The Great Replacement Theory Bake Off
Immigration Law 101
I know how this must look to all of you: two weeks in a row, talking about law school and the law. You must think I’m toying with pursuing a legal career or maybe even about to make a stunning announcement about my plans for the future…I’m not, but now would have been a kind of fun time to suddenly and nonchalantly announce I got into Harvard Law School.
Today, we’re hyper-focusing on one area of the legal system I personally know nothing about but every elected official magically does, and that is immigration law.
Since last September, Governors Ron Desantis and Greg Abbott—People Magazine’s Least Sexy Men Alive—have been flying and bussing migrants from their states to Martha’s Vineyard, New York, Washington, DC, and Chicago in a really fucked up and unfunny attempt at a “gotcha” joke on more liberal-leaning states and cities.
Additionally, we saw the Supreme Court temporarily extend the effect of Title 42, a Trump-era mandate that allows the federal government “to expel asylum seekers without a hearing”:
The federal trial court invalidated the Title 42 policy, finding that it violates the Administrative Procedures Act by failing to account for the grave harm Title 42 imposes on asylum seekers and continuing long after there is any public health justification for it. [The] ruling puts the lower court ruling on hold while other issues are litigated on appeal.
Americans have a habit of looking away from problems with immigration or, worse, using it as rationale for their racist and xenophobic beliefs (a third, mysterious option of course being: wear a jacket that reads “I Really Don’t Care Do You?” to visit immigrant children who had been separated from their families).
Using last week’s installment as a gorgeous little segue, this week, I talked with Hallie about why she decided to pursue immigration law, which misconceptions about the immigration process need to be dispelled yesterday, and why the right can’t stop talking about the replacement theory.
Hallie is originally from Atlanta but currently goes to l*w s*hool in Louisville, Kentucky (maybe you’ve heard of it?). She is passionate about immigrant’s rights, historic preservation, Cillian Murphy in the hit BBC drama Peaky Blinders, and Taqueria del Sol queso. Hallie is the mother of two sweet kitties, Henry and Louis, and a loving aunt to all of her friends' dogs, especially Penny and Crosby. When she’s not asking her friends what the con law reading was about, you can find her in Schnitzelburg having a burger at Toasty’s or singing “Valerie” at the Merryweather.
Lastly, and perhaps most importantly, she is not a lawyer yet and nothing she says is legal advice.
I've got gadgets and gizmos a-plenty. I've got whozits and whatzits galore. You want immigration attorneys? There are maybe 20…
Although I couldn’t find a clear answer on how exactly how many immigration lawyers there are in the US, we can estimate that there are somewhere between 13,000 and 16,000 licensed immigration attorneys in the country today. While those numbers sound great (and are apparently on the rise, growing 3.1% over the last five years), things get put into perspective quickly when you Google “how many licensed lawyers are there in the US” and realize there are over 1.3 million lawyers.
By our most generous best guess, that means only 1.23% of all licensed lawyers in the country are immigration lawyers.
Despite this rocky start, I wanted to feel inspired by Hallie’s bold and brave decision to become part of this particular 1% and asked:
Emily: What made you decide you wanted to become an immigration lawyer?
Hallie: I kind of accidentally stumbled into both the legal profession and the field of immigration law. My best friend’s now fiancé worked as a business immigration paralegal at a firm in Chicago, where he helped me get an interview after graduation (a nepotism slay). I had never been to Chicago or considered working at a law firm, but after giving a TEDxEmory talk about the struggles of the post-grad job search and being turned down for 50 other jobs, I figured what the heck.
My first job at the firm was more of an administrative clerk/legal assistant role, where I was opening mail, notifying foreign nationals of any case updates, and printing thousands of pages to send off to the US Citizenship and Immigration Services (USCIS) every day.
Although it wasn’t the most exciting job, I started to get attached to case outcomes and tried to take on more non-administrative tasks. Because immigration law is such a niche practice area, many firms will promote from within since paralegal certificate programs don’t often teach any of the immigration-specific skills you can pick up from a year or two of opening government mail.
Eventually, I became a paralegal and worked primarily on writing-intensive cases. I loved the work I was doing, but—as the eldest child—felt very strongly about the fact that I didn’t get to put my name on anything that was being submitted. On top of this, I really wanted to be able to make important decisions about cases and communicate directly with clients, two things that are (understandably) the attorney’s job. I decided to sign up for the February LSAT the day before the deadline, and here we are just over halfway through law school.
Besides my professional reasons for pursuing a JD, I myself am a second-generation American and still have family members that were born in another country. Although I love my Indian heritage, it has never been particularly easy to connect with that side of myself openly because I don’t look like your average half-South Asian person.
Working in immigration law has allowed me to reflect on the experiences of my grandparents and other family members who immigrated to the United States, and use their stories to motivate me on days when I feel like giving up on this career path.
I realized I knew next to nothing about immigration or immigration law heading into this conversation, but quickly found out I’m not alone. As Hallie explains, the system is almost intentionally impossible to fully understand which is odd given how many lives it impacts.
While most of this newsletter has inadvertently been about disproving problematic myths Americans continue to tell ourselves so we don’t have to take accountability for our actions, the claim that we are “a melting pot” of different cultures and nationalities is actually true, much to the dismay of those clinging to every other exceptionalism myth: according to the Migration Policy Institute, a nonpartisan think tank,
immigrants and their U.S.-born children number approximately 84.8 million people, or 26% of the U.S. population in the 2021 CPS, a decline of approximately 950,000 from 2020. The Pew Research Center has projected that the immigrant-origin share of the population will rise to about 36% by 2065 (X).
It wouldn’t be an Emily For President piece without me explaining the parameters of our conversation within much larger and more complex histories, so I have to mention that we won’t be delving too deep into the facts that 1.) technically, a lot of us reading this are the descendants of actual illegal immigrants, by which I mean people who stole land from Indigenous populations (robbery, which is a crime), 2.) the idea of who is considered a “good immigrant” has changed in every generation, and 3.) a significant number of those who “immigrated” to this country did so against their will. For the sake of clarity and time, today we’re exclusively looking at the current state of immigration law.
With that, I asked Hallie:
Emily: What are some of the different categories of immigration and how do they differ from one another?
Hallie: There are a couple of different ways to approach the categorization of visas.
At the most basic level, there are four categories of people living in the United States. These are U.S. citizens, permanent or conditional residents (green card holders), non-immigrants (think: student or work visas), and undocumented immigrants. I think this perspective is interesting because technically our citizenship laws do govern what it means to be an American citizen, which many of us may have taken for granted until this edition of E4P.
If we are talking only about visa categories, there are essentially two big buckets: permanent (immigrant) and temporary (non-immigrant). When breaking down visa types based on their substantive differences, the three categories that emerge are usually family-based, employment-based, and humanitarian.
I won’t get into the differences between all 185-ish visa types, mainly because I don’t even know the ins and outs of every single one. In fact, you would probably be hard-pressed to find someone that does. Firms and other organizations usually focus on one or two of these categories because of the stark differences between them.
Even visa types within the same category differ from one another. For example, H-1B and L-1A are both employment-based non-immigrant visas but the application, educational and professional requirements, and frequency with which these two statuses can be renewed are grossly different. These differences can also impact the way that a foreign national applies for a green card and whether they will need to go through the Department of Labor’s PERM process [permanent labor certification].
It's probably worth noting here that immigration is a highly intersectional field. The Department of Homeland Security oversees most of what we think of when it comes to immigration. Within DHS are Immigration and Customs Enforcement (abolish ICE), Citizenship and Immigration Services (USCIS), and Customs and Border Patrol (CBP). The Departments of Justice and State both also have a hand in the process, with the DOJ’s Executive Office for Immigration Review running the immigration courts and DOS’s National Visa Center running the out-of-country application process. As I hinted at above, the Department of Labor also comes into play in the realm of employment-based immigration.
Because who doesn’t love a party full of government organizations that don’t communicate with each other?
Emily: Why is terminology essential when talking about immigration, and what are some definitions of major terms?
Hallie: One of the most important reasons for using compassionate terminology like “non-citizen,” “foreign national,” and “undocumented” is out of respect for the person or group you are referring to.
Whether they traveled on foot for hundreds of miles or arrived at JFK Airport in a 747, immigrants have embarked on a lengthy, expensive, and deflating journey that will forever impact the way they move and exist in the world. Terms used by the government or anti-immigrant movements, such as “alien” and “illegals,” are more than just dehumanizing.
To me, when someone uses these terms, they reduce a person’s story down to a label. And when someone, for example, sits in a class, listens to a professor’s entire explanation of more appropriate and compassionate terms, and still has the nerve to call plaintiffs in a case “illegal non-citizens,” it shows a concerning lack of respect for the horrors that many people seeking refuge in the United States have experienced.
Before the current administration threw caution to the wind and forgot all the promises they made about immigration reform, Biden did issue a memo stating that terms historically used by enforcement agencies should be updated moving forward. That being said, there are still rulebooks and forms that contain these outdated terms, and probably will forever, but at least the current official government stance is that these words are wrong (or at least that’s what I’m telling myself).
It is has been two years since Joe Biden became President. He is continuing to embrace Trump-era anti asylum policies:President Biden was inaugurated 2 yrs ago today. He promised he would restore our asylum system. Instead, he has: Embraced Trump-era policies blocking access to asylum Proposed new asylum transit bans Sent families back to danger @POTUS, keep your promises. #WelcomeWithDignity https://t.co/PsoCCVFJvV#WelcomeWithDignity @WelcomeWDignityAside from these somewhat objective terms, there is also a need for clear legal terminology when working on immigration cases. For example, technically, someone who is an immigrant is declaring their intent for permanent residency. Those present in the US on work and student visas, for temporary and specific purposes, are non-immigrants.
Visas, for that matter, are the stamps that allow one to travel to and from the country. Visas do not necessarily allow someone legal status for any purpose once they enter, although the term is usually used as an all-encompassing one to mean the kind of status one holds in the US.
If this seems simple to you, then congratulations, you know more about immigration than our former president.
Now that we’ve laid the groundwork for what immigration actually is, we need to dive headfirst into what it isn’t. If someone could send this next section to Greg Abbott, I would appreciate it. I have him blocked and it’s just such a whole to-do to undo that, you know?
Xenophobia? In This Country? It’s More Common Than You Think.
Spoiler alert: racist and xenophobic people don’t like immigrants. But most self-proclaimed liberals aren’t willing to put in the necessary work to protect one of our country’s most vulnerable communities, and the result is that the racist and xenophobic anti-immigrant vitriol often gets spread around unchallenged.
To start to get a sense of where a lot of anti-immigration sentiment comes from, I asked Hallie:
Emily: What are three common misconceptions about immigration in America?
Hallie: Right off the bat, I want to let everyone know that it is not in itself a crime to be unlawfully present in the United States. This is just another in a long list of issues I have with the word “illegal” when used to describe a person. No human is illegal. Whether you agree with my stance on immigration or not, this phrase is unequivocally true.
The next misconception is the idea that there’s some kind of “line” you can get in to immigrate, and people who enter or stay without legal status have voluntarily opted out of standing in line. This could not be farther from the truth. There’s no easy way to immigrate, to the United States, to Canada, or probably anywhere. Unlike protections afforded to US citizens throughout the legal process, immigrants are left to fend for themselves in a country where their first language is probably not English.
The last one is that immigrants are coming and taking jobs that belong to Americans. This kind of goes hand in hand with the foundation of replacement theory, but I really think this is just a myth that started too long ago for its own good and has never dropped out of circulation. There have been countless studies on the positive economic benefits of immigration in the United States, which all hinge on a steady flow of immigrant labor. As this article from the New York Times explains, “The chief logical mistake we make is something called the Lump of Labor Fallacy: the erroneous notion that there is only so much work to be done and that no one can get a job without taking one from someone else.”
The other issue I have with this misconception is that many undocumented immigrants, who have borne the brunt of this myth in recent years, are working in jobs that Americans—to be frank—don’t want. I don’t know anyone who would voluntarily take a position where they do not have to be paid the minimum wage, are treated as less than human, and are doing manual labor for more than eight hours a day.
I wanted to look a little more into the last misconception Hallie highlighted as it is constantly part of messaging on right-wing news networks. While this would be a perfect opportunity to take a swing at Tucker Carlson, I, as a rule, don’t punch down. But more importantly, this next bit is really not funny.
Carlson, more so than his otherwise equally angry Fox News coworkers, has previously endorsed a concept called the great replacement theory on his nightly show. Despite this, after the Buffalo supermarket mass shooter cited the same theory as inspiration for his violence, Fox’s coverage “‘largely ignored’ the fact that the shooter had been inspired by replacement theory.”
The absence of coverage of the motive was revealing, given Fox News’s most popular host, Tucker Carlson, has pushed the concept of replacement theory in more than 400 of his shows—and has arguably done more than anyone in the US to popularize the racist conspiracy (X).
I asked Hallie:
Emily: Why is replacement theory so dangerous and how has it impacted public perception of immigration?
Hallie: Replacement Theory is the idea that white people are being systematically replaced by non-whites. Depending on the context, proponents of the theory will argue that the ultimate goal is either extinction of the white race or some other obscene lie like ensuring there are more non-white voters in the population, effectively rendering white voters as a minority.
Replacement theory is not a new concept (see: Charlottesville 2017). It also reaches beyond the immigrant population and is used as an othering technique for non-white communities in general. The primary impact on immigration, as with many right-wing theories and concepts, is the way that people who hear and identify with the theory interact with immigrants and immigrant communities. This hateful rhetoric is a helluva drug when you’re already feeling down about yourself. We’re all just looking for explanations for our own shortcomings, but people who pick up what Tucker Carlson is putting down take this to a new, hateful, violent, despicable level.
George Dubya Bush said it best (I also cannot believe this is a thing I have just typed with my own two hands): “Our identity as a nation, unlike other nations, is not determined by geography or ethnicity, by soil or blood... This means that people of every race, religion, and ethnicity can be fully and equally American. It means that bigotry or white supremacy in any form is blasphemy against the American creed.”
You can read more about replacement theory here.
Emily: Why do these, as well as other misconceptions, continue to persist?
Hallie: Listen, the law is complicated. I get it. Tons of people accidentally don’t pay their taxes every year. Homeowners have lost two feet of land on their property because they didn’t know about adverse possession.
I don’t necessarily think that the Immigration and Nationality Act is more convoluted than Article 9 of the Uniform Commercial Code, but the difference is that the public doesn’t really see a need to learn anything about immigration because it doesn’t apply to them. I see it as a “good luck with that!” mentality.
Immigration is also one of those hot-button issues that get a lot of attention when there are flashy headlines or depressing photos, but not otherwise. It’s this lack of truly wanting to understand what’s going on beneath the surface, or perhaps a lack of mental space to take on one more issue to care about (which, in today's world, is completely understandable! There’s a lot of awful things going on all the time everywhere!), that is immigration’s ultimate downfall. We are narcissists at the end of the day, and if something doesn’t affect us, it's unlikely that we will give it too much of our time.
Another reason that these misconceptions continue to permeate our society is that nobody really knows what’s happening or how the system works. This is also a big issue when it comes to creating meaningful change within the system itself because politicians who are allegedly leading the forefront don’t fully know what needs to be changed and how they can and should go about doing that.
But those who don’t want to create meaningful change, people like Greg Abbot, capitalize on the fact that nobody knows what’s going on. Oh, you didn’t know it's not illegal to be unlawfully present in the country? Good, then you probably won’t oppose this bill making it a crime. You aren’t aware that people who cross the border more than once are counted each time, inflating the numbers and perpetuating the myth of the “border crisis”? Perfect, then they can continue to say and do as they please and their constituents will be none the wiser.
It really does floor me sometimes how much of a capacity for cruelness people in this world can have, even though it shouldn’t anymore—I mean, I’ve read A Little Life.
But when I think more on Hallie’s last point, how people like Abbott and Carlson and their ilk take control of the narratives of the things we don’t know, I’m reminded why they’re so threatened by critical race theory and books about LGBTQIA+ experiences and the most terrifying and violent show on television, RuPaul’s Drag Race: these are tools we use to fill in the gaps of what we don’t know.
Obviously, no one person can know everything about everything but maybe the best way to protect ourselves from being bamboozled by these rejected Bachelor contestants1 any further is to try to learn a little about others whenever we can.
With that in mind, I asked Hallie:
Emily: What do you wish more people knew about the immigration process?
Hallie: It’s SO hard!!!! If you take one thing from any of this, let it be that the process of immigrating is freaking hard from a legal perspective, an economic perspective, an emotional and social perspective—any way you look at it, immigrating is not an easy task.
There are tons of hurdles that non-citizens have to jump over, whether they are crossing the southern border to claim asylum or applying for an L-1 from the comfort of their homes. A lot of these difficulties also come from the loss of community that some immigrants feel when resettling in the US, and although there are plenty of flourishing immigrant communities throughout the country where people can experience a little slice of home, this is not a reality for everyone. Even in places where there are large immigrant communities, people still experience isolation because they feel like they are not wanted in this country.
I suppose progress just takes basic empathy and compassion for others. How hard can that be?
Ending on the Strongest Section? You Wish!
Recently, I’ve returned to my roots by which I mean I’ve been listening to a lot of the pop-punk music I was obsessed with growing up. So, in the words of Fall Out Boy, “I'm looking forward to the future/ But my eyesight is going bad.”
Why am I using this line, other than to remind everyone of my beloved emo phase? To move forward, we have to look a bit at where we are now with immigration under—and I am saying this unironically so bear with me—the president currently leading us there, octogenarian Joe Biden. But unfortunately, the future of immigration as of right now is not looking good.
I asked Hallie:
Emily: How has the Biden Administration's approach to immigration differed from the Trump Administration?
Hallie: The TL;DR of this is that it really hasn’t changed much. Aside from the fact that one president spewed hateful lies and came up with unimplementable policies, while one president says all the right stuff but continues to push his predecessor’s legal objectives forward, the general state of immigration has pretty much stayed the same.
Now, let me make it very clear that it is a good thing that Biden is, at the very least, not shitting on immigrants in every speech he gives. At least immigrants in this country feel that the president is not against them, even if, in practice, he kind of is. But this simply is not enough, especially given the promises made by the Biden administration in response to the dumpster fire that was the Trump presidency.
It’s not inspiring to hear something along the lines of, “It’s not good but it could be worse,” when discussing the protection of real human lives. But then, would it be Emily For President if I didn’t serve up something incredibly demoralizing with mediocre political burns?
So we’re not the best at immigration! Let’s be serious—when are we the best at anything? (I can say that confidently because the American exceptionalists have certainly stopped reading by now.) But instead of dwelling too much on that (although we should dwell some if we want to evoke that basic empathy and compassion we just mentioned), we have to take the time to imagine the ways that things could be better.
I asked Hallie:
Emily: Is there any way to reform or repair issues within the immigration system?
Hallie: One of my least favorite parts of working in immigration law is when people ask me for my opinion on how to “fix the border.” At this point, there’s no magic fix. The issues with our immigration system run deep, and no single policy or elected official can change that. Even if we were somehow able to abolish the system and start from scratch, hundreds of thousands of people would be stuck in limbo while we tried to figure out a “better” way to do things.
The good news is that there are organizations like RAICES, the Southern Poverty Law Center, and Witness at the Border working in the areas of legal and community advocacy to help immigrants along the journey. Right now, in your city, there is an underpaid, overworked, non-profit immigration attorney sitting at home wondering how they are going to help their client stay in the country.
Truly one of the easiest ways to make a difference is by donating (whether it be your time, requested items, or money) to your local refugee resettlement agency (you can locate one by going here, or you can donate to Kentucky Refugee Ministries if you want to take my word for it).
Lastly, we need more immigration attorneys!!! I spend a lot of my time trying to convince people at school to go into immigration law (albeit against the wishes of my inner enneagram 4). If this isn’t the path for you, maybe there’s a way you can advocate for or assist immigrants in your profession. I understand that this won’t be everyone’s thing, and that’s ok. It doesn’t have to be.
I was going to try and create some elaborate metaphor about how I’m not a super passionate environmentalist but I still recycle whenever possible...but I can’t really think of what the “recycling” of immigrants’ rights is.
Maybe the lesson here is just to reiterate that you never know what someone has been through. If you have met a person not born in the US in your life, it's possible that they’ve had to jump through hoops you didn’t even know existed.
In the words of another artist I’ve been listening to a lot recently that is by no means pop-punk at all:
Thank you so much to Hallie for having an hour-and-a-half conversation with me after I’ve been dying to have her here for so long!!! Hopefully, this inspires you all as much as it has inspired me to learn more about our immigration process and what so many people trying to enter this country endure to have to deal with tomfoolery and nonsense. Be kind, be aware, and let me know if you’re also watching Drag Race this season.
I’m sorry—the tans? The bowties? Abbott’s tragic backstory? You’re telling me they haven’t at least thought they could potentially be the next Bachelor??? It absolutely seems like they’ve all built personas to be the next Bachelor, and their villainy comes from ABC passing on them.