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Cambridge University Press

978-1-107-07111-7 - Contesting Immigration Policy in Court: Legal Activism and Its Radiating
Effects in the United States and France
Leila Kawar
Frontmatter
More information

Contesting Immigration Policy in Court

What difference does law make in immigration policy making? Since the 1970s,
networks of progressive attorneys in both the United States and France have
attempted to use litigation to assert rights for noncitizens. Yet judicial engage-
ment – while numerically voluminous – remains doctrinally curtailed. This study
offers new insights into the constitutive role of law in immigration policy mak-
ing by focusing on the legal frames, narratives, and performances forged through
action in court. Challenging the conventional wisdom that “cause litigation” has
little long-term impact on policy making unless it produces broad rights-protective
principles, this book shows that legal contestation can have important radiating
effects on policy by reshaping how political actors approach immigration issues.
Based on extensive fieldwork in the United States and France, this book explores
the paths by which litigation has effected policy change in two paradigmatically
different national contexts.

Leila Kawar is an assistant professor in the Legal Studies Program of the Department
of Political Science at the University of Massachusetts Amherst. Her research,
which has been funded by the National Science Foundation and the Council for
European Studies, focuses on the intersection of legal activity with migration and
citizenship. She is active in the Law and Society Association, where she served
for four years as coordinator for the Citizenship and Immigration Collaborative
Research Network. She is a cofounder of the Migration and Citizenship Section
of the American Political Science Association.

© in this web service Cambridge University Press www.cambridge.org

Cambridge University Press
978-1-107-07111-7 - Contesting Immigration Policy in Court: Legal Activism and Its Radiating
Effects in the United States and France
Leila Kawar
Frontmatter
More information

© in this web service Cambridge University Press www.cambridge.org

Cambridge Studies in Law and Society

Cambridge Studies in Law and Society aims to publish the best scholarly work on legal
discourse and practice in its social and institutional contexts, combining theoretical
insights and empirical research.
The fields that it covers are studies of law in action; the sociology of law; the anthro-
pology of law; cultural studies of law, including the role of legal discourses in social
formations; law and economics; law and politics; and studies of governance. The books
consider all forms of legal discourse across societies, rather than being limited to law-
yers’ discourses alone.
The series editors come from a range of disciplines: academic law, sociolegal studies,
sociology, and anthropology. All have been actively involved in teaching and writing
about law in context.

Series Editors
Chris Arup Monash University, Victoria
Sally Engle Merry New York University
Susan Silbey Massachusetts Institute of Technology

A list of books in the series can be found at the back of this book.

© in this web service Cambridge University Press www.cambridge.org

Contesting Immigration Policy

in Court
Legal Activism and Its Radiating
Effects in the United States
and France

LEILA KAWAR
University of Massachusetts Amherst

© in this web service Cambridge University Press www.cambridge.org

32 Avenue of the Americas, New York, NY 10013-2473, USA

Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781107071117
© Leila Kawar 2015
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2015
Printed in the United States of America
A catalog record for this publication is available from the British Library.
Library of Congress Cataloging in Publication Data
Kawar, Leila, 1976– author.
Contesting immigration policy in court : legal activism and its radiating effects in
the United States and France / Leila Kawar.
pages cm. – (Cambridge studies in law and society)
ISBN 978-1-107-07111-7 (hardback)
1. Emigration and immigration law–United States. 2. Emigration and
immigration law–France. 3. Aliens–United States. 4. Aliens–France. I. Title.
K3275.K39 2015
342.4408′2–dc23 2015004871
ISBN 978-1-107-07111-7 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy of URLs
for external or third-party Internet Web sites referred to in this publication and does not
guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

© in this web service Cambridge University Press www.cambridge.org

For Nadia Farid Baddoura

(1925–2014)

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Contents

Acknowledgments page xi
Abbreviations xv

1. What Difference Does Law Make in Immigration

Policy Making? 1

2. A New Area of Legal Practice 25

3. Formalization of Immigrant Rights 47

4. Institutionalizing Legal Innovation 78

5. Enacting Adversarial Legalism through Class

Action Lawsuits 103

6. Performing Legal Activism before the Conseil d’Etat 127

Conclusion: Legal Activism and Its Radiating Effects 153

Notes 167
Archival and Other Primary Sources 189
Bibliography 193
Index 207

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Acknowledgments

This book would not have been possible without the generous assistance of
the many jurists in the United States and France who allowed me into their
professional world. I cannot here thank all of the advocates, judges, and gov-
ernment attorneys who contributed to this project over the years – they are too
many. However, I want to extend my gratitude to Dan Kesselbrenner, director
of the National Immigration Project of the National Lawyers Guild, and to
Lucas Guttentag, founder and former national director of the American Civil
Liberties Union Immigrants’ Rights Project, who took an interest in my proj-
ect, made themselves available for long conversations, and allowed me use of
their organizational archives in Boston and New York, respectively. In Paris, the
members and staff of the Groupe d’Information et de Soutien des Immigrés
graciously allowed me use of their archives, patiently answered questions,
facilitated contacts for interviews, and provided valuable feedback. I am espe-
cially indebted to Professor Danièle Lochak for encouraging my research and
to Jean-Eric Malabre and Serge Slama for their precious insights and friend-
ship. Finally, I extend my thanks to the immigration specialists within U.S. and
French public administration who are not named individually for reasons of
confidentiality, but who spoke frankly and at length with me about their work.
I first undertook this study of immigrant rights legal activism in the con-
text of my doctoral dissertation in the Law and Society Program at New York
University. I acknowledge the support of my dissertation committee mem-
bers: Christine Harrington, Christopher Mitchell, and Martin Schain. When
the project was in its formative stages, Christine Harrington encouraged me
to adopt a constitutive sociolegal perspective, and I am very grateful to her for
pushing me in this direction. Other mentors at New York University who con-
tributed conceptual and methodological insights to this project and deserve
special thanks include Rick Abel, Paul Chevigny, David Greenberg, Lewis
Kornhauser, Sally Merry, and Peter Schuck.

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xii Acknowledgments

I am greatly indebted to those at Sciences Po Paris who provided me with an

institutional home during my time in France. I particularly thank Professors
Catherine Wihtol de Wenden and Bruno Latour for their graciousness and
intellectual generosity. I also extend my sincere gratitude to Justice Bernard
Stirn, President of the Section des Contentieux, as well as other current and
former members of the Conseil d’Etat who allowed me to observe their public
and private audiences.
The research for this comparative study was funded by a grant from the
National Science Foundation’s Law and Social Sciences Program (Grant
SES-0616797); a Lurcy Trust fellowship for study in France; a Council for
European Studies dissertation grant; and a Jerome Hall postdoctoral fellow-
ship at Indiana University Maurer School of Law. A number of professional
archivists deserve thanks for expertly facilitating my access to the collections
of the Ford Foundation Archives, the U.S. National Archives at College
Park, the Centre des Archives Contemporaines at Fontainebleau, the Centre
de Recherche en Histoire Contemporaine at Sciences Po Paris, and the
Bibliothèque de Documentation Internationale Contemporaine at Nanterre.
Along the way, my understanding of the legal and political stakes of immi-
grant rights lawyering was sharpened through conversations with a number of
committed scholar-activists, especially Fran Ansley, Jennifer Gordon, Larry
Kleinman, and Fred Tsao. At Bates College, my colleagues Val Carnegie, Alex
Dauge-Roth, Naïma Hachad, Tina Malcolmson, Melinda Plastas, Carmen
Serrano, Carole Anne Taylor, and, especially, Bill Corlett and Elizabeth
Eames, offered solidarity and sustaining encouragement. My year-long fellow-
ship at the Center for Law and Society at Indiana University Maurer School
of Law offered space and freedom to write, enhanced by the collegial com-
pany of Lara Kriegel, Leandra Lederman, and Alex Lichtenstein. At Bowling
Green State University, I found pluralistic and welcoming colleagues among
the faculty and staff of the Political Science Department and in an Institute for
Culture and Society writing group amicably convened by Scott Magelssen. I
also express my sincere gratitude to reference librarian Vera Lux for her excep-
tional research support, as well as to Radhika Gajjala, Beatrice Guenther,
Nancy Kubasek, Sridevi Menon, Andy Schocket, and many other colleagues
for thought-provoking conversations about teaching and research. On mul-
tiple research trips to Paris, I was blessed with the friendship and hospitality of
Carolina Sanchez Boe, François Bonnet, and Karima Mazit.
Some portions of Chapters 3, 4, and 6 were previously published in sub-
stantially different form in the following sources: Law & Social Inquiry,
International Migration Review, and the Journal of Law and Courts. I am
grateful to the journals for permitting me to draw from these works.

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Acknowledgments xiii

This book has been influenced by the thoughtful and challenging com-
ments of a long list of friends and colleagues. Above all, I would like to
recognize Rick Abel, who generously shared his wisdom and experience
throughout the writing process. Allow me also to thank: Saskia Bonjour,
Jonathan Goldberg-Hiller, Anil Kalhan, Anna Law, Michael McCann, Sally
Merry, Johann Mori, Hiroshi Motomura, Frank Munger, Ronen Shamir,
Rachel Sturman, Mariana Valverde, Stephen Wasby, and Andrea Zemgulys.
At key moments, Lisa Disch, Marie Provine, Susan Sterett, and Mariah
Zeisberg were particularly generous with their time, sharing suggestions for
revisions and confirming that I was on the right track. I thank several anony-
mous reviewers for taking the time to engage with my project and for offering
very helpful feedback. I also extend special thanks to Alex Huneeus, Anne
Kornhauser, and Mark Massoud, who were my companions at various points
during the book-writing process as well as insightful interlocutors. During
the final stages of production, my dear friend Diane Chehab offered me her
experienced francophone editor’s eye, supplementing the excellent editorial
services of Cambridge University Press.
I am deeply grateful for the moral support of my family and friends through-
out this “insanely long” writing process. I could not have done it without you.
Thanks especially to Giorgio, whose cooking and careful line editing accom-
panied this book into the world.

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Abbreviations

ABA American Bar Association

ACLU American Civil Liberties Union
AILA American Immigration Lawyers Association
ANAFE Association Nationale d’Assistance aux Frontières pour les
Etrangers
BIA Board of Immigration Appeals, U.S. Department of Justice
CARDF Central American Refugee Defense Fund
CASA Center for Autonomous Social Action – General
Brotherhood of Workers
CFDT Confédération Française Démocratique du Travail
CGT Confédération Générale du Travail
Cimade La Cimade – Service Oecuménique d’Entraide de la
Fédération Protestante de France
DHS U.S. Department of Homeland Security
DOJ U.S. Department of Justice
DPM Direction of Population and Migrations, French Ministry of
Social Affairs
ECHR European Court of Human Rights
ECJ European Court of Justice
EU European Union
GISTI Groupe d’Information et de Soutien des Travailleurs
Immigrés/Groupe d’Information et de Soutien des Immigrés
INS U.S. Immigration and Naturalization Service
LSC Legal Services Corporation
MAJ Mouvement d’Action Judiciaire
MALDEF Mexican American Legal Defense and Education Fund
NCIR National Center for Immigrants’ Rights

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xvi Abbreviations

NILC National Immigration Law Center

SONACOTRA Société Nationale de Construction de Logements pour les
Travailleurs

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What Difference Does Law Make in

Immigration Policy Making?

In 1952, at the height of Cold War tensions, the U.S. Supreme Court in the
case of Harisiades v. Shaughnessy upheld the government’s efforts to deport
a longtime legal permanent resident who had briefly joined the American
Communist Party more than a decade earlier. In holding Peter Harisiades
deportable, the Court’s majority decision gave no consideration to his lack
of criminal record, the length of his residence in the United States, or the
possibility that he would be politically persecuted in his native Greece. “That
aliens remain vulnerable to expulsion after long residence is a practice that
bristles with severities,” wrote the Court, “but such is the traditional power
of the Nation over the alien.”1 The justices declined to interfere with the
way Congress had exercised this power in the Alien Registration Act of 1940,
which authorized the deportation of a legally resident alien because of mem-
bership in the Communist Party even when such membership terminated
before enactment of the act. Nor was the Court willing to consider the fairness
of the manner in which administrative officials had conducted Harisiades’s
deportation proceedings. The justices made clear that immigration policy
making would be shielded from juridical interventions, or as the Court put
it, “We leave the law on the subject as we find it.”2 The Harisiades decision
was a major blow to the efforts of leftist legal networks that had organized
Harisiades’s defense in the hopes of securing the rights of the foreign born
(Ginger 1993, 544). More broadly, for a generation of activist lawyers, the les-
son of the case was that challenging immigration policy in court was essen-
tially a hopeless cause.
Two decades later, as the 1973 oil shocks ushered in the contemporary period
of immigration restrictionism, a new generation of activist lawyers sought to
reopen debates over the role of law and courts in immigration policy making.
Members the 1970s generation of law graduates, both in the United States
and elsewhere, were galvanized by the tightening of immigration controls. In

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2 Contesting Immigration Policy in Court

taking up the cause of immigrant defense as a form of political engagement,

they dreamed of using law as a tool for social change and sought to enroll
judges as allies in this project. Initially, the boundaries and goals of this pro-
ject were relatively inchoate. As we will see, however, a particular form of
immigration-centered advocacy gradually emerged – one that I have termed
“immigrant rights legal activism” – characterized by a conscious effort to use
litigation to proactively assert or develop rights for noncitizens in the domain
of immigration policy making. Although these efforts frequently involve col-
laborations with immigration attorneys involved in more client-centered legal
practice, legal activism’s aspiration to intervene in national-level debates over
immigration policy making sets it apart.
Previous sociolegal scholarship has not explicitly considered the constitu-
tive relationship between immigration-centered legal activity and elite policy
making. Instead, sociolegal ethnographies have shown how, at the level of
local interactions, law constitutes the understandings of citizenship and jus-
tice that are formed and contested within administrative immigration hearings
and immigrants’ encounters with community-based legal services programs
(McKinley 1997, Coutin 2000, Kelly 2012). In addition, studies of immigrant
social movements have demonstrated how the language of rights can sup-
port grassroots mobilization efforts and immigrant community empowerment
(Coutin 1993, Voss and Bloemraad 2011, Gleeson 2013). But what about jurid-
ically oriented activity that aims to impact immigration policy making on a
national scale? What are the implications of these targeted and high-profile
legal interventions? What modality of politics do they construct?
This study seeks to answer these questions by offering an in-depth exam-
ination of the emergence and development of immigrant rights legal activ-
ism within two sharply contrasting politico-legal settings, those of the United
States and France. The analysis is centered around the activities of jurists
who, over the past forty years, have pioneered efforts to contest immigration
policies in court. As we will see, it is a project that has come to assume strik-
ingly distinct features in each country. Focusing on the specificities of each
national context, my analysis explores how immigrant rights legal activism has
assembled its professional identity and how it has been taken into account by
actors in the immigration policy domain. In tracing the policy-level effects of
court-centered contestation, I follow in the footsteps of several generations
of sociolegal scholars who have examined the “radiating effects” of action in
court (Galanter 1983). Challenging the hierarchic ideal of legal positivism, the
key insight of this sociolegal approach is the observation that practical engage-
ment with law is a culturally productive process. By shifting the focus away
from the official rules laid out in immigration cases and toward the process

by which immigration policy has been contested in court, we can explore

how legal engagements generate identities and meanings whose repercussions
extend far beyond any single case’s judicially enforced remedy or doctrinal
contribution.

Legal Constraints on Migration Policy: Deferential

Doctrine and Contained Compliance
Legal interventions have attracted what might best be described as passing
attention within the large and growing body of scholarship that examines the
dynamics of immigration policy making. To the extent that court-centered
activity has been discussed by scholars in this area, analysis has centered on
high-profile judicial decisions that extend the set of formal rights available to
noncitizens.3 On the whole, studies of immigration policy making have asso-
ciated legal interventions with the official dispositions of high-profile cases,
and debate has centered on how far the legal rules and remedies produced by
courts can be said to constrain the realization of legislative and administrative
preferences in the domain of immigration policy.
Among the first to call attention to the adjudication of immigration pol-
icy issues as a new and significant development were liberal international
relations scholars and political sociologists, who linked high-profile court deci-
sions on immigration issues to shifting arrangements at the international level.
According to one line of argument, propounded most prominently by James
F. Hollifield, when national courts issue decisions that protect the rights of
noncitizens, they are acting out their part in a postwar international system of
embedded liberalism that ensures a commitment to free trade while demand-
ing some level of demonstrated respect for individual rights (Hollifield 1992,
Gomes 2000, Hollifield 2004). Others have suggested that it is the contempo-
rary move toward transnationalism, visible in the “web of rights” contained in
international human rights instruments and supranational treaties, that has cre-
ated opportunities for judicial engagement with immigration policies by open-
ing up legal avenues outside of the framework of national self-determination
(Jacobson 1996, Jacobson and Ruffer 2003). Sociologist Yasemin Soysal like-
wise sees the international legal order as a source of migrant rights, though
she focuses relatively less on juridical developments (Soysal 1994). In these
accounts, judicial interventions are noteworthy as a break from the past, but
they are best understood as instantiations of normative regimes operating
across national borders.
Comparativist political science studies of immigration policy making have
likewise called attention to the increased judicial role in migration governance

over time, and, in contrast to international relations scholars, they have empha-
sized the distinct institutional characteristics of the judiciary. This contrast is
made most emphatically by Christian Joppke, who argues that judicial deci-
sions creating rights for noncitizens have their origins not at the international
level but rather in national constitutional principles that are extended into
the immigration policy domain. Joppke suggests that the principles enunci-
ated in these high-profile decisions may make it difficult for policy makers to
manipulate migration channels opened up for humanitarian reasons, such as
asylum and family reunification, and may force political elites to reformulate
their overall approach to immigrant communities (Joppke 1998, 83–4). Other
comparativist studies similarly present legal decisions articulating rights for
migrants as having substantially “tempered” (Geddes 2003, 22) and “softened”
(Ellermann 2009, 169) restrictive policies. Even when few generalizable prin-
ciples are enunciated and review is primarily subconstitutional, invoking and
extending judicially enunciated standards is argued to shift administrative
practices “millimeter by millimeter” (Sterett 1997, 180). Entrepreneurship by
courts in immigration issues is said to constitute the “permanent consolida-
tion of a serious new actor” in the politics of “managed migration” (Menz
2009, 135). Indeed, in some national settings, the adjudication of immigration
has been identified as an important site for debating and developing the judi-
ciary’s broader institutional role (Soennecken 2008, Law 2010, Bonjour 2014,
Hamlin 2014).
Yet, as other studies of immigration policy making have emphasized, courts
do not always have the final say. Successful litigation may prompt govern-
ments to modify statutes to limit the substantive or jurisdictional grounds for
appealing future immigration-related decisions. Venue shopping is another
possible response to judicial decisions that place limits on how governments
can regulate migration. Virginie Guiraudon’s analysis draws attention to the
way that European restrictionists have adapted to judicial interventions by
shifting the institutional context of policy making to the European level and
by moving border control operations overseas and thus beyond the jurisdiction
of national courts (Guiraudon 2000). The effect of venue shopping, according
to Guiraudon, is that different types of actors are included or excluded from
migration politics, thereby placing fewer obstacles in the way of restriction-
ist policy making. Focusing on the international level, Lisa Conant’s analysis
similarly goes beyond the official dispositions of high-profile migrant rights
decisions to focus on the extent to which their holdings constrain subsequent
policy decisions. According to Conant, there has been a persistent tendency
of national policy makers to evade or actively resist the policy implications of
immigration case law and supporters of migrant rights have generally been

unable to break these “cycles of contained compliance” (Conant 2002, 207).

Along similar lines, Martin Schain finds no appreciable impact when measur-
ing the political significance of migrant rights decisions in forcing administra-
tors to admit migrants they would prefer to exclude or in compelling political
parties to shift their restrictionist programs (Schain 2008). According to this
analysis, the overall level of migrant admissions and removals provides a com-
prehensive measure of how states regulate migration, and judicial interven-
tions can be dismissed because they have hardly constrained the restrictionist
tendencies of either legislators or administrative officials.
In sum, to the extent that studies of immigration policy making have con-
sidered law and legal institutions, they have tended to concentrate on the
rules and remedies produced by judicial decisions in immigration matters.
Debate has centered on the extent to which these official case dispositions are
taken into account in migration policy determinations. In particular, studies
of compliance have questioned how often formal norms actually constrain the
restrictionist tendencies of policy makers. These analyses emphasize the weak
coercive power of legal rules in the migration policy domain.

An Alternative Understanding: Legal Contestation as

a Site for Reassembling the Social
This study takes a different approach by focusing not on the coercive power
of official rules and remedies but rather on the capacity of juridical engage-
ments with immigration to construct and reconstruct social relations, what
sociolegal scholars have termed law’s “constitutive” dimension (Hunt 1985).
A central premise of this constructivist sociolegal approach is that the capacity
of judicial decisions to constrain policy makers is only one aspect of how law
contributes to reshaping political dynamics. No doubt, both legal activists and
the administrative officials whose policies they challenge care about judicial
decisions primarily in terms of their coercive capacity. However, the construc-
tivist sociolegal approach urged here calls for a more capacious conceptualiza-
tion of both law and its effects, one that looks beyond official case dispositions
in order to explore legal contestation as a culturally productive process.
This constitutive dimension of law, overlooked by a focus on official rules
and remedies, is revealed in ethnographic studies of disputing, which explore
how the process of formulating claims in terms of higher order normative ref-
erents can introduce powerful new elements into the social world (Comaroff
and Roberts 1981). These legal frames and narratives may reproduce estab-
lished designations, metaphors, and styles of discussion. Alternatively, they
may establish new categories that change the perspective through which the

social world is perceived. As Lynn Mather and Barbara Yngvesson argue, it

is through this “expansive rephrasing,” which extends the webs of relations
united under potent legal symbols, that legal change may be linked to social
change (Mather and Yngvesson 1980, 279). This capacity of legal practice to
construct social reality is particularly potent in immigration matters. As Kitty
Calavita points out, there was no category of “immigrant” when European
explorers “immigrated” to the shores of what was to become the Americas
(Calavita 2010). And to the extent that we see distinct political dynamics at
work in debates over “illegal immigrants” and debates over “refugees,” this
is due to the fact that law has created these two categories of migrants and
endowed them with normative significance. Moreover, as Susan Coutin has
shown through her ethnographic research, the strictures of official immigra-
tion law are rarely synonymous with everyday understandings of justice, and
court-centered contestation offers one possible space for constructing alterna-
tive framings of migrants and their identities (Coutin 2011).
In addition to examining the discursive elements assembled through law,
sociolegal scholars have productively explored the performative dimension
of court-based interactions. Early studies adopting a constitutive sociolegal
approach called attention to the distinct legal “subjectivities” engendered
by law in such organizationally distinct settings as mediation procedures
(Harrington and Merry 1988) and the processing of consumer protection
claims (Silbey 1981). More recent work has traced the distinct “emotional
valences” shaped by months and years of ongoing legal entanglements
(Berrey, Hoffman, and Nielsen 2012), showing that whether people assume
the role of skilled operator or humble supplicant in part depends on the spe-
cific organizational settings in which they engage the law (Ewick and Silbey
1998). What we learn from this body of work is that repeatedly engaging the
law has a powerful affective influence on participants in this process, whose
own local ontologies are reflexively made and remade through interactions
within the space of legal institutions.
Some examples will help to illustrate how ritualized courtroom interac-
tion can work to construct a distinct phenomenal field. In his study of a trial
court in Toronto, Michael Lynch shows how participants in adversarial trial
proceedings collectively produce “the judge” as a fact observable to them and
to any competent watcher (Lynch 1997). Certainly, the judge is sitting in the
courtroom, wearing a robe, and with formal authorization to preside over the
proceedings. Yet to the extent that the courtroom continues to make sense as
a place in which judges alone hold power to officially enunciate the law, it is
in part because lawyers, their clients, witnesses, and courtroom staff continu-
ally orient their interactions to the judge’s physical or symbolic presence. This

informally patterned behavior ensures that the courtroom’s local ontologies,

including its hierarchy of power and authority, remain in place even when
formal rules do not provide a behavioral script.
Through her fieldwork in the organizational action-setting of domestic vio-
lence control programs, anthropologist Sally Engle Merry provides another
example of how routine procedures construct and hold together a phenom-
enal field in which legal interactions can be intelligibly accomplished and the
meaning of legal institutions reinforced. Merry focuses on the way in which
domestic violence court hearings and court-mandated therapeutic programs
differentially position their male and female participants, thereby producing
“legally engendered selves” with distinct concepts of responsibility and agency
(Merry 1999). Male participants experienced the controlling side of the law
and are symbolically positioned by ostensibly rehabilitative procedures as
criminals behind bars. By contrast, female participants are offered a support-
ive environment connected to and provided by the courts, which positions
them to think of themselves as endowed with rights and entitlements. As legal
actors are repeatedly brought into contact with one another in these organi-
zationally bounded experiential spaces, roles and identities that seem natural
and objective are performatively constructed through the accumulation of
myriad discrete signs and interactions.
Though law and society scholars have tended to focus on the experiences of
ordinary citizens (and noncitizens) in courtroom settings, this does not mean
that a culturally productive dimension is absent from interactions undertaken
by law’s trained practitioners. To the contrary, recent work by scholars of in
the field of Science and Technology Studies (STS) has demonstrated that
law’s constitutive dimension can be explored by “studying up” as well as by
“studying down.” We see an important development of this mode of inquiry
in constructivist STS scholar Bruno Latour’s study of legal knowledge produc-
tion within the particularly rarefied setting of France’s highest administrative
jurisdiction, the Conseil d’Etat (see Box 1). Comparing the Conseil d’Etat
to a scientific laboratory, Latour investigates how the daily operations of this
“factory of law” construct the necessary sense of certainty to competently ren-
der judgment in complex and difficult cases (Latour 2002). Just as laboratory
scientists apply a variety of material and literary inscription devices to distill
abstract claims, so too, according to Latour, do the jurists of the Conseil d’Etat
rely upon devices – fact-finding methods and techniques of casuistry – to trans-
late complex events and relationships into legal enunciations that stand up
to doctrinal scrutiny. As Latour puts it, the two settings have “very different
modes of reducing the world to paper” and yet both are concerned with the
manipulation of these abstracted inscriptions, subjecting them “to a subtle

exegesis which seeks to classify them, to criticize them, and to establish their
weight and hierarchy” (Latour 2004b, 96). Without dwelling on the point,
Latour notes that the dispositions of the human components of these pro-
cesses are likewise reconfigured as scientists and jurists engage in the task of
stitching their abstracted inscriptions into generalized knowledge.
The present study takes up Latour’s invitation to study the “laboratories” of
technical law from a constructivist perspective. As Latour emphasizes, expert
jurists do not simply apply existing legal rules to the case at hand, but nei-
ther do they merely mediate between lived reality and preexisting structures
of power. Rather, the “passage of law” should be understood as a process of
ontological translation that assembles the human and nonhuman elements
of the social world into webs of meaning whose precise elements cannot be
known in advance and that are always subject to reassembly (Latour 2004a).
Latour’s unique combination of pragmatist empiricism and poststructuralist
material-semiotics supplies an analytical toolkit for unpacking the “black box”
of formalist lawmaking, in which legal technicians are sealed off from the
sociopolitical world and where attention to official case dispositions makes
it difficult to appreciate all of the other new elements forged in these lab-
oratories of law. Just as law and society scholars elucidated the constitutive
dimension of everyday dispute processes, Latour shows how technical legal
work might also be insightfully analyzed through this lens.
Moreover, the pluralistic constructivism of Latour’s approach suggests that
activity in court comprises only one cluster of translations in a broader set of
actor-network webs that draw political elements into the “laboratory of law”
and legal elements into the “laboratory of politics.” Sociolegal scholars have
long recognized that the political effects of action in court are not limited to
the regulatory impact of black letter law. Mark Galanter nicely encapsulates
this finding when he writes that, “The product of the court is not doctrine
with a mix of impurities but, instead, a whole set of messages that can be
used as resources in making (or contesting) claims, bargaining (or refusing to
bargain), and regulating (or resisting regulation) (Galanter 1983, 134). In other
words, once we conceptualize activity in court as a site for constructing social
reality – the approach adopted in both sociolegal studies of everyday disputing
and constructivist studies of the laboratories of technical law – we can then
look beyond the bounds of legal institutions and explore the radiating effects
of legally generated frames, narratives, and performances within the broader
political sphere.
One path by which these legal forms acquire a wider political salience
is through their impact on social movement activity. As Michael McCann
and others have demonstrated, action in court can catalyze the political

mobilization of previously unpoliticized individuals while also attracting

broader public support (McCann 1994, NeJaime 2011). Even when they
fail to produce new doctrine, rights-based narratives may be taken up by
local leaders and organizations and inspire new ways of understanding con-
testatory politics. At the same time, the empowering embodied experience
of bringing charges and filing suits may have important effects on social
movement activity. As Francesca Polletta shows in her historical study of the
U.S. civil rights movement, appeals to formal procedures gave black partici-
pants the feeling “that whites were not invulnerable to challenge” (Polletta
2000, 385). Studies of legal mobilization in a comparative context have sim-
ilarly emphasized the capacity of high-profile litigation to generate feelings
of empowerment, forge bonds of solidarity, and support ongoing resistance
even in the absence of constitutionally based judicial review (Abel 1995,
Vanhala 2011, Chua 2014).
Moreover, social movements are not the only political actors whose ideas
about the world are constructed through law. As scholars of judicial poli-
tics have shown, legal phrasing and staging also leaves an impact on politi-
cal elites. For instance, Alec Stone Sweet’s pathbreaking study first explored
how repeated “dialogue” with a constitutional court sets in motion a process
whereby the norms and vocabularies of constitutional law are elaborated and
then absorbed into the norms and language of policy making (Stone 1992).
While Stone Sweet’s generalized model of the process ultimately gravitates
toward an instrumentally based approach, he acknowledges that constitu-
tional dialogues also shift the terms of debate insofar as parliamentarians come
to understand themselves as having responsibilities to protect rights and to engage
in balancing analyses when formulating policy (Stone Sweet 2000, 103). Judicial
politics scholars have offered different assessments of how this phenomenon
plays out in distinct national contexts and across diverse policy domains.
Seeing the effects of engagement with law in a positive light, Stone Sweet
contends that French “parliamentary life was gradually ‘juridicized’ and revi-
talized” by the Constitutional Council’s interventions (Stone 1989, 31). By
contrast, American public law scholar Gordon Silverstein sees the “spiraling
of precedent” that accompanied the emergence of assertive judicial review in
some policy areas as prompting a hardening of positions, which in turn has
discouraged legislative actors from devoting energy to the difficult political
work of bargaining, tradeoffs, negotiations, and persuasion (Silverstein 2009,
128–51). Regardless of whether these radiating effects are assessed positively
or negatively, legally generated forms potentially exert a strong influence
over policy makers, shaping how they define their sense of mission, how they
understand the issues at stake, and the types of strategies they pursue.

Sociolegal scholars have not yet considered the way these dynamics play
out in the immigration policy domain. This may be due in part to the fact that
constitutionally based judicial review is rarely exercised to overturn immigra-
tion policies enacted at the national level. As critical legal scholar Catherine
Dauvergne demonstrates in her cross-national study of immigration jurispru-
dence, the legal claims of individual foreign migrants tend to be “overshad-
owed” by a countervailing right of the sovereign nation to shut its borders
(Dauvergne 2008, 27). Although lower courts may be relatively less attuned
to paradigms of sovereign authority and thus relatively more hospitable to
immigrant claimants than courts at the pinnacle of the judicial hierarchy, the
interventions of lower court judges in immigration cases are most often con-
fined to an incremental “error-correcting function” that shies away from any
direct challenge to policy making (Law 2010, 174). Empirical studies across
national contexts indicate that immigration cases “have had generally con-
servative endings” at all levels of the judicial hierarchy (Legomsky 1987, 224),
both in terms of judges’ limited willingness to offer short-term remedies and
in the sense that rules laid out in judicial opinions in immigration cases have
rarely compelled other state officials to explicitly increase migrant admissions
or to reduce migrant expulsions. Courts have been most assertive when apply-
ing subconstitutional norms to immigration matters, but these interventions
are rarely interventionist.
I suggest that the constrained nature of judicial review in immigration mat-
ters, at least in comparison to other policy domains, adds particular poignancy
to calls by sociolegal scholars over the past three decades for a research agenda
that conceptualizes law’s power and political impact in constructivist terms.
My interpretation of immigration politics in the United States and France
confirms that the official case dispositions of courts in these countries have
eschewed an interventionist stance on matters of national immigration policy.
Nevertheless, I contend that this conception of both law and its effects is too
narrow. By limiting our understanding of law to official case dispositions, and
then assessing the degree to which these rules and remedies do or do not
constrain the realization of restrictionist policy preferences, we neglect to con-
sider how the process of contesting immigration policy in court may constitute
the very terms of immigration politics.
Drawing on a constructivist sociolegal approach, the present study concep-
tualizes court-centered contestation of immigration policy as a culturally pro-
ductive activity with potentially important radiating effects. In the chapters
that follow, I seek to go beyond the legal positivist approach that sees law as a
mode of hierarchical control. Instead of examining how legal rules and rem-
edies invoke responses of compliance or of evasion, my goal is to explore the

legal forms set in motion by the process of legal contestation. I argue that,
across national settings, the process of contesting immigration policy in court
can be seen to have injected a set of distinctly juridical forms into the politics
of immigration. In other words, I argue that when policy makers and inter-
est groups today address the policies and processes that bring residents of the
Global South to the kitchens, beauty parlors, slaughterhouses, and tomato
fields of the Global North, their debates engage – to an extent unprecedented
forty years ago – with the material, discursive, and conceptual artifacts pro-
duced by repeated high-profile legal contestations.
As the following chapters will show, activity in court has made a differ-
ence in immigration policy making, but it has done so primarily by reassem-
bling taken-for-granted concepts, categories, and relationships rather than by
bringing legislators and administrators under the coercive authority of judges.
Indeed, when viewed in historical and comparative perspective, the coercive
capacity of law to hamper the immigration enforcement initiatives of legisla-
tors and administrative officials appears less consequent than its capacity to
symbolically reshape political activity around immigration issues. As immi-
gration questions have been stitched into the fabric of law, they have been
repatterned by broader juridical design features. At the same time, the prac-
titioners who engage themselves in these creative material reworkings have
likewise been reconfigured by the project of legal activism. As we will see, the
assemblages generated through the repeated practice of contesting immigra-
tion policy in court have left indirect and unforeseen traces in the sphere of
national immigration policy making.

Box 1. Note on Actor Network Theory and Studies of

Legal Laboratories
At first glance, Bruno Latour’s suggestion that the activities of creative
jurists can be productively analogized to those of experimental scientists
may seem far-fetched. To better understand the basis for this provocative
comparison, it is helpful to unpack Latour’s notion of legal laboratories –
and laboratories in general – as spaces “where innovations proliferate,
where group boundaries are uncertain, and when the range of entities to
be taken into account fluctuates” (Latour 2005, 11). For Latour, laboratories
represent domains where knowledge categories are constantly being made
and remade. His “sociology of associations,” more commonly known as
“actor-network theory” (ANT), supplies a methodological blueprint for
investigating these processes of experimentation and creative engineering.

(continued)

Rather than seeking to reify or debunk the facts produced by scientific

or legal laboratories, Latour has developed a method for documenting
how these taken-for-granted “black boxes” hold together in the face
of unavoidable empirical complexity. His ethnographic research has
explored how daily laboratory life engages experimenters (and their
equipment) in a series of translations that reconfigure the messiness and
complexity of the material world into “two-dimensional, superposable,
combinable inscriptions” that then, and only then, can be formulated
as claims intelligible within broader theoretical paradigms (Latour 1999,
29). He argues that, for a scientific claim to take on the status of a gen-
erally accepted understanding of the natural world, so that alternative
descriptions and readings of the world can be ignored, the series of trans-
lations by which it was materially and discursively produced must be suf-
ficiently verifiable to withstand vigorous scrutiny from fellow researchers.
The notion of “actor networks” denotes those entities whose workability
comes to be taken for granted and that, as a result, become potentially
powerful components in new actor networks.
Scientific models gain their workability, in Latour’s account, not
only as a result of their creators’ ambitions but also because objects and
other humans implicated in the model’s claims allow themselves to be
enrolled in this manner. So too, textual inscriptions are argued to be a key
component of knowledge production, insofar as they effectively efface
traces of uncertainty and build the consensus necessary for acceptance.
Importantly, Latour insists that not only human but also nonhuman
participants in actor networks operate as mediators, “endowed with the
capacity to translate what they transport, to redefine it, redeploy it, and
also to betray it” (Latour 1993, 81). Sociolegal scholars have found this
conceptualization of objects and inscriptions as mediators to be facilita-
tive of new engagements with legal knowledge production (Riles 1998,
2006, Valverde 2003), and it is this object-oriented reading of Latour’s work
that is most widely known. Yet, as one recent and insightful commentary
points out, it is also possible to approach ANT by considering what it has
to say about the distinct tonality that distinguishes law from other modes
of knowledge enunciation such as science or politics (McGee 2014).
The notion of legal laboratories provides a blueprint for making sense
of knowledge production processes that are dynamic, heterogeneous,
and contextually situated. Latour’s approach – and ANT more broadly –
can be understood as an empirical version of poststructuralism, with
“actor networks” seen as “scaled-down versions of Michel Foucault’s

discourses or epistemes” (Law 2009, 145). Rather than seeking to diag-

nose an epochal episteme, ANT focuses on exploring particular and
smaller-scale webs of relations. STS scholar John Law has suggested that
the word assemblage, drawn from Gilles Deleuze’s nomadic philosophy,
is a useful term for capturing an actor network’s “process of . . . recur-
sive self-assembling in which the elements put together are not fixed
in shape, do not belong to a larger pre-given list but are constructed
at least in part as they are entangled together” (Law 2004). Unlike the
Althusserian concept of interpellation, the ANT notion of assemblage
cannot be assumed to reproduce any single preexisting structure or ide-
ology. In their review essay introducing sociolegal scholars to the ANT
approach, Levi and Valverde make this point nicely, writing that, “nei-
ther human agency nor technological/cultural determinism is assumed
a priori, thereby opening up a much wider set of empirical possibili-
ties” (Levi and Valverde 2008). In other words, rather than imposing any
monolithic notion of national culture or epochal discourse, the ANT
approach invites us to identify empirically the specific actors, objects,
and discursive constructs entwined in the concrete webs of legal asso-
ciations that we choose to unpack. Latour’s work demonstrates that it is
through empirical examination of the imperfect and actually existing
processes of legal experimentation that we can grasp the distinguishing
features of law as a mode of knowledge enunciation.

Revealing Legal Assemblages through Comparison

If successful legal assemblages have the virtue of hiding from view alternative
interpretations and readings of their components, then discerning this pro-
cess of knowledge construction poses challenges for research. A comparative
research strategy offers analytical leverage for uncovering and asking close
questions about the concrete meaning-making processes by which the social
world is imagined and that guide its activity. By pointing to surprising dif-
ferences across cases as well as unexpected similarities, a comparative optic
serves to “visibilize the invisible” (Knorr Cetina 1999, 22), training the ana-
lyst traveling between the compared domains in a more concrete and precise
framework of seeing.
The present study explores the constitutive dimension of legal processes in
two distinct settings, the United States and France, where organized efforts to
contest immigration policy in court have been a feature of political life for a

period of several decades. These two countries offer especially fruitful cases
for comparison. Both the United States and France are immigrant-receiving
states with a historically contentious politics of immigration and migration
flows that reflect each country’s legacy of imperialism. Both have foundational
liberal political traditions that have been mobilized on behalf of immigrant
communities. Most important for purposes of this study, in both countries a
specialized field of immigration-centered legal activism developed at approx-
imately the same time.4 Yet, when placed next to one another, these U.S. and
French legal contestations are striking for their differences. For instance, the
cause of immigrants has been framed in the United States as a new civil rights
movement, while in France it has been understood as one of the new social
movements that expanded the scope of traditional leftist politics. U.S. legal
activists primarily defend noncitizens from removal, while their counterparts
in France not only defend noncitizens from removal but also regularly contest
restrictions on immigrant admissions. In the United States, legal activism has
operated through fact-centered class action lawsuits, while in France it has
drawn upon the civil law system’s procedures for abstract judicial review. In
their differences, the juridical laboratories set in motion by immigrant rights
legal activism form a commentary on each other, highlighting how legal
assemblages are embedded in social life at the same time that they reconfig-
ure social relations.
The comparative optic is particularly useful for studying the complex work-
ings of legal expertise in modernity’s text-based legal systems. Unlike ethnog-
raphies of informal dispute processes, empirical explorations of the material
practices associated with formal legal institutions have primarily been con-
ducted by scholars who are socialized, at least to some extent, in the settings
they studied. There are important exceptions (Scheppele 2004, Riles 2011).
Yet familiarity with the elements of one’s own politico-legal culture, insofar as
it limits the scope of what is assumed to be suitable for investigation, presents
a formidable challenge for analysis that seeks to unpack established cultural
categories (Nelken 1997). Expanding the research gaze to other contexts,
particularly if it is accompanied by an approach attentive to the dangers of
imposing anachronistic categories of analysis, advances knowledge by forcing
researchers to confront taken-for-granted notions about their home environ-
ment. As David Nelken astutely points out, “the naiveté of the ‘stranger’ can
open up doors,” both conceptually and in practical terms (Nelken 2010, 96).
My research design incorporates a comparative optic that explicitly decen-
ters the U.S. experience, taking seriously the task of exploring legal knowl-
edge production without imposing the analytical categories of one national
setting onto another. In particular, I aim to highlight the nationally distinct

trajectories by which litigators have brought immigration issues to the courts.

Comparison in this study therefore operates as a mechanism for enhanced
appreciation of the rich complexity of techniques, actors, and activities set
in motion by the development of immigrant rights litigation. While some
commentators suggest that globalization has propelled a convergence of legal
forms and practices across national contexts (Wiegand 1996, Coombe 2000,
Keleman 2008), comparative studies of legal activism call into question any
strong claim of convergence in this domain (Olson 1995, Morag-Levine 2003).
The findings from this study of the United States and France indicate that sig-
nificant differences remain in how immigration policy has been contested in
court. Indeed, it is because of their particularities that the comparison of the
United States and France allows us to see more deeply into how legal knowl-
edge construction operates in each setting.
At the same time that this comparative research strategy emphasizes the
particular, it also has theoretical ambition. Theory building in this study
comes not from hypothesis testing, as is often the case in political science, but
rather from identifying particular assemblages of actors and activities in one
setting and then examining the extent to which those same assemblages can
provide insights into our understanding of other settings. The goal of such a
project, as Kim Scheppele writes, “is not a universal one-size-fits-all theory,
or an elegant model that abstracts away from the distinctive, but instead a set
of repertoires that can be found in real cases . . . not prediction but compre-
hension, not explained variation but thematization” (Scheppele 2004, 391).
Stated another way, it is the analytical strategy of iteratively moving from one
setting to another and back again that builds our understanding of long-term
patterns of meaning making and of webs of associations that would otherwise
go unnoticed.

Method for Exploring the Cultural Life of Law

Comparative research aiming to interpret legal practices across national
contexts demands that the researcher develop a deep understanding of local
contexture, which in turn requires extensive time in each research site. One
reason that there are so few explicitly comparative studies of how legal activ-
ism has taken different trajectories across legal systems is that researchers
do not have sufficient access to execute such a project. Particularly in the
French legal context, where adjudication is carried out away from pub-
lic view and where judicial decisions are characterized by an exaggerated
austerity of form, examining the culturally productive role of law can be
challenging.

The research for this book took place over a period of seven years. I spent
four extended periods of time in France – a summer visit in 2005, a yearlong
stay between August 2006 and August 2007, and return visits ranging from sev-
eral weeks to several months in 2008, 2009, 2010, and 2011. The U.S. portion
of the research began in the fall of 2005 and spring of 2006, when I conducted
interviews with immigrant rights litigators, and continued with a focus on
archival records during the summer of 2006. A fellowship during the 2011–12
academic year allowed me to significantly expand my research in U.S. public
and private archives. Although it was not planned, the alternation between
national research sites was crucial for facilitating deep understanding of each
field of practice. Each time I found myself gravitating toward a set of analyti-
cal categories generated from the experience of one setting, I was forced to
reexamine and refine my choice of terms in light of evidence gathered in
the other country. Identifying a label for the activity I was observing proved
particularly challenging; I knew that both countries had a history of organized
litigation that operated in close proximity to national immigration policy making,
yet it proved surprisingly difficult to find a suitable phrase to describe this
activity. Progressive jurists in both countries identify themselves as belong-
ing to a community of legal experts who specialize in litigating government
policies that regulate immigration status. However, they use different termi-
nology to describe their practices. U.S. immigrant rights litigators described
their work as “impact litigation,” “law reform,” or “civil rights law,” but these
terms were not used by the network of specialized French jurists who identify
themselves as “defending the cause of foreigners in court.” I have settled on
the term immigrant rights legal activism to denote the set of practices that are
the subject of this comparative study (see Box 2).
In retrospect, this iterative research process proved to be well-suited to
charting the interconnected webs of practices that have come to be identified
with immigrant rights legal activism. In both France and the United States,
my starting points for empirical research were my contacts within legal aca-
demia. Not only was this a setting that was relatively accessible to me, but this
milieu is also institutionally central to the reproduction of each country’s legal
establishment, including its liberal reformist strata. Once my introductions to
key actors in each national immigrant rights legal community had been facil-
itated, I conducted initial interviews with these individuals. In many cases,
these initial contacts then generously assisted me in identifying and contact-
ing other jurists engaged in similar work, so that a network of contacts was
gradually amassed. In practice, there was a large degree of consensus among
my contacts about the key players litigating immigrant rights issues on the
national stage, many of whom it turned out had been active over a period of

several decades. From these interviews, it became clear that immigrant rights
legal activism as it exists today in the United States and France traces its gene-
alogy back to the rise of immigrant social movements and the turn to restric-
tionist immigration policies in the early 1970s. Subsequent immigrant and
refugee movements have brought new generations of progressive jurists into
the immigrant rights legal network, but there has been a relatively high degree
of organizational continuity. I carried out more than sixty in-depth personal
interviews with jurists, focusing on those who pioneered the field of immigra-
tion defense in these two countries and those who remained active in the field
over several decades.
Studying a field of specialized legal practice that has been in existence for
more than forty years – especially one that has generated such a substantial
amount of litigation – required that I pursue a research strategy capable of
foregrounding those specific features that have been most significant in each
of these two social worlds. The method utilized for narrowing the inquiry in
each country was directly related to the underlying theoretical conceptuali-
zation of legal practices as organizationally situated and symbolically mean-
ingful. I relied on informal dialogic interviews that focused on the shared
narratives developed by those engaged in the practice of immigrant rights lit-
igation. In short, I asked the subjects of my study to identify aspects of their
practice to which they themselves attached particular significance or impor-
tance, with the goal of eliciting “snapshots of significance” that embody the
field for its adherents (Geertz 1968, 2).
These snapshots of significance served to orient me in navigating the writ-
ten records produced by court-centered contestations of immigration pol-
icy. In the United States, I was invited to spend time in the organizational
archives of the American Civil Liberties Union (ACLU) Immigrants’ Rights
Project and the National Immigration Project of the National Lawyers Guild.
In France, I was given permission to view the private archives of the French
immigrant rights organization Groupe d’Information et de Soutien des Immigrés
(Information and Support Group for Immigrants; GISTI). I also reviewed a
number of publicly accessible archival collections, including those of the
Mouvement d’Action Judiciaire (Mouvement for Judicial Action), the Cimade
(the social services arm of the French Protestant Federation), and the Ligue
des Droits de l’Homme, all of which had connections with immigrant rights
legal activism. The periods in residence at the ACLU, the Guild’s National
Immigration Project, and GISTI were particularly helpful in allowing me to
gain access to further depth and complexity insofar as they not only provided
ample written records but also facilitated informal conversations with the staff
and volunteers of these organizations. Spending time on-site also allowed

me extensive access to organizational correspondence, case files, and official

reports, shedding light not only on the activities of these organizations, but
also on the activities of their coalition partners and external supporters.
In order to get a fuller picture of the practices engaged in bringing immi-
gration policies before courts in each country, I sought out information about
the elite benefactors and administrative interlocutors of immigrant rights legal
activism. In terms of written records, the main sources of this data were the
archived papers of the Ford Foundation’s Rights and Social Justice Program,
the single most important funder of U.S. immigrant rights legal mobiliza-
tion, and the Direction de la Population et des Migrations (Directorate of
Population and Migrations; DPM) and the Direction des Libertés Publiques
et des Affaires Juridiques (Directorate of Public Liberties and Juridical Affairs;
DPLAJ), the national administrative structures most strongly linked to French
immigrant rights legal mobilization.5 To supplement these written records,
I also conducted a small number of interviews with government attorneys in
the United States and France who had spent their careers within the admin-
istrative divisions responsible for defending the government against lawsuits
generated by immigrant rights legal activism.
A final source of data was provided by legal documents and media cover-
age. Jurists leave a great deal of written traces, and because my interviewees
had identified particular litigation campaigns as holding special significance,
I focused on documentation and media reports related to these temporally
bounded events. Legal documents proved to be a valuable source of informa-
tion about both the organizational and symbolic dimensions of immigrant
rights legal activism. Many legal documents are available in electronic form
in the United States through the main legal search engines. In France, where
legal records are not publically available, I was able to access the private hold-
ings of the library of the Conseil d’Etat to obtain the court’s official legal
analysis and commentary. In terms of media coverage, the major American
and French newspapers are now electronically archived; however it was nec-
essary to rely on the newspaper clippings contained in the dossiers de presse
numérisés (indexed news media files) at the Library of Sciences Po, Paris for
French media coverage from the 1970s and 1980s.
By using a variety of research techniques and sources of evidence to supple-
ment one another, my research strategy aimed to supply an appropriately broad
foundation for analysis of the culturally productive process of contesting immi-
gration policy in court. If comparative work is both about discovering surprising
differences and unexpected similarities (Nelken 2010, 32), then a multidimen-
sional approach combining interviews and archival sources allows the researcher
to more insightfully unpack meaning-making processes than reliance on any

single method alone. As Michael McCann points out, using a variety of tech-
niques that supplement one another is analogous in some ways to the method of
“triangulation” used by geological surveyors (McCann 1994, 16). Although this
study does not claim to comprehensively map the terrain of immigrant rights
litigation, and is better characterized as an exploratory venture into a new empir-
ical and theoretical terrain, its combination of interpretive methods does aim to
highlight the most salient features of this previously unexplored landscape.

Box 2. Note on Cross-National Terminology

Successful cross-national analysis necessitates selection of an analytical
term that identifies and demarcates the set of social practices in each
national context that is the subject of comparison. I use the analytical
term legal activism to identify the court-centered activity directed toward
effecting change at the level of official policy making. This designation
aims to demarcate a practice that is distinct from other forms of politi-
cally engaged client representation on the part of those trained in law. It
refers to the activities of practitioners who see themselves simultaneously
as activists and lawyers, who deploy legal expertise to achieve political
ends, and whose legal strategies are informed by political goals. The term
was chosen to capture this hybrid identity, while avoiding the imposition
of nationally distinct political or professional categories.
In the United States, notwithstanding the eventual emergence of
organized litigation on behalf of conservative causes (Epstein 1985, Teles
2008), reform-oriented litigation has historically been most closely asso-
ciated with progressive political activity. American lawyers who engage
in this type of practice often refer to themselves as “civil rights lawyers”
or “public interest lawyers,” although courts eventually came to be seen
as an appropriate venue for pursuing progressive policy goals not only in
the areas of civil rights and welfare rights but also in new domains such
as women’s rights, environmentalism, and consumer rights. Several
empirical studies conducted in the late 1970s aimed to offer a contem-
poraneous examination of this subject (Handler 1978, Weisbrod 1978).
These initial forays were followed by the development of a large and
growing scholarly literature documenting the activities of organizations
aiming to propel progressive policy change (Tushnet 2004, Anderson
2006, Mezey 2007).
(continued)

Sociolegal scholarship on “cause lawyering” has likewise sought to

investigate the commitments and practices of legal professionals who
seek to use law-related means to change the law, including immigra-
tion law (see Israel 2003). In its initial formulation, cause lawyering was
conceptualized as an activity that brings the political commitments of
attorneys into tension with their professional responsibilities (Sarat and
Scheingold 1998). In response, critics suggested that a focus on profes-
sional ethics replicates the ideology of the U.S. legal profession and
leaves unexamined the way in which the commitments of progressive
legal actors are structured by power relations. As the cause lawyering proj-
ect was expanded to include studies of civil law systems, where the role
of the state is more prominent, its agenda evolved so as to better address
how state power shapes legal activity, even in the U.S. context (Sarat and
Scheingold 2001). The cause lawyering project was further broadened in
response to scholarly interventions contending that lawyers act politically
when they orient their practice primarily toward empowering clients rather
than toward winning cases or influencing policies (Menkel-Meadow 1998,
Shamir and Chinsky 1998) and that the performance of attorney-client
interactions has political implications (White 1990). In its most recent
formulations (Sarat and Scheingold 2008, Marshall and Hale 2014), the
category of cause lawyer has come to encompass forms of legal practice
that are not explicitly directed toward influencing policy-making debates
but that nevertheless offer routes for jurists to combine their political
commitments and professional responsibilities.
Without disputing the importance of client-empowering political
lawyering, I have nevertheless chosen to focus on forms of practice that
engage more directly with national immigration policy making. Insofar
as it explicitly aims to influence official law, legal activism is thus dis-
tinct from other forms of politically engaged client representation. Legal
activism is a “mode of action” whose primary concern is to secure judi-
cial decisions that impact existing rules and procedures so as to “attain
substantive policy changes through the courts” (Cichowski 2007, 17).
It is this explicit focus on courts that distinguishes legal activism from
other forms of activism such as lobbying tactics or direct action. While in
some instances legal activism may be organized so as to closely align with
the goals of a social movement organization, this is not always the case
(McCann and Silverstein 1998). Indeed, as discussed in Chapter 4, over a
period of several decades, immigrant rights legal activism has maintained

a degree of organizational continuity even at times when there has been

no cohesive and organized immigrant social movement.
In the U.S. literature, this policy-oriented legal practice has variously
been referred to as “law reform” (Handler 1978) and “planned litigation”
(Wasby 1995). In my assessment, however, neither of these terms proves
suitable to describe policy-oriented litigation outside of the U.S. con-
text. Practitioners in France insist that they are not reforming the law by
challenging policies in court, and are rather alerting judges to improper
actions taken by the government that misinterpret the law. Legal activism
is also preferable to planned litigation as an analytical focus, because the
feasibility of test-case litigation depends on procedural avenues that are
relatively less available outside of the U.S. legal context.
Moreover, test-case litigation is only one possible technique by which
legal activists can aim to influence policy making. As the subsequent
chapters describe, immigrant rights legal activists in the United States
have also relied on nationwide class action lawsuits to challenge existing
immigration policies, while their counterparts in France have favored
petitioning the Conseil d’Etat for abstract review of administrative poli-
cies that are deemed to illegally restrict the rights of noncitizens. As one
recent comparative study has pointed out, activists and organizations
seeking to influence policy making can utilize a number of different
strategies, ranging from organizing affirmative lawsuits, to intervening as
third-party participants, to purposefully committing civil disobedience in
order to provide courts with opportunities to adjudicate particular issues
(Vanhala 2011, 6–8). By including all types of cases aiming to influence
policy making, the analytical category of “legal activism” designates
a wide range of techniques with which lawyer-activists may creatively
engage as they seek to deploy court-centered activity to intervene at the
level of official policy making.

Organization of the Study

The subsequent chapters place U.S. and French legal practices immediately
next to one another, organizing the material into a sequence of point and
counterpoint between the two settings. I deliberately selected this mode of
presentation to lift up conceptual insights that emerged from the analytical
strategy of moving between the two nationally distinct domains. The series of

paired contrasts calls attention to the multiple frames, narratives, and perfor-
mances generated by repeatedly contesting immigration policy in court and
the diverse trajectories by which these legally generated forms have shaped
immigration policy making in the United States and France.
Chapter 2 sets the stage by providing historical context for the emergence
in the United States and France of something that would later come to be
identified as immigrant rights legal activism. Focusing on the decade of the
1970s, the analysis contextualizes early legal defense efforts within the dis-
tinct political horizons and policy debates of the period. I show how, in a
process that was broadly similar in both countries, young progressive-leaning
lawyers and a loose assortment of grassroots immigrant social movements dis-
covered each other and merged their efforts. Drawing on the records of the
immigration-centered legal organizations that came into existence during this
period, I trace the process by which this cohort of lawyers who had taken
up the immigrant cause then constructed an organizational infrastructure for
their new professional network.
Chapter 3 focuses on the landmark cases that first brought immigrant rights
litigation onto the national political radar. The analysis traces how litigators
drew upon nationally distinct jurisprudential regimes and adapted them to
the immigration domain. In the United States, immigrant defenders crafted
paradigms of argumentation that relied on a pluralist vision of migrants as “a
minority within a minority” that deserved special judicial protection. By con-
trast, their French counterparts constructed legal arguments that linked good
governance and social protection norms and extended them to vulnerable
immigrant workers. Focusing on the legislative politics of immigration at the
time that these high-profile cases were decided, the analysis then examines
the radiating effects of these legal framings within the sphere of national-level
politics.
Chapter 4 turns the gaze back on litigators and explores how the process
of contesting policies in court initiated a long-term shift in the way that these
jurists approached their own professional project. The analysis probes how, in
both countries, immigrant defenders institutionalized their efforts by adapting
nationally distinct models of expert legal practice and by building alliances
with elites supporters. In the United States, immigrant rights legal activism
found its primary source of support in the private sector and adapted itself to
a law firm model. By contrast, in France, legal activists cultivated informal
relationships with state elites at the same time that they publicly expressed
their autonomy from both the market and the state. In both countries, legal
activists assumed more juridically centered roles and identities even as these
took markedly distinct forms.

Chapter 5 and 6 together explore how the institutionalization of this form of

practice likewise patterned the dispositions of national administrative officials
who became the subjects of frequent and routinized litigation efforts. The
analysis focuses on the distinct procedural mechanisms with which immigrant
rights legal activism in each country has become most closely associated in the
eyes of administrative officials. While immigrant rights legal activism in the
United States has immersed itself in the street-level details of administrative
institutions, its French counterpart has operated at a remove from concrete
policy application. In both countries, albeit in different ways, the performance
of routinized legal intervention has contributed to making the politics of law
an integral facet of immigration politics.
These points provide the foundation for the development of a more gen-
eral argument in the concluding chapter concerning the analytical leverage
provided by the comparative constructivist approach advanced in this study.
This chapter summarizes the main findings of the preceding chapters and
develops their implications for research regarding law and the politics of social
reform. It also returns to the question at the core of this study and addresses
the implications of its findings for contemporary social justice efforts focused
on immigrants and immigration law.
Throughout this book, I show how analytically decentering official case
dispositions allows us to follow the process of knowledge production upstream,
to identify the sets of ideas and meanings from which the juridical laboratory
draws its tools and materials, as well as downstream, to see precisely how the
policy-making sphere is reconfigured by the radiating effects of the frames,
narratives, and performances assembled in court. Taking inspiration from
Latour’s provocative comparison of technical law to a scientific laboratory
(Latour 2002), I conceptualize the activities of legal technicians in construc-
tivist terms, unpacking how immigrant rights legal activism has assembled
its web of knowledge practices and tracing the process by which the forms of
meaning constructed by these practices have been taken up in new webs of
knowledge. Shifting from a framework of studying official case dispositions
to a framework of examining legal assemblages allows a greater sensitivity for
how engaging with law has contributed to shifting the dynamics of immigra-
tion policy making. The comparative optic is useful for lifting up these cultur-
ally productive processes and seeing them more clearly.
Of course, there are other dimensions of the intersection of immigra-
tion policy and law that might also be relevant to a constructivist analysis.
Moreover, there is no pretension that the combination of patterns discussed
in this study adds up to all that could be said about concerted efforts to shape
immigration policies through litigation. Rather than exhaustive, the analysis

is “kaleidoscopic” – “conjunctions of activities” are examined by means of

“a succession of shifts in focus,” as someone might turn a kaleidoscope to
view various plains of operation of the two settings (Knorr Cetina 1999, 24).
Drawing on material identified by my interviewees as holding particular sig-
nificance, I have focused on areas that, in my own assessment, hold the great-
est potential for identifying the cultural practices deployed in the process of
bringing immigration questions to the law and highlighting their radiating
effects in the policy-making sphere.

A New Area of Legal Practice

Setting the Scene / MISE-EN-SCÈNE

Los Angeles, May 1978 – Agents of the Immigration and Naturalization
Service (INS) raid the Sbicca shoe factory in the suburb of El Monte where
workers are involved in a union organizing campaign. The INS officers arrive
in the morning, seal off the factory exits, and question the workforce of mostly
Mexican women on the factory floor. The workers are handcuffed and man-
handled; some are asked only, “Are you ready for Mexico?” They are told to
sign papers waiving a hearing and agreeing to immediate voluntary departure.
By early afternoon, 120 women are placed on buses and are being driven to
the Mexican border. Alerted to the raid by labor organizers, attorneys from the
Legal Aid Foundation of Los Angeles rush to court and succeed in obtaining a
temporary restraining order that ensures the workers will not be deported until
they have had a full opportunity to speak with a lawyer. Upon returning to Los
Angeles, the detainees are formally advised of their rights and are told that free
legal services are available. Sixty-five of those arrested withdraw their requests
for voluntary departure and request legal counsel.
By the summer of 1978, when the story of these events is shared with readers
of the Immigration Newsletter published by the National Immigration Project
of the National Lawyers Guild, the members of the “Sbicca Legal Defense
Team” are able to report that “Interviews were had with each worker and
great successes were noted at the special bail redetermination hearings . . .
presently the civil case is being litigated as a class action. It seeks to define
the scope of INS authority to detain and arrest workers. It also concerns the
serious violations of the 4th, 5th and 6th Amendments to the Constitution.”1
Several months later, the defense team celebrates subsequent successes in
court and its members describe themselves as “the legal arm” of the Labor and
Immigration Action Center, “a recently organized group of unionists, com-
munity activists and legal people led by union organizers.”2
25

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26 Contesting Immigration Policy in Court

Eight years later, these reports would be republished in the Immigration

Newsletter as part of a historical series commemorating the Guild’s Fiftieth
Anniversary.3 Meanwhile, the class action initiated in the context of the Sbicca
raid would eventually come to a close in 1992, when the INS agreed to a settle-
ment negotiated with staff attorneys of the National Center for Immigrants’
Rights, Inc. By this time, of course, those who had been working at the Sbicca
factory in May 1978 no longer face deportation. For the nationwide settle-
ment’s thirty-month duration, however, immigration agents must provide all
persons they arrest with a written advisal of legal rights, including the right to
apply for political asylum and the right to consult with attorneys before postar-
rest interrogation and deportation.4

Paris, April 1976 – Agents of France’s immigration police raid the Foyer
Romain-Rolland, an immigrant worker dormitory managed by the semipublic
National Society for Construction of Worker Housing (SONACOTRA) in the
suburb of Nanterre. The foyer residents are protesting above-market rents,
unsafe conditions, and colonial-style overseers, and many are also involved
in protests against the government’s tightening of residency renewal criteria
for foreigners. At the time of the raid, the protests had lasted more than a year
and had spread to more than one hundred foyers across France. Within days
of the raid, seventeen members of the protesters’ coordinating committee are
summarily expelled from France for “disturbing the public order.”
The expulsions are contested by an informal collaborative of leftist attor-
neys who convince the Conseil d’Etat to suspend the expulsion orders and
who also represent the foyer residents in a series of courtroom battles against
the SONACOTRA. The attorneys receive logistical support from the staff of
the immigrant services department of the Cimade, a social services association
with a venerable history of aiding displaced persons that has recently begun
collaborating with a new and energetic circle of progressive young profes-
sionals. Calling themselves “the information and support group for immi-
grant workers” (Groupe d’Information et de Soutien des Travailleurs Immigrés
[GISTI]), this nascent immigrant defense network publishes a series of bro-
chures synthesizing the administrative regulations governing foreigners’ access
to social services and their residency in France. During this time, GISTI’s
jurists also begin to experiment with organizing abstract legal challenges to
these administrative policies governing immigrants and immigration.
Recounting this period twenty-five years later, Assane Ba, a former leader of
the residents’ organizing committee who subsequently joined GISTI’s office
staff, would use the term “law at the service of the struggle” to explain the
organizing committee’s decision to relegate lawyers and other professionals to

a support committee that would supply technical information without having

a say over movement strategies (Grelet et al. 2001). For their part, the young
civil servants among GISTI’s founders would look back on their involvement
twenty-five years earlier in slightly different terms. From their perspective,
political activism was driven by their desire to contest the autocratic tenden-
cies of France’s right-wing governments during this period, a tendency that
seemed to be particularly apparent in the domain of immigration policy. In
the words of one of GISTI’s founding jurists, “We decided to focus on the legal
hole around immigrants, this sort of zone of non-law, as a theme with strong
connotations and weak visibility that might be interesting.”5

A Tale of Two Movements

While each has its own story, the Sbicca and SONACOTRA legal campaigns
draw our attention to the new type of political and legal project that was tak-
ing shape in both the United States and in France during the 1970s. This
was a moment in which jurists in both countries became involved in a com-
plex intertwining of direct action and institutional action around immigration
policy. In both countries, immigration law specialists who would later come
to be associated with more-institutionalized efforts to contest immigration
policy making on a national scale would identify the lawsuits that emerged
from these concrete local efforts as key building blocks in the development of
immigration-centered legal activism.
The newly restrictionist orientation in immigration policy making, ushered in
by economic downturn, set the backdrop for these mobilizations. In France, pol-
icy responses to the onset of recession were dramatic: the government abruptly
suspended all foreign worker recruitment in July 1974 and took steps to encour-
age foreigners to return home. Restrictionism was also a feature of American
policy responses to the economic downturn. The United States had already
suspended its official guest worker program a decade earlier, but U.S. policy
makers in the 1970s rediscovered aggressive immigration enforcement as a way
of managing a “back door” immigration policy that supplied a steady stream of
irregular workers from south of the border.6 Whereas in the preceding decade,
irregular migrants had largely been left alone, American politicians staged the
southern border as the site of an enforcement “crisis” (Calavita 1992).
Nevertheless, if we were to take ourselves back to that moment in the
1970s when the heightening of immigration restrictionism was a new devel-
opment, it might not be evident that these policies would be challenged in
court. Forty years earlier, in the midst of another period of global economic
crisis, irregular migrants and guest workers had been similarly squeezed by

restrictionist policies.7 However, this aggressive targeting of migrants during

the 1920s and 1930s did not prompt any noticeable protest from progressive
voices within the legal profession. To the contrary, as the progressive reformers
of the Wickersham Commission sought to improve U.S. immigration-related
administrative processes, they explicitly affirmed the underlying rationale
of removing foreigners whose labor was no longer needed so as to promote
“protection of American workmen.”8 Moreover, as historian Mai Ngai points
out, the commission’s 1931 report made no mention of the racially disparate
enforcement practices of immigration officials (Ngai 2005, 81–6). Lawyers in
France also remained largely silent at this time. Indeed, rather than taking up
the cause of immigrants, French lawyers voted in June 1934 to forbid foreign-
ers, even those who had naturalized, from exercising any public legal position
and banned them from inscription in the private bar (Weil 2004, 28).
What was it in the 1970s that propelled the dynamic and enthusiastic legal
activity – of the type seen in the Sbicca and SONACOTRA campaigns –
which responded to the tightening of immigration controls? Putting this ques-
tion another way, what exactly was happening when, in both the United States
and France, a motley assortment of jurists and activists with a combination of
liberal and leftist affiliations sought to deploy legal tools and training in the
name of struggles that they variously associated with civil rights, human rights,
worker rights, and immigrant rights? Was this a bottom-up mobilization to
assist immigrant protest leaders who sought to lead their own struggles? Or
were those involved in these campaigns primarily motivated by a desire to
leave their mark on the law? Were jurists defending the cause of immigrants
or were they ultimately pursuing specifically legal goals?
This chapter explores the initial encounter between members of the 1970s
generation of law school graduates and the domain of immigration policy.
Seen through one perspective, these early legal efforts were embedded in the
enthusiasm for grassroots political engagement that characterized the poli-
tics of the 1970s in both countries. Seen through another perspective, these
efforts mark the emergence in each country of distinct law-centered profes-
sional groupings, to which participants devoted substantial time and energy
and which were the vehicles for both political energy and professional ambi-
tion. As participants in immigrant rights legal networks sought to make sense
of what they were doing, they adopted both of these perspectives, sometimes
simultaneously. I argue that we should take both of these perspectives seri-
ously, as both represent a valid account of how movement activism and legal
expertise engaged each other as part of the contestatory politics of the 1970s.
For this reason, rather than labeling these efforts as either predominantly
“political” or predominantly “legal,” the analysis in this chapter emphasizes

the professional, political, and organizational heterogeneity that pervaded

jurists’ early efforts to mobilize around the theme of immigrant defense. What
becomes apparent is the extent to which immigration-centered legal mobi-
lization during this early period defies clear categorization. In what follows,
I explore these processes in each country in turn and develop what might be
thought of as “left-eye” and “right-eye” perspectives for understanding efforts
organized by jurists in the 1970s to defend the rights of noncitizens.

U.S. Lawyers in the Social Movement

Seen from one perspective, the efforts of progressive lawyers in the 1970s to
defend individuals and communities caught up in immigration enforcement
raids were a product of this decade’s distinct contestatory politics, in which
members of the legal profession were enthusiastic participants. Those who
became involved in immigrant defense efforts in the 1970s were inspired by
the example of legal professionals who had devoted their skills to supporting
grassroots activism in other areas. For many among the cohort of American
law school graduates starting their careers in the 1970s, traditional firm-based
legal practice held little appeal. In their search for models of social justice
lawyering, recent law school graduates could look to those a few years ahead
of them who had gone to the South to assist the civil rights movement and had
returned energized to apply aggressive lawyering techniques to the problem of
urban poverty as well as to prison and policing practices. As historical research
on this period has documented, the Brown v. Board of Education decision
“shifted the paradigm in terms of what law could do,” and there was abundant
faith among the 1970s generation of law school graduates that law and lawyers
could play a part in building a better society (Kalman 1996, 2). In addition,
members of the 1970s generation were energized to play this role by the flour-
ishing of contestatory politics that they saw around them. Police action against
antiwar protesters brought together networks of defense lawyers and the revi-
talized National Lawyers Guild supplied the social and ideological glue for
a new generation of political lawyers (Scheingold 1998). Flamboyant litiga-
tors such as William Kunstler, Arthur Kinoy, and Leonard Weinglass provided
role models of this type of legal practice. In the words of historian Gerold
Auerbach, “Democratic currents swirled through the profession,” and con-
ventional career choices commanded diminished respect among American
lawyers in the 1970s (Auerbach 1976, 264).
Moreover, this was a generation of law graduates who felt confident about
their careers and had little educational debt. The creation in 1967 of a national
corps of legal services lawyers supplied opportunities and financial support

for those exiting law schools in the 1970s to take jobs in community legal
services offices where they worked as the legal wing of an ascendant welfare
rights movement (Handler, Hollingsworth, and Erlanger 1978). Law com-
munes were another alternative to traditional law firm practice that attracted
those dedicated to promoting political change. Lawyers affiliated with several
of these worker cooperatives and local community groups offered detailed
recountings of their efforts to challenge the traditional model of legal practice
(see Gabel and Harris 1982).
Those involved in defending the Sbicca workers identified themselves as
members of this generation that sought to use their legal skills to promote
the causes of a wide array of oppressed or excluded groups. Volunteering in
legal aid programs as law students and starting their careers in community
legal services offices, they discovered that some of their most needy clients
were excluded from public assistance programs on account of their immi-
gration status. Most of these young immigrant defenders identified as white
and almost none had any personal experience of migration.9 Some had
only recently graduated from law school, while others had worked briefly in
community-based legal assistance offices where they gained some exposure to
immigration cases. They were attracted by the prospect of defending the rights
of those who came from less privileged backgrounds that they themselves had
not experienced personally. Their exposure to the cause of “immigrant” rights
came not from their own experience of migration but rather through their
encounter with grassroots mobilizations organized by migrant communities.
For attorneys and legal workers living in areas with large immigrant pop-
ulations, grassroots mobilizations were not hard to find. In the West and
Southwest, the burgeoning Chicano movement linked opposition to immi-
gration enforcement with a broader set of emancipatory political goals. In the
late 1960s, the movement used walk-outs and demonstrations to seek inclusion
in government antipoverty programs and state educational curricula, and stu-
dent activists were also involved in antiwar protests. In the 1970s, the restric-
tionist turn in immigration policy became a central concern for the vanguard
of Mexican American college students, union organizers, and teachers who
supplied the leadership for Chicano groups such as La Raza Unida Party and
the Brown Berets (Chavez 2002). Immigration protests during this period fit
into a broader attack on the assimilationist and restrictionist paradigm of post-
war U.S. immigration policy. Movement leaders proclaimed solidarity with
undocumented immigrants in a struggle against what they saw as long-standing
U.S. government oppression of all people of Mexican descent. Citizenship
status was irrelevant when the task, according to movement activists, was to
unite the Mexican people with others struggling against imperialism.

The Los Angeles offices of the Centro de Acción Social Autónomo (CASA)
served as an early center of gravity for young lawyers seeking to contribute to
these mobilizations. For CASA’s founders, the goal was “uniting immigrant
workers with the rest of the working class in the United States who ‘enjoy’
citizenship” (Gutierrez 1995, 191). The organization framed the problem of
underpaid laborers living in blighted barrios as a result of U.S. capitalism,
labeling both immigration raids and aggressive policing as forms of repression
against an ethnic Mexican working class who were “one people” regardless
of immigration status (Chavez 2002, 17). Following a politically provocative
solidarity visit to Cuba, CASA’s leadership personally became the targets of
deportation procedures (Chavez 2002, 112). Moreover, for a period of several
years during the early 1970s, CASA hosted its own legal department staffed
by young “Anglo” law school graduates who sought to supply the movement’s
legal wing by providing legal services to CASA’s membership.10
Elsewhere in the country, immigrant communities likewise claimed polit-
ical space through their mobilizations against immigration policies. In the
1970s, inspired by international human rights initiatives and by media cov-
erage of Indochinese boat people, Haitians in New York, Boston, and South
Florida organized marches and demonstrations against U.S. government
support for their country’s autocratic regime and to protest the oppressive
treatment of Haitian asylum seekers arriving by sea in south Florida. Haitian
community leaders called attention to the fact that Haitian asylum seekers,
unlike Cubans, were placed in immigration detention for lengthy periods and
were denied employment authorization once released from detention. Led by
a small circle of exiled dissident priests known as the Haitian Fathers, activists
linked protests against immigration policies to broader efforts, such as Creole
literacy programs and political change in Haiti (Kahn 2013, 66–7). In 1977,
when Fr. Gérard Jean-Juste assumed the leadership of a Miami-based human-
itarian assistance agency, the Haitian Refugee Center was transformed into
the organizational base for the Haitian community’s mobilizations. Drawing
inspiration from liberation theology, Haitian activists insisted on leading their
own struggle and required that the newly independent center’s board contain
a majority of Haitian members.11 Yet the center was not averse to leveraging
legal strategies in the service of its cause, and in the late 1970s and 1980s liti-
gation would become a major component of Haitian political mobilizations.
Welcomed by immigrant community leaders, young professional who had
acquired training in law became enthusiastic supporters of these organiza-
tions even though most shared no direct link to either the Mexican American
or Caribbean American experience. They were excited to offer their skills to
new movements that were explicitly political and whose nascent organizations

possessed few legal resources. As immigrant defender Larry Kleinman

recalled, “Back then, there weren’t many of us and it was legal guerilla war.
We pledged ourselves to Migra resistance.”12 This cohort of young Anglo immi-
grant defenders participated in protest activities organized by Chicano student
activists at the Peoples College of Law in Los Angeles and the Colegio Cesar
Chavez in Oregon’s Willamette Valley. They read CASA’s political newslet-
ter Sin Fronteras and attended political events related to immigration issues,
such as the National Chicano-Latino Issues Conference organized by La
Raza Unida Party in October 1977, leaving the conference feeling “viscer-
ally” that they were “part of a broader movement.”13 Taking up the rhetoric of
the Chicano movement, they denounced the U.S. government for exerting
“increasingly greater control over the domestic economy of Mexico and other
Third World nations, causing economic depression, mass unemployment and
under-employment, to the detriment of working and poor people throughout
the world, driving them from their homelands.”14
Young progressive attorneys approached the defense of Haitian asylum
seekers with similar zeal and likewise embraced the political struggle of this
movement. The Haitian cause attracted a cadre of recent law school gradu-
ates who were drawn to the possibility of “playing an integral part of a broader
political struggle” by supplying a legal arm for this new movement.15 Adopting
the rhetoric of Haitian dissident political organizations, they decried the
U.S. government’s support for “fascism” in Haiti and immersed themselves in
learning about the country’s political history and documenting the Duvalier
regime’s abuses.16 In taking over the defense of Haitian refugees, young legal
professionals saw themselves as “fashioning a grassroots, transnational move-
ment strategy designed to expose the abuses of both the Duvalier government
in Haiti and the INS in the United States” (Kahn 2013, 72). Legal defense
work was placed in the context of supporting Haitian political mobilizations.
The young attorneys leading the Haitian defense team framed their efforts as
a means of assisting movement leaders in their efforts to stimulate political
activism within the community.17
The 1970s generation of U.S. jurists who took up immigration defense work
felt themselves to be participants in a “mass movement that is being built
to defend the democratic rights of all undocumented people in the U.S.,” a
movement in which they worked hand-in-hand with social movement activ-
ists.18 Because immigrant groups and their allies were mobilizing politically,
immigration work was identified as political lawyering. And participants in
these efforts understood themselves as supplying the legal arm of what they
believed, with unbridled enthusiasm, to be the emergence of a major new
social movement.

Immigrant Defense as a New Legal Movement

in the United States
At the same time that the new generation of immigrant defenders under-
stood legal work as useful for enhancing the visibility of protests within immi-
grant communities, they also saw an opportunity to leave their mark on what
appeared to be a new and open legal terrain. Those working with immigrant
social movements to resist restrictionist policies did not need to look far for
legal issues to be explored. Experience in a local legal services office pro-
vided a quick lesson in the ways that undocumented clients might potentially
benefit from recently developed criminal procedure protections and welfare
rights. Indeed, during the early 1970s legal services back-up centers had been
involved in a number of cases seeking to extend welfare access for nonciti-
zens.19 Recent law school graduates working with immigrant communities fol-
lowed these developments and saw much that they found encouraging.
Perhaps more importantly, from their perspective, immigration law was an
area that fell outside the mandate of existing progressive legal mobilizations.
Certainly, U.S. legal organizations had for some time been supporting the
civil rights mobilizations of ethnic communities with a history of immigration.
Most prominently, California Rural Legal Assistance played an important
role in Cesar Chavez’s farmworker movement (Bennett and Reynoso 1972,
Gordon 2006). By the 1970s, legal offices operated by young Asian American
and Chicano attorneys were also closely involved in the nascent antidiscrimi-
nation mobilizations of their communities during this period (Minami 2000,
Haney-López 2003). However, these groups primarily represented permanent
residents or U.S. citizens and did not devote particular attention to the needs
of irregular migrants. Moreover, in the case of the farmworker movement,
organizers initially viewed recent waves of backdoor migration from Mexico
as a threat to their goal of improving working conditions for farmworkers.20 In
short, there was little sense that any established law reform organization was
challenging policies that targeted undocumented immigrant workers, refu-
gees, and other irregular migrants.
As for the existing private immigration bar, its membership was viewed by
progressive young attorneys as bringing little imagination to this area of legal
practice. The American Immigration Lawyers Association (AILA) had been
founded some three decades earlier as part of an attempt to elevate the stan-
dard and reputation of the immigration bar, however in 1973 the organization,
which at the time called itself the Association of Immigration and Nationality
Lawyers, had less than twenty chapters and only one thousand members.21
On the whole, private immigration lawyers tended to center their practice on

providing a similar template of representation to a predominantly low-income

client base, relegating them to a position of low prestige with the U.S. legal
profession (Levin 2009, 400). Certainly there were exceptions, but ener-
getic and professionally ambitious law school graduates working with immi-
grant social movements generally found little in common with the clique of
New York–based old-timers who still dominated AILA’s leadership.
The new cohort of immigrant defenders found relatively more inspiration
in the surviving remnants of a previous generation of leftist lawyers who had
defended foreign-born labor organizers against ideologically based deporta-
tions. This network had been particularly active, with mixed success, during
the 1940s and 1950s (Ginger 1993). However, the vibrant leftist legal networks
of earlier times were largely moribund by the 1970s. When the American
Committee for the Protection of the Foreign Born, an organization founded
in the 1930s, was recruited to defend the cause of Haitian asylum seekers in
the 1970s, it was an organization kept afloat only by the indefatigable work of
its aging general counsel, Ira Gollobin.22 Young attorneys who cast themselves
as pioneers of immigrant rights lawyering were inspired by the example of
this older generation of radical lawyers, viewing them as valuable mentors.
However, their ambitions were not limited to assuming the previous genera-
tion’s ideological battles or accepting its defeats.
For progressive and professionally ambitious recent law graduates, the task
that presented itself was one of organizing a legal movement that would work
alongside immigration-centered political mobilizations. Although the 1970s
generation of immigrant defenders had found a path to political engagement
through the mobilizations of locally based groups, they continued to draw
their sense of identity through contacts with similarly positioned members
of their professional cohort. Moreover, their professional approach was a col-
laborative one; facing immigration enforcement as a common adversary con-
tributed to their sense that there was little incentive to compete and significant
reason to cooperate. In the words of immigration attorney Lory Rosenberg,
“From the beginning, we were sharing all of our motions because we wanted
the best thing to be applied to our clients.”23 Having discovered their cause,
young immigrant defenders set about developing an organizational and tech-
nical infrastructure for their new professional community.
The first steps in developing this organizational groundwork were taken
by young immigrant defenders in Los Angeles who set up an “immigration
panel” within the National Lawyers Guild. The National Lawyers Guild at
this time was providing a political and professional identity for recent law
school graduates engaged in civil rights and welfare rights lawyering, so it
seemed natural that it might do the same for immigrant rights. Immigrant

Figure 1. An informal gathering of immigrant defenders at the National Lawyers

Guild Convention in Chicago in the summer of 1983. Clockwise from bottom
left: Peter Schey, unidentified participant, Susan Gzesh, Abby Ginsburg, Marc
Van der Hout, unidentified participant, and Michael Ratner from the Center for
Constitutional Rights. Photo courtesy of Susan Gzesh.

defenders felt welcome within the National Lawyers Guild, more so than in
other professional associations. In the words of attorney Gary Silbiger, a foun-
der of the National Lawyers Guild’s immigration panel and a participant in
the CASA legal collective, “CASA was our political home, but the Guild was
our legal home.”24
Institutionalization of the new immigration-centered professional com-
munity initially proceeded slowly. The spring of 1971 saw the establishment
of a monthly Immigration Newsletter that offered a forum for individual law-
yers working with immigrant community groups. The following year, at
the National Lawyers Guild’s convention in Austin, the immigration panel
became the National Immigration Project and its members took the first steps
to establishing a nationwide professional community that would live up to their
group’s name. A Chicago chapter opened in 1973, followed over the next four
years by chapters in New York, Boston, and Washington, D.C. The National
Lawyers Guild’s biannual conventions provided opportunities for project mem-
bers to meet in person, and several attorneys recalled the “collegiality” of the
new community of immigration defenders (see Figure 1). In 1974, the project

formed a national steering committee comprised of ten members from ten cit-
ies. With the aim of encouraging others to do politically engaged immigration
work so that the group “could become really national,” organizers conducted
“road shows” that brought them into contact with community organizations,
law students, and immigration practitioners around the country.25
Through this nascent professional community, aspiring legal activists
exchanged legal research and analysis and also shared their vision for build-
ing a movement, both political and legal, around the theme of immigrant
defense. The National Immigration Project’s Immigration Defense Manual
was the product of a collective effort that culminated at an all-day meet-
ing at the National Lawyers Guild’s Seattle convention in August 1977. In a
three-ring notebook of 250 pages “designed specifically to assist practitioners
in the defense of non-U.S. citizens,” the contributing authors offered a step-by-
step guide to the legal aspects of deportation defense.26 Immigrant defenders
also found ways, with varying degrees of formality, to coordinate and system-
atize their practices. In 1979, attorneys in the Boston area collaborated in for-
mulating a Freedom of Information Act (FOIA) request for information about
INS “area control” enforcement operations, and then made a copy of their
request as well as other sample FOIA requests available through the National
Immigration Project’s “Brief Bank.”27 The concrete benefits of exchanging
information were made clear in the Sbicca litigation, as immigrant defenders
won their initial temporary restraining order – which dramatically turned back
the bus at the Mexican border – by citing case law developed by Oregon-based
project members.28 Through the professional community sustained by this
network, collective knowledge could be generated, transferred, and applied
to new contexts.
As the network of immigration-focused young Guild attorneys continued
to expand, the same ambition that had motivated the project’s formation
spurred some of its members to take the first steps toward a substantially more
institutionalized form of practice. In 1979, attorney Peter Schey succeeded in
securing funding from the Legal Services Corporation to transform the Aliens’
Rights Program, created three years earlier within the Legal Aid Foundation
of Los Angeles, into a national Legal Services “back-up center.” The newly
renamed National Center for Immigrants’ Rights had a mandate to coordi-
nate impact lawsuits and to provide technical assistance on immigration law
to local legal services offices. The goal was to “complement existing work in
the immigration field” by providing specialized legal resources on a national
scale.29
By the end of the 1970s, readers of the National Lawyers Guild’s
Immigration Newsletter would have agreed with the editor’s assessment that

their professional community had “coalesced and solidified,” and that it was
“in the vanguard of the most important immigration litigation today.”30 This
initial institutionalization of immigrant rights legal activism presaged fur-
ther developments in the years to come (see Chapter 4). For the moment,
however, the point to appreciate is that those working to support grassroots
mobilizations of immigrant communities were simultaneously engaged in the
construction of a legal movement centered on specialization in immigrant
defense. We can see a remarkably similar combination of lawyers and local
movements in the development of immigrant rights legal activism in France
during this same period.

French Jurists in the Social Movement

Like their American peers, the generation of French jurists who starting their
careers in the 1970s were inspired by the contestatory politics of the period.
The forging of a generation of politically engaged jurists took place in France
not through a decade of civil rights struggle but rather through the crucible of
the dramatic events of May 1968.31 Like other members of their generation in
France, many young jurists were inspired by the idealism of this moment and
the perceived excesses in the government’s repressive response to the May 1968
events catalyzed a number of reactions among the loose grouping who identified
as the gauche juridique (Vauchez and Willemez 2007). In the immediate after-
math of May 1968, politically active lawyers were most eager to undertake the
“collective defense” of radical activists, but their efforts subsequently broadened
into wide-ranging legal experimentation to promote social change. Moreover,
as these efforts developed, they expanded to include not only members of the
private bar (avocats au barreau) but also magistrates, legal counselors, and mem-
bers of France’s other law-centered professions. Young jurists were responsible for
reviving the long-dormant legal department of the Ligue des Droits de l’Homme,
which focused on assuring the defense of political dissidents (Agrikoliansky
2002). They also contributed to transforming the legal department of France’s
largest national labor federation, the Confédération Française Démocratique du
Travail (CFDT), into a vital wing of the syndicalist struggle. Under the direction
of Jean-Paul Murcier and assisted by Henri Leclerc, the CFDT in the 1970s
developed a litigation-oriented strategy that aimed not only to protect existing
rights to workplace accident compensation but also to create a new jurisprudence
protecting the working conditions of nontraditional workers and guaranteeing
employee participation in workplace decision making (Willemez 2003).
The perception that existing professional institutions were inaccessible, out
of touch, and overwhelmingly conservative prompted recent law graduates to

create their own professional associations. The Syndicat de la Magistrature,

founded in June 1968 by magistrates at the beginning of their careers, aimed
to challenge judicial hierarchy and to subject the economically powerful to
the same justice faced by ordinary citizens (Applebaum 2003). Similarly, the
Syndicat des Avocats de France was organized in the early 1970s by young law-
yers committed to the provision of legal aid and who felt themselves unrepre-
sented by the barreau (Michel 2004). Participants in this exciting professional
transformation viewed the creation of new institutions as a first step toward
reforming a justice system that was “underfunded, enclosed in an attachment
to formality, subordinated to the impunity of the police, and shockingly dis-
tanced from the lives of ordinary people” (Leclerc and Blum 1970, 6).
In parallel with this rethinking of existing institutions, the 1970s generation
explored alternatives to traditional legal practice. Having started their careers
well-endowed in cultural and educational capital, a generation of young pro-
fessionals sought to offer their skills to subordinated groups. They were par-
ticularly inspired by the new model of political engagement developed by
Michel Foucault’s Groupe d’Information sur Les Prisons, which in the early
1970s had publicized the grievances of prisoners as a first step toward mobiliz-
ing a movement for political change.32 Invoking this example, young jurists
joined medical doctors, psychiatrists, and social workers in seeking to generate
a contre-expertise, meaning a base of knowledge for social movements aiming
to subvert the discourse of power. This could be done, as they saw it, by offer-
ing social movements concrete knowledge about the most effective tactics
for navigating the law and the judicial system while allowing them to direct
their own struggles. In the early 1970s, the newly formed Mouvement d’Action
Judiciaire (MAJ) offered a loose professional network for jurists seeking to
express solidarity with post-1968 social movements.33 MAJ operated as a “trans-
versal coordination of all jurists” and its members became involved in such
diverse causes as access to justice, police violence, and reform of the military
justice system (Lascoumes 2009, 4–8). We see another version of this approach
in the boutiques de droit movement of the 1970s, whose participants sought to
implant themselves at the grassroots and to work collaboratively with their cli-
ents so as not to “usurp” the initiative of local social movements (Revon 1978,
52). As historian Gérard Mauger describes the post-1968 context in France: “A
generation of those most highly endowed with educational, economic, and
social capital began their professional careers by opening ‘new fronts’ in dif-
ferent fields of social life” (Mauger 1994). The fact that the political left in
France was in disarray during the early 1970s provided an additional impetus
for young professionals to find a path to political engagement through social
movement activism.

In this post-1968 context, as young jurists searched for a way to insert them-
selves into the amorphous and evolving social movement, immigration work
offered a path to political engagement. As we saw in this chapter’s introductory
section, those attracted to this area of engagement included several recent
graduates of the Ecole Nationale d’Administration (ENA), whose political
engagement arose from a desire to denounce what they saw as autocratic mea-
sures taken against some of their politically outspoken classmates.34 In the fall
of 1971, searching for a theme to concretize their newfound politicization, they
had come across a recently published chronicle of daily life in France’s immi-
grant shantytowns, or bidonvilles, which described how the routine interven-
tions of police into residents’ homes had created a “zone of absolute non-law”
and which presented immigrant workers as a new front in the struggle against
repressive authority.35 Through the MAJ legal network, the ENA graduates
made contact with two other sets of aspiring immigrant defenders. The first
included members of a network of solo-practitioner lawyers and participants in
the boutiques de droit movement who were providing regular representation
to immigrant clients. The second was composed of social workers employed
by the Cimade’s immigrant assistance programs, many of whom had connec-
tions to reformist currents within the CFDT labor federation and had been
involved in Jesuit solidarity work in the context of the struggle for Algerian
independence.36 From this diverse collection of politically engaged immigrant
advocates emerged the association GISTI, whose first concrete activity was the
operation of a free drop-in legal consultation service on Saturday mornings at
the offices of the Cimade. The group’s name reflected its founders’ aspiration
to merge concrete engagements with broader political goals.37
What allowed GISTI’s project of organizing a collective legal defense of
immigrant workers to gain practical traction was the contemporaneous emer-
gence of widespread political mobilizations led by immigrants. Just as the
1968 movement had energized a generation of legal professionals, its echo
was felt among immigrant workers (Pitti 2006). In the late 1960s a vanguard
of student activists from France’s former colonies took the first steps to orga-
nize immigrant workers politically, building on the participation of immigrant
workers in a wave of factory occupations across France during the summer
of 1968 (Siméant 1998, 178–92). The Mouvement des Travailleurs Arabes
emerged at the end of 1972 from the successful campaign, assisted by a num-
ber of high-profile leftist intellectuals, to defend Tunisian student activist Said
Bouziri from expulsion. Under Bouziri’s direction, the movement went on
to coordinate a series of hunger strikes in the Paris region to protest adminis-
trative circulars restricting immigrant work authorizations. By 1973, activism
in the name of immigrant workers had expanded beyond Paris to the South

of France and had embraced not only opposition to restrictionist immigra-

tion policies but also the longer-term goals of improving working conditions
and ending racism in the justice system.38 Protests in the name of immigrant
workers drew participants of Portuguese, North African, Mauritian, and West
African background.
This mobilization on the part of France’s immigrant workers was unprec-
edented in the diversity of nationalities who participated, and movement lead-
ers were vocal in asserting their movement’s political autonomy. They broke
with the long-standing tradition of relying on communist-affiliated French
labor unions to represent them and insisted on representing their own interests.
Retaining control of their movement was viewed by activists as part of a broader
effort at community emancipation, manifested in agitprop street theater and a
range of sports and art collectives (Escafré-Dublet 2014). As part of this move-
ment for independence and freedom of expression, immigrant activists also
rebuffed the overtures of the Algerian government’s Amicale des Algériens en
France to speak on their behalf, seeing in these overtures a desire by officials
in Algiers to instrumentalize their movement in the context of the conflictual
diplomatic relations between Algeria and France during this period.39
Immigrant mobilizations borrowed liberally from the Marxist-inflected
vocabulary of the French Left during this period and combined this frame-
work with anti-imperialist rhetoric. As described in the chapter’s introduc-
tory section, grievances against the semipublic SONACOTRA organization
and its nationwide network of immigrant worker dormitories were heightened
by the fact that residents felt they were being treated disrespectfully by racist
colonial-style overseers. Leaders of the foyer struggle also had no trouble draw-
ing links between immigration enforcement and the repression of their move-
ment, condemning immigration enforcement actions as those of an imperialist
police state (Ginesy-Galand 1984, 201). The movement attracted early support
from a social justice voluntary organization, the Collectif d’Alphabétisation,
whose work centered on literacy programs in immigrant communities but
whose publications likewise adopted the radical revolutionary discourse typi-
cal of the period.40
GISTI’s jurists were eager to manifest their solidarity with this politically
committed action and their public statements adopted a Marxist-inflected rhe-
toric similar to that employed by the immigrant activists they were supporting.
The group’s earliest official publication, a practical guide to immigration law
and policy published by the leftist Maspero Press, includes an opening section
identifying immigrants as “disposable workers brought to fill the gaps of the
capitalist economy” and describing law as “a terrain of struggle, supplying arms
whose usefulness stems from the internal contradictions of capitalist societies”

(GISTI 1975, 13–14). GISTI’s members emphasized that social assistance and
humanitarian interventions alone would not change the condition of immi-
grants, and that inserting individual efforts into a collective struggle was nec-
essary “to achieve a goal, which at the least, would establish the equality of
political, economic, and social rights for all of the workers in France”(GISTI
1975, 15). The eruption of nationwide strikes and protests organized by immi-
grant workers, particularly the sustained mobilization of immigrant foyer resi-
dents, was a cause for excitement because it appeared to be just the type of
collective struggle that would bring about fundamental social change. In a
press release, GISTI called for solidarity on the part of all unions and associa-
tions with this movement so that “immigrants should not bear the entire bur-
den, since they are protagonists in the same way as French workers.”41
GISTI’s members also fully endorsed the foyer movement’s emphasis on
autonomy and independence. Initial legal strategies were primarily defensive
in orientation, using judicial action to stall efforts to have residents evicted
from the foyers and to force the authorities to negotiate directly with the immi-
grant movement leaders. GISTI took pains to insist that it was “supporting
immigrant workers in their combat for the recognition of their rights and their
dignity” and that its legal defense efforts consisted of furnishing to members
of the immigrant movement the means to defend themselves.42 Its members
organized a public statement of solidarity with the foyer movement by the
main organizations of France’s post-1968 juridical left, asserting that the con-
flict could only be resolved when the management recognized that immigrant
workers were capable of negotiating their rights for themselves.43 And GISTI
declared itself “ready to participate in all common action undertaken by dem-
ocratic organizations to resist attacks against foreigners.”44 If immigrant rights
emerged as a cause for French lawyers, then it was in part because France’s
immigrant workers in the 1970s supplied them with an independent political
movement to defend.

Building a New Legal Movement in France

As much as they were driven by conviction and by a commitment to sup-
porting immigrant mobilizations, France’s young progressive jurists were also
attracted to the immigrant cause by the challenge of leaving their mark on the
law. In the words of attorney Christian Bourguet, who throughout the 1970s
provided legal representation to the leaders of the foyer struggle, legal work
on immigration-related issues was exciting because there was so much law to
be made and “so many things to invent.”45 A similar theme is developed by
Philippe Waquet, a GISTI-affiliated attorney, who as an avocat aux conseils

was qualified to argue the group’s cases before France’s highest jurisdictions.
According to Waquet, the project of developing immigration law in the 1970s
was professionally gratifying because it was “like a sport; it was a question of
identifying ways to entice courts to get involved.”46 In other words, litigating
immigration cases was a type of legal work holding abundant interest for jurid-
ical technicians.
In part, this reflected the fact that political lawyering, while it had a long
and distinguished tradition in France, had rarely taken up the defense of immi-
grants per se. Only a decade earlier, legal defense networks established during
the Algerian War had been active in providing legal representation to leaders
of the independence movement and supporting the struggle to end colonial
rule, but these efforts were not labeled as immigrant defense (De Felice 2002).
Nor did they involve immigration law issues, because those born in Algeria or
to Algerian parents were automatically classified at the time as French nation-
als even if, as colonial subjects, they were denied citizenship rights. Individual
members of the legal networks formed during this earlier period expressed
solidarity with immigrant worker movements, and MAJ founder Jean-Jacques
de Felice played a key role in facilitating initial connections between GISTI’s
founders and prospective members. However, providing legal support to the
immigrant movements of the 1970s meant engaging with legal issues that had
not been addressed by the political lawyering efforts of earlier generations.
Immigration defense could also be presented as a new area of practice due to
the relative isolation of immigrant workers within French society. Segregated
working and living conditions and entrenched racism separated the immi-
grant workers of the 1970s from other workers. Even as it turned toward legally
oriented strategies, the CFDT labor federation had a weak presence in the
sectors in which most immigrants were working and was riven by immigra-
tion policy differences among its constituents, some of whom were not averse
to the principle of border closure.47 With labor union leadership relatively
tepid on immigration policy matters, groups outside of the labor movement
were encouraged to take the initiative in aligning themselves with immigrant
struggles. For instance, as early as 1971, a far-left grouping of young medical
professionals offered their solidarity and professional knowledge to immigrant
workers protesting labor conditions in the Penarroya metal works (Pitti 2010).
GISTI’s role in the struggles of France’s immigrants in the 1970s would follow
a similar model, while emphasizing the combination of solidarity with legal
expertise.
For GISTI’s network of immigrant defenders, the first step toward forging
this combination of solidarity and legal knowledge consisted of systematically
acquiring and organizing legal documents, so that the state of the law governing

immigrants could actually be discerned. France’s postwar governance of immi-

gration and immigrants had been carried out largely through administrative
regulation, and few of the relevant circulars were publically available. It was
not uncommon for immigrant defenders to be presented in court with admin-
istrative regulations whose existence was previously unknown. Conversely, it
was difficult to formulate legal arguments on behalf of a client with few writ-
ten guidelines at hand. Thus, when GISTI registered itself as an association,
it listed as its primary organizational aim: “to bring together all information
on the legal, economic, and social situation of foreigners and immigrants.”48
The group established a repository for unpublished tribunal decisions, expert
opinions submitted to appeals courts, and immigration-related administrative
circulars. Simply collecting existing state regulations was thus seen as a first
step toward reducing the scope of administrative “nonlaw.” GISTI’s first pam-
phlet, titled “The Regulation of Foyers,” appeared in June 1972 and in the fol-
lowing three years the group produced ten other brochures and a book, all of
which aimed to furnish practical information on immigration rules and policy
practices (GISTI 1975, 118–19).
Developing a new legal movement also involved building a sense of com-
munity among individual jurists active in defending undocumented workers
and other irregular migrants. While there were no competing institutions
with which to contend, this also meant that legal defense efforts were starting
from a baseline of complete lack of coordination. Having officially registered
their association in 1973, the pressing task for GISTI’s secretariat was to assem-
ble a list of defense lawyers who were sympathetic to the immigrant cause.
Gradually, this network of correspondents came to include small groups
beyond the Paris area. By the end of the 1973, a chapter had formed in Lyon,
which reported in a letter to the Paris secretariat that its members were com-
mitted to the goal of “mutual sharing of information and reflection on the
particular problems of migrants with an eye towards developing clear docu-
mentation on the state of the law.”49 Two years later, jurists from GISTI and
MAJ organized a “Colloquium on Immigration” in Montpellier that aimed
to “coordinate the different committees of support that have appeared in the
course of these recent struggles by autonomous immigrant movements.”50 As
immigration issues acquired a higher political profile over the course of the
decade, GISTI was able to further expand its network of immigrant defenders
to include lawyers associated with France’s labor movement.
As membership in GISTI’s immigrant defense network expanded, additional
steps were taken to organize activities and coordinate among participants. For
example, in 1976, GISTI circulated to its affiliated attorneys a sliding scale of
recommended fees for those who accepted “collective or exemplary” cases

that had been referred through its legal consultation service. Private practitio-
ners willing to contribute their services were asked to indicate their areas of
specialty and the number of these special cases they felt able to undertake on
GISTI’s behalf.51 The group also launched an appeal to its correspondents for
donations to a newly established fund to defray court costs of these collective
or exemplary cases.
GISTI also sought to regularize the finances of its small secretariat. The
group had found an organizational home for its first six years within the offices
of the Cimade, where André Legouy simultaneously served as a paid staff
director for the Cimade’s migrant service and also played the role of GISTI’s
organizational coordinator. After leaving the Cimade in 1978, Legouy contin-
ued to play a central role as GISTI’s first permanent staff member, although
the move to its own offices required that the group secure independent
sources of funding.52 In the end, it was a donation from one of the Cimade’s
philanthropic supporters, the Comité Catholique contre la Faim et pour le
Développement, that allowed GISTI to open its own offices and develop rela-
tively more formalized organizational structures.
Like their American counterparts, GISTI’s jurists sought to develop the
infrastructure for their legal movement by making available a collection of
increasingly sophisticated legal publications to the group’s affiliated lawyers
and correspondents. In 1978, GISTI published a practice guide on “Legal
Avenues for Individual Defense and Appeals against Removal Measures,”
which outlined the appeals process, provided citations to cases, and offered
practical advice on litigation strategy before administrative tribunals.53 Among
the documents made available at nominal cost to GISTI members and cor-
respondents were the recently issued decisions of lower courts as well as the
expert opinions drafted by judicial advisors to the Conseil d’Etat and the Cour
de Cassation. The new legal movement for the first time assumed a European
dimension in 1979, when GISTI was invited to send representatives to a
European conference centered on the theme of legal defense of foreigners.54
At the same time that GISTI declared its commitment to supporting the lead-
ers of the foyer movement in their struggle, the group could also celebrate its
increasingly well-established reputation as “an association of jurists and social
workers who have given themselves the essential task of exploring the domain
of the rights of immigrant workers.”55

Conclusion
As the preceding discussion has documented, the origins of contemporary
political lawyering on behalf of the immigrant “cause” lie in the contentious

politics and turn to restrictionism that began during the 1970s. Although
American and French immigrant defenders had virtually no contact with
their trans-Atlantic counterparts as they became involved with immigration
issues, what becomes apparent are the remarkably similarities across these two
national contexts. At the beginning of the decade, few jurists saw immigration
work as a political or legal project. By the end of the 1970s, exciting, innova-
tive, and creative legal work could be found in abundance in both countries.
But what was all of this legal activity actually about? Seen from one per-
spective, immigration defense work in the 1970s constituted the “legal arm”
of immigrant-led social movements aiming to shift the balance of power in
concrete and tangible ways. We might understand it as a form of movement
lawyering whose participants deployed legal tools in the service of struggles
for social change. There is ample evidence in each country to support this
view. In both the United States and France, young law graduates sought
out connections with immigrant-led social movements and enthusiastically
adopted the terms of their struggle. Moreover, as we see in their publications,
these lawyers explicitly proclaimed their allegiance to a vision of politics that
viewed mobilizations organized by subordinated groups as the primary engine
of long-term social change.
Seen from another perspective, immigrant defenders in the 1970s were
engaged in a movement that was primarily legal in nature. Participants
in these networks devoted substantial time and energy to building organi-
zations whose primary membership base consisted of politically engaged
jurists like themselves. Moreover, their engagements were propelled in no
small degree by a desire to use litigation to develop new and generalizable
principles at the level of doctrine. Indeed, these processes of constructing
legal institutions and legal knowledge reinforced each other. As scholars
have shown in their studies of legal movements in other domains, collab-
oration is often an engine of legal knowledge production, while sharing
of information reinforces solidarity within informal professional networks
(Abel 1985, Galanter 1990).
Both of these visions of early immigrant rights lawyering represent a valid
account of this domain during the 1970s. It was a period in which innovations
proliferated, group boundaries were uncertain, and the range of protagonists
was in flux. This fluidity was possible because the new area of practice, even
as it approached intelligibility for its internal participants, was as yet uncon-
nected to established professional structures. In a context in which experimen-
tation proliferated and routinized protocols were scarce, members of the 1970s
generation of law school graduates were free to interpret their efforts simulta-
neously in terms of technical competency and in terms of a commitment to

social justice. No single model predominated because the terms of evaluation

were subject to debate.
As we will see, the boundaries of this new area of practice would become
substantially more defined in the decades to come. Routinized contact with
the juridical world’s forms and structures would gradually construct the
boundaries of something in each country that would be recognizable – to
practitioners and observers alike – as immigrant rights legal activism. It is this
series of reconfigurations that is the subject of the following chapters.

Formalization of Immigrant Rights

For many among the generation of jurists that took up immigrant defense in
the 1970s, the project of assisting locally based immigrant movements and the
project of creating new precedent in the area of immigration law were not
mutually exclusive. Both seemed achievable through lawsuits challenging the
newly restrictionist turn in national immigration policy making. The primary
difficulty, for these aspiring legal activists, was that legal precedent around
immigration questions appeared to be in a state of deep-freeze. While the
grassroots political movements with which jurists came in contact were fram-
ing immigrant identity in new and creative ways, immigration law seemed
stuck in outmoded categorizations.
The outlook was particularly daunting in the United States, where doctrinal
construction, enunciated by the Supreme Court at the end of the nineteenth
century, declared that Congress had received all sovereign power to regulate
the entry of aliens and that choices in this area would not be subjected to other
constitutional limitations.1 French immigrant defenders did not have to con-
tend with such an explicit doctrinal obstacle, but they nonetheless encoun-
tered an implicit juridical association of immigration with national security.
In a series of postwar cases, the Conseil d’Etat had made it clear that it would
be unwilling to exercise review over expulsions carried out in the name of
public order, adopting this position even when the notion of “public order”
was interpreted particularly broadly by administrative officials.2 Challenging
immigration policy at the national level was a difficult task when courts in
both the United States and France had developed long-standing precedent
associating these matters with sovereignty and national security.
Members of the cohort of recent law school graduates who took up the
cause of immigrant defense in the 1970s were certainly aware of these nega-
tive precedents.3 At the same time, aspiring legal activists in both countries
were optimistic about the prospects of leveraging juridical technologies that

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48 Contesting Immigration Policy in Court

had been unavailable during prior periods of immigration restrictionism.

Courts in both the United States and France were asserting and deepen-
ing innovative new avenues for judicial review during this period. For those
who hoped to effect policy change through legal channels, the task was to
identify ways of legally associating immigration matters with these expansion-
ary new avenues while legally dissociating them from the realm of sovereign
discretion.
This chapter explores the creative work involved in disassembling old legal
associations for immigration policy and assembling new ones. My analy-
sis emphasizes that this activity did not simply apply to immigration cases
a mechanical operating code already established in other areas of law, but
rather translated immigration matters into forms that then could be taken
up by juridical frameworks associated with assertive review. In other words,
while contemporaneous jurisprudential regimes in both countries offered
a set of devices with the potential to transform immigration law through
case-by-case adjudication, judges needed to do the hard work of discerning
whether these devices were or were not applicable to the cases before them.4
Furthermore, it was not only appellate judges but also other participants in
the legal process who engaged in the creative process of “imposing estab-
lished categories for classifying events and relationships . . . or developing a
framework which challenges established categories” (Mather and Yngvesson
1980, 775). In the process of legal contestation, litigators have at their disposal
a heterogeneous set of devices to filter the complexity of the material world
so as to render it legally intelligible. When it is successful, this process of
translation produces new assemblages of events, relationships, and doctrinal
concepts (what jurists would call the case “holding”) that appear as logical
extensions of existing law.
It is through such a process of translation, I argue, that aspiring legal activ-
ists starting in the late 1970s began to transform the grievances of noncitizens
targeted by immigration restrictionism into legally cognizable claims. The
comparison between the United States and France highlights the substan-
tial differences in the set of legal devices engaged in each setting. As we will
see, the heterogeneous set of devices within the Warren Court’s jurispruden-
tial regime for civil rights adjudication offered opportunities for individuals to
acquire expansive rights protections if they could show that they belonged to
groups that had faced historical discrimination. By contrast, the jurispruden-
tial regime of contemporary French administrative law placed little empha-
sis on the characteristics of those claiming rights. Instead, this set of devices
predicated the expansion of individual rights on associating a challenged
policy with administrative autocracy. To the extent that legal arguments for

vulnerable migrants were convincing, it was because litigators successfully

extended a set of legal devices from other areas of the law into the immigration
policy domain.
Taking each country in turn, this chapter first outlines the jurisprudential
regimes that aspiring legal activists faced as they sought to convince courts on
the basis of logic and precedent to expand rights for migrants targeted by immi-
gration restrictionism. It then traces the creative process of meaning-making
through which these sets of devices were applied in cases challenging restric-
tionist policies, with the aim of connecting immigration to the rights-based
normative referents of domestic legality as opposed to those of foreign pol-
icy. Finally, the discussion of each national setting explores how the radiating
effects of these legally generated associations in turn shaped political activity
around immigration policy making outside of the courts.

Warren Court Civil Rights Jurisprudence

Recent contributions to the scholarship on American Political Development
provide a starting point for understanding the jurisprudential regime that U.S.
immigrant defenders drew upon as they explored ways to work around negative
precedent. As these studies remind us, the doctrines and standards of Warren
Court civil rights jurisprudence were formulated by judges closely attuned to
the Kennedy-Johnson liberalism of the mid- and late 1960s, a regime that pro-
moted professionalized reform as a corrective to the sort of traditionalism for
which Jim Crow served as an exemplar (Tushnet 2006, 121–7). Moreover, the
expansion of this jurisprudential regime was made possible by assertive use by
Presidents Kennedy and Johnson of their judicial appointment powers so that
by the mid-1960s the federal judiciary was filled with judges predisposed to
applying this civil rights framework (Gillman 2006).
Although it emerged from a specific political and historical context, the
Warren Court civil rights jurisprudence was still a distinctly legal technol-
ogy insofar as it included a set of devices for evaluating concrete events and
relationships through general legal categories. Perhaps the most important
of these devices was the association of different levels of judicial review with
different areas of policy making. Operating within the broad paradigm estab-
lished during the New Deal period, the Warren Court followed the Roosevelt
Court in jettisoning formalist notions of property rights so as to adhere to the
basic premise that the protective legislative programs of the interventionist
welfare state would be “presumed constitutional” so long as they were reason-
ably aimed at “some broader, systemic regulatory purpose” (Kersch 2006, 179).
At the same time, in a footnote to a 1938 Supreme Court decision, the federal

judiciary reserved its authority to conduct a more searching form of review in

three kinds of situations: when a law violates a provision of the Constitution on
its face, when it restricts the political process, or when it implicates “prejudice
against discrete and insular minorities.”5 The third portion of this formulation,
associating race-based legislative distinctions with heightened review, gained
particular salience in civil rights cases, most prominently in the Supreme
Court’s 1954 decision in Brown v. Board of Education ending de jure segre-
gation in public schools.6 According to the new approach, when state laws
explicitly mandated racial segregation, the Supreme Court was free to subject
them to its strictest form of constitutional scrutiny.
A second prominent legal device in the Warren Court’s civil rights juris-
prudence, one that built upon the rule associating race-based distinctions
with searching judicial review, was the flexible interpretive approach applied
to the question of how “discrete and insular minorities” would be identified.
Although the resonance of this legal category for its adherents was inseparable
from the symbolic potency of the civil rights movement, judicial interpretation
subsequently enabled other racial minorities besides African Americans to be
brought within its reach. By 1970, Mexican Americans and Asian Americans
had been classified by federal courts as identifiable ethnic minorities within the
protection of Brown.7 In combination with the broad application across civil
rights cases of searching judicial review, the Warren Court’s loosely metaphori-
cal approach to the category of “discrete and insular minority” allowed judges to
assertively scrutinize government actions alleged to discriminate against groups
whose situation could be plausibly compared to that of African Americans.
A third legal device incorporated into the Warren Court civil rights juris-
prudence in its later stages consisted of a technique directing judicial correc-
tives toward discriminatory outcomes even in the absence of clearly invidious
lawmaking motivations. The Supreme Court held that the constitutional
norm of equal protection required the government to act purposefully to
eliminate all vestiges of racial segregation even when the racial imbalance at
issue was not produced by any current policy but was the result of a legacy of
state-imposed segregation.8 District courts were instructed to design remedies
that would produce schools of like quality, facilities, and staff, and were free
to use numerical ratios reflecting the racial composition of the population as
a starting point for achieving a completely unified, unitary, nondiscriminatory
school system. Government administrators were given the burden of showing
that policies producing racially disproportionate effects were not the result of
present or past discrimination on their part.9
While the Warren Court civil rights jurisprudence continued to expand its
scope and the depth of its remedies, its potential applicability to the country’s

growing population of irregular migrants remained an open question. Even as

it applied an assertive civil rights jurisprudence in other area of policy making,
the Supreme Court reaffirmed the doctrine that immigration was a matter
of foreign affairs in which judicial control should be minimal. As late as the
mid-1970s, in Matthews v. Diaz (1976), the Court cited the plenary power
doctrine when refusing to apply a raised standard of constitutional review to
a federal statute providing noncitizens with less favorable access to Medicare
benefits.10
Nevertheless, for immigrant defenders of a more optimistic bent, the con-
ceptual repertoire of U.S. constitutional law continued to offer possibilities
for extending Warren Court civil rights jurisprudence into immigration mat-
ters. The decision in Matthews v. Diaz, while it reviewed federal immigra-
tion policy using a deferential standard, nevertheless signaled an openness in
principle to balancing the public interests served by prejudicial immigration
laws against the individual constitutional rights of noncitizens – even those
without regular immigration status. Moreover, several years earlier in Graham
v. Richardson (1971), the Court had signaled a willingness to extend a more
exacting form of constitutional review to immigration-related laws enacted
by state rather than federal lawmakers. The new generation of immigrant
defenders saw the application of an elevated constitutional standard to state
laws withdrawing noncitizens’ social assistance benefits as a sign that appellate
judges might revisit and revise some of the negative precedent preventing the
expansion of immigrant rights.

Immigrant Rights as Civil Rights, Part I –

The Texas Schools Cases
The first concerted litigation effort to apply this jurisprudential regime to
immigration issues challenged a state law that on its face discriminated on
the basis of immigration status. In 1975, Texas’s State Legislature amended
Section 2301 of its educational code so as to cease reimbursing local school dis-
tricts for the costs of educating undocumented children in free public schools.
Individual school districts responded to the legislation in different ways, with
some initially continuing to enroll undocumented children free of charge,
but most school districts eventually either prevented undocumented children
from enrolling in public schools or imposed fees on undocumented children
to attend public school. Some private groups set up “alternative schools” of
inferior educational quality that enrolled undocumented children free of
charge. Most undocumented children whose parents could not afford public
school tuition stayed at home instead of going to school.

The Mexican American Legal Defense and Education Fund (MALDEF)

was the first group to organize a litigation response to the Texas law. Created
in 1968 with support from the Ford Foundation, MALDEF had successfully
applied civil rights jurisprudence to the domain of education policies, convinc-
ing federal courts to place Mexican Americans in the category of “discrete and
insular minority” (San Miguel 1987). Given the Texas law’s obvious connec-
tion to education rights, MALDEF legal director Peter Roos was eager to orga-
nize a legal challenge on behalf of undocumented children. Concentrating
on a single school district had the benefit of ensuring that MALDEF’s 1977
test case, Plyler v. Doe, would be heard in the courtroom of Judge William
Wayne Justice, a federal judge who had established a reputation for asser-
tive application of Warren Court civil rights jurisprudence. As Michael Olivas
documents in his history of the litigation, MALDEF’s attorneys saw Plyler as
the Mexican American Brown v. Board of Education, a federal-court vehicle to
consolidate previous modest victories in many small state-court cases (Olivas
2005, 201).
At the same time, legal services lawyers from the newly formed National
Center for Immigrants’ Rights (NCIR) were also eager to become involved
in challenging the Texas law. As participants in the National Lawyers Guild’s
immigrant defender network, they saw the Texas law’s connection not only
to education rights but also to immigrant rights. NCIR’s Los Angeles–based
director, attorney Peter Schey, secured the role of coordinating a team of local
Texas attorneys who, unwilling to wait for the outcome of MALDEF’s test
case, had filed separate challenges in each of the state’s federal judicial dis-
tricts so as to accelerate the process of allowing all undocumented children
to return to school. In 1979, these cases were combined into a single con-
solidated action, In re Alien Children Education Litigation, in the Houston
Federal District Court that would address statewide issues.
Focusing on the law’s implications for Mexican American educational
access, MALDEF’s arguments drew heavily upon the categories of Warren
Court civil rights jurisprudence. In framing the facts and the legal issues,
they sought to convince the courts that the 1975 legislation amounted to an
attempt by Texas’s legislators to undo the gains of civil rights proponents. The
primary thrust of these arguments was that the purportedly racially neutral
legislation was in fact saturated with racism. They emphasized that most of
the costs of bilingual education are borne by the federal government, thus
the state’s claim that the cost of bilingual education was a major rationale for
the legislation targeting undocumented children was simply camouflaging
invidious purposes. The legislation was framed as a reactionary response by
Texas legislators against the decade-long effort of Mexican Americans and

their supporters to include Mexicans in civil rights desegregation programs.

By arguing that “the public schools provide virtually the only opportunity
that many of these children will have to interact with the majority soci-
ety,”11 MALDEF’s lawyers effectively cast their clients within a race-based
mold and softened the distinction between “alienage” and “lineage.” They
highlighted the testimony of one state witness, who had not only conflated
Mexican children with undocumented children, but who had also stated that
these children have “lower educational capabilities,” arguing that the court
should infer from the word capability that the state educational official held
suspect views about inherent racial differences.12 The plaintiff children were
a prime example of “a discrete and insular minority requiring heightened
judicial solicitude because they have been subjected to a history of purpose-
ful unequal treatment.”13
The legal services attorneys of NCIR likewise relied on legal devices taken
from Warren Court civil rights jurisprudence to frame the facts and issues in
their case when it went to trial in the spring of 1980 in the Houston courtroom
of Judge Woodrow Seals. Schey’s legal team aimed to convince the court that
the challenged statute should be closely scrutinized because it penalized
innocent children, whom it categorized on the basis of alienage. To disso-
ciate the schoolchildren from transitory “illegal aliens,” a category evoking a
jurisprudential regime of sovereign border control authority, the legal team
insisted at trial on using the term undocumented schoolchildren rather than
illegal aliens and presented testimony from child witnesses who had been
excluded from school by the Texas law because they did not have documents
but who had come to reunite with parents who were settled in the United
States as legal residents.14 Reconfigured through this device, undocumented
schoolchildren could be seen, not as illegal aliens, but as part of a permanent
settler group. Moreover, these settled immigrants needed special constitu-
tional protection, it was argued, because they were part of the most vulnerable
segment, “a minority within a minority,”15 of the state’s entire Mexican-origin
population. The plaintiffs’ arguments drew explicit comparison between the
situation in Texas and racism directed against African Americans, suggesting
that, “Not very long ago, it was felt that ‘slaves should be maintained in a posi-
tion of subordination in order that the optimum of discipline and work could
be achieved’ . . . Texas perhaps holds the same view.”16 If local officials were
allowed to exclude a particularly vulnerable group on the basis of immigration
status, it was argued, the country would drift into a new type of caste system
reminiscent of slavery or Jim Crow. These arguments, like those developed
by MALDEF attorneys, applied jurisprudential devices drawn from Warren
Court civil rights decisions, but they expended relatively greater effort on laying

the groundwork for this conceptual reframing by first disassembling the cate-
gory of illegal alien.
Though they varied in their emphasis, these associations of “undocumented
schoolchildren” with the legally cognizable category of “discrete and insular
minority” resonated with the lower court judges who heard the cases. A long-
time proponent of Warren Court civil rights jurisprudence, Judge Justice had
no trouble accepting the civil rights framing of immigrants in its entirely. He
declared in his decision overturning the statute that undocumented immi-
grants were being used as “scapegoats” to divert the attention of the Mexican
American community away from demands for full integration and a fair share
of the state’s total educational resources. The state had wanted to exclude all
Mexicans, he suggested, but it was legally prevented from doing so by civil
rights precedent and so it attempted to “shave off a little around the edges.”17
Judge Frank Johnson of the Fifth Circuit Court of Appeals affirmed this deci-
sion, reasoning that excluding undocumented children from constitutional
protection would expose them to future discrimination more extreme than the
Texas law.18 To the delight of Schey’s legal team, the more conservative Judge
Seals likewise found for the plaintiffs in the consolidated case, reasoning that
the educational needs of the children statutorily excluded were not different
from the needs of children not excluded and that “[t]he classification used is
wholly irrelevant to the achievement of the State’s objective.”19
The Supreme Court was more circumspect in accepting the entirety of the
civil rights framing of undocumented immigrants. The various challenges to
the Texas law reached the Court in the fall of 1981 at a single hearing, and
briefs were submitted from both sets of lawyers. Rather than creating new gen-
eral principles, as both Roos’s and Schey’s legal teams had hoped, the decision
affirming the unconstitutionality of the Texas law was narrowly tailored to the
circumstances of the case. When it issued its decision in the summer of 1982,
the Supreme Court majority affirmed that the Texas law was unconstitutional
but rejected the rigorous “strict scrutiny” analysis and refused to give valida-
tion to the claim that education was a fundamental right.20 At the same time
that it concluded that the Texas law’s adverse effects outweighed its benefits,
the Court made it clear that its decision was narrowly tailored to the circum-
stances of the case and should not necessarily be read as supporting a broader
extension of rights to undocumented migrant adults. Indeed, the opinion was
criticized by the dissenting justices for being based on a desired policy out-
come – overturning Texas’s law – rather than on general principles.21
In practice, the policy ambitions of Justice Brennan’s majority opinion
reached more broadly than criticizing Texas’s law. A careful reading of the opin-
ion reminds us of what those at the time understood more quickly, namely that

the thrust of the opinion was aimed at addressing the federal government’s
immigration policies. Directed implicitly toward a national policy-making
audience, the majority opinion asserted that the combination of lax federal
enforcement and Texas’s statutory discrimination created a lethal combina-
tion that threatened to create a “permanent caste of undocumented resident
aliens . . . an underclass that presents most difficult problems for a Nation
that prides itself on principles of equality under law.”22 Although the deci-
sion overturned a state statutory provision, the majority opinion was clearly
directed toward federal policy discussions, citing approvingly a presidential
proposal to legalize a large proportion of undocumented immigrants, “who
have become, in effect, members of the community.” The opinion ensured
that undocumented children in Texas could remain in public schools. Even
as it shied away from extending all of the protections of the Warren Court’s
civil rights jurisprudential regime to undocumented adults, the decision
implicitly accepted the framing of immigrant children as the most vulnerable
members of a racialized minority, declaring that “depriving the children of
any disfavored group of an education, [would] foreclose the means by which
that group might raise the level of esteem in which it is held by the majority.”23
Though it avoided saying so explicitly, it seemed to endorse a general amnesty
for undocumented immigrants.

Immigrant Rights as Civil Rights, Part II – The

Haitian Refugee Cases
At the same time as the Texas schools cases were progressing through the
courts, a second important litigation campaign was also making strides toward
extending the jurisprudential regime of Warren Court civil rights jurispru-
dence to immigration issues. While the arguments in the Plyler case had
addressed border control only indirectly, this second set of cases challenged
the policies of the Immigration and Nationalization Service (INS) directed
against Haitians arriving by sea on the coast of South Florida. The Haitian
litigation thus engaged more explicitly with national-level issues.
The legal process unfolded against the background of a restrictionist immi-
gration policy shift whose effects were exacerbated by political upheaval in a
neighboring state. As large numbers of Haitians fled the autocratic Duvalier
regime and sought asylum in the United States during the 1970s, they encoun-
tered an asylum process that was poorly institutionalized and that allowed
substantial room for discretion.24 Although Haitians were eligible to apply for
asylum through this process, in practice they were treated much less favorably
than Cuban asylum applicants and almost none of their asylum claims were

granted (Loescher and Scanlan 1986, 74–84). By the late 1970s, the situation
for Haitian asylum seekers had become even less favorable due to the restric-
tionist turn in immigration policy making. In July 1978, the INS’s newly cre-
ated “Haitian Program” instructed agency officials in south Florida to cease
requiring immigration judges to suspend deportation proceedings for asylum
seekers and to cease the practice of allowing aliens ten days to prepare applica-
tions to withhold deportation.
As with the Plyler litigation, the legal team that assembled to challenge
the “Haitian Program” brought together a set of attorneys with diverse insti-
tutional affiliations. Haitian asylum seekers had initially attracted the support
of a loose cluster of New York–based lawyers affiliated with leftist attorney
Leonard Boudin’s National Emergency Civil Liberties Committee. By 1978,
when the “Haitian Program” was implemented, however, Haitian defense
efforts were largely turned over to members of the new generation of immi-
grant defenders. Recent law school graduate Ira Kurzban, who had studied
with Boudin and had become active in immigrant defender networks upon
moving to south Florida, became counsel to the Haitian Refugee Center, a
former church-funded group that had recently been transformed into the orga-
nizing base for the growing politicization of the Haitian community.25 Within
a short period of time, Kurzban was joined by Peter Schey, fresh from the liti-
gation in the Texas school cases, and by Dale (“Rick”) Swartz, another young
lawyer who had participated in some of his D.C. firm’s pro bono work and
who had been hired by the Washington Lawyers’ Committee for Civil Rights
Under Law to organize its new Alien Rights Law Project. On behalf of the
Haitian Refugee Center, they secured a temporary restraining order in May
1979 ensuring that none of the approximately five thousand Haitian asylum
seekers impacted by the government’s new program would be removed. They
then organized a team of litigators who sought to put the INS program on trial.
Aiming to convince the federal district court that unauthorized Haitian
migrants should have access to the equal protection component of the Fifth
Amendment against discriminatory immigration control practices, the legal
team in Haitian Refugee Center v. Civiletti sought to separate the Haitian’s
claims from unreviewable “political questions” and to cast them instead as
actions brought by a “discrete and insular minority.” Throughout the exhaustive
trial in the fall of 1979 and spring of 1980, the Haitian legal team repeatedly
emphasized the racialized identity of Haitian asylum seekers, arguing that the
underlying reason why Haitians had been subjected to intentional discrimina-
tion was that they were part of “the first substantial flight of black refugees” to
the United States.26 Further support for the view that Haitians were the victims
of discrimination on the basis of their race was secured through testimony

from the Director of Catholic Charities for the Archdiocese of Miami, who
stated that, in his twenty-four years of experience the treatment of Haitians
“differs from that of any other immigrant group.”27
By gesturing at familiar features of landmark civil rights cases, the plaintiffs’
arguments in Haitian Refugee Center v. Civiletti effectively communicated to
the district court judge that INS practices should be evaluated using a Warren
Court civil rights framework. The first sentence of Judge James Lawrence
King’s decision highlighted the racialized framing of the case by stating, “This
case involves thousands of black Haitian nationals.”28 Judge King held that the
government had violated the essence of constitutional due process when it
created a right to petition for asylum and then made the exercise of that right
impossible for Haitians. The government was ordered to submit a nondiscrim-
inatory and procedurally fair plan for orderly reprocessing of plaintiffs’ asylum
applications.
Litigation continued, however, after the newly elected Reagan
Administration in September 1981 enacted an aggressively control-oriented set
of policies. The new approach included policies of extraterritorial interdic-
tion, screening, and repatriation, but it also revived prior policies of perfunc-
tory screenings and increased use of detention. These changes meant that all
unadmitted noncitizens without prima facie claims for asylum would now be
detained in a network of detention facilities around the country. These new
and unpublished Reagan Administration asylum policies were challenged by
a newly reconstituted legal team led by Kurzban in Louis v. Nelson, a class
action brought in June 1981 on behalf of all unadmitted Haitians who had
arrived on U.S. territory. They succeeded in obtaining a temporary restraining
order in September 1981 to prevent the INS from holding any further hearings
until asylum seekers were represented by counsel. At the trial in April 1982,
Kurzban’s litigation team deployed techniques that had been successful two
years earlier in configuring black Haitian refugees as victims of discrimina-
tion. In particular, so as to counter the government’s argument that detention
and parole of unauthorized migrants was a political matter over which federal
courts have no jurisdiction, Kurzban and his team invited testimonies and
produced statistical evidence highlighting differences in how detention pol-
icies were applied to Haitians as compared to other similarly unauthorized
migrants.29
District Court Judge Eugene Spellman was clearly moved by what he heard
at trial, beginning his decision with a poetic epithet that ended with the words
“sometimes you weep.”30 His decision made quick work of the government’s
argument that denial of parole to unauthorized migrants was a political mat-
ter, even as he ultimately concluded that there was not yet sufficient evidence

to justify a remedy on the grounds of group-based discrimination. The follow-

ing year, after Kurzban’s team had appealed, a panel of 11th Circuit judges saw
things their way and felt compelled to conclude that Haitians were the victims
of discrimination on the basis of evidence presented at trial that the INS office
in downtown Miami had posted sign directed “Haitians to the rear” while
Cubans were directed to the standard assistance channels.31 One year later, on
appeal by the government, a subsequent en banc decision of the 11th Circuit
held that unadmitted aliens had a statutory right to a hearing but that they
enjoyed no constitutionally based protection against discrimination.32
When the case was appealed to the Supreme Court, Kurzban’s team pre-
sented arguments that framed Haitian asylum seekers in even more explicitly
racial terms. Referring to the 11th Circuit’s deleterious reading of the equal
protection rights of excludable aliens, advocates for the Haitians asserted that,
“Not since the Dred Scott decision has this or any other court ever held that a
class of persons is wholly immune from constitutional protection.”33 Drawing
an implicit metaphor to the treatment of slaves, the brief described detained
Haitians as have been “shipped [by the INS] like cattle, to remote areas of
America.”34 Citing the Supreme Court’s school desegregation cases, the attor-
neys suggested that an explicit extension of equal protection rights in this case
would be a logical progression from Congress’s 1965 immigration reforms that
had “eliminated the vestiges of invidious racial or nationality based discrim-
ination in the immigration statutes” by eliminating the national-origins sys-
tem.35 Just as in the Texas school litigation, rights were constructed through
racialization, and race-based discrimination was framed as the primary obsta-
cle to the realization of immigrant rights.
When it eventually decided the case in 1985, the Supreme Court backed
away from extending equal protection rights to excludable aliens, although
it did reverse some of the damage done by the 11th Circuit’s decision. The
Court declined to rule on the issue of whether plenary power barred the plain-
tiffs from raising a constitutional equal protection claim. Instead, applying a
subconstitutional analysis arguably informed indirectly by mainstream equal
protection analysis (Motomura 1990, 591–2), the Court interpreted existing
immigration statutes and administrative regulations as prohibiting the INS
from discriminating on the basis of race or nationality.36 Immigration con-
trol was not so clearly a matter of pure national sovereignty, according to the
Court, as to be excluded from judicial supervision. At the same time, the judi-
cial remedy offered to the plaintiffs was formally based only on standards of
administrative legality (the District Court was instructed to review the exercise
of discretion by low-level INS officials to ensure that it was consistent with
regulations that had been interpreted by the Court as containing no mandate

for discrimination). This was disappointing to immigrant defenders who had

hoped to secure an explicit doctrinal extension of Warren Court civil rights
jurisprudence. Yet as we will see, even as appellate courts remained hard to
convince, other audiences were swayed by the reconfiguration of immigration
issues achieved in these early litigation campaigns.

Immigrant Rights Legal Narratives Outside

of American Courts
To understand the political significance of these experiments in legal trans-
lation, we need to expand our gaze beyond the courtroom and explore how
all of this frenetic legal meaning-making was perceived by a broader set of
political actors. Even as their work was distinguished by its uniquely juridical
approach, immigrant defenders were not the only ones to position irregular
migrants within a broader civil rights paradigm. Hispanic interest groups, most
notably the League of United Latin-American Citizens and MALDEF, had
spent most of the 1970s attempting to gather a legislative coalition around
a civil rights approach to immigration control. However, these groups faced
an uphill battle during the Carter presidency as they sought to convince key
Democratic constituencies to support a large-scale legalization program for
irregular migrants.
The problem was not that immigration per se could not be framed in civil
rights terms. A decade earlier, the “Hart-Celler” Immigration Act, which
ended national-origin discrimination in immigrant admissions from Europe
and Asia, had been heralded by its congressional sponsors as an extension
of the civil rights legislative agenda (Skrentny 2002, 37–54).37 The difference
was that debates over the Hart-Celler bill had hardly considered migrant
labor flows from Latin America, which were now increasingly irregular due
to the termination of the bracero guest-worker program one year prior to the
Immigration Act’s enactment (Zolberg 2006, 344). Rather than a civil rights
frame, it was an economic frame that guided Congress’s response to migration
flows across the southern border, reflected in the passage of a per-country cap
in 1976 that limited legal immigration from Mexico by half.
Key groups within the Democratic Party balked at a civil rights framing
of irregular migrants. The United Farm Workers, and the labor movement
more generally, continued to view “back door” migrants as a threat to orga-
nizing efforts (Zolberg 2006, 341–2). Democrats with strong labor constit-
uencies favored only a limited legalization program and sought to impose
sanctions on employers of irregular migrants. The increase in refugee flows
in the 1970s only heightened the tensions on Capitol Hill, because this

influx of low-skilled migrants was seen as a further threat to the structures

of the welfare state, which labor and African American constituencies were
fighting to preserve (Gimpel and Edwards 1999, 133). In 1977, the Carter
administration’s attempt to broker a compromise through its comprehensive
immigration reform proposal failed to gain traction in Congress. The deci-
sion in the fall of 1978 to create a Select Commission on Immigration and
Refugee Policy (“The Hesburgh Commission”) was in large part an attempt
by Democratic legislators to postpone dealing with their own divided constit-
uencies (Tichenor 2002, 233).
It was at this moment, when legislative responses to the country’s dra-
matically increasing population of irregular migrants remained elusive, that
high-profile litigation campaigns intervened in the national debate. As courts
began hearing the multiple lawsuits on behalf of undocumented Texas school-
children, judicial proceedings offered opportunities for advocates to mobilize
the liberal Washington policy community around the civil rights framing
of irregular migrants. As Michael Olivas has shown, liberal supporters were
particularly engaged by litigation challenging Texas’s exclusion of undocu-
mented children from public schools. Between 1977 and 1981, MALDEF
Legal Director Peter Roos repeatedly solicited statements of support from
Carter administration officials and encouraged the liberal legal commu-
nity to write editorials, host fundraisers, and file amicus briefs on behalf of
the plaintiff children (Olivas 2005, 204). Leveraging contacts with Assistant
Attorney General for Civil Rights, Drew Days, and with Secretary of Health,
Education, and Welfare Joseph Califano, Roos succeeded in convincing the
Justice Department and the Solicitor General to enter the litigation on the
side of the children (Olivas 2005, 207). The March 1980 trial in the consoli-
dated In re Alien Children class action further cemented high-profile liberal
support. Once Peter Schey’s legal team had juridically cemented a civil rights
reading of the issues, Judge Woodrow Seals’s racially insensitive remarks and
subsequent public apology during the trial could then become a media story
that would galvanize public attention (Olivas 2005, 217). In the assessment of
legal aid attorney Larry Daves, who assisted MALDEF on the Texas schools
litigation, the involvement of “experts from the civil rights establishment [was]
ultimately what carried the day,” both in the initial District Court victories and
in the Fifth Circuit’s affirmance of these decisions.38 Seen from another angle,
it was the particular jurisprudential regime deployed by both legal teams –
one that convincingly associated undocumented migrants with symbolically
redolent legal categories of Warren Court civil rights jurisprudence – that
generated both recognition and engagement on the part of the broader liberal
legal community.

Unfolding at approximately the same moment, litigation challenging the

government’s Haitian refugee policies offered a parallel track for converting
established civil rights groups to the cause of immigrant rights. The temporary
restraining order against the INS issued by a Nixon-appointed federal judge in
May 1979 was a breakthrough moment in legitimating the immigrant rights
narrative. The exhaustive trial between the fall of 1979 and the spring of 1980,
in which the plaintiffs rhetorically emphasized the racial identity of Haitian
asylum seekers, opened political space that migrant advocates consciously
exploited. In the spring of 1980, attorneys for the Haitians succeeded in con-
vincing members of the Hesburgh Commission to travel to Miami, where
they heard firsthand testimony from five hundred refugees.39 Later that year,
again as part of a political strategy to garner support for the litigation, members
of the Haitian defense team organized meetings on Capitol Hill for refugees
to personally describe their experiences, energizing the Congressional Black
Caucus Haitian Taskforce. This framing of refugees as a racially disadvantaged
minority was influential in convincing leading black legislators who had previ-
ously opposed refugee legislation to vote for the 1980 Refugee Act (Gimpel
and Edwards 1999, 131), suggesting the catalytic potential of a civil rights legal
framing for constructing a new political narrative around vulnerable migrants.
The auspiciousness of the political moment was not lost on some of those
directly involved in litigating the cases, whose professional prestige had been
palpably enhanced when immigrant rights arguments were vindicated in fed-
eral court.40 In the spring of 1981, in the aftermath of the Haitian Refugee
v. Civiletti trial, attorney Rick Swartz left his position at the Washington
Lawyers Committee for Civil Rights and sought funding from the Ford
Foundation for a new lobbying organization – the National Immigration
Forum – that would bring the civil rights approach to immigration directly
into the political sphere. Armed with the momentum generated by develop-
ments in court, Swartz turned his attention to the congressional politics of
immigration. The release of the Hesburgh Commission’s Report in March
1981 had propelled immigration policy to the top of the national agenda, and
Swartz and MALDEF President Vilma Martinez emerged as the two most
vocal advocates for a civil rights approach (Laham 2000, 55). Drawing on
professional prestige palpably enhanced by successes in court, they actively
lobbied the White House and Congress to reject the commission’s recom-
mendation for the imposition of an employer-sanctions regime, arguing that
it would endanger important civil liberties values and create discrimination
against members of minority groups.
As Congress began debating the Simpson-Mazzoli immigration bill in
early 1982, developments in court generated additional materials with which

to construct a new immigration lobby. The Haitian refugee litigation pro-

duced a particularly dramatic development in the form of a June 1982 decree
from Judge Spellman ordering the INS to release each of the 1,700 Haitian
plaintiffs from detention once individual counsel was secured for filing an
asylum claim.41 Technically speaking, the court order shied away from a
constitutionally based ruling on the merits. However, the decision to grant
parole to such a large number of unauthorized migrants generated substan-
tial attention within the legal profession. Leaders of both the American Bar
Association and the American Immigration Lawyers Association endorsed
an ambitious initiative to secure individualized legal representation for
Haitians dispersed across the country (Helton 1984/1985). The very fact that
the case generated the largest pro bono effort ever organized was decisive
in energizing the legal profession’s participation in the legislative politics of
immigration (see Chapter 4). Not surprisingly, the legal profession’s engage-
ment further tipped the Democratic Party’s position away from a materialist
approach to immigration enforcement. During the summer and fall of 1982,
a nascent network of civil rights organizations, civil liberties groups, and pro-
fessional bar associations that had supported the Haitian litigation worked
together to mobilize against proposed amendments to the Simpson-Mazzoli
bill that aimed to streamline exclusion and deportation hearings (Gimpel
and Edwards 1999, 140).
As momentum gathered in Washington for incorporating civil rights con-
cerns into immigration reform, the Supreme Court’s Plyler decision in June
1982 symbolically raised the stakes. The 1975 Texas Statute at issue in the
case had not attempted to control immigration directly, yet Justice Brennan’s
decision nevertheless drew a direct connection to ongoing federal inaction on
immigration reform. As recounted by scholar Aristide Zolberg, who testified
before congressional hearings at this time, the Supreme Court’s decision in
Plyler contributed to the sense among legislators that immigration was “out
of control” and that swift action needed to be taken (Zolberg 2006, 361). Yet,
by framing the integration of undocumented residents as an issue of social
justice, Justice Brennan’s decision also offered symbolic support to efforts to
frame debate in terms of immigrant rights. The decision made clear that the
justices were not willing to wholly subsume immigration under the protec-
tions of strict scrutiny, but neither were they willing to dismiss immigrant
rights claims entirely. Organizers such as Swartz and Martinez could now
emphasize that judicial authorities supported their position that immigration
was not just about material interests but was a “difficult and philosophical
issue” in which “fundamental protections of liberty and civil rights were at
stake.”42

Proceeding in rapid succession, legal interventions for immigrant rights in

the late 1970s and early 1980s had the cumulative effect of legitimizing and
strengthening the appeal of a noneconomic framing of immigration reform.
Action in court was a key contributor to the nascent National Immigration
Forum “getting a seat at the table” in congressional immigration debates.43
Having merged in 1982 with a much older organization – the American
Immigration, Citizenship, and Refugee Conference – composed of pre-
dominantly white ethnic groups, the National Immigration Forum set up
taskforces and meetings to bring together a new nonpartisan immigration
lobby that included a broad consortium of more than ninety ethnic and reli-
gious groups and legal organizations. Drawing upon the organizing model
of the Leadership Conference on Civil Rights, the forum described itself as
an “immigration rights advocacy group” (Graham 2003, 120). It endorsed an
amnesty program that would allow Hispanic families to remain together and
waged an all-out war against employer sanctions in the name of civil rights
protection. Swartz was particularly energetic in positioning the National
Immigration Forum as an alternative to the Federation for American
Immigration Reform (FAIR), an organization formed in 1979 to lobby in
favor of limitations on total admissions and against any legalization. Speaking
on behalf of the forum, Swartz labeled FAIR’s positions as “nativist chic” and
suggested that this narrative might open the door to the kind of racially tinged
right-wing groups seen in Western Europe.44 Although Swartz, Martinez, and
their allies were not ultimately able to block employer sanctions provisions
from being included in the Immigration Reform and Control Act that was
passed in October 1986, they succeeded in ensuring that procedures would
be set up to periodically evaluate the impact of sanctions on job discrimina-
tion and that the Justice Department would pursue discrimination claims
(Gimpel and Edwards 1999, 168).
The civil rights approach to immigration changed the way that key players
understood the issues. The formalization of immigrant rights through litiga-
tion contributed to catalyzing a civil rights immigration coalition that made
possible the civil rights components of the Immigration Reform and Control
Act, the comprehensive legislative reform of U.S. immigration policy enacted
in 1986. In the decades to come, this lobby, known as “the groups,” would
continue to exert a strong influence over U.S. immigration policy debates, an
aspect of the U.S. legislative politics of immigration that has been extensively
studied by scholars of immigration politics (Gimpel and Edwards 1999, Haus
2002, Newton 2008). So, for now, we leave the U.S. story and turn to the ini-
tial efforts of French legal activists to develop formal rights for noncitizens. At
the same time that immigration in the United States was being transformed

into a civil rights issue through legal interventions, legal actors in France
were also beginning to engage with the legal issues raised by immigration
restrictionism.

The French Conseil d’Etat’s Post-1968 Jurisprudence

Unlike their U.S. counterparts, aspiring legal activists in France did not have
an extensive body of constitutional jurisprudence on which to build their
claims. Indeed, the practice of rights-based judicial review had been intro-
duced only recently into the politics of the Fifth Republic. Having confined
itself for the first thirteen years of its existence to the limited political mandate
set by its Gaullist designers, France’s Constitutional Council roused itself in
1971 and declared itself competent to apply the ensemble of rights-based pro-
visions of France’s constitutional texts in all of its future decisions. Yet it was
not obvious at the time how widely this “bloc de constitutionnalité” would
be applied because the Constitutional Council’s institutional mandate was
confined to reviewing the text of statutes before they were enacted into law
and did not extend to judicial review either of the laws already in application
or of administrative action.45 This narrow constitutional jurisdiction was par-
ticularly limiting for those seeking to influence the politics of immigration,
because France’s immigration policies were at this time almost entirely elabo-
rated through administrative action rather than legislation.
While French constitutional jurisprudence remained shielded from
influence through litigation, this was not the case for the parallel system of
administrative law and administrative review. In the Fifth Republic, as the
power of the presidency expanded, France’s highest administrative jurisdic-
tion, the Conseil d’Etat, increasingly gave its review of administrative acts a
constitutional tinge by declaring that the general principles of law that it is
charged with enforcing result from the Preamble of the 1946 Constitution,
even as their authority is also confirmed by legislative texts (Brown and Bell
1998, 219). This jurisprudential development by the Conseil d’Etat followed
the lead of the Constitutional Council,46 but it also built upon a tradition in
French administrative law forged progressively by a combination of jurispru-
dence and doctrine over the course of the nineteenth and early twentieth
centuries. The two main conceptual pillars of this tradition consist of the ideas
that administrative authority must adhere to formalized procedures and that it
must be exercised in the service of the public (Chevallier 1989, 313, Koopmans
2003, 139). The tradition recognized that standards for public authority should
be different from those applied to private actors, which is why administrators
were to be judged not by the judicial branch but by a special jurisdiction – the

Conseil d’Etat – operating at the pinnacle of state administration. Its corps of

elite civil servants were to be the “conscience” of the state, steering adminis-
trators away from actions taken for reasons of expediency and thus ensuring
the maintenance of Etat de droit, a state in which public action is entirely
encapsulated and ruled by the law so that “its various organs cannot act except
by virtue of a juridical habilitation and may only use the avenues authorized
by law” (Chevallier 1999, 14). The Conseil d’Etat’s legal grammar thus centers
not on protecting against the danger that the coercive tools of the state will be
co-opted for narrow factional purposes, but on the risk that the state – whose
independent existence is unquestioned – might become unbound from legal-
ity and slip into rule by exception.
Of particular importance to those seeking to impact administrative policies
concerning immigration was the fact that, in the 1970s, the Conseil d’Etat
was moving toward a more probing administrative control that emphasized
the need for greater equality between the state and those it administered. In
its 1971 Ville Nouvelle-Est decision, the Conseil d’Etat stepped onto the ter-
rain of administrative fact finding by requiring state planners to demonstrate
that their decision to proceed with a contentious local economic develop-
ment initiative had been taken only after conducting a full study of the plan’s
environmental impact.47 In the same month, the Conseil d’Etat extended its
review of administrative rule making, holding in its Damasio decision that
discretionary “interpretive circulars” could be distinguished from “regulatory
circulars” and “orienting circulars” and that the latter two categories – inso-
far as they created new norms – justified judicial scrutiny of whether their
content was contrary to principles of legality or the relevant empowering
provisions in legislative texts.48 These decisions might be read, as some com-
mentators suggest, as signs of the Conseil d’Etat’s willingness to respond to
post-1968 public criticism of the unilateralism and secrecy of the Gaullist
state (Brown and Bell 1998, 229–30). In any event, the Conseil d’Etat’s exper-
imentation with judicial policy making and balancing approaches called into
question the status quo of postwar administrative managerialism by establish-
ing a jurisprudential regime of heightened concern for autocratic tendencies
within the executive branch.
But would immigration policy be included in the domain over which the
Conseil d’Etat asserted this framework of legality in administration? The con-
trol of immigration was an area in which administrative discretion was long
established. In a series of decisions during the 1950s, the Conseil d’Etat had
determined that administrative tribunals held no legal authority to review
the basis of individual expulsion orders issued by the Minister of Interior
in the name of public order.49 And because the postwar regime governing

immigration allowed the administration wide discretion to determine what

types of activities constituted a “menace to the public order,” this effectively
gave bureaucrats carte blanche over immigration matters.
Despite these obstacles, aspiring legal activists in France were encouraged
by what they perceived as a general embrace of legality in other areas of legal
and political life in the 1970s. At the Cour de Cassation, France’s highest court
of appeals for private and criminal matters, proactive litigation by the legal
department of the Confédération Française Démocratique du Travail (CFDT)
was producing a significant expansion of labor rights (Willemez 2003). In
partisan electoral debates, heavy-handed policing techniques and “bureau-
cratic totalitarianism” were being publicly criticized, and public liberties
emerged as a prominent rhetorical theme in French politics (Agrikoliansky
2005). Finally, the public campaign, led by respected jurist René Cassin, for
France to ratify the European Convention on Human Rights reinforced the
discursive salience of fundamental rights and liberties (Madsen 2005, 60–2).
Aspiring legal activists saw their role as bringing immigration policy making
within this expanding legal regime.

Protecting Immigrant Workers from the Police State,

Part I – The Marcellin-Fontanet Circulars
France’s shift toward immigration restrictionism supplied ample material for
immigrant rights test cases. In December 1972, administrative circulars issued
jointly by Minister of Interior Raymond Marcellin and Minister of Labor
Joseph Fontanet instructed prefects to deny requests for regularization if an
immigrant worker’s employer could not show that the National Employment
Agency was unable to find a French worker to fill the position. Prefects were
also instructed to deny requests for regularization if the immigrant’s employer
failed to provide adequate housing for the worker. The circulars also changed
the rules for issuing residency and work cards for all immigrants, not just for
irregular migrants making the initial attempt to regularize their status: prefects
were to replace the temporary work authorization card, previously issued dur-
ing the first year of employment, with a one-year visa pasted onto the immi-
grant’s employment contract, and residence cards would now last no longer
than the duration of a work permit. The consequences of this tightened cri-
teria for regularization were harsh, because a denied request would result in
an expulsion order. For this reason, the circulars elicited widespread mobili-
zations on the part of immigrant workers, who saw these administrative acts
as part of a policy to reduce the population of foreign workers by restricting
access to residency and work permits.

In one of its earliest efforts to use appellate litigation, members of the

nascent legal network associated with the Groupe d’Information et de Soutien
des Travailleurs Immigrés (GISTI) coordinated with attorneys affiliated with
the CFDT labor federation to petition the Conseil d’Etat to overturn the con-
troversial circulars. Because GISTI was not yet registered as an official associa-
tion, the case was brought in the name of a Portuguese immigrant and CFDT
unionist, Antonio Da Silva, who held work and residency permits, but for
whom it was argued the circulars would impose multiple obstacles when it
came time to renew these permits. The CFDT filed a separate petition based
on its organizational interest in policy making that impacted its members, and
the two cases were consolidated when they were finally heard by the Conseil
d’Etat in January 1975.
The arguments in both petitions were anchored on the constitutional
principle of the right to work, a right contained in the Preamble to the 1946
Constitution. Associating an official work permit, once granted, with an indi-
vidual’s “consecrated” freedom to work, the CFDT petition asserted that the
administration could not subsequently place limitations on guarantees that
it had already established.50 The circulars’ various provisions – delaying the
issuance of a permanent work permit by one year, harmonizing the duration
of work and residence permits, and conditioning the issuance of a work per-
mit on the employer having advertised the job with the national employment
agency – were argued to effectively bind immigrant workers to their employ-
ers insofar as the new rules prevented workers who changed employers from
renewing their residence authorization. Similarly, the provision conditioning
residence and work authorizations on the employer’s commitment to supply
adequate housing were criticized as a means by which employers and the state
would jointly exercise greater social control over foreign workers.
GISTI’s petition challenging the Marcellin-Fontanet circulars likewise cast
the regulations as an autocratic administrative attempt to exploit the labor of
immigrant workers. The argument was that immigrants were being treated
by the police state as a commodity that could be used and then discarded.
Through administrative fiat, the circulars had illegally changed a well-defined
existing regime in which labor contracts, once signed by the employer and
employee, were not assumed to have any fixed expiration. GISTI’s challenge
to the circulars urged the Conseil d’Etat to consider immigrant workers who
had been given an employment contract as part of the national community.
As such, they should be protected from the precarity associated with a regime
of short-term permits. Drawing parallels between the circulars’ reinforcement
of policing and administrative control that threatened the liberties of foreign
workers and the “regime of exception” associated with a police state, it called

on the Conseil d’Etat to apply its recently developed jurisprudence asserting

review over the administrative practice of regulating by informal circular.51
The Conseil d’Etat did eventually overturn several of the provisions of the
Marcellin-Fontanet circulars, although it avoided discussing the constitu-
tional right to work and justified its decision solely on the basis of statutory
interpretation. According to the decision, the administration had inappropri-
ately added conditions to existing laws when it instructed prefects to refuse
immigrant residence permits based on the quality of available acceptable
housing and to delay the issuance of a work permit by one year.52 And by
ordering that all regularizations of foreigners who had entered as tourists be
prohibited, the administration had inappropriately added to the relevant leg-
islative and regulatory dispositions governing its action. The decision in Da
Silva articulated no explicit evolution in jurisprudential principles and was
only a partial victory, because the Conseil d’Etat upheld the provisions of the
circulars harmonizing the duration of work and residence permits as well as
the requirement that jobs be posted with the National Employment Agency.
Nevertheless, GISTI’s jurists celebrated the decision as a vindication of
their arguments, taking it as a sign that the Conseil d’Etat was now willing to
scrutinize government policy making in the area of immigration. For GISTI,
Da Silva was the first Conseil d’Etat decision for which it could claim credit
as an organization. The group’s press conference announcing the victory
was so celebratory that lawyer Philippe Waquet, who had authored GISTI’s
Da Silva petitions, was summoned by the president of the barreau and
reminded of the “prudence” and “discretion” appropriate to a member of the
legal profession.53

Protecting Immigrant Workers from the Police State,

Part II – Valéry Giscard d’Estaing’s Migrant
Return Program
Between 1974 and 1977, the government issued a stream of restrictive immi-
gration policies, giving GISTI’s aspiring legal activists additional opportunities
to go to court. Litigation was brought against a set of four 1974 circulars that
suspended all new labor immigration, as well as a fifth circular that prevented
foreigners arriving without a labor contract from being issued a short-term
residence permit. Cases were also organized against two 1974 circulars restrict-
ing migration from France’s former colonies in Sub-Saharan Africa, against
the government’s “return assistance program” promulgated by memoran-
dum in June 1977, and against a 1977 decree placing conditions on family
reunification.

In November 1978, the Conseil d’Etat declared all of these restrictionist

circulars, as well as the return assistance program, either fully or partially
illegal.54 It was not a complete victory for the plaintiffs; the Conseil d’Etat
found no legal obstacle to the circular provision instructing prefects to deny
residence permits to foreigners entering France clandestinely, and it gave a
careful reading to France’s treaty obligations with its former colonies, allow-
ing the government to restrict labor migration from some of these countries.
Nevertheless, these holdings demonstrated a willingness on the part of the
Conseil d’Etat to review, and in some cases overturn, immigration circulars
that arguably departed from the existing legislative and treaty regime.
The following month, the Conseil d’Etat went a step further when it over-
turned the 1977 family immigration decree, thereby annulling a cornerstone
of the government’s restrictionist immigration policy. Because the Conseil
d’Etat’s reversal of the family immigration decree exceeded its other decisions
in terms of both legal and political significance, this decision merits extended
discussion. The decree in question had been promulgated by Lionel Stoléru,
the Giscard government’s secretary of state for immigration, and followed two
earlier revisions of procedures governing immigrant family reunification.55 As
a tactic to forestall criticism, the 1977 decree explicitly guaranteed the right
of immigrants who had resided in France for at least three years to bring their
immediate family members to join them. However, this was simply sugar coat-
ing, because the decree’s aim was essentially restrictionist. It achieved this
goal by making family migration conditional, for a period of three years, upon
the agreement of immigrant spouses seeking residence permits not to take
up any employment. The decree’s legality was attacked by both GISTI and
the CFDT, who collaborated in drafting their petitions to the Conseil d’Etat.
A separate petition was filed by lawyers affiliated with France’s other national
labor confederation, the Confédération Générale du Travail (CGT).
In attacking the legality of the 1977 decree restricting family reunification,
GISTI and the CFDT returned to the right to work arguments that they had
used in challenging the Marcellin-Fontanet circulars. They claimed that,
according to Article 34 of the Constitution, only the legislature could set con-
ditions on the exercise of a fundamental principle of law, such as the right to
work. Interestingly, however, GISTI’s petition also invoked a second line of
argument, challenging the decree as a violation of the hitherto unenunciated
“right to family life,” for which the language of the Preamble to France’s 1946
Constitution provided a possible textual basis (“the nation will assure to each
individual and to families the conditions necessary for their development”).
The authors of GISTI’s petition were undoubtedly aware, through their links
to the Conseil d’Etat, that the Conseil’s own advisory section had already, in

October 1977, issued a nonbinding advisory opinion criticizing the govern-

ment’s proposed policy on the basis of this very principle of the right to family
life, finding it unreasonable that both migrant spouses would not be able to
work when this had become the norm for French families (Fournier 2014).56
Sensing a receptive attitude among the members of the Conseil d’Etat, GISTI
developed a discursive association between the right to family life and a nar-
rative about executive overreach in immigration matters more generally. Its
petition to the Conseil d’Etat placed the decree within the extremely harsh
context of government proposals to revoke residence cards, to end all immi-
grant family reunification, and to carry out mass removals.57 According to this
narrative, the decree was yet another example of the administration regulating
the situation of immigrants through a process of “infra-droit,” or nonlaw.
The Conseil d’Etat’s December 1978 decision in the GISTI, CFDT et CGT
litigation overturned the government’s 1977 family immigration decree and,
in doing so, established the right to family life as a newly justiciable funda-
mental principle of law.58 It declined to hold that the decree had violated
the right to work of immigrant family members. However, the Conseil d’Etat
declared that foreigners authorized to reside in France had the right to lead
a normal family life and that this right included the ability to be reunited in
France with their immediate family members. The government could refuse
family reunification in individual cases on the basis of concerns for public
order, subject to review by an administrative tribunal. However, the decree
forbidding all immigrant family members from working went beyond defining
the conditions under which the right could be exercised and illegally cur-
tailed a fundamental constitutional right.
The accompanying legal conclusions authored by the Conseil d’Etat’s judi-
cial advisor, the commissaire du gouvernement,59 explained the reasoning by
which this new right to family life should be applied to foreigners. Working
from the proposition that the requirement of individual examination is central
to standards of legality in administration, the judicial advisor concluded that
immigrants authorized to reside in France were just as deserving of these legal
protections as French citizens, declaring that, “Our tradition is one of rights of
man and not just of citizen and it proclaims principles that surpass our fron-
tiers.”60 Moreover, while it presented its decision as an extension of general
principles of legality, the Conseil d’Etat seems to have been aware of the polit-
ical context because its judicial advisor explains in his conclusions that, “One
of the main interests of these appeals is that they allow us to focus [faire le
point] on the question – subject to much controversy – of the rights of foreign-
ers to residence and work.”61 At the end of his conclusions, in what could best
be described as a version of dicta, the judicial advisor elaborates some of the

broad principles that, in his view, should guide immigration policy making,
listing a number of guarantees that the administration must uphold. These
include the rights of foreigners who have been authorized to reside and work
in France to “a minimum of stability in their situation . . . and a progressive
consolidation of these situations,” and “the right – unless legislation exists to
the contrary – to not be expelled from our territory except for reasons of pub-
lic order, and public order must be interpreted restrictively.”62 France’s legal
and policy-making circles were thus alerted to the applicability, despite the
restrictive turn in immigration policy making, of certain general principles of
legality in this domain formerly left to administrative discretion.

Immigrant Rights Legal Narratives Outside

of French Courts
The extension of a rights-oriented jurisprudential regime into the domain
of immigration policy making had a particularly dramatic impact in France,
where the prevailing political discourse around immigration up to this point
had been resolutely materialist. French administrative elites in the decades
after World War II abandoned their initial plans to promote the social inser-
tion of immigrant workers and it was understood that those who arrived to
replenish the country’s depleted labor force would return to their countries of
origin when their labor was no longer needed (Lochak 1985, 158). This was the
dominant view among politicians on the political right, who saw immigrant
workers as dispensable sources of labor (Viet 1998, 385). Moreover, many in
France’s political class were loath to admit that colonial groups, against whom
they had recently suffered humiliating defeats, were owed any kind of right to
residency (Weil 2004, 111).
While it was generally more sympathetic to immigrants and their working
conditions, the Left’s position on immigration was in flux during this period.
François Mitterrand was busily constructing a coalition to anchor the newly
revived Socialist Party, but he initially took no strong position on immigration
policy. His 1972 “Common Program” made only vague references to immi-
grant workers as one of many groups exploited by the capitalist class (Viet
1998, 397). The low visibility of the issue was compounded by the fact that
immigrant activists initially had few organizational links to France’s national
labor confederations, which constituted a major institutional force within
the Left. The primary strategy of France’s communist-affiliated labor feder-
ation, the CGT, was to preserve support among its basic constituents, the
skilled French workers in the traditional large-scale industries, while France’s
other national labor federation, the CFDT, for most of the 1970s remained

paralyzed by a split between constituents favoring border closure and those

seeking to unionize immigrant workers (Grillo 1985, 234–9). The small circle
of jurists who represented the CFDT and the CGT in legal challenges against
restrictionist policies were significantly ahead of their national union leaders
in embracing the cause of immigrant workers.
In this context, litigation against the Marcellin-Fontanet circulars was
politically significant insofar as it constructed a narrative for collective mobi-
lization on the part of France’s various immigrant communities and their
small circle of supporters. The direct policy impact of the official case dis-
position was relatively minimal.63 The importance of the litigation derived
instead from the informal narrative assembled by legal proceedings that asso-
ciated rights with the domain of immigration. For local movement leaders,
contesting the circulars in court was seen as a way of mobilizing a nation-
ally diverse coalition that brought together Portuguese, North African, and
African migrants alongside members of the French working class (Bouziri
2005). “We have formulated an appeal to the Conseil d’Etat,” declared lead-
ers of the new Mouvement des Travailleurs Immigrés, “so as to make it clear
that under these labor contracts we are made into salaried slaves.”64 At a
moment when the wave of migrant worker factory strikes that had begun
in 1970 was losing momentum due to internal divisions, the act of pub-
lically claiming rights under French law provided a platform for rallying
rank-and-file participants in immigrant movements. The catalytic effects of
legal contestation were likewise apparent to members of GISTI’s immigrant
defense network. GISTI’s press conference in January 1975 celebrated the
group’s role in overturning parts of the Marcellin-Fontanet circulars while
linking action in court to the ongoing protest activity of immigrant workers
(Ginesy-Galand 1984, 182). For both immigrant activists and their support-
ers, the Conseil d’Etat’s willingness to scrutinize government immigration
circulars validated a rights-based narrative that was already in the process of
development.
These efforts gained further momentum in response to the more draconian
policies adopted, starting in 1977, by the Giscard government. As immigrants
mobilized to protest these policies and to claim their place within French
society, their cause attracted growing support from prominent leftist political
figures. By early 1978, French politics began to see what historian Vincent
Viet terms an “osmosis” between, on one side, partisan and syndical orga-
nizations and, on the other side, a network of civil society groups with very
diverse sensibilities but united by their opposition to immigration policies that
seemed “not to respect human rights by designating foreigners as scapegoats
for unemployment” (Viet 1998, 404).

At this formative moment in the politics of immigration, the Conseil

d’Etat’s intervention in November and December 1978, first striking down
numerous provisions of restrictionist immigration circulars and then overturn-
ing an entire administrative decree, was appreciated by immigrant defend-
ers as offering valuable resources for sharpening their ongoing criticism of
the Giscard government. The potential jurisprudential significance of the
Conseil d’Etat’s intervention, particularly the decision overturning the family
immigration decree, was immediately apparent to commentators at the time.65
Yet, as the holding rested on principles of legality in administration, this new
jurisprudence would not formally prevent the government from enacting sim-
ilarly restrictive immigration policies legislatively. In other words, the ruling
did not deter the Giscard government from moving forward to finalize a new
legislative program whose ultimate aim was to reduce France’s foreign pop-
ulation through a repatriation program in which it was hoped the Algerian
government would cooperate (Weil 2004, 144–87).
Faced with a government determined to act, the task for immigrant defend-
ers was to use the court decision as leverage for winning over a wider audi-
ence. In other words, they would need to translate a technical development
in administrative law into a narrative with broader political implications.
Aware that the political stakes were high, GISTI carefully crafted a note
interpreting the Conseil d’Etat’s intervention and announcing its importance
to immigrant political activists and their supporters. With a touch of bravado,
this note was also circulated to local prefectures charged with implementing
immigration policy, purposefully formatted in the style of an official circular
and claiming to provide “instruction” for how street-level officials must apply
the decisions.66 Presenting the Giscard government as wedded to a policy
paradigm of “nonlaw” and “systematic recourse to clandestinity,” GISTI’s
note went on to set these policies in opposition to an alternative policy para-
digm based on immigrant inclusion. It was this alternative paradigm, accord-
ing to GISTI’s note, to which the Conseil d’Etat had given its imprimatur
in what was clearly “a serious blow to the government.” And GISTI was in a
position to know, the note asserted, because the Conseil d’Etat’s holding was
made “in conformity with the arguments developed by GISTI in its appeals.”
These so-called instructions thus went far beyond technical explanation inso-
far as they reassembled the case holding into a narrative pitting respect for
the principle of immigrant rights – which had received legally authoritative
legitimation – against the deceptive and excessive tendencies of the Giscard
government. Not surprisingly, the minister of interior responded with irrita-
tion, asserting that this “excessively liberal interpretation” misrepresented the
decision and that GISTI was in no position to instruct administrators.67

Yet by the time the Giscard government could respond, opposition to its
legislative agenda had begun to congeal around this new narrative of legality
and immigrant rights, constructed jointly by the Conseil d’Etat’s interventions
and by the interpretation given to them by immigrant defenders. Public fig-
ures on the political left now calculated that taking up the cause of immigrant
rights had become an effective political strategy, and associative leaders such
as the CFDT’s Hubert Lésire-Ogrel distanced themselves from the govern-
ment’s proposals, asserting that, “fundamental liberties are in jeopardy, the
right of immigrants to live and to have a family life and a future . . . the forced
departure of immigrants touches too many essential things for us not to strug-
gle against it” (Weil 2004, 177). By June 1979, when the legislature debated the
text of the government’s proposals for a forced return program, resistance had
solidified even among centrists. In the intervening two months, the Conseil
d’Etat’s advisory section issued an uncharacteristically blunt opinion that
reflected many of the arguments developed by groups publicly opposed to the
project, and prominent Gaullist legislators in turn drew on these arguments
to criticize the government during legislative debates (Weil 2004, 172–9). In
December 1979, the government was forced to withdraw its legislative pro-
gram for reducing the stock of France’s foreign workers, having underesti-
mated the extent to which opposition would crystallize around a legalized
framing of immigration policy. Although immigrant rights, as a discursive con-
struct, were never in any technical sense binding on legislators, a narrative –
forged through juridical activity – that associated immigration restrictionism
with rule by exception acquired substantial political authority.
These developments turned out to have far-reaching political ramifications,
insofar as the tarnishing of President Valéry Giscard d’Estaing’s immigration
policy program proved to be an unanticipated boon for his political adversary,
François Mitterrand. In the process of joining other critics of the government
who positioned themselves as vocal defenders of immigrant rights, Mitterrand
discovered a valuable weapon to use not only against the government but also
against his communist competitors within the Left, who had been slower to
embrace a rights-based political discourse (Viet 1998). Issued in the context of
debates leading up to the 1981 election, his 110 Propositions proposed giving
noncitizens voting rights in local elections as well as full associational rights.68
These rights were necessary, according to Mitterrand, so that immigrants
might have the opportunity to fully participate in society.
This prise de position was cemented following the Left’s 1981 presidential
victory, not least because during the campaign Mitterrand had presented him-
self as offering voters a clear electoral program, a contract to break with the past
and usher in a new political regime. During the new government’s first year in

office, fidelity to its electoral program guided its actions “to the point of fetish-
ism” (Weil 2004, 196). The creation of a “Secretary of State for Immigrants”
within the new Ministry of National Solidarity, which took over the immigra-
tion portfolio from the Ministry of Labor, aimed to demonstrate symbolically
that the nation’s solidarity extended to all. No longer would immigrants be seen
simply as workers; rather, they were integral members of society and education
and social insertion programs were required to address their needs. Minister
Nicole Questiaux declared that her ministry’s actions would be guided by “sol-
idarity with all, French and immigrants alike, without discrimination,” and
she urged legislators to quickly reverse the previous policies enunciated in
“often illegal circulars, often hastily prepared, sometimes brutal declarations,
and unpublished instructions,” and replace them with a politics founded on
respect for immigrant human rights (Weil 2004, 199). The immigration law of
1981, granting foreigners associative rights as well as social security and unem-
ployment benefits was a dramatic instantiation of this approach.
We can see the durable effect of the rights-based framework for immigration
when the political winds in France shifted due to the rising electoral popular-
ity of far-right politicians promoting a discourse that equated immigration and
insecurity. The Socialist Party’s unfavorable electoral showing in the spring
1982 cantonal elections, and the sense that the 1981 regularization had pro-
duced negative political effects, prompted some ministers in the Mitterrand
government to advocate a change in its immigration position. Nevertheless,
during cabinet debates, ministers such as Laurent Fabius vocally insisted that
a distinction be made between unlawful immigrants, on the one hand, and,
on the other hand, lawful immigrants “who can and must stay” (Favier and
Martin-Roland 1997, 173). The impact of the immigrant rights political nar-
rative was also felt among political and administrative elites who identified
themselves as representatives of France’s republican tradition (Viet 1998, 414).
President Mitterrand eventually pursued a compromise: regular migrants
would be included and definitively given residence rights while irregular
migrants would face a politics of exclusion.
Thus, although French judges in the early 1980s lacked retrospective pow-
ers of judicial review to use as a stick against restrictionist statutes, juridical
framings made prominent contributions to constructing an enduring politi-
cal narrative about the place of France’s postwar cohort of migrant workers,
and their families, within French society. A public report assessing expert
opinion on France’s politics of immigration identifies the 1982–4 period as
“completing the definition” and confirming the “new rules of the game” for
immigration politics (Gaxie 1995, 35). The immigration law passed by the
Mitterrand government in July 1984 brought about a “stabilization” in the

terms of partisan debates (Viet 1998, 415). Although the 1984 law contained a
number of provisions to finance voluntary repatriation of immigrants, a signal
of the influence of the far-right on both political parties, it nevertheless intro-
duced the ten-year residence card. This replaced a system in which manda-
tory annual or tri-annual application for renewal of residence authorization
had kept immigrants in France in a state of permanent instability. The stat-
ute concretized in law “the recognition of a durable installation in France of
immigrant populations” and the dissociation of the right to residence from
economic activity (Lochak 1985, 168). In this respect, the 1984 law represented
a realization, on the part of the government and the legislature, of the impos-
sibility of sending postwar immigrants back to their countries of origin. This
outline for the politics of immigration “traced a line for all governments to
come” (Blanc-Chaléard 2010, 492). French governments in subsequent years
would reinforce the rigor of border controls while expressing their commit-
ment to integrating those already present. The process of contesting immigra-
tion policy in court contributed to changing the discourse on immigration,
with the effect that the guest workers who had reconstructed postwar France
would be seen no longer as a temporary presence but rather as a group who
should be incorporated into French society.

Conclusion
The period of the late 1970s and early 1980s has been identified by one promi-
nent commentator as coinciding with a “transformation of immigration law”
that moved immigration jurisprudence toward greater adaptation with the
contemporary politico-legal environment (Schuck 1984). My analysis adopts a
different approach. Rather than conceptualizing changes in immigration law
in functionalist terms, this chapter has emphasized the substantial experimen-
tation and engineering involved in the assemblage of new juridical frameworks
for immigration. Existing jurisprudential regimes needed to be connected to
the immigration domain through creative legal argumentation that qualified
events and relationships in new ways. At the same time, immigrants needed
to be disassociated from the national security framework that had previously
permeated this area of case law. Immigrant defenders played a central part in
this process that filtered and translated both the complex lived experience of
immigrants and the diversity of activities implicated in immigration control.
To the extent that immigration policy was incorporated into jurisprudential
regimes for protecting minority rights, on the one hand, and curbing admin-
istrative rule by exception, on the other, it was the result of this process of
creative engineering.

However, this is not the end of the story. The process of contesting immigra-
tion policy in court did not just overturn particular policies subjected to litiga-
tion. Rather, courtroom proceedings and judicial texts assembled rights-based
discursive framings that were appropriated and reassembled into broader
political narratives. Strikingly, the judicial decisions that activists had to work
with were often only narrow or partial victories, and their holdings placed
no formal limits on national legislative action. Legally assembled framings
became forceful and widely meaningful because activists glossed their content
and actively disseminated their interpretations, and because social movement
organizations, administrative elites, and other political actors chose to accept
these readings as statements of “law.”
In other words, if legal engagement had lasting impact, it was not because
it coerced immigration policy makers but rather because the “passage of
law” (Latour 2002, 139–206) offered receptive audiences something around
which to mobilize. In the United States, law’s passage contributed key build-
ing blocks, conceptually and organizationally, for an immigration–civil rights
lobby that continues to make itself felt. Legally generated assemblages were
likewise potent in France. Advocacy before the Conseil d’Etat generated a
narrative of legality that irreversibly associated both the Giscard government
and its plans for a forced return program with the taint of autocracy. At the
same time, judicial vindications of “immigrant rights” provided a platform for
movement leaders to build and strengthen coalitions among diverse immi-
grant associations and with other political groups. In other words, law did not
simply block policies from being enacted; rather, at a formative period for
immigration reform lawmaking, legal contestation of immigration matters
had radiating effects, defining political identities and crystallizing political
agendas. As we will see in Chapter 4, victories in court exerted a long-term
propulsive force not only on their audiences but also on their progenitors,
drawing jurists who had contributed to the engineering of immigrant rights
further within the ambit of the legal field.

Institutionalizing Legal Innovation

Having had some notable victories in court in the late 1970s and early 1980s,
immigrant defenders in the United States and France sought to sustain their
activities and build upon this momentum. For attorneys with ambitions to
influence policy on a national scale, this was the moment to translate recent
high-profile litigation on behalf of vulnerable migrants into broader profes-
sional recognition for their project. In the U.S., legal services attorneys work-
ing with the National Center for Immigrants’ Rights (NCIR) were particularly
busy: in the summer of 1981 they were in the midst of preparing their first brief
to the Supreme Court in the Plyler litigation, and the organization was also
sponsoring a National Immigration and Refugee Consultation in Washington,
D.C.1 Meanwhile, across the Atlantic, the jurist members of the Groupe
d’Information et de Soutien des Immigrés (GISTI) were exploring how to find
a balance between their ongoing involvement with immigrant social move-
ments, their enhanced prestige among jurists, and the prospect of increased
policy influence within the newly elected Socialist government.
Yet even as it showed signs of coalescing, immigration-centered legal
activism needed to acquire greater solidity and weight if it was to withstand
the tensions created by its various commitments to legal expertise, eman-
cipatory social change, and elite policy engagement. These tensions soon
became apparent when early litigation victories offered opportunities for
career advancement in the policy-making sphere, threatening to rob legal
activism of its core talent. Instability was also created by the dissolution of
several key immigrant movement organizations whose struggles had formed
the basis for court-centered contestation. Most notably, both CASA and the
Foyer Coordinating Committee (discussed in Chapter 2) ceased their oper-
ations after struggles with leadership turnover. If legal activism wanted to
avoid the same fate, it would need to develop relatively more institutional-
ized structures.

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Institutionalizing Legal Innovation 79

Aspiring legal activists in the United States had a relatively well-defined

idea of what this process of institutionalization would involve. As discussed in
the following text, foundation-sponsored public interest law offered an exist-
ing organizational repertoire into which immigrant rights legal activism could
readily be integrated. This process of institutionalization had an appreciable
impact on the four national legal organizations with which U.S. immigrant
rights legal activism would come to be most closely associated: the National
Immigration Law Center (previously the National Center for Immigrants’
Rights), the American Civil Liberties Union (ACLU) Immigrants’ Rights
Project, the Center for Human Rights and Constitutional Law (previously
the National Center for Immigrants’ Rights, Inc.), and the National Lawyers
Guild’s National Immigration Project. My analysis explores how this engage-
ment with elite supporters of public interest law progressively solidified the
project of immigrant rights legal activism at the same time that it subtly shifted
its content.
Unlike their U.S. counterparts, French legal activists had no ready orga-
nizational model to follow. My discussion therefore emphasizes the ongo-
ing experimentation that has accompanied institutionalization of immigrant
rights legal activism in France, focusing on the operations of a single organi-
zation, GISTI, and its network of affiliated jurists. Although in recent years
other associations have begun to regularly collaborate with GISTI in petition-
ing courts to review immigration policies, it is GISTI that has most explicitly
identified its work with the project of legal activism and that has used this term
to describe its activities. As I show, GISTI’s jurists have drawn on a variety
of existing French traditions of protest and advocacy, continually combining
them in new ways so as to recruit sufficient support to sustain their project
amidst a shifting political environment.
Though they had access to different potential sources of support, aspiring
immigrant rights legal activists in both the United States and France similarly
sought to safeguard their project and ensure its long-term realization. Their
innovative project had reached what we might call the prototype phase by
the summer of 1981; judicial recognition meant that it was no longer simply
an idea on paper. At the same time, the project’s future was far from assured.
Over the next two decades, additional supporters of the immigrant rights
legal activist project would be recruited, seduced, developed, and brought
on board. This process of association and mediation would give the project
greater heft and solidity, placing legal activism into association with each
state’s broader “legal complex” (Halliday, Karpik, and Feeley 2007, Karpik
and Halliday 2011). However, institutionalization would also inevitably
attenuate the project’s connection to locally based mobilizations, moving it

away from direct action and toward strategies that engaged with official state
institutions.

U.S. Legal Liberalism and Public Interest Law

In the United States, an organizational repertoire for institutionalized legal
activism preceded both the turn toward restrictionism in immigration pol-
icies and the rise of immigrant defense networks in the 1970s. The break-
through in the entrenchment of a “liberal legal network” had come a decade
earlier, when key members of the legal establishment came to understand
a liberalized legal system “as an instrument of modernization and as the
responsible, establishment alternative to anarchy” and committed them-
selves to the construction of vigorous legal aid programs (Teles 2008, 33).
However, if the initial goal was to provide low-cost legal assistance, then
the federal government’s new legal services system soon moved beyond this
mandate and became an important site for proactive efforts to use courts for
broad policy change. Early directors of the Office of Economic Opportunity
(OEO) Legal Services Program encouraged the development of a cadre
of young lawyers operating through “legal services backup centers” and
dedicated to litigation strategies that would result in social change at the
systemic level. Due to its strong support from liberal elites, this proactive
approach would continue to feature strongly in federal legal services activity
even after the OEO component was replaced in 1974 by the Legal Services
Corporation (LSC), a public corporation with a presidentially appointed
board of directors.
In addition to encouraging the federal legal services program, leaders of
the liberal legal network worked to strengthen legal activist initiatives in the
private sector. The Ford Foundation, in particular, systematically directed
resources to groups aiming to propel liberal policy reform through litigation.
The result was a flowering of legal activist projects, which extended across
policy areas as diverse as civil rights, juvenile rights, women’s rights, prisoners’
rights, environmental protection, welfare rights, and consumer rights. These
efforts, like the federal legal services backup centers, drew on a popularized
model for how courts might be effectively leveraged for social change that was
grounded on the landmark litigation campaigns of the National Association
for the Advancement of Colored People (NAACP) Legal Defense Fund
(Rabin 1975, 218). In retrospect, it is evident that this reading of legal history
involved a good deal of mythologizing and exaggerated the extent to which
NAACP attorneys had in fact exerted control over the sequence and pace
of test-case litigation (Tushnet 2004, Mack 2005). Regardless of its historical

basis, however, the myth of attorney-led law reform was a powerful motivator
for legal activist efforts.
The rise of the public interest movement in the late 1960s and early 1970s
provided these efforts with a label – “public interest law” – flexible enough
to subsume the diversity of initiatives in which the liberal legal network had
become engaged. By the 1970s, one could speak of a prototypical “public
interest law firm” that operated as a nonprofit law office, either inside a parent
organization or as a self-contained organizational unit, and devoted most of its
activity to “impact” litigation (Handler, Ginsberg, and Snow 1978). Supported
by a secretarial staff and paraprofessionals, the staff attorneys in these orga-
nizations spent the majority of their time on litigation-related work and did
not think of themselves as having permanently left the private practice of law
(Nielsen and Albiston 2006, 1606–10, Rhode 2008, 2050–4). Although they
operated primarily as tax-exempt institutions, public interest law firms strongly
resembled their corporate-commercial counterparts. Extending beyond the
public interest movement’s original environmentalist and consumer initia-
tives, the label of public interest law was applied to a wide range of liberal
initiatives and this “public interest law sector” came to be understood as an
integral part of the U.S. legal profession (Weisbrod 1978).2
The Ford Foundation’s decision in 1970 to become a principal support for
public interest law organizations was crucial, as it encouraged other private
foundations in the 1970s to do the same (Harrison and Jaffe 1973, Trubek
2011, 418–20). Operating in coordination with leaders of the American Bar
Association (ABA), private foundations offered political capital that allowed
public interest law firms to maintain the benefits of tax-exempt status (Hilbink
2006, 411–17). In addition to protecting public interest law from its critics, lead-
ers of the U.S. liberal legal network also engaged in congressional lobbying to
revise legislative guidelines for attorney’s fees awards to the benefit of public
interest litigators.3 Most prominently, the Civil Rights Attorney’s Fees Award
Act of 1976 created a presumption in favor of awards to prevailing plaintiff
attorneys in civil rights lawsuits, and the Equal Access to Justice Act of 1980
made the federal government liable for attorney’s fees in civil rights cases
where the government’s action causing the litigation or its legal position in
the litigation was not “substantially justified.”
As Michael McCann has argued, legal elites were responsive to U.S. pub-
lic interest law initiatives because the young attorneys who proposed these
initiatives shared, or at least claimed to share, a preference for professional-
ized reform rather than for radical social change (McCann 1986). Within
these broad parameters, however, the multiplicity of legal activist initiatives
supported by liberal elites during this period suggests that members of the

U.S. liberal legal network were not wedded to any rigid concept of what pub-
lic interest law entailed. Rather, they were willing to consider supporting any
project that could claim a plausible link, either organizationally or conceptu-
ally, to existing efforts to promote a liberalized legal system (Cummings and
Trubek 2008).
These underlying dynamics exerted a strong influence over the emerg-
ing area of immigration-centered legal activism. Leaders of the liberal legal
network encouraged efforts to bring immigrant rights litigation into the
inner-circle of public interest law. The Ford Foundation, in particular, took
an energetic interest in immigration-centered activity starting in the early
1980s. Immigration at this time was seen by Ford Foundation leaders as an
increasingly politically salient issue on which a major funding program could
potentially structure national debate. The “problems” of large-scale refugee
flows from Haiti and undocumented migration from Mexico fell within the
foundation’s existing concerns, and the foundation saw itself as “uniquely
qualified” to marshal the substantial resources required to address these pol-
icy issues.4 These considerations resulted in the creation in 1982 of a sepa-
rate program to fund immigration-related projects. During the 1980s alone,
the foundation dispensed approximately $25 million in funds as part of its
newly created “immigration and refugees program” (McClymont and Golub
2000).5 Moreover, this sustained Ford Foundation investment was especially
influential in the institutionalization of immigrant rights legal activism dur-
ing this period when public sources of support were contracting. As the LSC
and its backup centers were targeted by conservative critics, private founda-
tions stepped in to provide sustaining support for this component of their law
reform program.6 Aspiring immigrant rights legal activists would leverage
this injection of targeted private-sector funding from liberal elites in order to
expand and institutionalize their organizations.

An Institutionalized Identity for Immigrant Rights

Legal Activism in the United States
As they sought to ensure the long-term sustainability of their efforts following
important litigation victories, aspiring legal activists were enthusiastic about
the prospect of associating their project with public interest law. Developing
relationships with elite supporters of public interest law would allow legal
activists to “consolidate and then expand” their organizational infrastructure
and was viewed as a necessary step to sustaining their position “in the vanguard
of the most important immigration litigation today.”7 From their perspective,
institutionalization would allow immigrant rights organizations to litigate on

equal terms with the most highly accomplished private law firms. It seemed
obvious that immigration policy could be matched with the well-established
public interest law firm model and that organizations with staff attorneys and
sustained material support from private foundations would be best positioned
to succeed in contesting immigration policy in court.
This mutual attraction between practitioners of immigration-centered
legal activism and elite sponsors of public interest law is particularly appar-
ent in the organizational transformations undertaken by the NCIR. As dis-
cussed in previous chapters, NCIR had come into existence in 1979 when Los
Angeles–based legal aid attorney Peter Schey secured LSC funding to create
an immigration-focused legal services backup center. Coordinating with the
National Lawyers Guild’s network of immigrant defenders, the organization
had played an important role in the Sbicca factory immigration raid case, in
early Haitian refugee litigation, and in legal challenges brought on behalf
of undocumented children in Texas. As things turned out, however, NCIR’s
exclusive reliance on public funds was short-lived; legislative restrictions on
LSC activities, which came into effect in January 1983 while the new backup
center was getting off the ground, substantially limited its ability to engage in
proactive litigation. NCIR was also destabilized by the departure of its found-
ing director, attorney Peter Schey, who made the decision to operate indepen-
dently rather than be hampered by the new legal services funding restrictions.
At a moment when NCIR’s continued existence was uncertain, the Ford
Foundation’s budding interest in supporting immigrant rights initiatives
offered a crucial source of stability. NCIR received its first grant from the Ford
Foundation in 1983 in the form of $150,000 in funds to create an Immigrant
Children’s Rights Project that would provide legal assistance to clients inel-
igible under new legal services restrictions. Ford Foundation program offi-
cers were reassured that the first step of NCIR’s newly hired director, Gilbert
Carrasco, as he sought to place the organization on more solid footing, con-
sisted of recruiting an advisory board comprised of prominent immigration
attorneys, including the Executive Director of the American Immigration
Lawyers Association (AILA).8 The organization soon became a regular ben-
eficiary of Ford Foundation support, relying on increasingly sizable grants to
fund its litigation activities. As federal support for legal services continued
to shrink throughout the 1980s, NCIR responded by diversifying its funding
sources and seeking out additional foundation grants. By the end of the 1980s,
only one-third of its funding came from federal legal services financing.9
The link between external financial support and the institutionalization
of immigrant defense efforts is also apparent in the immigration-centered
activities of the ACLU. The involvement of the ACLU’s national office in

immigration policy reform had been minimal throughout the 1970s. Even
though ACLU Executive Director Ira Glasser in 1980 recognized the potential
in this area for “a major legal movement with systematic efforts to rationalize
the law,” he remained reluctant to devote resources to immigration-centered
legal activism.10 News that the Ford Foundation would be dedicating sub-
stantial funds to immigration-related projects tipped the balance in favor of
involvement. In 1983, the ACLU Foundation, the organization’s tax-exempt
arm, submitted a proposal to the Ford Foundation for an Immigration and
Aliens’ Rights Task Force and received $300,000 in funds to distribute to local
affiliates who submitted proposals for litigation activities.11 Two years later,
the program was reorganized and centralized as it became clear that local
affiliates did not have adequate resources to undertake activities without addi-
tional assistance from the national office. Lucas Guttentag, a young attorney
who had started his career at the Center for Law in the Public Interest, was
hired to serve as full-time national director of the Aliens’ Rights Task Force.
The task force subsequently moved toward further centralization, hiring an
additional staff attorney and a paralegal to better enable litigation from a
national perspective. Coordination with affiliates was facilitated by organizing
national conferences of attorneys, publishing a newsletter and legal research
memoranda, and maintaining a national immigration docket that listed, sum-
marized, and indexed the organization’s ongoing litigation concerning immi-
grant rights. These developments aimed to “significantly increase the ACLU’s
activity and effectiveness in the field.”12 A new name, the Immigrants’ Rights
Project, reflected this transformation from a task force of affiliates toward the
public interest law firm model, which foundation support had both facilitated
and encouraged.
At the same time that private foundations were propelling an institutionali-
zation of immigrant rights legal activism, attorneys’ fee awards offered another
potential avenue for movement in this direction. Starting in October 1981,
attorneys’ fee awards under the Equal Access to Justice Act, which the Ford
Foundation had lobbied to enact, supplied a complimentary source of funds
so long as litigators could show either that the government’s action causing
the litigation or that its legal position in the litigation was not substantially
justified. The Haitian refugee litigation of the early 1980s resulted in awards
of several hundred thousand dollars in attorneys’ fees for NCIR.13 The ACLU
Immigrants’ Rights Project likewise obtained substantial income from attor-
neys’ fees for successful litigation of immigration enforcement practices.14
Attorneys’ fees were a prerequisite for the sustained operations of Schey’s orga-
nization, the National Center for Immigrants’ Rights, Inc. (which operated
entirely separately of the original NCIR), as it moved toward a self-funded

model.15 Indeed, by the early 1990s, the considerable attorneys’ fees awarded
in several long-lasting class action cases covered the majority of the organiza-
tional budget for Schey’s operations.16
This newly available institutional support for immigration-centered legal
efforts likewise had an impact on the activities of the National Lawyers Guild’s
immigrant defender network. By the early 1980s, the National Lawyers Guild’s
National Immigration Project had opened a permanent office in Boston and
its members were becoming increasingly involved with the emerging nation-
wide Sanctuary Movement on behalf of Central American refugees.17 The
Central American Refugee Defense Fund (CARDF) was founded in 1982
by National Lawyers Guild affiliated attorneys Marc Van Der Hout and
Carolyn Patty Blum, with the aim of mobilizing a legal wing for the Sanctuary
Movement’s grassroots solidarity efforts.18 In 1983, CARDF created its own
newsletter, Network News, and received a fifteen thousand dollar grant from
the Ford Foundation to sponsor a conference on Central American refugee
defense.19 While its founders had originally envisioned raising sufficient funds
to operate as an independent national backup center, they ultimately deter-
mined that taking this route was unwise in a field already occupied by Ford
Foundation grantees. To eliminate duplication of efforts, CARDF moved its
operations to Boston in September 1984 to share facilities with the National
Lawyers Guild’s National Immigration Project.20 Rather than creating a new
backup center, its founders would come to rely on close collaborations with
NCIR and the ACLU Immigrants’ Rights Project, organizations that were in
a position to supply the necessary resources to litigate national class action
cases on immigration issues. In a grant application to the Ford Foundation
in 1989 to fund an immigration detention project, the National Immigration
Project insisted that it had been “vigilant about complementing rather than
duplicating” the work of other national experts – and Ford Foundation
grantees – in this area.21
This pattern of interorganizational division of labor was explicitly encour-
aged by Ford Foundation leaders. Perhaps most importantly, the Ford
Foundation’s close relationship with the Mexican American Legal Defense
and Education Fund (MALDEF), which was “expected to carry primary
responsibility for addressing immigrant civil rights issues,” ensured that liti-
gation challenging discrimination on the part of domestic law enforcement
officials would become increasingly separated from legal activism challenging
immigration enforcement.22 Although NCIR had played an important role in
litigating the Texas schools case during the late 1970s, the Ford Foundation’s
new crop of immigrant rights grantees were encouraged to concentrate on law-
suits against immigration agencies and their officials. Moreover, recognizing

that immigration-centered legal activism was a “polycentric” field in which

no organization was preeminent, the program staff of the foundation under-
took the project of “rationalizing” the immigration law area so that grantees
would not duplicate each others' work.23 The ACLU Immigrants’ Rights
Project developed a specialization in constitutional due process issues after
grant administrators at the Ford Foundation made it clear that other grantees
were handling refugee and asylum law issues and duplication of efforts should
be avoided.24 Meanwhile, NCIR was cultivated by its funders as the expert on
“public benefits issues” as they affect immigrants.25 For its part, the National
Immigration Project chose to focus on the nexus of immigration law with
criminal law issues, in keeping with the National Lawyers Guild’s historical
tradition of activist defense work. In practice, many cases involved a combi-
nation of these sets of issues, and specialists in different areas regularly shared
expertise. The organizational files of both the ACLU’s Immigrants’ Rights
Project and the National Lawyers Guild’s National Immigration Project pre-
serve extensive litigation-related correspondence exchanged between the two
groups, testifying to the close working relationships that developed between
organizations that historically had espoused divergent ideological commit-
ments. Nor were prior antagonisms an obstacle to collaboration, as demon-
strated by the fact that NCIR ultimately forged a pragmatic partnership with
Schey’s operation in order to support the latter’s class action lawsuit against
detention practices involving noncitizen minors.26
By the early 1990s, immigration-centered national legal organizations in
the United States felt confident that their role was to focus on impact liti-
gation and to provide technical assistance for other groups who worked at
the grassroots. Following the enactment of the 1986 Immigration Reform and
Control Act (IRCA) legalization program, and the Ford Foundation “deliber-
ately channeled funds” to “national legal organizations undertaking litigation
activities that benefitted from a national perspective,” who were expected to
provide nationwide support services on immigration law issues to both legal
services and other nonprofit agencies.27 When NCIR changed its name in
1990 to the National Immigration Law Center (NILC), this in part reflected
the fact that the organization now relied on a national advisory board of lead-
ing attorneys and advocates in the field of immigration and civil rights “to
shape priorities and legal strategies” and “to help identify important trends in
immigrants’ rights, set program priorities, and coordinate the delivery of ser-
vices.”28 The ACLU Immigrants’ Rights Project likewise moved toward a more
legalized approach, in which staff attorneys aimed to “conceptualize suits to
ensure consistency with issues in other suits and affirmatively identify which
issues raised by administrative practices are more susceptible to formal legal

challenge, focusing on addressing complex constitutional questions through

litigation.”29 National legal organizations embraced the institutionalization of
their organizations and the spread of formalized internal operations. Far from
something to be resisted, institutionalization became an achievement to be
celebrated. In its forty-page report to the Ford Foundation in 1991, NILC sys-
tematically detailed the “project goals,” “achievements,” and “work remain-
ing to be accomplished” for each of its initiatives, suggesting the degree to
which it had professionalized its operations.30 Similarly, by the early 1990s, the
ACLU Immigrants’ Rights Project celebrated the fact that it employed five
full-time staff and had more than doubled its initial budget through support
from seven separate foundations.31
At the same time that they inscribed their activities in a recognizably pro-
fessionalized form, U.S. immigrant rights legal activists were drawn toward
the legal field in ways that went beyond requests for financial support. In par-
ticular, they sought to capitalize on the bar’s budding interest in immigration
issues as “a major problem of our time” in which lawyers had an important
role to play.32 A watershed moment came in 1982 when the private bar was
mobilized to meet the legal needs of Haitian asylum seekers whose systematic
detention by the INS had been the subject of an early legal activist campaign.
Having come down to Miami in June 1982 to assist the Haitian defense team
in securing an injunction to release the Haitians, Michael Posner from the
Lawyers Committee for International Human Rights committed his organiza-
tion to ensuring that the 1,700 Haitian class members in Louis v. Nelson would
be provided with individual legal counsel as a condition of their release. The
Lawyers Committee’s Refugee Rights Project director Arthur Helton spent the
following two years marshaling “one of the most ambitious pro bono enter-
prises ever attempted,” which included training sessions that were attended
by more than 1,200 lawyers (Helton 1984/1985, 48). With funding from the
Ford Foundation, and the endorsement of former ABA president Chesterfield
Smith, who led the court-appointed committee to oversee the program, a
broad network of legal groups evolved around the Haitian representation
effort. As members of groups such as the Association of the Bar of the City
of New York and the Chicago Bar Association started handling these cases,
immigration-related pro bono work gained a reputation among the corporate
bar as “a sexy area” (Rosenau 1989, 60). These early collaborations with lead-
ers of the private bar were key to the creation of a “cadre” of lawyers willing
to volunteer their time and political influence on behalf of immigration and
refugee issues.
For their part, several key members of the Haitian defense team – whose
litigation efforts sparked these collaborations with the bar on immigration

and refugee issues – were able to parlay positive attention from the legal
establishment into positions of leadership in bar associations. In 1982, Ira
Kurzban and Rick Swartz both joined the board of AILA. The following
year, Swartz was active in pushing the ABA House of Delegates to establish
a coordinating committee on immigration, which would subsequently orga-
nize more than a dozen large-scale immigration pro bono projects through
state bar associations (Wharton 1983, 59). Meanwhile, Kurzban focused
his attention on AILA, aiming to make the organization more accessible
to a new generation of immigration lawyers. Elected as AILA’s president
in 1987, he turned his main focus away from impact litigation to focus on
institution building.33 His leadership tenure coincided with the creation
of a Legal Action Center within the organization’s new tax-exempt wing,
the American Immigration Law Foundation. By the early 1990s, those who
had pioneered immigrant rights legal activism a decade earlier comprised a
majority of members of AILA’s newly formed Asylum Committee and had
assumed the leadership of immigration committees in sections of the ABA.34
While many of these individuals no longer devoted the majority of their
professional energies to activist litigation by this time, their high-profile
involvement with bar associations had made it easier for legal activist efforts
to leverage the corporate bar’s resources in class action lawsuits seeking to
bring systemic reform to the U.S. asylum system and to expand immigrant
access to the 1986 IRCA legalization program.35
As immigration policy turned to increasing restrictionism during the 1990s,
the ongoing interest in immigration matters on the part of leaders of the bar
and private foundations, in combination with sweeping changes to immi-
gration law, fueled a further expansion and rationalization of the immigrant
legal services field. After 1996, federally funded legal services programs faced
further restrictions on providing services to noncitizen clients.36 In response,
a new cohort of immigrant-specialized nonprofit organizations, funded by
private foundations and local bar associations, came to take the place of
legal services lawyers (Hing 2000, Cummings 2007, 914). With the capacity
of the immigrant legal services field thus expanded, staff attorneys at NILC,
the ACLU, and the National Lawyers Guild’s Immigration Project identified
an increased need for their organizations to provide training sessions, tech-
nical assistance, and policy-oriented litigation to this expanded network of
community-based service providers. These developments in turn solidified
the stratification between staff-led immigrant rights backup centers and orga-
nizations dedicated to local capacity building. At the same time, the fund-
ing streams available to institutionalized legal activism became increasingly
distinct from those targeted to community-based immigrant advocacy.37 By

the mid-1990s, immigrant rights legal activist organizations had cultivated

a highly specialized and legally centered niche within the immigrant legal
services field.
The evolving format of the National Immigration Project’s Immigration
Newsletter provides a particularly concrete record of this move toward legal-
ization. During its initial decade, the Immigration Newsletter consisted of a
mimeograph containing a diverse mix of cartoons, political manifestos, and
personalized accounts of developments in the working lives of individual
immigrant defenders. Articles were generally less than two pages in length
and contained no footnotes. However, the transition to a subscriber-oriented
publication in the fall of 1980 increased the need for professionalization. As
a result, the April 1981 edition began the practice of providing footnotes for
all legal articles. By 1985, lengthy articles such as “Recent Trends in Asylum
Denials on Mandatory and Discretionary Grounds” and “Committee of
Central American Refugees v. INS: A Challenge to Transfer of Refugees to
Remote Detention Facilities” were followed by several pages of footnoted
legal references. Over the next ten years, the newsletter gradually adopted
many of the features of a traditional bar association journal, applying rigor-
ous standards for facts, citations, and accuracy, while abandoning the more
relational and political content of earlier years. In practice, soliciting profes-
sionalized law review–style articles was not always easy because, as the field of
immigration law expanded, other professional organizations and law schools
began producing immigration-centered law journals.38 In 1998, as electronic
communication became on option, the effort to sustain a publication that had
become a cross between a law review and a membership journal was finally
abandoned and the newsletter was discontinued.
Even before this point, however, the newsletter’s rule-oriented compila-
tion of judicial and legislative developments stood alongside other efforts in
an increasingly institutionalized immigrant rights legal community. In retro-
spect, this process occurred quite rapidly, as legal activists adapted the tem-
plate of the public interest law firm and applied it to immigration work. This
model structured interorganizational relationships as well as organizational
strategies. Both the desire to show concrete results to external supporters and
the pressing need of professionalized organizations to remain solvent were
an integral part of the law firm model of public interest law. As we will see in
Chapter 5, the litigation strategies that emerged from this association with the
model of public interest law firms – in particular, the desirability of showing
litigation’s concrete outcomes – gave rise to a very particular type of regular
interaction with the government officials responsible for immigration-related
policy making. However, before considering how routinized immigrant rights

litigation strategies have structured immigration politics, it is necessary to step

back from the American picture and examine an alternative model of combin-
ing law with political engagement.

French Traditions of Speaking for the

Public through Law
While the leaders of the ABA embraced participation in government action
and liberal political mobilization in the 1960s and 1970s, the French legal
profession did not play a similarly influential role. On the one hand, the Fifth
Republic’s power structures relied upon and privileged specially trained cad-
res of administrative elites, relegating lawyers to operating within a judicial
system that was in crisis. On the other hand, this exclusion from state power
was partly self-enforced. Despite the major changes taking place in French
society, the barreau remained attached to a classical model of legal practice
that was generalist in orientation and uninvested in the market for corporate
legal services (Karpik 1999, 315). Faced with competition from a new genera-
tion of young lawyers, leaders of the bar were primarily concerned with secur-
ing their own professional position and prestige. For their part, the post-1968
generation of law graduates held little hope that a profession that they saw as
failing to keep up with the times would provide support for social change and
resigned themselves to creating alternative professional networks and collabo-
rating with grassroots social movements.
Yet as they sought to contribute to movements for change, young jurists
in the 1970s faced serious conceptual hurdles in identifying an appropriate
role for legal strategies in this social movement milieu because at this time
influential leftist public intellectuals were insisting that expert knowledge
was at the core of existing relations of hierarchy. The new model of political
activism, exemplified by Michel Foucault’s engagement with prison issues,
was grounded on the notion that power could best be resisted by generat-
ing a contre-expertise through the synthesis of subaltern voices; it explicitly
eschewed engagement with state structures. This notion of contre-expertise
posed particular challenges for jurists, especially given the fact that French
legal theory remained resolutely attached to legal formalism (Chevallier
1993). It was not obvious how juridical knowledge, whose raison d’être was
enabling the functioning of the republican state, could play a part in funda-
mentally rethinking state structures.
This is not to say that the Foucauldian approach, in practice, eschewed
all expressions of commitment to abstract principles. The visible presence
at public political protests of both Jean-Paul Sartre and Foucault signaled

their willingness to pay homage to a venerable French tradition of defend-

ing abstract ideals through principled acts of protest, including acts of protest
undertaken in the courtroom (Noiriel 2010, 102–25). Indeed, over the course
of the twentieth century, prominent figures in French political life had regu-
larly taken to the streets to defend the abstract notions of liberty and legality.
During the period of the Dreyfus Affair, at the turn of the twentieth century,
public denunciation in the courtroom and in the press was a key strategy
adopted by the Ligue des Droits de l’Homme as it sought to promote its vision
of a liberal and secular republic against the conservative alternative (Naquet
2009). More recently, in the early years of the Fifth Republic, attorney Robert
Badinter channelled the Dreyfusard model of denouncing injustice as part
of his crusade against capital punishment, using the courtroom as a stage on
which to plead for its abolition (Cassia 2009). These diverse acts of political
engagement demonstrate that left-leaning political activism – in practice –
could be successfully reconciled with legally based activity, so long as the
latter operated in the spirit of denunciation rather than in cooperation with
the state.
GISTI’s pioneering conceptual innovation was to identify a program-
matic justification for this ongoing practical hybridization of the Dreyfusard
model, embodied in the lawyer-orator denouncing injustice in the name of
abstract liberal principles, with newer post-1968 notions of political activism
through locally generated contre-expertise. The vision developed by the group,
expressed in its early publications, was that the extension of general principles
of legality was itself a contribution to the immigrant cause, because it removed
immigration from the space of “nonlaw” that had previously defined this
domain of governance.39 This innovation solved the problem of how juridical
expertise might be reconciled with post-1968 political struggle by linking the
activity of formalizing and rationalizing the law with the emancipatory effect
of deconstructing immigration governance’s logic of exclusion. It was a vision
of legal activism in which GISTI’s diverse membership of juridically-inclined
civil servants, lawyers, and social workers all found inspiration.
However, identifying a conceptual justification for legal activism in France
would not by itself ensure its viability. To be sustainable, GISTI would need
to put this programmatic vision into practice and deepen its degree of realiza-
tion. As described in the section that follows, the process by which GISTI’s
innovative vision came to life has been relatively more organic than top-down.
In contrast to the U.S. experience of extending existing legal activist organiza-
tional models into the realm of immigration law, GISTI’s institutionalization
has operated through experimentation and remains grounded on informal
networks extending inside as well as outside the state.

An Institutionalized Identity for Immigrant Rights

Legal Activism in France
The first half of the 1980s found French immigrant rights legal activism at a
crossroads. Like many comrades among France’s political left, GISTI’s mem-
bers greeted the May 1981 election of Socialist Party presidential candidate
François Mitterrand with euphoria.40 Strengthened by its record of victories
before the Conseil d’Etat, which it did not fail to point out to the new gov-
ernment, GISTI introduced itself as an association, founded in 1972 by jurists
and social workers, that “has strived to promote and defend the rights of immi-
grant workers and their families, and that has not ceased (in its publications,
its interventions, and its judicially-oriented activity) to challenge the segrega-
tionist politics endorsed by the previous government.”41 Its letter to the incom-
ing president called for detailed legislative modifications, which it felt were
“necessary to install a new politics of immigration that dignifies France.” The
immediate aftermath of the Socialist victory was a moment in which GISTI
felt that its project had received a double vindication, judicial and electoral.
At least initially, this celebration seemed warranted, as the Mitterrand gov-
ernment expressed its intention to facilitate foreigners’ access to permanent
residence and enacted a legalization program that regularized the status of
132,000 foreigners (Weil 2004, 220).
However, it soon became clear that the Socialist victory in fact posed serious
challenges for GISTI’s project. Having been promoted to cabinet positions
within the new government, the elite civil servants among GISTI’s founders
effectively left the organization. The legal activism of GISTI’s collaborators
within the Confédération Française Démocratique du Travail was becoming
even more thoroughly incapacitated at this time, as the union’s leadership in
1978 had adopted a strategy of “resyndicalisation” and increasingly viewed the
judicial strategies of its legal department as a distraction (Noblecourt 1990,
135). Generally speaking, among leftist groups with close ties to the newly
elected government, there was an unspoken expectation on the part of the
Mitterrand government that they would refrain from criticizing its policies.
The period of 1981 to 1985, when the Socialists took the reins of power for the
first time during the Fifth Republic, was thus a time for vigorous discussions
on how GISTI’s project should proceed in the new political environment, and
debate centered on what type of activity to pursue. At a meeting of GISTI’s
members shortly after the close of the government’s regularization program,
one faction criticized the group for being insufficiently involved in assisting
migrants hoping to benefit from the regularization.42 Others responded that
local immigrant-run associations were better placed for this work, and that

the particular form of action for legal activists should be supplying juridical
support for collective actions rather than for individuals. Moreover, given the
changed political context following the Socialist victory, they suggested that
their network should orient itself toward a new type of activism, namely direct
and informal interventions with the relevant authorities. A decision was made
that members of the group who wished to engage in grassroots work with local
associations would continue to do so. However, debate continued over the
appropriateness of such work for the association as a whole, and there was a
manifest concern that GISTI had not yet developed a coherent organizational
strategy for the new political context.
If the extent to which GISTI could or should be involved in grassroots work
remained unresolved, the question of what concrete role it would play in the
messy business of brokering political compromise was an even more compli-
cated matter. After some debate, the group arrived at the position that GISTI
need not refrain from making informal responses to policy proposals when
contacted by members of the government, although there was a consensus
that this advisory role “should not go so far as providing counter-proposals.”43
Yet in October 1981 when the government stood behind legislation formal-
izing sanctions for irregular entry and unauthorized employment, GISTI
accused the Socialists of hypocrisy for copying the restrictionist policies of
their predecessors and, under the leadership of attorney Arlette Grunstein, it
petitioned the Conseil d’Etat to overturn both the decree and the two circu-
lars implementing the law.44 GISTI’s lawyers also began an extensive test-case
campaign challenging the ability of the police to conduct controls of immigra-
tion status alongside immigrant housing inspections.45 While both campaigns
achieved moderate success in court, these actions came at the price of polit-
ical isolation, as GISTI was accused by its former leftist partners of disloyalty
to the new government.
The electoral alternance in May 1986, which demonstrated the growing
influence of the Front National and its anti-immigrant rhetoric, confirmed
GISTI’s rupture with the government but also opened a door to collabora-
tion with a newly reconstituted civil society movement. GISTI found itself
qualified to play a particularly prominent role in this new movement: its new
president, Danièle Lochak, had achieved the rank of professor of public law
and had gained a reputation as one of the leading scholars of French adminis-
trative law, and several of the association’s affiliated jurists, including Philippe
Waquet and François Julien-Laferrière, had established themselves as lead-
ing litigators in private practice. Bolstered by the professional recognition of
its leadership, GISTI joined the Ligue des Droits de l’Homme in leading a
coalition of civil society associations and labor unions in a weeklong protest

against the government’s proposed immigration and nationality laws, which

were denounced in the strongest terms. According to the Ligue des Droits
de l’Homme, the treatment of foreigners was, “a question around which the
French political and intellectual field is structured: between Dreyfusards and
anti-Dreyfusards, indigenophiles and partisans of colonization, Vichystes and
Résistants.”46 Similarly, GISTI’s president characterized the immigration law
of 1986, which reestablished the pre-1981 regime for expulsions and gave more
power to prefects in issuing removal orders, as a “contamination” of far-right
xenophobic ideas into mainstream political discourse (Lochak 1987, 56).
GISTI’s efforts to petition the Conseil d’Etat to overturn the administrative
circulars and decrees implementing these restrictive immigration laws served
as a complement to its more visible public protests against the new policy.47
This denunciatory stance was in some sense a return to an activist modal-
ity familiar from the mobilizations of the 1970s, but the nature of the immi-
grant “cause” to which GISTI now attached itself, and to which it offered its
specifically juridical expertise, was becoming hard to pin down. Expanding
beyond the issue of immigrant workers’ stability of residence, the defense of
immigrants was increasingly associated with activism related to the treatment
of asylum seekers. GISTI member François Julien-Laferrière’s involvement
in asylum issues through the organization France Terre d’Asile enhanced the
group’s litigation competencies in this area, and starting in the 1980s the two
groups began to collaborate in litigating asylum issues.48 This move toward
specialization and informal division of competencies would continue. In 1989,
a new association, L’Association Nationale d’Assistance aux Frontières pour les
Etrangers (ANAFE), was created with GISTI’s support to provide assistance
to immigrants and asylum seekers detained when attempting to enter France.
Nevertheless, it was GISTI that continued to handle complex legal questions
in this area. For instance, when the government detained asylum seekers in
a hotel near Roissy Airport without statutory authorization, this covert prac-
tice was publicized and condemned by ANAFE, but it was GISTI that for-
mally contested the legality of this “zone of nonlaw” in a lawsuit reported in
the media as giving the government “a lesson in administrative law.”49 Amidst
this diversification of its activities, GISTI made the decision to drop the word
travailleurs from its name. As this name change indicates, legal activism to
defend the immigrant cause was no longer seen as tied to the immigrant
worker debates of the 1970. Moreover, GISTI’s project was proving sufficiently
malleable to encompass an increasingly diverse array of immigration-related
causes with which the group’s juridical expertise had become associated.
This organizational adaptation to the changing politics of immigration was
accompanied by an appreciable degree of rationalization and systematization

in GISTI’s organizational practices. In the latter half of the 1980s, GISTI sub-
stantially developed its record-keeping techniques, progressively acquiring
systems for tracking membership and member dues that made for a strong con-
trast with the group’s initial roster of seventeen members and thirty-four hand-
written correspondent addresses.50 Staff members were hired to “systematize”
GISTI’s training programs for local immigrant associations, and the associa-
tion began receiving public funding in the form of a contract to organize reg-
ular legal training sessions for government-employed social workers.51 At the
same time, the group consciously sought to improve the organization and pre-
sentation of its written publications. Handwritten pamphlets were replaced by
a paid-subscription journal, Plein Droit, launched in 1988. In addition, GISTI
began to market a series of handbooks on immigration law to practicing law-
yers. By the mid-1990s, GISTI was regularly contracting training sessions in
immigration law with local bar associations, offering a standard program with
a fixed price per day.52
In part, these steps toward greater institutionalization responded to the per-
ceived need to secure GISTI’s financial stability. Starting in the mid-1980s, the
organization’s main funder, the Comité Catholique contre la Faim et pour le
Développement, which had provided funds for GISTI to open its own offices,
made it clear that it preferred to support defined programs rather than all of
the organization’s operating expenses.53 As GISTI began to develop special-
ized budget lines for its operations, it looked to its informal contacts within
the public sector for financial support. Funding for the campaign to publicize
asylum rights was obtained through informal inquiries with personal contacts
within the government.54 Securing access to funding from the Ministry of
Social Affairs’ Direction of Population and Migrations became more “ritu-
alized” beginning in the late 1980s.55 Moreover, when the Socialists returned
to power, it was the prime minister’s office that contacted GISTI in order to
share the news that a budget line had become available for associations whose
activities centered on human rights issues. The close personal nature of these
contacts is evident in letters using first names rather than more formal means
of address.56
At the same time that GISTI moved toward more systematized and insti-
tutionalized activities, it increasingly concentrated its efforts on challenging
administrative regulations rather than entering into political struggles at the
local level. Although the association maintained its weekly drop-in consul-
tation sessions out of a ritualistic commitment to this tradition, the internal
debate over how to prioritize legal expertise and locally based activities was
tacitly settled in favor of the former. By the mid-1980s, GISTI staff had decided
to “channel and restrain” requests for legal assistance from locally based social

workers.57 From this point, grassroots organizing would be handled by separate

organizations, such as the Collectif des Accidentés du Travail, Handicapés et
Retraités pour l’Egalité des Droits established by GISTI staff member Patrick
Mony in 1985. In contrast to the close contacts that characterized its involve-
ment with the SONACOTRA residents movement of the 1970s, GISTI
remained largely uninvolved in the grassroots movement of second-generation
immigrant youth that developed in the 1990s against the double-peine (the
penalty of expulsion associated with a criminal conviction).58 Similarly, it was
activists affiliated with the emergent antiglobalization movement, rather than
GISTI, that took the lead in supporting the series of spontaneous sit-ins and
squats organized by the various “collectives of sans-papiers” once this move-
ment had burst onto the scene in the early 1990s (Péchu 2006, 296). While sev-
eral of GISTI’s jurists represented participants in the sans-papiers movement,
the organization by the 1990s had clearly moved away from its early aspiration
to provide ongoing support at the local level.59
As the politics of immigration continued to be the subject of intense polit-
ical debate throughout the 1990s, role of lawyer-orator on behalf of France’s
community of human rights and humanitarian associations became an
institutionalized aspect of GISTI’s organizational identity. In debates over
the enactment of restrictionist immigration laws in 1993, GISTI publically
accused the conservative government of “harboring a profound scorn for the
family life of foreigners” and “enacting a veritable coup d’état” against rule of
law.60 GISTI adopted a public position in favor of open borders, prompting a
debate within the Left over whether this response to the government’s increas-
ingly restrictionist policies was too radical.61 Despite calls from some within
the leftist political establishment for a more pragmatic stance on immigration
matters, GISTI maintained its strongly critical position even after a subse-
quent electoral alternance returned a government of the left to power in 1997;
its public statements emphasized the inadequacies of a 1998 immigration law
that reversed some but not all of the restrictionist measures enacted by the
previous government.62 When a government of the right returned to power
in 2002, GISTI coordinated a civil society campaign against what it saw as an
entrenched policy regime that allowed France’s immigrants to be treated as
“disposable.”63 The organization has led a collective of French left-leaning
associations in calling for freedom of movement for all people across national
borders since the mid-1990s, a campaign that included collaboration with
filmmakers and even a rock concert to publicize the idea of open borders.
Activism in court, which has tended to operate in an abstract and for-
mal register, provides an additional tool for this principled denunciation
of immigration policies. Rather than wading into the details of street-level

implementation, GISTI has preferred to focus on abstract formal legality and

over the past four decades its jurists have gained confidence and become adept
at bringing abstract challenges before the Conseil d’Etat. GISTI organized
more than twice as many abstract challenges before the Conseil d’État in the
1990s as it did in the previous two decades, and this number doubled again
after 2000 (Lochak 2009, 44). The contrast between this litigation approach
and American-style public interest law was made clear to me when I initially
asked GISTI members about their law reform efforts, and the term law reform
elicited puzzled looks. As they saw it, the task of pushing courts to apply exist-
ing principles of legality is ontologically distinct from the pragmatic trade-offs
of policy reform. This is not to say that GISTI’s legal activists are advancing the
law in a way that is purely speculative or academic; rather, they see themselves
as advancing the rights of foreigners by virtue of the principled consistency of
their program. The attachment to a principled agenda can be seen in every
issue of GISTI’s journal Plein Droit, which opens with an unsigned editorial
laying out the principles to which the association is attached and describing
how enacted policies have fallen short of these principles. Among the most
prominent of these principles are the guaranteed provision of social assistance,
the right to asylum, and the right of migrants settled in France to work and
to enjoy a family life. These themes form continuous threads of coordinated
activity before the courts and are the basis for contesting immigration policy.
The sustainability of this model of legal activism relies upon a loyal and
tight-knit circle of affiliated lawyers who are willing to file judicial petitions
in GISTI’s name for little or no fee.64 There is no equivalent to the position
of the staff attorney within U.S. public interest law firms. GISTI’s paid staff
have relatively little involvement in formulating or drafting legal arguments.
After a decision has been taken to challenge a particular administrative action
in the association’s name by the group’s inner-circle of members, the role of
GISTI’s paid staff is generally limited to keeping records of the petition’s pro-
gress. Organized litigation is instead conducted by GISTI’s unpaid members.
A common link for many of GISTI’s early lawyer supporters was that they had
participated in the Mouvement d’Action Judiciaire legal network at the begin-
ning of their careers. By the 1990s, the circle had come to include a number of
Danièle Lochak’s former students who completed an internship with GISTI
as part of their legal training. Lochak’s respected legal scholarship and close
relationship with the Ligue des Droits de l’Homme further strengthened the
group’s reputation and attracted a new generation of legal academics and liti-
gators as prospective GISTI members.
GISTI’s legal activism has also made good use of its network of social
contacts among the upper echelons of the judicial world. Its landmark 1978

victory was achieved in part because the case served as a “catalyst” of initial
signs of change in the Conseil d’Etat’s position on immigrant rights, signals
that were already perceptible to GISTI jurists working within that institution
though they were not made public (Genevois 2009, 71). Knowledge of discus-
sions taking place within the Conseil d’Etat likewise proved helpful in making
legal activists aware that certain provisions of the 1996 Debré immigration
law, concerning proofs of adequate housing for immigrant residency permits,
had received criticism from the Conseil d’Etat at the drafting stage and were
thus susceptible to legal challenge (Guiraudon 2000, 210). In both instances,
the source of GISTI’s privileged access to this source of legal authority was
the fact that its jurists operated in the same Parisian microcosm occupied by
French administrative elites. Particularly as their careers advanced, GISTI’s
legal activists encountered members of France’s governing class by virtue of
where they lived and who they knew. At the same time, this relationship with
the Conseil d’Etat has been actively maintained through the organization’s
careful cultivation of a reputation for eloquence and abstract reasoning, quali-
ties that, as Michèle Lamont has shown, are essential resources among French
elites (Lamont 1992). Although her presence is not required, Danièle Lochak
has been known to attend the public audiences for GISTI’s cases before the
Conseil d’Etat, where she is addressed as “Madame le professeur,” signaling
both the respect that this title conveys as well as GISTI’s willingness to incor-
porate a subtle reputational leveraging into its organizational strategy.
Indeed, operating in an organizational context in which reputation and
informal networks are indispensable, GISTI has devoted substantial effort
to maintaining its “brand name.” One way of doing so has been limiting
access to GISTI membership by making it conditional on sponsorship by two
existing members. The organization has never made any strong attempt at
recruitment. Over the years, jurists who demonstrated an expertise in immi-
gration law were invited to join GISTI’s selective membership and were gen-
erally eager to become associated with such a prestigious group. Rather than
seeking to expand its membership as other associations have done, GISTI
has consciously maintained a niche identity.65 The organization has devoted
substantial time and effort to organizing colloquia and publications celebrat-
ing its litigation successes and has invited famous jurists to comment on their
significance. For instance, the 1992 edition of GISTI’s immigrant rights legal
guidebook has a preface contributed by the Vice President of the Conseil
d’Etat at the time, Marceau Long (GISTI 1992). The success of GISTI’s legal
activism has rested in part on its ability to leverage a circle of supporters and
to build a network of contacts that remains largely personalized and informal
in nature.

This proximity to the state, while it has been effective in providing access to
the upper echelons of French administrative law,66 has nevertheless supplied
a source of angst for GISTI’s legal activists. The generation that began their
careers in the 1970s maintained a strong attachment to an ethos of urgency
and spontaneity, accompanied by a fear of being co-opted by the state. Even
as this image of spontaneous mobilizations grew more distant from reality,
the group has struggled to maintain its critical autonomy. In 1992, the associa-
tion used the twentieth anniversary of its creation to recall its foundational
principles and to explore the tensions involved in juridical engagement with
a state whose policies continued to promote restrictionism.67 The following
year, fearing that these principles were being compromised through associa-
tion with a government of the right keen to appease far-right voters, GISTI
announced its resignation from participation on the National Consultative
Committee on Human Rights. Although GISTI continued to receive its reg-
ular funding from the Ministry of Social Affairs, GISTI’s president expressed
concerns that her association might become accustomed to money and would
find itself distracted by having to support the enhanced operations that more
funding would allow.68
While they are fearful of being co-opted by the state, GISTI’s legal activists
in recent years have expressed a parallel fear of being seduced into the sphere
of the market. This antimarket discourse is an outgrowth of the evolving poli-
tics of the French legal field, which since the late 1980s has pitted business
lawyers against those defending the traditional model of courtroom defense
(Karpik 1999, 285–312). To maintain its separation from market forces, GISTI
has made a point of routinely linking immigration issues to larger political
debates and its journal, Plein Droit, has regularly published short essays by
historians, sociologists, anthropologists, and philosophers that address legal
issues only at the most abstract level. Similarly, when referring to the informal
procedures used to make a decision of whether and how to litigate, legal activ-
ists voiced pride in what they referred to as their “artisanal” approach, insisting
that public representation should be distinguished from the strategic lobbying
work of interest groups.69 GISTI made the decision to avoid hiring profes-
sional public relations staff for fear that the group’s political positions would
become oversimplified when targeted to the media.70
Looking beyond these calls to prevent mission-creep, however, the preceding
discussion has highlighted the extent to which GISTI’s project has sustained
itself over time through a combination of tinkering and flexibility. Indeed,
over the past ten years, as new sets of actors have become involved in providing
immigration-related legal services in France, GISTI’s organizational identity
has continued to evolve. As jurists affiliated with other organizations, such as

the Cimade and Amnesty International France, have gained confidence in

formulating petitions for judicial review, GISTI can now no longer claim to
stand alone as the legal wing for all of France’s immigrant defense mobiliza-
tions.71 With no externally imposed division of labor in immigration-related
legal expertise, the dynamics of these collaborations remain informal although
there is a general tendency for GISTI to take charge of litigation in complex
cases.72 Perhaps most telling of the changes in recent years, at a colloquium
dedicated to the emerging area of French legal activism on behalf of prisoners’
rights, GISTI’s legal activists embraced their identity not as a sui generis inno-
vation but rather as role model for “collective action à la française” (Slama
and Ferran 2014, 9). GISTI’s broad vision of “eradicating the zone of non-law”
has not only proved sufficiently flexible to accommodate substantial organiza-
tional translation over time, but also has encouraged emulators among legal
activists in other policy domains.

Conclusion
In the United States and France, attorneys who began their careers as immi-
grant defenders have been drawn over time toward more institutionalized
modalities. In the United States, it was the process of seeking external sup-
port that especially propelled the institutionalization of immigrant rights legal
activism. Organizations strove to demonstrate, both to their professional peers
and to supporters within the liberal legal network, that their litigation activi-
ties were having a concrete impact. Staff-led immigrant rights legal organiza-
tions with largely paper memberships replicated the organizational model of
public interest law. In the process of doing so, they implemented more pro-
fessionalized human resources practices and developed formalized structures
for communicating with local affiliates. They also rationalized their collabo-
rations with each other, allowing for effective division of labor. Perhaps the
most striking aspect of institutionalization, however, is the degree to which
immigrant rights legal activism has gravitated toward the legal profession.
Immigration-centered legal activism emerged as a form of practice character-
ized by regular interactions with the institutional structures of the U.S. legal
profession as well as frequent partnership with the private bar’s pro bono
initiatives.
By contrast, in France, there has been little direct involvement in, or sup-
port for, legal activism on the part of leaders of the legal profession. Planned
litigation has remained a voluntary activity carried out by a small circle of
committed jurists whose reputation attracted the best and the brightest to
join their ranks. Unlike the situation in the United States, an organizational

template for institutionalized practice was not ready for adaptation. Instead,
aspiring French legal activists have taken inspiration from the historical prec-
edent of lawyers and intellectuals speaking on behalf of abstract notions of lib-
erty and legality. Despite a professed aversion to institutionalization, French
legal activists’ organizational practices have nonetheless experienced an
appreciable systematization and formalization. They have also been gradually
incorporated into what legal sociologists Terrence Halliday and Lucien Karpik
have identified as a liberal-leaning “legal complex” operating inside and out-
side of the state (Halliday and Karpik 1997, Halliday, Karpik, and Feeley 2007).
We see this move toward institutionalization in the efforts of GISTI’s jurists
to secure their organization’s reputation with sources of legal and political
authority.
It is important to distinguish the analysis of institutionalization offered here
from anti-immigrant polemics asserting that immigration-centered legal activ-
ism was the brainchild of liberal elites.73 Lawyers and legal organizations are
reduced in these polemics to mere instruments for advancing an existing lib-
eral agenda through the courts. Against these top-down conspiracy theories,
the history of immigrant rights legal activism demonstrates the extent to which
national legal organizations in each country emerged through a process that
was more horizontal than vertical. As detailed in Chapter 2, immigrant rights
legal activism developed into a distinct professional community because ide-
alistic jurists joined in local struggles that renegotiated migrants’ normative
claims on the law. Moreover, as the discussion in this chapter demonstrates,
the process of institutionalizing legal activism also involved substantial trans-
lation and adaptation. Rather than operating as a cut-and-paste process,
it unfolded through a series of mutually reciprocated associations between
ambitious immigrant defenders, their various supporters inside and outside
of the state, and an evolving immigrant social movement environment. It was
through this combination of entrepreneurialism and experimentation that the
project of institutionalized immigration-centered legal activism ultimately
coalesced.
It is clear, however, that the process of institutionalization that began in the
1980s moved immigrant rights legal activism progressively further away from
local social movements and increased its proximity to the space of official
policy making. While legal activists in both countries continued to identify
their work as political, they took pride in having established reputations with
sources of legal authority. For example, American and French jurists alike cel-
ebrated the fact that high courts had subscribed to their publications. This in
turn inspired greater attention to rigorous legal argumentation and analysis. In
the United States, successes in court encouraged immigrant defense lawyers

to pursue litigation strategies that adopted a “national perspective” and to cre-

ate organizations that operated with only loose connections to the struggles
of local movements. Similarly, in France, legal activism, which was initially
grounded in local immigrant social movements, became part of a largely
Paris-based network of human rights and humanitarian associations with a
strong programmatic agenda. Not only was it challenging for legal activists to
maintain contact with political struggles at the local level, but litigation efforts
conceptualized from a national perspective were also more obviously relevant
to programmatic debates over immigration policy. In both settings, liberal
elites became a supportive audience for immigration-centered litigation. The
flip side of this development was that the new organizational forms facilitated
through the support of elite benefactors – a network of specialized public
interest law firms in the United States and a circle of principled lawyer-orators
in France – allowed for a relatively reduced competence for coordination with
grassroots immigrant social movements engaged in direct action strategies.
Regardless of the organizational models that American and French legal
activists cultivated in concert with their supporters, one important effect of
institutionalization was that it expanded the quantity and scope of immigra-
tion policies that would be subjected to litigation. As immigrant rights legal
activism acquired a solid base of support and adopted sustaining organizational
form, challenging immigration policies in court became a routine dimen-
sion of immigration politics. In other words, at the same time that immigrant
rights legal organizations were building and maintaining relationships with
their supporters in the legal profession, their litigation efforts brought them
into increasingly regular contact with the government administrators whose
policies they opposed. The next two chapters look more deeply at the court-
room work of institutionalized immigrant rights legal activism to elucidate the
patterns and practices produced in the process of seeking judicial review of
immigration-related administrative policy making.

Enacting Adversarial Legalism through

Class Action Lawsuits

After two decades of increasingly institutionalized litigation efforts, U.S. immi-

grant rights legal activists in the mid-1990s found themselves the subject
of unwanted legislative attention. The Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA), signed into law in September 1996,
contained language that severely limited class action lawsuits challenging
Immigration and Naturalization Service (INS) policies and practices.1 Placed
alongside IIRIRA’s other restrictionist provisions, such as those establishing an
“expedited” removal process and curbing judicial review of final deportation
orders, the provision restricting class action litigation can be seen as part of a
broad legislative effort to alter the role of federal courts in immigration mat-
ters.2 At the same time, IIRIRA’s class actions provision is worthy of particular
attention as it offers a revealing commentary on how immigrant rights legal
activism had come to be perceived by actors within the government.
The legislative architects of this jurisdiction-stripping provision were explicit
about how they understood the “problem” that it was designed to address.
Describing the purpose behind IIRIRA’s class action restriction, Senator Alan
Simpson explained, “We got rid of layers of people who love to bring class
actions and disrupt the normal course of INS work.”3 The chief counsel to
the Senate’s Immigration Subcommittee was even more direct in his expla-
nation of legislative motivation: “We’re tired of these suits every time you
don’t give out benefits to as many people as some lawyers think you should.”4
Representative Lamar Smith, the Chairman of the House Subcommittee
on Immigration, expressed his critique in a similar manner: “Any individual
immigrant may still sue the agency and obtain specific relief, but broad class
action suits . . . will be curtailed. Immigration lawyers have used such suits to
accomplish what they cannot accomplish through legislation or regulations.”5
Legislators expressed a determination to strip away a legal mechanism that
had been used with notable efficacy for court-propelled policy change. Their

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104 Contesting Immigration Policy in Court

public statements give some indication of the degree of antagonism that had
developed between immigrant rights legal activists and the agency that was
the target of these lawsuits.
In an influential series of essays almost thirty years ago, Martin Shapiro
speculated that assertive judicial review of administrative practices would
inspire hostility on the part of agency officials and focus them on the appear-
ance of fairness rather than on substance (Shapiro 1988, 110–11). Along simi-
lar lines, Robert Kagan’s seminal study of “adversarial legalism” marshaled a
broad array of empirical evidence to support the view that lawsuits by rights
advocates have often stimulated legal and political counterattack by admin-
istrative agencies that treat judicial decisions that reject their policies “as just
one more political obstacle to be overcome by tactical means” (Kagan 2001,
171). A recent study of organizational responses to legal mobilization in the
area of disability rights confirms this tendency on the part of public adminis-
trators to adopt negative attitudes toward lawyers who organize lawsuits chal-
lenging administrative practices (Burke and Barnes 2012).
Yet, as other empirical studies have shown, organized litigation does not
always “succeed” in constructing a culture of adversarial legalism and admin-
istrative recalcitrance. In some instances, legal activism directed against local
public administration has strengthened the hand of internal reformers favoring
“systemic legalized accountability” (Epp 2009). At the federal level, court deci-
sions prompted by organized litigation, rather than inspiring hostility, at times
have instead “established a new policy status quo” by altering public expecta-
tions about the responsibilities of government (Melnick 1994). Although asser-
tive judicial interventions can set in motion cycles of interaction that amplify
conflict and lead administrative policy makers to focus on second-order policy
questions about the scope of standing and judicial reviewability (rather than
considerations of substantive policy), the emergence of this “deconstructive”
pattern of juridification is context-dependent (Silverstein 2009). For instance,
organized litigation is more likely to be construed as an intrusive activity that
impedes an agency’s mission when judges assertively interpret legislation in
ways that are contrary to the expectations under which the law was initially
enacted (Silverstein 2009, 274–9).
Without contesting these findings, I want to suggest that the practical
achievement of “adversarial legalism” in a given policy domain depends not
only on the initiative of judges but also on dynamics that are cultivated among
other routinized participants in the litigation process. As this chapter explains,
legal proceedings against U.S. immigration policy administrators have been
characterized by a highly pragmatic organizing logic that places legal activ-
ists in close contact with the day-to-day institutional and operational terrain

of immigration policy. Through repeated interactions, litigators and agency

administrators have been regularly brought into contact. The result of these
legal performances has been the construction of a collectively held narrative
among immigration officials in which judges and formal law fall into the back-
ground while those responsible for organizing lawsuits against immigration
policy practices assume, in the eyes of their administrative interlocutors, the
dual roles of protagonist and target for counterattack.
The set of class action litigation campaigns organized against the INS dur-
ing the 1980s and 1990s provides the material for developing an understand-
ing of how this antagonistic dynamic emerged. It was during this period that
immigrant rights legal activists were first brought into regularized contact with
national immigration officials, who previously had not been the subject of
organized litigation. My close study of these interactions concentrates on the
modality of the performances that they constructed. I argue that understand-
ing how immigration class action lawsuits were experienced by their partici-
pants is important if we want to fully understand the responses that organized
litigation elicited beyond the courtroom.
The analysis in this chapter starts by elaborating the unique set of features
that came to be associated with immigration class action lawsuits – across a
range of issues – starting in the 1980s. It then lays out the culture of interac-
tion engendered by repeated recourse to this distinct legal instrument by legal
activists seeking to influence national immigration policy making. The final
section explores the shifting dynamics operating in more recent years, as leg-
islative jurisdiction-stripping introduced new actors and sites of interaction
between legal activists and immigration policy makers.

Class Action Lawsuits against the INS

For U.S. immigrant rights legal organizations, class action lawsuits have offered
a powerful instrument for influencing national immigration policy making.
While the class action lawsuit has long been a feature of federal litigation, the
potency of this instrument was substantially enhanced during the 1960s and
1970s. In the mid-1960s, Congress revised the class action rule so as to allow
plaintiffs to seek injunctive relief on behalf of groups of individuals with no
prior legal relationship so long as they could show that their legal opponent
had acted in a manner generally applicable to the class as a whole (Redish
2009, 10–11). Case law generated by civil rights litigation and public inter-
est litigation likewise contributed to extending the power of the class action
mechanism. Federal courts routinely assumed that plaintiffs in civil rights
class actions adequately represented their proposed class and that the class

actions posed no danger of conflict between lawyer and client (Bell 1976, 493).
Judicial willingness to apply these standards to public interest litigation orga-
nized against federal agencies further extended the reach of the class action
mechanism (Schuck 1983, 151). During the 1970s, courts hearing class actions
were willing to issue consensual remedial decrees and permanent injunctions
when administrative agencies had been judged to be in violation only of stat-
utory provisions rather than of constitutional rights.
For aspiring immigrant rights legal activists, starting in the early 1980s, the
class action mechanism offered a clear path for bringing public officials under
substantive judicial oversight. Immigration and refugee statutes were provid-
ing opportunities for legal activism by simultaneously creating new entitle-
ments for migrants and limiting existing rights, and immigration-centered
public interest organizations were gaining the institutional and juridical
capacity to litigate these cases.6 In 1984, the director of the National Center
for Immigrants’ Rights summed up a generalized sentiment when he told his
advisory board, “We cannot effect change through law if we are unable to pro-
ceed through class actions.”7
Beyond the basic characteristic of generalizing judicial holdings to a large
number of class members, however, immigrant rights class actions starting in
the early 1980s also became associated with a specific and regularized orga-
nizing logic. First of all, the immigration class action came to be deployed
most regularly in cases challenging the practices of a particular administra-
tive agency. Legal activists learned through experience that it was not par-
ticularly difficult to use class action lawsuits to convince courts that the INS
was acting abusively. For much of its history, the INS was a “beleaguered
bureaucracy” that had few political allies (Morris 1984), and the underdevel-
oped asylum system offered multiple opportunities for legal challenges. The
lesson taken from initial cases challenging the INS’s handling of Haitian asy-
lum claims in the late 1970s and early 1980s was that an effective strategy for
systemic reform consisted of focusing on the traditionally poor reputation of
the agency charged with immigration policy implementation and identifying
“structural defects” in its patterns of behavior (Kurzban 1981). In addition, liti-
gating against an agency that chose to defend actions that were demonstrably
abusive proved to be fertile ground for attorneys’ fee awards.8 Legal activists
learned from these early experiences with class actions that they had good
chances of winning attorneys’ fees when litigating against the indefensible
practices of a politically isolated agency. Conversely, they came to understand
that the odds that a court would find the government’s conduct “substantially
unreasonable” and award attorneys’ fees were much less favorable when litiga-
tion targeted congressional statutes and thereby raised abstract issues of policy.

In addition to targeting INS policies and practices, immigration class

actions came to concentrate on using federal district court orders as leverage
for policy change. Rather than seeking to obtain doctrinal innovations, legal
activists were content to secure orders from district courts that placed them in
a position to redesign INS operations. The specificities of U.S. immigration
jurisprudence weighed into this tactical choice. As political scientist Anna
Law has demonstrated, the fact-intensive and procedurally focused review of
lower federal courts has typically been more conducive to immigrants winning
their cases than the abstract consideration of national sovereignty concerns
that has come to characterize the U.S. Supreme Court’s institutional mandate
(Law 2010). This insight about where they had the best chances of winning
their cases was something that legal activists understood intuitively, and their
litigation strategies steered courts to focus not on rarefied principles that might
activate plenary power considerations but rather on the case-specific “record
of systematic abuse” on the part of the agency.9 From their perspective, class
action lawsuits against INS practices – even when they resulted in nonconsti-
tutional holdings – offered an attractive means to compel changes in immi-
gration policy making.
Before taking a closer look at how this instrument for immigration-centered
law reform operated in practice, it is important to sketch briefly the basic
background for the major immigrant rights litigation campaigns that deployed
the class action instrument. Litigation during the 1980s and 1990s is the focus
because this was the period in which the immigration class action operated
in its most unadulterated form. Within this period, I focus on class actions
in which national legal organizations played a leading role and where the
petitioners withstood government motions for dismissal. Although the cases
I discuss in this chapter are only a subset of all immigrant rights cases litigated
during this period, the selective sampling makes possible a close examination
of the routinized interactions between repeat players for which class action
lawsuits set the stage.
One important group of immigration-related class actions in which these
routinized interactions developed were lawsuits organized with the participa-
tion of national legal organizations that challenged the treatment of migrants
fleeing conflict in Central America. The Refugee Act of 1980, which brought
U.S. law into alignment with international refugee law, provided a legal hook
for these cases, which followed on the heels of successful efforts on behalf of
Haitian asylum seekers. The political associations of these litigation campaigns
were inseparable from the Reagan administration’s treatment of the Central
American conflict as a Cold War issue and from the contestation of these poli-
cies by a nationwide Sanctuary Movement that reached its peak activity during

the 1980s (Coutin 2006).10 Among the earliest class action lawsuits in this area,
the Perez-Funez case alleged that the INS routinely coerced unaccompanied
minors in its custody into accepting immediate repatriation through the “vol-
untary departure” procedure. Similar issues concerning advising individuals
of the right to apply for asylum as well as of due process rights were subse-
quently raised in a nationwide class action lawsuit, the Orantes-Hernandez
case, brought on behalf of all Salvadorans in INS detention. The Flores class
action lawsuit, filed on behalf of a fifteen-year-old from El Salvador who was
detained for five months in a detention facility designed for adults, also tar-
geted INS detention policies. Finally, the government’s handling of asylum
and removal hearings became a focus for legal activists’ efforts on behalf
of Central Americans. The American Baptist Churches (ABC) class action
accused the government of nationwide systematic bias in the adjudication of
Salvadoran and Guatemalan asylum claims. Two additional class action cases,
Mendez v. Thornburgh and El Rescate Legal Services v. Executive Office for
Immigration Review, challenged aspects of asylum processing and adjudica-
tion in the Los Angeles and San Diego INS districts. All four of the national
immigrant rights legal organizations discussed in Chapter 4 contributed to this
body of cases.
The Immigration Reform and Control Act of 1986 (IRCA) provided the
impetus for legal activists to challenge INS practices on a second front.
The law included a general legalization program for noncitizen residents
as well as programs that regularized the status of eligible members of
population-specific groups: (1) seasonal agricultural workers and (2) Cuban
and Haitian nationals. The INS’s handling of the legalization became the
subject of a substantial corpus of class action lawsuits organized by immigrant
rights legal activists.11
A third important body of cases consisted of class action lawsuits challeng-
ing the U.S. government policy of intercepting Haitian vessels on the high
seas to prevent their occupants from reaching U.S. territory. Immigrant rights
lawsuits targeted various aspects of the Haitian interdiction program, ranging
from questioning the statutory authorization for the interdiction program to
challenging the adequacy of detention conditions for HIV-positive Haitians
held at the U.S. military facility in Guantanamo Bay.12 These class actions on
behalf of interdicted Haitians were organized by seasoned immigrant rights
legal activists in collaboration with other nonprofit organizations and corpo-
rate pro bono counsel.
Although many other class action cases were organized, this subset provides
a representative snapshot of the most significant areas of immigration-centered
class action litigation during this period. They are particularly vivid exemplars

of a broader pattern of interaction that developed around the class action

mechanism as it was wielded against federal immigration officials.13 Having
laid out the historical context for the cases, the rest of my analysis concentrates
on how the emergence of the immigration class action lawsuit contributed
to constructing an enduring association between judicial intervention and
administrative antagonism.

The Amplification of Adversarial Conflict

The first thing that becomes apparent when looking at the records of immi-
grant rights class action campaigns during the 1980s and 1990s is the extent
to which these lawsuits were fact-intensive undertakings. A highly partisan
process of evidence accumulation began even before the cases were filed in
court. Legal activists made liberal use of Freedom of Information Act (FOIA)
procedures, seeking any and all government documents potentially perti-
nent to the subject of the lawsuit and thus avoiding any possibility that their
cases would not meet the threshold for certification as a national class.14 For
example, in the Orantes litigation campaign, FOIA procedures were used to
conscript agency officials into compiling the immigration records of all indi-
viduals required to return to El Salvador as well as all documents and records
relating to policy and practice regarding Salvadorans.15
Once a federal district court had certified a class and rejected motions to
dismiss the case, the gates were opened to the next phase of documentary
stockpiling through the process of discovery. In the ABC case, the INS was
required to produce thousands of pages of documents held in its central and
regional offices, and attorneys conducted depositions of dozens of government
officials (Blum 1991, 352). The class action challenging the legalization pro-
gram compelled the agency to provide litigators with the worksheets used by
individual INS officers across the country.16 Class action lawsuits concerning
various aspects of the Haitian interdiction program used the discovery process
to force the government to turn over surveillance videos, Coast Guard reports,
flight manifests, Joint Task Force directives, and interagency memoranda – six
thousand pages in all (Goldstein 2005, 244). Through these ambitious discov-
ery requests, the process of evidence gathering in immigration class action
lawsuits became like a war dance preceding courtroom combat: it was long
and strenuous, as the two sides assessed the strength of their adversary’s eviden-
tiary arsenal and calculated the cost of defeat.
It was a process that was burdensome and labor intensive for both plaintiffs
and defendants. In the words of one legal activist who participated in sev-
eral class actions targeting INS practices, “We had a good chance of winning

so long as we could garner the necessary resources to bring the lawsuit.”17

The resources of corporate law firms were particularly helpful in this respect,
supplying “deep pockets and endless resources” (Goldstein 2005, 53) to
assist in the voluminous and wide-ranging discovery process. Moreover, the
party-driven nature of the process meant that INS officials were required to sit
for questioning in the plush corporate law firm offices of pro bono collabora-
tors in immigration reform litigation.18 Thus, in addition to having their inter-
nal memoranda subjected to public scrutiny and criticism, agency officials
were forced to make themselves available for depositions conducted on their
adversaries’ turf.
While this use of the discovery process allowed legal activists to take the
initiative, it relegated judges to the supervisory role of umpires shaping the
balance of power between opponents. For instance, in the ABC class action,
a key turning point was the judge’s decision to allow litigators to substantially
revise the focus of their claims. Such decisions, while clearly unfavorable to
the agency, produced no precedent-setting rule. Sympathetic judges exercised
influence over the outcome of these cases but did so largely in the background
and thus without attracting condemnation from agency officials.
By contrast, interactions between litigators and agency officials were fre-
quent and came to be highly adversarial. Class action lawsuits challenging
immigration policy administration required the specification of a concrete
administrative adversary. The target of unflattering attention could not be
generalized to “the state” in its entirety, because U.S. civil procedure directs
plaintiffs contesting executive policies to focus on the allegedly abusive
actions of one or more discrete units of the public administration. Starting in
the early 1980s, the role of administrative target was filled by the INS. Legal
activists focused attention not on the content of regulations (and what they
say about government policy), but rather on the inequities created by the
agency’s street-level practices. Even in instances in which there was good rea-
son to suspect that street-level practices were the manifestation of deliberate
policy choices made at the highest levels of government, legal activists cen-
tered their legal attacks on the agency charged with implementing these pol-
icies. This meant assembling an arsenal of documentation regarding agency
practices rather than debating the legality of these policies in the abstract.
The fact-intensive nature of the process was particularly evident in cases that
involved efforts to demonstrate that a pattern of agency behavior existed even
though the pattern was nowhere embodied as policy in a formal regulation.
Not only did this process isolate the agency from broader political structures,
but it also left the agency thoroughly exposed to the massive scope of national
class action lawsuits.

Courtroom exchanges amplified the tendency of immigration class actions

to target the “agency” as an isolated institution characterized by distinct and
recurring pathologies. With the judge and media as audience, trials were an
opportunity for legal activists to conduct a public shaming of the agency. The
records of the Orantes trial, which began in 1985 and lasted for more than
a year, give a sense of this potential of immigration class actions to gener-
ate drama. The testimony of 175 witnesses set the stage for a highly dramatic
exchange that reached a fever pitch just before the court heard the testimony
of Aryeh Neier, the co-chairman of Americas Watch, when priests at a church
two blocks away from the court declared their church a sanctuary in a cere-
mony filmed by television cameras.19
Sympathetic district court judges occasionally echoed and amplified the
dramatic rhetoric developed by plaintiffs’ attorneys. For instance, when
defending interdicted Haitians detained at Guantanamo Bay, legal activists
argued that INS officials were aware that medical care was lacking in deten-
tion facilities but had repeatedly failed to act and had deliberately ignored the
medical advice of military doctors. The district court’s opinion subsequently
took up this framing of events, labeling the agency’s practices “callous and
reprehensible” and concluding that “Defendant INS has repeatedly failed
to act on recommendations and deliberately ignored the medical advice
of U.S. military doctors.”20 The fact-centered nature of class action lawsuits
against agency practices, by emphasizing the impact of policies and their
human consequences, held ample potential for high courtroom drama that
symbolically reinforced the targeting of the agency.
In this combative environment, the opportunity for a truce – through party
initiated settlement – was always an option. Often the parties chose to settle
before the case went to trial, but even in those cases that did reach the trial
stage, there were numerous opportunities for negotiations between the par-
ties to achieve a settlement. The opportunity for settlement meant that the
decision to litigate became a matter for pragmatic calculus that weighed a
variety of considerations: the likelihood of success, the importance of the
rights at stake, the number of people impacted, the availability of alterna-
tives to litigation, the estimated cost of litigation and whether sufficient funds
are available.21 From the time an immigration class action lawsuit was filed,
legal activists were engaged in negotiations with the government at multiple
levels. As litigation proceeded toward setting a trial date, the interest for both
sides in discussing a settlement increased. This did not prevent settlement
negotiations between the parties from being conducted in a tough and highly
adversarial tone. When advocates were aware that the agency wanted to settle,
they often used this knowledge to ask for greater concessions. Negotiations in

some cases went on for years, while the fact-intensive discovery process played
itself out. As one government attorney put it, “All class actions take on a life
of their own after a while. They run their course. Either the plaintiffs will get
something out the case and will want to settle or the agency will get tired and
want to settle. After a while they collapse under their own weight.”22
In short, the process of litigating an immigration class action lawsuit gave
legal intervention an aura of subjectivity. Legal activists approached the set-
tlement process understanding that they had a good chance of prevailing in
the courts, while recognizing that the agency’s lawyers likewise felt they would
prevail and that the truth probably lay somewhere in the middle. Particularly
in constitutional due process or equal protection cases, where debate centered
on differing assessments of the rationality of the administration’s actions, there
was substantial room for legal subjectivity. In these cases, tenacious bargaining
and savvy strategizing sometimes carried the day even in the absence of any
explicitly articulated legal theory.23
Indeed, U.S. immigrant rights legal activists had particularly little time for
abstract questions of legal coherence as they became increasingly immersed
in the world of administrative implementation. Class action litigation pro-
duced settlement agreements and injunctive orders that were lengthy and
detailed and thus subject to interpretation. Unsurprisingly, litigators tended
to give broad readings to their provisions, thereby extending a case’s life for
as long a period as the agency was required to make a showing of compli-
ance. Moreover, in some instances (most notably the ABC settlement), the
agency agreed to give attorneys a lead role in the process of implementing a
judicially supervised remedy. When this was the case, the line between imple-
menting an agreement and appropriating policy-making functions was a thin
one; district court judges were a presence in the background for administra-
tive officials, but it was the attorneys who drove the process of implementa-
tion and who set the bar for agency compliance. The Orantes class action is
another good example of this open-ended monitoring. Litigation had resulted
in an injunction, still in effect, requiring the INS to provide an oral notice of
rights, including the right to counsel and the right to asylum, to all arrested
Salvadoran migrants. Besides the notice of rights, the Orantes injunction
specified a number of additional administrative procedures to ensure access
to counsel: the agency was required to provide an updated list of free legal
services providers in all detention centers, and was prohibited from transfer-
ring unrepresented detainees out of the district where they were arrested for a
period of seven days, and the injunction also prescribed regular access to legal
materials and telephones, and mandated lengthier visiting hours for attorney
consultation.24 Legal activists read the injunction as a judicial confirmation

of the principle that arrest and detention should be subjected to greater legal
supervision, and therefore returned to court multiple times seeking additional
orders and remedies to ensure “real compliance.”25 By providing an opportu-
nity to monitor the agency’s actions, immigration class action lawsuits opened
the door to a cycle of subsequent lawsuits.
Of particular significance for the development of a culture of administrative
antagonism, the process of implementing court orders in immigration class
action lawsuits brought legal activists into roles considered by some officials to
be ministerial functions of the agency. As part of the monitoring provisions set
in place by litigation, private attorneys acquired legal authorization to review
the operating and training instructions issued by agency leaders. For example,
in the Flores settlement, the agency was required to allow attorneys to review
statistics on juvenile detainees as well as all written agreements between the
INS and the various public or private entities contracted to provide the hous-
ing of detained minors. Similarly, in the ABC settlement, advocates were
given a role in revising and augmenting the training modules and hand-
books issued to asylum officers. Unsurprisingly, their contributions aimed to
broaden asylum officers’ instructions regarding the range of circumstances in
which asylum could be granted. The additional materials developed by advo-
cates included examples of situations in which discrimination constituted per-
secution or where recruitment by the military or by guerrillas did so, as well
as training modules on the need for extra sensitivity when eliciting testimony
from individuals who have experienced trauma.26
The ABC settlement went further in this direction than most others, dem-
onstrating the fine line between supervising implementation and acquiring
administrative functions. Immigrant rights litigators borrowed mechanisms of
judicially supervised administrative oversight developed in civil rights Title
VII employment discrimination lawsuits and applied them to the immigra-
tion policy context.27 The goal was structural change of the U.S. asylum sys-
tem to bring it into conformity with rights-expanding international standards
for refugee status determination. To this end, legal activists crafted a settle-
ment that would provide them with administrative data, monitoring systems,
and mechanisms for enforcing compliance. As part of the settlement, attor-
neys were provided by the agency with funds to hire a full-time coordina-
tor to oversee INS compliance. The coordinator devised plans, which the
government funded, to conduct a public information campaign, including
television, radio, and print advertisements, as well as leaflets and posters, to
inform Salvadoran and Guatemalan migrants of the benefits potentially avail-
able under the agreement. The agency was required to provide the settle-
ment coordinator with numerical evidence demonstrating that it was making

progress in providing benefits accorded to class members, which attorneys

then needed to assess.28 Also, as part of the settlement, the parties agreed to
ask the General Accounting Office to conduct two reviews of the asylum pro-
cess, and allowed the plaintiffs to enumerate specific matters on which the
agency would be assessed (Blum 1991, 355). This case shows most clearly how
U.S. immigrant rights litigation involved legal actors in the operational details
(allocation of resources, setting of standards, design of operations, etc.) of the
administrative world. Lawyers organizing lawsuits against the agency acquired
substantial control over agency operations.

Instilling Adversarialism: Juridifying U.S. Administrative

Policy Making on Immigration
What were the administrative responses that developed around legal activ-
ity and legal actors in this immigration policy context? The first thing that
becomes clear is that, starting in the early 1980s, U.S. administrative officials
acquired a keen awareness of immigration class action litigation and those
responsible for organizing it. From the perspective of the INS, class action
lawsuits aimed “to not only establish rights for individual aliens, but also to
stop limit, or fundamentally change the manner in which the Service oper-
ates.”29 As they threatened to impede the agency’s mission, these legal attacks
organized by “activists and public interest groups” called for an aggressive
response that would “preserve the authority” of the INS. Starting in 1981,
important immigration litigation began to be handled by a task force that mar-
shaled the combined forces of the INS General Counsel’s Office, an INS field
attorney, a Department of Justice Civil Division attorney, and an Assistant
U.S. Attorney.30 As INS operations continued to inspire regular class action
challenges, the task force approach was institutionalized in the newly created
Office of Immigration Litigation within the Department of Justice, which in
1983 assumed primary responsibility for coordinating nationwide litigation.
Beyond the organizational reforms inspired by class action settlements and
structural injunctions, these interactions indirectly contributed to reinforcing
a disposition toward defensiveness and recalcitrance within the INS. Because
officials did not want to be seen as pushed around by private lawyers, the
INS acquired a reputation for “blood-and-guts litigation” and for refusing set-
tlement offers (DeBenedictis 1992). INS leadership took the approach that
negotiating with litigators would be tantamount to letting “the [Leonard]
Weinglasses of the world” run the agency.31 Commissioner Alan Nelson ini-
tially resisted issuing any legal instructions for implementing the 1986 IRCA

legalization program because he was irritated that class actions had already
been filed within days of the legislation’s passage. He relented only when the
agency’s attorneys explained that refusing to instruct employees on legally
defensible procedures would make the INS more rather than less vulnerable
in the inevitable litigation onslaught.32 Similarly, faced with repeated chal-
lenges to its asylum procedures, the agency’s response was to retreat into its
bunker and resist proposing final asylum regulations to implement the 1980
Refugee Act (Beyer 1992, 463).
For their part, the agency’s attorneys adopted the position that the INS
needed to strengthen its legal defenses and implement a military discipline
within its legal team if it wanted to fend off litigation attacks. One General
Counsel described his effort to “provide a definite chain of command” and
designate an area of legal responsibility and accountability among the agen-
cy’s lawyers, declaring that “[the] goal is to develop this office into a first-rate
professional law firm that gives our client, the people of this nation, the highest
quality representation.”33 Other agency officials took similar efforts when legal
activism exposed the agency to negative publicity, sending a memorandum
to government attorneys with the instructions that “[i]f the Commissioner
and the General Counsel are likely to read about the case in the newspa-
pers . . . then they should be informed as early in the process as possible.”34
Government attorneys pushed the INS policy-making process toward a greater
concern with litigation defense, and in several instances policy was hastily
changed as part of the agency’s strategy to have courts dismiss ongoing liti-
gation.35 As legal scholar Margaret Taylor points out, the agency’s impulse to
hastily formulate a litigation strategy had the effect of locking officials into
policy positions before they had time to think them through, thereby height-
ening the adversary nature of a policy dispute and giving policy deliberations
a court-centered focus (Taylor 2002, 311). Dialogue in these situations shifted
to what was defensible in court.
As part of this enactment of adversarial legalism, defenders of immigrants
were depicted as conspirators aiming to undermine rational governance.
In May 1987, the agency sent covert observers to attend the discussion of
litigation strategies sponsored by immigrant rights advocates at the National
Lawyers Guild’s annual conference.36 The aim of doing so was to prepare for,
and possibly preempt, challenges to the implementation of the legalization
program, so that the agency would not be as vulnerable as it had been a few
years earlier when faced with class actions on behalf of Haitian asylum seekers.
In the eyes of the agency, groups such as the New York Civil Liberties Union,
the National Lawyers Guild, the Washington Lawyers Committee, and the

American Civil Liberties Union (ACLU) were conspiring in assembling

yet another “coordinated and consolidated attack” designed to undermine
administrative functioning. Agency leaders attributed conspiratorial qualities
to relatively routine lawyering techniques, writing that, “A network of expert
witnesses is being assembled and . . . [advocates will] build a paper trail of
complexity and ingenuity.”37
On occasion, the INS did opt for a more accommodationist response. For
instance, in response to class action litigation targeting the IRCA legaliza-
tion program, the agency liberalized its interpretation of the statute’s “con-
tinuously physically present” requirement for legalization.38 The agency had
already been considering liberalizing its interpretation for several months, but
the class action filing forced its hand. However, accommodationist moves like
this were more the exception than the rule. The agency’s typical response to
class action lawsuits challenging the implementation of the IRCA legalization
program was a stubborn insistence that district courts did not have jurisdiction
to hear these claims. Class action litigation had set up a two-player game in
which the habitual response of the agency to litigation consisted of defensive-
ness and a resort to jurisdictionally based legal arguments.
In 1989, a new INS commissioner who arrived with a more concilia-
tory approach agreed to settle a number of unresolved class action lawsuits.
The agency had been particularly embarrassed by an injunction issued in
the Mendez class action lawsuit, in which the judge inveighed against the
incompetence of asylum officers and required that their training sessions be
video recorded and submitted to the court (Beyer 1992). Moreover, a mas-
sive discovery effort in the ABC class action had turned up a “smoking gun.”
A video-recorded training session showed an INS supervisor making racially
tinged disparaging remarks about Salvadoran asylum seekers. The agency
entered into settlement discussions in the ABC lawsuit with a desire to bring
to a close a fraught decade for the U.S. asylum system and allow its newly
revamped Asylum Office to make a fresh start. In January 1991, only a few
months after new regulations for the Asylum Office were issued, a settlement
agreement in the ABC case committed the government to rehearing the asy-
lum claims of all Salvadoran and Guatemalan applicants (see Figure 2). To
the agency’s chagrin, legal activists celebrated the settlement as a “stunning
victory” (Blum 1991, 355).39
In the immediate aftermath of the ABC settlement, the INS agreed to settle
a number of other immigration-related class action lawsuits. The Flores settle-
ment in 1991 committed the agency to revising its juvenile detention practices.
Later that same year, the INS agreed to a modification of the Orantes injunc-
tion after legal activists had returned to court seeking additional orders and

Figure 2. The ABC v. Thornburgh litigation team celebrates their settlement

agreement outside the U.S. District Court for the Northern District of California in
January 1991. From left: Marc Van der Hout, Lucas Guttentag, Ellen Yaroshefsky,
Carolyn Patty Blum, Debbie Smith, Jim Garrett, and Lori Schechter. In the back-
ground are two Salvadoran men holding a banner for CRECE-CARECEN, the
organizations of Central American refugees and Central American refugee cen-
ters. Photo courtesy of Carolyn Patty Blum.

remedies that would ensure access to counsel in the context of a massive new
INS detention program in South Texas. The following year, after the Supreme
Court rejected its argument that class action challenges to the 1986 IRCA
legalization lacked jurisdiction, the INS agreed to settle the suit brought
against its administration of the agricultural worker legalization program. Also
in 1992, the government formalized its standards for the certification of inter-
preters in immigration courts, thereby bringing closure to the El Rescate law-
suit. The agency’s willingness to settle even extended to a long-standing class
action lawsuit that traced its origins to the 1978 Sbicca factory raid, producing
a settlement in which the INS committed – for a period of thirty months –
to provide a “Miranda-like warning” to all noncitizens taken into custody by
immigration enforcement officers.40
However, the mood soon soured as it became clear that settlements were
perceived by legal activists as victories and that they provided a wedge for
advocates to involve themselves heavily in agency policy determinations.
The INS felt it had made settlements that were “even-handed and fair to

everyone,” and the General Counsel at the time expressed irritation with
immigrant rights advocates who, “believe it is part of their job to [announce]
they ‘won’ in the settlement” (DeBenedictis 1992). Another General Counsel
during this period argued that gestures at cooperativeness simply left internal
procedures exposed to direction by outsiders with little concern for bureau-
cracy’s organizational maintenance imperatives, writing that, “Ambitious
interlocutory orders entered in the course of class action proceedings . . . have
brought a halt to large chunks of INS enforcement, even though, in the end,
perhaps only a minority of the class would wind up proving that they had
actually been harmed by the challenged practice or were among those enti-
tled to the ultimate relief in the case” (Martin 2002, 321). In particular, class
action litigation concerning the timeliness of work permits for asylum seek-
ers, while crucial in propelling reforms within the asylum system, placed the
newly established Asylum Office in a “hole that got deeper and deeper” and
from which it could not extricate itself (Beyer 2000). The implementation of
the ABC settlement was overwhelming for the agency, but it paled in com-
parison to the obligations with which they were saddled as a result of class
actions challenging INS policies in the legalization program enacted in 1986.
These lawsuits, which the agency saw as encouraging spurious filings, cre-
ated temporary immigration benefits for “an indeterminate population” and
forced the agency to direct resources to receiving and processing applications
(Martin 2002, 321).
In other words, although there have been important differences in how
administrative authorities in Republican and Democratic administrations
interact with practitioners of immigration reform litigation, a number of com-
mon themes emerge. One key element in administrative litigation narratives
is the dislocating effects of immigration centered legal activism. The ABC
settlement produced a “tidal wave” that brought asylum adjudication to “the
verge of complete collapse” (Beyer 1992, 483). As more than one government
official stated in an interview, class actions may lead to important changes, but
they are also responsible for “gumming up the whole works.” Another central
theme is the agentive powers, and hubris, associated with some class action
litigators. When asked about the ways that class actions had propelled regula-
tory developments during the 1980s and 1990s, administrators acknowledged
that some of those cases had propelled change but expressed sarcasm about
the sizable egos of certain litigators.41 In the words of one longtime govern-
ment attorney, these veteran immigrant rights litigators are “people who have
made a living out of litigating against the government; when an agency acts,
you can always find someone who said a dumb thing with 10,000 employ-
ees and sometimes it’s easier than finding class members.”42 According to this

view, the legal system gives individual practitioners of immigrant rights legal
activism the tools to take advantage of the government.
In the mid-1990s, this administrative narrative of an agency beleaguered by
an onslaught of lawyer-driven litigation made its way into the legislative poli-
tics of immigration. INS officials, acting directly or through the Department
of Justice, actively encouraged legislators to address “the problem with judi-
cial review as it had come to be exercised” (Martin 2002, 322). This was not
the first time that the agency had sought to foreclose class action lawsuits. In
1981, the Reagan Justice Department had been instrumental in drafting the
“Fair and Expeditious Appeal, Asylum, and Exclusion Act,” which would have
precluded class actions by tying judicial review to final orders of removal and
thus prevented lawyers from “subverting immigration processing.”43 Examples
of litigation brought on behalf of Haitian asylum seekers were repeatedly cited
in the analysis accompanying the legislation.44 To the agency’s disappoint-
ment, Congress failed to act on the bill. However, in 1996 the political context
in Congress was different. Legislators were primed to comprehend litigation
against the INS through the now well-established and politically popular cri-
tique of liberal judicial activism (Tushnet 1997). Moreover, this was a period
in which immigration debates were politically linked to legislative discussions
of crime, terrorism, and “welfare fraud” (Gimpel and Edwards 1999, 212–16).
Legislators were thus more receptive to INS complaints that class action law-
suits threatened to paralyze immigration enforcement efforts.
The multiple laws passed in 1996 demonstrate the extent to which legality
in immigration had moved from an ancillary theme to a major debate in the
politics of immigration. The Anti-Terrorism and Effective Death Penalty Act
(AEDPA) and the IIRIRA are best known for expanding the category of crimes
that carry severe consequences for noncitizens seeking asylum, legal perma-
nent resident status, citizenship, or relief from removal. In barring judicial
review altogether for most aliens with criminal convictions and blocking judi-
cial review of decisions on most forms of discretionary relief, Congress went
far beyond the limitations on certain types of lawsuits with which the agency
was most concerned (Martin 2002, 322). However, in addition to punishing
migrants with criminal records, IIRIRA also sought to punish their lawyers by
severely limiting courts from granting classwide injunctive relief in legal chal-
lenges to removal-related operations.
INS officials saw the new statutory restrictions on courts’ immigration juris-
diction as a congressional acknowledgment and affirmation of the agency’s
previously subordinated position. Having been made the target of class action
lawsuits for many years, they now compensated for what they saw as legis-
lative liberation from a position of subservience to lawyers. Less than three

weeks after the passage of IIRIRA, government attorneys sought the dismissal
of four of the five unresolved class actions challenging the implementation
of the legalization program.45 In their enthusiasm, lawyers for the INS also
asked a court hearing a class action lawsuit challenging the agency’s docu-
ment fraud policy to reconsider its decision that the immigration service has
misled people into giving up their right to hearings, a case not directly related
to the deportation process and thus not evidently subject to the new statute’s
restrictions on class actions. As David Martin, the INS General Counsel put
it, the new laws meant that court injunctions would no longer be “breathing
down our necks” and the agency could put its past problems behind it.46 In the
weeks following the passage of IIRIRA, attorneys in the Office of Immigration
Litigation joked that they would be out of work because the statute had placed
so many restrictions on federal court review of immigration matters.47

Immigrant Rights Legal Activism after (Attempted)

Jurisdiction Stripping
An unexpected effect of this move to restrict judicial involvement in immi-
gration matters, however, was that it galvanized U.S. liberals and energized
their support for rights-based activism on behalf of noncitizens. One prom-
inent commentator compared IIRIRA’s “attack on access to the courts” to
Franklin Roosevelt’s court-packing plan.48 Liberals described the statute’s
jurisdiction-stripping provisions as “mean and petty” and criticized the
Clinton administration for failing to address the issue and the danger it posed
as a precedent.49 Restrictions on judicial review over immigration matters, and
the stripping of jurisdiction over class actions in particular, were located by
legal commentators within a familiar conservative strategy of diverting attention
from substantive policy debate by attacking the courts (Volpp 2000, 466n. 16).
In becoming the victim of attack, immigrant rights legal activism reinforced its
link to the cherished liberal causes of school busing, abortion, prayer in schools,
and death penalty defense. Legal activists could point to the injustice of restric-
tions on review, arguing that, after losing a series of class action challenges, “the
government didn’t just move the goal posts: it wanted to tear them down.”50
As things turned out, all was not in fact lost. Indeed, if the goal of those
who wrote the jurisdiction-stripping provisions had been to close off judicial
review of immigration matters and put immigrant rights legal activists out
of work, then subsequent developments have demonstrated the difficulty of
doing so. First of all, the 1996 legislation did not prevent legal activists from
monitoring the enforcement of cases that had already generated permanent
injunctions or settlement agreements. National legal organizations, in the

years since 1996, have continued to work with local groups across the country
to monitor enforcement of the permanent injunctions or settlement agree-
ments obtained in the ABC, Perez-Funez, Orantes-Hernandez, Flores, El
Rescate, and Mendez cases. One aspect of this monitoring includes the initia-
tion of remedial lawsuits to address problems related to class members’ rights.
Although the judge who originally heard the ABC case is no longer available
to adjudicate them, actions in federal district court to enforce the settlement
continue to be brought using a standard complaint form that has been devel-
oped for this purpose.51 Compliance with the Orantes injunction, which courts
have thus far refused to remove, likewise continues to weigh on the minds of
administrative officials. Indeed, the perceived burden of continued judicial
supervision under the Orantes injunction was part of the motivation for the
Department of Homeland Security’s unsuccessful efforts in 2006 and 2007 to
have Congress further tighten the rules governing immigration-related class
certifications (Family 2008, 117). Consideration of these existing class action
remedies featured prominently in legal activists' recent formulations of strate-
gies to defend migrants fleeing new forms of violence in Central America.52
Although the 1996 legislation did not put them out of work, there was a
sense among legal activists in the immediate aftermath of its enactment that
a concerted campaign was needed to defend the jurisdiction of courts as a
matter of principle. According to the government’s interpretation of AEDPA
and IIRIRA at the time they were enacted, these statutes stripped the courts
of jurisdiction to review agency determinations concerning both removabil-
ity and eligibility for discretionary relief in individual cases. The fear among
legal activists was that this would effectively preclude any judicial review of
decisions made by the Board of Immigration Appeals (BIA) and thus leave
the executive branch’s interpretation of the Immigration and Nationality Act
without external oversight. Although this had not been the main focus of prior
legal activist campaigns, it seemed important to defend judicial review on
principle, lest the 1996 statutes undermine the entire mechanism for bringing
immigration matters to the courts. Moreover, the 1996 statutes had restricted
the types of immigration-related agency practices outside of a final order of
removal that could become the subject of independent action in district courts.
This jurisdiction-stripping provision cut even closer to policy-related litigation
efforts, threatening to undermine challenges to a range of agency policies and
practices that had previously been the focus of legal activist campaigns.
Rather than attempting to address these jurisdiction-stripping provisions
through class action lawsuits, which they feared might get bogged down in a
procedural morass, legal activists experimented with a new model of systemic
challenge. Led by the ACLU Immigrants’ Rights Project, they developed a

campaign to bring the issue of judicial review in immigration matters before

the Supreme Court through the strategic litigation of individual cases. The
campaign involved communicating with the immigration bar so that suitable
test cases could be identified across the federal judicial circuits. It also entailed
collaboration among activists and legal academics to develop arguments that
would resonate with the Supreme Court at the level of constitutional princi-
ples. In addition, a publicity campaign was organized to generate momentum
to encourage the Supreme Court to hear the issue. This test-case strategy was
new terrain for immigrant rights legal activism, taking it out of the familiar
realm of fact-intensive class action suits. Moreover, it raised the risk that the
Supreme Court would deepen the scope of its plenary power jurisprudence by
upholding the government’s interpretation of the statutes.
After five years of coordinated efforts, however, legal activists could claim
victory in their struggle to preserve the principle of judicial review. By a mar-
gin of five to four, the Supreme Court in its 2001 decision in INS v. St. Cyr
preserved judicial recourse for individual noncitizens facing adverse decisions
from the BIA. Without overturning the relevant statutory provisions, the deci-
sion interpreted them as not depriving federal district courts of jurisdiction to
review habeas corpus petitions challenging decisions of the BIA.53 The gov-
ernment’s maximalist interpretation of the 1996 laws and its rush to dismiss
all pending cases contributed to undermining its credibility, as it provided a
number of sympathetic test cases and created the impression that the BIA’s
decisions were politically influenced (Taylor 2002). In a second decision
issued the same year, Zadvydas v. Davis, the Supreme Court affirmed that the
1996 immigration reform statute did not preclude federal courts from review-
ing substantial constitutional challenges to agency decisions and actions not
related to a final order of removal.54 Using a test case strategy, these litigation
campaigns had isolated the 1996 judicial review provisions as extremist, and
the Supreme Court in the summer of 2001 was sufficiently moved by this
framing of the facts and issues to assert its willingness to intervene in immigra-
tion matters. Immigrant defenders and government attorneys alike were put
on notice that the Court might be willing to move away from its traditional
deference to administrative determinations in this area. As one government
attorney put it, “Courts got it into their head that something was broken with
immigration and adjudication. It used to be that we never lost a Supreme
Court case, but now they are less deferential.”55 From the perspective of the
agency, the decisions in St. Cyr and Zadvydas were an additional source of vul-
nerability at a moment when a Justice Department policy aiming to “stream-
line” procedures for immigration status determination had the unanticipated
consequence of pushing unprecedented numbers of individual immigration

appeals into the federal court system.56 Although the 2002–3 streamlining pro-
gram was relatively short-lived, its long-term and indirect effects continue to
be felt. For instance, as the influx of individual appeals into the courts has
made splits between the federal circuits more common, litigators with no link
to existing advocacy networks have seized on immigration cases as a vehicle
for securing a reputationally enhancing audience before the U.S. Supreme
Court, a development not entirely welcomed by immigrant rights advocates
(Morawetz 2011). In sum, legal activists’ strategy of using test cases to chal-
lenge jurisdiction stripping has been one of several factors contributing to a
broader acceleration of interactions between courts, administrators, and liti-
gants around immigration matters.
However one assesses the results of this juridification of immigration policy
administration, the apparent potency of a test case strategy in the immigration
context does not mean that legal activists have abandoned familiar litigation
models. The 1996 jurisdiction-stripping provisions made it more difficult to
litigate class actions but not impossible. Moreover, by 2005, when Congress
through the REAL ID Act modified some of IIRIRA’s provisions and returned
oversight of BIA decisions to the circuit courts, the struggle over jurisdiction
stripping appeared to have subsided.57 Legal activists could therefore return
to focusing on the substance of agency practices, and they wasted no time
in doing so. For instance, in the fall of 2005, Peter Schey’s recently renamed
organization, the Center for Human Rights and Constitutional Law, filed
a class action lawsuit against the newly created Department of Homeland
Security, challenging its failure to implement the U visa provisions of the
Victims of Trafficking and Violence Protection Act of 2000, thereby effec-
tively denying immigrant crime victims a path to legal status.58 In recent years,
the ACLU Immigrants’ Rights Project likewise has initiated a series of class
action lawsuits challenging various aspects of the agency’s implementation of
legislative provisions mandating increased immigrant detention.59 As a result
of these lawsuits, district court judges have issued injunctive relief requiring
the agency to provide a bond hearing to detainees confined for six months or
longer and to provide legal representation to mentally disabled individuals in
all aspects of their removal and detention proceedings.
While no immigrant rights class action lawsuit has yet been organized
to challenge the Obama administration’s use of prosecutorial discretion to
defer deportation, sympathetic federal district court judges have in the past
showed a willingness to allow lawsuits to go forward against the prosecutorial
discretion programs of previous administrations.60 As prosecutorial discretion
becomes a growing feature of immigration policy making, advocates wel-
come executive actions to defer deportation but contest assertions that agency

implementation of these actions is entirely immunized from federal court

review (Wadhia 2013). From the perspective of the government attorneys who
would be on the other side of a class action lawsuit challenging the imple-
mentation of these executive actions, the possibility that legal activists “will
find a way to get prosecutorial discretion into federal court” does not seem
far-fetched even as judicial review in this area remains especially deferential.61
As for legislative jurisdiction stripping, certainly the 1996 statutory changes
have prevented class actions from challenging issues related to review of indi-
vidual removal proceedings. Yet current case law continues to allow indepen-
dent district court action through class action lawsuits so long as litigators can
couch the alleged harm as raising a separate type of issue. In the view of gov-
ernment attorneys, the class action mechanism continues to give immigrant
rights legal activists the tools to take advantage of the government. As one
veteran government attorney put it, “You just go to court and file a complaint
and say these regulations suck and I’ll tell you why once I get discovery time,
and the system permits that.”62 Class action challenges to immigration agency
policies and practices thus remain a major feature of U.S. legal landscape.
At the same time, immigration-related class action litigation has recently
been increasingly utilized in challenges to immigration policies enacted by the
states. In the context of federal gridlock on immigration reform and proactive
efforts by groups favoring immigration restrictionism, state initiatives related to
immigration control multiplied in the first decade of the twenty-first century.
Many of these cases challenging state and local provisions are brought as class
actions in federal court. For example, the ACLU and the National Immigration
Law Center collaborated with civil rights organizations to file a class action
lawsuit challenging a provision of Arizona’s State Bill 1070 requiring police
to demand immigration papers from those suspected of unauthorized entry.63
Similarly, class action lawsuits have targeted state-level policies that refuse pub-
lic benefits to beneficiaries of the executive branch’s “deferred deportation”
programs.64 While the move to focus on state lawmaking is an important devel-
opment that has shifted the dynamics of litigation, it can also be seen as the
extension of a familiar model of fact-intensive class action litigation.
In sum, it seems clear that the statutory changes enacted in 1996 have not
caused any wholesale abandonment of the immigration class action lawsuit.
Attorney Lucas Guttentag, who served as longtime national director of the
ACLU Immigrants’ Rights Project, points out that class action cases were
never the only available strategy for legal activism and that, in at least one area,
organized litigation challenging the constitutionality of an immigration stat-
ute had been attempted even prior to the 1996 reforms.65 However, he agrees
that class action cases continue to be a staple of immigrant rights litigation,

even as the St. Cyr case demonstrates the viability of alternative models. In the
assessment of veteran litigator Peter Schey, class action work continues to be
the most substantial way to impact nationwide policies, and legislative restric-
tions on jurisdiction have not prevented his litigation model from remaining
“pretty much the same since 1980.”66 Legal activists have been able to cir-
cumvent many, but not all, of the 1996 jurisdiction-stripping provisions that
targeted their activities, according to Dan Kesselbrenner, who has directed
the National Lawyers Guild’s National Immigration Project for more than
two decades.67 It is now harder to challenge some types of agency policies but
there are still plenty of harms to litigate.

Conclusion
In January 2004, the U.S. District Court for the Eastern District of California
approved a final settlement agreement in the class action lawsuit of Catholic
Social Services v. Ridge. Judge Lawrence K. Karlton’s order approving the set-
tlement includes the following language:
The Court begins by noting that this matter has been vigorously litigated for
over 17 years. There is no suggestion of collusion between the negotiating
parties to the detriment of absent class members. The parties have notified
the class of their settlement in accordance with the Court’s order. Though
the precise size of the certified class is unknown, it undoubtedly comprises
thousands of class members.68

After almost two decades of litigation, the U.S. Department of Justice had set-
tled a nationwide class action challenging INS policies implementing a criteria
of eligibility – the “continuously residence” requirement – of the 1986 IRCA
legalization program. The total attorneys’ fees generated by this agreement,
which allowed individuals who were excluded from the IRCA legalization to
apply for “late amnesty,” were in excess of five million dollars.69 As part of the
settlement, U.S. Citizenship and Immigration Services, an administrative suc-
cessor to the INS, agreed to adjudicate applications for permanent resident
status filed by individuals who could show they had been prevented from
benefitting from the legalization program due to the INS’s restrictive interpre-
tation of the “continuous residence” provision of the statute. Monitoring of the
government’s enforcement of the settlement by plaintiffs’ attorneys resulted in
a subsequent court order, in May 2010, instructing the government to reopen
certain applications denied for abandonment. Through cases such as this one,
the immigration class action lawsuit has provided an instrument for bringing
administrative officials and immigrant rights legal activists into regular contact.

As the discussion in this chapter has shown, the organizing logic of these
contacts is heavily fact centered. Immigration class action lawsuits continue
to involve massive evidentiary efforts by the parties, who are thus submerged
in details of the street-level operations of immigration policy administration.
Injunctive orders and settlement agreements maintain this practical orien-
tation by spelling out specific procedures and forms that the government is
required to develop and by giving plaintiffs’ attorneys a role in monitoring and
implementation. At the same time that the legal process concentrates attention
on empirical detail, the role of abstract legal principles is relatively diluted
in this form of immigration-centered legal intervention. As one government
attorney observed, with a touch of cynicism, “The only judge of fairness is that
everyone thinks it is fair: if you have a system that looks and seems fair, then all
is well.”70 Particularly in the context of settlement agreements, assessment of
fairness and rationality is highly subjective and case outcomes often depend on
the level of resources devoted to evidence gathering and the extent of the par-
ties’ litigation fatigue. Judicial jurisdiction, rather than any principled program
of substantive law, has emerged as the primary subject of partisanship.
In the decades since 1996, coordinated litigation that previously centered
almost exclusively on class action cases brought before federal district courts
has become more diversified. Test-case litigation has become more salient for
national legal organizations, as the Supreme Court has signaled an increased
willingness to examine agency interpretations of immigration statutes. In addi-
tion, as state legislatures have become involved in immigration policy making,
this has presented a new terrain for legal activism on behalf of immigrants.
At the same time, because of the jurisdiction-stripping provisions of the 1996
legislation, it has become more difficult to challenge some aspects of federal
immigration policy making through class action litigation.
Nevertheless, the familiar and well-honed class action lawsuit continues
to be fundamental to the enactment of U.S. immigrant rights legal activ-
ism. It is this modality of challenging immigration policy making that elicits
expressions of resignation from U.S. government officials who face ongoing
class action efforts. At the same time, with the prospect of another legislated
legalization program around the corner, guaranteeing the power of courts to
review actual practices of immigration officials implementing this program
has become a rallying cause for immigrant rights legal activists and their sup-
porters.71 Particularly when contrasted with the avenues developed in the civil
law system for contesting immigration policy in court, the continued availabil-
ity and centrality of class action litigation becomes apparent and is perhaps
the most striking difference between the two systems.

Performing Legal Activism before the Conseil d’Etat

The massive challenges to informal administrative policies, so central to immi-

grant rights legal activism in the United States, never became a feature of liti-
gation in France. In fact, American legal activists would feel quite disoriented
in the French legal system. Not only is the class action mechanism absent
from French public law, but France’s legal system also offers few tools for
effectively enjoining administrative practices.1 An additional limitation is that
French judges can only review administrative “decisions,” a term precisely
defined in their jurisprudence, and are usually prohibited from reviewing gen-
eral administrative practices. Moreover, even if an effective class action mech-
anism were to become formally available in France, it seems unlikely that
French legal activists would embrace the pragmatic approach of American
class action litigation. While opinions are mixed, there is hesitation about the
power that class actions confer upon lawyers; several of my French interviewees
expressed the concern that bringing class actions to France would have nega-
tive repercussions because lawyers might take advantage of their clients in
their efforts to win cases.2
While their American counterparts might wonder how it is possible to use
courts to shape immigration policy in such a system, French legal activists do
have a particularly direct procedural avenue for policy-oriented litigation. The
French system of administrative law allows abstract challenges to provisions
of decrees and ministerial circulars that are claimed to constitute an “excess
of power” on the grounds that they are taken in violation of higher order
rules and basic principles of legality. The Conseil d’Etat, as France’s highest
administrative jurisdiction, is authorized to hear in first instance these abstract
recours pour excès de pouvoir (appeal on the grounds of excessive power).
Although immigrant rights legal activism in France is not limited to
abstract litigation before the Conseil d’Etat, the recours pour excès de pouvoir
is undoubtedly the form of activity that has become the most routinized

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128 Contesting Immigration Policy in Court

component of legal strategy. It is the repeated skilled utilization of this legal

instrument that has established the Groupe d’Information et de Soutien
des Immigrés (GISTI) as a “habitual appellant” before the Conseil d’Etat
(Genevois 2009, 68). For French legal activists and their judicial interlocutors
alike, the process of bringing abstract challenges to immigration policies has
set the stage for ongoing and quasi-ritualized interactions. I therefore return to
the analytical approach applied in Chapter 5, bracketing the substantive rules
and outcomes produced in these decisions in order to explore the performative
dimension of court-centered interactions that extend across individual cases.
My analysis suggests that regularized recourse to abstract review petitions
has fueled a juridification of governance, comparable to the transformations
observed by scholars of European politics in the realm of constitutional review.
As Alec Stone Sweet and others have demonstrated, the process of engaging in
repeated dialogues with assertive constitutional courts makes lawmakers more
likely to express party programs and social visions in terms of constitutional
norms (Stone 1989, Kenney, Reisinger, and Reitz 1999, Stone Sweet 2000).
When they are brought into dialogue with courts, legislative policy makers
come to enact politics more juridically, understanding their role in terms of a
responsibility to protect rights and to engage in balancing of conflicting rights
(Stone 1989, 31). To the extent that their exposure to routinized administra-
tive review has brought immigration agency officials closer to the standards
of Weberian legal formalism, we might conceptualize their dialogue with the
Conseil d’Etat as propelling a parallel form of juridification in the administra-
tive policy sphere.
However, it is important to point out that this juridification of immigration
governance through administrative review operates in a different tenor than
the process that has been observed in studies of constitutionally based dia-
logues. As I show, the juridified mode of administrative governance propelled
by the Conseil d’Etat’s increasingly regularized engagement with immigration
issues has not been synonymous with a heightened concern for immigrant
rights on the part of either judges or administrators. Rather than rights, the
most apparent administrative response to routinized judicial interventions is a
heightened attentiveness on the part of immigration officials to the vocabulary
and protocols of formal legality.3
In what follows, I first map out the formal rules and structures that orga-
nize recours pour excès de pouvoir and then document the austere and highly
stylized modality that has developed around proceedings challenging immi-
gration policies. As I show, it is a modality of litigation in which both legal
activists and administrators are positioned as supplicants before the Conseil
d’Etat, and in which the relational authority of the Conseil d’Etat, as oracle of

the law, is consequently enhanced. Through qualitative analysis of official min-

isterial archives, media coverage of administrative responses to court rulings,
and interviews with administrative officials, I explore the traces left on France’s
administrative world by this modality of immigration-centered legal activism.
The final sections of the chapter explore how, in recent years, the trend toward
increased Franco-European interactions has introduced new elements into the
performance of bringing immigration issues to the oracle of the law.

The Setting of Interaction

For French immigrant rights legal activists, the recours pour excès de pouvoir
before the Conseil d’Etat has offered a direct means of challenging national
immigration policy making. The discussion in Chapter 3 introduced some
elements of the Conseil d’Etat’s approach to administrative legality, particu-
larly the concept of Etat de droit. However, to better understand the particular
organizational setting in which routinized immigrant rights legal activism has
developed, we need to briefly map out how these proceedings are organized.
Distinct institutional and conceptual features of the French system of admin-
istrative justice differentiate it from judicial review in the Anglo-American
tradition. I focus in particular on how this system operates in the context of
abstract review of regulatory texts, because this is the instrument that had been
used most extensively by immigrant rights legal activists. Unlike ordinary legal
proceedings, which are heard by administrative tribunals of first instance, peti-
tions challenging the abstract legality of ministerial decrees and circulars are
adjudicated directly by the Conseil d’Etat.
In France’s civil law tradition, the Conseil d’Etat is a mixed administra-
tive-legal authority that technically is located within the executive branch.
It is staffed by a corps of elite civil servants, experts in administration as well
as in law, who are selected through an elaborate system of examinations
and trained as specialists in principles of proper administrative behavior
(Stirn 1991). Originally created by Napoleon, the Conseil d’Etat counsels
the government on the drafting of laws and regulations through a formal
advisory process (Ducamin 1981). Its members are also routinely seconded
to advisory positions within the administration. These advisory functions of
the Conseil d’Etat are combined with an adjudicatory authority over all gov-
ernment acts. The Section du Contentieux serves as France’s highest admin-
istrative jurisdiction, reviewing questions of law raised on appeal from lower
administrative tribunals and courts of appeal and also hearing abstract chal-
lenges to administrative regulations in first instance (Massot, Fouquet, and
Stahl 2001).

Although it cannot review the legality of legislation, the Conseil d’Etat is

authorized to review all applications of the law, from ministerial decrees to
decisions of street-level bureaucrats. Proceedings before the Conseil d’Etat are
initiated by a recours, or petition for review. If the petition passes an initial
screening, the Section du Contentieux creates a dossier for the case and then
undertakes a long process of evidence gathering and legal analysis that occurs
largely out of public view (Brown and Bell 1998, 89–125). Specially assigned
reporting judges, rather than the parties, play the dominant role in researching
the relevant facts and law, and a brief public audience, at which multiple cases
are handled in sequence, offers the only glimpse of how this process of investi-
gation has unfolded. The process of legal analysis likewise operates in a black
box. Decisions of the Conseil d’Etat are notable for their austere and formulaic
aesthetics, typically taking the form of a single-sentence syllogism that instructs
the administration on the legality of its actions but that offers no explanation of
the interpretative process by which a given conclusion was reached. Decisions
generally do not refer to prior judgments, nor do they explicitly lay out binding
rules of general application. Jurisprudential frameworks are instead developed
in the conclusions drafted by the court’s internal judicial advisor, the commis-
saire du gouvernement,4 and in the postdecision commentary of legal scholars.
For those seeking to bring immigration issues to the attention of courts in
France, petitioning the Conseil d’Etat holds great symbolic importance, but it
is also a somewhat daunting task. One of my interviewees, Gérard Sadik, who
works in a position of leadership within the Cimade, told me that he had for
years been too intimidated to try to litigate before the Conseil d’Etat, seeing
its adjudication as an inscrutable process in which “you cannot tell when you
will win and when you won’t.”5 Nevertheless, it is this unique jurisdiction,
without any parallel in the American legal system, that has provided the pri-
mary action-setting for immigrant rights legal activism in France. Through
the jurisdictional avenue of the recours pour excès de pouvoir, the Conseil
d’Etat issued its celebrated 1978 GISTI decision that, as we saw in Chapter 3,
annulled a restrictionist family reunification decree at a critical juncture in
French immigration politics. This lesson in the power of the recours pour excès
de pouvoir was not lost on French legal activists, who came to view action from
the Conseil d’Etat as “one of the few means of breaking into the imperme-
able fortress of administrative governance.”6 Immigrant rights legal activists
in France have become adept at organizing abstract challenges before the
Conseil d’Etat to contest administrative policies. At a conference organized to
mark the thirtieth anniversary of the 1978 GISTI decision, GISTI’s members
counted almost one hundred petitions in first instance that had been brought
to the Conseil d’Etat over this period (Lochak 2009, 44). A few of these cases

concerned government decisions in which the organization’s interests were

narrowly at stake, such as refusals to communicate administrative documents
or to grant access to airport detention centers. However, the vast majority of
the cases concerned abstract challenges, either to government decrees or to
ministerial circulars and ordinances.
As discussed in Chapter 4, French immigrant defenders are most comfortable
disputing policies at the level of fundamental principles, an aim to which the
recours pour excès de pouvoir is well suited. Among the basic principles regularly
invoked by legal activists are the right to social protection, the right to asylum,
and the right for migrants settled in France to work and to enjoy a family life.
Because the Conseil d’Etat has no power to review legislation for constitution-
ality, legal activists in France have had no way of asking it to strike down any of
the more than one dozen immigration statutes enacted by France’s legislature
since 1980.7 Yet they can use the recours pour excès de pouvoir to challenge the
legality of the numerous decrees, circulars, and ordinances through which this
controversial regime of immigration policy making has been administratively
implemented. The landmark 1978 GISTI decision serves as a symbolic touch-
stone and exemplar of what this style of adjudication might achieve.
With these considerations in mind, we can examine in closer detail the
concrete practices involved in bringing a recours pour excès de pouvoir before
the Conseil d’Etat to challenge administrative immigration policies. In the
sections that follow, I flesh out the performative and discursive roles assembled
during three different stages of proceedings before the Conseil d’Etat: (1) com-
mencement of proceedings, (2) instruction, and (3) judgment. As I explain,
these proceedings establish a dynamic in which the legal activists are cast in
a supporting role and the administrators whose policies are contested appear
hardly at all. The role of the parties is thus relatively minimal and it is the
Conseil d’Etat that plays the dominant part.

Soliciting a Response from the Oracle

In the United States, one of the most striking features of immigration-centered
legal activism over the past forty years has been its capacity to amplify con-
flict between immigrant rights litigators and immigration administrators. In
France, by contrast, the adjudication of legal challenges to immigration poli-
cies has had the opposite effect. The formalistic, formulaic, and inquisitorial
practices characterizing the Conseil d’Etat’s system of administrative review
have effectively prevented adversarial legalism and its associated features from
making an entrance onto the French political stage. Rather than performing
the parts of attacker and defender, advocates and administrators have been

cast in more passive roles. In short, the adversarial relationships cultivated by

the pattern of organized immigration litigation in the United States have not
materialized in France.
This is not to say that French legal activists, like their U.S. counterparts,
did not seek to use law to constrain the restrictionist tendencies of immigra-
tion policy making. Indeed, immigrant advocates in France continue to view
action from the Conseil d’Etat as one of the few means of breaking into the
“impermeable fortress” of administrative governance.8 In their statements to
the media and to the general public, legal activists are openly critical of official
immigration policies and repeatedly express their solidarity with extreme-left
political mobilizations.
Yet, while advocates may talk of storming the citadel of administration, this
adversarial tone has been almost entirely absent from the aesthetics of petition-
ing the Conseil d’Etat. Legal activists are keenly aware that their petitions to
the Conseil d’Etat must conform to the formal language and condensed style
of argumentation characteristic of French administrative law. As one seasoned
practitioner of immigration policy litigation put it, “If you want the Conseil
d’Etat to exercise control, the key is to go slowly. Above all, one should not be
disagreeable.”9 Another advocate recalled that younger members of the immi-
grant rights practice community are sometimes frustrated when those with
more litigation experience insist on dropping audacious arguments from their
petitions on the grounds that they would not be received well by the Conseil
d’Etat.10 As a rule, legal activists’ petitions have avoided combative language
and have maintained a moderate tone.
We can see this approach in GISTI’s petitions to the Conseil d’Etat. To
take a concrete example, in February 1985, GISTI submitted a series of peti-
tions asking the Conseil d’Etat to annul the decrees and circulars implement-
ing the immigration law of July 17, 1984. As discussed in Chapter 3, this law
had significantly altered the regime for immigrant admissions and residence
in France and was initially considered by immigrant supporters as a major
victory. However, by the fall of 1984, the Mitterrand government was giving
worrying indications of its wavering commitment to the spirit of the law: a cir-
cular from the Ministry of Social Affairs had made “proof of proper insertion”
a condition for immigrant family reunification. In a letter to the government
sent for publication in Le Monde newspaper, GISTI denounced the “Le Pen
effect,” which was producing this governmental “volte-face” to the detriment
of immigrants.11 When the government did eventually enact a series of regula-
tions implementing the new legislation, these regulations made access to per-
manent residence conditional on family members having entered through the
official reunification process. For GISTI, these actions called into question

the government’s commitment to the “fundamental and inalienable right

to immigrant family reunification.” Using the recours pour excès de pouvoir
mechanism, GISTI’s petitions to the Conseil d’Etat challenged the legality of
these administrative policies.
The first thing to notice is that, while GISTI’s public responses to the gov-
ernment’s immigration policy making were expressed in a strident and denun-
ciatory tone, this combativeness is nowhere to be seen in the petitions that
presented their arguments to the Conseil d’Etat. The text of each of the peti-
tions begins with precisely the same deferential and solicitous formulation:
The association here before you defers to the censure of the Conseil d’Etat
[the pertinent decree or circular] in all the headings which cause it harm.
It asks to be notified of the public hearing at which the Conseil d’Etat will
examine this complaint.12

The remaining text of each of the two- through five-page petitions includes a
brief discussion of formal and substantive legal avenues by which the pertinent
regulation might be found illegal. The substantive arguments are gestural,
encompassed in a few paragraphs. They explain why, according to GISTI, the
regulations violate the spirit of the new immigration legislation.
The brevity and deferential tone illustrated by this example are regular fea-
tures of legal activist petitions and are not coincidental. Jurists have learned
to keep their submissions short. As one advocate explained, “ten pages with
ten different points is too long since the Conseil d’Etat just needs one good
moyen [legal avenue] and they will consider the case.”13 Overall, I did not
come across any written submissions by the parties to immigrant rights litiga-
tion that exceeded a dozen pages, and most were five to six pages in length.
This form of bringing immigration to the law is notable not only for its def-
erential tone but also for the way in which it has focused debate at the level of
abstract principles as opposed to concrete administrative behavior. In a recours
pour excès de pouvoir challenging the legality of a regulatory text immediately
after its enactment and before it has been applied, evidentiary submissions
on the part of advocates are minimal if not absent altogether. The document
“stockpiling” characteristic of the class action litigation favored by U.S. immi-
grant rights advocates and wielded as a weapon against administrators has not
been a feature of French legal activism. Instead of discovering patterns and
practices of street-level administrative illegality, French advocates in their sub-
missions to the Conseil d’Etat have invoked a substantive vision of Republican
social incorporation. In line with the hierarchical ontology of French legal
formalism, the aim has been to demonstrate that the regulatory texts at issue
were not logically in keeping with these basic principles.

Rather than being passionately accusatory in tone, petitions to the Conseil

d’Etat are more likely to display a studied courtesy as they politely suggest ways
in which administrative policies “misrecognize” fundamental legal principles,
such as security of residence and social inclusion. For example, when chal-
lenging regulatory texts in the mid-1980s establishing procedures for family
reunification for resident foreign workers, GISTI opened its petition to the
Conseil d’Etat with an invocation of what it identified as essential principles
for the politics of immigration: “guaranteeing foreigners their fundamental
rights against the risks of arbitrary practices, and improving the juridical and
material situation of foreigners already installed in France or authorized to
reside there.”14 The petition requested the Conseil d’Etat to undertake a care-
ful reading of existing law, arguing that doing so would reveal a principle of
social inclusion underlying relevant legislative authority and contained in the
spirit of Etat de droit. It was this principle that, according to GISTI, prevented
the government from placing conditions on family reunification.
These fundamental principles of security of residence and social inclusion
have also been read by advocates into the legal regime governing asylum.
For example, GISTI’s 1992 petition challenging the adequacy of asylum pro-
cedures argued that the right to work, social protection (including access to
medical care), and free legal aid must be guaranteed to all those seeking asy-
lum in France. Taking away the possibility of employment for those seeking
asylum was argued to misrecognize the “signal characteristic” of the refugee
regime.15 French legal activists similarly took issue with the fact that asylum
seekers applying through the new territorial asylum procedures, unlike those
applying through the regular asylum process, were required to pay the cost
of their own interpreters.16 They argued that fragmenting the asylum regime
through a diversity of procedures would result in an overall dilution of rights.
Here again, lawsuits focused debate at the level of abstract principle rather
than highlighting the shortcomings of particular administrative entities.
Thus, it is not particular administrators or particular administrative agen-
cies who have been exposed to criticism when advocates challenged immigra-
tion policies. Instead attention focused on the normative content of the texts,
which were argued to “misrecognize the law” by placing conditions on the
exercise of rights and creating the potential for precariousness of residence.
While U.S. immigrant rights litigation has frequently targeted the specific
administrative agencies charged with immigration enforcement, exposing
individual public officials to scathing criticism, in France it has been the rules
that were singled out rather than those who drafted them.
Not only were administrators not the target of judicial activity challenging
France’s turn to restrictionism, but advocates and their causes also receded

out of focus. The petitions submitted by immigration-focused legal activists

simply served to summon the judicial protagonist onto the stage. Once a peti-
tion had been filed and a response from the administration had been received,
performative agency was wholly assumed by the Conseil d’Etat. The process
of ascertaining facts and interpreting the meaning of existing norms took place
outside the view of the parties. Experts working within the Conseil d’Etat
searched out the law, taking the legal avenues identified by the parties only as
a point of departure. It was also their prerogative to request evidentiary materi-
als, such as statistics from the relevant minister about the subject in question.
In this judicial process, wedded to the assertion of formalistic neutrality, advo-
cates were relegated to a relatively minor role.
The slowness and lack of transparency of the Conseil d’Etat’s procedures
has had the effect of sapping the urgency from disputes over immigration pol-
icy. In a number of cases, by the time the reporting judges completed their
investigations into the relevant facts and legal issues and a date for the audi-
ence was finally set, several years had passed since the petition was initially
submitted. In 1992, the Vice President of the Conseil d’Etat wrote to GISTI
acknowledging that it had come to his attention that, “a certain number of
your petitions are in process before the Conseil d’Etat for five years and I have
asked the Secretary General to find out where we are with these cases. The
first request for judgment deposed in May 1987 was judged in May 1992. For
the three others, Monsieur Errera, the reporter, has just turned in his report.
They will likely be judged before the end of the year.”17 The interesting part
about the letter is that not only had the cases been “in process” for many years,
but neither the Vice President of the Conseil d’Etat nor those who had sub-
mitted the petitions had any sense in the interval of when the dossiers would
eventually be made ready for judgment. The signature of the letter, “very cor-
dially,” gives some indication of the banality of this inscrutable process that
was driven entirely by the Conseil d’Etat rather than by the parties.
Not only did the lengthy period of instruction significantly dilute any oppo-
sitional dynamic between the parties, but there was also no opportunity for
adversarial relations to be openly manifested once an immigration-related peti-
tion was eventually scheduled for a brief public audience before members of
the Conseil d’Etat. In the French system of administrative justice, the audience
occurs after the instructional evidence-gathering phase is completed. Although
they were the only moments when the parties actually met formally in person,
the audiences in immigration cases were more similar in appearance to a busi-
ness meeting than a trial: adjudicators dressed in suits rather than robes and the
room had an overall air of courteous ennui while the reporter and commissaire
du gouvernement read out their reports.18 Outside of brief clarifying questions

posed by the presiding judge, the parties typically had no opportunity to speak,
and they did not address each other directly at any point during the audience.
There were no opening or closing statements, and the drama was also damp-
ened by the fact that the audience examined not just one but a series of peti-
tions in a single sitting. When the Conseil d’Etat issued its decisions, usually
several weeks after the date of the audience, the parties were rarely present.
Moreover, the texts of these decisions were thoroughly imbued with the
trappings of formalism’s deductive logic. Take as an example the Conseil
d’Etat’s decision of April 21, 1997, issued in response to GISTI’s challenge
to a circular applying provisions of the Second Pasqua Law allowing expul-
sion of foreigners for specific violations of immigration law, criminal law, or
a combination of the two. The minister of interior’s circular had sought to
familiarize prefects with the various infractions contained in the law and had
informed them of their authority to issue a removal order to any foreigner
whose presence posed a threat to public order. GISTI had made a number
of substantive arguments about why the circular exceeded the bounds of the
law. The Conseil d’Etat decision responded to these allegations with a single
paragraph as follows:
Whereas by the terms of [the law as amended in 1993], a removal order
may be issued “if a foreigner’s residence permit has been retracted or not
renewed, if this retraction or refusal has been pronounced, by application of
existing legislative and regulatory dispositions, by reason of a threat to public
order.” Whereas the power thereby conferred to the administration cannot be
legally exercised with regard to a foreigner except when his residence permit
has been retracted or not renewed by application of a statutory or regulatory
provision; whereas in declaring [in the circular] that these measures could
be taken “for reason of public order” and that the retraction of a residence
permit should not occur [emphasis mine] “except when the title has been
delivered in error, because the foreigner has a record that must lead to the
refusal of the permit demanded,” the Minister of Interior has not enunciated
dispositions that exceed the field of application of [the legislation] and which
[GISTI] would be receivable in requesting the annulment.19

As the text of this decision illustrates, the immigration decisions of Conseil

d’Etat adhere to the cryptic and formulaic style that is a general feature of judi-
cial decision writing in France. The decision at first seems to reject GISTI’s
claim, but upon close reading it becomes apparent that the Conseil d’Etat
interpreted the circular so as to limit its application, by instructing prefects
that they could only retract a residence permit if it had been issued in error.
The last sentence signals that issuing a removal order by virtue of a discretion-
ary administrative decision to the effect that the individual’s removal would

benefit public order – as a literal reading of the circular would seem to allow –
would indeed render the circular illegal. However, from the text of the deci-
sion alone, it is impossible to know the legal reasoning by which the Conseil
d’Etat deduced this result. The decision simply instructed the administra-
tion in a precise and technical tone, eschewing dramatic flourish and rigidly
adhering to the image of dispassionate expertise.
Moreover, the legal solutions favored by the Conseil d’Etat offered scant
opportunity for accusing these judges of taking policy making into their own
hands. While it is certainly possible to find differing assessments of the Conseil
d’Etat’s immigration doctrine, no one could plausibly classify its mode of
argumentation as politically motivated legal instrumentalism. One favored
method used by the Conseil d’Etat to align immigration-related administra-
tive policies with legal principles without criticizing administrators involved
“emptying a regulatory text of its venom,” whereby the terms of the regulatory
text were interpreted in a way that was, from the perspective of immigrant
rights advocates, “clearly more favorable than a literal reading of the text.”20
This is an established way by which the Conseil d’Etat saves a text, “patching
things together,” rather than explicitly ruling against the government, and it
has been used with notable frequency in immigration cases.
Yet even when overturning immigration regulations, the language of the
Conseil d’Etat’s decisions tended to be terse and dispassionate, gesturing at
formalistic principles of good administration rather than asserting individual
rights. For example, the same circular discussed in the preceding text also
instructed prefects on how to implement another provision of the Pasqua Law
of 1993, which allowed for a foreigner given an order to depart from the terri-
tory to be assigned to his residence if he could demonstrate that it was impos-
sible to immediately travel to his own country or to another country. The
Conseil d’Etat interpreted and pronounced upon the legality of this section of
the ministerial circular with the following paragraph:

Whereas in permitting prefects to place under house arrest a foreigner with

an order to depart the territory who could not “for an objective reason, be
placed in immigration retention (for example, by reason of lack of space)”
[the circular] has the effect of extending the field of application of the house
arrest provision [of the statute]; whereas the association bringing the appeal
is, thus, receivable and founded in demanding its annulment.21

The regulatory text was thus overturned, limiting the authority of prefectures
to place foreigners under house arrest. Yet the phrasing of the decision did
not let it appear as if one of the parties had won and the other lost. The pol-
icy had simply been brought into alignment with existing legal principles.

One practitioner of immigrant rights litigation referred to the members of the

Conseil d’Etat as “good intellectual mechanics” who see themselves as the
“bridges of the Republic,”22 facilitating a well-run state, and thus the general
interest of all, by maintaining standards of good administrative practice.
In the United States, immigration reform litigation inspired hostility on
the part of administrative officials. No similar dynamic appears to have been
at work in France. Immigrant rights decisions of the Conseil d’Etat, when
they did get reported in the media, were very rarely characterized by con-
troversy. Indeed, government responses to Conseil d’Etat pronouncements
overturning immigration-related regulatory texts offered nothing more than
acknowledgment. “The Minister will conform to the decisions of the Conseil
d’Etat,” was the only response to the Conseil d’Etat decision overturning mul-
tiple provisions of a circular on asylum procedures.23 Similarly, “Justice has
spoken the law, and we must take it into account. But the Prime Minister asks
his services to study the margin for maneuver permitted by the decision,” was
the response to a decision on access to social assistance programs.24 In some
instances, the minister announced the same day the decision was issued that
he had ordered a new regulation to be drafted “with modifications precisely
as directed.”25 French political life has not been immune to polemics against
judges, particularly in the context of the activities of left-leaning investigating
magistrates (Roussel 2002). Nor have European courts evaded countermobi-
lizations against unpopular decisions (Alter and Meunier-Aitsahalia 1994).
However, this targeting of judges for criticism did not reach the institution of
the Conseil d’Etat, even in the aftermath of its most far-reaching immigration
decisions.
A similar absence of controversy is notable in the way that administrators
responded to questions about how immigration reform litigation has affected
their work. The themes invoked were drawn from the ideals of the French
legal tradition. “The associations are doing their job by raising problems
for the government to fix,” was how one former director of juridical affairs
described immigration reform litigation.26 He went on to muse dispassionately
about whether the decision of the Conseil d’Etat requiring the translation of
asylum hearings would be extended to other administrative procedures, saying
that it was “an interesting question.” Another longtime public official involved
in immigration administration offered a similarly intellectualized analysis of
the benefits of litigation, declaring that, “Juridical combat to have the hierar-
chy of norms respected is always necessary” (Moreau 2009, 245). This regis-
ter of talking about immigration policy litigation invokes a strongly professed
belief in the hierarchy of norms and Etat de droit. The recuperation of these
themes by administrators who must repeatedly defend their policies against

legal challenges demonstrates the power of legal formalism in the French

system of administrative justice to transform adjudication from a potential
opportunity for amplifying political conflict into a ritualized performance of
law’s authority.

From Policing to Proceduralism: Juridifying French

Administrative Policy Making on Immigration
At the same time that it has blocked opportunities for confrontation between
advocates and administrators, the Conseil d’Etat’s engagement with immi-
gration issues had an indirect but important impact on the modality of
French administrative governance. As this section will describe, the recur-
rent adjudication of immigration regulations reinforced the presence of the
Conseil d’Etat, along with its distinct mode of reasoning, in an immigration
policy-making process that previously operated as a zone of nonlaw. In other
words, these routinized judicial-administrative exchanges effected a “juridifi-
cation of policy making” reminiscent of the shifting mode of legislative policy
making previously observed in studies of the Constitutional Council’s routin-
ized interactions with the French legislators (Stone 1989, Stone Sweet 2000).
The scope of this shift toward administrative juridification is highlighted
when we place French immigration governance in historical context. As dis-
cussed in Chapter 2, immigrant labor from France’s colonial territories was
welcomed prior to the 1970s but foreign migrants were also heavily policed.
They could not register their associations and their residence was tightly con-
trolled using an elaborate system of identity checks and police files (Noiriel
2001). This system of control reached unprecedented proportions during
the period of the Algerian struggle for independence, when the administra-
tion created an entirely separate governance apparatus for Algerian colonial
subjects inside France. Nominal efforts were made to win over the loyalty of
Algerian migrant workers through the creation of a separate system of social
services. In practice, however, these services maintained close links to the
police and stood aside as auxiliary police units, operating outside of the nor-
mal judicial or police hierarchies, were given free rein to control the North
African immigrant population (Viet 1998, 188–9). Operating as a form of haut
police (high police), immigration governance as late as the 1970s was a zone of
exception within France’s Etat de droit. It was a domain of the administrative
state unconstrained by the well-developed standards of legalized accountabil-
ity that the Conseil d’Etat supervised in other areas of policy making.
The Conseil d’Etat’s repeated engagement with immigration policy
making, spurred by legal activist efforts, therefore represents a significant

development. Regularized judicial supervision, even if it allows little room for

public adversarial contention, has shifted the routine procedures of this area
of state administration that previously operated in the shadows of legality. Two
dimensions to this juridification of immigration-related administrative policy
making merit particular consideration.
First, those responsible for formulating the regulatory texts governing
immigration enforcement now pay serious attention to juridical pronounce-
ments. Administrators, while preparing drafts of regulatory texts, routinely
compile and analyze immigration-related decisions of the Conseil d’Etat as
well as the legal commentary that accompanies these decisions. Particularly
when adjudication has signaled a divergence between the position of the
government and that of the Conseil d’Etat, administrators have invested
extra effort in developing legal rationales for government policies. For exam-
ple, when legal advisors in the Ministry of Social Affairs began the process
of drafting regulations to implement the family reunification provisions of
the 1984 Immigration Law, they were keenly aware of the need to align their
actions with existing jurisprudence on family reunification, explaining to
their superiors, “Taking into account the litigation which marked earlier
attempts in this domain . . . it is necessary to proceed with an in depth jurid-
ical analysis which we will undertake incessantly.”27 That they did so is evi-
denced by the substantial accumulation of these juridical documents within
their archival files. On occasion, the government has even brought in addi-
tional “seconded” members of the Conseil d’Etat to lead ad hoc advisory
groups to redraft administrative texts with an eye toward identifying novel
legal avenues that would make policies less likely to incite criticism on juris-
prudential grounds while leaving underlying objectives untouched (Weil
2004, 169–71).
A second dimension of juridification is visible in the government's reli-
ance on private advisory opinions from the Conseil d’Etat, which can pre-
empt an issue from becoming the subject of jurisprudential development.
Government officials have moved away from the disdain for legality character-
izing prior periods of immigration policy making and have acted to maximize
the Conseil d’Etat’s involvement at earlier stages of the process by seeking out
its advice through the formal advisory procedure. For example, administrators
preparing texts implementing immigration legislation in the mid-1980s found
it “particularly opportune” to present not only a draft decree but also several
circulars affecting the situation of migrant families officially to the Conseil
d’Etat.28 Even though only the decree required an advisory opinion, the “sig-
nificant jurisprudence” concerning family rights signaled that this was an area
of policy making on which the Conseil d’Etat had staked a claim.

The government has an incentive to request and follow advisory opinions

closely, although they are nonbinding. As a member of the Conseil d’Etat
explained it, “The immigration texts are always contested and the government
knows this.”29 From the perspective of administrators, the involvement of the
Conseil d’Etat in giving advice on decrees is the primary mechanism by which
they experience the “very alert, very precise, and very searching” supervision
of the administrative judge.30 But this process is far preferable to having their
regulations annulled as a result of litigation, because the advisory opinions are
not made public and the administration is free to adapt the advice as it sees fit.
It is still possible that a decree or circular will be annulled because different
sections of the Conseil d’Etat handle advice and adjudication and because
petitions may call adjudicators’ attention to previously unseen legal avenues.
Moreover, the government retains the option to enact immigration policy
using legislative means, thereby avoiding the coercive power of administrative
review altogether. The important point to make, however, is that immigration
adjudication has contributed to routinizing consultation of the Conseil d’Etat
and its jurisprudence within the administrative process.
Over the past four decades, the territory on which the Conseil d’Etat has
asserted its involvement through jurisprudential development has grown to
include almost all areas of immigration policy making. It has developed an
entirely new jurisprudence on extradition, which previously was considered a
political matter. It has also declared itself capable of adjudicating the mean-
ing of international accords governing migration, a prerogative that previously
belonged exclusively to the Minister of Foreign Affairs. Indeed, some com-
mentators suggest that immigration issues have provided one of the avenues
by which the Conseil d’Etat has maintained its normative relevance when
faced with juridical competition from European jurisdictions (Lochak 1993,
Abdelgawad and Weber 2008).
Yet, while its immigration jurisprudence has been an asset for the Conseil
d’Etat in its struggle to remain influential relative to other jurisdictions, it has
not radically shifted the substance of French immigration policies. In princi-
ple, a jurisprudence that enunciates fundamental rights for noncitizens may
constrain the policy options available to public officials. The Conseil d’Etat’s
1978 ruling that noncitizens have a right to a normal family life has certainly
exerted a strong and continuing influence over policies concerning family
reunification (although it technically does not bind legislative lawmaking). In
addition, there is some evidence that the jurisprudence of the Conseil d’Etat
has on occasion influenced policy-making debates within the administration,
by equipping administrative critics of restrictionism with arguments to coun-
ter the positions of their enforcement-minded colleagues (Weil 2004, 176–87,

Bonjour 2014). However, in other instances, the addition of legality has served
a primarily cosmetic purpose, enhancing the opportunities for administrative
lawyers within the bureaucracy to invent creative ways to justify restrictionist
government policies. Internal administrative correspondence has on occasion
celebrated “ingenious” juridical rationales allowing policies to survive the
Conseil d’Etat’s scrutiny.31 Moreover, even when policies are struck down by
the Conseil d’Etat, the judicial pronouncements generally have little to say
about the content of immigration policy. As we have seen, the Conseil d’Etat’s
immigration decisions often invoke general principles of administrative legal-
ity without any explicit discussion immigrant rights.
Indeed, the Conseil d’Etat’s immigration jurisprudence is a source of dis-
appointment to immigrant rights advocates. After more than thirty years of
persistent litigation, French legal activists lament that they have been unable
to convince the Conseil d’Etat to adopt their vision of republican inclusion,
which holds that long-term resident foreigners should be entitled to the same
legal rights as citizens (Alaux 2009, Lochak 2009). Like other defenders of
immigrant rights, legal activists are dismayed by the rightward shift in French
immigration politics, influenced by the rise of the far-right and its adoption
of restrictionist themes since the early 1980s. In the assessment of one veteran
litigator, “the cause of legality advances” even if the decisions are not always
favorable to the cause of immigrants.32 In recent years, advocates have orga-
nized protests at the doorstep of the Conseil d’Etat to express their frustration
with official proceedings that withhold both formal and emotional satisfaction
from immigrant defense efforts (see Figure 3).
Thus the initial observation that litigation has not made immigrant rights
legal activists more politically visible does not tell the whole story. The inscru-
table and austere decisions produced by the recours pour excès de pouvoir are part
of a broader dynamic in which both legal activists and administrative officials are
placed in postures of deference toward the Conseil d’Etat as enunciator of law.

European Pressures for Change

While its formal and austere register remains the distinguishing feature of
France’s judge-centered engagement with immigrant rights, it would not be
accurate to suggest that administrative legality in France is static or immune
to external influence. Indeed, at the same time that the Conseil d’Etat was
expanding the scope of its influence and relevance within the administration
through its engagement with immigration matters, it faced increasing difficulty
in maintaining its normative preeminence in other areas. Particularly in regard
to administrative decisions concerning economic competition and access of

Figure 3. This rare (and imperfect) photograph shows members of GISTI and
the Ligue des Droits de l’Homme at their protest in December 2010 outside the
Palais Royal in Paris, following a référé decision in which the Conseil d’Etat – to
their disappointment – upheld a practice on the part of some French prefects of
housing asylum applicants in tents due to the temporary unavailability of other
forms of public accommodation (CE réf. 19 novembre 2010, Panokheel, n°344286,
Recueil Lebon). Photo courtesy of Serge Slama.

foreign firms to French markets, the Conseil d’Etat’s traditional manner of

oversight has faced a serious challenge from the forces of Europeanization.
In recent years, there is evidence that these dynamics of Europeanization are
gradually exerting an influence within the traditional French system of public
law adjudication, including the proceedings governing the recours pour excès
de pouvoir. For this reason, it is worthwhile briefly exploring the sources and
nature of this change.
It was not until the 1980s that the French system of public law first seriously
encountered European pressures for change. Until this point, the Conseil
d’Etat had comfortably relied on a doctrinal solution that allowed it to avoid
giving direct effect to international treaties or to the interpretation of these
treaties by European courts. Its loi-écran doctrine asserted that national law
completely and exclusively defined the legal conditions in a given policy area
and thus made it unnecessary to apply European law. This doctrinal position

was symptomatic of a general French hostility to control by supranational juris-

dictions, which extended both to the European Court of Justice (ECJ) and to
the European Court of Human Rights (ECHR). Although France had belat-
edly ratified the European Convention on Human Rights in 1974, the govern-
ment at the time considered this to be a “superfluous” step, and asserted that
national laws adequately guaranteed the rights of individuals (Abdelgawad and
Weber 2008). As an elite corps concentrated in Paris and operating in close
proximity to the administration, the members of the Conseil d’Etat were insti-
tutionally disposed to this Gaullist tradition of defending French sovereignty
(Plötner 1998, 60).
As the political tide turned in favor of European integration, however, the
Conseil d’Etat found itself increasingly isolated by its rigidly nationalist posi-
tion. As early as 1975, its counterpart at the head of France’s ordinary judi-
ciary, the Cour de Cassation, had expressed its willingness to give full direct
effect to international treaties (Lasser 2009, 61–2). By the 1980s, the supreme
courts in two of France’s major partners, Germany and Italy, had likewise
adopted more Europeanist positions regarding the direct effects and suprem-
acy of the ECJ’s jurisprudence. Moreover, in the mid-1980s the Mitterrand
government abandoned France’s long-standing protectionist approach toward
Europe and embraced the push for a Common Market. After France was
twice condemned by the ECJ for violating European Community directives
(in cases concerning administrative decisions whose legality had been upheld
by the Conseil d’Etat), the Mitterrand government demonstrated its commit-
ment to Europeanization by removing the Conseil d’Etat’s jurisdiction over
competition lawsuits brought by foreign firms (Plötner 1998, 66). At the same
time, the Mitterrand government also opened the door for French litigants to
bring individual appeals to the ECHR, and in 1986 the Strasbourg Court duly
rendered its first judgment against France.
In the face of accelerating Europeanization, the Conseil d’Etat at the end
of the 1980s switched to a more proactive strategy. A new generation of judges,
some of whom had experience in European institutions, pushed their col-
leagues to adopt a pragmatic stance toward European engagement. As one of
them would later recall, “It wasn’t so much that we were enthusiastically tak-
ing up the European cause . . . rather that we had worked out that Community
law existed and that there was no good reason for the Conseil d’Etat to be on
the outside” (Mangenot 2005, 91). In its 1989 Nicolo decision, the Conseil
d’Etat abandoned the loi-écran doctrine and announced that the constitution
contained an implicit authorization for judges to give direct effect to inter-
national treaties and to do so even when national law called for a different
result.33 In doing so, it asserted its willingness to engage with other high courts,

at both the national and European level, in the collective development of

juridical principles and standards carried out in the common language of fun-
damental rights. The Conseil d’Etat sought to hold its own in what Mitchel
Lasser pithily terms the frantic and disorganized “legal arms race” unleashed
by these Franco-European judicial interactions (Lasser 2009, 301).34
Given their wide-ranging importance, it should come as no surprise that,
beginning in the 1990s, these developments gradually had an impact on French
immigration jurisprudence. With the door now open to arguments framed in
terms of the ECHR’s fundamental rights jurisprudence, cases filed by indi-
vidual foreigners seeking to avoid expulsion measures increasingly found
their way to the Strasbourg Court.35 Although the Conseil d’Etat attempted
to forestall European judicial intervention by asserting its own interpretations
of European human rights law, it was overruled by the ECHR in the 1992
Beldjoudi decision.36 Contrary to the Conseil d’Etat’s analysis, the Strasbourg
Court determined that the expulsion measure against a longtime permanent
resident whose parents had been Algerian colonial subjects was in fact a viola-
tion of Article 8 of the European Convention on Human Rights, concerning
the right to respect for private and family life. Less than three years after the
Nicolo decision, Franco-European judicial engagement had resulted in the
integration of a more protective reading of foreigners’ right to family life. The
Beldjoudi decision was an early sign that the context for immigrant rights legal
activism was shifting. As discussed in the next section, the relevance for legal
activists of European law and European legal institutions has expanded and
deepened during the first decades of the twenty-first century.
Before turning to examine the impact of these deepening Franco-European
judicial interactions on legal activism, it is important to make one final point.
From the perspective of the Conseil d’Etat, although its members would
undoubtedly prefer to handle immigration matters without European courts
forcing their hand, they see their most urgent task at the current moment as
preserving the separate system of administrative law that is distinct to France.
In their view, the Conseil d’Etat’s distinct procedures allow the administrative
judge to “make the symbolic link between the citizens and the state.”37 They
recognize that they will need to compromise in order to maintain French
administrative law’s signal features, so that “even if the French system has
changed, we will still have a French system.” Among the features considered
to be essential to the French system is the Conseil d’Etat’s unique process
of decision making, including the involvement of the commissaire du gou-
vernement in the court’s nonpublic deliberations, which in recent years has
come under threat from European jurisdictions (Lasser 2009, 105–15). Just as
concerted use of the recours pour excès de pouvoir resulted in the extension

of the Conseil d’Etat’s influence within the administration, so too immigrant

rights legal activism potentially provides a resource to French judges in the
expanded game of Franco-European judicial interaction. Senior judges recog-
nize that immigrant rights legal activism has been at the origin of an elevated
number of decisions that created jurisprudence. As they see it, not only does
this suggest that immigrant rights litigation has been of consequence, but it
also usefully illustrates the efficacy of the administrative jurisdiction. In the
words of Judge Bruno Genevois, “The recours pour excès de pouvoir is a good
instrument for collective action à la française” (Genevois 2009, 74). Judge
Bernard Stirn, who succeeded Genevois as president of the Conseil d’Etat’s
Section des Contentieux, similarly expresses pride in the court’s advanced
jurisprudence in immigration matters and mentions associations defending
the cause of immigrants alongside associations active on behalf of the envi-
ronment as regular litigants before the Conseil d’Etat.38 In other words, legal
activism in the area of immigration policy is useful to the Conseil d’Etat as it
seeks to expand its institutional influence. From the perspective of the Conseil
d’Etat, legal activists’ use of the recours pour excès de pouvoir offers an opportu-
nity for French administrative law to take jurisprudential initiative and thereby
regain control over jurisprudential developments propelled by assertive judi-
cial interventions at the European level. There is also a sense that the regu-
lar appearance of social justice associations before the Conseil d’Etat might
usefully demonstrate the effectiveness of the French system of administrative
law, particularly in the matter of upholding basic standards of procedural fair-
ness, a question with which the ECHR has recently been concerned.39 In
this respect, the Conseil d’Etat’s willingness to leverage the claims of civil
society associations for its own doctrinal and institutional purposes represents
an instantiation of the type of strategic behavior observed in the literature
on comparative judicial politics.40 To the extent that they feature in judicial
calculations, legal activists are seen as helpful junior partners in the Conseil
d’Etat’s current project to maintain the French system of administrative law.

Legal Activism Turns to Europe: Continuity and Change

If the Conseil d’Etat has been primarily concerned with preserving its status
amidst the contemporary intrajudicial palace wars, Franco-European judi-
cial interactions are nevertheless gradually altering the context of immigrant
rights adjudication. Immigrant rights legal activists are becoming more famil-
iar with European law and European courts, in keeping with a more general
expansion of civil society engagement with European institutions on matters
related to immigration politics (Guiraudon 2011). European courts are at the

center of a deepening body of immigrant rights jurisprudence, and there is

a sense among French immigrant rights legal activists that the frequency of
their engagements with European law has significantly accelerated in the past
decade. While it is still too soon to see the full potential of these shifting
dynamics, at the current moment they are occurring along at least four dis-
tinct dimensions.
First, the ratcheting up of fundamental rights engendered through
Franco-European judicial interaction offers those organizing recours pour
excès de pouvoir a larger toolkit of devices for formulating legal claims.
Although legal activists in the 1970s and 1980s had been aware of the potential
of the European Convention on Human Rights for defending noncitizens,
they were discouraged from developing these arguments by what they saw
as the Conseil d’Etat’s “total scorn” for European law.41 However, after the
Nicolo decision in 1989 opened the door to arguments based on supranational
law, legal activists could use this extended legal repertoire interchangeably
with arguments based on fundamental principles deduced from national legal
sources. They were pushed to explore these possibilities as quickly as possible
because legislative changes initiated by Minister of Interior Charles Pasqua in
1993 called into question many of the core immigration policy principles that
they had worked for several decades to secure within French law. Because the
Conseil d’Etat does not have the power to review enacted legislation, legal
activists had no mechanism for challenging the legality of these statutes. In
this context, international conventions presented the “sole rampart” against
strongly restrictionist changes in immigration policy making, such as the
government’s move to prevent third-country nationals from accessing pub-
lic assistance programs to which French citizens and European Union (EU)
nationals had access.42 Through the recours pour excès de pouvoir mechanism,
GISTI was successful in challenging the legality of a circular implementing
the 1993 Pasqua legislation that tacitly dissuaded administrators from provid-
ing state-funded disability assistance to migrants from states with whom the
European Community had signed cooperation accords guaranteeing recip-
rocal access to such programs.43 As the restrictionist trend continued in the
first decade of the twenty-first century, propelled by Minister of Interior and
then President Nicolas Sarkozy, GISTI repeatedly incorporated arguments
based on the jurisprudence of the ECHR into its recours pour excès de pouvoir
challenging – with mixed success – the regulations implementing these laws.
Second, in addition to augmenting the plausible arguments that might be
presented to the Conseil d’Etat, the increased willingness of French judges to
refer EU legal questions to the ECJ for an advisory opinion means that pro-
ceedings before the Conseil d’Etat can bring legal activists directly before the

Luxembourg Court. Of course, as a court against which there is no appeal, the

Conseil d’Etat is formally obligated to refer cases raising issues of European
law to the ECJ. However, as a practical matter, and as every sophisticated
player in these matters fully understands, the ECJ’s elaboration of a set of
conditions under which no referral is necessary means that even national
jurisdictions against which there is no appeal, such as the Conseil d’Etat,
retain some control over referral decisions.44 Thus, despite the increasing
influence of European legal norms, the Conseil d’Etat operates as a gate-
keeper for legal activists seeking to access the ECJ. Nonetheless, should the
Conseil d’Etat choose to seek a legal opinion from the ECJ on a point of EU
law, then legal activists have the opportunity to go to Luxembourg to plead
their case. In September 2012, GISTI and the Cimade for the first time saw
their names attached to a decision that had arrived at the Luxembourg Court
through this referral mechanism. The ECJ vindicated their arguments that
a policy that restricted the eligibility of some asylum seekers for temporary
public assistance was incompatible with a 2003 EU Council Directive laying
down minimum standards for the reception of asylum seekers.45 As the EU
continues to take an active hand in setting minimal standards for member
state immigration and asylum policies, this referral mechanism is likely to
engage the ECJ’s involvement in recours pour excès de pouvoir with increas-
ing frequency.
Third, French legal activists have begun to explore the possibilities for
applying their experience with abstract review proceedings to initiate such
cases directly before European institutions. Starting in 2003, GISTI has col-
laborated with international partners in the newly established “Migreurop”
network to lobby the European Parliament to initiate a challenge before the
ECJ to the legality of the EU Council Directive on the right to family reunifi-
cation, which advocates view as insufficiently protective (Rodier 2009). When
the European Parliament did eventually bring the case, GISTI supplied a
memoire containing legal arguments alleging the directive was enacted
through improper procedures as well as substantive arguments based on the
EU’s commitment to fundamental rights as expressed implicitly in ECJ case
law. In other words, they applied the model of the recours pour excès de pou-
voir, thereby extending French public law’s unique hybrid of administrative
legality and fundamental principles to the European level. Although the ECJ
dismissed the substantive arguments, it admitted the procedural validity of a
proceeding initiated by the European Parliament. GISTI’s legal activists were
encouraged by the decision, seeing it as “a defeat that opens paths for the
future” (Rodier 2009, 170). Nevertheless, they recognize that organizing direct
appeals before the ECJ is “a path filled with obstacles,” as illustrated by a

subsequent unsuccessful effort to compel the European Commission to bring

a case before the European Court of First Instance concerning the Italian
government’s expulsions of irregular migrants from Lampedusa to Libya.
Finally, a new generation of French legal activists increasingly feels that
abstract review, of the type exemplified by the recours pour excès de pouvoir,
may no longer be the single best way to effect policy change. All things equal,
appeals to the ECHR of cases concerning individual noncitizens are relatively
more likely to compel policy change within the administration than success-
fully appealing these cases to the Conseil d’Etat. Moreover, at the level of
symbolism, there is the additional embarrassment to the French government
of being condemned in an international forum whose procedures are much
more public. A new generation of legal activists is eager to use the ECHR’s
emergency procedures to bring cases directly to the Strasbourg Court. In a
1996 decision in a case brought by immigrant advocates, the ECHR demon-
strated a willingness to hear individual cases that raised legal questions about
administrative policies restricting access to the asylum system for migrants
detained at points of entry, a decision more important as a harbinger of change
than for its outcome, as the European Court’s decision came after the govern-
ment had already tweaked its policies concerning retention at points of entry.46
Subsequent cases have propelled further substantive policy changes by com-
pelling the French government to guarantee suspensive appeal procedures
even when asylum applicants are detained at points of entry and fast-tracked
for removal.47
These victories have led some within the new generation of French legal
activists to declare that European judges have replaced the Conseil d’Etat
as the ultimate judicial forum for compelling policy change. In the words of
attorney Christophe Pouly to readers of GISTI’s newsletter, “Even if, at the
political level, Europe is constructing a fortress against migrants, its judges
nevertheless constitute a rampart against the insidious wearing-down of for-
eigners’ rights by the legislatures of member states.”48 Another younger jurist
with substantial experience organizing cases before the Conseil d’Etat, Serge
Slama, insists that it is now more interesting to bring cases in European courts,
where some of the individual judges are both approachable and sympathetic
to immigrant rights advocates.49 Other members of the younger generation
of French legal activists are less sanguine. Jean-Eric Malabre, who previ-
ously directed L’Association Nationale d’Assistance aux Frontières pour les
Etrangers and who also has substantial experience litigating before French
and European jurisdictions, notes that it has become more difficult in recent
years to win cases before the ECHR. In his view, it is the ECHR’s substantive
norms that are seen as most useful: “The ECHR is like a nuclear weapon; it

is much stronger if you don’t use it, but you always put European Convention
arguments into the Conseil d’Etat petitions.”50
The dynamics of French immigrant rights legal activism are clearly in a
state of flux. The opening of the French legal system to Europe has created
new possibilities for legal activism, both substantively and procedurally. Yet
it is not clear whether these new options will fundamentally alter the French
way of bringing immigration issues to the courts or rather, as in the case of
attempts to organize abstract challenges before European jurisdictions, allow
an expansion of the French approach at the European level. Even those who
are most critical of the Conseil d’Etat for its hesitancy to apply its fundamen-
tal rights jurisprudence against the recent restrictionist turn in immigration
policy making nevertheless continue to draw upon the recours pour excès de
pouvoir to contest newly enacted regulations. The form of these proceedings
has undergone some revisions, most notably through the introduction of the
référé procedure and various constitutional and supranational referral pro-
cedures. Yet the nonpublic nature and high formality of proceedings before
the Conseil d’Etat remains substantially unchanged and appears unlikely to
undergo radical revision.51 At this point, the most that can be said is that
there are signs that new forms of legal activism are being explored, but that
the recours pour excès de pouvoir is unlikely to be fundamentally altered or
abandoned anytime soon.

Conclusion
Throughout France’s first three postwar decades, immigration policy making
operated as a zone where the principles and values of Etat de droit were much
less visible than in other domains of policy making. Starting in the late 1970s,
however, routinized judicial engagement with immigration issues – propelled
by sustained legal activist efforts – has brought immigration administrators into
regularized dialogue with the Conseil d’Etat at multiple points in the policy
implementation process. In what we can label a version of court-propelled
juridification, the operative language of the Conseil d’Etat, has come to be
mirrored in the language and processes by which immigration regulations
are formulated by bureaucratic agents. On one level, this has had the effect
of making immigration governance a relatively more legalistic – and thus
publically acceptable – apparatus for the exercise of state authority. Yet these
developments have occurred through engagement with France’s distinctly
formalistic system of administrative justice. The judicial appropriation of
ministerial functions that some have associated with the “rights revolution”
(Epp 1998) is noticeably absent from this civil law context.

It is important to emphasize that the civil law’s tradition of austere for-

mality does not necessarily mean that the power of law is not at work. In
his study of the contribution of the ECJ to the project of European integra-
tion, Joseph Weiler points to the importance of formalism as an explanation
for the “compliance pull” of that jurisdiction (Weiler 1994). Legal formal-
ism’s power, in this analysis, lies in its language of reasoned interpretation,
systemic and temporal coherence, and logical deduction, as well as in the
appearance of a judicial process resting above politics. National courts, par-
ticularly those at the lower levels of the judicial hierarchy, responded to
ECJ decisions by willingly cooperating in the administration of European
Community law, while the political branches of national governments
adopted a relatively deferential posture toward the ECJ and its output, in
part due to the performance of a neutral and apolitical judicial process.
Regardless of whether legal outputs in reality conformed to formalistic ide-
als, it was the performance of formalism that contributed to the ECJ’s power
to impose its terms of discourse on policy making by national governments,
who could have easily acted to reduce its powers, curtail its jurisdiction, or
control its personnel, but did not do so.
This chapter has highlighted the pull of formalism in the context of the
French system of administrative justice. Rather than amplifying adversarial-
ism, repeated interactions between administrators, litigants, and judges enact
conflicts over immigration policy in an abstract and dispassionate legal reg-
ister. Challenges to government policies are played out on a stage that offers
no opportunity for confrontation and where those petitioning the court are
relegated to a background role. The association of judicial activity with par-
tisanship, so prevalent in immigration litigation in the United States, has not
taken place in the French system of administrative review, whose formalistic
register is materially and theoretically distanced from policy implementation
and where decisions are framed as a correction of administrative legality rather
than a victory for activist litigators.
At the same time that formalism has minimized the visibility of litigants,
it has nevertheless encouraged administrators to explain, justify, and defend
their policies in juridical terms. The highly stylized deductive logic of the
Conseil d’Etat’s decisions, with their scrupulous adherence to the vocabulary
of the hierarchy of norms, has infused the regulatory drafting process with a
heightened sensitivity to aesthetic and rhetorical conventions of legal form.
From the perspective of immigrant rights advocates, however, this process of
juridification has produced disappointing results. They are well aware that the
marked shift in the forms and processes through which administrative rule
making is enacted has not been accompanied by an equally potent impact at

the level of substantive immigration policy making. In the concluding chap-

ter, I examine how those who have devoted their professional careers to the
practice of immigrant rights legal activism in the United States and France
assess their efforts as they reflect back on four decades of contesting immigra-
tion policy in court.

Immigration policy making has emerged as one of the most important and
contentious areas of contemporary political life. It is an area in which courts
have traditionally limited their interventions in the name of deference to
sovereign authority. At the same time, irregular migrants are uniquely in
need of law’s protection because their legal entitlements are very low and
their social vulnerability makes the struggle for the enforcement of rights
particularly challenging. This tension between territorial sovereignty prin-
ciples and legal rights defines contemporary immigration governance. What
this means for immigration law is that those engaged in efforts to enlist
courts in a program of broad policy change face a uniquely daunting task.
This book began by asking what difference law makes in immigration pol-
icy making. Contrary to the conventional wisdom that law has little impact
on immigration policy matters, the preceding chapters have demonstrated the
multiple paths by which activity in court has contributed to reshaping how
policy makers approach immigration issues. I make the argument that the
power of juridical activity in this domain stems not from its coercive or reg-
ulatory authority but rather from the capacity of legal frames, narratives, and
performances to construct identities and meanings. Moreover, I suggest that
legal activism offers a window for observing law’s culturally productive role
because it has intentionally reformulated immigration debates as questions of
law. By untangling the webs of translations through which legal activists have
brought immigration into association with law and by exploring the radiating
political effects of this legal meaning-making – the approach advanced in this
study – we can more fully appreciate law’s constitutive role in immigration
policy matters. This concluding chapter first clarifies the key findings of the
study before examining their implications for research regarding law and the
politics of social reform.

153

The Mechanics of Bringing Immigration

into Association with Law
What does it mean to associate an area of policy making with law? A central
insight of constructivist sociolegal scholarship is that juridical activity is an
important site for assembling and reassembling social reality. The frames, nar-
ratives, and performances forged through action in court are constitutive to
the extent that they do not merely regulate antecedently existing behavior but
rather configure the very nature of politics. The present study builds on this
insight by distinguishing the specific legal instruments and mechanisms that
are at work in concrete engagements with law. By tracing the differing paths
for bringing a particular domain of social life – immigration policy making –
into association with law, the comparison of the United States and France
highlights the distinct epistemic features of liberal legality at work in these
efforts to invoke rights on behalf of irregular migrants.
We observed one set of culturally productive legal devices in the
rights-oriented jurisprudential regimes formulated by liberal courts in the
1960s and 1970s. In the United States, the vibrant legacy of the Warren Court’s
civil rights jurisprudence offered a repertoire of instruments for groups to
acquire expansive rights protections if they could show that they had faced
historical discrimination. By contrast, in France, the repertoire of administra-
tive legality that emerged in the early 1970s placed little emphasis on the char-
acteristics of those claiming rights and instead predicated judicial intervention
on a showing of policy makers’ autocratic tendencies. By framing immigration
matters in terms of these existing sets of categories, immigrant defense efforts
in both countries were able to move their claims onto the terrain of formal
law, even as these discursive framings took on strikingly different forms in each
national setting.
The organizational models of institutionalized legal practice present a sec-
ond set of devices for bringing immigration into association with law. In the
United States, institutionalizing their efforts allowed aspiring legal activists to
cement alliances with the support structures that had developed around pub-
lic interest law. In France, by contrast, the institutionalization of legal activism
was a more trial-and-error process. On the one hand, repeated high-profile
litigation facilitated the association of immigrant defense efforts with the civil
society mobilizations of France’s institutional Left. On the other hand, the
process of repeatedly petitioning the Conseil d’Etat gradually incorporated
immigrant rights legal activism into the orbit of this institution, reinforcing
advocates’ investment in the language of legal integrity and coherence. In
both countries, attachments to locally based mobilizations became more

attenuated as claims making shifted toward the terrain of official lawmaking,

yet this shift was mediated by nationally distinct norms concerning the politi-
cal roles of lawyers and legal organizations.
We see a third set of devices at work in the informal protocols that developed
around legal activists’ semiritualized usage of distinctly American and French
procedural avenues for invoking judicial oversight of immigration adminis-
tration. In the United States, a steady stream of immigration class action law-
suits focused attention on the pathologies of a particular administrative agency
and its informal practices, producing a highly adversarial set of interactions
between litigators and their administrative counterparts. In France, by con-
trast, immigrant rights legal activism developed a ritualized reliance on peti-
tioning the Conseil d’Etat to exercise its power of abstract review, a mode of
legal interaction notable for its austere and highly formalized register. In both
settings, litigators and their administrative counterparts were configured by
the roles they enacted in court, although these litigation rituals assumed very
different modalities.
It is hard to miss the striking differences between the paths selected in the
United States and in France for associating immigration and law. Beyond
empirical observation, the comparative optic offers an important reminder for
sociolegal scholars, namely that we should not assume what kind of entities,
forms of being, or structures of existence are inevitable features of legality.
Sociolegal scholars in the United States have made important contributions
by identifying “the American way of law” with adversarial legalism (Kagan
2001) or with identity politics (Brigham 1996). Yet examination of how legal
activism has operated in France shows that neither adversarialism nor liberal
pluralism is an inevitable feature of legality. As we saw in France, contesting
immigration policy in court has meant associating immigration issues with a
rarefied mode of enunciation concerned with normative coherence and integ-
rity. For the burgeoning sociolegal scholarship on legal mobilization, bring-
ing this distinct modality of law into focus offers a reminder that studying the
constitutive power of rights rhetoric is only scratching the surface of this phe-
nomenon. As this study has shown, rights may be invoked through a variety
of juridical frames and procedures and the particularities of these forms are
worthy of close attention.
Certainly, nationally based comparisons have their limits; it would be incor-
rect to draw the conclusion that all U.S legal processes are necessarily pluralist
in their politics and adversarial in their procedures or that legality in France is
always and at all times austere and abstract. Indeed, my analysis has repeatedly
emphasized the historically contingent nature of the cultural assemblages
constructed through immigration-centered legal activist efforts, and also the

fact that the very meaning of immigrant rights legal activism as a professional
project is likewise a moving target. As the preceding chapters emphasized,
the strategies developed by legal activists were assembled from repertoires of
elements available to them at a particular place and at a particular time. In
each country, these repertoires contained a mix of long-established elements
as well as legal forms of more recent vintage, and substantial creativity was
involved in applying them to the immigration policy domain. The argument
that I have developed throughout this book is that we need to look at the way
that action in court unfolds without any a priori assumptions and with sensitiv-
ity to all conditions of the case at hand. Sociolegal scholar Mariana Valverde
makes a similar point about the importance of concrete analyses when she
writes, “Understanding the politics – including the knowledge of politics – of
the situated present among which each of us circulates requires a fresh start
every time” (Valverde 2003, 229). The comparative optic brings into sharp
focus this call for concrete analysis of the arrangement and relationship of dif-
ferent local configurations and the registers among them.

Law’s Radiating Effects

The U.S. and French variants of immigrant rights legal activism, despite their
different forms, were initially propelled by a common faith in the power of
legality to produce policy change with widespread impact. In both countries,
the project of contesting immigration policy in court emerged during the
1970s, not only a moment when immigration policy turned to restrictionism
but also a moment when narratives of the triumph of rights over politics were
ascendant. In the United States, legal liberalism developed a mythical narra-
tive of the Brown v. Board of Education litigation, identifying the Supreme
Court’s holding as proof that rules and remedies achieved through planned
litigation offered the principal mechanisms for achieving policy reform.
Participants in the rapidly expanding field of public interest litigation in the
1970s felt no reason to doubt that law and lawyers could play a part in building
a better society. In the words of women’s rights activist Janet Beals, “Everyone
assumed that when the Supreme Court made its decision . . . that we’d got
what we wanted and the battle was over” (cited in Rosenberg 1991, 339). Legal
scholar Derek Bell memorably evokes a narrative of biblical salvation when
discussing the hopes of civil rights advocates that litigation would bring about
fundamental social change (Bell 1987, 70). This narrative of litigation as sal-
vation was less developed in France, where legal activism was a more recent
phenomenon, yet many young professionals belonging to France’s 1968 gen-
eration were seduced by “the notion that the juridical protection of public

liberties constituted an essential objective of political action” (Agrikoliansky

2005, 326).
As we saw in Chapter 3, the breakthrough immigrant rights decisions of
the late 1970s and early 1980s were understood at the time according to this
paradigm of optimism concerning the potential of litigation-propelled policy
reform. Immigrant rights litigators in the United States shared the optimism of
legal scholars who interpreted their victories as signs of a forthcoming “trans-
formation of immigration law” (Schuck 1984) and who predicted that it was
only a matter of time before the plenary power doctrine would be expressly
rejected (Motomura 1990). In France, the jubilant tone with which Groupe
d’Information et de Soutien des Immigrés (GISTI) announced its victories
before the Conseil d’Etat reveals a similar optimism on the part of litigators
that courts were on the verge of definitively abandoning their self-imposed
historical deference to the executive on matters of immigration policy. French
legal scholars likewise heralded the landmark 1978 GISTI decision as charting
a new course for the rights of noncitizens with potentially far-reaching doc-
trinal consequences (Hamon 1979).
With time, however, this enthusiasm turned to disappointment. At a con-
ference marking the thirtieth anniversary of GISTI’s legal activism, veteran
litigators lamented that the group’s overall record was “mostly negative” and
was characterized by “repeated defeats interspersed with victories that encour-
age perseverance” (Lochak 2009, 63). Members of GISTI’s legal network
likewise spoke of repeated “stolen victories,” instances when judicially enun-
ciated principles that promised to protect the rights of foreigners were given
scant attention in subsequent policy-making initiatives or were substantially
narrowed by later judicial readings (Ferré 2009, 233–6). Even with the new
référé procedure, which offers the potential to target informal administrative
practices, French legal activists express frustration that they lack the litigation
capacity to prompt fundamental changes in practice (Alaux 2009). From this
perspective, the project of contesting immigration policy in court seems to
have produced only marginal and sporadic changes in policy making.
U.S. immigrant rights advocates express similar disappointment with what
they see as the persistently inhumane tendency of legislative policy making
on immigration matters over the past two decades. The landmark 1982 Plyler
decision has not been overturned, despite legislative attempts to do so, but nei-
ther has it generated a jurisprudence with far-reaching effects. Scholars have
determined it to be sui generis, “not so much limited to its facts but possessing
weak doctrinal force and little constitutional significance” (Olivas 2012, 92).
Cumulative assessments likewise suggest that migrant rights remain “indirect
and oblique” (Motomura 2008, 1729), and that the immigration bar’s relatively

expanded use of appellate litigation in recent years has as yet produced primar-
ily “highly technical” statutorily based decisions that rarely enunciate broad
rights-protective principles (Law 2010, 226). In this regard, it is notable that
the Supreme Court’s 2001 decision in Zadvydas v. Davis, which went further
than most in dissecting immigration policy making, nevertheless shied away
from explicit constitutional review and was careful to emphasize that statu-
tory review “must take appropriate account of the greater immigration-related
expertise of the Executive Branch . . . and the Nation’s need to ‘speak in one
voice’ in immigration matters.”1 Veteran litigators lament that migrant inter-
diction policies and expedited removal procedures, both of which have sur-
vived legal challenge, now prevent many recent migrants from having access
to the systemic reforms achieved in earlier litigation.
In short, after more than four decades of efforts to systematically contest
immigration policy in court, legal activists express disappointment that judi-
cial engagement with immigration matters – while numerically voluminous –
remains doctrinally curtailed. For veteran litigators who pioneered the project
of immigrant rights legal activism, the record of the past four decades of efforts
to contest immigration policy in court offers little to sustain any narrative
of litigation-based salvation. They recognize that there are few instances in
which the rules or remedies produced through action in court have placed
insurmountable obstacles in the way of policy makers who are determined to
act. These retrospective assessments are generally similar to the observations
of political scientists who have noted the tendency of immigration policy mak-
ers to “contain” their compliance with rights-expansive judicial interventions
through a combination of forum shopping and narrow application (Conant
2002, Guiraudon 2002).
Without contesting these observations about the limited potency of judi-
cial rules and remedies to coerce immigration policy makers into abandoning
restrictionism, this study examines law’s engagement with migration through
a different analytical lens. I suggest that we can conceptualize activity in court
not only as a generator of official rules but also as a process of meaning-making.
My contention is that this conceptual shift allows us to explore the relation-
ship between the juridical world and the domain of immigration policy mak-
ing as a set of dynamic and never fully settled interactions. In this way of
seeing things, activity in court holds the potential to forge collectively held
understandings about what is real. Describing this culturally productive role
of law, Sally Merry writes that courts “provide performances in which prob-
lems are named and solutions determined” (Merry 1995, 14). Rather than con-
sidering legal activity in terms of the potency with which it constrains policy
making, we can instead conceptualize law’s power in terms of its ability to

frame issues and stage political interactions. Doing so allows us to chart the
effects of these legal constructions as they are taken up by social actors in ways
that cannot be predicted in advance. Particularly in the case of high-profile
litigation, as John Brigham emphasizes, legally generated constructions enter
into the broader political environment and thereby “join with a configuration
of defined interests and values operating around institutions, doctrines, and
perceptions of what is possible” (Brigham 1987, 208). Law’s radiating effects at
the level of policy making may be indirect and indeterminate, while nonethe-
less constitutive of political identities and meanings.
We saw one such radiating effect in the discussion in Chapter 3 of the polit-
ical mobilizations assembled around early litigation campaigns. As scholars
of legal mobilization have demonstrated, legal frames and narratives, par-
ticularly when they evoke the language of rights, can have a catalytic effect
on social movement activity (McCann 1994, NeJaime 2011). In the immigra-
tion policy domain, this catalytic dynamic was especially evident in the early
1980s, a moment when the legislative politics of immigration was in flux in the
United States and France. In this political context, the process of high-profile
litigation offered receptive audiences something around which to mobilize,
crystallizing a political agenda for those seeking to challenge the material-
ist frame that dominated immigration policy making. In the United States,
legal interventions on behalf of Haitian asylum seekers during this period,
even as they ultimately failed to develop a new constitutionally based prece-
dent, solidified the epistemic foundations of a civil rights–based immigration
reform coalition, modeled on the Leadership Conference on Civil Rights,
which left a lasting imprint on legislative policy making during the 1980s
and beyond. In France, the very fact of challenging immigration regulations
before France’s highest administrative jurisdiction reconfigured immigration
control measures from individualized penalties into political acts that could
be contested, energizing local protest activities that brought together foreign
migrants of diverse backgrounds. Although these decisions asserted no con-
straining authority over legislative policy making, they reinforced a narrative
of postwar immigrant workers as permanent members of the French polity,
a paradigm that strongly colored the French Left’s approach to immigration
legislation in succeeding years.
At the same time that it contributed to constructing the legislative politics
of immigration, the process of contesting policies in court also changed how
immigrant rights litigators viewed their own work. In the United States, as
immigrant rights legal activism became a branch of public interest law, litiga-
tors who had started their careers in close contact with local protest move-
ments became more specialized in focus and more reliant on dialogue and

engagement with state institutions. In France, this process of institutionaliza-

tion and specialization was less dramatic, yet the effects of persistent juridical
engagement are nonetheless visible in GISTI’s relative shift away from con-
tact with locally based immigrant movements and in the group’s more regular
association with legal elites. The concept of a “legal complex” (Karpik and
Halliday 2011) extending inside and outside of the state is helpful for under-
standing these developments. In both countries, judicial recognition has
propelled immigrant rights litigators toward the sphere of formal law while
providing members of each country’s legal complex with a cultural resource
to claim expertise in public affairs.
Finally, legal activism has generated important effects in the domain of
immigration-related administrative policy making. Not only has regular
engagement with sources of legal authority repositioned those responsible
for initiating immigrant rights litigation, reinforcing their identity as elite
technicians, but it has also left an imprint on the activities of their admin-
istrative interlocutors. By focusing attention on the pathologies of agency
practices, immigration class action lawsuits reinforced the defensive disposi-
tion of administrative officials and inserted litigators and their activities into
debates over immigration policy. We do not see this politicization of law in
France, but legal activists’ repeated litigation of immigration issues has had
its own set of indirect and unforeseen effects. In particular, as discussed in
Chapter 6, ritualized consultation of the Conseil d’Etat has heightened the
visibility of France’s highest administrative jurisdiction within immigration
administration and has also provided it with a means to increase its jurispru-
dential authority in relation to other jurisdictions. In both countries, immi-
grant rights legal activism has contributed indirectly to the “juridification”
of policy administration, in the sense that legal forms and legally generated
dispositions are now more apparent within the sphere of immigration-related
policy administration even as the direction of policy making on immigration
matters remains restrictionist.
In sum, if policy makers today exhibit a determination to act on immigra-
tion matters, then the nature of that determination and the target of their
actions are both in part constructed by the process of high-profile legal contes-
tation. For instance, when scholars observe that “the modern view [since the
1980s] within the labor and civil rights communities is that workers’ rights and
civil rights are indistinguishable” in the context of U.S. immigration debates
(Gimpel and Edwards 1999, 306), they demonstrate the potency of the plural-
ist narrative of immigration politics that legal contestation had a hand in con-
structing. Similarly, if legal activist efforts have sustained themselves in both
countries for more than four decades, then this reflects not only the ongoing

need for immigrant rights to be defended but also the success of a project
to define court-centered strategies as an appropriate response to immigration
restrictionism. The multiple epistemic assemblages instantiated by the devel-
opment of immigrant rights legal activism attest to the dynamic interrelation-
ship between the legal and political spheres in this domain. A practice-based
approach that is attentive to both the constructive and constructed nature of
legal contestation helps us to more fully understand how law matters in the
politics of immigration.

Contesting Immigration Policy in Court: The Path Ahead

This attentiveness to both the constructive and constructed nature of legal
contestation is all the more important in the current moment, when immigra-
tion governance is “positioned within a vortex of globalization” (Dauvergne
2008, 28) characterized by the increased integration of first world econo-
mies, their heightened dominance over world economic processes, and their
increasing reliance on Third World labor. Within such a system, “immigra-
tion is like a mirror” exposing how lawmaking in liberal democracies coexists
with – and legitimizes – conditions of extreme material inequality (Calavita
2005, 160). Immigrant rights legal activism arose with the turn to restriction-
ist immigration politics during the 1970s, a moment when global economic
recession provided the context for heightened border control. Four decades
later, this restrictionist paradigm remains largely unchanged even as hundreds
of thousands of people are put on the road to migration by forces at work in
the global economy. For undocumented migrant workers, refugees, and other
vulnerable migrants, the process of neoliberal globalization is implicated in a
“reterritorialization” of social relations, as states reify immigration status as the
sole determinant of political membership (Santos 1995, 298).
If anything, the beginning of the twenty-first century has witnessed a further
heightening of immigration restrictionism. After 9/11, the philosophy known
as “enforcement first” became the de facto prism through which legislators
and administrators responded to irregular migration, with the consequence
that changes to the immigration system focused almost entirely on building
enforcement programs and improving their performance (Meissner et al. 2013, 1).
Over the past two decades, policy makers have made the systems for deporting
migrants for postentry criminal conduct more efficient, less discretionary, and
substantially more rigid, in what has been described as a “dramatic conver-
gence between the deportation system and an earlier declared ‘war’ against
crime” (Kanstroom 2007, 10). As one of the few windows for legal admission,
asylum processing continues to come under criticism as a system prone to

abuse, prompting ongoing experiments on the part of policy makers to tighten

access to asylum procedures (Walters 2002, Junker 2006, Bohmer and Shuman
2008). At the same time that postentry controls have been tightened, strate-
gies of militarization and “control through deterrence” have placed important
new limits on the rights of irregular migrants intercepted at or near the bor-
der (Nevins 2002, Feldman 2012), cementing a marginalization of racialized
migrant populations that in turn justifies harsh measures to prevent their entry
and settlement (Provine and Doty 2011). Extraterritorial interdiction has like-
wise expanded, as policy makers have aimed to preempt irregular migrants
from entering into the national territory and availing themselves of legal pro-
tections (Brouwer and Kumin 2003). Recent executive actions to defer depor-
tation for some irregular migrants notwithstanding, the overall global trend
remains one of border closure and restrictionism.
For jurists who have devoted their professional lives to the project of expand-
ing immigrant rights, these are all very discouraging developments. Legal
activists in the United States and France would agree with the assessment of
the UN Special Rapporteur on the Human Rights of Migrants that the cur-
rent moment is one in which immigration enforcement policies raise “serious
concerns” that the rights of migrants are not respected.2 GISTI’s current pres-
ident, Stéphane Maugendre, poses these developments as a paradox, writing:
If litigating the rights of foreigners has seen an exponential development
and consequently has attracted the attention of jurists, if 30 years after the
first “grand arrêt” GISTI the rights of foreigners need more than ever to be
defended, it is surely because they are not respected.
Maugendre 2009, 2.

Clearly, legal activists are fully aware that activity in court does not exist in a
vacuum and that it fits into a larger political context.
Such adverse circumstances call for legal efforts that are not only techni-
cally adept but also creative. These might take a variety of forms. For instance,
we see the pragmatic tendencies of U.S. immigrant rights legal activism being
put to good use in recent attempts to coordinate individual lawsuits challeng-
ing alleged administrative illegalities in the context of removal hearings. The
aim, though not yet realized, is to create a de facto substitute for curtailed class
action lawsuits, one that offers comparable potential to generate media cover-
age. French legal activists have demonstrated a similarly creative approach in
their recent initiatives to formulate arguments based on the claim that national
policies fall short of the minimal standards set by European Union (EU) trea-
ties and directives. European guidelines in this area originally emerged as
part of a “venue shopping” strategy on the part of control-oriented officials

seeking to achieve their policy goals unencumbered by domestic political or

legal obstacles (Guiraudon 2002). However, creative legal argumentation has
found in EU directives and other supranational norms an additional legal ave-
nue for organizing abstract challenges to national immigration policy making
(Lochak 2011).
Beyond these technical innovations, the current moment may call for a
creative rethinking of the division of labor that has developed between immi-
gration lawyering and immigrant lawyering. As scholar-activist Frances Ansley
emphasizes, in the context of free trade, unchained global capital, and the
dispossession of labor in the Global South, careful and long-term thought
and outreach – especially efforts to build solidarity between immigrants and
citizens who are similarly excluded from the global economy – are very much
in order for those who care about reform in the immigration policy domain
and social justice more broadly (Ansley 2005). Along these lines, a number of
recent initiatives have combined expertise in immigration law with a range of
other legal tools as part of a broader strategy to resist inegalitarian globalization
(Gordon 2005, Ansley 2010). These efforts run in parallel with a broader trend
among liberal-oriented groups in the United States to explore “multidimen-
sional strategies” that combine legal activism with other tactics in an effort to
adapt to an increasingly conservative judicial climate (Chen and Cummings
2012, 511–39). At the same time, the ambitions of legally trained immigrant
community organizers are not limited to reform of official law, but rather aim
to develop the broad-based alliances and shared conception of systemic harm
necessary for what critical legal theorist Boaventura de Sousa Santos refers
to as “counter-hegemonic globalization” (Santos 2005). To adopt this per-
spective is to recognize that activity centered in state institutions – including
courts – can be part of a social justice mobilization, while emphasizing that
legal expertise cannot work alone and must be put into dialogue with local-
ized forms of legal knowledge.
One final point: if mobilizations built on the fusion of subaltern and institu-
tional law hold emancipatory potential in part through their capacity to rethink
dominant legal categories, then perhaps looking beyond any single national
setting can also contribute to shaking up categories of governance that have
come to be taken for granted. In the case of immigrant rights advocacy, the
process of translating one set of cultural categories into the terms of another,
and vice versa, highlights how advocates across national settings respond to
a common systemic harm that is manifested in, but that also exceeds, the
politics of restrictionism. Bringing this common threat into focus, while also
showing points of difference among advocates’ responses, can potentially
unsettle unconscious assumptions about the limits of what is possible. In this

way, comparison prevents any single strategy from becoming too settled in the
guise of a pre-given natural or functional adaptation.
Immigrant rights legal activism has successfully sustained itself, in the
United States and France, for more than three decades. In recent years, those
who pioneered these efforts and who have maintained the field’s notable insti-
tutional continuity are gradually transitioning away from organizational lead-
ership positions. Immigrant rights legal activism is now increasingly steered by
members of a new generation of law school graduates who gravitated toward
this specialized area of professional practice. Indeed, as it enters its fourth
decade, the project has attracted both new litigators and new organizations.
In the United States, emergent groups such as the American Immigration
Council’s Legal Action Center have joined existing law reform organizations
in coordinating impact litigation on immigration issues. Similarly in France,
members of a new generation of legal activists have familiarized themselves
with immigration law’s architecture and now engage in targeted litigation on a
regular basis. By all accounts, there are more lawyers than ever before working
in this area and more case law with which they can work.
As a hybrid legal-political project, immigrant rights legal activism has built
its claims by developing creative extensions of existing legal avenues and
applying them to new policy initiatives in the immigration domain. Yet even
in high-profile cases, judicial holdings offered only a starting point; more
lasting influence resulted from the political mobilizations catalyzed by the
process of legal contestation. Because there is no red herring of assertive con-
stitutional review in immigration matters, this domain of legal engagement
encourages an approach that looks beyond compliance with official case dis-
positions so as to multiply the dimensions along which we trace the passage of
law. Even in the immigration policy domain where, as critical legal theorist
Catherine Dauvergne argues, migrant rights always simultaneously conjure
the more forceful rights of the state to create illegality based on immigration
status (Dauvergne 2008, 27–8), the process of deploying nationally distinct
juridical instruments has had important effects. As we have seen, legal action
can catalyze social movements, but it can also increase the power of elite tech-
nicians. The identities and meanings constructed through activity in court
enter into a political environment where they join in unforeseen ways with
existing assemblages of values and interests of varying authority.
Focusing on the actual practices set in motion by high-profile legal contes-
tation allows us to see these translations in all of their fragility and specificity.
Law matters less than the content of rights-expansive decisions would indicate,
but law matters more than an examination of compliance with official case
dispositions would suggest. The findings of the present study demonstrate that

scholars of immigration politics should take law seriously, while recognizing

that it is possible to do so without reproducing a narrative that presents litiga-
tion as a salvation for groups engaged in political struggle. Understanding the
constructive potential of law, while appreciating the wide array of culturally
productive associations set in motion by activity in court, advances the project
of breaking down rigidified borders, whether territorial or conceptual.

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Notes

1 What Difference Does Law Make in Immigration Policy Making?

1 Harisiades v. Shaughnessy, 342 U.S. 580, 587 (1952).
2 Harisiades v. Shaughnessy, 342 U.S. at 588.
3 For an exception to this focus on doctrinally significant cases, see Susan Sterett,
“Caring about Individual Cases: Immigration Lawyering in Britain,” in Cause
Lawyering: Political Commitments and Professional Responsibilities, ed. Austin
Sarat and Stuart A. Scheingold (New York: Oxford University Press, 1998),
293–316.
4 French legal activists were the first in Europe to successfully litigate fundamental
rights for noncitizens. See Virginie Guiraudon, “The Constitution of a European
Immigration Policy Domain: A Political Sociology Approach,” Journal of European
Public Policy 10, no. 2 (2003): 268–70.
5 The Ford Foundation archives are catalogued by grant number, and I requested
all files related to the “refugees and migrants rights” subject heading, although
files related to grants that were ongoing or that had closed within the past ten years
were not available for viewing. Journals and reports produced by the American
Bar Association and the American Immigration Lawyers Association also provided
useful data documenting the role played by the private bar as an additional ben-
efactor of U.S. immigrant rights lawyering. I made an effort to view the admin-
istrative archives of the U.S. government divisions most closely involved with
defending the government against immigrant rights lawsuits, and was able to do
so to a limited extent. However, the records generated by the U.S. Department of
Justice over the past fifty years, held at the National Archives at College Park, are
currently largely inaccessible to researchers. In France, at the National Archives
at Fontainebleau, I was able to examine the 1972–99 archived files of the DPLAJ
concerning the regulation of residence for noncitizens as well as the 1984–96
archived files of the DPM relating to immigration and asylum policy. In addition,
at the Archives d’Histoire Contemporaine at Sciences Po, Paris, I examined the
1981–4 archived papers of Patrick Weil, containing immigration-related files of
the DPM.

167

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168 Notes to Pages 25–28

2 A New Area of Legal Practice

1 Sbicca Legal Defense Team, “INS Raids Sbicca Shoes – Mass Defense and Action
Center Organized,” Immigration Newsletter, November–December 1987, 6.
2 Bruce Bowman, “Sbicca Workers Winning – I.N.S. Reshuffling Deck,” Immigration
Newsletter, November 1978–February 1979, 5.
3 Sbicca Legal Defense Team, “INS Raids Sbicca Shoes – Mass Defense and Action
Center Organized,” Immigration Newsletter, November–December 1987, 6.
4 The case began as Vallejo v. Sureck, CV No. 78–1912 (C.D.Cal. December 27, 1978).
At the time it was settled, it carried the name Lopez v. INS, CV. No. 78-1912-WB(xJ)
(C.D.Cal. June 4, 1992).
5 The founding members of GISTI reminisced about the group’s early years during
a “Journée Histoire et Mémoire” held in on December 8, 2000 in Paris. I refer to
the text of the transcript of these proceedings held in GISTI’s archives as an orig-
inal source and cite it accordingly. Although the transcript identifies the speakers
by name, I follow the practice of other scholars in not revealing the names of
these individuals so as to respect the anonymity requested by those among GISTI’s
founders who pursued careers in public service. The proceedings were originally
transcribed by legal sociologist Liora Israel, who attended the conference and who
drew on these discussions in a published article. Liora Israel, “Faire Emerger Le
Droit Des Etrangers En Le Contestant, Ou L’histoire Paradoxale Des Premieres
Annees Du Gisti,” Politix 16, no. 62 (2003): 115–44.
6 As political scientist Aristide Zolberg explains, “The term ‘back door’ was itself
coined [in the 1930s] by frustrated cultural restrictionists, who sought in vain to
limit the growing Mexican immigration by subjecting it to a quota.” Aristide R.
Zolberg, A Nation by Design: Immigration Policy in the Fashioning of America
(Cambridge, MA: Harvard University Press, 2006), 256.
7 During the 1920s and 1930s, governments in the United States and France adopted
restrictive measures that limited foreigners’ access to work authorization, and
administrators in both countries demonstrated a repressive zeal in ensuring the
departure of hundreds of thousands of foreign workers. These aggressive removal
campaigns applied state authority in ways that were certainly legally question-
able. In the United States, immigration agents conducted “scarehead” campaigns
involving mass round ups in public parks and the barricading of entire Mexican
neighborhoods. In France, indigènes whose work contracts had expired were
marched under armed guard to ships in the port of Marseille that would return
them to the other side of the Mediterranean. On U.S. Depression-era repatriations,
see Abraham Hoffman, Unwanted Mexican Americans in the Great Depression;
Repatriation Pressures, 1929–1939 (Tucson: University of Arizona Press, 1974), 56–7;
Francisco E. Balderama and Raymond Rodriguez, Decade of Betrayal: Mexican
Repatriation in the 1930s (Albuquerque: University of New Mexico Press, 1995),
56–60. On French interwar repatriations, see Mary Dewhurst Lewis, The Boundaries
of the Republic: Migrant Rights and the Limits of Universalism in France, 1918–1940
(Stanford, CA: Stanford University Press, 2007), 190–1.
8 The Wickersham Report focused on improving systems of internal accountability
and raising the caliber of immigration field personnel. U.S. National Commission
on Law Observance and Enforcement, Report on the Enforcement of Deportation

Laws of the United States (Washington, D.C.: Government Printing Office,

1931), 177.
9 Several of the attorneys did mention that they were drawn to the cause of immi-
grants in part because their parents or grandparents had come to the United States
from Europe after World War II. Peter Schey, who is South African by birth, is the
only legal activist that I met who immigrated to the United States.
10 Gary Silbiger, interview by the author, September 5, 2006, by telephone.
11 The Haitian Refugee Center had previously been administered by the National
Council of Churches, an ecumenical organization with close links to the civil
rights movement. Jeffrey Sterling Kahn, “Islands of Sovereignty: Haitian Migration
and the Borders of Empire,” PhD diss. (University of Chicago, 2013), 65.
12 Larry Kleinman, interview by the author, November 22, 2011, by telephone.
13 Ibid.
14 Steve Hollopeter and Cynthia Whitham, “NLG Convention Opposes Carter
Plan,” Immigration Newsletter, July 1977, 1.
15 Ira Kurzban, interview by the author, April 6, 2006, by telephone.
16 “Courts Deny Haitian Fascism,” Immigration Newsletter, March 1977, 25.
17 Ira Kurzban, interview by the author, April 6, 2006, by telephone.
18 Adam Green, “Manzo Victory: All Charges Dropped,” Immigration Newsletter,
March 1977, 6.
19 Attorneys for the Legal Services for the Elderly Poor Project of the Center on Social
Welfare Policy and Law were closely involved in the Supreme Court’s decision in
Graham v. Richardson, 403 U.S. 365 (1971), which overturned state laws restrict-
ing the eligibility of legal permanent residents to public assistance. A subsequent
Supreme Court case, Matthews v. Diaz, 426 U.S. 67 (1976), seeking to extend
this analysis to federal restrictions on access to welfare programs, was litigated by
attorneys from Legal Services of Greater Miami. Somewhat relatedly, the litiga-
tion campaign organized by the San Francisco Neighborhood Legal Assistance
Foundation targeted restrictions on permanent residents’ employment in the civil
service and resulted in the Supreme Court’s decision in Hampton v. Wong, 426
U.S. 88 (1976).
20 The leaders of the farmworker movement had participated in the efforts to end
the Bracero Program a decade earlier, and they did not initially envision includ-
ing more recently arrived immigrants within the movement’s ethnic framing of
civil rights struggle, concentrating instead on mobilizing farmworkers who by
the 1960s thought of themselves as American workers rather than as immigrants.
On the farmworker movement, see Marshall Ganz, Why David Sometimes
Wins: Leadership, Organization, and Strategy in the California Farm Worker
Movement (New York: Oxford University Press, 2009).
21 AILA Celebrates 50 Years: Reflections of Past Presidents (Washington,
D.C.: American Immigration Lawyers Association, 1996), 8.
22 In addition to serving as general counsel to the American Committee for the
Protection of the Foreign Born, Gollobin was also a member of the National
Emergency Civil Liberties Committee. Both of these organizations gave their sup-
port to early litigation efforts to defend Haitian asylum seekers during the 1970s.
The former organization was created in 1933 by Roger Baldwin to assist in the
defense of noncitizen rights and worked closely with the American Civil Liberties

Union (ACLU) and the International Labor Defense. The latter was a leftist orga-
nization created in response to the ACLU’s purging of suspected Communist Party
members during the McCarthy era. The papers of the American Committee for
the Protection of the Foreign Born are housed in the Tamiment Labor Archives at
New York University.
23 Lory Rosenberg, interview by the author, May 24, 2006, by telephone.
24 Gary Silbiger, interview by the author, September 5, 2006, by telephone.
25 Ibid.
26 “Finally . . . a Practical Immigration Defense Manual,” Immigration Newsletter,
March 1977, 1.
27 “Target: Area Controls,” Immigration Newsletter, May 1979.
28 The case was Bocanegra-Leos v. Dahlin, No. 78–313 (D.Or. Apr. 7, 1978). Advocate
Larry Kleinman represented the plaintiff and circulated the decision through
the National Lawyers Guild’s National Immigration Project Brief Bank. Larry
Kleinman, interview by the author, November 22, 2011, by telephone.
29 “News from Legal Services,” Immigration Newsletter, November 1979, 20.
30 Carolyn Patty Blum, “Note to Our Readers,” Immigration Newsletter, March 1979, 17.
31 May 1968 has been the subject of numerous historical accounts. For those seeking
to get a sense of the diverse interpretations given to these events, see Kristin Ross,
May ‘68 and Its Afterlives (Chicago: University of Chicago Press, 2002); Hervé
Hamon and Patrick Rotman, Génération: Tome 1 (Paris: Seuil, 2008).
32 For a detailed examination of the Group d’Information sur les Prisons and its proj-
ect, see Benedikte Zitouni, “Michel Foucault et Le Groupe D’information Sur Les
Prisons,” Les Temps Modernes 62, no. 645 (2007): 268–307.
33 Extensive documentation on MAJ and its work between 1970 and 1977 can be found
in the papers of founding attorney Jean-Jacques de Felice, which are archived at
the BDIC, Nanterre.
34 Transcript, GISTI Journée Histoire et Mémoire, December 8, 2000. For a detailed
account of GISTI’s early years, see Liora Israel, “Faire émerger le droit des étrangers
en le contestant, ou l’histoire paradoxale des premières années du GISTI,” Politix 16,
no. 62 (2003): 115–44.
35 The book in question was Bidonvilles: L’Enlisement, written by Monique Hervo
and Marie-Ange Charras and originally published by Maspero in 1971.
36 The Director of the Cimade’s migrant sector was André Legouy, a former prison
chaplain, who had first been attracted to the struggles of France’s foreign popula-
tion through his contacts with imprisoned Algerian independence activists during
the period of the Algerian War. He was joined by social workers Patrick Mony and
Pauline Boutron, who both also had connections to Catholic social justice work
and to reformist currents during the 1970s within the CFDT labor federation. See
“Défendre Sans Relâche Les Droits Fondamentaux,” Plein Droit, July 2009, 40–1.
37 GISTI’s name bears similarities to the names of two contemporaneous groups. On the
one hand, GISTI appears to have borrowed parts of its moniker from the Associations
de Solidarité avec les Travailleurs Immigrés, whose volunteers were involved in philan-
thropic work within immigrant communities during this period. On the other hand,
Michel Foucault’s Group d’Information sur les Prisons clearly inspired and provided a
rationale for GISTI’s aspiration to support collective struggle through juridical exper-
tise, as several of GISTI’s founders have suggested in their historical recollections. See

Transcript, GISTI Journée Histoire et Mémoire, December 8, 2000. It is important

to note, however, that GISTI’s énarque-influenced approach was somewhat more
top-down than Foucault’s project, whose premise was that contre-expertise could be
generated by synthesizing the prisoners’ own expressed vindications. See Zitouni,
“Michel Foucault et Le Groupe d’Information sur Les Prisons,” 270.
38 Hèlene Trappo, “De la Clandestinité à la Reconnaissance: Entrevue avec Said
Bouziri et Driss El Yazami,” Plein Droit, July 1990, 18–20.
39 Patrick Mony, interview by the author, January 30, 2007, Paris.
40 For more on the “alphabetization” movement, see Collectif d’Alphabétisation,
Alphabétisation, Pédagogie et Luttes (Paris: Maspero, 1972).
41 “Communiqué,” October 31, 1980, GISTI Papers, n.p.
42 “Pour la Defense Juridique des Droits des Travailleurs Immigrés,” June 10, 1976,
GISTI Papers, n.p.
43 “Declaration de 5 Organisations de Juristes en Réponse à la Direction de la
SONACOTRA,” July 10, 1979, GISTI Papers, n.p. The five organizations included
Association Française des Juristes Démocrates, GISTI, MAJ, Syndicat de la
Magistrature, and Syndicat des Avocats de France.
44 “Communiqué,” December 5, 1979, GISTI Papers, n.p.
45 Christian Bourguet, interview by the author, February 15, 2007, Paris.
46 Philippe Waquet, interview by the author, June 12, 2007, Paris.
47 In 1973, at its congress in Nantes, the CFDT enacted a resolution on immigra-
tion that called on all workers to struggle against all discriminations that accost
immigrant workers, so as to strengthen and unify the working class. However, only
a few CFDT trade unionists seem to have been actively engaged in immigration
defense efforts during this period. On the CFDT’s position on immigration, see
Anne-Sophie Bruno, “Solidarité Avec Les Travailleurs Immigrés,” Plein Droit,
March 2011, 37–40.
48 “Communiqué: Pour La Defense Juridique des Droits des Travailleurs Immigrés,”
June 10, 1976, GISTI Papers, n.p.
49 Letter from Jean-Jacques Massard to André Legouy, December 20, 1973, GISTI Papers.
50 “Luttes des Sans-Papiers,” February 1975, GISTI Papers, n.p.
51 Correspondence, December 1976, GISTI Papers.
52 Clippings of advertisements placed in Libération, March 16, 1978 and March 30,
1978, GISTI Papers.
53 “Le Sursis à l’Exécution des Mesures de Refoulement,” October 1978, GISTI
Papers, n.p.
54 Invitation from Groupe Européen d’Action Juridique et de Defense des Immigrés
(GEAJDI) to André Legouy, June 5, 1979, GISTI Papers.
55 “Raisons de Refus et Actions du GISTI,” December 1, 1979, GISTI Papers, n.p.

3 Formalization of Immigrant Rights

1 For more on the plenary power doctrine in the immigration context and its foun-
dational cases, see Stephen H. Legomsky, “Immigration Law and the Principle of
Plenary Congressional Power,” The Supreme Court Review 84 (1984): 255–307. T.
Alexander Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and
American Citizenship (Cambridge, MA: Harvard University Press, 2002), 151–81;

Lucy E. Salyer, Law Harsh as Tigers: Chinese Immigrants and the Shaping of
Modern Immigration Law (Chapel Hill: The University of North Carolina Press,
1995), 117–216.
2 See CE, November 26, 1954, Ministre de l’Intérieur v. van Peborgh, Leb 627; CE,
December 23, 1954, Wygoda, Leb 697.
3 The National Lawyers Guild’s National Immigration Project named its award
for outstanding immigrant rights lawyering after Carol King, the founder of the
American Committee for the Protection of the Foreign Born who had led the legal
defense in the Harisiades case.
4 In attending to the role of human agency in generating new ideas and institutions,
my analysis takes inspiration from the work of public law scholars of Supreme
Court decision making, who conceptualize a jurisprudential regime in terms of “a
key precedent, or a set of related precedents, that structures the way in which the
Supreme Court justices evaluate key elements of cases in arriving at decisions.”
Mark J. Richards and Herbert M. Kritzer, “Jurisprudential Regimes in Supreme
Court Decision Making,” American Political Science Review 96 (2002), 308.
5 U.S. v. Carolene Products Company, 304 U.S. 144 (1938). The politics of the New
Deal provides the context for this footnote to a decision upholding a federal law reg-
ulating commerce in “filled milk” in the name of public health and safety. As part
of its move toward an accommodation with the expansion of the welfare state, the
Supreme Court abandoned scrutiny of policies allegedly biased in favor of a partic-
ular economic class. However, the Court did not abandon assertive judicial review
of government policies that allegedly violated individual rights. Instead of using
rights to protect economic classes, federal judges directed their scrutiny toward
legislation that discriminated against core New Deal constituencies, whose racial
or religious characteristics arguably made them particularly vulnerable to abuses
of governmental power. Michael J. Klarman, From Jim Crow to Civil Rights: The
Supreme Court and the Struggle for Racial Equality (New York: Oxford University
Press, 2004), 195–6.
6 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) and 349 U.S. 294 (1955).
7 Cisneros v. Corpus Christi Independent School District, 324 F. Supp. 599 (S.D. Tex.,
1970); Lau v. Nichols, 414 U.S. 563 (1974).
8 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).
9 The Supreme Court did ultimately limit the applicability of this device through its
decision in San Antonio School District v. Rodriguez, 411 U.S. 1 (1973), holding that
the invocation of searching judicial review on the basis of inequality in the fund-
ing of school districts was inoperable in the absence of a clearly established link to
state-sponsored racial discrimination.
10 426 U.S. 67, 78 (1976).
11 MALDEF Appellee Brief to the U.S. Supreme Court in Plyler v. Doe, 1980 WL
339676, 17.
12 Interestingly, this testimony is also revealing in so far as it points to the lack of dis-
tinction for both the advocates and their witnesses between “Mexican Americans”
and undocumented immigrants. The state did not distinguish between members
of the same racial group, and neither did defenders of immigrant civil rights.
13 MALDEF Appellee Brief to the U.S. Supreme Court in Plyler v. Doe, 1980 WL
339676, 8.

14 In re Alien Children Education Litigation, 501 F. Supp. 544, 573 (S.D. Tex. 1980).
15 NCIR Appellee Brief to the U.S. Supreme Court in Plyler v. Doe, 1981 WL
389636, 24.
16 NCIR Appellee Brief to the U.S. Supreme Court in Plyler v. Doe, 1981 WL
389636, 40.
17 458 F. Supp. 569, 589 (E.D. Tex. 1978).
18 Plyler v. Doe, 628 F.2d 448 (5th Cir. 1980).
19 In re Alien Children Education Litigation, 501 F. Supp. 544, 583 (S.D. Tex. 1980).
20 Plyler v. Doe, 457 U.S. 202 (1982).
21 Plyler v. Doe, 457 U.S. at 253.
22 Plyler v. Doe, 457 U.S. at 219.
23 Plyler v. Doe, 457 U.S. at 222.
24 Congress incorporated the 1967 Bellagio Protocol to the Geneva Convention on
Refugees into U.S. law in 1968. Starting in 1972, federal policy granted unadmit-
ted foreign migrants, such as those arriving unauthorized by sea, an opportunity to
have their claims for asylum status heard before INS District Directors, who had
the discretion to apply these international standards to individual cases.
25 Jeffrey Kahn provides a similar and more detailed recounting of these events. See
Jeffrey Sterling Kahn, “Islands of Sovereignty: Haitian Migration and the Borders
of Empire,” PhD diss. (University of Chicago, 2013), 66–7.
26 Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 451 (S.D.Fla. 1980).
27 Haitian Refugee Center v. Civiletti, 503 F.Supp. at 519.
28 Haitian Refugee Center v. Civiletti, 503 F.Supp. at 451.
29 Louis v. Nelson, 544 F.Supp. 973, 982 (S.D. Fla. 1982).
30 Louis v. Nelson, 544 F.Supp. at Note 1.
31 Jean v. Nelson, 711 F.2d 1455 (11th Cir. 1983).
32 Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984).
33 Brief for Petitioners, 1985 WL 670048, Note 3.
34 Brief for Petitioners, 1985 WL 670048, Note 21.
35 Brief for Petitioners, 1985 WL 670048, 44.
36 Jean v. Nelson, 427 U.S. 846, 852–7 (1985).
37 As Gabriel Chin points out, lawmakers likely did not anticipate that ending
race-based admissions quotas would have the effect of allowing non-European
sources of immigration to expand as rapidly as they did. Gabriel J. Chin, “The Civil
Rights Revolution Comes to Immigration Law: A New Look at the Immigration and
Nationality Act of 1965,” North Carolina Law Review 75, no. 273 (1996): 273–345.
38 Larry Daves, interview by Virginia Marie Raymond, May 28, 2008. Institute of Oral
History, University of Texas, El Paso.
39 The connection between legal activists and the Hesburgh Commission was suf-
ficiently strong that litigator Peter Schey was eventually hired into a legal research
position with the Hesburgh Commission. The commission’s report, eventually
released in March 1981, advocated controlling unauthorized migration but doing
so in a way that protected alien rights. U.S. Select Commission on Immigration and
Refugee Policy, U.S. Immigration Policy and the National Interest (Washington,
D.C.: Government Printing Office, 1981).
40 Rick Swartz, interview by the author, June 2, 2006, by telephone.
41 Louis v. Nelson, 544 F.Supp. 1004, 1005 (SD Fla. 1982).

42 “U.S. Immigration Policy,” C-Span Video Library, July 6, 1986, http://www.c-span

.org/video/?123478-1/US-immigration-policy.
43 Rick Swartz, interview by the author, June 2, 2006, by telephone.
44 “U.S. Immigration Policy,” C-Span Video Library, July 6, 1986, http://www.c-span
.org/video/?123478-1/US-immigration-policy.
45 On the politics of the Constitutional Council’s review, see Alec Stone, The Birth of
Judicial Politics in France (New York: Oxford University Press, 1992); Louis Favoreu,
La politique saisie par le droit (Paris: Economica, 1988). For a sociological study
of the Constitutional Council, see Dominique Schnapper, Une sociologue au
Conseil Constitutionnel (Paris: Galimard, 2010).
46 The Conseil d’Etat had already paved the way in this direction in a 1936 decision
which invoked “principles enjoying constitutional status” (principes à valeur
constitutionelle). CE, February 7, 1936, Arrighi, Leb 966.
47 CE, May 28, 1971, Ville Nouvelle-Est, Recueil Lebon 409. See also CE, July 25,
1975, Syndicat CFDT des Marins-Pêcheurs de la Rade de Brest.
48 CE, May 28, 1971, Damasio, Leb 391.
49 This jurisprudence was based on an interpretation of the administrative tribunal
code’s provision concerning “jurisdiction over decisions concerning public order”
and the 1945 ordinance governing immigration, which had given the Minister
of Interior the authority to pronounce expulsions in the name of public order.
See CE, November 26, 1954, Ministre de l’Intérieur v. van Peborgh, Leb 627; CE,
December 23, 1954, Wygoda, Leb 697.
50 “Mémoire ampliatif en défense à la requête de M. Da Silva” from J. G. Nicolas for
the CFDT to the Conseil d’Etat, January 4, 1974, Archives Nationales, 19990260,
box 1, Ministry of Interior Papers.
51 “Mémoire ampliatif en défense à la requête de M. Da Silva” from Philippe Waquet
to the Conseil d’Etat, April 6, 1973, Archives Nationales, 19990260, box 1, Ministry
of Interior Papers.
52 CE, January 13, 1975, Da Silva et CFDT, Leb 16.
53 Quoted in Liora Israel, “Philippe Waquet, au coeur de la ‘fabrique du droit,’ ” Plein
Droit, June 2008, 50.
54 CE, November 24, 1978, CGT, Association Culturelle des Travailleurs Africains en
France, l’Union Générale des Travailleurs Sénégalais en France, l’Union Nationale
des Etudiants du Cameroun, GISTI, et autres; CE, November 24, 1978, CGT,
Bocar, GISTI; CE, November 24, 1978, MRAP.
55 The government had initially suspended family immigration in July 1974 by
circular, but had then reopened family migration using a decree in April 1976
that stipulated that the spouse and minor children of labor migrants were to
be granted a residence permit if they fulfilled the conditions of stability of
employment and residence, suitable housing, and a medical check. The gov-
ernment’s decision to revisit the policy reflected a recognition that the abrupt
closure of formal channels for family migration was responsible for the spike
in applications from family members for postentry regularization. Although
the Minister of Labor initially drafted a decree aiming to shift family migration
entirely toward formal channels, an advisory opinion of the Conseil d’Etat’s
Social Section ensured that the April 1976 decree allowed for the possibility of

postentry regularization. For a detailed analysis of these internal discussions, see

Saskia Bonjour, “Courts in Control? The Impact of the Judiciary on the Making
of Family Migration Policies in France, Germany and the Netherlands,” paper
presented at the Annual Meeting of the American Political Science Association,
Washington, D.C., August 2014.
56 GISTI had close contacts with the Conseil d’Etat’s inner sanctum because one of its
founding members held a prestigious law clerk position within the Documentation
Center. The group was thus well placed to carry the issue across the Conseil d’Etat’s
internal organizational divisions so that the adjudicatory section could consider the
matter.
57 Transcript, “Journée Histoire et Mémoire,” December 8, 2000, 8.
58 CE, December 8, 1978, GISTI, CFDT, et CGT, Leb 67.
59 These conclusions situate the decision within the court’s jurisprudence and they
are read by public commentators alongside the published decision. See L. Neville
Brown and John Bell, French Administrative Law (Oxford: Clarendon Press, 1998),
104–6. Since February 2009, the position formerly titled commissaire du gourverne-
ment has been given the new title of rapporteur public.
60 Conclusions of CDG Dondoux, GISTI, December 8, 1978, Droit Social, 1979, 17.
61 Conclusions of CDG Dondoux, GISTI, 25.
62 Conclusions of CDG Dondoux, GISTI, 26.
63 Even before their annulment, the circulars’ registration requirements had proved
difficult to apply and, as a result, the government abandoned its effort and allowed
the regularization of approximately fifty thousand immigrant workers in the latter
half of 1973. Patrick Weil, La France et ses etrangers: L’aventure d’une politique de
l’immigration, de 1938 à nos jours (Paris: Calmann-Lévy, 2004), 99.
64 “Pour le Droit au Travail des Ouvriers Immigrés,” La Voix Immigré, January 1973,
Carton 7, Saïd Bouziri Papers, Association Génériques, Paris.
65 Léo Hamon, “Note: GISTI, December 8, 1978,” Recueil Dalloz Sirey, 1979, 661–5.
66 Note from GISTI to Prefects and Departmental Directors of Labor and
Employment, “Portée administrative des récentes décisions du Conseil d’Etat,”
January 24, 1979, Archives Nationales, 19990260, box 1, Ministry of Interior
Papers.
67 Letter from Minister of Interior to Préfet de la Loire, February 6, 1979, Archives
Nationales, 19990260, box 1, Ministry of Interior Papers.
68 “110 Propositions pour la France,” L’Office Universitaire de Recherche Socialiste,
April-May 1981, http://www.lours.org/default.asp?pid=307.

4 Institutionalizing Legal Innovation

1 According to an announcement in the Immigration Newsletter, the conference in
August 1981 would “bring together the leadership of ‘grass-roots community orga-
nizations’ involved in immigration advocacy to allow for information exchange
and the development of advocacy strategies on issues of labor and immigration,
INS enforcement, refugee and asylum matters, and social services.” “National
Consultation on Immigration and Refugee Issues,” National Immigration Project
Newsletter, July 1981, 1.

2 In 1976, the newly created Council for Public Interest Law listed seventy-two “pub-
lic interest law firms” in operation. See Balancing the Scales of Justice: Financing
Public Interest Law in America (Washington, D.C.: Council for Public Interest
Law, 1976). Two years later, a study by a multidisciplinary team of scholars, sup-
ported by a grant from the Ford Foundation, uncovered an additional fourteen
public interest law firms using a more abstract and theoretically motivated set of
criteria. Burton Weisbrod, “Conceptual Perspective on the Public Interest: An
Economic Analysis,” in Public Interest Law: An Economic and Institutional
Analysis, ed. Burton Weisbrod (Berkeley: University of California Press, 1978),
4–29. Public interest law has remained a touchstone of the contemporary American
legal scene. For a recent and comprehensive survey of the field, see Alan Chen
and Scott L. Cummings, Public Interest Lawyering: A Contemporary Perspective
(New York: Aspen Publishers).
3 This lobbying from the liberal legal network was not the sole factor contribut-
ing to the enactment of fee-shifting legislation. As Sean Farhang shows, conflict
between legislative and executive preferences encouraged Congress to rely upon
private litigation as a means to implement its statutes. Sean Farhang, The Litigation
State: Public Regulation and Private Lawsuits in the U.S. (Princeton, NJ: Princeton
University Press, 2010).
4 Michael S. Teitelbaum, A Proposed Foundation-Wide Program on Immigration
and Refugees, November 1979, Report #76811, Ford Foundation Grant Files.
5 Legal organizations featured prominently among the program’s recipients. See
“Human Rights and Social Justice Program Refugee and Migrant Rights FY
1982–FY 1986 Grants List,” November 1987, 011006, Ford Foundation Grant Files.
6 Conservative critics were particularly irked by the impact litigation organized by
legal services attorneys on behalf of undocumented migrants. In 1983, the LSC
restricted the use of its funds to activities that assisted “aliens who are lawfully
admitted for permanent residence; those who are married to, parents of, or unmar-
ried children under 21 of a citizen; those who have filed an adjustment of status
to permanent resident; those who are refugees or who have been granted political
asylum; or those who have had deportation withheld.” John A. Dooley and Alan W.
Houseman, Legal Services History (Washington, D.C.: Management Project of the
NLADA, 1984), 54.
7 Patty Blum, “To Our Readers,” National Immigration Project Newsletter, March
1979, 17.
8 “Recommendation for Grant/FAP Action,” April 23, 1987. USIAP-124, Ford
Foundation Grant Files.
9 Leah Wortham and Robert Dinerstein, “Report to the Ford Foundation on Legal
Services Support Centers,” November 1989, 20–1. Report #012588, Ford Foundation
Grant Files.
10 Scott Slonim, “Freedom Flotilla from Cuba,” ABA Journal, July 1980, 825.
11 “Human Rights and Social Justice Program Refugee and Migrant Rights FY
1982-FY 1986 Grants List,” November 1987, 011006, Ford Foundation Grant Files.
12 “Recommendation for Grant/FAP Action,” July 2, 1987, USIAP-193, 87–727, Ford
Foundation Grant Files.
13 National Center for Immigrants’ Rights, “Board Meeting and Agenda of October
8, 1984,” 83-71, Ford Foundation Grant Files.

14 “A Proposal to the Ford Foundation to Support the ACLU Foundation Immigrants’

Rights Project,” June 27, 1996, 830-0810-5, Ford Foundation Grant Files.
15 The Ford Foundation declined to support the activities of immigrant rights litiga-
tor Peter Schey, despite his central involvement in key immigrant rights litigation
successes, telling him that there were insufficient funds in the immigrant rights
program to support new projects. “Request for Grant Action,” May 17, 1983, Report
# 84–827, Ford Foundation Grant Files. Schey applied in 1983 for foundation
funds for his newly created “National Center for Immigrants Rights, Inc.” after a
difficult separation from the original National Center for Immigrants Rights that
involved a dispute over attorneys’ fees. His move to market his skills on his own
and his reputation for having an “abrasive” and entrepreneurial litigation style
were viewed with both disapproval and consternation by Ford Foundation grant
makers. Amy S. Vance, “Preliminary Recommendation Regarding Support for
the LSC National Back-Up Centers,” March 22, 1982, 840-0827, Ford Foundation
Grant Files.
16 Peter Schey, interview by the author, May 2, 2006, by telephone.
17 In 1982, the National Immigration Project’s Subcommittee on Refugees compiled
710 pages of documentation materials to assist attorneys litigating cases involv-
ing Central American asylum seekers. See “Publications Available,” Immigration
Newsletter, January–February 1982, 20. For background on the Sanctuary
Movement, see Susan Coutin, The Culture of Protest: Religious Activism and the
U.S. Sanctuary Movement (Boulder, CO: Westview Press, 1993).
18 Carolyn Patty Blum, interview by the author, June 19, 2006, New York.
19 Letter from Maureen O’Sullivan, National Immigration Project Director, to Diana
Morris, Ford Foundation, November 6, 1984, 17–946, Ford Foundation Grant Files.
20 “Announcements,” Immigration Newsletter, December 1984, 3.
21 “Recommendation for a Delegated-Authority Grant,” January 23, 1989, Request
No. USIAP-81, Ford Foundation Grant Files.
22 “Recommendation for Grant/FAP Action,” July 2, 1987, USIAP-193, 87–727, Ford
Foundation Grant Files.
23 Leah Wortham and Robert Dinerstein, “Report to the Ford Foundation on Legal
Services Support Centers,” November 1989, 012588, Ford Foundation Grant Files.
24 Lucas Guttentag, interview by the author, July 31, 2006, by telephone.
25 “Recommendation for Grant/FAP Action,” July 2, 1987, USIAP-193, 87–727, Ford
Foundation Grant Files.
26 National Center for Immigrants’ Rights, “Recommendation for Grant/FAP Action,”
April 27, 1989, 840-0827, Ford Foundation Grant Files.
27 “Recommendation for Grant/FAP Action,” April 23, 1987, USIAP-124, Ford
Foundation Grant Files.
28 National Immigration Law Center, “Final Narrative and Financial Report,”
November 1991, 840-0827B, Ford Foundation Grant Files.
29 ACLU Immigration and Aliens’ Rights Task Force, “Report on Project Activities,”
August 31, 1991, 830-0810-2, Ford Foundation Grant Files.
30 National Immigration Law Center, “Final Narrative and Financial Report,”
November 1991, 840-0827B, Ford Foundation Grant Files.
31 ACLU Immigrants’ Rights Project, “Report to the Ford Foundation,” August 31,
1993, 830-0810-3, Ford Foundation Grant Files.

32 William Reece Smith Jr., “The Refugee Crisis: Solving the Problems,” ABA
Journal, November 1981, 1465.
33 AILA Celebrates 50 Years: Reflections of Past Presidents (Washington,
D.C.: American Immigration Lawyers Association, 1996), 50–1.
34 ACLU Immigrants’ Rights Project, “A Narrative and Financial Report,” August 31,
1992, 830-0810-3, Ford Foundation Grant Files.
35 High-profile class action lawsuits in which corporate firms contributed pro bono
assistance included American Baptist Churches v. Thornburgh, 760 F. Supp. 796
(N.D. Cal. 1991), Haitian Centers Council v. McNary, 789 F.Supp. 541 (1992), and
Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998). These litigation campaigns are dis-
cussed more fully in Chapter 5.
36 Omnibus Consolidated Rescissions and Appropriations Act, Public Law No.
104–134, 110 Stat 1321 (1996). The “poison pill” restriction on LSC-funded programs
extended existing federal funding restrictions on representing undocumented
immigrants or migrant workers so as to limit all activities conducted on behalf of
these clients by LSC programs, even when these were funded by non-LSC funds.
Following the act’s enactment, recipients of LSC funds were permitted to provide
legal assistance only to permanent residents and immigrants admitted as refugees
or asylees or granted withholding of deportation pursuant to section 243(h) of the
Immigration and Nationality Act.
37 Chris Nugent, interview by the author, June 28, 2006, Washington, D.C.
38 Interview with Dan Kesselbrenner, National Immigration Project of the National
Lawyers Guild, January 20, 2012.
39 For a list of these early publications, see GISTI, La Petite Livre Des Travailleurs
Immigrés (Paris: Editions Maspéro, 1975).
40 “Communiqué,” May 11, 1981, GISTI Papers, n.p.
41 Letter from André Legouy to Pierre Bérégovoy, May 19, 1981, GISTI Papers.
42 “Compte rendu de la réunion,” Meeting of February 25, 1982, GISTI Papers, n.p.
43 Transcript, GISTI Journée Histoire et Mémoire, December 8, 2000, 51, GISTI
Papers.
44 These challenges were partially successful, insofar as the Conseil d’Etat overturned
some requirements in the ministerial circular that limited foreigners’ protections
against immediate repatriation. See Conseil d’Etat, September 27, 1985, GISTI.
45 “Note sur la Jurisprudence de la Cour de Cassation Relative au Controle d’Identité
des Etrangers,” May 1985, GISTI Papers, n.p. The campaign was engineered by
attorneys Didier Liger and Gérard Tcholakian, who had both recently joined
GISTI’s legal network.
46 Yves Jouffa, “L’Intégration: Une Vieille Question,” November 19, 1986, Box 17,
Yves Jouffa Papers, Centre de Recherche en Histoire Contemporaine. Fondation
Nationale des Sciences Politiques, Paris.
47 “Compte Rendu de la Réunion,” September 25, 1986, GISTI Papers. GISTI also
prepared a brochure with legal analysis and practical advice for associations assist-
ing foreigners impacted by the new laws.
48 Founded in 1970 as a member-based association, France Terre d’Asile opened a
permanent office in 1976 as public funding for assisting asylum seekers became
available. During the early 1980s, it created its own newsletter and established a
juridical commission that brought together representatives of GISTI, the Cimade,

and the Ligue des Droits de l’Homme. Interview with François Julien-Laferrière,
March 6, 2007.
49 Maurice Peyrot, “Le Procès des ‘Zones de Non-Droit,’ ” Le Monde, February 28,
1992. The lawsuit was brought before the Tribunal de Grande Instance of Paris on
behalf of six asylum seekers detained at Roissy in November 1991.
50 “Correspondants du GISTI,” circa 1973/1974, GISTI Papers, n.p.
51 “Compte rendu de la réunion,” February 27, 1986, GISTI Papers, n.p.
52 Letter from Pauline Boutron, Responsable de Formation, to Batonnier de l’Ordre
des avocats du barreau de Seine Saint-Denis, July 25, 1995, GISTI Papers.
53 “Compte rendu de la réunion,” February 27, 1986, GISTI Papers, n.p.
54 Letter from Gerold de Wangen to Gérard Moreau, February 3, 1986, Cote 19990260,
Box 26, Ministry of Interior Papers.
55 Transcript, GISTI Journée Histoire et Mémoire, December 8, 2000, 45.
56 See, e.g., Letter from Gérard Moreau to André Legouy, December 29, 1992, GISTI
Papers.
57 “Compte rendu de la réunion,” September 25, 1986, GISTI Papers, n.p.
58 GISTI did participate in the launch in 2001 of a national campaign on this issue,
sponsoring the screening of a film about the double-peine in the French Senate, but
collaboration with grassroots activists around this issue was marked by accusations that
more established associations had adopted a condescending attitude toward locally
based groups. See Lilian Mathieu, “Mouvements Sociaux et Recours au Droit: Le
Cas de la Double Peine,” Terra Network, http://terra.rezo.net/article339.html.
59 There is evidence that this divergence between grassroots social movements and
Left Bank intellectuals has continued in the early twenty-first century. Bernard
Dréano, “In Paris, the Global Place Is No More Saint-Germain-Des-Prés,” in
Exploring Civil Society, ed. Marlies Glasius (New York: Routledge, 2004), 82–8.
60 “Communiqué: Une Entreprise Xénophobe de Désintégration,” May 4, 1993,
GISTI Papers, n.p.
61 Jean-Pierre Alaux, “Contre L’Extrême Droit, La Liberté de Circulation,” Plein
Droit, July 1996, 3–9.
62 “L’Auteur de ‘Rapport Weil’ Face à Une Militante du Droit des Immigrés: Débat
entre Patrick Weil et Danièle Lochak,” Le Monde, September 23, 1997, 1.
63 Nathalie Ferré, “Résistance à L’Immigration Jetable,” Plein Droit, December
2006, 3–6.
64 In France, legal aid has been available since 1991 for petitions brought to the
Conseil d’Etat and the Cour de Cassation but it is relatively difficult to apply for
these funds. Moreover, the small number of lawyers qualified to practice before
these jurisdictions reduces the relevance of legal aid for this type of legal work. For
a history of legal aid in France, see Jacques Faget, “L’accès au droit: logiques de
marché et enjeux sociaux,” Droit et Société, 30–1 (1995): 367–78.
65 Danièle Lochak recounts how she came into contact with the group only through
a chance meeting at a 1982 conference on immigrant rights in Marseille, having
been unable to locate them in Paris because GISTI functioned at the time as a
small, almost clandestine group. Danièle Lochak, interview by the author, March
2, 2007, Paris.
66 The Conseil d’Etat has granted an audience in every case that GISTI has filed.
Bruno Genevois, “Le GISTI: Requérant d’Habitude? La Vision du Conseil

d’Etat,” in Défendre La Cause des Etrangers en Justice, ed. GISTI (Paris: Dalloz,
2009), 68.
67 Letter to GISTI members, September 11, 1992, GISTI Papers.
68 Transcript, GISTI Journée Histoire et Memoire, December 8, 2000, 57.
69 Serge Slama, interview by the author, February 10, 2007, Paris.
70 Jean-Pierre Alaux, interview by the author, January 26, 2007.
71 I was introduced to members of this new generation of legal activists, many of
whom are Professor Lochak’s former students, at a gathering sponsored by GISTI
at its Paris office in June 2009.
72 A search of all Conseil d’Etat cases since 1972 revealed only six in which the court
heard cases related to immigration issues that were brought by other associations
without the participation of GISTI.
73 See, e.g., Craig L. Hymowitz, “The Birth of a Nation: At the Ford Foundation
Ethnicity Is Always Job 1,” American Patrol, http://www.americanpatrol.com/
REFERENCE/MALDEF-LA_RAZA-Hymowitz.html.

5 Enacting Adversarial Legalism through Class Action Lawsuits

1 IIRIRA, Public Law No. 104–208, 110 Stat. 3009 (1996). The relevant provision was
codified as 8 U.S.C.A. Section 1252(F). A few months later, legislators hammered
in their intention to disable activist lawyering by barring attorneys receiving fund-
ing from the Legal Services Corporation from litigating class action cases of any
type. Omnibus Consolidated Rescissions and Appropriations Act, Public Law No.
104–134, 110 Stat 1321 (1996).
2 For a comprehensive summary of the jurisdiction stripping provisions, see Lucas
Guttentag, “The 1996 Immigration Act: Federal Court Jurisdiction – Statutory
Restrictions and Constitutional Rights,” Interpreter Releases, 74 (February
1997): 245–60.
3 Statement of Senator Simpson, September 28, 1996, 142 Congressional Record
S11, 711.
4 Patrick J. McDonnell, “New Law Could End Immigrants’ Amnesty Hopes,” Los
Angeles Times, October 9, 1996, A1.
5 Lamar Smith, “Letter to the Editor: Nothing to Fear in Immigration Legislation,”
New York Times, September 25, 1996, A20.
6 The 1980s saw a notable increase in the number of affirmative legal challenges
of immigration agency practices, with many of these “impact cases” organized
or supported by public interest law firms. Peter Schuck and Theodore Hsien
Wang, “Continuity and Change: Patterns of Immigration Litigation in the Courts,
1979–1990,” Stanford Law Review 45, no. 115 (1992): 155.
7 National Center for Immigrants’ Rights, “Board Meeting and Agenda,” October 8,
1984, 83-71 (Ford Foundation Archives).
8 In 1984, the legal activists who had organized the class action challenging the
Carter administration’s handling of Haitian asylum seekers were awarded attor-
neys’ fees in excess of the regular limit, with the judge citing the contribution of
attorneys Ira Kurzban, Peter Schey, and Rick Swartz and the difficulties they faced
in bringing the first class action in the immigration context. Louis v. Nelson, 644
F.Supp. 382, 391 (S.D. Fla 1984).

9 “International Molders v. Nelson: Enjoining Unconstitutional Sweeps after

Delgado,” Immigration Newsletter, January 1986, 8.
10 For background on the Sanctuary Movement, see Susan Coutin, The Culture
of Protest: Religious Activism and the U.S. Sanctuary Movement (Boulder,
CO: Westview Press, 1993); Robert S. Kahn, Other People’s Blood: U.S. Immigration
Prisons in the Reagan Decade (Boulder, CO: Westview Press, 1996).
11 See Lucas Guttentag, “A Brief Introduction to Judicial Review in Relation to IRCA
Legislation,” Yale Law School Workshop Series Readings, Fall 2009, http://www
.law.yale.edu/documents/pdf/Clinics/Immigration_Reading5.pdf
12 For a detailed recounting of these litigation campaigns, see Niels Frenzen,
“U.S. Migrant Interdiction Practices in International and Territorial Waters,” in
Extraterritorial Immigration Control, ed. Bernard Ryan and Valsamis Mitsilegas
(Leiden, The Netherlands: Koninklijke Brill NV, 2010); Lory Diana Rosenberg,
“The Courts and Interception: The United States’ Interdiction Experience and Its
Impact on Refugees and Asylum Seekers,” Georgetown Immigration Law Journal
17 (2003): 99–219; Brandt Goldstein, Storming the Court: How a Band of Yale Law
Students Sued the President – and Won (New York: Scribner, 2005).
13 While the vast majority of immigrant rights legal activism during this period tar-
geted federal immigration policies, there are nevertheless some exceptions. Most
prominently, in 1994, the immigrant rights national legal organizations discussed
in this chapter collaborated in organizing a successful consolidated federal law-
suit challenging the State of California’s Proposition 187, which barred undocu-
mented immigrants from access to public social services, nonemergency health
care, and schools. See “CA’s Anti-Immigrant Proposition 187 is Voided, Ending
State’s Five-Year Battle with ACLU, Rights Groups,” ACLU Press Release, July
29, 1999, https://www.aclu.org/immigrants-rights/cas-anti-immigrant-proposition
-187-voided-ending-states-five-year-battle-aclu-righ.
14 So as to meet the threshold for certification of a national class, litigators must show
that administrative practices are widespread and must paint a sufficiently detailed
picture of these practices to allow the case to go forward.
15 “Update,” Immigration Newsletter, September 1981, 3.
16 Haitian Refugee Center Brief to the U.S. Supreme Court in McNary v. Haitian
Refugee Center, 1990 WL 511339, 10–11.
17 Cheryl Little, interview by the author, June 6, 2006, by telephone.
18 Dan Kesselbrenner, interview by the author, January 20, 2012, Boston.
19 Marita Hernandez, “L.A.’s Oldest Catholic Parish Declares Itself a Sanctuary for
Latin Refugees,” Los Angeles Times, December 13, 1985, 1; George Ramos, “U.S.
Jurists Pressure State Department for Data on Salvadoran Death Squads,” Los
Angeles Times, December 13, 1985, 1.
20 Haitian Centers Council v. Sale, 823 F. Supp. 1028, 1038 (E.D. NY 1993).
21 Peter Schey, interview by the author, May 2, 2006, by telephone.
22 U.S. Department of Homeland Security, Office of Immigration Litigation, senior
attorney #2, interview by the author, January 17, 2012, Washington, D.C.
23 “We had a compelling narrative and we didn’t let formal legal obstacles stop us,”
recalled litigator Dan Kesselbrenner of the strategy developed by the coalition of
advocates organizing the ABC class action, “Sometimes you fling things at windmills
and it works.” Dan Kesselbrenner, interview by the author, January 20, 2012, Boston.

24 Orantes-Hernandes v. Meese, 685 F. Supp. 1495 (1988).

25 In the years since the injunction was issued, changing circumstances brought to
light issues the injunction didn’t specifically address. For instance, detention cen-
ters replaced pay phones with a cell phone system, making it prohibitively expen-
sive for some detainees to contact counsel. Immigrant rights legal activists twice
negotiated a modification to the injunction with the agency and also returned to
court to present evidence for why the injunction should be maintained after the
government in 2005 sought to have it dissolved. Linton Joaquin, interview by the
author, June 14, 2006, by telephone.
26 Memo from Carolyn Patty Blum to ABC Litigation Team, October 2, 1990,
CARDF Papers, Private Collection of Carolyn Patty Blum, New York.
27 Lucas Guttentag, interview by the author, July 31, 2006, by telephone.
28 Letter from Debbie Smith, ABC Settlement Coordinator, to Francesco Isgro,
Office of Immigration Litigation, Department of Justice, July 2, 1992, National
Immigration Project Papers.
29 “An Aggressive and Effective Approach to Litigation,” INS Reporter, Fall-Winter
1983–4, 22.
30 U.S. Department of Homeland Security, Office of Immigration Litigation, senior
attorney #2, interview by the author, January 17, 2012, Washington, D.C. In addi-
tion to asking for injunctions, litigators sued agency officials (including Associate
Attorney General Rudolph Giuliani) in their personal capacities for damages.
Giuliani and others felt that they needed a stronger defense team.
31 Dick Joyce, INS Acting Deputy Counsel, cited in “The L.A. 8 Case,” Immigration
Newsletter, July 1987.
32 U.S. Department of Homeland Security, Office of Immigration Litigation, senior
attorney #1, interview by the author, January 17, 2012, Washington, D.C.
33 Raymond M. Momboisse, General Counsel, Immigration and Naturalization
Service, “Annual State of the Office Report,” February 5, 1988; Legal Services
Corporation (Immigration); Office of the Attorney General, Subject Files of
the Assistants to the Attorney General, Henry G. “Hank” Barr, 1988–9; General
Records of the Department of Justice, Record Group 60, National Archives at
College Park, College Park, MD.
34 Grover Joseph Rees III, General Counsel, to Regional Counsel and District
Counsel, “Litigation of Asylum Claims,” November 30, 1992, National Immigration
Project Papers.
35 U.S. Department of Justice, Immigration and Naturalization Service, Office of
General Counsel, senior attorney #2, interview by the author, June 20, 2006, by
telephone.
36 Raymond M. Momboisse, INS General Counsel, to All GENCO Attorneys,
“The National Lawyers Guild Conference, 25 May 1987,” June 5, 1987, National
Immigration Project Papers.
37 Momboisse Memo, June 5, 1987, National Immigration Project Papers.
38 Interpreter Releases, Vol. 64, No. 39 (October 9, 1987). The case in question was
LULAC v. INS, Civ. No. 87-4757-WDK (C.D. Cal. 1988).
39 More recently, immigrant rights legal advocates marked the twentieth anniver-
sary of the ABC litigation by celebrating an “amazing settlement agreement” that

continues to provide rights and benefits. Trina Realmuto, “ABC v. Thornburgh: 20

Years Later,” National Immigration Project, January 31, 2011, http://www
.nationalimmigrationproject.org/legalresources/practice_advisories/cd_pa_
ABC%20-%2020%20Years%20Later%20-%20amended.pdf.
40 The Lopez settlement in July 1992 required the agency to hand arrested persons a
“Notice of Rights” form advising them of their right to speak with an attorney as
well as their right to apply for asylum and other defenses to deportation available
under federal law.
41 U.S. Department of Justice, Immigration and Naturalization Service, Office of
General Counsel, senior attorney #1, interview by the author, June 16, 2006, by
telephone.
42 U.S. Department of Homeland Security, Office of Immigration Litigation, senior
attorney #1, interview by the author, January 17, 2012, Washington, D.C.
43 Statement of Doris M. Meissner, Commissioner of the INS on Cuban-Haitian
Refugee Policy, July 31, 1981, Hearings on S.1761 Before the Subcommittee on
Immigration and Refugee Policy of the Senate Committee on the Judiciary, 97th
Congress, 1st Session. Cited in Ira J. Kurzban, “Restructuring the Asylum Process,”
San Diego Law Review 19 (1981): 91–117.
44 “The Reagan Immigration Proposals,” Immigration Newsletter, November 1981, 1.
45 David Johnston, “Government Is Quickly Using Power of New Immigration Law,”
New York Times, October 22, 1996, 20.
46 Quoted in Louis Freedberg, “Feds Move to Limit Migrants’ Challenges,” Denver
Post, October 22, 1996, A5.
47 U.S. Department of Homeland Security, Office of Immigration Litigation, senior
attorney #1, interview by the author, January 17, 2012, Washington, D.C.
48 Linda Greenhouse, “How Congress Curtailed the Courts’ Jurisdiction,” New York
Times, October 27, 1996, A5.
49 Anthony Lewis, “Mean and Petty,” New York Times, April 12, 1996, A31.
50 Lucas Guttentag, “Obama Administration Takes on Immigration Reform,”
Daily Kos, April 15, 2009, http://www.dailykos.com/storyonly/2009/4/15/720361/
-Obama-AdministrationTakes-on-Immigration-Reform.
51 Dan Kesselbrenner, interview by the author, January 20, 2012, Boston.
52 Lory Rosenberg, interview by the author, August 17, 2014, by telephone. For
a description of the class action lawsuit filed in the fall of 2014 on behalf of
Central Americans placed in immigration detention, see “RILR v. Johnson,”
ACLU Immigrants’ Rights Project, December 6, 2014, http//www.aclu.org/
immigrants-rights/rilr-v-johnson.
53 INS v. St. Cyr, 533 U.S. 289 (2001).
54 Zadvydas v. Davis, 533 U.S. 678 (2001).
55 U.S. Department of Homeland Security, Office of Immigration Litigation, senior
attorney #1, interview by the author, January 17, 2012, Washington, D.C.
56 Attorney General John Ashcroft’s attempt in 2002 to “streamline” the immigration
court system had the unanticipated effect of shifting review of determinations by
agency adjudicators to judges on the federal courts of appeals. Faced with this influx
of individual immigration appeals – whose numbers were further expanded by the
fact that larger numbers of individuals were being placed in removal hearings due

to the 1996 legislative changes – judges in some circuits repeatedly came to the
conclusion that administrative decision making in immigration matters was faulty
and irrational. For an overview of the streamlining program and its institution-
ally specific effects, see Anna O. Law, The Immigration Battle in American Courts
(New York: Cambridge University Press, 2010), 144–87; Rebecca Hamlin, Let Me Be
a Refugee (New York: Oxford University Press, 2014), 73–81.
57 Proposals in Congress in the wake of the St. Cyr and Zadvydas decisions to enact
statutory overrides of either decision were ultimately removed from the final legis-
lation. Nancy Morawetz suggests that this indicates recognition on the part of con-
gressional leaders of the serious constitutional issues raised by foreclosing judicial
review of immigration matters. Nancy Morawetz, “INS v. St. Cyr,” in Immigration
Stories, ed. David A. Martin and Peter H. Schuck (New York: Foundation Press,
2005), 279–310.
58 “U Visa Litigation Update,” Center for Human Rights and Constitutional Law, May
3, 2008, http://lawprofessors.typepad.com/immigration/2008/05/u-visa-litigati.html.
59 “Detention, Deportation and Mental Disabilities,” ACLU Immigrants’ Rights Project,
October 1, 2012, https://www.aclu.org/immigrants-rights/detention-deportation-
and-mental-disabilities.
60 Hotel and Restaurant Employees Union v. Smith, 594 F. Supp. 502 (1984).
61 U.S. Department of Justice, Executive Office for Immigration Review, senior attor-
ney, interview by the author, January 10, 2012, Washington, D.C.
62 U.S. Department of Homeland Security, Office of Immigration Litigation, senior
attorney #1, interview by the author, January 17, 2012, Washington, D.C.
63 Valle del Sol v. Whiting, 2013 U.S. App. Lexis 20474 (9th Cir. 2013). Following the
Supreme Court’s decision in a companion case brought by the U.S. Department
of Justice, the class action lawsuit was subsequently modified to focus on provi-
sions of the state law that criminalize the solicitation of work by immigrant day
laborers.
64 For a list of these lawsuits, see Michael A. Olivas, “State and Federal Immigration
Litigation and Legislation Concerning Higher Education, 2004–2015,” Institute for
Higher Education Law and Governance, January 18, 2015, http://law.uh.edu/ihelg/
documents/StateandFederalImmigrationLitigationandLegislation.asp.
65 E.g., in its cases focusing on immigration marriage fraud, the ACLU challenged not
agency implementation of immigration statutes but rather the constitutionality of
statutory provisions. See Manwani v. U.S. Department of Justice, 736 F.Supp. 1367
(1990).
66 Peter Schey, interview by the author, May 2, 2006, by telephone.
67 Dan Kesselbrenner, interview by the author, January 20, 2012, Boston.
68 Order Approving Settlement of Class Action, U.S. District Court, Eastern Division
of California, Case No. Civ S-86-1343-LKK, January 21, 2004, National Immigration
Project Papers.
69 Peter Schey, interview by the author, May 2, 2006, by telephone.
70 U.S. Department of Homeland Security, Office of Immigration Litigation, senior
attorney #1, interview by the author, January 17, 2012, Washington, D.C.
71 Lucas Guttentag, “Obama Administration Takes on Immigration Reform,”
Daily Kos, April 15, 2009, http://www.dailykos.com/storyonly/2009/4/15/720361/
-Obama-AdministrationTakes-on-Immigration-Reform.

6 Performing Legal Activism before the Conseil d’Etat

1 The law of February 8, 1995 created for the first time a type of public law injunction
remedy. After the review of the Code of Administrative Justice in 2000, it became
possible to obtain injunctions in cases deemed to be urgent, expanding the effi-
cacy of the injunctive power. However, the application of the référé administratif
in the immigration law context has been restrictive. “There is for the most part
a presumed absence of urgency when demanding the suspension of decisions
concerning the entry and sojourn of foreigners in irregular situation.” Matthias
Guyomar and Patrick Collin, “Chronique De Jurisprudence,” Actualité Juridique
Droit Administratif (2001): 467.
2 These themes were echoed in recent parliamentary debates preceding the estab-
lishment through legislation in February 2014 of a limited form of class action
(actions de groupe) in the area of consumer rights. There is currently no discus-
sion of extending this mechanism to encompass lawsuits against the state. See
Cécile Prudhomme, “La France s’ouvre à l’action de groupe,” Le Monde, May 3,
2013, 6.
3 In her study of judicial dialogues in the United Kingdom, Susan Sterett observes a
somewhat similar phenomenon in a national context where constitutionally based
judicial review has traditionally been similarly circumscribed. According to Sterett,
the British Law Lords’ initial moves to elaborate principles of legality and to assert
jurisdiction over a wider range of administrative acts remained deferential to cen-
tral government policies, but this shift in judicial review nevertheless had the effect
of encouraging civil society groups to adopt the language of legality when fram-
ing criticisms of the government. Susan Sterett, Creating Constitutionalism (Ann
Arbor: University of Michigan Press, 1997), 115–45.
4 As of February 2009, this position has been renamed the rapporteur public.
5 Gerard Sadik, interview by the author, July 2, 2009, Paris.
6 Philippe Waquet, interview by the author, June 12, 2007, Paris.
7 The Constitutional Council does have the authority to review the constitutionality
of legislation prior to its enactment, but this review does not take place at the request
of private litigants. In 2009, the Constitution of the Fifth Republic was modified to
allow ordinary judges to refer constitutional questions concerning previously enacted
legislation to the Constitutional Council for an advisory opinion through the ques-
tion prioritaire de constitutionnalité procedure. However, the decision to refer a
question lies within the discretion of the judges and has been used very sparingly.
For an example, see CE, November 25, 2011, Mouvement Democrate Sciences Po.
8 Waquet, interview, June 12, 2007.
9 Ibid.
10 Danièle Lochak, interview by the author, March 2, 2007, Paris.
11 Letter from André Legouy to Georgina Dufoix sent to Le Monde newspaper,
“Réponse à Madame Georgina Dufoix,” October 24, 1984, GISTI papers, n.p.
12 “Requête et Mémoire pour l’Association GISTI contre le décret 84–1080 and le
décret 84–1078,” February 4, 1985, GISTI Papers, n.p.
13 Gerard Sadik, interview by the author, July 2, 2009, Paris.
14 “Requête et Memoire pour l’Association GISTI contre le décret 84–1078 du
Ministre de l’Intérieur du 4 décembre 1984,” February 4, 1985, GISTI Papers, n.p.

15 “La Bataille Perdue des Associations,” Plein Droit, October 1992, 29.
16 “Argumentaire contre la circulaire du 25 Juin 1998,” GISTI’s Asylum Litigation,
May 15, 2001, http://www.gisti.org/doc/argumentaires/2000/asile/recours.html.
17 Letter from Marceau Long, Vice-Président du Conseil d’Etat, to Danièle Lochak,
GISTI President, September 10, 1992, GISTI Papers.
18 Bruno Latour describes this cultivated style on the part of Conseil d’Etat adjudica-
tors as a “hexis of indifference” signaling a combination of distance and precision
(Latour 2002, 214). The procedure for hearing a référé (injunction) is slightly more
informal, with a single member of the Conseil d’Etat sitting at the head of a table
at which representatives of the parties and the reporter are also seated.
19 CE, April 21, 1997, GISTI.
20 “Les Rafistolages du Conseil d’Etat,” Plein Droit, February 1988, 51.
21 CE, April 21, 1997, GISTI.
22 Waquet, interview, June 12, 2007.
23 Sylvia Zappi, “Le Conseil d’Etat Annule Plusieurs Dispositions d’Une Circulaire
sur Le Droit d’Asile Territorial,” Le Monde, January 28, 2000, 10.
24 Sylvia Zappi, “Bercy Veut Limiter Le Coût des Pensions des Anciens Combattants
Etrangers,” Le Monde, January 5, 2002, 9.
25 Bertrand Bissuel, “Le Conseil d’Etat Annule l’Arrêté du Ministre de l’Intérieur
Créant le Fichier Eloi,” Le Monde, March 14, 2007, 10.
26 Ministère de l’Intérieur, Direction des Libertés Publiques et des Affaires Juridiques,
senior legal advisor, interview by the author, February 21, 2007, Paris.
27 Note from Jean Duliège, Direction de la Population et des Migrations, to Christian
Nguyen, Conseiller Technique au Ministre des Affaires Sociales, September 22,
1984, box 26, Patrick Weil Papers, Centre de Recherche en Histoire Contemporaine.
Fondation Nationale des Sciences Politiques, Paris.
28 Note from Christian Nguyen, Conseiller Technique au Ministre des Affaires
Sociales, to Georgina Dufoix, Ministre des Affaires Sociales, September 22, 1984,
box 26, Patrick Weil Papers.
29 Conseil d’Etat, Section Sociale, senior member, interview by the author, May 23,
2007, Paris.
30 Ministère de l’Intérieur, Direction des Libertés Publiques et des Affaires Juridiques,
senior legal advisor, interview by the author, March 8, 2007, Paris.
31 E.g., the member of the Conseil d’Etat seconded to the Ministry of Interior recog-
nized the ingenuity of interpreting the penal code’s requirement of “a good chance
of social re-insertion,” as applicable only to the country of origin for migrants repa-
triated following their release from incarceration. Notes of meeting between the
Ministries of Interior and Justice on the application of reconduites à la frontière,
January 21, 1986, Archives Nationales, 19990260, box 31, Ministry of Interior Papers.
32 Letter from Claire Waquet to André Legouy, July 6, 1990, GISTI Papers.
33 CE, October 20, 1989, Nicolo, Recueil Lebon 190.
34 This phenomenon of intercourt competition is not confined to competition
among France’s various jurisdictions. According to Karen Alter, intercourt compe-
tition between courts at different levels of the national judicial hierarchy has been a
major driver of the penetration of European legal principles into the jurisprudence
of national courts. See Karen Alter, Establishing the Supremacy of European Law
(New York: Oxford University Press, 2003).

35 This area of immigration governance had not been accessible to challenge through
recours pour excès de pouvoir because it had not been the subject of written policy
regulations and had instead been left to a case-by-case balancing of equities against
state interest.
36 ECHR, March 26, 1992, Beldjoudi v. France, 12083/86.
37 Conseil d’Etat, Section des Contentieux, senior member, interview by the author,
July 11, 2007.
38 Bernard Stirn, interview by the author, February 20, 2007, Paris.
39 As the ECHR was preparing to hear a case challenging the Conseil d’Etat’s revised
decision-making procedures, which renamed the commissaire du gouvernement the
“rapporteur public” but otherwise kept the process substantially the same, senior
judges organized a meeting with French civil society associations who are frequent
litigants, including GISTI, asking them to write a letter to the Strasbourg Court in
support of the new procedures. Although GISTI had no strong opinion on the new
procedures, it ultimately decided that writing such a letter might undermine its
reputation with the ECHR. Interview with Serge Slama, August 2012 in Paris.
40 E.g., according to Alter and Vargas, the European Commission has actively
encouraged women’s groups and labor unions to use its procedures, with the
aim of increasing its institutional power by persuading national governments to
embrace European law. Karen Alter and Jeanette Vargas, “Explaining Variation
in the Use of European Litigation Strategies: EC Law and UK Gender Equality
Policy,” Comparative Political Studies 33, no. 4 (2000): 452–82. Rachel Cichowski’s
study of legal activism at the European level suggests that NGOs have also been
useful to the European Court of Justice in its efforts to institutionalize European
legal norms. Rachel A. Cichowski, The European Court and Civil Society
(New York: Cambridge University Press, 2007).
41 Waquet, interview, June 12, 2007.
42 Patrick Mony, interview by the author, January 30, 2007, Paris.
43 CE, January 14, 1998, GISTI.
44 According to the ECJ’s CILFIT decision, no referral is necessary if the answer to
the EU legal question can in no way affect the outcome of the case, if the question
raised is materially identical with a question that has already been the subject of a
preliminary ruling in a similar case, if previous decisions of the ECJ have already
dealt with the point of law in question, or if the correct application of EU law is
obvious. See ECJ, October 6, 1982, Srl CILFIT and Lanificio di Gavardo SpA v
Ministry of Health, 283/81. As a legal matter, should the Conseil d’Etat abuse its
power to decide whether these exceptions apply by refusing to refer legitimate EU
legal questions, France would be subject to legal action before the ECJ. I thank
Mitchel Lasser for clarifying this point.
45 ECJ, September 27, 2012, Cimade and GISTI, C-179/11.
46 ECHR, June 25, 1996, Amuur v. France, 19776/92.
47 ECHR, April 26, 2007, Gebremedhin v. France, 25389/05; ECHR, February 2, 2012,
I.M. v. France, 9152/09.
48 Christophe Pouly, “Le Juge Européen: L’Ultime Recours,” Plein Droit, March
2012, 31.
49 Serge Slama, interview by the author, February 10, 2007, Paris.
50 Jean-Eric Malabre, interview by the author, February 9, 2007, Paris.

51 This is particularly the case following a June 2013 decision in which the Conseil
d’Etat’s revised procedures maintaining a privileged role for the CDG, now
renamed the rapporteur public, received the ECHR’s official blessing. ECHR, June
4, 2013, Marc-Antoine v. France, 54984/09.

Conclusion: Legal Activism and Its Radiating Effects

1 533 U.S. 678, 700 (2001).
2 UN Human Rights Council, “Report of the UN Special Rapporteur on the Human
Rights of Migrants, Jorge Bustamente,” Mission to the United States of America,
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Human Rights Council, “Report of the UN Special Rapporteur on the Human
Rights of Migrants, François Crépeau,” Regional Study: Management of the
External Borders of the EU and Its Impact on the Human Rights of Migrants, A/
HRC/23/46. New York: United Nations, 2013.

U.S. Manuscript Collections

American Civil Liberties Union, New York

Immigrants’ Rights Project Papers

National Archives at College Park, College Park, MD

U.S. Department of Justice, Record Group 60

National Immigration Project of the National Lawyers Guild, Boston

Immigration Newsletter
National Immigration Project Papers

Private Collection of Carolyn Patty Blum, New York

Central American Refugee Defense Fund Papers

Rockefeller Archive Center, Sleepy Hollow, NY

Ford Foundation Grant Files

Tamiment Library, New York

Ira Gollobin Papers

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Yves Jouffa Papers
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U.S. Interviews and Oral Histories

Deborah Anker, interview by the author, January 2, 2011, by telephone.
Carolyn Patty Blum, interview by the author, June 19, 2006, New York.
Larry Daves, interview by Virginia Marie Raymond, May 28, 2008. Institute of Oral
History, University of Texas, El Paso.
Steven Forester, interview by the author, February 25, 2005, by telephone.
Adam Green, interview by the author, August 29, 2006, by telephone.
Lucas Guttentag, interview by the author July 31, 2006, by telephone.
Linton Joaquin, interview by the author, June 14, 2006, by telephone.
Dan Kesselbrenner, interview by the author, January 20, 2012, Boston.
Larry Kleinman, interview by the author, November 22, 2011, by telephone.
Ira Kurzban, interview by the author, April 6, 2006, by telephone.
Cheryl Little, interview by the author, June 6, 2006, by telephone.
Doris Meissner, interview by the author, April 13, 2006, by telephone.
Bruce A. Morrison, interview by the author, June 15, 2006, by telephone.
Karen Musalo, interview by the author, January 20, 2006, San Francisco.
Burt Newborne, interview by the author, June 16, 2006, New York.
Chris Nugent, interview by the author, June 28, 2006, Washington, DC.
Judy Rabinovitz, interview by the author, May 25, 2006, by telephone.
Lory Rosenberg, interview by the author, May 24, 2006 and August 17, 2014, by telephone.
Gary Silbiger, interview by the author, September 5, 2006, by telephone.
Rick Swartz, interview by the author, June 2, 2006, by telephone.
Peter Schey, interview by the author, May 2, 2006, by telephone.
U.S. Department of Homeland Security, Office of Immigration Litigation, senior attor-
neys #1 and #2, interviews by the author, January 17, 2012, Washington, DC.
U.S. Department of Justice, Asylum Office, senior attorney, interview by the author,
February 25, 2005, Washington, DC.

U.S. Department of Justice, Executive Office for Immigration Review, senior attorney,
interview by the author, January 10, 2012, Washington, DC.
U.S. Department of Justice, Immigration and Naturalization Service, Office of General
Counsel, senior attorney #1, interview by the author, June 16, 2006, by telephone.
U.S. Department of Justice, Immigration and Naturalization Service, Office of General
Counsel, senior attorney #2, interview by the author, June 20, 2006, by telephone.
U.S. Department of Justice, Immigration and Naturalization Service, Office of General
Counsel, senior attorney #3, interview by the author, July 20, 2006, by telephone.
Michael Wishnie, interview by the author, May 2, 2005, New York.
Carol Wolchok, interview by the author, June 1, 2006, by telephone.

France Interviews and Oral Histories

Jean-Pierre Alaux, interview by the author, January 26, 2007.
Bernard Aubrée, interview by the author, June 22, 2009, Paris.
Jean-Michel Belorgey, interview by the author, November 29, 2006, Paris.
Christian Bourguet, interview by the author, February 15, 2007, Paris.
Commission des Recours des Refugiés, senior judge, interview by the author, February
28, 2007, Paris.
Conseil d’Etat, Section Sociale, senior member, interview by the author, May 23,
2007, Paris.
Conseil d’Etat, Section des Contentieux, senior member, interview by the author, July
11, 2007.
Benjamin Demagny, interview by the author, June 22, 2009, Paris.
Nathalie Ferré, interview by the author, January 2, 2011, Paris.
Hélène Gacon, interview by the author, July 29, 2005, Paris.
Marie Hénocq, interview by the author, June 22, 2009, Paris.
François Julien-Laferrière, interview by the author, March 6, 2007, Paris.
Henri Leclerc, interview by the author, June 4, 2007, Paris.
Danièle Lochak, interview by the author, March 2, 2007, Paris.
Jean-Eric Malabre, interview by the author, February 9, 2007, Paris.
Hélène Masse-Dessen, interview by the author, June 27, 2007, Paris.
Ministère de l’Intérieur, Direction des Libertés Publiques et des Affaires Juridiques,
senior legal advisor, interview by the author, February 21, 2007, Paris.
Ministère de l’Intérieur, Direction des Libertés Publiques et des Affaires Juridiques,
senior legal advisor, interview by the author, March 8, 2007, Paris.
Patrick Mony, interview by the author, January 30, 2007, Paris.
Claire Rodier, interview by the author, June 26, 2007, Paris.
Vanina Rocchioli, interview by the author, June 22, 2009, Paris.
Gérard Sadik, interview by the author, July 2, 2009, Paris.
Bernard Schmid, interview by the author, June 24, 2009, Paris.
Serge Slama, interview by the author, February 10, 2007 and August 6, 2012, Paris.
Bernard Stirn, interview by the author, February 20, 2007, Paris.
Maxime Tandonnet, interview by the author, December 5, 2011, Paris.
Frédéric Tiberghien, interview by the author, June 20, 2010, Paris.

Transcript, GISTI Journée Histoire et Mémoire, transcribed by Liora Israel, December

8, 2000. Groupe d’Information et de Soutien des Immigrés, Paris.
Philippe Waquet, interview by the author, June 12, 2007, Paris.

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Actor Network Theory, 11–13 attourney’s fees, 81, 84, 106
administrative law – France
absence of class actions, 185n. 2 Badinter, Robert, 91
notion of Etat de droit, 64–5 barreau, 38, 68, 90
notion of public order, 47, 65 bidonvilles, 170n. 35
référé procedure, 157, 185n. 1, 186n. 18 bloc de constitutionnalité, 64
scope of review, 127 Board of Immigration Appeals, U.S.
adversarial legalism, 104, 109–114, 155 Department of Justice, 121
agricultural workers, 33, 108 Bourguet, Christian, 41
Aide Nationale d’Assistance aux Frontières boutiques de droit, 38
pour les Etrangers, 94 Bouziri, Said, 39, 72
Algerian War, 39, 40, 42, 71, 139 Brigham, John, 155, 159
alphabétisation, 171n. 40 Brown v. Board of Education (1954), 29, 50, 156
Alter, Karen, 186n. 34, 187
American Baptist Churches v. Thornburgh Calavita, Kitty, 6, 27, 161
(N.D. Cal. 1991), 108–9, 110, 112, 113, 116, California Rural Legal Assistance, 33
117f. 2, 118, 121 Carter administration enforcement, 56, 60
American Bar Association, 62, 81, 178n. 32 catalytic effect of rights, 159
American Civil Liberties Union, 83–4 cause lawyering, 19–21
American Civil Liberties Union Immigrants’ Center for Autonomous Social Action –
Rights Project, 79, 84, 86, 87, 88, 122, 123 General Brotherhood of Workers, 31,
American Committee for the Protection of 32, 35, 78
the Foreign Born, 34, 172n. 3 Central American Refugee Defense Fund, 85
American Immigration Council Legal Action Chavez, Cesar, 33, 59
Center, 164 Chicano movement, 30, 32
American Immigration Lawyers Association, Chirac immigration policies, 147
33, 34, 62, 83, 88 Cichowski, Rachel, 20, 187n. 40
American Political Development Cimade, 39, 44, 100
scholarship, 49 Circuit Courts of Appeal – United States, 123
Amnesty International France, 100 civil rights movement, 29, 50
Ansley, Frances Lee, 163 class action lawsuits
Asian-American community law offices, 33 basic features, 105–6
Asylum Corps – United States, 116, 118 on behalf of Central Americans, 108,
asylum seekers – Central American, 85, 116, 121
177n. 17 on behalf of legalization applicants, 108, 125

207

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208 Index

class action lawsuits (cont.) European Union immigration policies,

against immigration enforcement by the 148, 162
states, 124 expedited removal program – United States, 103
against refugee interdiction programs, 108
Clinton administration enforcement, 120 Ford Foundation, 20, 52, 61, 80, 81–2, 83–4,
Comaroff, John, 5 85–7, 180n. 73
commissaire du gouvernement, 70, 130 Foucault, Michel, 38, 90
comparative method, 13–15, 16 France Terre d’Asile, 94
Conant, Lisa, 5, 158
Confédération Française Démocratique du Galanter, Marc, 2, 8, 45
Travail, 37, 39, 42, 66, 67, 69, 71, 74, 92, Garrett, Jim, 117f. 2
174n. 47 gauche juridique, 37
Confédération Générale du Travail, 69, 71 Geneva Convention on Refugees (1951),
Congressional Black Caucus, 61 173n. 24
Conseil d’Etat – France Genevois, Bruno, 98, 128, 179n. 66
authority of, 141, 146 Ginsburg, Abby, 35f. 1
decision-making procedures, 130, 135 Giscard d’Estaing migrant return
formalist aesthetics, 136–7 program, 68, 72
government responses, 138–9 GISTI
organizational setting, 129 bureau, 44
response to European jurisprudence, 144, 146 contre-expertise, 42
Constitutional Council – France, 64, 185n. 7 early litigation, 67
constitutional dialogues, 128 early publications, 40
constitutive legal theory, 5 finances, 95
contre-expertise, 38, 90 founding, 26
corporate law firms, 110, 178n. 35 origins of name, 39
Cour de Cassation – France, 66, 144 Plein Droit, 95, 97
Coutin, Susan Bibler, 2, 6, 108, 177n. 17 programmatic vision, 91
relations with Conseil d’Etat, 98, 128, 130
Dauvergne, Catherine, 10, 161, 164 relations with other legal organizations,
de Felice, Jean-Jacques, 42, 170n. 33 94, 100
Department of Homeland Security – United relations with Socialist governments, 92–3,
States, 123 95, 96, 99
Department of Justice – United States reliance on member volunteers, 97
Civil Rights Division, 60 GISTI decision of 1978, 69–71, 131
Office of Immigration Litigation, 114, 120 globalization of law, 15
Direction de la Population et des Gollobin, Ira, 34, 169n. 22
Migrations, 20, 99 Graham v. Richardson (1971), 51
Direction des Libertés Publiques et des Groupe d’Information sur les Prisons, 38
Affaires Juridiques, 20, 138, 141–2 Guiraudon, Virginie, 4, 146, 158, 163
disputing studies, 5 Guttentag, Lucas, 84, 117f. 2, 124
double-peine opposition Gzesh, Susan, 35f. 1
movement – France, 96
Haitian Centers Council v. Sale
ecole National d’Administration, 39 (E.D. NY 1993), 181n. 20
Epp, Charles, 104, 150 Haitian Refugee Center, 31, 56
European Convention on Human Rights, 66 Haitian Refugee Center v. Civiletti
European Court of Human Rights, 144, 145 (S.D.Fla. 1980), 56–7, 61
use by immigrant rights advocates, 147, 149 Harisiades v. Shaughnessy (1952), 1, 172n. 3
European Court of Justice, 144 Helton, Arthur C., 62, 87
referral procedures, 148 Hesburgh Commission, 60, 61
use by immigrant rights advocates, 148 Hollifield, James, 3

Illegal Immigration Reform and Immigrant legal services programs – United States federal
Responsibility Act (1996) – United States, government, 29, 33, 36, 80, 82, 83, 88, 180n. 1
103, 119 Legomsky, Stephen H., 10, 171n. 1
immigrant workers – France, 40 Ligue des Droits de l’Homme, 37, 91, 93
Immigration Act (1965), 59 Lochak, Danièle, 71, 93, 97, 98, 157, 179n. 62,
Immigration and Naturalization Service – 179n. 65
United States, 26, 106, 110, 113, 119 Louis v. Nelson (S.D. Fla 1982), 57–8, 62, 87,
litigation strategy, 115–16 180n. 8
immigration policy implementation LULAC v. INS (C.D. Cal. 1988), 182n. 38
– France, 140–1 Lynch, Michael, 6
– United States, 114–20
Immigration Reform and Control Act (1986) – Malabre, Jean-Eric, 149, 187n. 50
United States, 63, 86, 88, 108, 115 Marcellin-Fontanet Circulars, 66–8, 72
impact litigation, 81 Mather, Lynn, 6, 48
INS v. St. Cyr (2001), 122–3 Matthews v. Diaz (1976), 51, 169n. 19
intellectuals–role in France, 90 Maugendre, Stéphane, 162
interviews conducted by author, 16–17, 190–2 May 1968, 37, 65, 90
Israel, Liora, 20, 168n. 5, 170n. 34, 174n. 53 participation of immigrant workers, 39
McCann, Michael, 8, 19, 81, 159
Jean v. Nelson (1985), 58–9 McGee, Kyle, 12
Joppke, Christian, 4 McNary v. Haitian Refugee Center (1990),
Julien-Laferrière, François, 93–4 181n. 16
juridification of administrative governance, 9, Merry, Sally, 7, 158
104, 128, 160 Mexican American Legal Defense and
jurisdiction stripping – United States federal Education Fund, 52–3, 59, 60, 61, 85
courts, 119–25 migration policy restrictionism
liberal responses, 120 early 20th century, 28
jurisprudential regimes, 48 globalization-related, 161–2
post-1973, 27
Kagan, Robert, 104, 155, See also adversarial Mitterrand, François, 71, 74, 92, 144
legalism Mitterrand immigration policies, 75, 132
Kahn, Jeffrey S., 31, 32, 173n. 25 Morawetz, Nancy, 123, 184n. 57
Kanstroom, Daniel J., 161 Motomura, Hiroshi, 58, 157
Kesselbrenner, Dan, 125, 178n. 38, 181n. 23 Mouvement d’Action Judiciaire, 38, 39, 42, 97
Knorr Cetina, Karin, 13, 24
Kurzban, Ira J., 56, 57, 58, 88, 169n. 15 National Association for the Advancement of
Colored People, 80
Lasser, Mitchell, 144, 145 National Center for Immigrants’ Rights, 26,
Latour, Bruno, 7–8, 11–13, 23, 77, 186n. 18 36, 52, 86
Law, Anna O., 10, 107, 158, 184 National Emergency Civil Liberties
Law, John, 12–13 Committee, 56, 169n. 22
law reform studies, 21 National Immigration Forum, 61, 63
law school clinics, 181n. 12 National Immigration Law Center, 79, 86, 87,
Lawyers Committee Refugee Rights 88, 182n. 25, See also National Center for
Project, 87 Immigrants’ Rights
legal activism definition, 20–21 National Lawyers Guild, 29, 35f. 1
legal complex, 79, 101, 160 National Lawyers Guild National Immigration
legal consciousness, 6 project, 25, 79, 85, 86, 172n. 3
legal culture, 14 founding, 34–7
legal formalism, 131–3, 151 newsletter, 89
legal mobilization, 9, 27, 155, 159 Nelken, David, 14, 21
legal narratives, 9, 20, 59–64, 71–6, 118, 159 Ngai, Mai, 28

Olivas, Michael A., 52, 60, 157, 184n. 64 Schuck, Peter H., 76, 106, 157, 180n. 6
Orantes-Hernandes v. Meese (C.D. Cal 1988), Shapiro, Martin, 104
108–9, 111, 112, 116, 121 Silbey, Susan S., 6
Silbiger, Gary, 35
plenary power doctrine, 51, 107, 122, 157, Silverstein, Gordon, 9, 104
171n. 1 Slama, Serge, 100, 143f. 3, 149, 187n. 39
Plyler v. Doe (1982), 51–5, 60, 62, 157 Smith, Debbie, 117f. 2
pro bono lawyering, 87, 108, 178n. 35 Société Nationale de Construction de
professional cohort, 34, 37 Logements pour les Travailleurs,
prosecutorial discretion, 123–4 26–7, 40
public interest law firms, 19, 80–2, 83–4, 97 Sterett, Susan, 4, 167n. 3, 185n. 3
Stone Sweet, Alec, 9, 128, 139, 174n. 45
Ratner, Michael, 35f. 1 Swartz, Dale ‘Rick’, 56, 61, 62, 63, 88
Reagan administration enforcement, 57, 107, symbolic power of law, 6–7, 13, 50, 60, 62, 111,
119, 181n. 10 130, 145
Refugee Act (1980), 61, 107, 115
right to family life, 69–71, 97, 131 United Nations Special Rapporteur on the
Riles, Annelise, 12, 14 Human Rights of Migrants, 162
Roberts, Simon, 5
Rosenberg, Lory, 34, 181n. 12, 183n. 52 Valverde, Mariana, 12, 156
Van der Hout, Marc, 35f. 1, 85, 117f. 2
Sadik, Gérard, 130
San Antonio School District v. Rodriguez Waquet, Philippe, 41, 68, 93, 185n. 8
(1973), 172n. 9 Warren Court civil rights jurisprudence, 49–51
sans-papiers movement – France, 96 Wasby, Steven, 18
Santos, Boaventura de Sousa, 161, 163 Weil, Patrick, 71, 73, 74–5, 140–1, 167n. 5,
Sarat, Austin, 20 175n. 53, 179n. 62
Sarkozy immigration policies, 147 Weiler, Joseph H.H., 151
Sbicca case, 25–6, 36, 83, 117 Wickersham Commission, 28
Schain, Martin A., 5
Schechter, Lori, 117f. 2 Yaroshefsky, Ellen, 117f. 2
Scheingold, Stuart, 20 Yngvesson, Barbara, 6, 48
Scheppele, Kim Lane, 15
Schey, Peter, 35f. 1, 36, 52, 53, 54, 56, 60, 78, Zadvydas v. Davis (2001), 122–3, 158
79, 83, 84, 123, 125, 169n. 9, 173n. 39, Zolberg, Aristide, 59, 62, 168n. 6
181n. 21

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The Role of Youth in Building A Smart India
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The Role of Youth in Building A Smart India
2 pages
RRB Crash Course
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RRB Crash Course
15 pages
Integrative Assessment PPT Rey Reyes 2
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Integrative Assessment PPT Rey Reyes 2
63 pages
RISA-2D Educational Tutorial
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RISA-2D Educational Tutorial
18 pages
Rey's Thesis Chapter 1-5 Final Draft
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Rey's Thesis Chapter 1-5 Final Draft
47 pages
Individual Learner's Record (LR)
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Individual Learner's Record (LR)
2 pages
Cylinder Cooling Tutorial - SimFlow CFD Software
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Cylinder Cooling Tutorial - SimFlow CFD Software
33 pages
Human Detection Robot For Disaster Management
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Human Detection Robot For Disaster Management
9 pages
LT LG400 13 Inspection Maintenance Procedures
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LT LG400 13 Inspection Maintenance Procedures
6 pages
Sk-2.0-Fizik Topikal Answers F5 C1
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Sk-2.0-Fizik Topikal Answers F5 C1
4 pages
Human Memory
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Human Memory
8 pages
Suggested Ideas For Debate Topics
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Suggested Ideas For Debate Topics
4 pages
Muhammad Atiq - 2021
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Muhammad Atiq - 2021
3 pages
Metadata Digestive System Grade 6 Week 2 Q2
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Metadata Digestive System Grade 6 Week 2 Q2
1 page
Atsumi Nr60qs Nr110qs Nr160qs Eng Catalog
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Atsumi Nr60qs Nr110qs Nr160qs Eng Catalog
2 pages
Managing Meetings As A Supervisor
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Managing Meetings As A Supervisor
2 pages
BA 170-4 - LearningLog3 - Santos
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BA 170-4 - LearningLog3 - Santos
1 page
Lawyers at Work
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Lawyers at Work
Herbert M. Kritzer
5/5 (1)
Indigenous Rights: Changes and Challenges in the 21st Century
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Indigenous Rights: Changes and Challenges in the 21st Century
Sarah Sargent
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The Convention on International Trade of Endangered Species: Local Authority and International Policy
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The Convention on International Trade of Endangered Species: Local Authority and International Policy
Jonathan Liljeblad
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Campaigning for Justice: Human Rights Advocacy in Practice
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Campaigning for Justice: Human Rights Advocacy in Practice
Jo Becker
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The New States of Abortion Politics
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The New States of Abortion Politics
Joshua C. Wilson
3/5 (2)
Hot Topics in the Legal Profession: 2017
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Hot Topics in the Legal Profession: 2017
Steven Alan Childress
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