The War on Terror as a Metaphor for Immigration Regulation: A Critical View of a Distorted Debate
Journal of Gender Race and Justice, Forthcoming
54 Pages Posted: 19 Dec 2011 Last revised: 31 May 2012
Date Written: December 19, 2011
The “war on terror” represents a powerful metaphor reaching into the everyday lives of millions of non-U.S. citizens and citizens alike, both domestically and abroad. The “war” has skewed the debate, specifically regarding immigration regulation and reform. It is especially pernicious because it operates, on an unconscious level, on our unstated assumptions about immigrants and immigrant populations. In this Article, the authors begin with a discussion of the so-called “anchor” babies, now transmogrified into a new, scarier concept, “terror” babies. This is a good starting point for the discussion because it illustrates quite poignantly the ways in which the rhetoric has driven the debate to the point of absurdity and hyperbole. We then address the proliferation of terror-related grounds of inadmissibility and deportability. The issues which have come up in proceedings center around the malleability of the term “material support,” the exceedingly large breadth of scope in the term “terrorist activity,” as well as the difficulties which follow from allowing for the incorporation of the inadmissibility grounds into the parallel ground of deportability in section 237 of the Immigration and Nationality Act (“INA”).
Equally disturbing are the misunderstandings surrounding the term “illegal immigrant.” We argue for a more nuanced approach which takes into account the range of available relief depending on the nature and history of one’s undocumented status. Throughout the discussion, there is the recognition that governmental actors have latitude, sometimes enormously wide latitude, to interpret the laws. It is often in these interstices where abuse occurs. We next discuss the fugitive disentitlement doctrine, and the trend to apply the doctrine outside of its normal confines in the context of criminal defendants and to deprive the courts of jurisdiction to hear the appeals of immigrants. We point out the infirmities with applying the fugitive disentitlement doctrine in the context of immigration. In the Real ID Act, among other legislation, there are severe jurisdiction-stripping provisions which have deprived federal district courts, in habeas proceedings, of the power to review final orders of removal, and modified the jurisdiction of the federal courts of appeals to hear immigrants’ appeals in other important ways. We argue that in these provisions the Real ID Act violates the Suspension Clause. In our conclusion we argue that metaphors certainly help us to interpret the world by making connections between disparate concepts. However, metaphors are not merely “figures of speech” but can result in tools of powerful persuasion. The danger of equating terrorists with immigrants and vice versa through the metaphor of the war on terror has become a very real threat to immigrants’ rights, and by extension, to all our rights, citizens and non-citizens alike.
Keywords: War on Terror, Immigration, jurisdiction, federal courts, legal theory
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