Excerpted From: Jennifer J. Lee, Immigration Disobedience, 111 California Law Review 71 (February, 2023) (380 Footnotes) (Full Document)


jenniferleeThis Article broadly examines a phenomenon I term “immigration disobedience.” Immigration disobedience involves defiant acts such as blockading streets to abolish ICE, hunger striking for release from civil immigration detention, or defying deportation orders by seeking church sanctuary. These acts expose an unjust system that operates through the looming threat of the arrest, detention, and removal of immigrants from the United States. As a result, immigration disobedience has fundamentally changed the policy possibilities for immigration reform.

Systematically reviewing hundreds of events from 2010 through 2020 reveals a distinct phenomenon within the movement for immigrant rights. Acts of immigration disobedience fall broadly into three categories: direct action, deportation resistance, and hunger strikes. A diverse set of activists engage in such acts, including undocumented immigrants, immigrants with lawful status, and native-born citizens across different regions of the United States. Under the Obama administration, immigrants used direct actions, often by physically interfering with ICE's enforcement machinery. In response to the Trump administration's aggressive immigration enforcement program, an increasing number of native-born citizens stepped in to engage in direct actions, while a record number of immigrants defied deportation in churches. Under both administrations, immigrants in detention engaged in hunger strikes, with a marked increase of such strikes in 2015, and again from 2019 to 2020. Although disobedience tactics and actors can shift in response to changing political contexts, activists have consistently shared this impulse to act outside the law.

Immigration disobedience consists of a new approach to resistance. The government normally maintains its power over immigrants through tacit obedience to the current immigration system. Through direct action, deportation resistance, and hunger strikes, immigrants demonstrate their collective power to publicly challenge the government. Such acts provide immigrants with the opportunity to operate as noncitizen political agents who lead the movement for immigrant rights. Immigration disobedience prioritizes immigrant voices, control, and leadership based on the principle that immigrants have a more intimate and sophisticated understanding of the immigration system's injustice.

Further, activists use immigration disobedience to create new spaces of contestation. Such spaces are a way to counteract immigrants' exclusion from existing political processes that regularly determine immigration policy. Instead, activists claim alternative spaces that bypass traditional institutional channels--whether it be on the streets, inside of sanctuary churches, or in detention centers--to publicize the human costs of the immigration system.

Consequently, immigration disobedience proposes a new and more radical agenda for reform that seeks to overhaul the existing immigration system. With the opportunity for leadership and the space to voice their own demands, immigrants can have more personal, creative, and radical ideas about the law's dysfunction. In response to the human suffering within their communities, they aim to move the agenda beyond the constraints of existing rights or citizenship. While the agenda may sometimes include more immediate and personal demands, it simultaneously calls into question the legitimacy of state violence by ICE. The long-term and broader agenda involves critiquing the racial and economic inequality of the immigration system. Activists recognize the harms caused by solely focusing on obtaining citizenship for “desirable” immigrants and pursuing procedural “improvements” that keep intact a system of surveillance and incarceration. Instead, immigration disobedience's agenda conceives of an altogether different kind of immigration system that redefines citizenship, ends the use of carceral facilities, and abolishes surveillance of immigrant communities.

This Article contributes to the growing movement law literature about how everyday people in social movements impact the possibilities for transforming unjust legal systems. Critical race theory scholars have long identified how “[t]he method of looking to the bottom can lead to concepts of law radically different from those generated at the top.” More recently, Amna Akbar, Allegra McLeod, and Jocelyn Simonson have examined how grassroots organizing and protest politics have helped to reshape and reimagine the criminal legal system. In particular, they contrast the powerful critique emerging from various social movements with the narrow ways in which the mainstay of legal scholarship often envisions reform. Instead, everyday people are shifting the existing discourse about legal reform.

Focusing on immigration disobedience, this Article adds to the scholarly conversation about considering immigration reform in more creative and revolutionary ways. Within the immigrant rights realm, some scholars have examined how social movements have helped to reshape the conversation about the immigration system by pushing beyond the limitations of citizenship or seeking the abolition of surveillance or deportation. Much of the immigration literature about legal reform, however, has focused on local sanctuary policies that involve the lawful disruption of the federal immigration system.

Yet immigration disobedience is worth examining as a distinct phenomenon over the past decade. As with some past and contemporary examples of civil disobedience, immigration disobedience is a public, non-violent project of collective self-determination that operates outside of the established system to challenge existing democratic institutions. Today's phenomenon, however, departs from the past history of resistance to the immigration system. The overall phenomenon is more frequent and varied in terms of its tactics and participants. Further, immigrants themselves tend to be the protagonists of such events, even when they collaborate with native-born citizens. Rather than advocate within the existing immigration system for certain immigrant subgroups, the end goal of immigration disobedience today is to challenge the fundamental operation of ICE's enforcement machinery.

This countervailing trend for transformative solutions has ultimately contributed to a foundational shift in immigration advocacy. It has helped to create a new range of policy possibilities that have moved the baseline of political demands immigrant rights movements are making under the Biden administration. Instead of requesting the legalization of certain immigrant subgroups, a decade of activism has altered the legal reform landscape to broaden legalization for all undocumented immigrants, end immigration detention, and abolish ICE. It recognizes the proclivity of the federal government to keep ICE's enforcement machinery intact, regardless of who is in the White House. Immigration disobedience shares commonalities with other contemporary social movements, such as Black Lives Matter (BLM), that have similarly set a radical agenda by looking to impacted communities for solutions. Like these movements, immigration disobedience has more firmly connected the exclusion, control, and exploitation of the immigration system to the larger forces of racial and economic inequality.

The more radical policy possibilities posed by immigration disobedience, however, raise questions about political feasibility. A familiar tension exists between the more immediate and necessary co-optive process of concessions and holding out for more transformative reform. Yet this broader agenda is significant precisely because it serves as a reminder of the long-haul nature of systemic change. This more radical and creative vision, particularly given its critique of existing institutions, can begin to float into the consciousness of those who are sympathetic yet part of mainstream politics. It also serves as an important counterpoint to the more readily realized reforms that leave intact a system that continues to cause human suffering. In this way, immigration disobedience's agenda can serve as a long-term beacon in the struggle for immigrant rights.

Finally, the phenomenon of immigration disobedience points to different ways we, as lawyers and legal scholars, can work to combat the injustice of the immigration system. It teaches us how lawyers can practice law in a way that values the principles of immigration disobedience by promoting lawyering approaches that value the political agency, control, and leadership of immigrants. Further, it forces us to consider the ways in which certain seemingly sound policy choices--particularly those focused on incremental reforms or niche-openings--throw segments of the community under the bus. Finally, it compels legal scholars to think outside of “logical” legal frameworks by offering a more radical and transformative vision of reform. Immigration disobedience ultimately instructs us about the need for humility among lawyers and legal scholars working in service of the movement for immigrant rights.

This Article proceeds as follows. Part I describes the phenomenon of immigration disobedience. It explains the causes and trends while introducing the three categories of immigration disobedience. It also demonstrates how the current phenomenon, compared to past examples of immigration resistance, constitutes something distinct. Part II demonstrates how immigration disobedience amounts to a new approach to resistance by prioritizing the political agency and leadership of immigrants, claiming new resistance sites, and setting broad and radical demands. It explores how immigrants operating as noncitizen political agents outside the confines of traditional political processes enable setting a more transformative agenda for reform. Next, Part III demonstrates how this activism has resulted in a foundational shift in the policy possibilities for immigration reform. It examines how a response to systemic racial and economic inequality necessitates reconfiguring the existing institutions while grappling with the political infeasibility of transformative change. Finally, Part IV offers some brief thoughts about what we might learn, as lawyers and legal scholars, from these grassroots social movements that are operating outside of the law. An appendix details some of the overall findings related to immigration disobedience.

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We have much to learn from the phenomenon of immigration disobedience. Over the past decade, a diversity of social movement actors has engaged in a new approach to resisting the inhumanity of the immigration system. This new approach has lent itself to the setting of an agenda that seeks to redefine citizenship and dismantle ICE's enforcement machinery. It has not only altered the legal landscape but also taught us to consider the more radical policy possibilities for eradicating the structural, racial, and economic inequality created by the immigration system. As lawyers and legal scholars, it behooves us to think about the ways in which we can look outside the law to work in support of this more transformative vision for immigrants.

Associate Professor of Law, Sheller Center for Social Justice, Temple University Beasley School of Law.