Abstract
Excerpted From: Kathleen Kim, Kevin Lapp and Jennifer J. Lee, Critical Immigration Legal Theory, 104 Boston University Law Review 1515 (October, 2024) (331 Footnotes) (Full Document)
U.S. immigration law and policy consists of complex systems derived from divergent perspectives on who belongs in this nation and for what purposes. This contested policy space includes advocates of open borders, immigration restrictionists wary of outsiders, supporters of temporary worker programs to fill short-term labor needs, and those who embrace integrating long-term immigrants as future citizens of our nation. Immigration law and policy, emblematic of other U.S. legal regimes, also reflect the law's relationship to systemic inequality. Often, U.S. immigration law and policy edify norms that exclude and subordinate noncitizens due to their race, gender, sexual orientation, and/or socioeconomic status. Indeed, immigration law has always been a place for Americans to enact their many prejudices.
Until the late twentieth century, few legal scholars explored these complexities of immigration law. In the twenty-first century, however, the scholarly field of immigration law has flourished. Among the many rich strains of immigration law scholarship, a distinctive method of interrogating immigration law and policy has emerged. We call this analytic method Critical Immigration Legal Theory (“CILT”). CILT responds to the vast human suffering caused by U.S. immigration law while exposing the systems of power and prejudice at work in the U.S. immigration regime. It utilizes critiques of colorblindness, essentialism, and fixed legal categories, while drawing from movement lawyering as a methodological framework to elucidate the role of immigration law in subordinating noncitizens and reifying white patriarchy. Like other critical legal theories, CILT also has a central praxis dimension that aspires to transform the immigration law system and its treatment of noncitizens.
Rather than simply claim CILT as a term, our goal in this Article is to invoke and embrace it as a unifying thread across scholarship that grapples with immigration law as a site of contestation, resistance, and praxis. Derived from the influential fields of critical legal studies, critical race theory, feminist jurisprudence, and other similar analytic frameworks, this Article is inspired by our work on Feminist Judgments: Immigration Law Opinions Rewritten. In that volume, contributing authors re-envisioned foundational immigration law jurisprudence through a broadly conceived feminist lens that incorporated insights from critical race theory, critical race feminism, and other intersectional modes of analysis. What emerged was a scholarly conversation among authors utilizing CILT approaches to contest immigration law's presumptions about who belongs in our national community.
The visibility of CILT in mainstream immigration law scholarship has risen over the last fifteen years. The growing cadre and diversity of immigration law scholars and the increasingly blurred lines between immigration law scholar, lawyer, and activist have made a difference. This cadre's lived experiences-- personal and professional--inform its astute perspectives on the systems of power that subjugate the noncitizens it represents and with whom it collaborates.
By highlighting CILT methods in immigration law scholarship, we hope to generate further conversations and connections between scholars, lawyers, community advocates, and immigrants who apply aspects of this analytic framework. This Article attempts to identify the main trends that constitute CILT. One trend is the critique of facially colorblind immigration laws to expose their subordination of immigrants based on race and other historically oppressed identities, such as gender, sexual orientation, and socioeconomic status. Another is the use of anti-essentialism to contest negative stereotypes of immigrants as undesirable outsiders as well as so-called positive stereotypes of deserving immigrants and “model minorities” that propagandize respectability politics. Others have also challenged the reductive categories of alienage and citizenship by showing how immigrants, through their own political action, often at the local level, have redefined belonging. A final approach seeks to align with immigrant rights movements to mobilize for social change and legal transformation.
This last approach supports CILT's praxis dimension. Many immigration law scholars have become intimately familiar with their clients' entanglements with the immigration law system. As a methodology, CILT can inform advocacy for immigrant rights through direct legal representation, movement building, and policy reform. By amplifying CILT, our hope is to highlight how such scholarship envisions bringing this country's immigration system in harmony with an equitable and inclusive democracy.
A few caveats are in order. We do not intend to imply that CILT is the only approach within immigration law scholarship that has the goal of reforming the immigration law system. In fact, there are many valuable methods of immigration law scholarship that effectively critique the current legal regime and similarly come from a place of praxis. Further, our discussion focuses on scholars writing about U.S. immigration law, although rich literature about migration from an international law perspective also exists. Finally, we realize that the collection, labeling, and categorization of scholarship risks the possibility of overlooking or mislabeling work, or worse, the inadvertent creation of a hierarchy in immigration scholarship by suggesting criteria for inclusion in the “canon” of CILT. With these concerns in mind, this Article is not an exhaustive attempt to catalog all immigration law scholarship associated with CILT. Rather, it is a starting point to explore and elucidate the breadth and depth of current CILT methodologies. We encourage others to weigh in, contest, and build upon the CILT methods we examine in this Article. In doing so, we hope to foster an iterative process among immigration scholars and stakeholders which will inform and influence CILT's potential to morph over time in response to the ever-changing immigration law system.
Our Article proceeds in four parts. We first trace the development of immigration law scholarship over the last one hundred years, culminating today in a diverse community of immigration scholars, educators, practitioners, and activists. Part II provides context for CILT's emergence by explaining how immigration law and policy has functioned as a tool of subordination, from the earliest federal legislation to modern immigration enforcement practices. This review includes a brief discussion of the influence of immigrant rights movements. Against this backdrop, Part III identifies the modern approach to interrogating immigration law and policy that we call CILT. We highlight CILT's salient features and prominent approaches taken by scholars deploying this critical lens. In Part IV, we address the implications of CILT for immigration law and legal scholarship going forward.
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If there is any single through line among the diverse contributions made by CILT, it is an acute awareness of the U.S. immigration legal regime and the continued subordination of people of color. Acts embodying this through line can be traced from the first Constitutional Congress, through Reconstruction, the 1960s Civil Rights Movement, and the 2020 Movement for Black Lives. In the decades between each of these progressive flash points in national history, the U.S. immigration regime has operated to prioritize the U.S. economy through exploiting disposable workers of color and has wielded its enforcement power to exclude a growing list of noncitizens deemed undesirable. The reach of the immigration enforcement regime, including its carceral power, seems hopelessly undefeatable. Yet, resistance efforts persist, particularly from the grassroots. CILT has embraced the call to serve and support immigrant communities and movements with innovative strategies that share a vision for an equitable and inclusive democracy.
The last decade has unraveled the illusion of functioning institutions and systems to reveal multiple assembly lines of injustice. As most immigration law scholars recognize, immigration law has rarely, if ever, appeared to be a functional system. Quite the contrary, even immigration law's most draconian activities have taken place in plain sight. CILT advances a broader public understanding of immigration law's role in sustaining an untenable democracy. To achieve its praxis goals, CILT helps the rest of us to deepen not only our knowledge of immigration law's role in facilitating the subordination of immigrants, but also our ability to envision new methods to diminish or eliminate immigration law's force in perpetuating social inequality.
Kathleen Kim, Professor of Law and Co-Director of the Loyola Anti-Racism Center at LMU Loyola Law School Los Angeles.
Kevin Lapp, Associate Dean for Faculty and Professor of Law at LMU Loyola Law School Los Angeles.
Jennifer J. Lee, Associate Professor of Law at the Sheller Center for Social Justice, Temple Law School.
