Before the Law stands a doorkeeper on guard. To this doorkeeper there comes a man from the country who begs for admittance to the Law. But the doorkeeper says that he cannot admit the man at the moment. The man, on reflection, asks if he will be allowed, then, to enter later. ‘It is possible,’ answers the doorkeeper, ‘but not at this moment.’ Since the door leading into the Law stands open as usual and the doorkeeper steps to one side, the man bends down to peer through the entrance. When the doorkeeper sees that, he laughs and says: ‘If you are so strongly tempted, try to get in without my permission. But note that I am powerful. And I am only the lowest doorkeeper. From hall to hall keepers stand at every door, one more powerful than the other. Even the third of these has an aspect that even I cannot bear to look at.’
–Franz Kafka,
The Trial
... This anecdote, apart from being a classic showpiece of my unremitting administrative incompetence, is, I think, a pretty good example of how we mortals usually interface with bureaucracies, both the government and private bureaucracies which exercise control over important parts of our lives. Bureaucratic processes have lots of rules; some of those rules are unwritten; some are written down, but not consistently followed; some are written down, but not in a place you have access to; random officials determine which rules will be invoked at which times; and, usually, there are a series of escape-valves where, if you have enough money, you can just bribe yourself out of the remaining hassle.
Bureaucracy, of course, looks very different when viewed from the perspective of those who govern (or those who sympathize with those who govern), as opposed to those who are governed. For political scientists, bureaucracy is a normal and unavoidable feature of large states. No executive can single-handedly administrate a large polity, and so the development of systematized decision-making procedures that can be delegated downwards is the inevitable outcome. (That bureaucratic systems would develop within private enterprises seems even less surprising, since there’s no pretense of drawing authority from any kind of public mandate.) And in many polities present and historical—from imperial China to the Carolingian Empire to 19th-century Britain—bureaucracies have been imagined as a meritocratic alternative to pure nepotism, the idea being that individuals without significant wealth or family power could enter a bureaucratic system and advance within it, based solely on talent.
In the United States, where our political consciousness is mostly limited to elections, and few of us have any cognizance of how bureaucrats are chosen and elevated, this rosy view of bureaucracy isn’t nearly as widely-held, but some recent media has romanticized bureaucrats and civil servants. Think of
The West Wing, dramatizing the behind-the-scenes labors of White House administrators, or
Parks and Recreation, where main character Leslie Knope is presented as the quintessential virtuous bureaucrat: eccentrically delighted by regulations and procedures, tirelessly hard-working, and ambitious in the service of the public good. Bureaucrats are, in these shows, imagined to be the epitome of responsible, effective governance, separate from and more high-minded than the rat-race of electoral politics.
This, however, is a vision of bureaucracy from the perspective of bureaucrats themselves. The vision of bureaucracy from the perspective of those who are
subjects of bureaucracy is simply: paperwork. There is a thing I need, and I cannot get it unless I fill out a million incomprehensible forms. There is something I have done wrong, in the eyes of the state, and in order to correct it, I must perform a series of bizarre tasks, like a rat in an experiment. Miniscule irregularities in my compliance with these administrative rituals confer immense power on the bureaucrat tasked with evaluating me: such an error gives that bureaucrat untrammeled license to reject my request if they so choose. If the fictional face of the bureaucrat is Leslie Knope, the fictional face of the bureaucratic subject is Josef K., the protagonist of Kafka’s
The Trial, who finds himself trapped between a nebulous court and a shadowy Committee of Affairs as he struggles to navigate something he knows only as “the process.”
My most nightmarish encounters with bureaucratic systems, unsurprisingly, have occurred in connection with my work as an immigration lawyer. When people think about why our immigration system is bad, they often think about armed patrolmen at the border, prison guards at detention centers, ICE agents conducting workplace raids, etc. But our immigration system is also, at its core, an extremely large and intricate bureaucracy, and many of the bad decisions that affect people’s lives within this system are not made by, say, racist immigration cops going rogue in the field, but by immigration bureaucrats calmly reviewing paperwork in an office. It’s hard to convey the extent to which the rules of this system are deliberately set up to ensure that
most immigrants are unable to follow the law, no matter how hard they try. This, in turn, then gives the government handy anecdotes and statistics to trot out in order to suggest that immigrants, much like Josef K., are not Complying With The Process.
Let me give you an example of a problem that I encounter frequently. I work primarily with immigrant mothers and children who are imprisoned at a family detention center in Dilley, Texas. One of the ways that moms and kids end up in that detention center is because they were picked up by ICE for having an order of deportation that was entered against them automatically when they failed to show up for their scheduled hearing in immigration court.
Now, you might well suspect that people who miss their immigration court hearings are skipping them
on purpose, knowing that our court system is incredibly hostile, and fearing that they’ll lose their case. I certainly wouldn’t blame any immigrant for doing this, since it’s exactly what I would do in their shoes, without hesitation. However, this is not why the vast majority of the families I’ve worked with have missed their hearings. In fact, the #1 reason that people miss their hearings is because
they never knew they had a hearing. How do I know that these families are telling the truth? Because most of them were arrested at their required check-ins with ICE, to which they continued to faithfully report even after their deportation orders had been entered. Why the hell would you keep attending your scheduled meetings with immigration officials if your intention was to go into hiding?
In fact, the story I hear from these families detained at their check-ins is almost always the same: “I did everything I was supposed to do. I checked my mail every day. I went to all my meetings with immigration. I answered all of immigration’s phone calls. I always complied with the law. I don’t understand why my children and I were arrested.” When I would dig further into their history, I would usually find out that the family, at some point, moved to a different address than the one they registered with immigration when they arrived in the United States. They had, of course, dutifully informed ICE of their new address at their check-in, and an ICE officer had written it down on an official-looking form right there in front of them, and the family had believed, quite reasonably, that they had successfully updated their address with “the government.” Little did they know, of course, that “immigration” (a.k.a. ICE) is housed under a completely different department than the immigration
court system, which is responsible for mailing their hearing notices. To change their address with the
court, there is a completely different piece of paper they have to fill out and mail to several specific locations within five days of relocating. ICE, with whom these families meet every month, doesn’t give a shit whether the families get their hearing notice at the correct address, so they don’t go out of their way to let the families know that there are additional steps they need to take. And so then, of course, the family shows up at their scheduled check-in one day, never having known that they even
had a court hearing scheduled, only for immigration to gleefully inform the family that they’ve lost their case and take them into custody. (Other times, the family’s registered address is entirely up-to-date, and the government just fucks up sending the notice in the mail—this happens with some frequency, too.) (...)
Now, you might think: okay, sure, a very poor, recently-arrived, non-English-speaking family can’t reasonably be expected to navigate the immigration bureaucracy on their own. But if a
trained immigration lawyer were right there, guiding them through each step of the process, surely everything would go fine! Well, not so much. We’ll leave aside the substance of the lawyer’s arguments, and how absurd the judge’s ultimate decision can be: I’ve had motions to reopen denied for families who were
literally kidnapped by drug cartels on the date of their scheduled hearing. Let’s just focus on the bureaucratic considerations: can the lawyer even manage to get the damn motion filed in the right immigration court? When an immigrant you’re trying to help has been shipped to a detention center for processing prior to deportation, there’s a very good chance that the court in which their proceedings took place is located clear on the other side of the country, and also that you’re looking at a same-day window of time to get the documents filed with that specific court before your client is put on a plane. Can you file documents electronically with an immigration court, in This Year Of Our Lord 2020? OBVIOUSLY FUCKING NOT. You need to file in hard copy, which means either mailing the thing overnight—very expensive, and possibly not fast enough—or finding an actual human in the city where the court is located, who can drop everything they’re doing and run to deliver documents for you.
Okay, let’s suppose you manage to find someone who’s available to file the motion.
You may still be screwed. Everything depends on the government clerk at the court filing window. The clerk can choose to accept your filing—thus temporarily pausing the immigrant’s deportation, and possibly giving you a chance to reverse their deportation order (which again, I can’t stress enough, was probably entered against them for
the most bullshit reasons imaginable)—or reject your filing, thus ensuring their immediate removal. A lot is riding on this decision! Surely, a clerk wouldn’t reject a filing for
some reason that makes no goddamn sense! Reader: they
would. I’ve seen clerks reject emergency filings because they didn’t contain “wet” ink signatures, when, again, the person was detained thousands of miles from the court and couldn’t have transmitted an original signature to the court in time with anything other than actual wizardry. I’ve seen clerks reject filings because they weren’t hole-punched at the top, when a hole-punch was sitting right at the clerk’s elbow at the moment of the rejection. I’ve endured agonizing phone calls with clerks who rejected filings for reasons they were entirely unable to explain, or who pretended to accept filings at the window and then quietly rejected them later without telling anyone.
The consequences for these administrative decisions can be huge. We are talking about people getting deported because the government never told them they had a hearing, imprisoned them so far from the courthouse that they couldn’t send their documents in time, and rejected the documents that strangers rushed to file on their behalf. Lots of individual actors within the system had to make lots of little decisions, based on mysterious rules, for this insane result to be possible.
by Brianna Rennix, Current Affairs |
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Image: Tiffany Pai
