Abstract

Excerpted From: Kevin R. Johnson, The Meaning and Significance of Critical Immigration Legal Theory, 104 Boston University Law Review 1573 (October, 2024) (103 Footnotes) (Full Document)

Every so often, a law review article comes along that jumps out for saying something incredibly insightful and significant. Kathleen Kim, Kevin Lapp and Jennifer J. Lee's visionary article Critical Immigration Legal Theory is one of those rare articles. It identifies a growing body of immigration scholarship, which began to take off at the end of the twentieth century and flourishes today. To do so, the article synthesizes a large volume of immigration law scholarship and carefully identifies trends in that work.

As set forth in the article, Critical Immigration Legal Theory (“CILT”) is a brand of scholarship that critically scrutinizes U.S. immigration law and policy through a focus on race, gender, class, and other social markers that target these groups for subordination. The authors methodically identify the emergence of CILT and explain the movement's central, all-important organizing principle:

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 .... [and] a distinctive method of interrogating immigration law and policy has emerged. We call this analytic method Critical Immigration Legal Theory (“CILT”).

Critical Immigration Legal Theory insightfully analyzes a burgeoning critical body of immigration law and policy scholarship. The authors provide immigration scholars much food for thought in evaluating past and future scholarship. As is characteristic of path breaking works, the article makes an obvious, but brilliant, point that no scholar has previously made as clearly and comprehensively.

Recent years have seen the emergence of a critical genre of immigration scholars who have slowly but surely transformed the field. They shine a light on the stark disparate racial, class, gender, and other outcomes generated by U.S. immigration law and policy. CILT scholarship strives to get to the root of the subordination of noncitizens by the immigration laws. Moreover, critical immigration law scholars demonstrate how courts and law facilitate, and do nothing to deter, the subordination of the most vulnerable groups of people.

Because of the way that the U.S. government has deployed immigration laws and policies, especially during the leadership of former President Donald Trump, the new generation of CILT scholars have considerable grist for the academic mill. Although Congress over time has removed much of the blatant racism from the immigration laws, color-blind and race-neutral devices adversely affect--and in some instances punish--people of color who come from the developing world. Political leaders, notably but not exclusively Trump, often rely on racial code, or dog whistles, to feed the flames of intolerance. They advocate extreme, at times frightening, measures, such as closing the U.S.-Mexico border, mass removals of noncitizens of color, and other heartless measures, such as tearing migrant children away from their parents in an effort to deter future migration.

In clear, concise, and insightful fashion, Critical Immigration Legal Theory analyzes the new Critical Immigration Legal Theory scholarship and explains its academic place and significance. The article sheds much light on this emerging genre of critical scholarship.

Moreover, as discussed by Professors Kim, Lapp, and Lee, Critical Immigration Legal Theory scholars call for concrete and meaningful reform to promote social justice in the U.S. immigration system. CILT scholars believe that change is urgently needed to dismantle the system that subordinates vulnerable noncitizens. They seek to move the nation toward more just immigration outcomes. The prescriptions of these scholars run the gamut, from admitting larger numbers of noncitizens to ending immigrant detention, and even calling to abolish Immigration and Customs Enforcement (“ICE”), the primary immigration enforcement arm of the U.S. government.

Critical Immigration Legal Theory proceeds sequentially. Part I cogently examines the rise of CILT scholarship. Part II explains the context surrounding the development of CILT and how it responds to the fact that “immigration law and policy has functioned as a tool of subordination, from the earliest federal legislation to modern immigration enforcement practices.” The anti-subordination principle, which is at the heart of Critical Race Theory, is the undeniable tie that binds CILT scholarship. That principle warrants the full attention of all those committed to social justice. Part III maps CILT scholarship. Finally, Part IV analyzes its implications, including suggesting a path for future scholarship.

Parts I and II of this Essay discusses how Critical Immigration Legal Theory brands a genre of critical immigration scholarship that challenges the subordination of noncitizens. Part III analyzes how CILT endorses praxis, activism, and engagement as the solutions. In no uncertain terms, this body of scholarship is nothing less than a call to arms to fight for justice for immigrants.

[. . .]

Critical Immigration Law Theory by Kathleen Kim, Kevin Lapp, and Jennifer J. Lee helps us make sense of the growing body of critical immigration law scholarship. An important contribution to the canon of immigration law scholarship, it undoubtedly will help frame future immigration law scholarship. The article parses the critical strands of contemporary immigration law scholarship. In so doing, the authors of Critical Immigration Legal Theory have offered important insights and performed a great service.

Immigration law is in important respects an ideal setting for CILT. The use of immigration law to subordinate vulnerable minorities is the norm. Courts offer Congress and the Executive Branch unquestioned and unreviewable power over immigration and immigrants. Moreover, the growing diversity of immigration law professors, widespread clinical activity, and commitment to praxis distinguishes immigration law from other areas of law.

By identifying CILT as a scholarly movement, Kathleen Kim, Kevin Lapp, and Jennifer J. Lee have moved forward our understanding of immigration law scholarship. Critical Immigration Legal Theory offers an excellent roadmap for future scholarship. The future of CILT is for them, and us, to write.

Mabie/Apallas Professor of Public Interest Law and Chicana/o Studies, University of California, Davis, School of Law.