Introduction

In the United States, discussions concerning immigration often involve a dichotomy between the nation’s essence as either one of laws or one of immigrants. While supporters of the former look to legal documents to resolve who is a lawful resident, proponents of the latter are adamant that the United States was established, and continues to flourish, because of the migrant population so laws alone cannot decide who resides in the country. However, there is a falsity to both ideas. The claim that we are merely a nation of laws ignores the American history of persecution against its own citizens. And, using language like we are a nation of immigrants is divisive as it essentially separates people, albeit subtly, into two categories of who is a “true” American and who isn’t.

This post illustrates a way to bridge the gap between the dichotomy—through migrant narratives. Part I begins by noting flaws in the current U.S. immigration legal system. Then, it emphasizes the necessity and importance of placing migrant narratives at the center of immigration reform. Part II addresses misconceptions about migration and creates awareness of migrant difficulty especially in places like detention centers. Next, it provides a reflection of my own migrant experience. Part III offers three ways to incorporate migrant narratives in the push for immigration reform. The three approaches—radical lawyering, legislative hearings, and the education system—aim to provide those in favor of laws a better understanding of the migrant plight, and practical solutions for migration advocates to help lessen the migrant struggle.

Part I

Legal Framework

The current U.S. immigration system is unfair, arbitrary, inhumane, and does not work in practice. Additionally, to combat anti-immigrant narratives in the legal world, it is important to have clear laws that define important terms; however, the definition of a refugee in the United States has changed several times since the country signed the 1967 refugee protocols.

The constant definition change makes it unclear as to who may be granted asylum.

For instance, there is no definitive answer as to whether “Patricia Hernández, 39, who fled her town in El Salvador when she was raped and stabbed after being accused of reporting a gang murder to police” will or should be granted asylum. Similar questions arise for “David Maldonado, 31, a wiry construction worker who fled Honduras after gang members shot him with a 9-mm pistol, once in each leg, just above the knee, for taking a job on a construction site controlled by a rival gang,” and “Luz, who fled Honduras with a fresh cesarean scar because her husband beat her so violently she feared he’d kill her next time.”

Furthermore, the most often invoked definition of refugee comes from two significant international conventions: the 1951 International Convention on the Status of Refugees (the “1951 Convention”) and the 1967 Protocol on the Status of Refugees (the “1967 Protocol”). The two conventions define “refugee” as a person:

[who] owing to [a] well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.

This definition focuses on individual persecution and thus excludes people fleeing war and civil strife. Thus, although international law would recognize one as a refugee due to their “well-founded fear of being persecuted,” it would not recognize another as a refugee because their fear stems solely from war and civil strife. Essentially, international law would allow the latter to fall through the cracks, subjecting both themselves and their family to the possibility of death.

Having the chance to share narratives can empower migrants and others similarly situated to seek protection outside of their country despite an arbitrary definition. In a misfunctioning system, it is necessary to acknowledge and rectify the harm against migrants. With any luck, those who disagree, will, at the minimum, learn something from the migrant perspective and make an informed decision.

Necessity of Migrant Narratives

Migrant narratives are necessary for immigration reform. If the migrant being impacted by an immigration policy is unable to tell their story, then the audience will be deprived of necessary information that impacts the migrant. For example, in Looking to the Bottom: Critical Legal Studies and Reparations¸ Mary Matsuda suggests that “those who have experienced discrimination speak with a special voice to which we should listen to.” Hence, narratives will allow policy makers to “look to the bottom”—to those directly impacted by the policies—and allow for relevant perspectives to be voiced in the discussion. Such perspectives are essential in considering migrant reform because any sort of change without knowing what those impacted by the change in fact want and need is futile.

Although Mary Matsuda’s article focuses on race and the injustices in the Black community, the proposal that we must examine what is just from the position of groups who have and continue to suffer is equally applicable in the immigration context. There cannot be migrant justice without racial justice, and vice versa. Thus, it is important for us to seek out migrant narratives when seeking migration reform, just as it is important for us to seek out narratives in communities of color if seeking racial justice reform.

Additionally, we will be unable to hear the concern of those directly impacted if we do not seek the answers in the right places. For instance, if it is unlikely for us to hear voices of those who experience racial struggle in corridors of law schools and libraries where we work, then “perhaps we seek the voice in the wrong places.” Similarly, for many migrants, “many of the truths they know come largely from their experiences outside of legal academia.” To advance real change, we must go to the borders, to the migrant communities, to the detention centers, to the classrooms where English is primarily the second language, to in fact get a closer picture of the migrant experience.

It is impossible to decide principles of justice without knowing the story of those directly impacted. Undeniably, one’s narrative will be influenced by whether they are rich or poor, a native or a migrant. What is just to a rich citizen may be entirely different to a poor migrant, and if the rich citizen is able to listen to stories and imagine himself in the shoes of the poor migrant then perhaps it may be possible to create fairer immigration rules as applied to migrants. As Mary Matsuda points out, “[i]magining the possibility of stateless may help derive rules that protect liberty in movement and fairness to immigrants” In other words, if the U.S. born citizen is able to imagine themselves in a scenario where they do not have a place to call home, then perhaps they will have more empathy with the migrant seeking liberty, protection, and fairness in migration laws.

Part II

Addressing Misconceptions

In addition to the legal drawbacks, there are many over- and under-estimations made by U.S. born citizens that taint the perception of immigration. Many are unaware that migrants flee because they feel they do not have a choice. For instance, Violeta Montessero and Candido Calderon, wife and husband, are among the 159,000 migrants who filed for asylum in the United States in Fiscal Year 2018. These two fled Guatemala with their three children, ages 9, 11, and 12, because gang members threatened to kill their children if they didn’t pay them “roughly $1200—the equivalent of five months’ income from the family’s juice stall.” Indeed, those fleeing for the safety of themselves and their families have no other choice but to flee.

The “use of the narrative form can highlight intersectionalities and unfold the depth of the immigrant experience,” and thus address the image of the “bad alien” as portrayed by anti-immigrationists. Certainly, raising dialogues consciously encourages different perspectives and provides responses to critiques. Instead of the narrative that people who cross the border “illegally” are committing a “crime” and thus should serve jail time and be removed from their families, the narrative should be reframed by empathetically hearing the migrants’ stories. After all, listening to migrants may help counter the myth that all migrants want to come to the United States for a better life because for many, “traveling to the United States feels like a last refuge.”

Even after asylum seekers reach the United States, many must endure the process of interviews, possible detention without adequate food, water, or sanitation, and await their hearing date without access to right of counsel. As recent as 2019, migrant children held in a Texas CBP facility had not bathed since crossing the border, had soiled clothes, and did not have access to soap, toothbrushes, or toothpaste. Additionally, stories like that of Fauziya Kassindja allow us brief insight about the terrible U.S. asylum process and prison system. Surely these stories and facts do not align with the misconception that migrants only flee out of choice and/or for an easier life in the United States.

Personal Reflection

Although my family did not flee persecution when emigrating from India to Canada, I am an advocate of storytelling for children and adults trying to assimilate in a foreign country. We left India in hopes that we could better our economic circumstances because living on food and water rations was no longer sustainable. However, upon relocating, my parents’ degrees did not hold any weight. They each worked two full time under minimum wage jobs to secure basic necessities for me and my two siblings like shelter in a stranger’s one-bedroom basement.

It wasn’t just a change in the physical surroundings that impacted me. Relocating to a country with a different culture and a neighborhood where no one looked the same certainly affected      my upbringing. As a ten-year-old, I was often reminded that my English had an accent, the fabric of my clothes was unique, the lunches I brought to school had a distinct smell, and the list continued. And, my inability to distinguish who was laughing at me or with me made it difficult to decipher between a friend and a foe. Shortly after, my father, frustrated with barely making ends meet, left my mother in search of a job in agriculture and I had to start working sixty hours a week on all summer and winter breaks at a packaging factory to help my mother. I had to relive my childhood but this time with the responsibilities of an adult.

In the middle of high school, I had to emigrate once again. My father urged my mother to move to a small rural town in California because he saw scope in agriculture. But, for me, the United States exposed a different level of exclusion through bullying, racism, and sexual assault, especially from those with a nativist mentality. The struggles were far from gone, but we worked together to secure a better future.

My reflection is aimed to highlight that once a migrant enters the United States, it is our responsibility to welcome and help them assimilate into the community. Had I been exposed to a community of people who looked like me, the opportunity to share my experiences with others, and resources that would help me assimilate, then perhaps I would have felt less isolated and alone.

Part III

Social transformation does not have to be one thing. There are three possible approaches to bridging the gap between the “nation of immigrants” and “nation of laws” dispute. Nonetheless, all options necessitate the use of narratives to reframe the discussion of what it means to be a migrant. The first is radical lawyering—for those who prefer to combine law and social change by engaging in community-based advocacy. Second is the inclusion of migrant narratives in legislative hearings—for those who prefer to create change through the courtrooms. The third is incorporation of storytelling in the classroom—for those who prefer to make change through the system of education. Any of these approaches will allow those who have been secluded to advance clear ideas about next steps to a better world—one where they are instead included.

Radical Lawyering in Communities

Lawyers can help promote narratives through rebel lawyering. Gerald P. Lopez’ model of rebellious lawyering is a progressive way to strengthen the relationship between lawyers and migrant clients. The fundamental idea behind rebellious lawyering is to combine law and social change in order to “empower the subordinated who can serve as their own advocates in future struggles when the lawyers are long gone. Radical lawyers “work with, not just on behalf of subordinated people” by taking stories of ordinary people and using them as the primary means of understanding and transforming a movement. In this sense, they join rather than simply lead the persons represented. Thus, by making clients equals in the decision-making process, rebel lawyering breaks the hierarchy between a lawyer and client.

To accomplish rebel lawyering requires collaboration with other lawyers and non-lawyers in hopes that all will immerse in their communities and enable clients through grassroots, community-based advocacy facilitated by the lawyers. This model can be extremely effective in the context of immigration. Imagining oneself as a migrant in some hypothetical world is less effective than studying the actual experience of migrants and listening to those who are struggling or have persevered. Thus, we need to be able to make law accessible to everyone, including migrants, and simultaneously make the migrant sense of the world accessible to everyone else, including lawyers. Narratives are necessary to foster such a collaborative and cooperative process. These stories help us interpret the everyday world with limited information and help us make choices about asserting our own needs and responding to other people. Without the chance for migrants to openly communicate what change is needed in the immigration system, migrants will be surrendered to the current ineffective legal system.

Rebel lawyers can work with migrants to problem-solve by incorporating migrants in strategy and approach discussions regarding reform, and sharing their narratives in scholarly articles and other legal work. Such lawyers collaborate with other service agencies and with the clients themselves; they try to educate members of the community about their rights; they explore the possibilities of charge and continually reexamine their own work in order to help their clients best. Once a lawyer in fact understands their client’s needs, and the needs of the migrant community, they will be better able to communicate these needs to the general population and organize for change. Incorporating narratives through rebel lawyering brings out perspectives from all walks of life and allows communities to work together to bring solutions to prevailing migrant problems.

Other countries have also embraced rebel lawyering as a social justice movement. The United States RebLaw movement has found its way to Scotland. In addition to community outreach, and face-to-face legal advice, lawyers in Scotland aim to help community members navigate the complex legal landscape through online legal clinics. Allowing migrants to have a platform where they can get together and speak their truth and share their experiences is beneficial for the community to understand what changes need to be made in migration reform. Evidently, migrants have the content and lawyers have the skill to make migrant discussions more client-centered, humane, and engaging enough to open minds of anti-immigrationists.

Courtroom Advocacy                                 

In order to make narratives the center of immigration legal reform, we must take advantage of our legislative system. Because the majority of people ordered removed never step foot inside a courtroom, and because there is no right to access to counsel in immigration courts, narratives become even more important when a migrant is given the chance to play witness in his own case rather than his lawyer testifying through paperwork.

Also, there are limitations to the courtroom itself. First, there are structural limitations. Immigration courts are housed within the U.S. Department of Justice and immigration judges are viewed as the attorney general’s proxies for enforcing deportations. Similar to the critical race theorist argument that laws cannot be written from a neutral perspective, immigration courts also fail to be neutral in perspective and remain structurally flawed. Because we do not have an independent Article 1 courts outside of the attorney general’s control, narratives will make space for voices that are otherwise silenced and combat the inherent bias in the litigation system. Second, there are inefficiencies inside the courtrooms. Relevant information is inevitably precluded as judges rush through their dockets because of high caseloads which then results in attorneys speeding through opening/closing statements and direct/cross examinations. Likewise, it is difficult to be open to hearing the voices of those who have been oppressed when Supreme Court justices themselves openly use the term “illegal” and “aliens” to refer to immigrants.

Narratives are essential to combat the above limitations as well as bridge the “gap between what passes for the truth in the judicial system and what goes on in clients’ lives.” Since certain rights do not exist in immigration court hearings, aside from procedural due process, the use of narratives in legislative hearings can perhaps help create a safer space for migrants to adequately represent their position. A U.S. citizen can even testify on behalf of an undocumented person and share their narrative if the person may be at risk of being identified and deported through his name or physical address.

Recently, migrants “took center stage in the impeachment hearings.” For example, Polyakova, 37, moved from Ukraine when she was 10 and found the immigrant stories to speak to the “many contributions that immigrations have made to the United States at all levels.” She also noted that the narrative that immigrants do not have the skill and want to take advantage of the system is flawed because there is a long history of immigrants who have shaped the policy of the United States and its vision of itself. Such narratives pave the path for the community to begin the process of change in a broken legal system.

Storytelling in Classrooms

Narratives can additionally be employed in the classroom. This form of storytelling can serve various functions. After all, “all students have been affected in some way by the movement of people around the globe.” And, it would certainly be beneficial for “all students to see themselves as equal participants in the global story of human migration.” Sharing stories can thus help students find a common ground across all cultures by illustrating common fears, hopes, and motivations felt by each other.

Further, storytelling can allow both migrants and citizens to reflect on different perspectives, acknowledge diversity through personal encounters, and share unique experiences from both sides of the spectrum which can certainly provide for a learning opportunity. Students born in the United States can likely empathize with migrants at an early age and tackle misconceptions about what it means to be a migrant and culturally diverse. Storytelling in classrooms will also provide the chance to address metaphors that dehumanize and minimize the plight of migrants. As Keith-Cunningham-Parmeter explains:

How we think metaphorically affects how we talk about problems and the solutions we formulate in response to those problems. This becomes a self-fulfilling prophecy: the more we repeat, circulate, and repackage certain metaphors, the more our conceptual domains become tied to a limited set of associations.

Teachers can also do their part to promote integration, mutual respect, and a shared sense of belonging for students in the classroom. Migrant narratives in the classroom can lead to not only storytelling but also to the sharing of food, music, literature, or artwork. However, it is essential for migrants to have a safe environment to conduct a dialogue that hopes to inspire a sense of community and belonging for the migrants. Ultimately, stories can help minoritized students feel more comfortable to communicate with one another which in turn may lead other students to get a deeper understanding of what it means to be a migrant in the United States.

Conclusion

The migrant struggles, both physical and economic, cannot be ignored. By listening to stories, we can move forward together and come closer to a world of cohesion without merely relying on strict definitions like the term “refugee” to determine who to include or expel. Client-centered community engagement as proposed by radical lawyering will give particularized attention to migrants by listening to and empowering them instead of dictating the laws to them. Further, the anti-migrant narratives can be countered and reframed by placing migrant stories at the forefront of our legislative and education system—as opposed to an afterthought.

We must diverge from the dichotomy, nation of laws versus nation of immigrants, and accomplish our objective of unity by placing narratives at the center of immigration reform. We must adopt the perspective of those migrants who have seen and felt the falsity of the liberal promise, including the American dream. This collective experience of the day-to-day life as migrants in a country historically bound to borders and banishment is sure to reveal the necessity for change.