On Queering Immigration Justice

A personal message from the Executive Director

I’m processing election results as a heritage Spanish speaking “dirty immigration lawyer” of white-Latine descent, but also as someone who only recently came to understand, accept, and love myself as trans. I often wonder how earlier life might have been if I had felt safe to love myself sooner instead of doubting and hating and entangling myself in avoidant and, sometimes, destructive situations. Today, I woke up wondering if queer and trans youth feel safe to love themselves, too, given the electorate’s emphatic message that we wish they didn’t exist.

I learned early that LGBTQ+ identity was something to hate and hide, despite my family’s best efforts, and that anyone outside dominant norms was vulnerable to harm from which those in power would not protect them. I landed in Vermont, seeking refuge to live openly in my queer identities, where my risk of needing protection from harm was comparatively lower (given my many other relative privileges).

What I am describing is the root of forced migration, a set of factors that push people from their homelands and pull them to places of refuge. When crossing international borders, migration is strictly regulated by law. When crossing inward across U.S. borders, it is often wrongly labeled “illegal.” Since the mid-20th century, international and federal law have mandated that the U.S. must "withhold" removal of people who fear harm for things about themselves they cannot change or shouldn’t have to change (“protected grounds”) from which their government can’t or won’t protect them. In 1980, the Refugee Act added the option of discretionary asylum as an added benefit to withholding, offering more permanent status, family reunification, and potential U.S. citizenship. Federal law requires only that a person be present and afraid to invoke their right to a fair hearing on eligibility for asylum or withholding. Therefore, there is no “wrong” way to seek asylum, and anyone with an unexhausted claim is, by law, an asylum seeker. People cannot “be illegal.”

Most people seeking help from VAAP are asylum seekers. We explain, quoting attorney Sarah Morando Lakhani, that U.S. immigration law offers them three pathways to more regularized status: family-based (based on “blood” relationships), employment-based (based on “sweat” relationships), and humanitarian-based (based on “tears” relationships). Programs like VAAP focus on the last, which are often too time-intensive, politicized, and unstable for private bar coverage. Asylum and withholding are just two of many humanitarian pathways in U.S. law, and people are not limited to pursuing one at a time. Success depends not only on finding affordable counsel, which isn’t provided, but also on proving the “right” kind of harm to the “right” part of their marginalized identity. Even imminent death upon deportation is often insufficient.

This remains true today, November 6, 2024, just as it was on November 9, 2016. I had just passed the Bar and was preparing to handle my own immigration caseload. My team and I arrived at work to an influx of messages filled with anger and fear. We gathered in a conference room, where I tried to support colleagues more directly impacted by the day’s explicitly anti-immigrant presidential victory. Top of mind was how to respond to our clients and communities when we didn’t even know what to say to our loved ones—or to ourselves.

Gradually, we adapted to an immigration practice marked by rapidly diminishing rule of law, dwindling due process protections, explicit race-based discrimination, and zero-sum policies pitting immigrant groups against one another. We did what lawyers do: we studied past judicial applications of statutory law to predict future outcomes. The law predicted asylum eligibility for cases involving domestic violence, gang violence, climate displacement, and structural economic exclusion. But soon came the Muslim Bans under Title 8, Trump v. Hawaii affirming the Muslim Bans, Matter of A-B- (i) upending decades of stare decisis, and border closure under Title 42. The Executive Branch was testing the limits of its plenary power, seemingly to course-correct immigration law’s evolution from its exploitative, white supremacist roots into an exploitative, white supremacist system that was at least capable of producing socially just outcomes sometimes—an evolution that partisan politics now dismissed as “absurd results.”

We carried on screening clients for eligibility under prevailing immigration law, filed applications, amassed corroborating evidence, wrote briefs, challenged pretextual evidence requests, engaged Congressional advocates for accountability, and won—and lost—cases. We held Know Your Rights training at community centers, assuring people that statutory law remained intact, and they could safely work, take children to school, go to court, or seek emergency help. We mobilized volunteers at detention centers, airports, and land borders to help people assert their legal rights where government’s insulation from accountability is strongest. Guided by organizations like VAAP, we maintained service quality and supported local lawmaking to improve immigrants' lived experiences. We started going to therapy (and kept going). We persisted.

I started each legal intake with, “What are your goals?”—quickly adding that justice wasn’t on offer. As a direct services immigration attorney, I can only assist a lucky few with accessing work authorization, identity documents, pathways to status, family reunification, and safety from removal. “Justice” isn’t an option, but depending on your blood, sweat, and tears, there might be some legal tools we can use to help you meet at least some of your extraordinarily valid and pressing goals.

All of this remains as true today as ever. We have the law (as best we understand it), some facts, recent experience, our therapists, and each other.

There is no justice, my first queer love often reminded me. There is just us.