By Linus Chan
Bearing witness to sorrow, pain and injustice has always been part of the package deal of being an immigration attorney. Immigration law is diverse, rich and an example of how to define what our country’s values are. Deciding who can be our neighbors, co-workers, teachers, and family often requires us to articulate our vision of the United States and how it is to remain a shining light on a hill.
I represent non-citizens detained by immigration officials and who face removal from our country and exile from their homes and family. Many of my clients are those people who President Obama has described as “criminal aliens” and what the President-Elect has described as “dangerous criminals.” From my experience, such descriptions are skewed, inaccurate and deliberately misleading. My job has always entailed advocating for amazing, resilient people. My job has been to reunite families and help people find solace and keep a refuge in my country. My job has been to convey the stories and give voice to those the system attempts to silence.
I am very proud of this work and I cannot imagine a more fulfilling career. People entrust me with sometimes the most difficult and vulnerable parts of their own lives and ask that I do my best to help them get released, stay with their family or even just have a say in what happens to them. This is an incredible and near-sacred privilege. I remind myself constantly of this fact.
But this work comes with a price. Often I am forced to accept that for many people all I can do is be a witness. A witness to families being torn apart, a witness to the pain caused by confinement, a witness to how our country treats those seeking refuge in our borders from persecution or poverty.
I’ve often had to describe my job as legal triage-there is so much need, so many people who should have legal remedies available, but in our immigration law regime don’t. I often have to struggle to explain that nothing can be done-that they will not be home for the birth of their child, may never see their wife or children again, or that they will need to go back to the place where they witnessed the murder of their brother in front of them.
I had no illusions about this election or Hillary Clinton. Clinton was not likely to make my work easier or my clients’ lives better than what they had experienced under President Obama. She made no promises to help those who I represent. As much as I admire President Obama, his administration produced more sorrow and heartache for non-citizens than any other president. In the past two years we have had to deal with mothers and children being told they needed to be locked in cages to “deter” others from coming. We have seen this administration defend a Border Patrol agent who killed a boy because he threw rocks. We have seen this administration argue that possession of a sock should be the basis for deportation and that people tortured and extorted by terrorist groups should be treated as terrorists themselves. I have had people agree to deportation because the alternative was to know that their family might be put on the streets as they couldn’t afford the two or three months it would take for them to present their immigration case. And, had Secretary Clinton become President Clinton, I did not expect any of this to change come January 20th.
Given my low expectations, why did this election hurt so much? Why have I been so filled with dread and fear for the last week? Because I cannot bear to consider that things could get worse— much worse—for the people who I represent. I cannot bear to consider what it means to have someone delighting in the cruelty of exile and deportation.
People, including those who love me, have tried to reassure me that Trump won’t be that bad, that there are checks and balances in place in our system of governance, or that people will rise up! Perhaps fellow Republicans, I have been told, will be sensible, or even just plain politically calculating. Or the numbers, the sheer enormity of the numbers themselves, would be a barrier. Under President Obama, the United States has averaged 400,000 deportations a year, and, for much of that time, roughly 34,000 people detained every day. How much worse can it get? When Trump says that he will deport two to three million people, how can he understand the sheer logistics of that? How could we go and deport nearly 1 out of every 100 people in the country? But what will happen even if just tries?
I try to explain: the laws as written already give power to what Trump says he will do. He doesn’t need Congress to enact new legislation. The courts from the 1800s until now have given migrants little protection. Immigration laws are written to give the Executive broad and deep power. And we now have a President-Elect who is unapologetic about his xenophobia.
As for the politics of it all, I have lost faith. Last year, this Administration continued to jail women with children and suffered little fallout, little outrage and even fewer political consequences. Sixty million Trump voters may not be racists but they certainly don’t seem to care about the pain that is about to be wrought in their name.
I don’t want to be pessimistic or fatalist, but Trump’s central plank on his campaign platform was to bring misery, pain and humiliation on non-citizens and it just so happens this is one area in which the President can deliver on his promises. Safety pins are great symbols and I hope they will provide refuge from hate and discrimination, but they won’t stop ICE agents.
I can’t speak for all of my immigration attorney colleagues, but I know that the dread I feel is the simple knowledge that I must bear witness to more pain and more sorrow in the next few years. I know that even if Trump is unable to do more than build a wall (or fence) and foster hatred,that will be enough damage done. But I am afraid of the damage that those 20,000 ICE officers and potentially more can wrought, the pain that they can inflict.
As I watch this political moment unravel, there is no choice to be made. I can’t turn away or walk from the pain and suffering that is to come. I know that as hard as it will be for me to bear witness, it will be many times more difficult for the families that are forced to live in fear. In my time as a teacher, I have seen how what makes a good lawyer- empathy and the ability to view things from different perspectives, can also make someone vulnerable to the pain witnessed. Nonetheless our jobs will be to realize as much hope as possible and to bear witness again. My job will be to instill as much hope as I can, fight creatively and passionately to defend my clients, and bear witness again and again.
I weep today because I don’t know whether my strength will be enough. I weep today because I am afraid that I will break from the sorrow to come. But what can we do? How can we channel our energy to try to stem the anti-immigrant tide? Here are four preliminary thoughts. Collectively, we can and must identify many more.
1) If you are in a blue state and your state doesn’t yet allow for drivers’ licenses for the undocumented, now is the time to get the state legislature to do it. Unlicensed driving is one of the easiest ways to get put into the removal system.
2) Obviously we need more lawyers for removal hearings. We should push cities to follow the New York City model that provides an appointed counsel system for all migrants in removal proceedings. If we can’t get universal legal coverage, then, as much as I hate drawing lines to exclude noncitizens with criminal records like the people I regularly represent, let’s start with the most sympathetic migrants: push for lawyers for children, the mentally ill, and asylum seekers. We can also look to Alameda County, California and the Bronx Defenders to get public defender organizations to also represent their clients in immigration court hearings.
3) We can create bond funds. Non-detained folks have cases lasting more than two or three years and we may even get that number up over four if the Trump Administration does increase immigration law enforcement. Making bond available and affordable will go a long way to protect migrants’ families from being torn apart and into crisis-even if in the end they cannot stay.
4) We can find more criminal attorneys to take post-conviction cases, especially ones that may seem benign but actually carry serious immigration consequences. Trump has already used the term “criminals” so now is the time to try and find ways to clean your record.
Linus Chan is a visiting associate professor of clinical law at the University of Minnesota and the Center for New Americans. He teaches a clinic on representing people who are detained by Immigration and Customs Enforcement.