A reflection written by María Alejandra Torres
For two consecutive days in late February 2022, community justice advocates from across the United States, the Bernstein Institute for Human Rights, and NYU Law Review held the Critical Legal Empowerment Symposium(hereinafter the “CLES”) remotely on Zoom because of the ongoing COVID-19 pandemic. The purpose of the CLES was simple but powerful: to invite activists, organizers, students (law and undergraduate), lawyers, academics, and other professionals to brainstorm how to redistribute legal power and make justice more inclusive. To bolster these fruitful yet challenging discussions, the CLES was accompanied by Community Action Workshops (hereinafter “CAWs”), each dedicated to one of four distinct though ultimately interconnected tracks: the criminal, civil, immigration, and environmental systems. Each track had three CAWs. The first took place on February 18, 2022, from 10:30 a.m. to 12:00 p.m.; the second occurred during the first day of the CLES on February 24, 2022, from 11:00 a.m. to 12:00 p.m., and the last happened on March 4, 2022, from 10:30 a.m. to 12:00 p.m.
This blog post will cover the Immigrant (In)Justice track of the Critical Legal Empowerment Symposium. The track’s name demonstrates that the three-part conversation first had to address existing injustices in the immigration system before beginning to envision just solutions for the immigrant community. Part I will provide the author’s journey into this space. Part II will summarize what was discussed at the Immigrant (In)Justice CAWs. And Part III will conclude with hopeful calls to action.
Author’s Journey
Being a CLES Fellow was a great way to start my last semester at New York University School of Law. I began to seriously consider law school in my junior year of college after Trump got elected. As someone who interned at various immigration organizations during college, I knew what a Trump administration would signal for immigrant communities. Law school seemed like the right next step, anyway, for a high-achieving immigrant Latina woman who believed the narrative that law school is the only path for “social justice warriors.”
The past three years have been, at times, exciting, and at other times, incredibly frustrating. Relevant here is the experience of navigating law school during an administration—with actors who graduated from NYU Law—that used and abused the law to ratify, more tangibly, white supremacy; during yet another era of police brutality against Black people and increased violence against immigrants that demonstrated the (intentional?) weakness of the law; and during a deadly long-term pandemic that has disproportionately impacted low-income, disabled, and racialized communities. I felt uncomfortable knowing that my biggest concern was being prepared for class, reading cases whose decisions and class discussions were devoid of sociopolitical context and impact, being taught that the law was the answer, when around me, seemingly everything indicated otherwise, and being advised against participating in protests, lest I raise character and fitness problems.
I was questioning my future, my ability to truly promote radical change, and my complacency, however unwilling, in a system that is often violent, all while knowing that I must do something for minoritized communities who have not been afforded like privileges. A silver lining appeared in my last year—better late than never, I suppose. As a student advocate with the Global Justice Clinic, I was introduced to the concept of legal empowerment and recognized that that is what I want to do—I just did not have the terminology up to that point. I want to share the academic and professional resources I have acquired with impacted communities, working with and alongside them.
There are many reasons that public interest students lose sight of why we applied to law school in the first place: because of total disappointment when confronted with the reality of how the law operates, because of mounting debt to acquire a JD just to socially legitimize your social justice advocacy, because law schools applaud students who go into big law, and/or because law schools traditionally teach you to view the world through only one lens. That is why I am trying to do things differently, in a more interdisciplinary way, in my final year, and applying to be a CLES Fellow was part of that approach. What better way to learn more about legal empowerment in distinct areas than to interact with and hear directly from activist practitioners, irrespective of their law degrees, who innovatively use and co-opt the law as just one tool to realize justice?
Immigrant (In)Justice Community Action Workshops
The Immigrant (In)Justice CAWs were co-anchored by Antonio Gutierrez (they/them/theirs), Co-Founder and Strategic Coordinator of Organized Communities Against Deportations (OCAD), an undocumented-led, Illinois-based organization that empowers undocumented immigrants to resist ICE detention and deportation; and Lam Ho (he/his/him), Founder and Executive Director of Chicago-based Beyond Legal Aid (Beyond), which functions on a “community activism lawyering model,” whereby lawyers and activists work together. The three CAWs welcomed participants who were practicing lawyers, law and undergraduate students, community activists, and people impacted by the immigration system. The overarching goal of the Immigrant (In)Justice CAWs was to stress the importance of identity and law as a narrative tool, to overcome obstacles for attaining justice in the way one sees for themself. As such, the co-anchors encourage a shared space for vulnerability and collaboration.
The three CAWs, but especially the first, were very human- and narrative-centric, which served to counter the hegemonic political and media narrative that immigrants are just statistics rather than real people with histories, challenges, and dreams. Antonio and Lam shared their unique and intersecting stories of immigration and advocacy. In doing so, they compellingly underscored a key element of legal empowerment: the development of community-lawyer partnerships based on trust, communication, transparency, and creative support for community goals and needs. The success of the CAWs was owed largely to Antonio and Lam embodying what they advocated. Indeed, after Beyond was established, OCAD became its second community partner. Through Antonio and Lam’s experiences, the first CAW set the historical stage for highlighting barriers to justice, or incomplete justice, and the depowering nature of the legal profession and system writ large.
Antonio was inspired to mobilize after noticing that the incredible feat of obtaining a college diploma as an undocumented person from Mexico meant nothing if one does not have a work permit. Furthermore, the limitations of DACA created a dichotomy between “good” and “bad immigrant,” rendering those with criminal records undeserving, and perpetuating the vilification of parents who were targeted for deportation under the Obama administration. Antonio and their fellow activists in the Chicago-based Immigrant Youth Justice League (IYJL) shifted the narrative of the immigrant rights movement by “coming out of the shadows” unapologetically and unafraid. They created OCAD, a “project of civil disobedience,” that organized, with community support and awareness, against deportations of people with and without criminal records. For example, by blocking buses traveling to detention facilities and airports for deportation, OCAD members boldly asserted that undocumented community members belonged in their communities, and challenged the weaponization of the law to stifle protest.
Antonio played a clip of the 2010 “coming out of the shadows” event and discussed two critical aspects. First, calls for radical change can be, and often are, inspired by past civil rights movements, such as the queer liberation of the 1980s. Second, control of one’s story can be a political tool to mobilize oneself, community members, and legislators. In this way, empowerment processes do not have to depend on formal legal methods.
Lam then followed by also vulnerably sharing his journey as a Vietnamese immigrant who became a community lawyer. He poignantly explained that he grew up with a family who did not have any voice. As a child, he witnessed how dehumanizing the legal process is after accompanying his parents in various courtrooms over the years for immigration, criminal, and domestic violence matters. Lam decided to go to law school to be different—to be a community lawyer who empowers rather than claims himself in charge of another person’s legal matters. But what is a community lawyer? A community lawyer must belong to the community and must do work that directly responds to what the community wants and needs. The legal profession is structured to discourage self-criticism. Rather it encourages self-aggrandizement and a hierarchy of the type of cases a lawyer should take, sometimes accompanied by restrictive funding for public interest lawyers. Thus, Lam persuaded law students and lawyers to consider their work, community lawyering, and what it means to change the hands that wield legal power inside and outside of the courtroom.
Lam and Antonio concluded by speaking about Francisco. Francisco’s case study showcases four vital lessons: (1) the imperfectly perfect humanity of those going through immigration proceedings, (2) the partnership between OCAD and Beyond, (3) the strength of community leadership in legal decision-making, and the value of attorneys’ unwavering reinforcement of the community decisions that are made, and (4) the contradictions of the legal system.
In line with OCAD and Beyond’s partnership model, Antonio, a community member and paralegal (who is part of the legal team to protect the confidentiality of information using the legal attorney-client privilege rule) was Francisco’s first point of contact—not a lawyer. Acting as the bridge between the community and the legal system, Antonio arranged Francisco’s healing-informed intake (i.e., one that is not a linear Q&A, does not retraumatize, and offers to connect people with mental health services) at a community center, and connected him with Beyond who took the case, notwithstanding how “unwinnable” it was. Because of Jeff Sessions’ mandate as Attorney General under the Trump administration, obtaining Cancellation of Removal was going to be difficult with two underlying DUIs. OCAD also wanted Beyond to push for a second bond determination hearing to connect Francisco with his family who was mentally, psychologically, and emotionally distraught, and to strategically drag out litigation while OCAD galvanized the community and the press. Beyond was hesitant because it did not want to annoy the judge who would ultimately decide Francisco’s fate. Lam further commented that the legal system forces lawyers to control others’ stories, portraying them inauthentically— “the client” is either a helpless victim or an infallible model minority.
But how can someone own one’s story unapologetically and unafraid in such a system? To this tension, attendees responded by sharing more complications that need to be critically addressed. Welcomed by the co-anchors, the participants reflected on their roles, careers, and collaboration with communities, or lack thereof. Is the system working as intended rather than being “broken”? Do direct legal services and harm reduction paradoxically function to accept the system rather than work to dismantle it? How can relationships of trust between partnerships that foment genuine and critical feedback be developed? Is appealing to judges’ emotions or courtroom etiquette a strategy or succumbing to the structure that allows one person to dictate another’s life?
Left with these provocative questions, attendees returned a week later for the second CAW, where they learned more concretely about the legal empowerment strategies of community-driven litigation and accompaniment through Francisco’s case study. Inspired by Vivek Maru of Namati, Lam characterized community-driven litigation as a strategy that attempts to break down the dichotomy of organizing and litigation. The decision to go through with a bond redetermination hearing is emblematic of community-driven litigation, which is an approach to litigation that transfers legal power into the hands of community members, such that the two parties are collaborators. In other words, OCAD made the final decision, and while Beyond lawyers made the submission, the community showed up in court to advocate for Francisco. In addressing the initial question about conflicting narrative methodologies, Beyond lawyers created an opportunity for Francisco’s son to talk directly to the judge to preserve an authentic story; and asked the judge to permit a conversation between the two because a heartfelt dialogue is more powerful than legal arguments. While the judge denied bond, he eventually ruled in Francisco’s favor and granted the Cancellation of Removal. Beyond and OCAD believe the judge made this decision in large part due to the impact of community love at every hearing. Beyond community-driven litigation, this case study is also an example of accompaniment: entering spaces of legal oppression together, as witnesses and in solidarity. The community was with Francisco throughout the whole process, as OCAD created a base of people with a scheduled rotation for packing the courtroom (that nonetheless had to abide by “court decorum”). Two CAW participants accompanied Francisco throughout his legal process and shared their experiences, noting that accompaniment, in the way that it disrupts the courtroom setting, symbolizes a powerful form of “civil (dis)obedience” to call attention to the creative use of rules on open courtrooms that are dependent on “decorum.”
The last CAW centered participation by attendees. Attendees brought their experiences, tactics, lessons learned, questions, and possible solutions forward. Some contributed that grassroots experiences drive policy change and that the U.S. public interest lawyering model should change from client-oriented legal aid to community legal empowerment, with organizations having the vision to empower members. Others suggested that organizations have models in which community members and attorneys physically share the same space or bifurcated models with human and organizational clients to base-build. Attendees and the co-anchors questioned whether someone can be an attorney and an organizer, and similarly, why often an attorney and an advocate operate as separate roles. To date, legal education and many legal tools are reactive rather than proactive. Instead, people should be encouraged to be organizers, then advocates, and then given tools—with formal legal education being one of a range of options—to push towards bringing out the power of the people, analyzing root causes, and advocating for change.
Antonio shared that Francisco and his family also became members of OCAD, engaging in self-advocacy and leadership, organizing anti-deportation campaigns, and acting as advisors for new members and incoming cases. In this way, OCAD remains faithful to its undocumented-led framework focused on self-determination (in addition to abolishing ICE) because it gives its members opportunities to be actively involved in change-making spaces. Moreover, Antonio emphasized the importance of building community; partnering with others who have social capital within communities; directly tackling unauthorized practice of law as a justice-barrier; knowing more than one field and being part of the community as a holistic and genuine community lawyer; and opined that being an Accredited Representative (a formal designation for non-lawyer advocates in the U.S. immigration system) is useful but still quite inaccessible to community members without English proficiency or formal higher education.
Both anchors, through their experiences, warned lawyers that they should not reject “unwinnable” or “messy” cases, such as those that straddle “crimmigration.” Lam also underscored that to be genuine social justice partners and allies, lawyers need to shake off their entitlement, depower themselves and decenter the law, and adopt an empathic mentality to bring out the autonomy of communities rather than provide charity. Indeed, ideally, Beyond will just be providing interim relief until the community is catalyzed to take over. Finally, Lam and others noted that all communities should have an organization like Make the Road, which “builds the power of immigrant and working class communities to achieve dignity,” and health, environmental, immigration, criminal, workplace, and TGNCIQ justice. Make the Road’s “four core strategies for concrete change” underscore what CAW participants viewed as legal empowerment practices: (1) legal and survival services, (2) transformative education, (3) community organizing and (4) policy innovation.
Conclusion
As a CLES Fellow, I wanted to feel motivated and less pessimistic again, to be inspired, and to understand how I can use this degree in a positive and not-harmful way. And I wanted to see how I could tackle immigrant injustice, not from a survivor’s guilt and defeatist point of view, but from a transformative and power-shifting perspective. The Immigrant (In)Justice CAWs reignited my hope, equipping me with an important analytic reframing, from one of self-centered frustration to one of critical engagement with the system that centers community commands. I relearned that communities have knowledge and power. I discovered that the parameters that make a case “unwinnable” need to be evaluated but for now, “unwinnable cases” can be “winnable” if community organizing is involved, and community voices are heard and uplifted. I am left knowing that everyone can and should be a social justice advocate, regardless of educational experience or formal training. The co-anchors and participants emphasized that the way that justice is discussed and taught must change because we are all experts on our lived experiences. These CAWs and legal empowerment strategies have highlighted that justice should not be so professionalized and regimented. We should challenge what it is to be a legal practitioner and the modalities through which justice is achievable.
Thanks to this three-part conversation, I more adamantly believe that, to begin, the law school curriculum and profession must incorporate legal empowerment as an area of study and practice, to ultimately replace the attorney-client relationship. Attorneys, law students, and those wishing to go to law school must critically analyze how the law historically and currently enacts and preserves oppressive systems, and the role we play—directly and indirectly—in maintaining these systems. We should actively seek out imaginative ways to problem-solve injustice, even if it means looking beyond the law, which is often the case, despite the categorization of career paths. There is a reason why oppressive systems, such as the immigration system, do not change—we have been using and reproducing the same tools for decades. I understand that legal empowerment might not be the perfect solution, but until we devise better ways to listen and not speak over or distort people’s voices, and truly allow non-lawyers and marginalized communities into decision-making spaces, it is a start. I, thus, encourage readers to survey OCAD, Beyond, and Make the Road’s websites for inspiration.