Monday, May 11, 2015

Disrupting Immigration Law and Enforcement

Dear Friends,

I have just posted the draft of my article Ethics, Morality, and Disruption of U.S. Immigration Laws [Forthcoming in the Kansas Law Review 2015] on SSRN.

In this essay, I review Department of Homeland Security immigration enforcement tools and what I feel is the unnecessary havoc that they wreak on immigrant communities.  In the process, I describe the resistance to these policies by immigrants and their supporters who have attempted to disrupt the enforcement tools. Immigrants and their supporters are attempting to raise awareness of better strategies to resolve whatever problems are perceived to exist.  I also argue that the disruptive tactics by immigrants and their supporters have actually helped to push the Obama administration into engaging in disruptive innovation (most notably, DACA and DAPA) of its own with respect to how to approach certain classes of removable immigrants.

Administrations and officials who engage in pernicious enforcement approaches need to be held accountable to fair-minded, humanistic-thinking Americans.  These actions have occurred on our watch, and we should not stand by idly.  Thus, I also submit that we should devise methods of holding officials accountable, perhaps by creating a public oversight group along the lines of citizen oversight panels of police departments that would focus on the anti-humanitarian effects of immigration enforcement. We also demand that immigration enforcement be viewed through the lens of human rights values.

I have been intrigued by the use of the term “disruptive” in the business pages as of late.  A disruptive technology is one that displaces an established technology and shakes up the industry or is a ground-breaking product that creates a completely new industry.  Thus, a disruptive innovation is one that helps create a new market and value network, and eventually disrupts an existing market and value network (over a few years or decades), displacing an earlier technology.

The protests of immigrants, such as DREAMers, and their supporters disrupting and challenging the immigration enforcement regime are important.  Their actions—conventional in the sense that sit-ins, protests, and media campaigns are part of the American call for social change—have led to changes in immigration enforcement, but are not themselves the disruptive innovation in immigration enforcement.  But the results of these actions have led to disruptive innovation in immigration enforcement, namely, President Obama’s executive actions which have led to the disruption of the conventional rules of enforcement, thereby forcing ICE officers to defer action against large classes of removable individuals for policy reasons.  In other words, the conventional enforcement lens of whether or not the person is removable is forced to give way to a more nuanced lens of giving deference to removable individuals who meet certain criteria.  That is disruptive innovation that disrupts the way we look at enforcement—internally and externally.

I encourage those who agree that our nation’s methods of enforcing immigration laws is lacking a strong moral base, to engage in disruptive actions until our leaders come up with innovative disruption of that enforcement philosophy.  Just as on-the-street disruption has led to disruptive innovation, namely, the monumental administrative relief announcements by President Obama, we can push for more.  Parents of DREAMers have been left out of these protections.  Lawful permanent residents and refugees who have been labelled “aggravated felons” have been left out—even those who demonstrate clear progress toward rehabilitation.  Immigration laws and procedures result in deportation decisions devoid of any sense of human rights values or proportionality.

Constant disruption is needed in all forms—protests, public oversight, immigrant engagement, litigation, and individual representation—if we are to convince public policy leaders to review immigration enforcement policies with a moral foundation. With that foundation, our leaders can begin to reinvent and disrupt the reigning U.S. approach to immigration enforcement. The rules can be changed and enforcement philosophy reframed.

The article can be downloaded here.


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