The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction by Alison Peck

Abstract

Reviewed by: The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction by Alison Peck Michael A. Olivas The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction. By Alison Peck. (Oakland: University of California Press, 2021. Pp. 240 pp. Notes, bibliography, index.) Sometimes there are books that leave you much better for the experience. This is one of them. When I retired from teaching immigration law in late 2019 after nearly four decades, I was the most senior such teacher in the country. I had studied immigration law at Georgetown University with Charles Gordon, who was also the general counsel for the Immigration and Naturalization Services. I recall his explaining then how disorganized its structure was, including what my notes called “conflicts of interest that hurt immigrants and the cause of justice.” Alison Peck brought these memories back in her masterful book, The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction, which has thirteen chapters in three sections, “Crisis in the Immigration Courts,” “From World War II to 9/11: The Ghost of the Fifth Column,” and “The Future of the Immigration Courts.” Peck is Charles Gordon’s successor in critiquing the Department of Justice (DOJ) and what she calls its roots of dysfunction, showing, for example, how the 1940 assignment of immigration “judges” by the DOJ was compromised by its singular lack of independence and even specific term limits for the judges. In several chapters she reveals the uncomfortable truth that concerns over [End Page 217] various wars, communism, and national security contributed to the jerry-rigged apparatus that exists now, after more than eighty years of existence. What the late John Le Carré treated in fiction, Peck narrates in fascinating and detailed non-fiction prose. Her tour of the topic begins with a chapter called “The Attorney General’s Immigration Courts,” a telling title. Chapter 9, “The Reckoning,” shows that clever media manipulation has deep roots in World War II, and chapter 10, “Un Día de Fuego,” shows that the nomenclature for the Patriot Act, created in the aftermath of the September 11, 2001, terrorist attacks, should have alerted all of us that truth had already become a casualty of war. While Peck’s description of the administrative apparatus that arose and led us to this unsatisfactory situation serves a purpose, her first table (9) clearly reveals how political and dysfunctional immigration courts became during the Trump administration, whose disastrous policies broke the system, exposing its long-established flaws and using them to grind immigration to a halt. Here she shows that during thirteen presidential administrations, from Franklin D. Roosevelt through Barack Obama, there was a total of nineteen “self-referrals,” whereby an attorney general reserved to himself or herself an immigration case that would ordinarily have been resolved by the Board of Immigration Appeals process. She memorably calls this evasion of traditional rules the same as “moving the goalposts midway through a game with life-or-death consequences” (8). President George W. Bush did so ten of these nineteen times. In only four years, however, Donald Trump’s attorneys general moved the goalposts another seventeen times, almost as many as had occurred in the previous seventy-six years. These figures stunned me, despite my career experience. I constantly asked myself why I did not know the scope of all of these finger-on-the-scale events and why it had not been revealed previously in the hundreds of immigration books and articles I have read carefully over the years. This information alone is justification for the book. Alison Peck has dug deeply into impressive archival materials, including presidential libraries and what must have been secretive meetings with those who had access to classified materials and had to remain unnamed. She also has an adept writing style that usefully organizes much complex material into several narratives that synthesize large amounts of data and events. Having narrated her way to the present day, she provides an epilogue that surprisingly focuses on George W. Bush’s retirement artwork in which immigrants are among his subjects, likening them to Lady...