Lawyering an Uncertain Cause: Immigration Advocacy and Chinese Youth in the US
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Lawyering an Uncertain Cause: Immigration Advocacy and Chinese Youth in the US
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Overview
In and beyond the legal realm, the figure of the "vulnerable Chinese child" powerfully legitimates legal claims and attorneys' efforts. At the same time, the transnational ambitions and obligations of Chinese youth implicitly unsettle this figure. The maneuvers of these youth not only belie attorneys' reliance on racialized discourses of childhood and the Chinese family, but they also reveal more broad uncertainties around legal frameworks, institutional practices, health and labor rights—and cause lawyering itself.
Based on three years of fieldwork across the United States, Lawyering an Uncertain Cause is a novel study of the complex and often contradictory rights, responsibilities, and expectations that motivate global youth and the American attorneys who work on their behalf.
Product Details
| ISBN-13: | 9780826522092 |
|---|---|
| Publisher: | Vanderbilt University Press |
| Publication date: | 07/15/2018 |
| Edition description: | New Edition |
| Pages: | 257 |
| Product dimensions: | 6.00(w) x 8.90(h) x 0.70(d) |
About the Author
Read an Excerpt
CHAPTER 1
"I didn't think it was in her best interest"
PROTECTION FROM WHAT?
In 2012, I attended "On Their Own: Protecting the Rights of Immigrant Children" in Washington, DC. The conference was publicized as an opportunity for government representatives and legal advocates to examine the policies affecting UAC — individuals under age eighteen with no lawful immigration status and without a parent or guardian available to provide care and physical custody in the US. The event additionally promised immigration attorneys a chance to "learn more about legal issues facing immigrant children ... and brainstorm new ideas on ways to further the protection of unaccompanied immigrant children in the United States." 2 As someone interested in the legal experiences of young Chinese migrants designated "unaccompanied," I was eager to learn more about the actors and practices they would encounter in the US. Instead, I found a space rife with tension, urgency, conviction, and ambiguity.
The first day's proceedings were held at the headquarters of the Organization of American States in Washington, DC, a historic building that inside boasted curving marble staircases, fountains, and palm trees. In the main hall, the audience sat below long windows framed by heavy curtains. We craned our heads toward the stage, where throughout the day dignitaries and liaisons from various US agencies spoke flanked by colorful bunches of flags. With a few exceptions, including myself as a researcher and a small group of social workers, the audience was composed of attorneys who were employed by or were directors of immigrant advocacy organizations around the US.
In this book, I recognize these attorneys as cause lawyers, individuals who use legal skills to pursue political or moral commitments. Importantly, these commitments include but also transcend direct client service, as through policy-making efforts (Scheingold and Sarat 2004). Encompassing advocacy that employs legally based "rights" strategies with broadly based "needs" strategies to "do good" (Menkel-Meadow 1998, 37), cause lawyering is a broadly inclusive and, accordingly, often contested term. It is also a frustrating enterprise, one in which attorneys negotiate a shifting constellation of bureaucratic contradictions, diverse political and juridical contexts, institutional inefficiencies, and, as my data demonstrate, a cause that is often less clearly defined than expected or needed.
While all attendees were ostensibly at the "On Their Own" conference with a common purpose, it was not long before I began to encounter a steadily murmured — and sometimes uncomfortably unconcealed — grumbling from those attorneys around me. The discontent ranged from organizational politics to the perception that plenary speakers were "toeing the party line," as one attorney complained. During a presentation on different forms of legal relief, another lawyer leaned toward me and whispered, "The strategies the folks from New York suggested would never work in Chicago." She shook her head. "This isn't helpful."
Walking into the humid air at the day's close, I was perhaps most unsettled by what seemed an absence of purpose in so "well-intentioned" an event. Instead of providing timely, policy-advancing information, representatives from Immigration and Customs Enforcement (ICE), the Department of Homeland Security (DHS), and the Office of Refugee Resettlement (ORR) presented incomplete data and skirted audience questions — many of which were admittedly only thinly veiled attacks — with a rehearsed vagueness. Likewise, the attorneys in the audience offered a different sort of ambiguity. Where I had expected a more altruistic focus, a more demonstrable concern for young migrants, the principal sentiments I observed were impatience, frustration, and even hostility directed against state actors and, sometimes, one another.
The next day of the conference, participants — the majority of whom were young to middle-aged women — sat together at round tables, drinking coffee and listening intently. Many typed or jotted down notes, and it wasn't unusual for someone in the crowd to raise her hand and interrupt a speaker. This was clearly a small world. Panelists and audience members addressed one another comfortably by first name. As I would discover, this familiarity often extended to one another's employment history, involvement with notable cases, law-school education, and acceptable or threatening affiliation with other organizations. "Our work does become a turf issue," a conference attendee told me later. "It's always a turf thing." It's worth noting, of course, that this was very much an elite and urban turf thing.
Grateful for my anonymity at the "On Their Own" conference, I listened carefully to the strategies and information attorneys shared:
I always like to talk about my "10k kid," a client who had ten kilos of marijuana on him. If you're successful with a client like this, they get URM [Unaccompanied Refugee Minor] and stay in Seattle or go to Michigan. But it was really frustrating to deal with ORR, with case workers who didn't understand.
Some of our families [the families of young clients] have never accessed these educational services, and they're not very good advocates for themselves.
There was a case in New Jersey where the judge ruled that the child wasn't abandoned or neglected in Guatemala, because it's okay for youth to be working in Guatemala at age twelve. But no judge in the US should be assessing the standards in a foreign country ... this was child labor! But the judge saw it as okay.
I was supposed to advocate for her expressed legal interest — it was a girl who wanted voluntary departure. But I didn't. I didn't think it was in her best interest to go back to her country.
Though routine to the immigration attorneys in the room, these statements baffled me, revealing and casting doubt on the easy assumptions I held about legal advocacy and immigration relief. Why did no one discuss rights, only "best interests?" Why were clients' parents and home countries discussed in such patronizing and disparaging ways? Why was so little attention paid to youth from regions other than Central America, even among the attorneys I knew portrayed Chinese youth as their niche? More profoundly, what was the point of immigration relief? What about other rights and protections? The questions I formulated in this space largely propelled my research. They remain forefront to this book, an inquiry into professional demands, personal motivations, and an arguably impossible interpretation of legal success.
EVALUATING "SUCCESS"
Jarring as it was, the "On Their Own" conference succinctly foreshadowed the complex conditions and contingencies that motivate cause lawyers as much as the cause itself does. The particular cause I explore in this book is popularly understood as the provision of free legal advocacy to unaccompanied Chinese children who are held in federal facilities and called into removal proceedings alone. Though the number of Chinese youth designated unaccompanied in the US is relatively small, their experiences are worth understanding for their own sake, as well as for what they uniquely demonstrate about the limits and consequences of legal advocates' moral commitments.
Each year, approximately fifteen hundred Chinese youth (typically ages fifteen to seventeen) migrate alone and clandestinely to the US. The majority of these young people arrive from Fujian Province and, more specifically, from the region surrounding the provincial capital of Fuzhou. While I often heard it characterized as a "small, poor province" by attorneys, Fujian has a population of approximately thirty-seven million and is one of China's wealthier provinces. This is largely owing to its location: situated on China's southeast coast, Fujian is an attractive site for national development and international investment. This location matters for another reason, namely as regards Fujian's unique and widely recognized history of emigration among China's provinces.
I explore the broader political and socioeconomic context of Fujianese migration in more detail in Chapter 3. For now, I wish to briefly note the transnational negotiations youth themselves recognize as important. The clandestine migration of these individuals to the US is an increasingly complex and sophisticated process, one by which people and enormous sums of money — fees average $80,000 USD — are moved by "snakehead" (she tou) smuggling networks through multiple nations. As youth recounted, these journeys are influenced by local norms and family expectations, national policies and overseas connections, intimate sorrows, and rumored incentives. Weighing so many structural and subjective factors, many youth perceive migration as the best, or only, way to advance themselves and their families socioeconomically.
Such complex and uncertain motives present a distinct challenge to cause lawyers who must appeal to political and legal discourses that differentiate between "migrant workers" and "refugees" and between "economic" and "forced" migration (Willen 2015). As older and potentially voluntarily displaced migrants, Fujianese youth often appear to fit more squarely in the "migrant worker" and "economic" categories. Yet, of course, the notion of choice — i.e., whether or not someone chooses to migrate — is hardly such a neat dichotomy. Rather, it is a persistently complex and contested dimension of migration (Yarris and Casteneda 2015). To position someone as a voluntary "economic migrant" elides the intricate realities of structural violence and economic inequality (Quesada 2009); the role of immigration policy in creating and reinforcing a distinction between agency and force (Yarris and Casteneda 2015); states' responses to migration as reflective of geopolitical interests (Coutin 2011; Horton 2004); and the vulnerability that humanitarianism demands against the backdrop of the deportation regime (De Genova and Peutz 2010; Statz 2018; Ticktin 2011).
At the same time, such necessary insights on the nuanced deficiency of the "economic migrant" categorization may have little salience with immigration cause lawyers. This largely owes to the demands of legal and bureaucratic frameworks but also, as this study demonstrates, to the arguably more motivating, and in a sense also demanded, moral ideologies of childhood and dependence that many attorneys espouse. Recognizing how these forces are distinct from — and effectively distance lawyers from — pragmatic questions about formalized entitlements, social and political access, and the violence of human rights protections (Dawes 1999; Willen 2012) is a central goal of this book.
As my data suggest, the young people in this study are often portrayed by legal advocates as vulnerable children even as they simultaneously manage kin and peer networks, employment, legal pursuits, and transitions to adulthood via technological and physical mobility (Liu 2011; Mummert 2009). Relatedly, the intimate and intergenerational networks that facilitate a young person's migration over time are often denied or pathologized in the legal realm (Heidbrink and Statz 2017; Young 2004). This is significant, for to recognize the opposite of these framings, namely the agency and the active transnational connectedness of young migrants, is to subtly upend juridical notions of "unaccompanied" — a category that is elsewhere rightly challenged as inconsistently premised on cultural constructions of care and family and on the fiscal and political interests of the US state (Heidbrink 2014). With all this in mind, the cause becomes somewhat less sure.
I explore this uncertainty by focusing in particular on rights, responsibilities, and expectations. I consider rights as they relate to age, best interests, citizenship and labor, and culture as practice and explanation (Kuper 1999; Osanloo 2009). I examine the ways in which lawyers' sense of their professional and moral responsibilities defines and perpetuates a certain type of cause and, I argue, a certain type of client. I concurrently recognize young people's ongoing contributions to household economies and transnational migration networks — responsibilities that are significantly managed through and from the legal realm. Finally, I document the expectations that youth and attorneys hold for one another, promises guided by disparate understandings of age, efficacy, and success.
Accordingly, my research draws on such diverse bodies of scholarship as socio-legal studies, the anthropology of law, the anthropology of youth, China studies scholarship, and migration studies. Predictably, my research also relies on the Cause Lawyering Project. Largely attributed to and shaped by the work of Austin Sarat and Stuart Scheingold, the project produced a range of literature dealing with the significance, influence and contested parameters of cause lawyering. From it, I recognize the attorneys at the center of my study as cause lawyers — individuals who self-consciously commit themselves and their skills to a political cause and for whom lawyering is not value-neutral (Sarat and Scheingold 1998; see also Luban 1988).
RIGHTS
Chinese youths' legality is predicated on a powerful, contradictory definition of rights. Having compromised her or his own citizenship by leaving China unauthorized, a Chinese youth who is apprehended in the US is at once positioned between two opposed rights practices. Because she or he is typically under age eighteen, the state acts as a discretionary guardian, providing the young person food and shelter as inalienable rights. At the same time, having not ratified the Convention on the Rights of the Child and thus not required to provide youth with comprehensive guardianship or legal representation (Bhabha 2009), the state normalizes the youth's detention and weakened ability to claim citizenship rights.
It is the stateless individual, here the unaccompanied minor, who exposes the limits of these supranational "inalienable" rights. The young person's presence doesn't break the presumed continuity between human and citizen, nativity and nationality (Agamben 1998). Instead, it evidences a "continuum" of citizenship — one in which youth experience different degrees of membership that distinguish undocumented immigrants, legal residents, and citizens (Calavita 2005; Ngai 2004; Schuck 1998). Though no longer experiencing the socioeconomic and emotional constraints of deportability (Gonzales and Chavez 2012; Willen 2007), youth on one end of the continuum — those who have lawful permanent residency or even citizenship — still embody "illegal life" in regard to their labor. That cause lawyers do little to acknowledge or address this reality implicitly challenges the holistic nature of the cause at hand.
In this context of rights and regulation, attorneys who assume the cause of representing youth without court-appointed representation must make an unaccompanied youth "legible" before the law (Scott 1998). To understand this process, I ask: how and why do cause lawyers, for whom lawyering is a "deeply moral or political activity" (Scheingold and Sarat 2004, 2), frame the cultural and economic realities of their Chinese clients to guarantee them some measure of legal relief? My research suggests that as lawyers advocate for what they perceive to be in a youth's best interests — avoiding repatriation — the persuasiveness of these claims is contingent on the defendant's age and the "narrowed" narrative told about her or him in court (Mather and Yngvesson 1980–1981; Statz 2016b). In other words, legal status largely depends on the extent to which a Chinese youth is portrayed as a rights-worthy child from a patriarchal culture and authoritarian state who did not consent to her migration journey, as opposed to a much less defensible or pitiable economic migrant. It is chiefly through this conflation of cultural identity with age and nation-state that attorneys appeal to a reality of rights that constrains them as well as their clients.
RESPONSIBILITY
To most of the cause lawyers I interviewed, these tactics are successful; they secure legal status. They also permit attorneys to contend with the contradictory nature of unaccompanied youths' rights, and with the limited number of legal protections available to them, and to maintain "principled" altruistic goals and responsibilities (Menkel-Meadow 1998). I argue, however, that these strategies simultaneously deny youths' voices and the agentive roles they take in their migration journeys and transnational community contexts (Dreby 2007; Rae-Espinoza 2016; Yarris 2014). They may also compromise youths' own long-term financial commitments and personal responsibilities (Heidbrink and Statz 2017). Significantly, attorneys' understanding of "best interests" in these practices appears rooted in a Western, legally dominant view of childhood, one that presumes an apolitical, sacrilized child; families', schools', and professionals' responsibility for children; and "a general presumption against [youths'] paid labor" (Appell 2009, 709; Nieuwenhuys 1996). Perhaps unsurprisingly, these ideas conflict directly with many of the reflections that Chinese youth shared with me.
(Continues…)
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Table of Contents
Acronyms, ix,
Acknowledgments, xi,
Preface: "The future doesn't come to me", xiii,
1 "I didn't think it was in her best interest", 1,
2 The Cause in Theory and in Practice, 32,
3 A Poetic and Practical Bridge: Reflections on Youth Mobility, 64,
4 Selecting Identity, Rejecting Context: "The Child in Her Context" and Collapsing the Cause, 98,
5 The Spectacular Case, 122,
6 Limited Relief, 156,
7 Reflections on Instability and Inconclusiveness, 180,
Notes, 189,
References, 209,
Index, 229,