could no longer support your parents and siblings and that you have been working for years in the United States to send money home to support your family. You might want to explain that since coming to the United States, you have gotten married and had children of your own, who are U.S.
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