Legal Passing

Navigating Undocumented Life and Local Immigration Law

Angela S. García

• Publisher: University of California Press
• Year: 2019
• ISBN:
  9780520969117
• Edition: 1
• Topic: Sciences sociales
• Subtopic: Émigration et immigration

Legal Passing offers a nuanced look at how the lives of undocumented Mexicans in the US are constantly shaped by federal, state, and local immigration laws. Angela S. García compares restrictive and accommodating immigration measures in various cities and states to show that place-based inclusion and exclusion unfold in seemingly contradictory ways. Instead of fleeing restrictive localities, undocumented Mexicans react by presenting themselves as "legal, " masking the stigma of illegality to avoid local police and federal immigration enforcement. Restrictive laws coerce assimilation, because as legal passing becomes habitual and embodied, immigrants distance themselves from their ethnic and cultural identities. In accommodating destinations, undocumented Mexicans experience a localized sense of stability and membership that is simultaneously undercut by the threat of federal immigration enforcement and complex street-level tensions with local police. Combining social theory on immigration and race as well as place and law, Legal Passing uncovers the everyday failures and long-term human consequences of contemporary immigration laws in the US.

CHAPTER 1

The Place of Law

Subnational Immigration Laws in an Age of Mass Deportation

Josefina, her due date fast approaching, flared with frustration as she recounted a recent struggle to get to a prenatal checkup. Her index finger pressed into the floral tablecloth on the kitchen table, tracing a hard pattern in the fabric as she spoke. “Immigration laws are everywhere in this city,” she explained. It was mid-September 2013 and Josefina’s second-floor apartment was hot, the air barely moving despite an old box fan that hummed and rattled, propped up in the living room window. The problem was that her partner, Arturo, had planned to leave work early the day of her appointment to drive Josefina to the clinic, but he had received a text from a friend: the Escondido Police Department was setting up a daytime checkpoint near their apartment complex in San Diego County, California. Speaking for a moment on the phone, the couple decided that missing Josefina’s checkup was better than risking an interaction with the police, who had developed a deep collaboration with federal immigration enforcement. “This city comes after those of us without papers, without a license,” Josefina said.

Laws shape everyday life in countless ways by permitting, prohibiting, protecting, and prosecuting US-born citizens and immigrants alike (Calavita 2005; Campbell 2005; Dreby 2015; Ewick and Silbey 1998; Nielsen 2000; Sarat and Kearns 1995; White 1990). But, as Josefina’s struggle illustrates, the role of state and local immigration law is especially forceful. This force is strange, because observers have long assumed that federal migration policy sets uniform conditions for immigrants across the country. Since the late nineteenth century, the federal government has consolidated its authority over immigration (Hirota 2017; Motomura 2014; Zolberg 2006). The bureaucratic, technological, and legal apparatus that developed to enforce this control has also become mighty. From legal ports of entry and land and maritime borders to street corners across the United States, the federal government has the ultimate say in who can enter the country, the terms under which they remain, and how those escaping this authority—by entering without authorization or overstaying visas—are detected and deported. Nonetheless, some of the fiercest battles over immigration in the United States are playing out at the state and local level—in places like Escondido, California, and in the lives of immigrants like Josefina and Arturo.

States and localities are rushing to legislate on immigration during a time of remarkably restrictive national-level immigration policy. Beginning in earnest in the 1990s with the Clinton administration, the US government has steadily militarized the southern border, increased interior immigration enforcement, limited access to social benefits according to legal status, and orchestrated skyrocketing levels of formal deportations (see Goodman forthcoming). By the time Donald Trump was elected president in 2016, following a campaign steeped in virulent anti-immigrant and nativist rhetoric, the groundwork to crack down on undocumented immigrants had already been laid, with systems in place that hinged on collaboration between the federal government, states, and localities (see chapter 4). Within this hostile national context, subnational immigration measures work to amplify or buffer the federal approach, deeply penetrating the lives of undocumented immigrants and the families and communities that surround them.

Addressing issues from education and housing to employment and policing, the focus of state and local immigration laws varies widely, as does their objective to restrict or accommodate immigrants. These measures can be symbolic, serving to broadcast a political agenda or orientation, or substantive, involving resource allocation or institutional change (Pritchard and Berkowitz 1993; Tushnet and Yackle 1997). The resulting jumble of immigration laws, policies, and practices has formed a “multi-jurisdictional patchwork” of sociolegal contexts across the country (Varsanyi et al. 2012). As a result, immigrants’ experiences within the United States, unfolding in receiving locales, depend to a great extent on where, exactly, they live (see Marrow 2011; Mollenkopf and Pastor 2016; Provine et al. 2016).

From this perspective, state and local immigration measures also fundamentally shape how immigrants—particularly those who are undocumented—integrate into the contemporary United States. What happens in the lives of immigrants who are targeted by these subnational laws? Do measures that provide protection and access to services promote trust for undocumented communities and a sense of belonging? Do more restrictive laws produce fear, causing the undocumented to avoid authorities and disengage from the broader society? There is general consensus that integration remains the dominant empirical pattern among immigrant groups in the United States (Waters and Gerstein Pineau 2015), but surprisingly little work directly studies the effects of state and local immigration measures on undocumented immigrants on the ground.¹ Comparative approaches that contrast the outcomes of restrictions and accommodations are especially scarce, yet they are critical to developing an understanding of the full range of consequences emerging from subnational immigration law.

This book compares the effects of diverse laws and policies that are rooted in immigrants’ immediate destinations from the perspective of undocumented Mexicans, those who are most consistently targeted by such contemporary measures and who bear the brunt of increasingly denigrating perceptions of migrant “illegality” (Chávez 2013; De Genova 2005; García Hernández 2014; Martos 2010).² Immigration status is a fully social and legal construction, not a trait intrinsic to individuals (Ngai 2004). Categories of documented, undocumented, and quasi-documented immigrants emerge from laws that restrict the movement of some people while permitting others to cross national boundaries (Calavita 1998; De Genova 2002, 2004). The immigration status that results matters in many critical ways, not the least of which is its influence on immigrants’ access to rights and benefits within their receiving locales (Massey and Bartley 2005). Exclusion from such social goods is a penalty that contributes to systematic disadvantage and negative long-term consequences for undocumented immigrants and their families (De Genova 2002; Dreby 2015; Gonzáles 2011, 2015; Jones-Correa and de Graauw 2013; Waters and Gerstein Pineau 2015). “Illegality” so strongly shapes the life chances and future prospects of undocumented immigrants that it functions as a “new axis of stratification,” reinforcing existing forms of social inequality (Menjívar 2006b; Menjívar and Abrego 2012). The ramifications of unauthorized immigration status are also evident in immigrants’ identities and sense of self, as illegality becomes a primary defining characteristic—a “master status”—that can determine social position (Gonzáles 2015).

Drawing from these insights as I began to research this book, I hypothesized that accommodating state and local immigration laws would work to facilitate undocumented immigrants’ integration, while restrictive measures would obstruct it. This straightforward premise embraces what sociologist Robert Merton called the “manifest functions” of purposive action, assuming that the laws in question work as intended to control behavior (1936, 1968). As I got deeper into collecting and analyzing the data for this study, however, it became evident that the effects of subnational immigration measures were not nearly so clear-cut. Rather than illustrating the consequences that played out in my original conceptual blueprint—a linear process where the presence of restrictions or accommodations led to specific effects, like social inclusion and exclusion—the reality on the ground that I sorted through was complex and messy. It revealed, in Merton’s terms, the “unrecognized and unanticipated consequences” of state and local immigration measures on undocumented communities (1936, 1968).

Contrary to some of the received wisdom, in this book I argue that subnational immigration measures—both restrictive and accommodating—result in both expected outcomes and some that are unexpected and counterintuitive. The expected outcome of restrictive state and local laws is to exclude undocumented immigrants from their immediate destinations by cutting off access to social rights and supports, making their lives incrementally more difficult. In several ways, this study does demonstrate such an effect. Anti-immigrant measures inject threat deep into the everyday lives of undocumented Mexicans and their families, increasing the uncertainty and anxiety already associated with holding undocumented status in the United States. I show the consequences of this menace in the shifts in these immigrants’ physical navigation of restrictive destinations, their studied avoidance of local police, and the lessons they teach their children about mitigating risk.

At the same time, this book also argues against popular depictions of undocumented immigrants being pushed underground, their perception of threat so strong that they avoid engaging in public life or moving about restrictive locales altogether. In these accounts, immigrants seem to be “living in the shadows,” passively stowed away in their homes with the curtains shut tight and the front door battened down (see, e.g., Yee 2017). In an even more extreme form, the threat of deportation can seem to prompt a complete loss of freedom of movement, a “radical immobilization” like that experienced by undocumented immigrants who seek sanctuary in houses of worship to avoid removal (De Genova and Peutz 2010:36). But broad-brush portrayals of undocumented Mexicans as hunted people in hiding are not near to being a full representation of everyday undocumented life, even in restrictive destinations. Such a rendering better reflects initial reactions immediately after new clampdowns—sweeps, raids, and checkpoints; the enactment of hostile federal, state, or local immigration legislation; or the election of candidates running on anti-immigrant platforms. If undocumented residents are pushed to the shadows, it is not for long. After the shock wears off and rumors racing across immigrant communities quiet down, people necessarily return to their routines.

The unexpected outcomes of subnational restrictions are intimately related to the innovative ways in which immigrants respond and adapt to increased threat within their destinations. When receiving locales form restrictive immigration measures, they do not erase undocumented residents from the community. Indeed, I demonstrate in chapter 3 that undocumented Mexicans remain settled even as states and cities enact anti-immigrant legislation. Instead of pushing these immigrants out, such laws create conditions for an increase in efforts to subvert the public gaze (see Brayne 2014; Stuart 2016). Undocumented Mexicans subject to legal restrictions within their destinations adopt novel behaviors, consume and display particular material things, and cultivate alternative outlooks as they attempt to mask “illegality”—their Mexican traits and often rural origins—and pass as nonthreatening, nonsuspicious US-born Americans. Reflecting great agency, such efforts make up what I call legal passing in this book. Sustained over time and under pressure, legal passing results in transformative alterations to the self that unexpectedly deepen aspects of sociocultural assimilation. Legal passing is a way to navigate restrictive destinations, but as it subordinates immigrants to make them more like the US-born, it reveals and advances the coercive power of restrictive subnational immigration law.

These conclusions contribute place-based findings to a body of work that shows how subnational law—and its enforcement—can push immigrants to absorb and respond to its force in ways that reaffirm normative, hegemonic conceptualizations of American life. For example, Cecilia Menjívar and Sarah Lakhani conclude that immigrants who are undergoing the process of legalization or naturalization fundamentally change their approaches to intimate family relations, civic engagement, and even their mind-sets in order to fit the US model of a legally “deserving immigrant” (2016). Their study shows the state’s remarkably broad influence on individuals, which extends beyond formal or bureaucratic control. Leisy Abrego’s work on the effects of a state-level bill intended to increase access to higher education for undocumented immigrant youth points in a similar direction (2008). Her analysis demonstrates that this accommodating law, situated in a harsh national immigration framework, provided undocumented students with a socially acceptable identity that, at the same time, reified the deeply rooted principle of meritocracy in the United States.

Studies focused on US-born racial and ethnic minorities offer interesting parallel findings. Elijah Anderson shows that young African American men in cities seek to avoid police suspicion by distancing themselves from stereotypical “urban” and “gangster” behavior and appearances (1990). This approach, while protective, also likely buttresses the perception that particular “conservative dress” equates to criminal innocence (1990:197). Similarly, Forrest Stuart and Ava Benezra study how African American youth, reacting to intense street-level criminalization, shun outward displays of toughness, which may draw police attention. Instead, they perform emotional sensitivity and present heterosexual relationships to communicate their innocence to law enforcement on the street (2017). Such a response is also primarily protective, but it also works to reinforce dominant expressions of gender and heteronormative sexuality. This scholarship highlights how law and law enforcement powerfully contribute to the reproduction of power and inequality within existing socioracial structures.

Accommodating state and local measures also have consequences that are both expected and unexpected. Regarding expected outcomes, these kinds of laws seek to include undocumented residents within the social fabric of destinations by providing access to rights and supports, making their lives more secure and stable. Undoubtedly, this study offers evidence of such an effect. Substantive legal accommodations provide stability in undocumented residents’ everyday routines and a sense of community belonging—one that does not hinge on legal passing or an uncoupling from communities of origin and ethnic traits. These consequences are especially critical when juxtaposed with the federal immigration framework, which has become more intensely focused on interior and border enforcement. As compared to restrictive destinations, the integrative outcomes of accommodating locales that I describe in this book are evident in undocumented Mexicans’ ease of physical navigation, deeper willingness to interact with local police, and place-based sense of belonging.

The unexpected aspects of accommodating laws are fundamentally shaped by the federal government’s control over the mechanisms of deportation. Even the most vigorous and thorough subnational accommodations cannot fully alleviate the threat of depor...