A Niche Architecture for Immigration Court

Towards the end of Franz Kafka’s unfinished and posthumously reconstructed novel The Trial, the protagonist K. meets with a member of the court who admits to him: “They think you’re guilty.”Franz Kafka, The Trial, trans. Breon Mitchell (Shocken Books, 1998), 215.K. trusts this man, perhaps because he speaks frankly, perhaps because he is a priest, and listens as the man tries to teach him a fundamental lesson about the law:

Before the Law stands a doorkeeper. A man from the country comes to this doorkeeper and requests admittance to the Law. But the doorkeeper says that he can’t grant him admittance now. The man thinks it over and then asks if he’ll be allowed to enter later. ‘It’s possible,’ says the doorkeeper, ‘but not now.’ Since the gate to the Law stands open as always and the doorkeeper steps aside, the man bends down to look through the gate into the interior.Kafka, 216. This passage is the beginning of a parable which was published as a short story in 1915, during Kafka’s lifetime. While it occurs towards the end of the novel published in 1925, it is often represented independently. For instance, the parable occurs at the very beginning of Orson Welles’ 1965 film adaptation of The Trial.

In this classic tale, an outsider arrives but is not allowed to enter. At stake for the man from the country is a means of access to the law, to its systems and its enclosures. The structural interiority of the law in Kafka’s Trial can be interpreted as a certain kind of architectural problem: a project of both orientation
and representation. Being-inside and being-outside, as architectural descriptions, begin with the recognition of a tectonic system rules and thresholds. Thus, the justice system appears to K. as an endless chain of encounters and events, however loosely linked. K. finds himself on the outside of this system, and yet he looks in and tries to connect, at least partially, with people ‘in the know.’ A banker by profession, his intellect gives him the (false) impression that he might reason with the representatives of the law.Notably, K. refuses to hire a lawyer at the beginning of his trial, assuming that the best and most authentic representation he can choose is himself. This does not go over well with the other members of the court.After all, K.’s contention, at least from the perspective of his landlady, “seems like something scholarly.”Kafka, The Trial, 23.But the fundamental flaw in K.’s approach to his own trial is that his intellect often prompts him to make abstract arguments demonstrating his innocence or the emptiness of the accusation, arguments which are tightly coherent and apparently incriminating. K. experiences both the allure and the horror of the law, a vast system of agents and texts, unknowable in its depth and untouchable in its power over justice.

The Trial proceeds methodically and with precision, untroubled by the abstractions of truth and justice. In their treatment of his oeuvre as a ‘minor’ literature, Gilles Deleuze and Felix Guattari argue that Kafka’s approach is “less a question of presenting an image of a transcendental and unknowable law than of dissecting the mechanism of an entirely different sort of machine, which needs this image of the law only to align its gears and make them function together.”Gilles Deleuze and Felix Guattari, Kafka: Towards a Minor Literature, trans. Dana Polan (University of Minnesota Press, 1986), 43. For an interpretation of this text by Deleuze and Guattari within architectural discourse, see R.E. Somol,"One or Several Masters?"[1993] published in Hejduk's Chronotope, ed. K. Michael Hays (Princeton Architectural Press, 1996).Somol traces the overlapping images of the law and the outlaw in the postwar theoretical architecture of Colin Rowe and John Hejduk, beginning with their seminal essay on the courthouse square as an urban type, “Lockhart, Texas,” Architectural Record, Vol. 121, No. 3 (March 1957), 201-206.If K. only sees the law as an abstract machine whose inputs are notions such as true or false, guilty or innocent, then Kafka, by comparison, describes a much more concrete mechanism of the law whose components are readily identifiable, albeit endlessly divisible: courts, rooms, doors, hallways, stairs, lawyers, magistrates, associates, children. In this formula, justice is necessary not as a premise, but because it is one of the products of the courts. Kafka describes an interior to the law that has proliferated to such a degree that being-inside, or rather being-part-of, the machine of justice is a logic unto itself.

In May of 1924, approximately one week before Kafka died and one year before Max Brod published The Trial, the United States Congress passed the Johnson-Reed Act which became the nation’s first immigration law that was global in its scope.Prior to this legislation, immigration policies were usually determined by the executive branch via treaty. Notable exceptions of legislative action include the Page Act of 1875, which prohibited the immigration of Chinese women, and the Chinese Exclusion Act of 1882, which extended that barrier to men as well. The Immigration Act of 1891 consolidated immigration law enforcement within federal jurisdiction, but policy remained piece-meal until 1924.In addition to establishing a quota system for legal immigration based on “national origins” — a dubious notion about the ‘American people’ that legitimized the use of racist population statistics to regulate the flow of people coming into the country — the Johnson-Reed Act also codified and expanded the category of ‘illegal’ immigration.Mae Ngai, “The Architecture of Race in American Immigration Law: A Reexamination of the Immigration Act of 1924,” The Journal of American History, Vol 86, No. 1 (1999), 67-92.The origins of these restrictive policies can be traced to the image of a White nation as it was framed by the Constitution, a vision which became entrenched in response to the refugee population created by the First World War.On the crisis of the nation-state after WWI, see Hannah Arendt, “The Decline of the Nation-State and the End of the Rights of Man,” in The Origins of Totalitarianism [1954].And behind or perhaps before this image of the law, there stood an increasingly complex legal structure of citizenship that had to be maintained and reinforced in the age of moving populations.For a wide-ranging history of the legal construction of race and citizenship in the era of immigration quotas, see Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton University Press, 2004).

Quotas for European immigrants and exclusions for Asian immigrantsSee Ngai, Chapter 3 of Impossible Subjects, for a history about the exception to the exclusion of Asians from the US, which was the Filipino immigrant. The Philippines was a colonial territory of the United States from 1898 to 1946.constituted the primary technique of processing immigrants who arrived in large coastal cities, but the legal system needed a different approach to those entering from the hinterlands of the American interior. Whereas Ellis Island was the geographic-architectural answer to the call for a bottleneck, the Western landscape offered no such solution.For a history of architectural interventions along the US-Mexico border in the early part of the 20th century, see Alexandra Minna Stern, “Buildings, Boundaries, and Blood: Medicalization and Nation-Building on the U.S.-Mexico Border, 1910 - 1930,” THe Hispanic American Historical Review, Vol. 79, No. 1 (1999), 41-81. She makes an argument about how the immigration politics and infrastructure of the southwest cannot be treated as a mere extension of the federal legislation that was created and deployed in the east, such as quotas.Moreover, American farms, which were consolidating and proliferating across the border states of Texas, Arizona and California in the 1920s, depended on a surplus of Mexican migratory labor in order to industrialize effectively. It was in this context that the US Border Patrol and the Immigration and Naturalization Service were created as agencies within the Department of Labor. In 1940, all immigration agencies were transferred to the Department of Justice,“Evolution of the US Immigration Court System: Pre-1983,” https://www.justice.gov/eoir/e... yet patterns of migration from Mexico continued to be largely determined by labor politics. For instance, in 1942, while many nations were mobilizing their militaries, Mexico was mobilizing its workforce to participate in the Bracero program, an arrangement where Mexican laborers would be sent legally across the border to work on American farms. This program was designed to eliminate “illegal” immigration, but it only complicated matters by inserting millions of non-citizens into a migrant labor class.Ngai, “Braceros, ‘Wetbacks,’ and the National Boundaries of Class,” in Impossible Subjects, 127-166.

Nevertheless, with immigration law now enforced by the Attorney General in the name of Justice, the bureaucratic process began to take on an air of dignity and precision that was notably absent in previous decades. The Board of Immigration Appeals was formed in 1940, and it is still the highest administrative court making decisions on immigration law. Below the appellate board, a network of civil servants was created to make the initial decisions about whether non-citizens should be allowed to remain or should be removed. Despite major overhauls to immigration policy during the Civil Rights Era, these so-called special inquiry officers continued to fulfill the role of primary gatekeeper for the administration of immigration justice. In 1973, these officers were authorized to use the title “immigration judge” and to wear judicial robes. In 2003, the newly created Department of Homeland Security assumed control of many agencies tasked with enforcing immigration law, but immigration judges remained and remain today part of the Department of Justice in an attempt to ensure “judicial independence” via the bureaucratic separation of prosecutors from judges.

Even as this bureaucracy becomes increasingly refined, immigrations judges still work for the Attorney General, and concerns about due process for immigrants persist, prompting many former immigration judges to call upon Congress to create an independent Article I Immigration Court.For some example letters of support for an Article 1 Immigration court, see “AILA Calls for Independent Immigration Courts,” https://www.aila.org/infonet/aila-calls-for-independent-immigration-courts, and “Congress Should Establish an Article 1 Immigration Court,” https://fedbar.org/Advocacy/Issues-Agendas/Article-1-Immigration-Court.aspx. For example legislation drafted by the Federal Bar Association, see “A Bill,” https://fedbar.org/Image-Libra... Article I tribunal is a specialty court that is authorized to adjudicate on a specific type of case. In other words, it addresses a niche area of the law.Other examples of Article 1 tribunals include US Tax Court, Bankruptcy Court, and the Court of Federal Claims.Legislation for an Article I Immigration Court has been proposed as a solution to the immense backlog of cases. By separating immigration court from the departments of Justice and Homeland Security, immigration law might be able to operate according to a logic of its own rather than one that is derived from the political whims of whoever happens to be in charge of the executive branch.

In the event of the creation of an Article I Immigration Court, the government may require a new building type to accommodate the programmatic nuance of immigration court hearings. This typological nuance emerges first not as mass, nor as a plan, but rather at the scale of the detail. In the law and in architecture, the cutting edge is always in a niche, and so the courtroom is built as a series of niches for each of the actors in a trial. Niche construction, understood as a class of formal and conceptual techniques directed towards the proliferation of interior space, begins with the details of a room, i.e., the components of a system — a door, a judge, a stair, the bar, the witness, the chair — and constructs a building beyond them. Designed less as a space for the law and more as a diagram of a trial, this project proposes a first-order Article I immigration court that is built for the judge as intermediary, the noncitizen as subject, and the public as witness.