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Race, Class and Immigration Law. By Roger Algase

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The following post has been revised as of the morning of December 15:

All immigrants and immigration advocates can breathe a huge sigh of relief over the fact that federal government funding dodged a right wing bullet by the name of Ted Cruz (and a left wing one called Elizabeth Warren) in order to avert a shutdown which, among many other things, would have wrecked key parts of our legal immigration system by closing the US Department of Labor and the State Department visa offices. Obviously, there was a direct connection between immigration and the shutdown threat, as the Texas Republican Senator made clear by holding up action on the government funding package during the weekend until it finally passed the Senate on Saturday night, December 13, while protesting against President Obama's recent expansion of executive action in order to grant temporary relief from deportation to some 4 or 5 million additional people. most of whom happen to be less affluent and Hispanic.

As everyone knows, the same Tea Party firebrand was also instrumental in shutting down the government temporarily in 2012 over a different issue, namely extending access to health insurance to 30 or 40 million people who would otherwise not have been able to afford it. This issue affected not only tens of millions of less well off white, black and Hispanic American citizens, but immigrants as well, especially because of the controversy over whether unauthorized immigrants should be given access to healthcare benefits under this law.

There was also a threat to government funding coming from the left, in the form of an effort by the Massachusetts Democratic Senator, Elizabeth Warren to persuade her Congressional colleagues in the House to derail the funding plan in that chamber because of its perceived giveaways to Wall Street banks and to wealthy campaign donors - an effort which came within only a few votes of succeeding, and which had support not only from the left, but from Tea Party leaders (including, reportedly, Senator Cruz himself) who also opposed benefits for the big banks and wealthy campaign donors.

Therefore, issues of race and class clearly played a role in the shutdown battle, with its attendant risk to the functioning of at least major parts of America's immigration system (even though USCIS would have stayed open in a shutdown, as was the case last time, since the agency is funded by user fees rather than directly by Congress).

Do issues of race and class have a direct influence on immigration law and enforcement as well, in addition to indirect effects which would result from a government shutdown?

As lawyers, we would all like to believe that the immigration laws are color-blind and that they are enforced equally with regard to everyone, regardless of national origin or social status.

We would like to overlook or disregard any evidence that there may be an underlying structural bias in immigration law taken as a whole against less affluent immigrants and immigrants of color. But does that correspond with the reality of immigration law and practice today?

Two distinguished authorities on immigration law, Kevin R. Johnson, Dean of the University of California, Davis, School of Law, and Bill Ong Hing, Professor of Law at that same school, have argued recently that race and class always have been and still are fundamental to immigration law, not only in the dark era of the 19th and early 20th century exclusion laws and racially motivated national origin quotas against Asian, Jewish, Italian, Eastern European and other "non-Nordic" immigrants, but also today, especially as applied against Mexican, other Latino and black immigrants.

See Kevin R. Johnson: The Intersection of Race and Class in U.S. Immigration Law and Enforcement, 72 Law and Contemporary Problems (2009),

http://ssm.com/abstract=1319795

and Bill Ong Hing: Institutional Racism, ICE Raids and Immigration Reform, UC Davis Legal Studies Research Paper Series Research Paper No. 197 (December 2009)

http://ssm.com.abstract=1525578

Their arguments are powerfully presented and backed up by extensive legal scholarship. They deserve to be taken seriously by anyone who is concerned with immigration law and immigrant rights. I will discuss these articles in more detail in upcoming comments.
________________________
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business, employment and family based immigration law for more than 30 years. His approach to immigration law is based, not only on fully understanding and applying the technical rules correctly, but also on asserting each person's right to a full and fair consideration of the merits of his or her case by an immigration system which may often tend to overlook or disregard these basic rights. Roger's email address is algaselex@gmail.com

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Updated 12-15-2014 at 04:42 AM by ImmigrationLawBlogs

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