Introduction
A thorny conundrum marks public interest lawyering. On the one hand, the tradition essentially orients toward legal procedure. Particularly for attorneys who focus on individual client representation, the tradition posits that lawyers make a positive impact by assisting people navigating legal processes (Scheingold and Sarat Reference Scheingold and Sarat2004). It evokes the conventional logic of procedural justice, associating procedure with dignity and participation in legal processes with the opportunity to be respectfully heard (Waldron Reference Waldron2012). In this framing, counsel is a prerequisite to meaningful participation (Zimerman and Tyler Reference Zimerman and Tyler2010). Public interest lawyers help ensure that even those with few resources enjoy due process.
Yet the perceived risk of centering procedure in this way has also shaped public interest law’s trajectory. In parallel with broader debates about law’s and lawyers’ ideal roles in the pursuit of social change (Cummings Reference Cummings2017; Reference Cummings2018; Johnson Reference Johnson1991), critics warn that focusing on procedure advances institutional interests, rather than the interests of people. On this view, conventional conceptualizations of procedural justice are “oriented toward legitimating state power, even state violence” (Akbar Reference Akbar2023: 2505). Seeking to avoid this entrenchment, revitalized visions of public interest law ask how attorneys can instead contribute to transformative power redistribution. Putting this into practice, lawyers strive to involve, educate, and empower clients, transferring knowledge, agency, and ownership over legal processes to clients themselves. These interpretations of the tradition thus offer, at least theoretically, one imagining of how attorneys might subvert oppressive sociolegal systems even as they work from within them.
In reality, however, law’s politicization may obstruct this work. Legal settings that thwart opportunities for meaningful participation in legal processes – whether through restrictions on due process or the systemic disruption of pathways to legal protection – undermine the promise of procedural justice, rendering process itself problematic (Talesh Reference Talesh, Greenspan, Aviram and Simon2019). Correspondingly, these settings also interfere with public interest lawyers’ core strategies. Structural, institutional, and political contexts determine public interest law’s potency (Tremblay Reference Tremblay1992). Legal environments defined heavily by bureaucracy may especially blunt public interest lawyering’s efficacy (Johnson Reference Johnson1991: 178). These conditions can in turn produce existential trouble among lawyers regarding their own professional impact, role, and participation within legal systems they perceive as unjust.
This study examines the U.S. asylum system as one such legal setting. The U.S. immigration system at large is a world with its own robust vocabulary of acronyms, opaquely numbered forms, and formal as well as informal rules. Those navigating it must conform to extremely precise guidelines about how to complete certain administrative actions, in what order, and by which date; comply with cumbersome instructions as to where to be, and when; and typically wait months or even years to see their way through to the other side of the bureaucratic maze. Moreover, the immigration system’s procedural infrastructure is neither static nor neutral: changes in procedure often serve the political agendas that animate policy. Especially in the asylum context, the evolving weaponization of legal procedure to advance anti-immigrant objectives is well-documented, whether in entry processes, removal practices, or adjudicatory proceedings (e.g, see Moynihan et al. Reference Moynihan, Gerzina and Herd2022 and Schoenholtz et al. Reference Schoenholtz, Ramji-Nogales and Schrag2021).
Examining these conditions in depth, this study explores how the U.S. immigration system’s current reality shapes the aspirations, capabilities, and tactics of public interest lawyers. The article addresses two central questions. First: How do public interest asylum attorneys understand legal procedure in the course of their work? And second: In the asylum context, what impact does procedure have on the efficacy of client-centered public interest lawyering? Based on ethnographic observations conducted over the course of twenty months of fieldwork at Defend Asylum (DA),Footnote 1 a nonprofit organization providing legal aid to asylum seekers, this study reveals how procedural issues dominate the day-to-day work of asylum attorneys. Crucially, procedure often figured not as the vehicle through which my participants advanced their objectives, but rather as a hindrance to their aspirations: the procedural landscape constrained their ability to achieve meaningful transformation through client relationships.
This article argues that the politicization of the U.S. immigration bureaucracy hinders the agenda of public interest lawyers. These attorneys’ professional identity is fundamentally proceduralist: their professional training socializes them to see the various processes, forms, and petitions that litter the immigration bureaucracy as levers that, when engaged appropriately, catalyze not only positive case outcomes but also a sense of agency, recognition, and justice for people navigating the system. Yet the procedural matrix lawyers confront while representing clients – an assemblage of bureaucratic channels, court protocols, and shrouded policy directives – is rarely arranged to serve their project. To the contrary, they find that it often advances procedural injustice. Beyond the immediate harms accruing to people seeking asylum, this dynamic undermines the driving logic of public interest law. Attorneys may be well-positioned to help level an uneven playing field, but here they confront a more formidable environment in which the rules of play continually change (often without transparency), the pace of play is erratic, and access to the playing field is blocked for many people.
The article proceeds first with a review of the literature on the dualities of public interest law, the salience of legal procedure, and the particularities of lawyering within the U.S. immigration system. The subsequent section describes the study’s methodology. Next, the article’s analysis proceeds in four sections. As a point of departure, the analysis illustrates the extent to which lawyers intuitively believe in procedure’s value. When institutional procedures interfere with the advancement of justice, lawyers may lean into their own internal procedural mechanisms to preserve a sense of procedural justice for clients. And yet, as the analysis proceeds to show, this strategy often evades lawyers, who can only do so much to insulate clients from procedural injustice. The procedural matrix lawyers encounter within the U.S. asylum bureaucracy corrupts lawyering strategies conceived to catalyze enduring, transformative social change, instead rendering them reactive, short-lived, and passive. The article concludes by highlighting the study’s broader implications, as well as its limitations and corresponding suggestions for future research. At bottom, this study helps theorize the uneasy relationship between law and justice. More concretely, it extends scholarly research on how the politicization of legal systems undermines the principle of procedural justice, and with what effect; how hostile legal settings strain public interest lawyers; how access to counsel relates to access to justice; and, finally, how lawyers might meaningfully contribute to social transformation.
Procedure’s primacy, promise, and perils
Procedure sits at the heart of one of public interest law’s core projects: making legal systems work for people those systems generally exclude. Although no easy boundary exists between procedural and substantive justice, public interest lawyers generally treat the former as the means to the latter. On this view, the formalism of legal proceedings affords leverage to those who otherwise experience disadvantage, since “when informality is freed from all formal constraints, law simply reflects the distribution of power in the larger society,” leaving inequality unchecked (Abel Reference Abel1985: 379). Influential research on “procedural justice” bolsters this orientation toward procedure, suggesting that the perception of fair process – even more than the actuality of legal outcomes – determines people’s sense of justice (Thibaut and Walker Reference Thibaut and Walker1978; Tyler Reference Tyler1988).
Within this framework, lawyers are gatekeepers to exclusionary legal institutions (Galanter Reference Galanter1974; Hunt Reference Hunt1990; Marshall and Hale Reference Marshall and Hale2014), poised to ensure symmetrical participation. Research examining how lawyers make a difference to case outcomes affirms attorneys’ bearing on procedural matters. Attorneys’ most meaningful impact may be their procedural savvy and their familiarity with legal institutions and actors, rather than their substantive expertise (Sandefur Reference Sandefur2015; cf. Ryo Reference Ryo2018). Moreover, lawyers play an active role in helping courts adhere to their own rules of fairness (Sandefur Reference Sandefur2015). Within the immigration context, lawyers help ensure due process protections that accelerated procedures threaten (Eagly and Shafer Reference Eagly and Shafer2015) and defend people against procedural harms such as in absentia removal orders (Eagly and Shafer Reference Eagly and Shafer2020). Research on the experiences of unrepresented people in detention helps further discern lawyers’ impact: detained immigrants who lack counsel must instead resort to “flimsy” strategies that “involve haphazardly piecing together various legal resources to avoid deportation and achieve freedom from detention,” often unsuccessfully (Martinez-Aranda Reference Martinez-Aranda2023: 2). Applicants not fluent in English, including those who are highly educated and literate in other languages, may struggle to navigate bureaucratic forms and personnel (Martinez-Aranda Reference Martinez-Aranda2023: 6).
Notwithstanding the widespread consensus that quality legal representation minimizes power differentials between parties (Shanahan et al. Reference Shanahan, Carpenter and Mark2016), the public interest tradition reflects an enduring ambivalence surrounding lawyers’ disruptive efficacy (Cantrell Reference Cantrell2003; Cummings Reference Cummings2017; Reference Cummings2018; Johnson Reference Johnson1991). Advocates pivot as the situation demands between manipulating, reinterpreting, and reinforcing state-based conceptions of membership (Coutin Reference Coutin, Sarat and Scheingold2001). Lawyers’ “legitimacy” requires them to adhere to professional norms and to leverage their capital with state actors even as doing so distances them from their clients (Polikoff Reference Polikoff1996). They “frequently find themselves in the position of at once criticizing law as an instrument of power, but also relying upon the rule of law to check power and promote greater equality” (Cummings Reference Cummings2017: 1561). In translating clients’ claims into legally cognizable language, lawyers may alienate clients from their own self-understandings, producing “a compounded sense of disempowerment, of disentitlement, and of oppression through silence” (Robertson Reference Robertson1997: 644; see also Galli Reference Galli2019 and Lakhani Reference Lakhani2013). Although lawyers may amplify marginalized voices, they may simultaneously encourage a “loyalty and commitment” to the legal system, even from those who obtain unjust outcomes within it, that “will subsequently contribute to the stability of the institution over time” (Cohen Reference Cohen1985: 660) – in effect serving legal institutions at least as much as people. In this way, “even if they find a way to advance reform through law without destabilizing it, progressives may succeed only in tinkering at the margins and giving legitimacy to a legal order that remains structurally unfair” (Cummings Reference Cummings2017: 1562).
Commentators have reflected critically on how lawyers working with marginalized clients might maximize client autonomy and avoid perpetuating structural inequities. These critiques typically seek to establish clients as active participants in their own liberation, rather than passive victims (examples include Alfieri Reference Alfieri1987; López Reference López1992; and White Reference White1988; Reference White1989; Reference White1990). They tend to deem client education important because it facilitates the horizontal redistribution of information, empowering clients. “Client-centered” models of lawyering (Polikoff Reference Polikoff1996) and “collaborative” lawyer–client relationships (Trubek Reference Trubek1996) seek to fully inform clients of options and risks to enable them to make their own decisions. A “legal empowerment” approach pushes these tactics further, democratizing legal knowledge and equipping people with the tools to pursue justice on their own terms, with lawyers acting as partners rather than guides (Dhital and Walton Reference Dhital and Walton2020). Here, the goal is to maximize meaningful participation in legal processes – in turn mitigating power imbalances not only between advocates and clients but also between petitioners and the broader legal system (Alfieri Reference Alfieri1990; Knuckey et al. Reference Knuckey, Hoffman, Perelman, Reddy, Ancheita and Jain2020; White Reference White1989). These re-conceptualizations of public interest lawyering revitalize the profession, offering it valuable new tools.
Yet these tools may become blunted when dense bureaucracy ensnares legal processes. Operating from within procedural thickets, lawyers’ “goals have been co-opted by the state, lost in the procedural machinery they themselves set in motion,” while “their clients are disserved by additional layers of bureaucracy which remove the advocates further from the problem and their clients further from real solutions” (Johnson Reference Johnson1991: 178–179). This reality may engender existential doubt among lawyers regarding their professional value, impact, position, and participation within an unjust legal system. Legal aid lawyers working under adverse systemic conditions withstand “an endless and largely futile struggle on behalf of individual clients” (Scheingold and Sarat Reference Scheingold and Sarat2004: 83). In turn, lawyers themselves experience “marginalization” in the form of “collective experiences of strain and contradiction” (Zaloznaya and Beth Nielsen Reference Zaloznaya and Beth Nielsen2011: 920).
These challenges hold within the U.S. immigration context, where the barriers immigrants face often arise through administrative mechanisms, activating in the seemingly banal negative spaces of bureaucratic formalism. Here, the commitment to procedural fairness routinely proves “hollow or superficial” (Family Reference Family2015). Practices within deportation hearings perpetuate the devaluation of legal process, court actors, and the law itself (Dao Reference Dao2023). The procedural rules of immigration courts are notoriously inconsistent, ephemeral, and frequently unwritten (Germain Reference Germain2007). That immigration courts function less like courts and more like bureaucracies (Jain Reference Jain2019) raises questions about whether immigration lawyers help facilitate meaningful procedural justice for their clients or merely participate in a superficial mimicry of bona fide judicial processes unfolding in other settings. The immigration system’s discretionary bureaucracy further dehumanizes people by reducing them to documents (Coutin et al. Reference Coutin, Ashar, Chacón and Lee2017; Kim Reference Kim2011; Ordóñez Reference Ordóñez2008). And its processes produce alienation as well as other severe human consequences.
Moreover, acute politicization historically defines this space. Throughout the Trump-era transformation of the U.S. immigration system, toward the end of which this study commenced, a “regime of burdens” imposed by multiple government agencies accrued to take a tremendous cumulative toll (Moynihan et al. Reference Moynihan, Gerzina and Herd2022: 23), enacting a form of “hidden politics” that enabled “policymaking by other means” (Moynihan et al. Reference Moynihan, Herd and Harvey2015). Political ambitions and anti-immigrant sentiment fueled unprecedented attacks on asylum in the form of new procedural obstacles and other legal restrictions (Schoenholtz et al. Reference Schoenholtz, Ramji-Nogales and Schrag2021). This charged political environment distinguishes asylum attorneys’ experiences, since it amplifies the challenges that bureaucracies present to public interest lawyers at large.
Recent research indicates that these conditions challenge asylum lawyers’ efficacy. Tempering scholarship on immigration lawyers’ positive impact (e.g., Miller et al. Reference Miller, Keith and Holmes2015; Ramji-Nogales et al. Reference Ramji-Nogales, Schoenholtz and Schrag2007) is data suggesting their impact is contingent – potentially insufficient in itself to guarantee fair and consistent proceedings (Ryo and Peacock Reference Ryo and Peacock2021). Analyses of immigration court decisions suggest that asylum outcomes increasingly hinge on judges’ identities (TRAC Immigration 2016). Ultimately, lawyers may be necessary but insufficient to maximize justice (White Reference White1990). At the policy level, this holds important implications for access to justice advocacy, which generally exalts expanded access to counsel. A rising chorus now warns against overemphasizing lawyers as the solution to an unjust immigration system, cautioning that “winning the battle for counsel could result in ‘due process washing’ the mass deportation regime, with immigrants receiving a fairer process alongside increased rates of surveillance, detention, and expulsion” (Cházaro Reference Cházaro2023: 443). Put differently, overinvesting in the right to counsel could “mask[] the spectacle of violence taking place in the U.S. immigration system on a daily basis” and weaponize procedural justice at the expense of “real justice” (Barak Reference Barak2023: 13). At the level of individual lawyers, this fraught situation takes a human toll. Recent surveys of asylum attorneys demonstrate that they experience tremendous stress as they support clients through hostile legal terrain (Harris and Mellinger Reference Harris and Mellinger2021).
Taken together, the scholarship traced in this section sets up the puzzle that motivates this article. From the vantage point of public interest attorneys, the politicization of the U.S. immigration system newly magnifies longstanding tensions between procedure as opportunity and procedure as oppression. Past scholarship helps theorize procedure’s double-edged quality and the corresponding double-edged quality of public interest lawyering itself; it also illuminates responsive strategies that the public interest tradition embraces to maximize autonomy, agency, and justice for clients. But less is known about how the present conditions of the U.S. immigration system impact these dynamics. What does it mean to facilitate meaningful participation when procedures idle? How can lawyers hold space for clients’ voices when hearings are preemptively eliminated or perpetually postponed? What does client education entail when the system’s rules continually shift? If public interest lawyering is to remain responsive to structural imbalances of power, it is essential to understand these conundrums as they manifest in contemporary settings of procedural injustice. To that end, this article offers an ethnographic account of how the procedural matrix of the U.S. asylum system complicates attorneys’ pursuit of justice. Extending important debates about access to justice and the legal profession, it explores how those who represent immigrants under hostile political conditions make sense of their own purpose, utility, and impact.
Data and methodologyFootnote 2
This study is based on twenty months of participant observation conducted in Los Angeles at DA, a nonprofit providing legal aid to people seeking asylum in the United States. I initially gained access to the site in February 2020, leveraging my previous professional experience in refugee advocacy to join DA’s team as a legal intern. In preliminary conversations with DA attorneys, I described my research interests in broad strokes, explaining how volunteering with them may help me better understand the immigration system and lawyers’ experiences of it. At the outset of data collection, I distributed a consent information sheet to each participant and obtained their verbal informed consent to observe, engage in, and take notes on their day-to-day interactions. I ultimately made arrangements to extend my time with DA as a legal volunteer, making clear that my observations of their activity would continue to inform my doctoral research. The data grounding this study include ethnographic observations collected through October 2021. Throughout the study period, I typically devoted at least twelve hours weekly to fieldwork.
Importantly, the COVID-19 pandemic escalated shortly after my observations began and ultimately transformed my fieldwork. Although I started the internship in person, in March 2020 all of DA’s staff transitioned to a fully remote model. From then onward, data collection generally occurred remotely. Importantly, in this case, it is possible to overstate the pandemic’s disruptions. Even prior to March 2020, meetings frequently occurred in a hybrid if not fully virtual format, since my participants coordinated closely with colleagues beyond California. Collaborative work already routinely occurred at a distance, via shared digital tools. Since my participants remained fully remote throughout the study period, continuing my fieldwork remotely enabled me to meaningfully “cohabitate” the digitally mediated landscape they occupied (Bluteau Reference Bluteau2021). In making this shift, I found support in the extensive methodological literature on digitally mediated ethnography (including, e.g., Hallett and Barber Reference Hallett and Barber2014; Hine Reference Hine2015; Pink et al. Reference Pink, Horst, Postill, Hjorth, Lewis and Tacchi2016).
Participating as a legal volunteer, I primarily assisted DA’s staff with casework. DA undertakes both direct representation for indigent clients and broader immigration reform advocacy; however, the lawyers I follow in this study focus on the former. As a law school graduate, I possessed some relevant legal training but always operated under the supervision of an attorney. This arrangement, which situated me as an apprentice and encouraged me to ask many questions, helped preserve some distance between me and my participants despite our overlapping education and professional histories. I spent most of my time conducting intakes with prospective clients, drafting declarations and briefs, and researching human rights conditions in clients’ countries of origin. I typically joined four recurring weekly and biweekly meetings, including internal meetings as well as broader coalition calls that enabled me to witness exchanges among a wider network of immigration advocates. Most meetings occurred via Zoom and were not recorded. I also had weekly videoconference check-ins with my supervising attorneys, as well as regular informal interactions with staff via Slack and text message. The small size of DA’s legal team enabled me to build relationships with all staff members; however, it is important to acknowledge that I necessarily spent more time interacting with the attorneys with whom I most often worked directly, Liz and Layla.
Alongside my participatory work, I actively documented my ethnographic observations in detailed field notes. Each week, I created a new digital file of detailed jottings on my daily activities, interactions, and reflections. I used a notebook and my laptop to take notes during meetings and conversations with my participants, capturing verbatim quotes when participants used especially vivid language. I also habitually reviewed my volunteer e-mail and Slack messages to identify rich exchanges revealing lawyers’ interpretations of their experiences, summarizing key insights from these written communications in my field notes. Throughout this process, I made sensitive ethical calculations to balance the explanatory value of thick description against supreme concerns regarding confidentiality. In particular, it is important to reiterate that my fieldwork centers on lawyers’ perspectives; accordingly, DA clients are not included among my participants. To protect client confidentiality and avoid any conflicts of interest, my field notes entail only high-level, abstracted mention of my own interactions with people seeking asylum. For example, my notes following a client intake might simply state that the intake took place, with brief (if any) notes about my own experience as a volunteer (e.g., reflections on explaining a legal concept, working with interpreters, or communicating via Zoom). Client stories figured in my notes only to the extent that lawyers discussed them; even in those instances, I included them selectively and carefully omitted and abstracted details.
Following data collection, I imported my field notes into ATLAS.ti for analysis. My initial interest in the study’s themes surely arose in part – if unconsciously – from my own prior informal exchanges with public interest immigration attorneys who expressed misgivings about their roles within an unjust legal system. Still, I sought to keep an open mind and approached my data analysis inductively, prioritizing attention to the issues that apparently mattered most to my participants based on how frequently they reemerged. My analysis began with a round of “open coding,” during which I created concise labels to identify the most salient themes in my notes (Emerson et al. Reference Emerson, Fretz and Shaw1995). Some examples of early codes include “opening pathways through the legal forest,” “strain of referring people to a broken system,” “defense against U.S. government harm,” “centrality of administrative labor,” “attorneys stabilizing procedural fragility,” and “allying with clients against dark forces.” I subsequently developed analytic memos to help theorize and interpret the relationships between striking pieces of data (Emerson et al. Reference Emerson, Fretz and Shaw1995).
Lawyering within a politicized procedural matrix
For public interest asylum lawyers, procedure is an essential resource for the advancement of rights. Accordingly, its politicization threatens client-centered models of legal representation. My ethnographic observations suggest that procedure can become so painstakingly formalist that it overwhelms attorneys’ day-to-day reality of navigating the legal system, while losing its perceived democratic value and presenting as a mechanism of injustice rather than justice. Likewise, it can become so informal, dysfunctional, or inconsistent that people navigating the bureaucracy cannot reliably depend on it. These conditions disrupt the key tools public interest lawyers conventionally use to pursue transformative social change through client representation.
The first part of this analysis illustrates lawyers’ learned preference for procedure, showing how they may seek security in their own processes when external procedures cause problems. The analysis then considers what happens when this strategy is unavailable. First, it explores how procedural realities inform what is possible with regard to client participation. Procedure is theoretically framed as the architecture for participation, which in turn facilitates empowerment. Yet when politicization renders processes disordered, obstructive, or stagnant, the opportunities for empowerment through meaningful participation diminish. Participation becomes less about empowerment than about harm reduction. Next, the analysis turns to the theme of client education. Here, unpredictable and shifting procedures mean that client education necessarily becomes less about lasting redistributions of knowledge and more about short-term guidance. Finally, the analysis explores how in situations where procedure truly breaks down, public interest lawyers retain few if any of their conventional tools and instead adopt the more passive roles of witness and corroborator. These tactical transformations are not innately problematic, but they represent strained departures from public interest lawyers’ conventional strategies – adaptations necessitated by a context of politicized legal procedure.
Preserving procedural justice within a context of procedural injustice
Although the attorneys at my field site spent a considerable amount of time managing the challenges catalyzed by institutional legal processes – including those unfolding at the U.S. border, within the immigration court system, or within the local Asylum Office or other offices of U.S. Citizenship and Immigration Services (“USCIS”) – their frustration did not precipitate a wholesale rejection of procedure. Rather, when external procedures failed to serve their intended purpose, my participants often leaned more intently into procedure’s promise. My participants believed that formalism facilitates fairness. My field notes from a September 2021 coalition call I joined alongside DA staff captured the words of an attorney who expressed this sentiment succinctly: “You need some actual formal legal regularity in order to reach reliable truth.” In the context of client work, emphasizing clearly delineated processes seemingly afforded attorneys a way to maintain a semblance of progress toward justice even as the institutional procedures ostensibly intended to facilitate justice floundered. From my participants’ vantage point, formalized processes conveyed dependability. Evoking influential research on the psychology of procedural justice (e.g., Tyler Reference Tyler1988; Tyler and Rasinski Reference Tyler and Rasinski1991), lawyers’ emphasis on process suggests that they deem it crucially important for clients’ well-being.
My field notes from March 2021 document a routine staff meeting during which the office’s managing attorney, Liz, invited members of the team to unload about any challenges they had faced recently when interacting with clients. I took the opportunity to articulate the doubts I felt when prospective clients sought my reassurance about what the asylum application process entailed and whether they would ultimately win protection. How, I asked, did staff honor requests like these from people first encountering such a fundamentally unpredictable system?
Layla, a staff attorney, responded that she generally sought to establish trust by focusing on identifiable, immediate next steps. In Layla’s view, by communicating clearly about the process, and then “doing what you say you’re going to do,” attorneys “show clients that [they’re] trying” and “doing [their] best.” In managing expectations, attorneys ensure clients know they are doing everything they can but that “sometimes it’s not enough.” Liz then offered her perspective, which highlighted a perceived tension in the work of onboarding new clients. I captured her reflections in my field notes:
What’s difficult about screenings and intakes is that on the one hand, you’re the first person who has made space for them to tell their story. And on the other hand, you’re forcing them to tell their story at a time when they don’t necessarily know if it’s worth it. [T]hat’s a difficult position because there’s an inherent struggle between giving them a space, and [asking them to be] vulnerable and raw, without knowing if it’s something that will help them down the line. One thing I try to communicate at any stage is that they’re going to have to tell their story to a lot of strangers a lot of times between now and the very end. These are early days in a lengthy process—hopefully building up to presenting before an Immigration Judge or an Asylum Officer. So hopefully we are helping them to prepare for this journey. This will help them and equip them to share their story in an effective way which is ultimately what will help them win their case.
Both Layla’s and Liz’s comments took as a starting point the volatility of the asylum system. Layla explicitly acknowledged that even the most committed legal representation may not be “enough.” Liz gestured toward the system’s unpredictability, albeit less directly, by twice hedging her description of the process with a “hopefully” that signaled a lack of guarantees. These concessions acknowledged the limits of their power as lawyers, which the system constrains (Ryo and Peacock Reference Ryo and Peacock2021). Liz’s comments also captured the ways that lawyering work necessarily – if regrettably – replicates the intrusions that the legal system makes on people, requiring them to make themselves “vulnerable and raw” to gain protection (Galli Reference Galli2019; Robertson Reference Robertson1997). The unpredictability and, ultimately, the potential for unfairness and injustice that both Liz and Layla took for granted are well-documented flaws of asylum procedure (Ramji-Nogales et al. Reference Ramji-Nogales, Schoenholtz and Schrag2007).
Yet both set of reflections indicated that, at least under certain conditions, lawyers meet flawed procedure by doubling down on procedure, rather than opting for an alternative logic. In trying to shore up prospective clients in the face of dehumanizing bureaucracy, my participants sometimes deemed the best tool in their arsenal to be the production of a reliable miniature, internal system of procedural justice, nested within the broader environment of procedural injustice. For Layla, the most effective way to build trust with clients was to delineate procedure (emphasizing well-defined next steps) and then to meticulously follow through on those steps. Similarly, Liz ameliorated the intrinsic tension of the intake interview by situating it as the first step in a grueling process and framing it as an important rehearsal for the final, pivotal steps in that process. This approach risked frustrating some clients. In August 2020, for example, a prospective client with whom I had conducted an intake interview emailed me to say that he had found counsel elsewhere and no longer required DA’s services. I recorded in my field notes a striking line from his message: “I can see that Defend Asylum does a great job. However, it has an exhausting non-practical long process of [case] selection and screening.” Liz’s comments during the March 2021 staff meeting reflected her belief that the length and gravity of the overarching “journey” justify – or at the very least contextualize – the burdens that lawyers impose even as they seek to support clients, since these burdens constitute a kind of training that will best position clients to win their cases. The prospective client’s decision made me realize that I had to some degree internalized this view: in my field notes, I observed my own concern that any attorney who promised this applicant swifter action may only be able to deliver by sacrificing the quality of representation. In sum, this perspective reflects an investment in procedures as well as outcomes in that it conceptualizes the former as the means to the latter.
But my participants also showed an affinity for procedure even when it apparently could not translate into substantive justice. Their emphasis on procedural formalism shaped not only the tendencies of their internal systems but also how they engaged the system within which they operated – even as it failed to deliver on their objectives. Even as processes break down, and the likelihood of a particular submission delivering a remedy diminishes, lawyers may see value in going through the motions of preparing seemingly doomed submissions. In one striking example of this, Layla chose to invest time and energy to prepare both a non-refoulement interview (NRI) request and a humanitarian parole application for a client who was stranded by the Migrant Protection Protocols (MPP),Footnote 3 even though she considered both efforts most likely futile. To prepare these materials, which were not routine filings for the organization, Layla had to first speak with other attorneys with direct experience of the forms to learn best practices. Layla then asked me to support her with the research, writing, and narrative framing involved in each of the petitions. Each request required us to thoughtfully engage the facts of the client’s circumstances and develop arguments around them. Yet even as we embarked on this work, Layla foregrounded her skepticism as she explained the project to me. My field notes from September 2021 record her frank statement that
really neither are being granted right now due to the border shutdown… [Another organization] recently had a successful NRI, but that was a mother and two children with health issues. [A third organization] had a successful humanitarian parole for a client who needed medical attention, but these are the only two success stories I’ve heard so far.
Given that our client was a single man with no acute medical vulnerabilities, she warned me, “I want to let you know that this will likely not be a successful application.” Layla went on to tell me bluntly that she would never charge anyone for these legal services under these conditions – they were so likely to fail that she only felt comfortable pursuing them because her labor came at no cost to the client.
Importantly, in Layla’s calculus, the benefit to the client was psychological: Layla explained to me during one of our check-ins that her decision to file the applications arose purely from a desire to help the client cope. Although she did not expect the petitions to bear fruit in terms of a substantive victory, Layla’s choices reflected her conviction about the positive mental and emotional impact of having some legal action – however unpromising – underway. As Layla saw it, the psychological relief she wished for the client would derive from the sense of possibility afforded by an application process; it did not depend on the unlikely outcome of actual success.
Whether in the context of internal organizational processes or when grasping at straws within the matrix of state bureaucracy, attorneys rely on the intentional creation of game plans and next steps, as well as the manufacture of short-term momentum, to insulate clients from the frustration and anxiety of a stalling, erratic system. In this way, attorneys leverage procedural labor as a form of emotional labor and invest in the psychological promise of procedural justice (Tyler Reference Tyler1988). They apply this procedural labor as a balm against the systemic procedural injustice that they see to define the experiences of people seeking asylum.
Overall, however, these efforts are insufficient to reverse the full effects of the asylum system’s procedural contradictions: its insistence on procedural formalism even as many of its procedural mechanisms falter or work against substantive justice. Even as lawyers strive to ensure for clients a sense of momentum, the politicization of the immigration bureaucracy interferes with opportunities for clients to participate in ways that meaningfully advance their interests.
Constraints on client participation
In the U.S. immigration context, casework often consists of handling procedural issues with significant real-world implications for clients (Coutin Reference Coutin, Sarat and Scheingold2001). Despite the importance of these issues, the challenging nature of procedural work here is less conducive to liberatory models of lawyer–client collaboration. Compared with more substantive work – for example, the collection of evidence, the development of written declarations, or the evocation of a clear narrative about the client’s past experiences – the nature of procedural work makes it less suited to client participation because it relies not only on attorneys’ institutional expertise but also on their unique resources, such as their position within professional networks, their authority as attorneys, and their ability to devote significant time to bureaucratic affairs. In some situations, DA’s staff devised creative workarounds to this. For example, in a December 2020 staff meeting, Monica, an in-house social worker, described spending hours role playing with clients to teach them how to follow up directly with the Social Security Administration about their benefits. Yet overall, the hostile, politicized nature of the procedural infrastructure – that is, the fact that procedural issues increasingly present as potential harms to defend against, rather than as opportunities to maximize clients’ interests – transforms the aims of client participation. Even when client participation is possible, it is less likely to result in the client’s positive empowerment per se. Instead, it situates clients to take clear-eyed ownership over their own defense in a system with severe repercussions.
The procedural work that lawyers undertake necessitates weighted deliberations about how and when to execute procedural actions that bear potential positive outcomes for clients but also carry risks. During a July 2020 supervision check-in with Liz, the import of this work became apparent. As documented in my field notes, Liz provided me with an update about an asylum case denied at the Board of Immigration Appeals, which she hoped to appeal before the Ninth Circuit. Liz explained that another attorney was already working on the Petition for Review (“basically just a form”) while Liz meanwhile focused on whether or not to file a Motion for Stay of Removal, since the Ninth Circuit does not have an automatic stay of removal. Liz clarified that “previously, in her day, the answer was a straightforward ‘Yes’” but that the nature of the Ninth Circuit had changed since Trump nominees now largely occupied the courts, meaning that Motions today would more likely result in denials. Accordingly, some attorneys had changed tactics, choosing not to immediately file a Motion to Stay and instead letting clients fly under the radar until ICE tried to deport them, at which point they would file an Emergency Stay of Removal. Liz, however, emphasized her discomfort with this approach, since it
causes a huge amount of anxiety for the client, knowing that at any moment they could be deported… And if ICE starts deportation proceedings you could end up in a situation where you’re in a detention cell somewhere cold and about to get deported and it’s being filed then, at the final hour….
Liz also worried, “What if I end up being sick or indisposed or in the hospital or something, then what happens to the client?” Liz ultimately decided to place the decision fully in the client’s hands: she explained all the options, benefits, and risks, and asked the client to make a decision by the end of the week.
The complexity of the circumstances that necessitated the decision underscored how procedural matters are rarely superficial – to the contrary, they have deep implications for client well-being (Family Reference Family2015; Germain Reference Germain2007). More specifically, the situation emblematically arose out of a need to insulate the client from worst case scenarios. Liz’s explanation of her reasoning showed how the current political moment created new vulnerabilities, forcing applicants to choose between two precarious options, each of which jeopardized applicants’ well-being in their own right. Although Liz here drew her client into the legal strategy, the client’s participation occurred not at a moment that bore the possibility of justice but rather at a juncture that she saw to exclusively carry the possibility of harm. In short, this was a defensive moment. To the extent that Liz’s collaborative approach empowered the client, it afforded ownership over mitigation strategies in a hostile system, rather than over the affirmative pursuit of rights.
Additionally, Liz’s anxieties showed how procedure’s centrality structurally impedes aspirations to collaborate horizontally with clients. That Liz specifically worried what would happen to her client if she herself was unavailable at short notice highlighted her perception that she could exert a level of control – in this case, to halt a deportation – that clients themselves could not. Lawyers are somewhat uniquely situated to navigate procedural matters. This type of labor is not as easily shared as, for example, the project of articulating a client’s story to an adjudicator.
Some of the reasons why lawyers are uniquely positioned to undertake this work also come through in Liz’s description. As a threshold matter, the crucial action that would need to occur immediately to protect the client from swift deportation is an Emergency Stay of Removal – a legal filing that requires procedural knowledge to prepare, particularly on short notice. Even beyond the skills required to file this particular petition, Liz’s words captured the broader expertise that informed her entire rationale. Liz’s thinking hinged on her familiarity with the particularities of Ninth Circuit proceedings and on her long-term embeddedness in the immigration law landscape. Liz understood the ongoing ripple effects of a hostile political climate and possessed the institutional knowledge to understand how conservative nominees would render different decisions. Although this background could be conveyed to a client (indeed, Liz relayed at least some of it to help inform the client’s choice), the broader context is perpetually in flux. Its dynamism makes it harder for lawyers to redistribute insight to clients in a lasting way.
Procedural complexity not only privileges those with long-term domain knowledge but also those with the resources to undertake the labor that “administrative burdens” (Moynihan et al. Reference Moynihan, Gerzina and Herd2022) necessitate. The investigatory aspect of this labor may cause lawyers to focus attention on particular offices within key government agencies, such as USCIS. In January 2021, after USCIS failed to timely provide receipts for multiple Employment Authorization Document (EAD) applications, Layla felt compelled to dig into the issue further over the course of two phone calls to the agency. I took note when Layla subsequently updated the DA team with a paragraph-long report of the various factors allegedly impacting USCIS response time for EAD applications. Although Layla had obtained some answers, her message indicated that the underlying issues remained fundamentally unresolved (“That wasn’t quick, and not really a certain update…”), and revealed the regularity with which problems like this demanded attorneys’ frustrated intervention. Layla reported, “I got through to a USCIS agent in 1 [minute and] 24 seconds. That is my record.” When another attorney asked what “secret code word” had unlocked Layla’s success, she replied, “TECHNICAL DIFFICULTIES!!! Screamed into the phone.”
This type of follow-up work would be challenging for clients to undertake for numerous self-evident reasons. These investigatory efforts again require comprehensive institutional knowledge around who to target. Further, in addition to familiarity with legal vocabulary, they require English language fluency. They also require significant time. Although Layla understandably felt frustrated with the challenges of extracting information from USCIS, which undoubtedly impacted her ability to complete other tasks, Layla’s position ultimately afforded her the ability to allocate energy to tedious bureaucratic investigations. By contrast, DA’s indigent clients were not generally well-situated to take on this burdensome labor, especially since they were likely working to support themselves or care for family.
Moreover, it at times proves impossible to extract explanations from state institutions, such that attorneys must instead deliberate among themselves to deduce the reason for procedural delays. For example, my field notes documented a February 2021 meeting with lawyers dialing in from across the United States, in which an LA-based attorney asked if practitioners in other cities had also witnessed a dramatic decrease in the number of scheduled immigration hearings. She reported that lately, at all three LA immigration courts, only one judge was sitting per week. She queried her colleagues, “Does anyone know why that is – because we haven’t received any guidance?” Attorneys from several cities beyond California chimed in with their own observations of the reductions in cases in their own jurisdictions, the lack of public information about which judges were available on which days, the lack of notice to attorneys, and the general lack of communication as to whether the procedural changes arose from concerns about COVID-19 or something else entirely. This form of collaborative interpretation of shifting, opaque procedural trends regularly preoccupied the lawyers at my field site. And again, this activity relied on resources and institutional knowledge that lawyers could not simply transfer to clients. It revolved around multi-regional networks of legal experts. It reflected an awareness of systemic tendencies whose full scope clients could not necessarily observe.
Moreover, although awareness of systemic trends is crucial for policy advocacy, which seeks to benefit many clients, the legwork it entails may do little to immediately advance justice for individual clients. Practitioners carefully track the shifting winds of asylum law practice so that their counterparts focused on systemic policy advocacy can amplify how procedural changes on the ground interfere with refugee rights. Their observations show up in reports that inform the public, members of congress, White House officials, and other stakeholders about issues of concern. Importantly, attorneys’ ground-level observations of procedural systems sometimes comprise the only evidence of problematic divergences between the law on the books and the law in action. For example, my field observations shortly after the Biden–Harris Administration entered office revealed advocates flagging to incoming officials discrepancies between the Administration’s high-level policy and what ICE and CBP officers actually enacted in practice. Attorney hypervigilance was the only way to identify that street-level immigration enforcement officers continued to behave as they had under the Trump Administration, rather than changing course as directed. Notably, asylum seekers’ own experiences frequently comprise attorneys’ most valuable ground-level data. Lawyers rely on information provided by people directly impacted by new policies – particularly those policies implemented in less accessible places, such as detention facilities and at the border. Accordingly, information-gathering is a project in which client participation matters immensely. Nevertheless, once again, the function of clients’ participation is not so much to advance their own substantive rights. Rather, it may assist the defensive naming and shaming of harmful institutional practices – an important component of advocacy strategy but one that may not go immediately toward justice for the individual.
Client education: from empowerment to accompaniment
In the public interest lawyering tradition, education holds utility as a means of empowering clients (Dhital and Walton Reference Dhital and Walton2020). Yet the dense, shifting procedural complexity that defines the U.S. immigration system informs how lawyers can leverage education in the course of client work. Although my participants value education as a tool of empowerment for their clients, the unreliable rhythms of U.S. asylum procedure make it difficult for attorneys to mobilize robust, standardized education programming because the would-be curriculum is perennially in flux or fuzzy. Even when key rules, concepts, and procedures remain theoretically stable, processual delays can render them practically irrelevant to applicants’ short- and even medium-term circumstances. Given this reality, educating clients necessarily becomes a nearsighted, piecemeal, and ongoing project that remains incomplete as long as the person’s case remains pending. The impulse toward education materializes less often as formal trainings, typically manifesting instead as informed collaboration and thick communication – even when there is very little reliable information to share.
The most structured iteration of my participants’ mission to educate people took the form of Know Your Rights sessions (KYRs) conducted in various cities in Mexico, which enabled DA to maximize the number of people to whom it delivered legal guidance. However, the legal processes around asylum often either changed so swiftly or came to such a stubborn standstill that KYRs had diminished practical value. My field notes from February 2021 document a check-in call I had with Carrie, a staff attorney, in which she explained that her efforts to run KYRs with people stranded in Tijuana while they awaited entry to the United States, “only to have them then end up in detention for ages” once they gained entry, felt “futile” and “pointless.” Carrie voiced this comment as she brainstormed how to help a more recently arrived group of asylum seekers now held for months in Tijuana. Based on her past experiences, Carrie deemed the KYR route impotent and wanted instead to identify something “concrete and meaningful that we can actually offer them.” Carrie ultimately settled, in lieu of KYRs, on assisting the people in Tijuana with parole requests, offering them a possible procedural pathway around the Title 42 policy, which at the time mobilized public health restrictions to bar most asylum seekers from entry. In an alternate world where people could reasonably anticipate when they could cross the border and file an asylum application, a KYR training would have prepared them to articulate their claim in the strongest possible terms. But here, in Carrie’s view, the breakdown of the basic mechanisms for entering U.S. territory in a timely fashion rendered generalized education efforts ineffectual. Given the procedural obstacles facing those in Tijuana, a targeted, reactive, and immediately relevant form of guidance had more teeth than a generalized legal education training.
Narrowly targeted and reactive guidance also became a priority when legal processes changed abruptly, leading attorneys’ mission to educate to converge around swiftly disseminating updates to affected community members. For example, when U.S. immigration courts abruptly closed in the initial wake of the COVID-19 pandemic, I observed as my participants rushed to get accurate information to people in immigration proceedings via Telemundo and other Spanish language news outlets. Since the courts themselves had not widely notified people about hearing cancellations, lawyers feared that people in proceedings would experience confusion about their cases. In one March 2020 staff meeting where the team discussed their communication strategy, I took note when Carrie made the perceived link between education and empowerment explicit, emphasizing that “We want to educate and empower people in case [they] show up [for their hearing] and freak out and see courts shut and don’t know what they should be doing.” In Carrie’s view, people would be disempowered if they remained in the dark and therefore doubtful as to how to act in their own best interests. By contrast, education – here, the amplification of a particular announcement and explanation of its implications – would empower people in immigration proceedings by giving them clarity about those proceedings and, accordingly, confidence around their own circumstances. Stated simply, education equips people to fully exercise their agency. Crucially, however, the empowerment that this approach to education catalyzes is not achieved in a single exchange, but rather emerges continually over time, as lawyers seek to keep their clients informed about ongoing legal changes.
This approach to education focuses less on familiarizing clients with their foundational substantive rights (e.g., how the harms they experienced in their home country translate into an asylum claim); rather, it concerns itself with process, requiring iterative explanatory work as clients move through a procedural maze. What matters to advocates is helping clients make sense of what they experience as they pursue legal protection. My field notes from another March 2020 staff meeting document how Eva, a legal services coordinator, described a recent visit to a detained docket hearing, which she had attended with a staff attorney. Eva described seeing the group of asylum seekers walk into the hearing room and realizing that their client was the only one with counsel. Eva reported emphatically, “I think we charged their souls with energy,” and underscored how important it is to keep “being there” for people who really need help. The asylum applicants had arrived at the hot, “very steamy” courtroom in the morning, and by 5:30 pm in the evening had yet to receive a decision from the judge. Eva concluded that it was hard to have to explain to their client that the judge had not yet made a decision and that they would therefore have to spend the night in a processing center, but she highlighted this as “a reminder of why we do this work.” Eva’s comments revealed that, in her view, a core value of legal representation lies in lawyers’ ability to “be there” for clients; “being there,” in turn, is not only about physical copresence but also about making sure clients understand the contours of each step in an arduous procedural journey that they hope ends in protection.
Although Eva framed her reflections positively, they raised questions about the link between education and empowerment. To the extent that the client benefited from Eva’s explanation of the day’s frustrating outcome, this illumination did not obviously empower the client: whether or not they knew the underlying justifications, they would spend the night in a processing center. How and why, then, does education matter in circumstances that present no meaningful opportunity to change one’s circumstances? Eva’s use of the phrase “being there” offers an answer to this question, suggesting that education is valuable not only because it empowers clients but also because it enables lawyers to actively accompany clients as they navigate the legal system. Through guidance, explanation, and sensemaking, attorneys pursue a relationship of companionship that ideally mitigates the alienation they fear the legal maze enacts on claimants. Eva’s assertion that her and the attorney’s “being there” had recharged people energetically reveals a conviction that accompaniment – specifically, the relational intimacy forged through copresence and explanatory work – affirms individuals’ humanity in the face of inhumane institutions (Reuter and Duryea Reference Reuter and Duryea2019). In moments that constrain client agency, education at least enables solidarity.
Education as a practice of accompaniment becomes even more salient in circumstances where the legal system constrains attorney agency. This occurs in moments when the novelty or abruptness of a recent change in law, or the ambiguity of an unsettled legal issue, or the contradictions between the law on the books and the law in action, make it impossible for attorneys to provide meaningful legal guidance. For example, in September 2021, a U.S. court finally enjoined the Title 42 policy, but granted the government a 14-day stay that delayed any immediate change in the policy’s implementation. In a coalition meeting in which attorneys from various advocacy organizations discussed the ruling’s immediate impact, one of my participants asked whether anyone had suggestions as to what to advise clients subject to Title 42. The question, framed as a top priority, reflected the strong impulse to keep clients informed during moments of procedural flux. Yet here, there was no meaningful way to educate people for the purpose of taking action. I took note when an advocate from a partner organization replied to the query, “There isn’t a lot to say, per usual…” and reported that their organization had so far explained to its clients that the ruling was a good legal development but one that, for practical purposes, “hasn’t actually happened yet,” meaning that it had not yet changed the reality for people on the ground. Their message to people stranded by Title 42 was, “‘This is really frustrating. There’s a lot of swirling, but not a lot of change in your day-to-day – so just hold tight, if you can.’”
In this instance, there was little for clients or attorneys to do while the 14-day stay remained in effect and advocates waited to see whether the U.S. government would file an appeal to further delay a change in course. Moments of procedural limbo such as this one disempower immigrants and their legal representatives (Brekke Reference Brekke2004; Haas Reference Haas2017; Jacobsen Reference Jacobsen, Christine, Karlsen and Khosravi2021; O’Kerry Reference O’Kerry2018; Rabin Reference Rabin2021). Yet the coalition meeting highlighted that even when there is little of substance to say, and nothing concrete to do, advocates still seek to help clients make sense of procedural contradictions. When lawyers reach the limits of explanation, the inclination to educate may shift into a rhetoric of acknowledgement of the procedural chaos clients experience: lawyers verbally attest to the frustrating reality of all the persistent “swirling.” Here, though they offer only minimal guidance (“hold tight, if you can”), the value of the legal expert’s diagnosis lies not in making legible what is illegible to the layperson, but rather in affirming that the chaos clients perceive is real – in being there for clients as witness and corroborator.
Lawyering during procedural paralysis
Asylum lawyers routinely find themselves in situations like the one described above: moments, or entire stretches, during which clients’ movement toward refugee recognition – and thus resolution – is suspended. When this occurs, there is little for the petitioner to do but wait (Brekke Reference Brekke2004; Haas Reference Haas2017; Jacobsen Reference Jacobsen, Christine, Karlsen and Khosravi2021; O’Kerry Reference O’Kerry2018). The same is true for their attorney, who at a certain point has little to no power to propel the procedural gears forward. These conditions define the status quo in asylum lawyering, and advocates generally perceive them as harmful. Throughout my fieldwork, when procedural delays such as hearing postponements hamstrung cases, I witnessed attorneys go immediately to the question of how clients would cope with the extended limbo. How – and to what extent – can lawyers pursue the ideal of client empowerment in moments like this, when they find clients’ dehumanization so palpable and, at the same time, themselves experience a form of disempowerment?
My field notes capture a May 2021 staff meeting in which Luis, a legal fellow, shared with the team a difficult experience he had with a client subject to the Title 42 policy. Because of Title 42, Luis’ client remained stuck waiting in Mexico for the U.S. government to grant her entry to file her asylum claim. Luis described the acute danger the client faced in Mexico in the form of violence and repeated kidnappings, including one occasion on which Luis realized during a phone interview with the client that cartel members were actively eavesdropping on the conversation and threatening the client with violence. Despite the client’s horrific situation, Title 42 continued to block any attempt at seeking refuge.
Luis explained to the team that he had decided to temporarily turn his phone off to spare himself from graphic images his client had shared of a recently murdered acquaintance. Luis went on to emphasize how uncomfortable it felt to witness people’s agony and be unable to do anything. “I wish I could do more,” he said, “but there’s nothing I can do but just wait.” Luis’ frustration resonated with Layla, who affirmed that “When [you] hear these stories, you want to do everything.” Layla then voiced aloud to the team a frantic inner monologue that typically ran through her mind in moments like these, when she confronted clients’ dire circumstances: “Can I drive down to you and help you cross the border? Can I pay for your hotel?” But Layla admitted she knew these to be fantasy solutions. Reassuring Luis, she concluded that “Sometimes you can help and sometimes you can’t… It’s kind of just how the case goes. To know that you want to help – [this] is how you know you’re being a strong advocate. You’re doing what you can do.”
Luis’ story exemplified a reality that lawyers commonly confront, in which they reach the limit of what they can do in the face of procedural barriers and have no concrete actions left at their disposal to remedy a client’s immediate troubles (Rabin Reference Rabin2021). Luis’ experience speaks to the secondary trauma lawyers withstand as key witnesses to violence (Harris and Mellinger Reference Harris and Mellinger2021). But Luis’ reflections also suggested that what exacerbates the exposure to severe harm is the inability to meaningfully intervene in its wake. Luis’ client perceived him to be a capable actor with the ability to help, yet Luis himself felt helpless – subjected, like his client, to the endurance of Title 42. Layla’s contribution spoke to the impulse to find a way forward, to root out some actionable way to assist, yet it was ultimately clear that Layla too occasionally resigned herself to the helplessness that Luis felt. Layla maintained that attorneys can sometimes make a difference, but that their potency depends on factors beyond their control: mysteriously, “it’s… just how [cases] go.” Because “how the cases go” lies at least partly beyond attorneys’ influence, Layla chose to locate lawyers’ value not in their actual ability to help, but rather in their subjective desire to help: “To know that you want to help is how you know you’re being a strong advocate.” Layla’s assessment that “You’re doing what you can do” reflects the view that asylum lawyers can, at best, aspire to do what is possible within the confines of a hostile system – rather than what feels to them necessary, urgent, or fair.
Yearning to do more as a mode of advocacy in its own right – despite the actual inability to take real action – links back to the idea of witnessing as a technique of empowerment. In longing to do more than the system allows, advocates conceptually resist the system even as it firmly constrains their agency. In imagining that more, better, speedier solutions could be (and ought to be) possible, lawyers defy the norms of the existing bureaucracy. They also affirm that the people moving through this legal environment deserve better. In this way, they bolster their clients’ perspectives, aligning themselves with the reality their clients experience, rather than accepting the version of reality on which the state insists.
Conclusion
This article illuminated how the politicization of the immigration bureaucracy betrays foundational legal norms, aggravating longstanding uncertainties about the promise of the public interest tradition. Asylum attorneys not only translate clients’ life circumstances to make them legally cognizable, but also help interpret bewildering legal processes, using their procedural expertise to ensure that people navigate the system without becoming ensnared. Although the legal profession embraces procedure as an equalizing force, this study affirms that procedure may also disrupt principles of client-centered public interest law. In response, as this article shows, lawyers must reconfigure the norms that undergird their work.
This study intervenes in multiple theoretical conversations about how law relates to justice. First, it enriches sociological research on how seemingly neutral legal frameworks subtly enact symbolic violence (Menjívar and Abrego Reference Menjívar and Abrego2012). In particular, by contemplating how procedural mechanisms perpetuate harm – even despite the safeguard of legal counsel – it deepens empirical understandings of how bureaucratic violence unfolds (Eldridge and Reinke Reference Eldridge and Reinke2018). Importantly, the study explores an overlooked dimension of this scholarship, showing how these dynamics not only injure the law’s subjects but also strike at legal institutions by eroding their central norms. Moreover, its focus on procedure’s perils unsettles established theories of legal process, bolstering renewed warnings about procedural justice’s seductive allure (Barak Reference Barak2023).
Second, the study contributes to research on the apparently assailable link between access to counsel and access to justice (Rhode Reference Rhode2003). Its empirical insights surrounding the extensive energy attorneys direct to process management aligns with prior findings that lawyers matter especially for legal institutions’ procedural dynamics. Yet this article places these findings in dialogue with scholarship arguing that structural conditions interfere with lawyers’ efficacy. Like other legal aid lawyers, asylum attorneys face tremendous pressure as they maneuver bureaucratic processes under the strain of their own limited capacity and clients’ dire needs; however, the asylum bureaucracy is distinctly susceptible to politicization because of immigrants’ unique political alienation, disempowerment, and vulnerability (Moynihan et al. Reference Moynihan, Gerzina and Herd2022). The case of asylum lawyering thus contains lessons on how the intense politicization of bureaucratic processes exacerbates advocates’ burdens and dilutes their impact.
Third, the article enhances research on how lawyers internalize the burdens they carry at work. Extending theories of the “professional marginality” of legal aid lawyers (Katz Reference Katz1982; Zaloznaya and Beth Nielsen Reference Zaloznaya and Beth Nielsen2011) to the immigration context, it offers rich ethnographic data on the systematic disadvantages public interest asylum lawyers withstand. In this way, it helps makes sociological sense of these lawyers’ experiences, which other scholars describe using the psychological vocabulary of trauma and burnout (Harris and Mellinger Reference Harris and Mellinger2021). Over time, the toll of these experiences may undermine the quality of legal services lawyers deliver.
Finally, the study intervenes in momentous debates about lawyers’ role in social transformation. Public interest lawyers are, poignantly, “both the voice of law’s idealized self and irrefutable evidence of how and why that idealization is contested, never quite within reach and yet somehow infused into the law’s meaning and processes” (Scheingold and Sarat Reference Scheingold and Sarat2004: 125). Procedural justice correspondingly represents “a normative horizon rather than a technical problem,” which “invite[s] us to create new legal and political institutions that will frame ‘stronger,’ more meaningful opportunities for participation than we can imagine within a bureaucratic state” (White Reference White1990: 3). In short, to refine a coherent theory of meaningful social change, advocates must grapple with the contradictions existing in the law’s effects – the tensions within law between justice and injustice. In at least two ways, this study facilitates further reflection on how the politicization of legal procedures might influence the calculus around lawyers’ position as agents of social change. Looking toward normative policy, it contributes detailed qualitative data to debates surrounding the contested implications of access to counsel. Looking toward social movements, it helps assess emerging reformulations of public interest law’s tactical mission – urgent, radical re-imaginings advanced by lawyers themselves.
As an ethnography of one site with a small number of lawyers, this study inevitably displays limitations that invite further research. It presents a snapshot of asylum lawyering at a particular moment – one undeniably shaped by COVID-19. While the pandemic did not singularly produce the conditions analyzed here, future research should assess how these conditions hold across time. Relatedly, this article inadequately accounts for historical trends within the immigration system, which weathered politicization long before the Trump Administration. Research producing a more sweeping view of the interconnected evolutions of public interest lawyering and the immigration bureaucracy would augment its analysis. In another vein, the study focuses narrowly on lawyers undertaking direct representation, to the exclusion of other strategies such as impact litigation and policy advocacy. Future research should examine how the interplay of multi-pronged strategies within contemporary organizations shapes lawyers’ interpretations of fraught legal settings. Finally, future research should contemplate how aspects of individual lawyers’ identities – for example, age, gender, race, or professional experience – nuances their experiences of legal bureaucracies.
Acknowledgements
I am especially grateful to the LSR editors and three anonymous reviewers for extremely engaged feedback, as well as to Cecilia Menjívar, Stefan Timmermans, Jaya Ramji-Nogales, Rebecca Reid, Erin Kristin Jenne, and Nick Tinico for generous comments on earlier drafts of this article. Previous versions of the article benefited from valuable input at the 2022 Global Meeting on Law and Society; the 2022 Association for the Study of Nationalities World Convention; the 2022 Future of Immigration Conference, hosted by the University of South Carolina; the 2021 New Directions in Law and Society Virtual Graduate Student and Junior Scholar Workshop, hosted by the Center for Justice, Law and Societies at the University of Massachusetts, Amherst; and UCLA’s Migration Working Group.
Conflict of Interest
The author declares that she has no known competing financial interests or personal relationships that could have appeared to influence the research reported in this paper.
Catherine L. Crooke is a PhD Candidate in sociology at the University of California, Los Angeles. Her current research focuses on the legal profession, legal procedure, and immigration law and policy.
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