On a recent episode of the Stanford Legal podcast, Jennifer Chacón, the Bruce Tyson Mitchell Professor of Law, sat down with co-hosts Pamela Karlan, the Kenneth and Harle Montgomery Professor of Public Interest Law, and Richard Ford, the George E. Osborne Professor of Law, to discuss U.S. immigration policy. Chacón is the co-author of the recently published book, Legal Phantoms: Executive Action and Haunting Failures of Immigration Law, which delves into the fallout from a decade’s worth of promised federal immigration reform that never materialized, as well as the historical and contemporary forces behind anti-immigration movements.
The following is an edited version of the full podcast transcript, which can be found here.
Rich Ford: Not that long ago, it looked like we might have bipartisan support for comprehensive immigration reform. That’s clearly not where we are today. Not much attention is paid to the stories of the individuals behind the policies, both the individuals trying to enter the United States and those who are in the United States and might be deported. You’ve done some groundbreaking research into those issues. Could you tell us about your new project?
You started with the mention of comprehensive immigration reform that never came into existence, and that was the starting point for our eventual book. Our plan was to study the rollout of comprehensive immigration reform during the heady days of 2013. We thought there was going to be a significant legalization program and that it would be interesting to see how the government agencies and organizations implement that significant legalization program—to track it on the ground. We had reached out to a number of immigrant-serving organizations in Southern California and we were ready to watch the process in action. But as you noted, it never happened, so we pivoted.
We were excited that President Obama was thinking about an executive action to fill some of the gaps that comprehensive immigration reform failure left. In late 2014, President Obama announced a Deferred Action for Parents of Lawful Permanent Residents and Citizens and an expansion of the DACA program that would have removed some of the age limitations that were keeping the program unavailable to some. These two deferred action programs would have built on DACA, and there were estimates that it might have covered as many as 3 million long-term residents in the United States who have been living here without legal authorization. And so we thought well, we can’t study comprehensive immigration reform because that didn’t happen, but we can see many of the same issues when we watch the program rollout of DAPA and DACA+.
Once again, our optimism was thwarted. President Obama’s proposed programs never went into effect. Texas and several other states sued on both statutory and constitutional grounds, arguing that these programs both violated the Administrative Procedures Act and the Constitution, and the programs were enjoined by a federal district court judge in Texas.
Pam Karlan: Can you give a brief explanation of what is meant by “deferred action?”
Deferred action is a longstanding power that the president has exercised in cases where individuals do not have legal status under a statute, but where there are humanitarian or other reasons to allow them to remain in the country.
We saw the large-scale enactment of a deferred action program in 2012 when Obama announced the Deferred Action for Childhood Arrivals Program, which meant that people who had come to the United States as children, and who were qualified in other ways for the program–that is, they didn’t have certain criminal convictions, and they had attained certain educational landmarks–those individuals could remain in the country and would be deprioritized for deportation. But it doesn’t bestow a permanent legal status on them. It comes with a work authorization for individuals, which is pretty important because if you’re not authorized to work it is very difficult to navigate life in the U.S. Every two years, these individuals have to reapply. They have to pay again for their work authorization. They pay a substantial amount of money for that work authorization. And they have to once again demonstrate that they are still eligible to remain under the terms of the program. But ultimately, only Congress can give these people lawful permanent resident status. Only Congress can give them citizenship.
Rich Ford: You looked at the effect of these stop-gap measures on the subject population. What are some of the things that you found?
I think it was important for us to humanize people, which shouldn’t be necessary, but somehow seems perpetually necessary when we’re talking about immigration. I think one thing that it’s important to stress is that the individuals that we were speaking to in this context are people with long periods of time living in the United States and deep ties to the United States. Issues around recent arrivals at the border are related, but a different set of issues.
The language of “border crisis,” and the recurring narrative or drumbeat around notions of border crisis, is often used to diffuse political support for giving legal solutions to long-term residents. We saw that pretty pointedly while we were conducting our study. We interviewed people in the Los Angeles and Orange County area in the period from 2014 to 2017, and as the litigation around the Deferred Action for Parents Program was ongoing, as the litigation for the DACA expansion was ongoing, there was also increasing focus on the rising numbers of unaccompanied minors who were arriving at the southern border from Central America, and the overall numbers were not big. If we’re talking about the number of actual people arriving at the border, they were not particularly substantial. It was a notable percentage increase in the number of unaccompanied children who are arriving at the border and there are a variety of legal reasons that it was happening in that way.
What was interesting was the way that percentage increase in the number of unaccompanied children who are arriving at the border was converted into a story of a border crisis and how that narrative of border crisis was directly used to explain or to frame why it was that deferred action for parents or deferred action for childhood arrival–if expanded–would be bad policy.
Pam Karlan: Do long-term residents see these as two separate issues or is it you who are seeing these as two separate issues?
One thing that you learn quickly when you start to interview immigrant residents who have lived in the U.S. for a long time is that people have a wide array of views, political and otherwise, and a wide variety of views on questions of immigration, on questions of border policy and how that impacts their own status. There were some people who felt like the fact that there was an increase in people coming to the southern border, and that there was a lot of attention to this, was a problem for them. In their view, they wanted to be given priority. And if that means dealing more harshly with people who are coming to the southern border, that’s a tradeoff that they think is fair. There were other people though who saw the focus on recent arrivals as more likely to engender harsher responses to them and to their loved ones. They didn’t think that they were going to get any political gain out of seeing harsher border policies. But some people who had arrived 10 or 20 years ago on a temporary visa for work and overstayed viewed themselves as a very different category than people who were trying to cross the border, fleeing situations in Central America. As with many things, it’s complicated.
Rich Ford: With regard to the people you talked to in the course of your research: what’s their relationship to the federal government and in particular agencies that are trying to help them? Did you see problems like individuals being afraid they will be deported if they talk to individuals in agencies purporting to help them in the course of your research?
Again, we see a complicated story. Many of our interviews wound up taking place over the very tail end of the Obama administration and then into the early days of the Trump administration. I think Trump’s rhetoric made a lot of people very edgy about interactions with the federal government. There was a sense that if they had to have interaction with the federal government that it was likely to be disastrous for them. Still, people have a fairly sophisticated understanding of federalism in the context of immigration. People understood the difference between the governor’s policies on immigration and what they were getting out of the state of California, versus what the federal government was doing on immigration. If you’re navigating life as an immigrant, you really have to understand some of these nuances: Are my school officials the same as a federal official? No. And does that matter? Well, yes, it does.
Rich Ford: Where do you think we should go now? What would be an ideal reform from your perspective?
Jennifer Chacón: I think what I can safely say is I think current events revealed that the issues that we talk about in depth in the book continue to be salient. We saw President Biden announce new restrictions on asylum at the southern border, placing a cap on asylum that’s not in the statute. The notion is that when the number of arrivals gets to a certain point, then there just won’t be asylum processes available to individuals who don’t qualify through other channels. And so we see this notion that there are too many people coming, or we need to limit the number of people coming. And we see that coupled with his more recent announcement aimed at long-term residents, in this case, the spouses of U. S. citizens. The idea here is to give parole-in-place for individuals who are the spouses of citizens, meaning that they have now been given a way to more smoothly apply the process of obtaining a green card without having to leave the country for consular processing and face potential bars.
This is a way of addressing the needs of a population that’s here, that has deep family ties, and doing so in a way that at least at the level of messaging, is coupled with language about being more restrictive at the border and that sort of coupling is exactly the kind discourse that we saw in our own writing in the period from 2014 to 2017. We’ve seen this many times. This kind of coupling is not at all new, but I think it’s really interesting to see it happening so vibrantly again with the Biden administration’s two recent announcements.
Rich Ford: In your ideal world, what would a piece of legislation to begin to address these problems look like?
One thing that we know is that a lot of people have been here for a very long time, are very deeply integrated with their communities, and really need a way to navigate their lives more fully than they’re being allowed under current law. I don’t think it would be at all a problem from a policy perspective to give these individuals lawful permanent residence and a path to citizenship. There are about 11 million people who are in the United States without authorization, who have lived here for a long time. We estimate the undocumented population to be about 11 million, and it’s estimated that more than half of those people have been here for more than 10 years, so they’re long-term residents, deeply integrated into communities.
Providing some sort of legalization solution for the majority of that population makes good sense. That probably needs to be paired with some thinking about the border. But I do think that we’re thinking in ways that are deeply troubling about the border rather than in ways that are pragmatic. So, what we need to be thinking about when we think about the border is how to streamline and effectuate processing for asylum claims. There are lots of people coming with legitimate asylum claims and we need to find ways to grapple with that. The immigration courts currently have a backlog of about 3 million cases.
Also, I think about individuals who have received Deferred Action for Childhood Arrivals, announced by President Obama in 2012. Those people have been living in this continual liminal status for 12 years now. There is no reason that they couldn’t be citizens tomorrow. They’re already functioning as citizens. I think we need to come up with something for them, really yesterday, but certainly as soon as possible.
Pam Karlan: We have at least one major presidential candidate whose solution is quite different from yours, which is to deport millions of people who are already here. How do you respond to that?
One response I have is part of the reason that we wrote the book is because we thought it was important to tell a more complex story about who immigrants are in the U.S. Part of the reason for the book is to step outside of the caricatured narrative about who immigrants are and what they’re doing. I think there’s a lot of political traction to that narrative that immigrants are, to use the words of Candidate Trump “poisoning the blood” of the United States, that they’re overwhelmingly criminals and otherwise a threat to the nation. That is really powerful rhetoric, and it is rhetoric that is amplified in a variety of media outlets, generating fear, stoking horror, and stoking dehumanization.
It’s particularly important that we engage in this project of telling different stories about what is possible and about who we are.
Jennifer M. Chacón researches issues that arise at the nexus of immigration law, constitutional law, and criminal law and procedure. Her writings elucidate how legal frameworks on immigration and law enforcement shape individual and collective understandings of racial and ethnic identity, citizenship, civic engagement, and social belonging. She is the co-author of the immigration law textbook Immigration Law and Social Justice, now in its second edition, and the co-author of Legal Phantoms (Stanford University Press, 2024), which explores how the past decade’s shifting immigration policies have shaped, and been shaped by, immigrant communities and organizations in Southern California. She was a co-convenor of the Immigration Policy Advisory Committee to then-Senator Barack Obama during his 2008 presidential campaign, and an outside advisor to the Immigration Transition Team of President-Elect Barack Obama from November 2008 through January 2009.