By Nina Rabin

This Article describes the ways in which prolonged states of legal limbo have grown more precarious, and thereby subordinating, under the Trump administration. Liminal forms of status have long been a feature of U.S. immigration law. But under the Trump administration, legal limbo grew both in prevalence and precarity. Due to Trump’s pursuit of an aggressive enforcement agenda, the legal system has become so overwhelmed that non-detained immigrants find themselves in protracted removal proceedings that routinely last for years. During this time, immigrants are consigned to a marginalized existence that harms their long-term ability to achieve social and economic mobility and integration. In this way, legal limbo has become increasingly tied to the creation and maintenance of a caste system in U.S. society. This Article offers a new conceptual framework, the “spectrum of precarity,” to analyze how and to what extent various types of liminal legal status in immigration law marginalize immigrants. Application of this spectrum to the states of limbo experienced by immigrants under the Obama and Trump administrations reveals very different approaches and outcomes. President Obama created liminal forms of legal status through specific policies and programs: administrative closure and the Deferred Action for Childhood Arrivals program (DACA). These efforts were explicitly designed to provide immigrants with a measure of social integration, along with protection from deportation. In contrast, immigrants in the Trump Era found themselves in limbo due to ballooning backlogs in the over-burdened legal immigration system. As a result, at the close of the Trump administration, immigrants with pending visas and asylum-seekers live in a state of prolonged uncertainty and fear that forces them into a marginalized existence in the shadows. This state of affairs poses a challenge for removal defense attorneys of non-detained immigrants, and calls into question the due process framework that often serves as a guiding structure for advocates in the immigration system. Due process, with its focus on discrete legal events and its failure to pay sufficient attention to the passage of time, risks causing attorneys to become accomplices in the creation of caste. Instead, in the current dysfunctional and disempowering legal immigration system, removal defense attorneys must seek to counterbalance the marginalizing effects of legal limbo on their clients’ daily lives and future trajectories through multi-faceted, interdisciplinary, and community-based models of lawyering.

35 Geo. Immigr. L.J. 567,569. 2021.

By Nina Siulc and Noelle Smart

The use of civil immigration detention has expanded exponentially over the past few decades, with a record high of more than half a million people detained in fiscal year 2019. The widespread use of civil detention—at a cost to taxpayers of billions of dollars annually—is often justified by the government as being necessary to ensure that immigrants continue to appear for their court hearings. Yet there is irrefutable evidence that over the past two decades the majority of immigrants—including adults, families, and children—have shown up for immigration court hearings. In fact, those who attend court outside detention on what are known as “non-detained” dockets almost always continue to appear for their hearings when they are able to secure legal representation, calling into question the logic of confining people in costly and inhumane prison-like conditions when representation is clearly a viable alternative to ensure continued court appearances. This fact sheet reviews evidence from the Vera Institute of Justice’s (Vera’s) programs and related studies as well as government data analyzed by independent researchers to help unpack what is known about appearances in immigration court and, alternately, orders of removal in absentia, which are issued when a person does not appear in court.

Non-detained immigrants with representation almost always continue to appear in court

Data from Vera’s programs and other studies shows that most immigrants released from custody continue to appear in court when represented by counsel.

• During the first three years of Vera’s Safety and Fairness for Everyone (SAFE) Initiative, which provides free representation through a universal access model in 21 jurisdictions across the country, 98 percent of clients released from custody have continued to appear for their scheduled court hearings.

• Similarly, Vera’s evaluation of the New York Immigrant Family Unity Project (NYIFUP) found that at the time of the study fewer than 2 percent of clients released on bond had received orders of removal in absentia for failing to appear in court.

• These high appearance rates are supported by findings in an in-depth study of orders of removal in absentia published in March 2020 by Eagly and Shafer, who observed that, “those who obtained lawyers also almost always came to court: 96 percent attended all court hearings in pending and completed non-detained cases since 2008.”

• An earlier study by Eagly and Shafer also found high appearance rates among immigrants released on bond nationwide from 2007 to 2012: among immigrants with completed cases, only 7 percent of those with representation received orders of removal in absentia.

• The Migrant Protection Protocols (MPP) or “remain in Mexico” program has made it nearly impossible for many asylum seekers to attend court. Yet even among this program rife with due process challenges, 95 percent of immigrants with representation have continued to appear for all their hearings. In short, representation continues to be associated with high rates of appearance in immigration court.

New York: Vera Institute of Justice, 2020. 5p.

By Sarah Decker and Anthony Enrique, et al.

“When they took us from the border, we were shackled, head to toe. Then they told us we were going to Louisiana. We all started shaking with fear. We knew we were about to lose our freedom, our rights, even our humanity. We knew we were going to the Black Hole.”

The United States maintains the world’s largest immigrant incarceration regime, imprisoning an average of over 35,000 people a day undergoing administrative proceedings to determine if they will be deported.2 Over 6,000 of those people, a mix of recently-arrived asylum seekers and long-term U.S. residents, are detained in Louisiana, the second-largest state for immigrant detention behind Texas.3 The explosion of immigrant incarceration in Louisiana occurred in the late 2010s and largely benefitted private prison companies, which run eight of the nine immigration jails in the state, profiting off of the abuses described in this report.4

This report documents systemic human rights abuses carried out by or under the supervision of the New Orleans Immigration and Customs Enforcement Field Office (“NOLA ICE”), the federal office that oversees immigration detention in Louisiana. NOLA ICE contracts with two private prison companies and a local sheriff’s office to operate Louisiana’s nine immigration jails.5 Inside those jails, officials rampantly violate detained peoples’ human and civil rights, locking them away in punitive conditions indistinguishable from those in criminal jails and prisons, in some cases for prolonged periods lasting years.6 In some instances, the abuses that detained people describe firsthand in this report meet the definitions of torture or cruel, inhuman, or degrading treatment under international human rights treaties to which the United States is a party.7

The information contained in this report comes from two years of visits to nine immigration jails in Louisiana beginning in April 2022, all told comprising interviews with 6,384 people from 59 jail visits and information from seven jail tours conducted by NOLA ICE officials. During these visits, attorneys and legal workers gave Know Your Rights presentations and conducted legal interviews with detained people. Their testimony reveals that NOLA ICE officials routinely violate ICE’s own minimum standards of care and state, federal, and international law and legal standards. Abuses inflicted include:

• DENIAL OF LANGUAGE ACCESS: including interpretation and translation access, resulting in language-related denials of medical and mental health care; due process in preparation of legal materials; and protection against abusive treatment and coercion.

• DEPRIVATION OF HUMAN NECESSITIES: including minimally nutritious food and potable drinking water; sanitary conditions of confinement; access to basic hygiene supplies; protection from extreme temperatures; and access to sunlight and outdoor time.

• ABUSIVE & DISCRIMINATORY TREATMENT: including physical abuse; sexual abuse; torturous solitary confinement; humiliating and degrading speech; and retaliation against and suppression of speech and religious worship protected by the First Amendment.

• MEDICAL ABUSE & NEGLECT: including denial of medical care for chronic, urgent, and emergency conditions; provision of ineffective or non-responsive care for serious health conditions; denial of the right to informed consent to treatment; disruption of ongoing care due to sudden transfers in custody; denial of dental care; denial of reproductive health care; mental health neglect; medical neglect of people with disabilities; and fatal deficiencies in medical care.

Taken together, the abuses inflicted by NOLA ICE officials deprive detained people of due process in their immigration proceedings. In NOLA ICE detention, officials isolate people with viable defenses to deportation from the legal and language resources needed to fairly present their claims. And they use abusive treatment in punitive conditions to coerce people into renouncing those claims and accepting deportation to escape the misery of detention.

The record of documented abuses in NOLA ICE jails predating this report is so extensive that in December 2021, the Department of Homeland Security’s oversight agency, the Office for Civil Rights and Civil Liberties, opened an investigation into the entire network of NOLA ICE jails, the first-ever field-office wide investigation.8 But as the findings of this report show, oversight bodies have failed to hold NOLA ICE accountable, permitting the continued abuse of detained people with impunity

New Orleans: ACLU of Louisiana, 2024. 108p.

By American Immigration Council

The collusion between local law enforcement agencies and U.S. Border Patrol (USBP) is well-documented. Local law enforcement agencies like the Ohio State Highway Patrol (OSHP) often work in concert with USBP agents in constructing a dragnet that serves as a force multiplier for USBP to funnel immigrants—most of whom have no criminal history—into deportation proceedings. These enforcement practices often go unchecked despite accounts suggesting a pattern of potentially unconstitutional practices. This unfettered enforcement upends the lives of immigrants who have developed deep ties to the United States and often impacts U.S. citizens and immigrants with lawful status who are part of mixed status families. It also makes Latino residents and people of color who are U.S. citizens or lawful immigrants undue targets of enforcement. Immigrants of color including those of Latin American origin who live, travel, or work in Ohio often bear the brunt of these disproportionate and discriminatory immigration enforcement practices.

Washington, DC: American Immigration Council, 2024. 22p.

By  Ricardo D. Martínez-Schuldt and Ricardo D. Martínez

Sanctuary jurisdictions have existed in the United States since the 1980s. They have recently reentered U.S. politics and engendered contentious debates regarding their legality and influence on public safety. Critics argue that sanctuary jurisdictions create conditions that threaten local communities by impeding federal immigration enforcement efforts. Proponents maintain that the policies improve public safety by fostering institutional trust among immigrant communities and by increasing the willingness of immigrant community members to notify the police after they are victimized. In this study, we situate expectations from the immigrant sanctuary literature within a multilevel, contextualized help-seeking framework to assess how crime-reporting behavior varies across immigrant sanctuary contexts. We find that Latinos are more likely to report violent crime victimization to law enforcement after sanctuary policies have been adopted within their metropolitan areas of residence. We argue that social policy contexts can shift the nature of help-seeking experiences and eliminate barriers that undermine crime victims’ willingness to mobilize the law. Overall, this study highlights the unique role social policy contexts can serve in structuring victims’ help-seeking decisions.

 American Sociological Review 86(1):154–85. 2021

By Rachel Feldman

This study was undertaken because generally available information about local government policy regarding inquiry about immigration status, use of this information, and interaction with federal immigration authorities was limited to a few New Mexico jurisdictions and was not upto-date or complete. The study identifies the variation and reasons for variation in these policies across the state, including the lack of any formal policy, and the function of informal policy. The study introduces the term “policy infrastructure” to refer to the function of written policy, procedure, monitoring and enforcement systems in directing local government employees and contractors, regarding their obligations to use public resources as directed by any policy that exists1 . A study assumption is that where no formal policy exists and where policy infrastructure is incomplete, public employees and contractors may use public resources at their discretion, regardless of consequences for affected persons. The problem motivating the study is the apparent situation in which residents and visitors to New Mexico experience different practices regarding the identification of and treatment related to their immigration status across the state, including within overlapping jurisdictions (e.g., city and county). Such variation in treatment raises questions regarding the extent to which immigrant rights (legal and undocumented) are respected across the state. It raises the question as to whether such variation is consistent with the intent of state and federal civil and human rights. The study was conducted between September and December in 2018, and inquiries were made by phone and formal requests for public records to all 33 counties and the 10 largest cities in the state. Contacts focused on county and city managers, sheriff and police departments and detention facilities operated by local governments. Some level of information was provided by all 33 counties and all cities contacted. A summary of results is shown in Table 1. Analysis of all documents and interview notes is provided below as study findings.   

Albuquerque, NM: ACLU of New Mexico, 2019. 51p.

By Yvonne Giesing

We study the effects of technological change on immigration flows as well as the labor market outcomes of migrants versus natives. We analyse and compare the effects of two different automation technologies: Industrial robots and artificial intelligence. We exploit data provided by the Industrial Federation of Robotics as well as online job vacancy data on Germany, a highly automated economy and the main destination for migrants in Europe. We apply an instrumental variable strategy and identify how robots decrease the wage of migrants across all skill groups, while neither having a significant impact on the native population nor immigration flows. In the case of AI, we determine an increase in the wage gap as well as the unemployment gap of migrant and native populations. This applies to the low-, medium- and high-skilled and is indicative of migrants facing displacement effects, while natives might benefit from productivity and complementarity effects. In addition, AI leads to a significant inflow of immigrants. Policymakers should devote special attention to the migration population when designing mitigation policies in response to technological change to avoid further increases in inequality between migrants and natives.

Center for Economic Studies and ifo Institute (CESifo), Munich, 2023. 50p.

By: Priyanka Bhatt, Katie Quigley, Azadeh Shahshahani, Gina Starfield, Ayano Kitano

Immigrants detained at the Irwin County Detention Center (ICDC) in Georgia have, for years, suffered egregious medical abuse, including invasive and medically unnecessary gynecological procedures without consent. Since Immigration and Customs Enforcement (ICE) contracted with ICDC in 2011, advocates have consistently raised concerns about the treatment of immigrants at the facility, including the lack of adequate medical and mental health care. Yet, months after that announcement, immigrants were still being detained in inhumane conditions at ICDC, until the last ones were transferred to other facilities in early September 2021. This report highlights the stories of women who suffered lasting trauma and debilitating physical and psychological effects of the medical abuse they endured while detained at ICDC. The abuses they suffered were first brought to light in September 2020, when Project South, together with Georgia Detention Watch, the Georgia Latino Alliance for Human Rights, and the South Georgia Immigrant Support Network, filed a whistleblower complaint with the Department of Homeland Security (DHS), ICE, and ICDC detailing the gross disregard for the health and medical well-being of immigrants detained at ICDC. The complaint, submitted on behalf of immigrants held at ICDC and whistleblower Dawn Wooten, a licensed practical nurse at ICDC, publicized multiple accounts of immigrant women subjected to non-consensual, medically unnecessary, or invasive gynecological procedures while in detention. Many women detained at ICDC did not understand the invasive medical procedures they were subjected to and, as a result, suffered not only lasting trauma but also debilitating effects of the procedures that they were not informed about. The complaint prompted more than 170 members of Congress to demand an investigation by DHS, which is ongoing. In October 2020, an independent team of medical experts, including board-certified obstetricians, reviewed the medical records of multiple women at ICDC and found a significant pattern of incorrect diagnoses and failure to secure informed consent for medical procedures.8 These abuses occurred despite the fact that the doctor who perpetrated them, Dr. Mahendra Amin, had already been investigated and prosecuted by the Department of Justice for similar abusive behavior, specifically for performing unnecessary medical procedures in violation of the False Claims Act. After these women and many others came forward, DHS and ICE retaliated by deporting and threatening to deport those who spoke out. These actions violate the First Amendment, which guarantees the right to petition the government and participate in federal investigations. By detaining these women for months on end during a global pandemic, DHS, ICE, and ICDC also failed to protect their health and safety, as mandated by the U.S. Constitution, statutes, and regulations. The non-consensual treatment of these women also violates fundamental human rights, including the right to informed consent and bodily autonomy, which may not be violated under any circumstances. The United States must be held accountable for failing to uphold its obligations under both domestic and international law.

Atlanta: Project South, 2021. 37p.

By: Kim Voss, Fabiana Silva & Irene Bloemraad

Activists do not just ‘name’ problems faced by migrants; they ‘frame’ them, constructing a particular meaning of the social world. Activists in the United States are especially likely to use rights language. Some appeal to human rights; others call on the history and resonance of civil rights. Those who contest immigrant inclusion often instead evoke ‘American values’. Are these competing frames persuasive? Drawing on a survey experiment of California voters, we examine whether these frames affect support for undocumented immigrants and U.S. citizens in need. We find that although respondents agree that food insecurity, sexual harassment, and inadequate health care violate the human rights of citizens and noncitizens equally, a human rights frame does not equalize support for government action to address the situation. Indeed, overall, respondents are much less supportive of government action for undocumented immigrants than citizens; neither rights nor value frames mitigate this inequality. The civil rights frame, relative to the American values frame, actually decreases respondents’ support for government action, for citizens and noncitizens alike. The type of hardship also matters: in scenarios concerning sexual harassment, legal status is not a barrier to claims-making. These findings reveal some limits of rights language for mobilization around immigration.

Journal of Ethnic and Migration Studies, 46:4, 791-819, DOI: 10.1080/1369183X.2018.1556463

By Kim Voss, Fabiana Silva & Irene Bloemraad

Activists do not just ‘name’ problems faced by migrants; they ‘frame’ them, constructing a particular meaning of the social world. Activists in the United States are especially likely to use rights language. Some appeal to human rights; others call on the history and resonance of civil rights. Those who contest immigrant inclusion often instead evoke ‘American values’. Are these competing frames persuasive? Drawing on a survey experiment of California voters, we examine whether these frames affect support for undocumented immigrants and U.S. citizens in need. We find that although respondents agree that food insecurity, sexual harassment, and inadequate health care violate the human rights of citizens and noncitizens equally, a human rights frame does not equalise support for government action to address the situation. Indeed, overall, respondents are much less supportive of government action for undocumented immigrants than citizens; neither rights nor value frames mitigate this inequality. The civil rights frame, relative to the American values frame, actually decreases respondents’ support for government action, for citizens and noncitizens alike. The type of hardship also matters: in scenarios concerning sexual harassment, legal status is not a barrier to claims-making. These findings reveal some limits of rights language for mobilisation around immigration.

Journal of Ethnic and Migration Studies, 2019.

By Teresa M. Cappiali

This book focuses on the political participation and grassroots mobilization of immigrants and racialized communities in the European context. Based on extensive data collected in Italy, it explores the role that alliances among pro-immigrant groups play in shaping political participation, asking why and how immigrant activists mobilize in hostile environments, why and how they create alliances with some white allies rather than others, and what might explain variations in forms of political participation and grassroots mobilization at the local level. Using social movement, critical race, and post-colonial theories, the author examines the ways in which both institutional and non-institutional actors, including immigrant activists, become involved and compete in the local arena over immigration and integration issues, and assesses the mechanisms by which both conventional and non-conventional forms of participation are made possible, or obstructed. By placing immigrant activists at the center of the analysis, the book offers a valuable and novel insider perspective on political activism and the claims-making of marginalized groups. It also demonstrates how pro-immigrant groups can play a role in racializing immigrant activists. A study of the effects on participation in social mobilization of coalitions, conflicts, and racialization processes among pro-immigrant groups and immigrant activists, this volume will appeal to scholars of sociology, political science, and political sociology with interests in migration, ethnic and racial relations, social movements, and local governance.

New York; London: Routledge, 2022. 323p.

By Domenic Vitiello 

In The Sanctuary City, Domenic Vitiello argues that sanctuary means much more than the limited protections offered by city governments or churches sheltering immigrants from deportation. It is a wider set of protections and humanitarian support for vulnerable newcomers. Sanctuary cities are the places where immigrants and their allies create safe spaces to rebuild lives and communities, often through the work of social movements and community organizations or civil society. Philadelphia has been an important center of sanctuary and reflects the growing diversity of American cities in recent decades. One result of this diversity is that sanctuary means different things for different immigrant, refugee, and receiving communities. Vitiello explores the migration, settlement, and local and transnational civil society of Central Americans, Southeast Asians, Liberians, Arabs, Mexicans, and their allies in the region across the late twentieth and early twenty-first centuries. Together, their experiences illuminate the diversity of immigrants and refugees in the United States and what is at stake for different people, and for all of us, in our immigration debates.

Ithaca, NY: Cornell University Press, 2022. 311p.

By Marilyn Hoskin

Based on the dual premise that nations need to learn from how immigration issues are handled in other modern democracies, and that adaptation to a new era of refugee and emigration movements is critical to a stable world, Marilyn Hoskin systematically compares the immigration policies of the United States, Britain, Germany, and France as prime examples of the challenges faced in the twenty-first century. Because immigration is a complex phenomenon, Understanding Immigration provides students with a multidisciplinary framework based on the thesis that a nation's geography, history, economy, and political system define its immigration policy. In the process, it is possible to weigh the influence of such factors as isolation, colonialism, labor imbalances, and tolerance of fringe parties and groups in determining how governments ultimately respond to both routine immigration requests and the more dramatic surges witnessed in both Europe and the United States since 2013.

Albany: State University of New York Press, 2017. 218p.

By Lilana Keith

Across Europe, people live and work while having irregular migration status, economically, socially and culturally enriching their communities and countries of residence. Undocumented migrants contribute directly and indirectly to social protection systems, as taxpayers, workers and informal carers. Undocumented workers are a key part of the domestic work and care workforce, caring for children, elderly and people with long-term social support and care needs, and enabling labour market participation and work-life balance.1 Nonetheless, states severely restrict access to social protection for people with temporary, precarious or irregular residence status. Although undocumented migrants face various economic and social risks and vulnerabilities, they are excluded from many of the basic mechanisms of social protection put in place to address vulnerabilities and provide a minimum social safety net, including access to subsidised housing and income security. Such exclusion compounds the risks of in-work poverty, destitution, homelessness, violence and exploitation – all of which undocumented migrants face due to discrimination linked to their residence status. Restrictions on access to social protection associated with a person’s residence permit can also be a major reason for people not being able to renew their permit, if the conditions of their permit require them to be financially independent without recourse to public social assistance. The European Commission notes that housing “has a major influence on immigrants’ employment options, educational opportunities, social interactions, residence situation, family reunification and citizenship rights”.2 Income security is scarce among undocumented migrants due to their precarious employment situations, which can include unsafe working conditions, low pay, long hours, job insecurity, and lack of sick leave.3

Brussels: PICUM, 2022. 38p.  

By David Bacon

For two decades veteran photojournalist David Bacon has documented the connections between labor, migration, and the global economy. In Illegal People Bacon explores the human side of globalization, exposing the many ways it uproots people in Latin America and Asia, driving them to migrate. At the same time, U.S. immigration policy makes the labor of those displaced people a crime in the United States. Illegal People explains why our national policy produces even more displacement, more migration, more immigration raids, and a more divided, polarized society.Through interviews and on-the-spot reporting from both impoverished communities abroad and American immigrant workplaces and neighborhoods, Bacon shows how the United States' trade and economic policy abroad, in seeking to create a favorable investment climate for large corporations, creates conditions to displace communities and set migration into motion. Trade policy and immigration are intimately linked, Bacon argues, and are, in fact, elements of a single economic system. In particular, he analyzes NAFTA's corporate tilt as a cause of displacement and migration from Mexico and shows how criminalizing immigrant labor benefits employers. For example, Bacon explains that, pre-NAFTA, Oaxacan corn farmers received subsidies for their crops. State-owned CONASUPO markets turned the corn into tortillas and sold them, along with milk and other basic foodstuffs, at low, subsidized prices in cities. Post-NAFTA, several things happened: the Mexican government was forced to end its

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  subsidies for corn, which meant that farmers couldn't afford to produce it; the CONASUPO system was dissolved; and cheap U.S. corn flooded the Mexican market, driving the price of corn sharply down. Because Oaxacan farming families can't sell enough corn to buy food and supplies, many thousands migrate every year, making the perilous journey over the border into the United States only to be labeled "illegal" and to find that working itself has become, for them, a crime. Bacon powerfully traces the development of illegal status back to slavery and shows the human cost of treating the indispensable labor of millions of migrants-and the migrants themselves-as illegal. Illegal People argues for a sea change in the way we think, debate, and legislate around issues of migration and globalization, making a compelling case for why we need to consider immigration and migration from a globalized human rights perspective.

Boston: Beacon Press, 2009. 272p.