Governing Immigration Through Crime

A Reader

Julie A. Dowling, Jonathan Xavier Inda, Julie A. Dowling, Jonathan Xavier Inda

• Publisher: Stanford Social Sciences
• Year: 2013
• ISBN:
  9780804785419
• Edition: 1
• Topic: Social Sciences
• Subtopic: Emigration & Immigration
• Index: Social Sciences

In the United States, immigration is generally seen as a law and order issue. Amidst increasing anti-immigrant sentiment, unauthorized migrants have been cast as lawbreakers. Governing Immigration Through Crime offers a comprehensive and accessible introduction to the use of crime and punishment to manage undocumented immigrants.

Presenting key readings and cutting-edge scholarship, this volume examines a range of contemporary criminalizing practices: restrictive immigration laws, enhanced border policing, workplace audits, detention and deportation, and increased policing of immigration at the state and local level. Of equal importance, the readings highlight how migrants have managed to actively resist these punitive practices. In bringing together critical theorists of immigration to understand how the current political landscape propagates the view of the "illegal alien" as a threat to social order, this text encourages students and general readers alike to think seriously about the place of undocumented immigrants in American society.

I

LAW AND CRIMINALIZATION

The chapters in Part I of this book focus on the crucial role of federal law in the governing of immigration through crime. Law is crucial in the sense that it provides the general foundation for immigration-related enforcement. There are at least two important dimensions to the law’s involvement in the criminalization of immigrants. First, U.S. immigration laws enacted since 1965 have generally served to restrict the legal flow of immigrants, especially from Latin America. This has resulted in the illegalization of various migrant streams—that of Mexicans, for instance—and the formation of a large population of undocumented persons. Second, as the unauthorized population in the United States has grown, federal authorities have developed a series of largely punitive laws designed to control the immigrant “threat.” This effort began with the Immigration Reform and Control Act of 1986, which significantly increased resources for border enforcement and made it illegal for employers to hire undocumented workers. Since then, major immigration reforms during the mid-1990s and contemporary post-9/11 “war on terror” initiatives have criminalized an increasing range of immigration-related conduct, including filing an immigration application without a reasonable basis, falsely claiming citizenship in order to obtain a benefit or employment, voting in a federal election as a noncitizen, and entry without inspection. Not only has the law produced “illegal” immigrants, it has also progressively criminalized their existence.

The chapters in this section explore these two dimensions of the law’s criminalization of immigrants. Chapter 1, by Nicholas De Genova, focuses on the legal production of Mexican migrant illegality. Specifically, he looks at how practically all major changes in U.S. immigration law since 1965 have served to place ever greater restrictions on the legal movement of people from Mexico into the United States. Given that Mexicans continue to migrate, a chief consequence of such restrictions has been the creation of a legally vulnerable population of undocumented workers. The vulnerability of these migrants, De Genova suggests, is connected to their “palpable sense of deportability”—to the ever-present possibility that they may be removed from the territory of the U.S. nation-state. What deportability in effect does is produce a population of migrants who, due to the fear of being deported, is highly susceptible to workplace exploitation and hence to being treated as disposable labor. Ultimately, De Genova argues that Mexican illegality cannot be treated as a natural fact of social life, but has to be seen as a willful legal production designed to render immigrant workers vulnerable and disposable.

Chapter 2, by Juliet P. Stumpf, shifts the focus to the nature of the laws designed to manage the “threat” of immigrants. In particular, Stumpf looks at how the growing merger of immigration and criminal law has created a highly punitive stance toward immigrants. This merger, which Stumpf refers to as “crimmigration law,” has taken place on three fronts. First, the substance of immigration law and criminal law increasingly intersect. For example, since the 1980s, there has been a marked proliferation in the scope of criminal grounds for excluding and deporting noncitizens. Second, immigration enforcement has come to significantly resemble criminal law enforcement. The idea here is that the activities of immigration enforcement agencies nowadays resemble fundamentally those of any other police force. Third, the procedural features of prosecuting immigration infractions have assumed many of the characteristics of criminal procedures. For instance, the practice of detention, a sanction increasingly used in immigration matters, has a clear parallel in the criminal penalty of incarceration. Stumpf’s conclusion is that the crimmigration merger has helped to create a society in which noncitizens, often identifiable by race and class, are physically, politically, and socially cast out of the mainstream community.

Chapter 3, by Jennifer M. Chacón, focuses on the reconfiguration of immigration law in the post-9/11 context. Specifically, she examines how “national security” has come to provide the primary justification for immigration lawmaking and enforcement. Essentially, subsequent to the 9/11 attacks, terrorism has generally come to be regarded as the greatest threat facing the nation. On the basis of the fact that the 9/11 hijackers were foreigners who somehow managed to get into the United States, the movement of people in and out of the country has been seen as indissociable from this threat. It is thus commonly expressed in both policy and public rhetoric that there is an ever-present possibility that foreigners might seek to enter the United States in order to commit acts of terrorism. Moreover, this discourse strongly articulates the need to safeguard the homeland against the threat of terrorism. Notably, the attitude of protecting the homeland has significantly influenced the governing of immigration: although migrants rarely have any connection to terrorism, they have generally come to be seen as threats to the security of the nation. National security thus involves not only preventing terrorist attacks, but also mitigating the dangers posed by “illegal” and other immigrants. In the contemporary context, then, the powerful rhetoric of security has come to overlay the merger of criminal and immigration law.

SUGGESTIONS FOR FURTHER READING

Chacón, Jennifer M. 2009. “Managing Migration Through Crime.” Columbia Law Review Sidebar 109: 135–148.

Coleman, Mathew. 2008. “Between Public Policy and Foreign Policy: U.S. Immigration Law Reform and the Undocumented Migrant.” Urban Geography 29 (1): 4–28.

Eagly, Ingrid V. 2010. “Prosecuting Immigration.” Northwestern University Law Review 104 (4): 1281–1359.

Hines, Barbara. 2006. “An Overview of U.S. Immigration Law and Policy Since 9/11.” Texas Hispanic Journal of Law and Policy 12 (1): 9–28.

Hing, Bill Ong. 2004. Defining American Through Immigration Policy. Philadelphia: Temple University Press.

Johnson, Kevin R. 2009. “The Intersection of Race and Class in U.S. Immigration Law and Enforcement.” Law and Contemporary Problems 72: 1–35.

Kanstroom, Daniel. 2004. “Criminalizing the Undocumented: Ironic Boundaries of Post-September 11th ‘Pale of Law.’” North Carolina Journal of International Law and Commercial Regulation 29: 639–670.

Legomsky, Stephen H. 2007. “The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms.” Washington and Lee Law Review 64: 469–528.

Miller, Teresa A. 2003. “Citizenship and Severity: Recent Immigration Reforms and the New Penology.” Georgetown Immigration Law Journal 17: 611–666.

. 2005. “Blurring the Boundaries Between Immigration and Crime Control After September 11th.” Boston College Third World Law Journal 25: 81–123.

Stumpf, Juliet. 2009. “Fitting Punishment.” Washington and Lee Law Review 66: 1683–1741.

Welch, Michael. 2003. “Ironies of Social Control and the Criminalization of Immigrants.” Crime, Law and Social Change 39: 319–337.

1

THE LEGAL PRODUCTION OF MEXICAN/MIGRANT “ILLEGALITY”*

Nicholas De Genova**

Mexican migration to the United States is distinguished by a seeming paradox that is seldom examined: while no other country has supplied nearly as many migrants to the US as has Mexico since 1965, virtually all major changes in US immigration law during this period have created ever more severe restrictions on the conditions of “legal” migration from Mexico. Indeed, this seeming paradox presents itself in a double sense: on the one hand, apparently liberalizing immigration laws have in fact concealed significantly restrictive features, especially for Mexicans; on the other hand, ostensibly restrictive immigration laws purportedly intended to deter migration have nonetheless been instrumental in sustaining Mexican migration, but only by significantly restructuring its legal status as undocumented. Beginning in the 1960s, precisely when Mexican migration escalated dramatically—and ever since—persistent revisions in the law have effectively foreclosed the viable possibilities for the great majority who would migrate from Mexico to do so in accord with the law, and thus have played an instrumental role in the production of a legally vulnerable undocumented workforce of “illegal aliens.”

This study elaborates on the historical specificity of contemporary Mexican migration to the US as it has come to be located in the legal (political) economy of the US nation-state, and thereby constituted as an object of the law, especially since 1965. More precisely, this chapter interrogates the history of changes in US immigration law through the specific lens of how these revisions have had a distinct impact upon Mexicans in particular. Only in light of this sociolegal history does it become possible to sustain a critical perspective that is not complicit in the naturalization of Mexican migrants’ “illegality” as a mere fact of life, the presumably transparent consequence of unauthorized border crossing or some other violation of immigration law.¹ Indeed, in order to sustain an emphatic concern to de-naturalize the reification of this distinction, I deploy quotes throughout this chapter, wherever the terms “legal” or “illegal” modify migration or migrants.

In addition to simply designating a juridical status in relation to the US nation-state and its laws of immigration, naturalization, and citizenship, migrant “illegality” signals a specifically spatialized sociopolitical condition. “Illegality” is lived through a palpable sense of deportability—the possibility of deportation, which is to say, the possibility of being removed from the space of the US nation-state. The legal production of “illegality” provides an apparatus for sustaining Mexican migrants’ vulnerability and tractability—as workers—whose labor-power, inasmuch as it is deportable, becomes an eminently disposable commodity. Deportability is decisive in the legal production of Mexican/migrant “illegality” and the militarized policing of the US-Mexico border, however, only insofar as some are deported in order that most may ultimately remain (undeported)—as workers, whose particular migrant status has been rendered “illegal.” Thus, in the everyday life of Mexican migrants in innumerable places throughout the US, “illegality” reproduces the practical repercussions of the physical border between the US and Mexico across which undocumented migration is constituted. In this important sense, migrant “illegality” is a spatialized social condition that is inseparable from the particular ways that Mexican migrants are likewise racialized as “illegal aliens”—invasive violators of the law, incorrigible “foreigners,” subverting the integrity of “the nation” and its sovereignty from within the space of the US nation-state. Thus, as a simultaneously spatialized and racialized social condition, migrant “illegality” is also a central feature of the ways that “Mexican”-ness is thereby reconfigured in racialized relation to the hegemonic “national” identity of “American”-ness (De Genova, 2005). Although it is beyond the scope of this chapter, it is nevertheless crucial to locate these conjunctures of race, space, and “illegality” in terms of an earlier history of the intersections of race and citizenship. That history is chiefly distinguished, on the one hand, by the broader historical formulation of white supremacy in relation to “immigration” and, on the other, by the more specific legacy of warfare and conquest in what would come to be called “the American Southwest,” culminating in the Treaty of Guadalupe Hidalgo of 1848, which occasioned the first historical deliberations in the US over questions concerning the citizenship and nationality of Mexicans.

THE “REVOLVING DOOR” AND THE MAKING OF A TRANSNATIONAL HISTORY

Originating in the shared, albeit unequal, history of invasion and war by which roughly half of Mexico’s territory came to be conquered and colonized by the US nation-state, the newly established border long went virtually unregulated and movement across it went largely unhindered. During the latter decades of the 19th century, as a regional political economy took shape in what was now the US Southwest, mining, railroads, ranching, and agriculture relied extensively upon the active recruitment of Mexican labor (Acuña, 1981). There was widespread acknowledgment that Mexicans were encouraged to move freely across the border and, in effect, come to work without any official authorization or documents (Samora, 1971; García, 1980).

After decades of enthusiastically recruiting Chinese migrant labor, among the very first actual US immigration laws was the Chinese Exclusion Act of 1882. So began an era of immigration regulation that sought to exclude whole groups even from entry into the country, solely on the basis of race or nationality. Eventually, with the passage of the Immigration Act of 1917, an “All-Asia Barred Zone” was instituted, prohibiting migration from all of Asia (Hing, 1993). In the wake of repeated restrictions against “Asiatics,” Mexican migrant labor became an indispensable necessity for capital accumulation in the region. During and after the years of the Mexican Rev...