Leila Kawar has published a thoughtful, well-researched and at times provocative comparison of immigration-related litigation in France and the United States. She analyzes the radiating effects of such litigation on immigration policy in both countries, and thus critiques the litigation efforts of lawyers who try to shape such policy. Such an approach is particularly welcome now, as executive orders and other policy pronouncements limiting immigrant and refugee rights in the United States, as well as the resurgence of nationalist sentiment in numerous countries, will likely lead to an increase in immigration-related litigation and other forms of legal advocacy for the foreseeable future.
Lawyers and other immigration advocates typically—and out of necessity—focus exclusively on the here and now, and on the country in which they operate. Kawar's book places their work in historical and comparative perspective, and in doing so sheds light on the question of how we got here. It will help lawyers, as well as socio-legal scholars, understand why the everyday battles over immigration policy are often about seemingly trivial details related to one's immigration status. This might provide some comfort, or at least an explanation, to those cause lawyers who pursue immigration advocacy because they want to help bring about significant social change and feel frustrated by the minutia of much immigration law practice.
Kawar's book covers a range of important issues, including the interaction between rights-based litigation and social movements, how constitutional court dialogue about rights can have a strong influence on policymaking, and how globalization has not necessarily led to a homogenization of legal contestation. And from a methodological perspective, she offers creative insight into the contributions that non-native researchers can bring to empirical research.
Kawar's methodological approach is rigorous and thorough. Over a period of seven years, she conducted voluminous archival research (including media reports) and interviewed numerous key actors in the immigrant rights legal community and jurists in each country. Kawar is transparent in acknowledging the difficulties inherent in doing this kind of study across national borders, especially within different legal systems. She is careful not to fall into the trap of making assumptions about a particular legal system, and the lawyers who populate it, based on the system with which she is most familiar (i.e., the United States). She is sensitive to distinctions in legal cultures, and how they affect both participants and observers. Kawar also avoids tortured comparisons between the United States and French legal systems; where appropriate, she acknowledges the differences and leaves them be.
One of Kawar's qualitative empirical methods that was particularly impressive is her idea of eliciting “snapshots of significance” from her interviewees. This approach conveys a lack of agenda or assumptions on the part of the researcher; on the contrary, it turns the interview over to the interviewee from the start. As Kawar notes, requests for such snapshots often elicit the longest pause between question and answer in an interview—which, from an empirical research perspective, is generally a good thing.
On substance, Kawar notes that litigation has had relatively little influence over immigration policy over the past several decades. This is a well-taken critique, especially when one considers the significance of several U.S. Supreme Court decisions in other eras, most notably the late nineteenth and mid-twentieth centuries, which coincided with the spike in labor-based immigration to the American West following the Gold Rush, and concern about foreign influence during World War II and the Cold War, respectively. One of the reasons for the dearth of such monumental decisions in more recent years is what has come to be known as “crimmigration,” the confluence of immigration and criminal law. Much U.S.-based litigation since the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) has concerned the immigration consequences of criminal conduct; i.e., which crimes can lead to the deportation of various classes of immigrants. These are usually not great constitutional questions: they are more mundane: was particular conduct a so-called crime involving moral turpitude, an aggravate felony, a particularly serious crime, etc.? Answers to such questions frequently make the difference between staying in the United States or being removed, but they are generally not the stuff of significant Constitutional litigation. One exception to this phenomenon is detention, which raises 5th amendment due process concerns. One could argue that IIRIRA relegated immigration law in the United States to an even less consequential role (in terms of significant Constitutional rights) than was the case previously. It may have also rendered the radiating effects of legal activism in the United States a bit less far-reaching.
A second way in which IIRAIRA may have limited the scope of immigration-related litigation in the United States is that it frequently puts immigrants in the same category as criminal defendants, which most likely influences how they are viewed by courts and by policy makers. Indeed, this conflating of the criminal and the immigrant has had its own subconscious negative effect on the view of immigrants (particularly those from Mexico and Central America) within the judiciary and, one would assume, many immigration lawyers. This phenomena is likely to intensify under the Trump administration, as a broader range of undocumented persons and other immigrants have been targeted for detention and deportation.
One area (at least in the United Kingdom and the United States) where law and legal activism do seem to make a more consistent difference in policy is detention, which is the subject of regular mobilization. It is also an example of a situation where courts have gone beyond the sub-constitutional level. Thus, in the United Kingdom fear of a challenge pursuant to the European Convention on Human Rights to the length of detention while awaiting an asylum determination under the European Convention on Human Rights led to a government proposal to shorten the time period for issuing such a decision. And in the United States, recent court decisions on the due process rights of noncitizens have led to changes in the detention of mothers and children from Central America. Detention is thus one exception to Kawar's somewhat pessimistic view of litigation's ability to achieve sweeping change in this area.
Indeed, legal contestation over detention is one example of how immigration in many other parts of the world (though less so in the United States) has begun to erode what Jopke and others had previously observed as the distinction between constitutional and international law; the point being that judicial decisions affecting noncitizens were necessarily limited because they were based on domestic constitutional law rather than international law. Now, given the growing prevalence of international human rights treaty law embedded in national constitutions (including in France), this distinction is not as relevant. But it raises important questions going forward about whether that makes any difference; i.e., whether subjecting national immigration policy to international human rights standards will make any difference on the ground.
This last point underscores Kawar's focus on the significance of lawyers' framing of immigration-related issues. This is particularly true in those states where human rights norms are explicitly invoked by lawyers because of incorporation through domestic statute (such as the UK's Human Rights Act, which incorporated the European Convention on Human Rights into British law) or national Constitution. In such national contexts, lawyers can frame domestic court immigration litigation according to the human rights approach to asylum law, which forces courts to examine immigration disputes through a human rights lens. This raises an interesting empirical question going forward: are the radiating effects different—and ultimately more beneficial to noncitizens - when lawyers frame their immigration advocacy in terms of international human rights law rather than—as in the United States—a matter of domestic law.
One question which Kawar's research suggests is whether there is any difference between the radiating effects of litigation or other legal advocacy on behalf of immigrants who have already entered the country and thus have greater rights (at least in the United States) and those who have been stopped at the border. One wonders whether litigation has been more or less effective in affecting immigration in policy in either of these areas
In sum, Kawar's book is both a methodologically rigorous empirical study and an important source of context and perspective for immigration advocates. It will encourage such advocates to think about the radiating effects of their work, particularly at a time of significant rollback of immigrant and refugee rights. In exploring legal contestations as culturally productive processes, it can enlighten and inspire lawyers, particularly in countries with isolated or intimidated civil society actors.
