Abstract

Excerpted From: Jayesh Rathod and Anne Schaufele, Immigraft, 2024 WILR 465 (2024) (175 Footnotes) (Full Document)

It started with a knock on the door. Standing in front of Karla was a young teenager, hardly older than a child, there to warn her that she was next if she didn't pay “rent” to the gang. Just days earlier, the same gang had bludgeoned her father to death when he refused to accede to their extortion. Karla herself simply could not pay. Lacking both family and police protection, she fled Central America to reunite with her mother in the United States. It was a costly trip, one that almost cost Karla her life when she was abandoned by her guide and stranded in the desert. With the last bar of power on her cell phone, she sent her coordinates to her mom, who called U.S. Customs and Border Protection (CBP). CBP found Karla in the desert, blistered, tired, and hungry. Although she was still a teenager, Karla was over eighteen, so CBP transferred her to an adult detention center. While detained, an immigration judge determined that she was neither a flight nor security risk and granted her a $10,000 bond. If she couldn't pay, she would stay locked up for the duration of her proceedings.

Karla's mother scraped the money together, but she could not post bond for her daughter. At the time, an immigration bond had to be posted by a U.S. citizen or a lawful permanent resident. Karla's mom identified someone she believed she could trust, a paralegal at a law firm. The paralegal, using funds provided by Karla's mom, posted the $10,000 bond and agreed to represent Karla in removal proceedings for an additional cost. After her release, Karla was scheduled for an immigration hearing at the courthouse near where she had first been detained. The paralegal, who could not appear in immigration court because she was not licensed to practice law, told Karla that because a hurricane was passing through the area, her hearing had been canceled. The hurricane was real, but the cancellation was a lie. Karla's court date proceeded without her, and the immigration judge overseeing her case ordered Karla removed in absentia. Further, because Karla had failed to appear in court--even though she had been misled by an unauthorized practitioner-- Immigration and Customs Enforcement (ICE) determined that Karla had forfeited the bond, and that the $10,000 could never be recovered.

The financial impact of the lost bond would haunt Karla and her mom for years, but the government fees continued. Karla eventually succeeded in reopening her immigration court case, secured asylum, and later filed for permanent residence with U.S. Citizenship and Immigration Services (USCIS). For asylees like Karla, USCIS charged $1,140 plus an $85 biometrics services (digital fingerprinting and photograph) fee for the application. Not long after her filing, however, USCIS notified Karla that she did not need to appear for a biometrics appointment because her fingerprints were already in the Department of Homeland Security (DHS) database. As with countless similarly situated applicants, USCIS did not refund the $85 fee. This pattern repeated itself after Karla received her green card, and she applied for a refugee travel document to visit a family member overseas. She submitted the $135 filing fee plus an unneeded (and ultimately unrefunded) $85 biometrics fee. After nearly eighteen months, USCIS granted Karla a refugee travel document valid for one year. Any additional travel before she becomes a U.S. citizen could again cost hundreds of dollars in fees.

ICE retained Karla's $10,000 immigrant bond, and applied it, as it does with all bonds it retains, to fund immigration detention beds. USCIS retained the $170 Karla paid in biometrics fees, using those funds to sustain their largely fee-driven operations. On top of these financial harms, USCIS took over eighteen months to adjudicate each of Karla's applications, and of course retained the entirety of Karla's $1,445 in filing fees. In total, Karla, an asylee, and her mom have paid the Department of Homeland Security nearly $12,000. Of these funds, the vast majority were unjustly retained by DHS.

Karla and her family were subjected to what this Essay terms immigraft. Building upon Professor Bernadette Atuahene's theory of stategraft, immigraft is defined as the unjust transfer of property from individuals to the state in the context of efforts to obtain immigration benefits or relief from the state, resulting in the enrichment of state coffers. Immigraft has two additional core features. First, the often acute need for the immigration benefit of relief renders individuals--both noncitizens and their family members--particularly susceptible to immigraft and underscores the predatory nature of the state action. Second, while clearly unjust in moral or even basic contractual terms, immigraft is often enabled by ambiguous laws and regulations that provide a veneer of legality for the state action. Underlying this latter feature is the culture of immigration exceptionalism in the U.S. legal system, which gives immigration authorities an unusually wide decisionmaking berth, unencumbered by normal judicial and constitutional constraints.

Immigraft is a particularly loathsome phenomenon because pursuit of the American dream is already costly. From the initial journey to the United States, to navigating the complicated immigration system, to labor exploitation, to scams targeting recent arrivals, immigrants pay heavily into the formal and informal sectors. But as explored in this Essay, their pay-out to smugglers, unscrupulous employers, scammers, and others does not stop there. DHS also charges and retains funds in unjustified ways, resulting in tens of millions of dollars transferred from the pockets of vulnerable immigrants and their families to the sprawling immigration bureaucracy.

Part I of this Essay provides background about Professor Atuahene's theory of stategraft and the derivative theory of immigraft, as articulated herein. This first Part also provides an overview of the DHS and the functions of its sub-agencies and describes other agencies that operate within the broader immigration system. Part II offers specific examples of immigraft, as practiced by both U.S. Citizenship and Immigration Services and U.S. Immigration and Customs Enforcement. Following these detailed examples, Part III articulates broader implications of these examples for current scholarly conversations. Part III also includes some preliminary recommendations for how DHS might reform its operations to cease the practice of immigraft.

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Scholars have identified stategraft in fields as diverse as child welfare to property tax. Noncitizens in immigration proceedings or seeking immigration benefits also are subject to the state's enrichment practices, described herein as immigraft. As detailed in this Essay, noncitizens and their families pay into a government system for unjustified biometrics fees, unfairly adjudicated humanitarian parole applications, unjustly retained immigration bond funds, and costly appeals fees. Often, these are desperate moments responding to an international humanitarian crisis, like the Taliban takeover of Afghanistan, or a personal crisis, like the detention of a family's breadwinner. The state capitalizes on these moments of desperation at a high cost, taking money for services they fail to provide, and extracting valuable resources from vulnerable noncitizens and their families.

Professor of Law, American University Washington College of Law.