Law Without Recognition: The Lack of Judicial Discretion to Consider Individual Lives and Legal Equities in United States Immigration Law
Law is not separate and apart from society but exists as a unique institution within society both being directed by social change and affecting social change. The history of U.S. immigration law shows that immigrants were welcomed or rejected depending on economic, political, and social factors (such as racial attitudes) and the legal definitions of what sorts of immigration were permissible or excludable differed over time. Since the 1990s, hostile attitudes towards certain immigrants have been represented in laws to a greater and greater extent, most significantly with the 1996 amendments to the Immigration and Nationality Act. As a result of these laws, immigration judges often have no discretion to consider personal circumstances and equities of the individuals who come before them. The effects of these laws have resulted in greater numbers of individuals being detained and deported and a significant increase in the militarization of the border. In this work, I examine the workings of the immigration law enforcement system in New York City, including government agencies and immigration courts, from the perspective of the immigration lawyers who advocate on behalf of migrants within that system. Drawing on the experience and expertise of these lawyers, as well as my own participant observation experience as an immigration lawyer at a community based organization, I demonstrate the limitations of the current immigration law system to consider the various historical, economic, political, social, and personal factors of migrants; demonstrate where these sorts of considerations may be possible; and demonstrate the need for immigration law to be better able to consider and attend to these individual factors and equities. Additionally, this work demonstrates that consideration of the complexity of specific immigration statutes, regulations, and practices provides a clearer understanding of the limitations and possibilities in U.S. immigration law.
Law, Social and Cultural Anthropology, Sociology, Immigration, Law and Society, Legal Anthropology, Sociology of Law, Swizzle, U.S. Immigration Law
City University of New York - Graduate Center
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The Graduate School and University Center of The City University of New York