This Essay traces the roots of the criminal legal and immigration systems and explains my personal journey through these systems, as well as what I have observed about how they operate today. These systems are rooted in British and colonial laws, as well as Puritanism. The remnants of these practices still affect our systems today and show us that they are not broken but working exactly as they were designed to.
“That any [noncitizen], being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof, on application . . . and making proof . . . that he is a person of good character, and taking the oath . . . to support the constitution of the United States . . . and thereupon such person shall be considered as a citizen of the United States.”
–First Congress of the United States, 1790
I. Colonial Roots
In 1788, the U.S. Constitution was ratified by nine of the thirteen colonies to officially became the framework of the government of the United States of America. The first U.S. Congress assembling afterwards, acting as the first interpreters of the Constitution, explicitly decreed by law that only a free white person could benefit from being citizens of this new government. Through these words, the United States would be built to suit the primary colonists: white Western Europeans.
The first members of Congress did not monopolize the benefits of this new and free society for themselves without a model. The concept of who is to reap and who is to sow was already well-rooted by the mid-eighteenth century. In South Carolina, for example, white colonists passed the Negro Act of 1740. The law, in part, deprived enslaved African people of their basic human rights to grow their own food, to move freely, to become literate, to organize, and to earn money. It even made murder of an enslaved African a misdemeanor punishable by a fine, which effectively extended the power to kill enslaved Africans to white persons and not just slaveowners, for acts such as running away. This law was passed in response to the Stono Rebellion, a large uprising in 1739 of enslaved Africans in search of freedom. The white settlers knew how to put and keep themselves in power.
Although the colonies enjoyed a great measure of autonomy with each developing its own laws including those similar to the Negro Act of 1740, British rule still dominated trade and shipping which provided economic resources. To further capitalize and expand its imperialism, the British Parliament made naturalization within the colonies more convenient through what was known as the Plantation Act of 1740. This law, although British, governed across all the colonies, allowing non-British immigrants to become subjects of the King while living in the colonies. Reaping the benefits of trading with the Crown was much easier when not considered a foreigner so it became economically vital to be under the monarch’s rule. Britain’s economic control ensured that plantations profited the monarchy, and slavery was vital to that profit. Commerce was shaped in such a way that in order to thrive in business with Britain, colonists had to become subjects of the King. Naturalization in this context required residency in the colonies for a period of seven years, an oath of allegiance, and a swearing process before a judge. The first naturalization law of the United States bore similar trademarks. By almost exactly adopting Britain’s model for naturalization, the first Congress was implementing a method rooted in benefitting from plantation slavery when it drafted its own set of laws determining who benefits from citizenry.
The oft-ignored institution of penal transportation also played a role in the shaping of America. Although Australia is well-known for its roots as a British penal colony, the practice’s relation to American history is not as widely spoken of. English courts began to use colonial North America in 1615 as a dumping ground to export what was then cheap “convict labor.” The practice became unpopular in the colonies at the end of the century and Britain responded with its Transportation Act of 1718. Britain had an interest in providing cheap labor to benefit what were then the King’s colonies and plantations. By sending those it had convicted, Britain not only reduced its criminal population but also profited from cheap production labor on the plantations. These laborers were unfree white Europeans living in the colonies and the first Congress was intentional about excluding them from the benefits of citizenry, hence the injection of the phrase “being a free white person” into the first naturalization law.
These points in history are fundamental to the understanding of how the systems we live under today were created. The United States was not created with liberty guaranteed to all. It was mired in slavery and white privilege. It was built on the concept that there are people of another race or another class that should be wholly disregarded. The inception of the United States engendered marginality and persistent inequality. This brings to question whether there is any truth to the popular sentiment that systems are broken and need reform. Perhaps the systems themselves bring veracity to the opposing truth: that they continue to function as they were designed. It questions whether systems can even be “reformed.” When systems and their components need such massive undertakings to result in drastic improvements in people’s lives, that is an effort beyond reform. It is at minimum a reimagining of how society can operate.
II. Childhood in Broken Systems
This analysis is based in part on my lived experience. I was born in a refugee camp in Thailand after the Khmer Rouge took power in Cambodia in the 1970s. My parents had walked across a militarized border laden with land mines to find safety and refuge after fleeing the grasps of Pol Pot’s genocidal regime. We eventually arrived in the United States as refugees but faced many challenges and would not adapt well to a wholly new society. People migrate with not only their physical body but also all their trauma. People do not simply up and leave where they are for no reason to travel hundreds and thousands of miles. Those reasons are an inseparable part of who they are.
My mother would essentially abandon me before I turned three and I was left to the care of my father until he died when I was sixteen. I became parentless and was left with only my much older half-brother. That summer was a turning point in my life. I could not find a youth job. There wasn’t a youth center that I could access nearby. There weren’t any community health workers in neighborhood. There were only men with badges and firearms that would harass me when I went outside. They would treat me poorly and pushed me further away from any form of support other than my peers. When school went back in session, I struggled with my classes. I was sent off to home study, which was essentially getting an education through photocopied packets of remedial material. When I needed care and support, all I could find to deal with grief were the streets. Unfortunately, this would lead to my incarceration at the age of seventeen, being tried as an adult, and being sent to state prison. I went from handcuffs to a cage without an exit.
Sixteen years later, I would be set for release from state prison. When that day came, I did not get to walk free. I was handed over to a private contractor to be transferred into immigration custody for deportation proceedings. On the day of my release, I got to be a witness to what freedom looked like when others were walking out of the door to leave prison grounds while I was being carted away into another place of incarceration under a different pretext. I would face an unknown, a place of despair beyond words, caught in the myriad of complex immigration laws that mandated my deportation and continued confinement although I was released. I faced a system that guaranteed no right to counsel, no limit to detention, no trial, no jury, and no geographic limitation on my confinement. The concept of due process did not exist beyond mere advisal of my deportation charges on a sheet of paper. My convictions became the means of stripping me from my family, my home, my community, my life as I had known it. The system was out to banish me from all I ever knew, to send me to a land I had never set foot in. It was the means to inflict a secondary punishment and only because I was not born here—using my birthplace to justify its operation.
III. False Freedom
Eventually I would walk out, but not as a person enjoying liberty. My first breath taken outside of a locked cage as an adult in the land of the free was not liberating by any means. I was under parole supervision, subject to an order of deportation, and under Immigration and Customs Enforcement (ICE) supervision. This was at a time when this country had its first Black president and concomitantly the highest numbers of deportations of any administration. I had to understand how this could be possible.
Not until the Fourteenth Amendment was ratified in 1868 could someone of African descent become a citizen of the United States. It took a civil war, and nearly one hundred years after the founding of the country, to formally end slavery and provide citizenry benefits to the descendants of enslaved Africans. It took nearly another century and a half before this country would see that benefit fill the seat of the presidency. It seems contrary to have the first Black commander-in-chief also take on the role of deporter-in-chief. It is not the choice of one person, but the amalgamation of events throughout history, that made this juncture possible.
IV. Public Education and Policing Hold Up Broken Systems
Let us start with a cursory examination of the creation of the public school system, beginning with Boston Latin School. Founded in 1635, it is the oldest school in America but its founders bear greater weight than its age. It was started in Boston which was dominated by Puritans who settled in the Massachusetts Bay Colony after fleeing England as religious dissidents. Their views impacted every aspect of life in such a way that they pushed out other colonists with differing beliefs, resulting in a Puritan stronghold in New England. They believed it was essential for people to be able to read the Bible and the laws of the land. They also felt it was the government’s role to enforce religion as a highly theocratic society. In this landscape, Boston Latin School was formed to build the foundations for a theocracy under Puritan rule. With this influence, they formed the inception of what is now the American public school system and created early on the tension we see today with the separation of church and state.
Schooling was not yet compulsory and as Puritan leaders began to worry that many parents were not teaching their children and hence their children would not be able to read the Bible, the Puritans worked to pass legislation compelling education in 1642. Parents were required to teach their children to read English or face a fine. They could either teach their own children or hire someone to do it and they were surveilled by selectmen—members of local governing boards—who kept watch over their communities to ensure children were being taught. If a parent neglected this duty, they could have their children removed from their care.
With continued concern over educational neglect, Massachusetts passed what would be known as the Old Deluder Satan Act in 1647. It laid the basis for community-funded schools, creating several principles which we still see in practice today: structures of separation between levels of education, public responsibility for basic education, local responsibility for the daily operations of schools, and states’ ability to force localities to raise and spend their funds for schools. There was also a strong religious basis to this Act, with its intention being to thwart the devil from making people ignorant of the Bible.
Although public schools today may not have the same religious goals as the Puritans had, they still serve to be a cure for illiteracy and ignorance. As the maxim goes, ignorance of the law is no excuse. People today are still expected to know what the law says and since the laws are written, it is implicitly assumed people have read and understand them. The Puritans’ model of consequences for failing to meet the educational goal is still seen in practice today through truancy laws enabling prosecutions of parents.
The sense of school being a place to procure piety also still holds today. Piety is inextricably tied to obedience as a show of fidelity to religious obligations and norms—one cannot be pious without being obedient. Although most schools today do not impose religious ideology, they do play key roles in promoting social norms of authoritative respect and obedience; religious order has been supplanted by social order and so piety is now toward society rather than a religion. In most classroom settings, an order or instruction is given and pupils are to follow that command. When this model does not bode well, students are often treated as discipline problems. Unfortunately, in many cases, students are expelled or pushed out of the public school system for what is deemed misbehavior. This reality raises the question whether public schools are there to teach knowledge for success or whether they exist to produce obedience, conformity, and docility under the guise of education.
Today, students across the country are in schools with police but no counselors, police but no nurses, police but no school psychologists, and police but no social workers. Students are even in schools with police that have neither a counselor, nor a nurse, nor a psychologist, nor a social worker. This is a glaring example of criminalization intersecting with the education system. Police surveil, suppress, and act as an arm of violence for the government. Police are a public institution of social control and coercion along with jails and prisons. Police criminalize and remove those that do not obediently comply. Police presence on campuses elevates the question of whether the school system really functions to promote conformity or provide knowledge. It is difficult to accept the latter when schools are opting to be part of the policing apparatus rather than partner in the network of care essential to ensuring students’ mental health and acuity to optimize the ability to learn and retain knowledge. Attempts to provide knowledge with a critical analysis on race has encountered staunch conservative opposition even from federal government leadership.
V. Origins of United States Policing
Policing too can be traced back to colonial times. There were no police departments like we see today in the colonies. When the English crossed the ocean, they also brought their practices, including their form of policing. In England, the colonists had been accustomed to a system of night watch within cities to guard against fire, crime, and disorder. The northern colonists adopted this system using community volunteers whose main duty was to warn of impending danger. In Boston, they formed a night watch in 1636. New York did the same in 1658 and Philadelphia followed in 1700.
In the southern colonies however, the development of policing resembled more of what we see on the streets today. The southern police model was the slave patrol, which was created to control enslaved Africans by catching runaways, deterring revolts through terror, and providing discipline for violating plantation rules outside of the law.
With the Revolutionary War came the formation of the United States under a new constitution to bring about independence and liberty. The first congress to assemble afterwards reserved the rights of citizenship under the new government to the “free white person.” Black people continued to be enslaved, and America adopted the practice of slave patrols. It was still the white Western European man’s world. When slavery came to a formal end after the Civil War nearly a century later, slave patrols formally disbanded. The policing of Black bodies, however, carried on through the birth of Black Codes and the era of Jim Crow segregation.
By the mid-1800s, the United States outgrew informal modalities of policing. Population growth from open immigration along with westward expansion brought about significant changes. America also became more industrialized and urban. Policing then shifted to publicly funded bureaucratic fulltime departments under the control of a central governmental authority, forming the structures we see today. In large part, this was the result of commercial interests needing a stable and controlled work force for labor. An organized system of social control was needed so businesses could thrive.
In this era of economic boom and largely uncontrolled immigration, social divisions became much more apparent. Bankers, merchants, and industrial elites created chambers of commerce and social clubs while they developed exclusive neighborhoods. Those that were successful but did not amass such great wealth formed the middle class and strived to maintain or improve their status. They did not want to fall into the urban working class who struggled with a precarious existence.
The growth and development of the profit-driven market spiked social tensions in the community. Inequality boomed, workers were exploited in harsh conditions, and economic elites dominated local government. The power and influence of successful capitalists allowed them to use organized government and policing to quell worker unrest over issues such as low pay. The wealthy could strategically use their political power to suppress workers “rioting” in ways which we know today as union strikes. Having a centralized body of law enforcement, with the authority to use force to wield control, made it easy for employers to produce the illusion that order was being kept to maintain the rule of law rather than for their own monetary benefit.
VI. A Broken Civil Immigration System
The shift into suppression made it possible to move from social control to crime control. As an example, drinking was prevalent among the working class to forget the long hours, unsafe conditions, and uncertain wages; it was also, however, widely viewed as a major cause of crime and public disorder. Public drunkenness, crime, violence, protests, and worker unrest were all seen as coming from an inferior, morally corrupt, and unskilled underclass—primarily of the poor, immigrants other than white Western Europeans, and free Black people. This made it easy to isolate them as a socially dangerous group, making them easily visible and easy to target. Naming them as the crime problem created a trend in crime control that sits with us until now, where low-income communities of color are targeted for suppression. This shift in policing entrenched the idea that control and social order should be achieved by directing enforcement toward “bad actors,” rather than alleviating the poor social and economic conditions to rid the root cause of social instability.
One of the very identifiable groups that would become targeted were Chinese people. As they immigrated towards the West Coast in the mid-1800s, they encountered severe hostilities. The Chinese migrant experience in America would turn out to lay the legal framework for the federalization of immigration that we currently experience. They were not well received and even became known as “Yellow Peril,” a reference to Western fears that the Chinese would invade and disrupt Western values. Xenophobia, unease with Chinese culture, and labor tensions with working-class whites made Chinese people an easy target across the country. White American anxiety rose to the point where Congress enacted anti-Chinese legislation such as the Page Act of 1875 and the Chinese Exclusion Act of 1882, which were the first significant laws restricting immigration into the United States based on national origin.
Chae Chan Ping v. United States, commonly known as “the Chinese Exclusion Case,” laid challenge to the exclusion legislation and ended up establishing a plenary power doctrine which has been used to justify bans based on race, national origin, and even religion. The Chae Chan Ping court established the judiciary’s complete deference to the political branches’ decisions on immigration. This doctrine has held up and evolved over time but remains in force, which provides Congress and the president virtually unchecked power when it comes to immigration. Just four years later in 1893, the Fong Yue Ting v. United States court took it one step further and explicitly labelled deportation a civil matter absolved of full constitutional protections. This label has been upheld through today. Moreover, Ting held that a statute requiring a credible white witness to establish residency in order to avoid deportation was constitutional and valid. This same statute required Chinese laborers to apply for residency papers and made them subject to arrest for not having done so.
These cases come from an era of U.S. Supreme Court jurisprudence that is by far one of the worst in history. They are tucked neatly between Dred Scott v. Sandford and Plessy v. Ferguson. The racism and xenophobia explicitly conveyed through these seminal cases still ring true today in how systems operate. It took a civil war and a constitutional amendment to overturn Dred Scott v. Sandford. It took the fight for desegregation and a whole new court 58 years after Plessy v. Ferguson to overturn it unanimously in Brown v. Board of Education. The fates of the Chinese cases, however, have withstood the test of time, enabling the framework for the restrictive and punitive immigration system we see today. The civil label makes any legal challenge of deportation as a punishment futile, whether resulting from a criminal charge or not. Additionally, since deportation is classified as a civil sanction, immigrants facing removal have no Sixth Amendment guarantees like those provided in the criminal context. Noncitizens without formal training in law are forced to navigate what is often regarded as a labyrinth of hypertechnical statutes and regulations. It is the civil label that emboldens the criminal and immigration systems to intersect with subminimal protections for those caught in its overlap.
The implications of this legal framework present an incomparable significance under the latest evolution of immigration law through the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) of 1996. The IIRIRA severely eroded due process. It not only curtailed equitable forms of relief; it outright eliminated any chance of success for a sweeping array of cases. In 2018, the Supreme Court even held that under the IIRIRA noncitizens in removal proceedings could be held indefinitely under the scheme of mandatory detention. It expanded the list of deportable crimes by redefining the term “aggravated felony” to include misdemeanors no matter how old the convictions were, making it a term of art.
The IIRIRA also established the 287(g) program, enabling local and state law enforcement agencies to enter into partnership with the federal government to enforce immigration law and share data. This repurposing of criminal enforcement tools to regulate immigration and the resulting increase in enforcement meant big business for private for-profit prisons that house noncitizens awaiting deportation proceedings. As an example, even the Department of Homeland Security Office of Inspector General released a report on violations of federal procurement laws leading to a contract with private prison operator CoreCivic that was worth over a billion dollars.
This is a glaring example of the collision of systems. No system can function in the United States in a vacuum. At some point, it will intersect with other apparatuses. It is at those junctures that layers of punitive and market-based motives compound. The analysis here does not even begin to address the effects of the prison boom and era of mass incarceration. It does not address consistently growing police budgets and increased expenditures of enforcement. Narrative shifts are not expounded to dissect the conflation and intermingling of systems through messaging that create the modern enforcement-oriented society we live under.
In light of what is raised, however, it begins to expose how I came to have the life experience that I do but little is said about how I came to pen this Essay. Let us just say that had I not taught myself law while incarcerated, I would not have been able to manage my release and get a moment of time here with my community. I would not have resolved myself to get a pardon so that I can have my grounds for removal waived. I would have accepted the fate that all too many have met because of the overwhelming systemic pressures. I would not still be here and working with young people today. I would have been deported to Cambodia, a country I have never set foot in.
It is the support of others and those in the community that has enabled me to get the grasp of legal knowledge that I possess today. It was an investment in me as a person that helped me to understand the challenges that I faced and gave me the determination to find a way to overcome insurmountable odds. This Essay does not dive into any particular “practice of law” I may have had as a jailhouse lawyer, but it does go to show that I had to fight for my own liberation and that was the way the system was designed. I had to navigate a system beset with challenges, standing as one person against the resources of the U.S. government. This exposition is more of a reflection on how I came to find myself in the crosshairs of the convergence of the criminal and immigration systems, on how they were built to withstand the test of time and come to target our communities. Ultimately, the solutions to bring fairness and equality require a greater imagination that goes beyond notions of penology.
If our contemporary experiences can in many ways mimic the outcomes of those from over a century ago, not much has really changed. I can for one say that the legal systems in America are not broken, that they do what they have always been designed to do: empower and benefit white settler colonialists and their progeny. This is how broken systems function by design.
. Naturalization Act of 1790, ch. 3, 1 Stat. 103 (repealed 1795).
. The Day the Constitution Was Ratified, Const. Ctr. (June 21, 2020), https://constitutioncenter.org/interactive-constitution/blog/the-day-the-constitution-was-ratified [https://perma.cc/3NUJ-8PXH].
. Naturalization Act of 1790, ch. 3, 1 Stat. 103, 103.
. Matthew H. Jennings, Slave Codes: 1690–1865, S.C. Encyc. (May 22, 2018), https://www.scencyclopedia.org/sce/entries/slave-codes [https://perma.cc/GTU7-NKBW].
. See id.
. See J. H. Hollander, The Naturalization of Jews in the American Colonies Under the Act of 1740, 5 Publ’ns Am. Jewish Hist. Soc’y 103, 108 (1897).
. See id. at 103.
. Hollander, supra note 7, at 104.
. The Naturalization Act of 1790 required a two-year residency period in the United States, an application to a local court, proof of good character, and an oath of allegiance before a judge. Naturalization Act of 1790, ch. 3, 1 Stat. 103 (repealed 1795).
. See generally, e.g., Asafa Jalata, The Impacts of English Colonial Terrorism and Genocide on Indigenous/Black Australians, SAGE Open, July/Sept. 2013, at 1.
. See Emily Salmon, Convict Labor During the Colonial Period, Encyc. Va. (Dec. 14, 2020), https://encyclopediavirginia.org/entries/convict-labor-during-the-colonial-period [https://perma.cc/BK47-Y5HU].
. See id.
. See U.S. Const. amend XIV, § 1.
. See generally Bill Ong Hing, Deporter-in-Chief: Obama v. Trump (Univ. of S.F. Sch. of L., Rsch. Paper No. 2019-03, 2019), https://ssrn.com/abstract=3254680.
. BLS History, Bos. Latin Sch., https://www.bls.org/apps/pages/index.jsp?uREC_ID=206116&type=d [https://perma.cc/5NV4-SC5J].
. See Daniel Baracskay, Puritans, First Amend. Encyc., https://www.mtsu.edu/first-amendment/article/1372/puritans [https://perma.cc/VHZ4-RW42].
. See id.
. 2 Nathaniel B. Shurtleff, Records of the Governor and Company of the Massachusetts Bay in New England: 1642–1649, at 9 (AMS Press, Inc. 1968) (1853).
. See Baracksay, supra note 18.
. Cf. id.
. 2 Shurtleff, supra note 20, at 8–9.
. Id. at 9.
. See id.
. See generally, e.g., James Stillwaggon, The Old Deluder, Educational Salvation, and the Limits of Distributive Justice, 10 Pol’y Futures Educ. 352 (2012); see also 2 Shurtleff, supra note 20, at 203.
. See 2 Shurtleff, supra note 20, at 203.
. See id.
. E.g., Truancy, Cal. Dep’t Educ. (Jan. 11, 2021), https://www.cde.ca.gov/ls/ai/tr [https://perma.cc/8X66-VKCR].
. See UCLA Ctr. for C.R. Remedies & ACLU of S. Cal., 11 Million Days Lost: Race, Discipline, and Safety at U.S. Public Schools (2018), https://www.aclu.org/sites/default/files/field_document/final_11-million-days_ucla_aclu.pdf [https://perma.cc/72G6-W77S].
. See Amir Whitaker et al., ACLU of S. Cal., Cops and No Counselors: How the Lack of School Mental Health Staff Is Harming Students (2019), https://www.aclu.org/sites/default/files/field_document/030419-acluschooldisciplinereport.pdf [https://perma.cc/CLB9-L3RH].
. See Critical Race Theory, https://criticalrace.org [https://perma.cc/LZ6Y-8LJR]; Fox News, Tucker: Critical Race Theory Is a Lie From Start to Finish, Fox News Video (Sept. 9, 2020), https://video.foxnews.com/v/6188946152001#sp=show-clips [https://perma.cc/BM9S-M8SA]; Memorandum from Russell Vought, Dir., Exec. Off. of the President, to Heads of Exec. Dep’ts & Agencies (Sept. 4, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/09/M-20-34.pdf [https://perma.cc/7Z33-HDDD].
. See Larry K. Gaines & Victor E. Kappeler, Policing in America 83 (8th ed. 2015).
. See id. at 74–78.
. See id. at 83–85.
. Id. at 85.
. See, e.g., Sidney Harring, The Development of the Police Institution in the United States, Crime & Soc. Just., Spring/Summer 1976, at 54, 57.
. Gaines & Kappeler, supra note 35, at 83; see also Matthew H. Jennings, Slave Patrols: 1704–1865, S.C. Encyc. (May 22, 2018), https://www.scencyclopedia.org/sce/entries/slave-patrols [https://perma.cc/8AVX-GUUQ].
. Naturalization Act of 1790, ch. 3, 1 Stat. 103 (repealed 1795).
. See Jill Lepore, The Invention of the Police, New Yorker (July 20, 2020), https://www.newyorker.com/magazine/2020/07/20/the-invention-of-the-police [https://perma.cc/JA62-QAQA].
. The Southern “Black Codes” of 1865–66, Const. Rts. Found., https://www.crf-usa.org/brown-v-board-50th-anniversary/southern-black-codes.html [https://perma.cc/SHT3-GZR7].
. See Harring, supra note 39, at 55; see also Gaines & Kappeler, supra note 35, at 86–87.
. See Harring, supra note 39.
. See id.
. See, e.g., Erika Lee, The “Yellow Peril” and Asian Exclusion in the Americas, 76 Pac. Hist. Rev. 537 (2007).
. See, e.g., Julie Courtwright, A Slave to Yellow Peril: The 1886 Chinese Ouster Attempt in Wichita, Kansas, 22 Great Plains Q. 23 (2002).
. See Kerry Abrams, Polygamy, Prostitution, and the Federalization of Immigration Law, 105 Colum. L. Rev. 641, 642–47 (2005).
. 130 U.S. 581 (1889).
. Id. at 603–09.
. 149 U.S. 698 (1893).
. Id. at 713–14.
. Id. at 699.
. Act of May 5, 1892, ch. 60, 27 Stat. 25.
. 60 U.S. 393 (1856).
. 163 U.S. 537 (1896).
. 347 U.S. 483 (1954).
. See infra notes 62–63 and accompanying text.
. See 8 U.S.C. § 1229a(b)(4)(A) (providing that “the [noncitizen] shall have the privilege of being represented, at no expense to the Government, by counsel of the [noncitizen’s] choosing who is authorized to practice in such proceedings”); Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990) (finding that immigrants have a due process right to obtain counsel of their choice at their own expense).
. See Filja v. Gonzales, 447 F.3d 241, 253 (3d Cir. 2006) (characterizing the immigration regulations as “labyrinthine”); Baltazar-Alcazar v. Immigr. & Naturalization Serv., 386 F.3d 940, 947–48 (9th Cir. 2004) (“It is no wonder we have observed ‘[w]ith only a small degree of hyperbole, the immigration laws have been termed second only to the Internal Revenue Code in complexity. A lawyer is often the only person who could thread the labyrinth.’” (alteration in original) (quoting Castro-O’Ryan v. U.S. Dep’t of Immigr. & Naturalization, 847 F.2d 1307, 1312 (9th Cir. 1987))); Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003) (describing “the labyrinthine character of modern immigration law” as “a maze of hypertechnical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike”).
. See 8 U.S.C. §§ 1101–1537.
. Pub. L. No. 104-208, 110 Stat. 3009.
. Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018).
. See 8 U.S.C. § 1227(a)(2)(A).
. This is a reference to the authorizing statute under the Immigration and Nationality Act (INA) 287(g). See 8 U.S.C. § 1357.
. Off. of Inspector Gen., Dep’t of Homeland Sec., OIG-18–53, Immigration and Customs Enforcement Did Not Follow Federal Procurement Guidelines When Contracting for Detention Services (2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-02/OIG-18-53-Feb18.pdf [https://perma.cc/YP8P-SEJL].
. Formerly the Corrections Corporation of America (CCA).
. Chico Harlan, Inside the Administration’s $1 Billion Deal to Detain Central American Asylum Seekers, Wash. Post (Aug. 14, 2016), https://www.washingtonpost.com/business/economy/inside-the-administrations-1-billion-deal-to-detain-central-american-asylum-seekers/2016/08/14/e47f1960-5819-11e6-9aee-8075993d73a2_story.html [https://perma.cc/3S5N-AS6C].Vol-68-Sok