Critical Immigration Legal Theory

Abstract

U.S. immigration law has always been a place for Americans to enact their many prejudices. Often, it edifies norms that exclude and subordinate noncitizens due to their race, gender, or socioeconomic status. As a result, immigration law and policy create great human suffering through actions such as separating families, excluding refugees, and detaining noncitizens. 

In response, scholars are engaging in a distinctive method of interrogating immigration law. We call this analytic method Critical Immigration Legal Theory ("CILT"). Derived from critical race theory and other similar theories, CILT critiques facially colorblind immigration laws to expose their subordination of immigrants based on race and other historically oppressed identities, while challenging the fixed legal categories of alienage and citizenship by defining new ways of belonging. It also uses anti-essentialism to contest the negative stereotypes of immigrants as undesirable outsiders as well as the positive stereotypes of deserving immigrants and "model minorities" that encourage respectability politics. Further, CILT has a central praxis dimension that aspires to transform immigration law and its treatment of noncitizens by aligning with immigrant rights movements that are mobilizing for social change and legal transformation. 

Our goal is to recognize the trend of CILT methodology within immigration law scholarship as a means of contestation, resistance, and praxis. CILT has emerged out of the growing cadre and diversity of immigration law scholars and the increasingly blurred lines between law scholar, lawyer, and activist. Their lived experiences - personal and professional - inform their perspectives on the systems on power that subjugate the noncitizens with whom they collaborate. By describing current CILT approaches, we hope to begin a conversation for others to connect, weigh in, and build on our description. We conclude by considering the implications of CILT, from the potential for backlash to how it changes the way that immigration law scholars teach and work with students, clients, and communities. 

Kevin R. Johnson's essay response to article: https://www.bu.edu/bulawreview/files/2024/12/JOHNSON.pdf