Background: new forms of legal advocacy

Because there is no right to government appointed counsel in the immigration context, immigrants must hire private attorneys or find attorneys that are willing to take their case pro bono if they cannot afford representation (Crooke Reference Crooke2024a; Eagly and Shafer Reference Eagly and Shafer2024; Schoenholtz and Jacobs Reference Schoenholtz and Jacobs2002). Research suggests that representation is particularly important for asylum seekers because of the potentially severe repercussions of an asylum denial, such as persecution or even death if deported to their country of origin (Adams and Lasker Reference Adams and Lasker2011; Mellinger Reference Mellinger2021). Yet asylum seekers held in detention or subject to policies like the Migrant Protection Protocols (“MPP”), known commonly as the “Remain in Mexico” policy, faced significant challenges in obtaining pro bono counsel (Eagly and Shafer Reference Eagly and Shafer2024). It is well documented that detention centers are often intentionally located in remote locations away from larger cities, creating barriers to legal access (Crow Reference Crow2024; Eagly and Shafer Reference Eagly and Shafer2024; Ryo and Peacock Reference Ryo and Peacock2018). Individuals subject to MPP were forced to wait indefinitely in a foreign jurisdiction even further removed from U.S. attorneys, exacerbating these conditions.

Many programs have been developed to provide counsel for immigrants to ensure due process in an area of law that is notoriously ambiguous and complex (Einhorn Reference Einhorn, Ramji-Nogales, Schoenholtz and Schrag2009; Lakhani Reference Lakhani2013; Legomsky Reference Legomsky2010). This article focuses on a specific and unique model that first took shape during the Obama administration. In response to the mass incarceration of families under the Obama administration, the legal community transformed the use of direct legal services, not generally associated with collective action, to combat the “malfunction in the operation of law” and “reviv[e] the law itself” (Manning and Stumpf Reference Manning and Stumpf2018: 412). The approach combatted practical barriers to asserting asylum through mass representation (Manning and Stumpf Reference Manning and Stumpf2018). First used in the Artesia Family Residential Center, a program was designed where attorneys from across the United States would volunteer for a short period, often only a week, in select immigration detention centers (Schrag Reference Schrag2020). The short-term nature of these programs ensured that the work was “discrete” and “bite-sized,” making it appropriate for pro bono attorneys who had limited capacity to take on outside work (Yu Reference Yu2023: 154).

After seeing dramatic drops in the rates of removal of families held in Artesia, the program was replicated at the South Texas Family Residential Center, or “Dilley,” and the Karnes County Residential Center (Manning and Stumpf Reference Manning and Stumpf2018; Schrag Reference Schrag2020). Both immigration law experts and novices volunteered as part of these programs, including attorneys with varying areas of expertise and non-attorneys with language capabilities and other skills. Volunteers conducted legal intakes, prepared individuals for Credible Fear Interviews (CFIs),Footnote ² and assisted with legal orientations, among other tasks (Schrag Reference Schrag2020). Over time the short-term service trip model was used in other settings, such as the Stewart Detention Center in Georgia (Innovation Law Lab 2024).

Beginning around the spring of 2018, U.S. attorneys and legal advocates began volunteering using a similar model at the U.S.–Mexico border and assisting asylum seekers traveling through Mexico and arriving at the border as part of caravans (Gonzalez Reference Gonzalez2018; Semple Reference Semple2018). Legal volunteers conducted legal intakes, provided legal orientations, prepared asylum seekers for CFIs, and helped asylum seekers draft their asylum applications, among other tasks (Vulliamy Reference Vulliamy2019). When the Trump Administration initiated MPP on January 25, 2019, forcing the majority of asylum seekers to wait indefinitely in Mexico, legal volunteers continued to provide legal services in Mexican border cities (Nielsen Reference Nielsen2019). Because of the challenges of finding sufficient U.S. attorneys for asylum seekers waiting in Mexico, organizations provided pro se trainings. Some volunteers were involved in preparation for Non-Refoulement Interviews where asylum seekers needed to argue they could not safely wait in Mexico (American Immigration Council 2024). Volunteers remained involved on the ground until programs either paused or moved to a remote model because of the COVID-19 pandemic.

Liminal legal environments

The U.S.–Mexico border and immigration detention centers are liminal legal environments, a term I introduce to bridge Menjívar’s conception of liminal legality and Edelman and Suchman’s notion of legal environments (see Edelman and Suchman Reference Edelman and Suchman1997; Menjívar Reference Menjívar2006). Though liminal legality has primarily been applied to “individuals moving in and out of, and living on the edges of, legal immigration status” (Chacón Reference Chacón2015: 710), the term is at its core about “legal uncertainty” (Chacón Reference Chacón2015: 716) and can be applied to other areas of law. Individuals on parole, for example, are similarly on the “edges of” the criminal justice system (Chacón Reference Chacón2015). Here I extend the term to legal environments where legal status is constructed and contested. Liminal legal environments are characterized by volatile legal uncertainty, contestation, and legal plurality. This uncertainty is further perpetuated by low public visibility and lack of legal access.

Borders are not solely territorial boundaries between nation states, they are social constructs that are “mobile, perspectival, and relational” (Rajaram and Grundy-Warr Reference Rajaram, Grundy-Warr, Kumar and Grundy-Warr2007: x). The border is a space that is “traversed by a number of bodies, discourses, practices, and relationships that highlight endless definitions and shifts in definition between inside and outside, citizens and foreigners” (Brambilla Reference Brambilla2015: 19). Multiple legal volunteers at the border, particularly those volunteering during MPP, reported navigating an environment where the legal landscape was in constant flux. In addition to an unpredictable legal landscape, questions existed about legal ethics around practicing law outside the jurisdiction of the United States. Legal volunteers also described how the environment was inaccessible to many, including other potential volunteers, due to perceived and actual danger.

Immigration detention centers, though different, are also liminal legal environments. While physically located within the boundaries of the United States, they are constitutional gray areas where the protections afforded to those on U.S. soil are attenuated. The line between criminal law and civil law is also blurred. Detention centers are often surrounded with barbed wire and detainees are monitored by guards, paid as little as $1.00 a day for work, and subject to punishment like solitary confinement (Eagly et al. Reference Eagly, Shafer and Whalley2018). Volunteers noted the impact of this carceral setting. They were subject to strict regulations and surveillance, which were not present at the border. The legal environment in detention was further complicated in facilities that held families which were subject to – and were found in violation of – child welfare protections as outlined in the Flores settlement (Schrag Reference Schrag2020). Moreover, the individuals inside these facilities often have liminal legal status. Asylum seekers in detention in the United States stand in the “disjuncture between physical and legal presence” (Coutin Reference Coutin2003: 29). Although they are physically inside the United States, they are legally outside, having not been formally admitted.

Because the U.S.–Mexico border and immigration detention are both far from the public eye, misinformation about the individuals and the policies implemented in these spaces can thrive. The fact that Latino immigrants tend to be targeted for detention, for example, reinforces public beliefs about Latino immigrants “confirming and sustaining racialized suspicions of criminality, justifying their confinement and bolstering support for enhanced immigration enforcement measures” (Wallace and Zepeda-Millán Reference Wallace and Zepeda-Millán2020: 30). Because of the belief in the criminality of asylum seekers, they are separated “from their humanity and from the realization of that humanity by others” (Rajaram Reference Rajaram2003:7; Wallace and Zepeda-Millán Reference Wallace and Zepeda-Millán2020: 30) allowing for policies like MPP and Zero Tolerance, which resulted in family separation.

Division between pro bono and cause and movement lawyering

Providing pro bono direct legal services is not typically viewed as a type of social justice lawyering. Instead, “pro bono publico” or “for the public good” (Rhode Reference Rhode2005: 1) describes the provision of free legal services to individuals who cannot afford representation, particularly those from marginalized groups (Cummings and Sandefur Reference Cummings and Sandefur2013; Kay and Granfield Reference Kay and Granfield2022). Pro bono work can take many forms ranging from direct legal services to involvement in complex litigation. Many nonprofit legal organizations use both approaches. Today pro bono work is primarily provided through “an elaborate organizational structure embedded in and cutting across professional associations, law firms, state-sponsored legal services programs, and nonprofit public interest groups” (Cummings Reference Cummings2004: 6). Although big corporate law firms have played a central role in modern pro bono legal service provision (Cummings Reference Cummings2004), during the time period studied in this article, nonprofit organizations played an important role in facilitating short-term pro bono direct legal services opportunities at the U.S.–Mexico border and in immigration detention through programs like the Immigration Justice Campaign, Project Corazon, Al Otro Lado’s Border Rights Project, the Southeast Immigrant Freedom Initiative, the Karnes Pro Bono Project, the CARA Pro Bono Project, and others.

Pro bono work’s institutional roots are in the legitimation and boundary-making of law as a profession (Granfield Reference Granfield2007; Rhode Reference Rhode2005; Sandefur Reference Sandefur2007). Many scholars argue that pro bono is part of “the profession’s tradition of service before gain” (Kay and Granfield Reference Kay and Granfield2022: 79; Boutcher Reference Boutcher2017; Granfield and Veliz Reference Granfield, Veliz, Granfield and Mather2009), access to justice for all individuals, and part of the promise of the rule of law (Kay and Granfield Reference Kay and Granfield2022; Maguire et al. Reference Maguire, Shearer and Field2014). Existing research suggests that attorneys conduct pro bono work for a range of reasons. Some of these rationales align with ideals about public service, social transformation, or group commonality (Cummings and Sandefur Reference Cummings and Sandefur2013). However, others participate for more self-interested rationales such as cultivating potential client relationships or developing skills that can be translated to other settings (Cummings and Sandefur Reference Cummings and Sandefur2013). Attorneys also may be motivated by their perceived duty of public service or the provision of justice, which are part of their training in the profession (Sandefur Reference Sandefur2007).

Most scholarship on the legal profession separates cause and movement lawyers, who often work with or consider themselves part of social movements, from pro bono service providers (Sarat and Scheingold Reference Sarat and Scheingold2006). Both cause and movement lawyers challenge the assumption within the legal profession that they must bifurcate their personal values from their professional behavior (Boutcher Reference Boutcher2013) and instead “deploy their legal skills to challenge prevailing distributions of political, social, economic and/or legal values and resources” (Sarat and Scheingold Reference Sarat, Scheingold, Sarat and Scheingold2001: 13; Cummings Reference Cummings2004; Sarat and Scheingold Reference Sarat and Scheingold2006). Cause and movement lawyering are distinct. Cause lawyering came under critique because of concerns that lawyers dominated social movements, set the terms of agendas, and pressured social movement activists to pursue legally oriented goals through litigation (Bell Reference Bell1976; Handler et al. Reference Handler, Hollingsworth and Erlanger1978; Kessler Reference Kessler1990; Leachman Reference Leachman2014; Tushnet Reference Tushnet1987). In response, movement lawyering emerged where impacted individuals take the lead in determining strategy in collaboration with attorneys and where litigation is merely one tool among many including “tracking polling data about public attitudes, developing communication strategies to influence media spin, [] strategizing about how to deal with potential movement backlash,” and using their networks to diffuse nonconformist ideas (Cummings Reference Cummings2018: 387; Akbar et al. Reference Akbar, Ashar and Simonson2021; Ashar Reference Ashar2017; Crow Reference Crow2024; Cummings Reference Cummings2017).

When discussing lawyering for social change, direct legal services are largely absent, “fall[ing] below the ‘radar’ of progressive lawyering theories” (Shdaimah Reference Shdaimah2009: 12). Sharpless is one of a few scholars who argues that there is not one path for advancing social justice through law (Sharpless Reference Sharpless2012). As she describes “helping individuals has been equated with the amorphous notion of the status quo or the Establishment … But this portrayal is overly simplistic. Many, if not most, direct service attorneys view themselves as political and working toward fundamental change” (Sharpless Reference Sharpless2012: 397). Sharpless’s work focuses on full-time direct service providers, but her critique can be applied equally to short-term pro bono direct services work. Similarly, Galli examines the conditions under which full-time direct service work advances immigrants’ rights advocacy goals. She finds that the two were most compatible during the “volatil[e] … legal context” of the first Trump administration when direct legal service providers pushed the boundaries of the meaning of “particular social group” when filing asylum cases (Galli Reference Galli2023). In studying MPP, Johanson likewise suggests that direct legal services are equally part of efforts to resist and transform existing law. In describing MPP, Johanson characterizes the individuals providing legal services at the U.S.–Mexico border as “challeng[ing] the MPP by enabling more asylum seekers to reach the United States” (Reference Johanson2021: 900).

Although not focusing on pro bono work specifically, psychologists have described the false division between volunteerism and social change activism. In examining the motivations of volunteers assisting refugees in Hungary in the summer of 2015, Kende et al. (Reference Kende, Anna Lantos, Belinszky, Csaba and Anna Lukács2017) found that volunteerism, like political activism, was driven by a desire to create social change. Rather than a distinction in motivation, Kende et al. (Reference Kende, Anna Lantos, Belinszky, Csaba and Anna Lukács2017) argue that the difference between volunteerism and activism is rather in what is perceived as the best tactic to address a particular issue.

Bearing witness as social movement tactic

Pro bono work has not historically been tied to bearing witness. The phrase “bearing witness” appears in literatures across many disciplines, particularly in scholarship focused on trauma and memory (Murphy Reference Murphy2019) with an emphasis on scholarship on the Holocaust (Givoni Reference Givoni2016). The term, which has religious roots, moves beyond the notion of being an eyewitness and includes an element of ethics and morality, of taking some sort of action to “broaden the sphere of felt responsibility” (Fleay and Briskman Reference Fleay and Briskman2013: 114; Murphy Reference Murphy2019; Moyn Reference Moyn and Stone2012; Peters Reference Peters2001).

Analogizing bearing witness to sending a message in a bottle, Kurasawa describes how secondary witnesses, individuals who witness abuses and atrocities but do not experience them themselves, must reconstruct and share their experiences of atrocity to “initiate struggles against silence, incomprehension, indifference, forgetting and return,” hoping that others receive the messages that are sent out to sea (Kurasawa Reference Kurasawa2009: 96). As this analogy suggests, bearing witness inherently requires two parties: the individual who observes or experiences and the individual who receives the “transmission of moral obligation” (Tait Reference Tait2011: 1227).

Witnessing has been a tactic of past social movements. During the Sanctuary Movement in the 1980s, U.S. citizens journeyed to Nicaragua through short-term missions to observe U.S. intervention in the region (Smith Reference Smith1996). These primarily faith-based activists returned to the U.S. to share what they had observed with their congregations and the broader public (Smith Reference Smith1996). Attorneys in the Sanctuary Movement, however, took on a different role. They assisted individuals from Central America in applying for asylum in the United States as part of efforts to establish that the U.S. was discriminating against asylum seekers from Guatemala and El Salvador (Coutin Reference Coutin1993, Reference Coutin, Sarat and Scheingold2006; Smith Reference Smith1996).

Witnessing was also used as a tool in anti-Iraq war activism. Bonds describes how peace activists traveled to the region to “take the ‘role’ of Iraqi civilians” to obtain increased media attention while in Iraq and accumulate stories of injustice that they could then bring back to the United States (Reference Bonds2009: 2). He explains how through the sharing of these stories, others were meant to not only intellectually understand what Iraqi lives were like, but to feel their experience by putting themselves in Iraqi civilians’ place (Bonds Reference Bonds2009).

Climate of misinformation

The importance of bearing witness has been particularly important in the U.S. in the last several years because of concerns about misinformation and “deep and strident polarization, mistrust of government officials, and a persistent effort to delegitimize sources of factual information and establish a ‘post-truth’ political culture” (Wendel Reference Wendel2021: 89). As technology has reshaped what media looks like, it is no longer the independent institution it once was. Instead, news is produced and disseminated by myriad sources including “technology platforms, software engineers, algorithms, news consumers, and others who do not share the press’s (or necessarily one another’s) values and commitments” (Carroll Reference Carroll2020: 532). This opens the door to the spread of misinformation and disinformation. Yet it is well established that a functioning representative democracy requires that the public be well-informed (Lewandowsky et al. Reference Lewandowsky, Ecker and Cook2017; Wallace and Zepeda-Millán Reference Wallace and Zepeda-Millán2020).

Immigration has long been an area rife with misinformation and stereotypes (Chavez Reference Chavez2008; Haynes et al. Reference Haynes, Merolla and Ramakrishnan2016; Wallace and Zepeda-Millán Reference Wallace and Zepeda-Millán2020). The Latino threat narrative, described by Santa Ana at the turn of the 21st century as depicting Latino immigrants as “dangerous or threatening – as a burden, dirt, a disease, an invasion, or waves flooding the nation,” equally applies to asylum seekers today and can be traced back over centuries to apply to different immigrant groups (Reference Santa Ana2002: xii). Various scholars have shown that the U.S. media perpetuates an association between immigration and illegality, focusing on stories about illegal border crossings and drawing a focus away from legal migration (Parrott et al. Reference Parrott, Hoewe, Fan and Huffman2019).

Existing research suggests that it is generally very difficult to correct misinformation, even when facts are presented by experts (Jerit and Zhao Reference Jerit and Zhao2020; Kuklinski et al. Reference Kuklinski, Quirk, Jerit, Schwieder and Rich2000; Nyhan and Reifler Reference Nyhan and Reifler2015; Nyhan et al. Reference Nyhan, Reifler and Ubel2013; Wallace and Zepeda-Millán Reference Wallace and Zepeda-Millán2020). However, sometimes misperceptions can be modified and attitudes shifted with corrected information (Jerit and Zhao Reference Jerit and Zhao2020; Walter and Murphy Reference Walter and Murphy2018). Scholars continue to study the circumstances under which corrections work and why (Jerit and Zhao Reference Jerit and Zhao2020; Weeks Reference Weeks, Southwell, Thorson and Sheble2018). For example, a study by Margolin, Hannak, and Weber looking at social media found that people may be more likely to accept factual corrections when they have strong social connections with the person correcting them (Reference Margolin, Hannak and Weber2018). Scholarship shows that trustworthiness, rather than expertise, may have more of an impact on people’s reception to correcting misinformation (Guillory and Geraci Reference Guillory and Geraci2013; Jerit and Zhao Reference Jerit and Zhao2020). Correcting misinformation about contentious issues, like immigration, may be particularly difficult because these beliefs may be tied to individuals’ political ideologies (Ecker et al. Reference Ecker, Lewandowsky, Fenton and Martin2014; Jerit and Zhao Reference Jerit and Zhao2020; Trevors et al. Reference Trevors, Muis, Pekrun, Sinatra and Winne2016).

Data and methods

This article draws on a longitudinal series of 93 semi-structured in-depth interviews. Thirty-sixFootnote ³ attorneys and non-lawyer legal volunteers took part in up to three waves of interviews between 2019 and 2023. The interview data are part of a larger project that looked at whether and how legal volunteers considered themselves part of a social movement and how, if at all, their consciousness shifted over time. Much existing literature in this area is based on retrospective cross-sectional interviews at a single point in time. A challenge with this approach is that interviewees may reinterpret past events in light of the present context. Utilizing repeated interviews over time helps mitigate this bias, strengthening the ability to analyze change over time.

Interviewees were identified using niche sampling, a type of purposive sampling that uses relevant settings where informants assemble to identify interviewees (Babbie Reference Babbie2009; Berk Reference Berk2020; Snow et al. Reference Snow, Morrill and Anderson2003), combined with snowball sampling. I reached out to staff at legal organizations serving asylum seekers in select U.S. detention centers and at the U.S.–Mexico border and asked them to circulate information about the project to their volunteers.Footnote ⁴ I also posted in relevant public and private Facebook groups, including a Facebook group specifically for legal actors and another comprised primarily of individuals that previously volunteered assisting with legal service provision with a theme around supporting human dignity and justice at the U.S.–Mexico border. Additional interviewees were identified through snowball sampling, asking participants to connect me with individuals interested in participating in the study. The goal with this purposive sample was to create a pool of interviewees that reflected the variability of the types of individuals that volunteer in these contexts (Luker Reference Luker2008). This included, for example, experts in immigration law and lawyers and non-lawyers with no background in immigration law and policy and, similarly, one-time volunteers and volunteers that repeatedly volunteered in one space or volunteered at both detention centers and at the border.

Interviews took place between October 2019–April 2020, January–March 2021, and July–September 2023. Most interviews were conducted telephonically to reach individuals from across the United States, with a few interviews taking place in person near the U.S.–Mexico border before the COVID-19 pandemic foreclosed fieldwork. All follow-up interviews were conducted telephonically. Initial interviews lasted approximately 1 hour, first follow-up interviews averaged 30 minutes, and final interviews averaged 35 minutes. With permission, all interviews were recorded and were professionally transcribed verbatim. I then reviewed transcripts for accuracy.

I collected and analyzed data concurrently, with ongoing analysis informing follow-up interviews. Drawing from a flexible coding approach, preliminary codes were drawn from existing literature and theoretical approaches about social movements and the legal profession as well as from interview questions (Deterding and Waters Reference Deterding and Waters2021). Codes were modified during the project as additional open coding identified emergent themes (Emerson et al. Reference Emerson, Fretz and Shaw2011; Lofland et al. Reference Lofland, Snow, Anderson and Lofland2005), including the idea of bearing witness addressed here. When open coding, I use abductive analysis, which integrates three processes – revisiting, defamiliarization, and alternative casing – into the grounded theory approach (Charmaz Reference Charmaz and Emerson2001; Timmermans and Tavory Reference Timmermans and Tavory2012).

Twenty-four of the thirty-six interviewees were practicing or retired attorneys including nine individuals who self-identified as current or retired immigration attorneys. Attorneys worked in a range of settings from small firms and partnerships, nonprofits, in-house, as solo practitioners, in big law firms, in government, and in non-law jobs. A few were also retired. The range of settings where these individuals worked make the findings distinct from studies that have primarily focused on pro bono within large law firms (see, e.g., Cummings Reference Cummings2004). The remaining twelve individuals, included as a base for comparison on the impact of professional identity, were non-lawyer volunteers, including language experts and psychologists, among others.

Eighty-six percent of interviewees identified as female. Most interviewees (83%) identified as White/Caucasian, including 19% who identifying as both White and another ethnic identity (e.g., White Latina, White Jewish), 8% identified as Latinx (non-White), 6% as Asian, and 3% as African American. Legal volunteers ranged in age from 28 to 73 with a median age of 51.5. Interviewees were both non-religious and religious, practicing faiths including Christianity, Judaism, and Islam. All regions of the U.S. were represented including 16 interviewees from the West, 8 from the South, 8 from the Midwest, and 6 from the Northeast. Political ideology skewed left, ranging from moderate to extremely liberal. Although lawyers and non-lawyers were initially included in the sample to examine potential differences, the two groups are taken together unless findings differ based on professional identity. Approximately one-third of interviewees volunteered in detention (12), one-third (13) at the border, and one-third volunteered in both spaces (11).

This study did not initially explore the idea of bearing witness. Interviewees brought up bearing witness in describing their motivation for volunteering, as part and parcel of a social movement in which they perceived they were a part, or as something that they felt compelled to do based on an individualized sense of ethics and morality after volunteering. After recognizing bearing witness as a theme in the 2019–2020 interview data, I inductively incorporated questions about the topic into interviews in 2021 and 2023. Interviewees both explicitly used the term “bearing witness” or described their actions in ways that mirrored those who used this phrase. The characteristics of what it meant to bear witness were similar across attorneys and non-attorneys and legal volunteers that described themselves, either explicitly or implicitly, as bearing witness did not differ demographically from the sample overall and volunteered equally in both spaces. However, attorneys with specializations outside of immigration law were overrepresented among individuals who explicitly used this phrase, perhaps because they were less familiar with the treatment of immigrants than, for example, immigration attorneys. Therefore, what they observed may have shocked their conscience, compelling them to share that experience.

Transformation of pro bono work in liminal legal environments

Pro bono direct legal service provision is not often associated with legal resistance because the work focuses on working within existing systems (see West Reference West1990), providing discrete, individual-level services. Here I argue that this pro bono work was reconstituted into movement-aligned collective advocacy through the act of bearing witness, including (1) asserting and publicizing truth in the face of misconceptions and misinformation so the American public understood what was occurring and demanded policy change, (2) recruiting additional volunteers to assist asylum seekers and in turn speak out, and (3) memorializing the human impact of immigration laws and policies to prevent the recurrence of injustice.

The liminal legal environment in which this work took place played a key role in the transformation of pro bono work. Similar to how Galli (Reference Galli2023) found that full-time direct legal service providers aligned their work more strongly with immigrants’ rights advocacy efforts because the volatile legal climate incentivized attorneys to try all approaches to win asylum claims, here I argue that the volatile legal uncertainty of liminal legal environments also had an effect. I argue that it drove both the need to provide assistance to asylum seekers and to share the impacts of that changing legal landscape with others. The low visibility of these spaces further required allies to show the impact of these policies because they are not visible to the public.

Pro bono programs functioned as a means for legal volunteers to “subvert oppressive sociolegal systems even as they work[ed] from within them” (Crooke Reference Crooke2024b). Pro bono work therefore had two different facets: (1) assisting individual asylum seekers and (2) sharing that experience as part of collective advocacy. Referring to a parable adapted from an essay by Loren Eiseley (Reference Eiseley1969), Laura, an insurance defense attorney, spoke about these two goals:

Most volunteers did not venture to the U.S.–Mexico border or immigration detention with a goal of bearing witness. Instead, they sought out opportunities to provide legal assistance to asylum seekers. Yet this work provided the basis for them to bear witness. In one case, it was asylum seekers themselves that drove an interviewee to speak out. As Leticia, an attorney in general practice shared:

In relaying what they were bearing witness to, legal volunteers described sharing what the legal landscape looked like in these contexts; their own experiences as volunteers and what the experience entailed; the specific, often heartbreaking, experiences that brought asylum seekers to the U.S. border; the conditions in detention centers and at the U.S.–Mexico border; and the human impact of U.S. policies. Because of the timing of initial interviews in late 2019 and early 2020, people who volunteered at the U.S.–Mexico border bore witness to the realities under MPP. Interviewees depicted legal violence, activities that are “not directly physically harmful” and are instead symbolic (Menjívar and Abrego Reference Menjívar and Abrego2012: 1383; Abrego and Lakhani Reference Abrego and Lakhani2015), such as asylum seekers being provided with Notices to Appear, the document that indicates when and where immigrants should appear for their first hearing in immigration court, without dates or “dates that didn’t exist on the calendar, like February 30th or it’s a Saturday when the court wasn’t open” (I-010-A-2019-BD). They also described physical violence and other abuses asylum seekers experienced while waiting at the U.S.–Mexico border because of MPP, including extortion, kidnapping, and rape. Above all, legal volunteers described bearing witness to the humanity of asylum seekers and to the truth about what was happening at the U.S.–Mexico border and in detention.

Legal volunteers shared this information with their networks and broader communities. As Joseph, a retired international transaction attorney put it, after a week of volunteering, “volunteers then go home and become missionaries for the cause, become fundraisers, become contributors in the broad movement” (I-018-A-2021-D). They spoke to friends and family (see, e.g., I-006-A-D, I-012-A-B, I-031-A-BD), at universities and colleges (see, e.g., I-010-A-BD, I-011-A-B, I-014-A-D), at conferences (I-014-A-D, I-023-NA-D), professional group meetings (I-004-A-B, I-010-A-BD, I-012-A-B), community and town hall type events (see, e.g., I-010-A-BD, I-011-A-B, I-023-NA-D), and at churches and synagogues (I-006-A-D, I-016-A-B, I-024-A-BD). They shared their experiences in traditional and alternative newspapers (I-010-A-BD, I-012-A-B, I-031-A-BD), in blogs and online publications (I-012-A-B, I-031-A-BD), on the radio (I-011-A-B), through social media (see, e.g., I-010-A-BD, I-016-A-B, I-025-A-BD), and even through art (I-025-A-BD). Some spoke to policymakers and political party leadership (I-005-A-D, I-011-A-B, I-025-A-BD). Balancing their professional responsibility of not revealing or using information a prospective client has shared with their desire to speak out (American Bar Association 2024), attorneys emphasized that they described what they saw or learned during legal intakes in general terms or without any identifiable information (e.g., I-003-A-2019-BD).

Although this article argues that it is the pro bono direct legal services work itself that is transformed or reconfigured into social movement-like collective action, it is important to note that most interviewees (61%) considered themselves part of a social movement at the time of their first interview. Between 2019 and 2021, additional attorneys shifted perspectives, increasingly identifying as part of a social movement. Although perceiving themselves as part of a movement, volunteers did not work in partnership with impacted communities in determining when or how to speak out, suggesting that pro bono attorneys in these environments more closely align with scholarly conceptions of “cause” rather than movement lawyers.

The legal volunteers in this study also resemble allies in other social movements, including the Sanctuary Movement and anti-Iraq war movements. Like those individuals, legal volunteers traveled outside of their home communities to observe policies in action and brought those stories back with the goal of creating change. Legal volunteers also bore a similarity to White allies in the Civil Rights Movement during Freedom Summer. Legal volunteers talked about upholding U.S. ideals about who we are as a nation when describing this work (McAdam Reference McAdam1988). Moreover, although many described themselves as extremely liberal or progressive, when asked what they would change about the current U.S. immigration system, participants were “reformers rather than revolutionaries” (McAdam Reference McAdam1988: 5), talking about comprehensive immigration reform rather than open borders.

A few interviewees openly compared themselves to allies in other social movements. Catherine, an attorney who was new to immigration law after years of practicing in another area and who had volunteered multiple times in detention described, “I think if you were to look back 30 or 40 years from now, you’d be like, oh yeah, this is like the people that went and did the Freedom Rider stuff … And I think that inspired me” (I-014-A-2019-D). Joy, an immigration attorney who had recently left the field also thought about herself in comparison to other actors in history, though her focus was not selectively on the Civil Rights Movement:

Thus, though the focus in this article is on how pro bono legal services are transformed into social movement-like collective action, legal actors themselves also in many cases viewed themselves as part of a social movement. Below I explore how pro bono work is reconfigured into movement-aligned collective advocacy through the act of bearing witness.

Speaking truth and pushing back against misinformation

Advancing truth and pushing back against misinformation was a primary motivator for many legal volunteers to bear witness. In a time when what is true about immigrants and immigration is contested (see, e.g., Wallace and Zepeda-Millán Reference Wallace and Zepeda-Millán2020), they built awareness and countered misconceptions about asylum seekers, immigration laws and policies, and about attorneys volunteering in these spaces. They also filled in for a distrusted media and pushed back against misinformation.

Recruiting others

In sharing the knowledge they gained through legal volunteering, some individuals sought to broaden the networks of individuals involved in this work. This was particularly evident during initial interviews in 2019 and early 2020 before the COVID-19 pandemic. Laura explained how she was using the knowledge she gained to recruit other lawyers: “I wanted to reassure people, kind of normalize this, in case there was anybody else who wanted to volunteer. I wanted them to think of themselves then as maybe somebody who could do this” (I-012-A-2019-B). Jessica shared a similar sentiment. She described herself as “evangelizing about the need to volunteer” at the border, trying to “inform as many people, especially attorneys that I know” about “what to expect [and] what you can do” (I-004-A-2019-B). In addition to normalizing volunteering in person at the border and in detention, some legal volunteers try to engage people to do remote work, even before the COVID-19 pandemic. When Maria, an immigration attorney, first volunteered at the border, she felt there were not enough volunteers helping get asylum seekers the information they needed to prepare for their CFI. After volunteering she helped recruit others:

Some legal volunteers were clear that they were not only recruiting people with legal expertise. Erika, who had volunteered at the U.S.–Mexico border in February 2020 after spending 14 years working for two immigration-related legal services nonprofits shared how she wanted to share what she saw happening and “bring [it] to other people in the world at large” and to recruit others:

Similarly, when I spoke to Jenny in March 2020 just as the extent of the COVID-19 pandemic was becoming a reality in the United States, she both wanted to return to the border herself and to encourage others non-lawyers to volunteer:

Documenting to prevent future abuses

Legal volunteers also discussed the need to bear witness to document and create a history of the impact of immigration policies to prevent future harms. However, their perceived role in that documentation differed. Maria, for example, viewed herself as someone who could be involved in that documentation. During a follow-up interview in 2021, she explained what it meant to bear witness as a form of memorializing to prevent future harms and why firsthand experiences were so important:

Lucia, a civil rights attorney, also described the importance of memorializing during a follow-up interview in 2021. However, unlike Maria, she grappled with whether it was within her purview or not. In part, this is likely because Lucia had taken a position with the government after volunteering. Describing her desire to memorialize family separation at the border she explained:

Interestingly, Lucia’s comment focuses solely on attorneys. Her comments suggest that she believed that there is something unique about the role of the legal profession in ensuring harmful policies, such as child separation, do not reoccur. However, non-attorneys also recognized the importance of memorializing, even if their role was not to document or to present arguments to policymakers. For example, during an interview in 2019, Emily, a communications professional, expressed the importance of human rights observers collecting data about “violence and attacks against asylum seekers who have been forced to remain in Mexico” and how that data would be needed “when we hold people accountable later” (I-019-NA-2019-B). She believed that her in-person volunteering gave her a better understanding of “what the asylum seeker or the refugee is going through” which in turn made her understand the importance of data collection, so that both data and testimony could be used “to change the law or enforce the law as it is” (I-019-NA-2019-B).

Outcomes of bearing witness

Because this study involved longitudinal interviews, I was also able to examine whether legal volunteers felt that they had made a difference through the act of bearing witness. Perceived outcomes were mixed. Some legal volunteers expressed their disappointment that they were not able to make the inroads they expected. Molly, a real estate attorney who went to the border explicitly to bear witness, was disheartened by the reception she received in her home community in a politically conservative state. When I spoke with her in a follow-up interview in 2021, she said, “I really, I try to share it as much as I can but it’s just, it’s, like I got back and I was changed and everyone else was just like, you know, they didn’t experience it” (I-016-A-2021-B). For Molly, the experience was personally transformative but bearing witness was not sufficient to shift others’ perspectives. Research suggests that it is challenging to correct misinformation, particularly about contentious issues, even when facts are presented by experts (Ecker et al. Reference Ecker, Lewandowsky, Fenton and Martin2014; Jerit and Zhao Reference Jerit and Zhao2020; Kuklinski et al. Reference Kuklinski, Quirk, Jerit, Schwieder and Rich2000; Nyhan and Reifler Reference Nyhan and Reifler2015; Nyhan et al. Reference Nyhan, Reifler and Ubel2013; Trevors et al. Reference Trevors, Muis, Pekrun, Sinatra and Winne2016; Wallace and Zepeda-Millán Reference Wallace and Zepeda-Millán2020).

Angela, a retired teacher in a politically progressive state, also grappled with how her experience impacted her versus others. Even when Angela informed those in her community, she remained concerned that they could not fully understand “unless they experience[d] it too” (I-040-NA-2021-B). When we spoke in 2023, she said that she could “count … on one hand” the people who had told her “If you need any help, I would really like to help” (I-040-NA-2023-B). At the same time, she expressed that she had gained a reputation in her small, rural community as the go-to person for questions about asylum and shared that she was beginning training to become a Department of Justice accredited representative to better serve her community. She felt that going through that process would help her “understand [] better what the needs are and what we can do about them” (I-040-NA-2023-B).

Volunteers also expressed challenges recruiting others. Jessica, an immigration attorney who has worked in the field for over 30 years, described how despite her efforts, others did not get engaged. She recognized, though, that outside forces impeded her efforts, including the onset of the COVID-19 pandemic. Referring to recruiting at her local La Raza group, she said, “They didn’t do anything. Um, you know, they were all gonna volunteer and, you know, be in- get interpreters and stuff like that, and I- as far as I know, they didn’t do anything” (I-004-A-2023-B).

But most legal volunteers reflected positively about the outcomes of their efforts. Some felt that their most significant impact was moderating the impressions of people who might not share their same perspectives. Laura, who had presented to a lawyers’ group and spoken with professional colleagues and her family, for example, felt that she was making a small difference in tempering the perception of people who held strong negative beliefs about asylum seekers. Although she did not feel that she had “made anybody do a 180 and become an advocate themselves,” she felt she had “moved them off of those [negative] absolutes” (I-012-A-2023-B).  Joseph, a retired international transaction attorney, shared a similar perspective:

Patricia, a Spanish professor who had spoken out at town hall style events as well as more formal conferences, shared in her first interview that part of her goal of speaking out was “bringing the border to [her] community” (I-023-NA-2019-D). Like Joseph, she shared the impact of her consciousness-raising among people with mixed political ideologies: “I’m cognizant that this is a huge opportunity for me to bring up some things that we can all be on the same page about, right? And so, um, I hope, at least, you know, that the, the outcome is awareness, awareness and maybe some softening of positions” (I-023-NA-2023-D). Patricia also recognized that she created a “snowball effect” through her presentations where people who attended a talk were then interested in having her present to their group, increasing the scope of people informed about the realities of seeking asylum. Though not profound, she felt that people who attended her talks “walk[ed] away with a few, you know, new pieces of information” (I-023-NA-2023-D).

Guadalupe, an attorney who left immigration practice during the study, shared that she felt that she had made an impact through her presentations to attorneys who practiced in other areas. After attending her presentations, they told her that they “were able to better help … their client[s] because of what they’ve learned” (I-010-A-2023-BD). She felt like increasing awareness also helped in other concrete ways including recruiting others to get involved or to give money to organizations serving asylum seekers:

As with others, she mentioned political ideology, emphasizing that it was even people that “politically, you wouldn’t necessarily expect” who gave money or supplies because, in presenting what was happening, she framed the problem as “a human issue and not a political issue” (I-010-A-2023-BD). These interviewees, therefore, may have been more successful by trying to reframe asylum seeking in non-contentious ways.

Reflecting research that suggests that expertise may not be key to shifting misinformation (see Guillory and Geraci Reference Guillory and Geraci2013; Jerit and Zhao Reference Jerit and Zhao2020), Cindy, a healthcare law attorney, felt that she made an impact because she wasn’t an expert in immigration law, sharing:

Although Cindy felt like her outsider status as a non-immigration attorney worked to her benefit, she also felt that being an attorney was important in having others listen to her experiences:

Cindy was the only interviewee who spoke positively about the outcome of her efforts who had attempted to raise awareness among state and national level legislators and party leadership. Instead, interviewees primarily focused on change at the microlevel, shifting professional colleagues’ and community members’ perspectives.

Volunteers also shared their impact in memorializing what they witnessed. Maria, for example, felt that she “help[ed] to make part of … the historical record” memorializing “what happened during the [first] Trump administration” and “provid[ing] a frame of reference for what should not be” (I-009-A-2023-BD). Despite not seeing a “complete shift in all harsh border policies,” Maria felt that there had been positive changes under the Biden administration because of that historical record, such as “opening up other avenues for asylum seekers or migrants to be able to come to the United States” (I-009-A-2023-BD).