Representations of Racism, Policing, or Immigration in Film PEER EDITING DRAFT

I

UNDOCUMENTED How lmmigration Became lllegal

AVIVA CHOMSKY

BEACON PRESS

BOSTON

citizenship?" or "Why dont they just come here legally?" they are betraying a fundamental ignorance ofour immigration and

citizenship laws. People dont apply for citizenship or dont ob- tain proper documents to come here, because the 1aw forbids it. That's right the law forbids them to come to the United States or to apply for citizenship. US immigration law is based

on a system of quotas and preferences. If you dont happen to be one of the lucky few who falls into a quota or preference

category there is basically no way to obtain legal permission to immigrate. If you are already in the United States without proper documentation, you will never, ever be allowed to apply for citizenship.

Given the choice, nobody would risk his or her life wa1k-

ing through the des€rt to enter the country illegally, and no- body would risk the constant fear, discrimination, and threat of deportation that comes from being undocumented. Of course,

everybody who comes to the United States would rather enter

the country legally, and everybody who is undocumented would rather be documented. If only the law allowed them to do it!

The purpose ofthis book is to denaturalize illegality. I want to show it as the social construction that it is. I want to show

when, why, and how it came to be, and how it came to be so-

cially accepted as a fact. I want to show how it works and what purpose it serves. Or maybe whose purposes it serves. My goal

is to unveil the complex, inconsistent, and sometimes perverse

nature of US immigration law that makes some people illegal.

lntroduction

When people say, "What part of i1lega1'dorit you undcrstand?"

they imply that they, in fact, understand everlthing about it. They take illegality to be self-evident: there's a law, you break the law, thatt illegal. Obvious, right?

Actually, illegality is a lot more complicated than that. Laws are made and enforced by humans, in historical contexts, and for reasons. They c}range over time, and they are often created

and modified to serve the interests of some groups-generally the powerful and privileged-over others.

Most ofthe citizens who brag that their ancestors came here "the right way'are making assumptions based on ignorance. They assume that their ancestors "went through the process"

and obtained visas, as people are required to do today. In fact, most ofthem came before any legal process existed-before the concept of "illegality" existed.

THE INVEilTION ()f II-tEGATITY

Illegality as we know it today came into existence after 1965.In the decades before r965, the media rarely depicted immigration in negative terms. Nor did the public or Congress consider it a problem in need oflegislation. By the r97os, though, the de- monization of immigrants-in particular, Mexican and other

2 INTRODUCTION

Latino immigrants*and the issue of "illegal immigratiorl'were turning into hot-button issues.l

There are some particular historical reasons for these changes.

Some are economic.The global and the domestic economies un-

derwent some fundamental structural changes in the late twen-

tieth century, changes we sometimes refer to as "globalization,"

Some analysts argued that globalization was making the

wo d "flat," and that r rith the spread ofconnection, technology,

and communication, old inequalities would melt away.2 Oth- ers believed that new inequalities were becoming entrenched- that a 'global apartheid" being imposed, separating the Global North from the Global South, the rich from the poor, the win- ners in the new global economy from the losers.3 I'11 go more

into depth about these changes and show how they contributed

to a" need for l11egah1y to sustain the new world order.

The second set of changes is ideological and cu1tural. Like

the big economic shifts, ideological and cultural changes are a

process; they cant necessarily be pinpointed to a particular date

or year. I use 1965 as a convenience, because that's when some

major changes were enacted in US immigration law that con-

tributed to creating il1ega1ity. But those changes responded to,

and contributed to, the more long-term economic and ideologi- cal shifts that were occurring.

In the cultural realm, overt racism was going out offashion.

Civil rights movements at home and anti-colonial movernents

abroad undercut the legitimacy ofracial exclusion and discrimi-

nation.While apartheid continued in South Africa through the

r98os, even that lost its international legitimacy. In the United States, theJim Crow regime was dismantled and new laws and

programs were aimed at creating racial equality, at least on pa-

per. By the new century people were beginning to talk about

the United States as a "postracial" society. At the same time,

though, new laws hardened immigration regimes and discrimi-

nation against immigrants in the United States and elsewhere.

NTRODUCT ON 3

IRUE RETUEEES ()F THE BllRDER WARS

Before deeply delving into the dizzying and sometimes irra- tional nature of immigration 1aw, itt helpfirl to consider what's actually happening on the ground. I had the opportunity to see firsthand the human tragedy that's resulted from the new immigration regime in March zoro, when I participated in a

weeklong humanitarian delegation with the organization No More Deaths, one of several that take direct action on the US- Mexico border.

Volunteers from these organizations attempt to provide hu- manitarian aid to migrants by leaving water at stations algng migrant trails and offering basic first-aid at camps in the desert, among other things. My group, though, was taking testimonies on the Mexican side ofthe border from migrants who had been

caught and deported.

During that week, I met several hundred deportees. They were arrested for a crime no US citizen can commit: entering the United States without oficial permission. Only people who are not US citizens need ofrciaTpermission to enter US territory.

Nogales, Sonora, on the US-Mexico border, has the feel of a. wat z,one, Every few hours, a bus from the Wackenhut pri- vate security seryice arrives on the US side ofthe border frlled with would-be migrants, mostly from Mexico's poor south- ern regions. Most of them were captured by the Border Patrol somewhere in the Arizona desert. "Tlrey used to try to capture us near the border," one migrant told me wearily. "Now, they patrol two or three days'walk north of the border. They want to find us when we're dehydrated, exhausted, blistered, so we cant run away.'

First, the drivers unload their belongings from underneath the bus-a few backpacks, but mostly clear plastic Homeland Security bags supplied by the Border Patrol. After about halfan hour, the migrants descend fiom the bus in sma1l groups. Under armed guard, the lucky ones retrieve their packages and shuffie

,

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4 INTRODUCTION

back across the border to be processed by Mexican authorities.

Many have lost everything on their trek through the desert,

when they were attacked by robbers, became separated from their group, got 1ost, or fled from the Border Patrol.

Processing takes about fifteen minutes.The migrants receive

a slip ofpaper attesting to the fact that they are deportees. The

paper confirms their eligibility for the fragmentary social ser-

vices that the Mexican government and several Catholic church

organizations offer to migrants in Nogales: one phone call, a

half-fare bus ride home, three nights in a shelter, and, most gen-

erously, fifteen days of free meals twice a day at the coruedor, or soup kitchen, run by the Proyecto Kino, supported by both the

Mexican and several US archdioceses of the Catholic church.

After processing, the migrants emerge on the Mexican side

of the border. Taxi drivers and food vendors accost them as they

stumble out, dazed and bewildered. "Everybody wants to pre-

tend to be a migrant, to get services," one provider told me.

"You have to look at their shoes.Ifthey have shoelaces, they're

not migrants. Homeland Security takes their shoelaces so they

wont . . ." He gestured slitting his throat and laughed conspira-

torially. So the migrants stumble because their feet are raw and

torn from walking through the desert, and because they have no

shoelaces in their tattered shoes.

If they're lucky, one of the first people they'll encounter is

Sal, with the Tiansportes Fronterizos (Border Transport) com-

pany, contracted by the Mexican government to provide trans-

portation services for deportees. Sal is a deportee himself.In his

twenties, he speals English wlth a perGct Chicano lilt. Thatt not surprising: he came to the United States with his parents

when he was three and grew up and graduated from high school

in Arizona. "How did you get deported?" I asked him, quickly realizing that we should communicate in his preferred English,

rather than Spanish. "You dont want to know," he grimaced.

"Jalwalking." Was it racial profiling? The police stopped him

INTRODUCTION 5

for crossing a street where there was no crosswalk, asked him for his documents, and arrested him.In Arizona,local police are

empowered to enforce immigration 1aws.

Sal can tell migrants where to find free food and shelter, and how to access the transportation services offered by Grupo Beta, the Mexican government agency charged with removing migrants from the border to prevent them from attempting to recross. He keeps his booth open from ro a.m. until 6 p.m., when the last bus leaves for the shelter. Migrants who get de- ported after that have to sleep on the streets.

Most migrants leave their homes in Mexico with identifi- cation papers, money, and family members or other traveling companions. Most are deported alone and can spend days or weeks trying to determine the whereabouts ofhusbands, wives, children, or cousins. Many have also lost their documents and their cash. The buses arrive every few hours, al1 day and night. The migrants who are dumped and wander the streets of No- gales are the true refugees of the border wars.

At the door ofthe Proyecto Kino soup kitchen, the long line for breakfast starts forming around 8:3o a.m. Some migrants arrive by bus from the shelters, others by foot after spending the night on the street or in the cemetery. The hundred or so men line up on the right, and the ten to twenty women and children, who get served first, on the left. To get ln when the coru.edor

opens at 9 a.m. for the first breakfast shift, all ofthem have to show their deportation document. The paper that proves that they were hunted, captured, and deported for not having the proper documents to enter the United States now becomes

their ticket to a free meal.

The services available to mignnts are paltry compared to their needs. "My wife, my grown daughters, and our two adopted grandchildren are in California," one man in his fifties told me despairingly. He showed me the adoption papers. His daugh- ter's children, aged two and three and both US citizens, were

I 6 NTRODUCT ON

taken by Child Protective Services when the daughter became a

drug user. He and his wife became their foster parents and then

adopted them. "I had to promise that I'd support them and care

for them. How can I do that if I cant get back to them?" He asked to use my cell phone to ca.l1 his wife and then thrust the

phone into my hand. "Talk to her,'he urged me. 'Tel1 her I m

here. Tell her I'm trying to get back."

A young man spent three days waiting outside the exit

port. He and his wife were separated during the deportation process. "Her name is Brenda. She was wearing gray sweat-

pants and a green T shirt," he told everyone who would listen. As each bus arrived, he stood waiting with a desperate hope-

lessness, watching the deportees slowly trickle out, searching

for her familiar face.

As part of No More Deaths,I could offer these people only a

few tokens ofaid: a phone to call their relatives, donated clothes

and socks, a granola bar or rehydration drink. I could beg them

to share their stories with us, so that we could tell them back in the United States and try to change our immigration policies.

At the end of the day, we'd walk back to Nogales, Arizona, step

ping lightly across the border that had destroyed and divided

their lives.

THE C()URTS PI.AY THEIR ROTE

In Tucson, Arizona, the Federal Court processes seventy mi- grants a day through the Operation Streamline program. About

4 percent of migrants who are captured are sent to Streamline,

which began functioning in Tircson in zooS after beginning in Texas as a pilot program in zoo5. Between Tucson and Yuma,

the other Arizona district using the program, some thirty thou- sand migrants are 'Streamlined" every year

Unlike most deportees, Streamlined migrants are charged

with a criminal offense and imprisoned. The daily hearings fall somewhere between a kangaroo court and a slave auction. The

NTRO D UCTION 7

migrants are shackled hand, foot, and waist, and sit in rows tak- ing up about halfof the courtroom. The judge calls them up in groups of ten or so, and their harassed lawyers, who represent four or five defendants a day, scramble to accompany them.a A1- most all of these migrants were captured in the desert, and are

blistered, exhausted, disoriented, and dehydrated when they are

placed in cells. They describe being stripped of their belongings and theirjackets and left to shiver in T-shirts under the air con- ditioning, being placed seventy or cighty people deep in cells

designed for four or five. There is no room even to sit, much less lie down; they receive only a small juice box and a packgt of cheese crackers in two days.

Ten migrants stand before the judge in their shacldes, while dozens ofothers look on.The lawyers hover beside their clients. The judge asks: "Mr. _, do you understand the charge against you and the ma-rimum penalty? Do you understand your right to a trial? Are you willing to give up that right and plead guilty? Ofwhat country are you a citizen? On or about March r8 of this ye ar, did you enter into Southern Arizona from Mexico? Did you come to a port ofentry?"

Most answer that they are citizens of Mexico, though on the day I attended the hearing, there were several Hondurans and Ecuadorians. A court interpreter repeats the questions in Span- ish simultaneously, and the defendants listen through head- phones that they cant touch because their hands are shackled to their waists. Their lawyers prompt them if they falter in their responses. Mostly, they answer sr' to everlthing, which the in- terpreter dutifully translates as yes, except to the port-of-entry question, to which they are supposed to answer no. Some an- swer dully, staring at the groundl some respond in strong voices,

looking up at thejudge. A few are dismissed because they don't speak Spanish, and the court has no interpreters for the indig- enous languages of Mexico. A few scorn the headphones and answer in EngJish.

I

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8 INTRODUCTION

Occasionally, a defendant breaks the pattern. One answered

yes when asked if he came to a port of entry The judge was vis- ibly unnerved. "You came to a port of entry?"she asked. "Let me ask the question again. Did you come to a port ofentry?"Again, the defendant answered yes. She asked several more times be- fore the lawyer convinced his client to answer no. Another de- fendant became agitated when thejudge began to question him. "I'm guilty! I'm guilty!" he exclaimed. "I know youte guilry" re- sponded the judge impatiendy. "But I still have to ask you these questions, and you have to answer them."

"How do you plead to illegal entry guilty or not guilty?" was the judge's last question. Every prisoner answered dutifully, czl- pable-gtllty.Most were sentenced to time served and prepared to be deported to Nogales, Mexico. They will leave the country that they sacrificed so much to get to with a criminal record and the threat of up to twenty years in jail if they enter again. They will be among those arriving in Nogales, penniless, lost, and bewildered.

What we saw was only part of the picture. The trip to the border can be as dangerous as the crossing and passage thJough the US side. Every year, many thousands of migrants are kid- napped as they travel through Mexico. Gangs and drug smug- glers see migrants as easy targets and count on the fact that the friends or relatives in the United States who raised the thou- sands ofdollars to fund their trip will be able to generate more to pay for their ransom. As violence in the border region increased,

migrants made up many of the victims. If a ransom was not paid, or if migrants refused to work for the gang, they might be killed, sometimes in massacres that claimed the lives ofdozens.

S OME BACI(CR{,Ut{D

The many competing interests at stake in the development of law, policy, and ideology surrounding undocumentedness have led to a perplexing and constantly shifting landscape. To

INTRODU CTION 9

understand the changes of the late twentieth century, we need to understand how the system worked before that. From the eighteenth- and, especially, the nineteenth centuries on, the United States benefited from its place in the global industrial economy, and white people in the United States benefited from their place in the racial ordeL A duul labor market d.eveloped in which some workers began to become upwardly mobile and enjoy the benefits ofindustrial society, while others were legally and structurally stuck at the bottom.

This dual system was reproduced both domestically and internationally, and race played a big role in it. Legal systpms were created to justiE/ and sustain it. Globally, the system was

expressed through colonialism. Europeans colonized people of color around the world and benefited from their forced labor and their resources. In the United States, slavery played a big role in sustaining a dual labor system, where whites could move up, but blacla cou.ld not.

fhe United States took some colonies, too, at the end ofthe nineteenth century like the Philippines, Cuba, and Puerto Rico. But US companies and citizens also benefited from the dual la- bor system when American companies like United Fruit estab- lished plantations in Central America and produced bananas using cheap labor there. They benefited when Brazilian slave-

holders or German coffee planters in Guatemala used forced labor in those countries to supply cheap coffee for US markets.

Mexico played a big role in the dual labor market in the United States, both domestically and internationally. US min- ing companies operated in both countries from the late r8oos, and in both, they employed an explicit dual wage system. Mexi, cans received a lower, "Mexicad'wage, while white US citizens received a so-called gold or US wage.s

Inside the United States, Mexicans were welcomed as mi- grant workers as American investment in the southwest grew after the territory was taken from Mexico in 1848 and r85j. A

I

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IO INTRODUCTION

re[ance on Mexican workers who contribute their labor to US economic enterprises-but are denied access to the ben-

e6ts that US law affords its citizens-has underpinned the

economy for over a century. Over the course of time, different legal and structural mechanisms have been used to maintain

this system. Early on, it was done by legally distinguishing im- migrants from workers. Immigrants were the Europeans lvho

came to Ellis Islandl workers were the Mexicans and Chinese

who built the railroads and planted the food that sustained

white settlement in the newly conquered west of the country.

They were not expected to settle, stay, or become citizens. Citi- zenship, after all, was reserved for people defined as white until after the Civil War.

US immigration law thus treated Mexicans not as potential

immigmnts but as sojourners, temporary migrants who entered

the country to work, rather than as immigrants who intended

to stay. Anti-immigrant sentiment was directed against newly

arrived Europeans, not against Mexicans. Anti-Mexican racism

was also common, but it was directed against the supposed ra-

cial category ofMexicans rather than their status or citizenship.

Until 1924, the new border between the United States and

Mexico was virtually unpoliced, and migration flowed openly.

Medcans were exempted from the immigration restrictions

passed into law before 1965. Because they were not considered

immigrants, Meicans were also permanently deportable and

were, in fact, singled out for mass deportations in the r93os and

r95os. The nonimmigrant status of Mexican workers over time

underlies the apparent paradox between the United States as a

so-called country of immigrants and its xenophobia and restric-

tive immigration policies.

The creation of citizenship by birth through the Fourteenth

Amendment was aimed at remedfng the historic exclusion of African Americans. But it also created the apparent paradox

that other nonwhites-like the Chinese-could become citizens

through birth. Congress quickly moved to remedy this by re- stricting the entry of Chinese women in 1873 and all Chinese with the Clrinese Exclusion Act in 1882. California's farms then became even more dependent on Mexicans who, unlike the Chi- nese, could still be counted on to leave after the harvest rather than remain in the country and eyentually become citizens.

In 1928, the Saturday Eoening Porl reported that there were some 136,ooo farmers in California, roo,ooo with farms of un- der roo acres, and 83,ooo farming fewer than 4o acres. These

small farmers did not use hired labor during most of the year,

but during the harvest, required some ro to 5o additional work- ers. "Fluid, casual labor is for them a factor determining profits or ruin," the Posl explained.

"Mexican labor fits the requirements of the California farm as no other labor has done in the past. The Mexican can with- stand the high temperatures of the Imperial and San Joaquin valleys. He is adapted to field conditions. He moves from one 1o-

cality to another as the rotation ofthe seasonal crops progresses.

He does heary field work-particularly in the so-called 'stoop

crops'and'knee crops'ofvegetable and cantaloupe production- which white labor refuses to do and is constitutionally unsuited to perform." Mexican labor, the author estimated, comprised from 7o to 8o percent of"casua.l" or seasonal farm labor.6

fhis informal system of rotating labor prevailed until the r94os, when it was supplemented by a government-run system

that continued until the mid-r96os, the Bracero Program. The Bracero Program, which brought in over 4 million workers between r94z and 1964, was terminated in the contel( of civil rights organizing that highlighted the discriminatory treatment of these guest workers. But the economic structures that relied on these workers didn't disappear, and neither did the workers; theyjust returned to the old, informal system.

But, suddenly, the old system became illegal. The 1965 im- migration law, which coincided with the termination of the

]2 INTRODUCTION

Bracero Program, responded to the domestic and international

movements for racial equality by getting rid of the racial and

national quota system that had prevailed until then. It gave ev-

ery country an equal quota. And it included the countries ofthe Westem Hemisphere for the first time, considering Mexicans

as potential immigrants rather than just exploitable workers.

Given the structural realities of Mexican migrant labor,

treating Mexicans equally under the new law was actually a

way to keep exploiting them, but now by calling them "il1egal."

From 1965 on, new laws made them more and more illegal and

took more and more rights away from them.

Although it may seem contradictory, restrictive immigra-

tion laws actually contributed to a rise in both legal and "ille-

gal" immigration. Two immigration scholars point to a synergy

between the way the 1965 law privileged family members of US

citizens and 1ega1 residents-in many cases, exempting them

from the new quotas-and the barrage of laws after 1965 that

progressively restricted the rights of noncitizens. It wasn? the

new quota that led to increased Mexican legal immigration af-

ter 1965, since the quota drastically reduced the number ofMex- icans allowed to immigrate. Instead, it was the punitive aspects

ofthat and subsequent laws that increased the numbers ofthose

who decided to become immigrants, rather than sojourners.T In other words, workers decided to stay, bring their families, and

become immigrants because the earlier, seasonal pattern was

becoming increasingly criminalized.

Some ofthe very organizations that were pushing to expand

legal and social rights in the United States in the r96os contin-

ued to draw a line at the border. fhe United Farm Workers union

campaigned against "il1egal" workers in the r97os.8 California

Rural Legal Assistance and the UFW supported the nationt

first employer sanctions law-making it illegal for employers

to hire undocumented workers-in t97t.e 'Ihe first attempt to

implement such sanctions at the national level was in 1973, at the

INTRODUCTIO N I3

initiative of the AFL-CIO and the NAACP.10 (By the r99os, all ofthese organizations had changed their positions and opposed the emploXer sanctions that were created by the 1986 Immigra- tion Reform and Control Act.) But employer sanctions turned out to bejust one more way to maifltain a large, exploitable pool ofworkers to fill agriculture's most backbreaking jobs. The sanc-

tions could be suspended, as they were after Hurricane Katrina, when federa.l contractors desperately needed migrant laborers to clean up and rebuild the city of New Orleans.

Agriculture continues to employ large numbers ofundocu, mented workers in the twentl.-fir51 csntury, as farmers and t!.reir

organizations throughout the United States have publicly ac- knowledged. LarryWooten, the president of the North Carolina Farm Bureau, explained at an agricultural summit in Atlanta in 2ot2 that "agricultural employers who advertise jobs*as is

required for those who are part of the federal guest worker program-for nearly two months get little to no response. 'We have no choice,'Wooten said. 'We must use immigrants."'11

Since the r98os, economic restructuring in the United States

has created some huge new demands for extra-legal workers who will contrlbute to the economy for 1ow wages and few benefits. Many undocumented people today work at iobs that haye been in-sourced. While most of us are familiar with out- sourcing-when jobs, from manufacturing to call centers, are

shifted overseas-in-sourcing is less well known. The phrase

can refer to a company's decision to cary out internally those tasks that were previously contracted out, or it can mean that a company brings back a job that had been outsourced abroad.

Here, though, I'm referring to a particular kind of in-sourcing; when a company closes down an operation in order to move it somewhere else inside the United States where it will have ac- cess to cheaper (often immigrant) workers, lower taxes, fewer environmental or health and safety regulations, or other finan- cial incentives-

f

14 NTRODUCTiON

Almost everybody in the United States benefits from that labor in one way or another, because it underlies almost all of the goods and services we use. Whether they work in agri-

culture or in-sourced industries like meatpacking, or whether

they work in landscaping, newspaper delivery, or cleanup after

environmental disasters, the invisible labor of undocumented

workers sustains the economy. Moreover, the presence of these

migrants also serves to create more jobs. By living in the United

States, by spending money and consuming goods and services

themselves, they sustain the jobs ofother workers.

The work that undocumented migrants do is essential to the functioning ofthe economy and to the comfort of citizens.

The system is also, however, fundamentally unjust. By creating

a necessarily subordinate workforce without legal status, ra/e

maintain a system of legalized inequality. It's a domestic re-

production of a global system. The border is used to rational-

ize the system globally; it makes it seem right and natural that exploited workers in one place should produce cheap goods and

services for consumers in another place. Illegality replicates the

rationale domestically: it makes it seem right and natural that a legally marginalized group of workers should produce cheap

goods and services for another group defined as legally superior.

STATUS, RACE, AI{D THE I{EW IIM CR()WS

At the same time that these big economic shifts were occur-

ring, other political, social, and cultural changes were hap-

pening globally. After World War II, overt racism and white supremacy began to lose ground. Europe slowly and painfully let go of most of its colonies, and the number of independent

countries proliferated. Almost all of the new independent

countries were run by people of color. In the United States,

civil rights movements fought to dismantle legalized discrimi- nation. South Africa became an international pariah and fi- nally ended apartheid.

INIRODUCTION I5

In an important book published in zoro, though, Michelle Alexander argues that the racial caste system that United States

has maintained since the days of slavery did not end with the passage of civil rights legislation in the r95os and '6os. Rather,

a neyr system of legalized discrimination developed to replace

the old Jim Crow system. The new system, she writes, is mass

incarceration. Black people-and, as I argue here, Mexicans and other Latin Americans as well-were systematically criminal- ized. Although, on the surface, the system is color-blind, in fact,

it targets people ofcolor. But it works better in this supposedly

postracial age, because it never uses race directly to discriminate. lnstead, it criminalizes people of color and then discrlminates

on the basis oftheir criminal status.

Most citizens who rail against the undocumented insist that their opposition is based solely on technical,legal grounds:

they oppose people who broke the law. But becoming undocu- mented is a highly racialized crime. Nationality itself has its origins in racial thinking and still bases itselfon birth and ori- gin in ways that echo racialism. The categories "Mexican" and "Latino"have been raclalized in the United States, and the cat- egory ofillegality is heavily associated with the category"Mex- ican," whether this is understood as a nationaliry an ethniciry or a race.In zorr,93 percent offederal immigration crimes were

committed by noncitizens, and 89.3 percent ofthem were com- mitted by Hispanics.12

Another way to look at the racialized nature of undocument- edness is to compare the criminalization of immigrants (espe-

cially Latino immigrants) in the post-civil rights era with the criminalization of blacks. A-lexander argues that laws passed and implemented in the aftermath of the civil rights movement and legislation that accompanied it effectively countered the gains

made in the r95os and '6os. "We have not ended racial caste in America," she writes, "we have merely redesigned it."13 The new system, mass incarceration, consists of"not only . . . the criminal

I6 NTRODUCTION

justice system but also . . . the larger web of laws, rules, policies,

and customs that control those labeled criminals both in and out

ofprison." Once caught in the web, former prisoners are in it for-

ever.They'tnter a hidden underworld of legalized discrimination

and permanent social exclusion. . . ,The cuffent system ofcontrol

permanendy locks a huge percentage of the African American

community out ofthe mainstream soclety and economy."la

Alexander focuses not only on incarceration itself, but on

what happens after release. "Once [prisoners] are released, they

are often denied the right to vote, excluded from juries, and rel-

egated to a racially segregated and subordinated existence. . . .

They are legally denied the ability to obtain employrnent, hous-

ing, and public benefits."1s Possession of a felony conviction,

then, replicates the very legal restrictions that used to be en-

forced by Jim Crow.

In the ideology and culture of exclusion, as well as in the

laws and mechanics of its implementation, the arguments A1-

exander makes about African Americans have a parallel in the

sltuation of immigrants. Like the African Americans that Alex-

ander studies,large portions ofthe Latin American immigrant

population have also been permanently criminalized and legally

excluded. As with African Americans, undocumented immi-

fJrants are criminalized by a system that is superficially race-

blind and defended on that basis.

Just as African Americans have become stigmatized in the

post-civil rights era through criminalization, so have immi-

grants. Before, legal discrimination could be based explicitly on

race.When race-based discrimination was outlawed, a new sys-

tem emerged: turn people of color into crimina.ls.Then you can

discriminate against them because of their criminaliry rather

than because oftheir race. A new legitimacy for discrimination

was thus born.16

Alexander meticulously details the ways in which criminal

status follows black people into every area of life. With minor

INTRO D UCTIO N 17

drug charges turned into felonies and defendants urged to plea

bargain,huge numbers ofblack men become permanent "felons":

When a defendant pleads guilty to a minor drug offense, no-

bodywitl likely tell him that he may be permanendy forl'eiting

his right to vote as well as his right to scrve on a jury. . . . He will also be told little or nothing about the parallel universe he

is about to enter, one that promises a form ofpuDishment that

is often more dificult to bear than prison time: a lifetime of shame, contempt, scorn, and exclusion. In this hidden world,

discrimination is perfectly legal. . . . Commentators liken thg

prison label to "the mark ofCain"and characterize the perpet-

ua1 nature ofthe sanction as "interna.l exile."Myriad laws, rules,

and regulations operate to discriminate against ex-offenders

and effectively prevent their reintegration into the mainstream

society and economy. These rcstrictions amount to a form of 'tivic death" and scnd the unequivocal message that "they" are

no longer part of"us."17

Like convicted felons-mostly African Americans-the undocumented live in a strange world of internal exile or civic death. While physically present, they are legally excluded by an ofiicial status that has been ascribed to them. They cant vote, serve on a jury, work, live in public housing, or receive public benefits. These exclusions apply equally to those, mostly blacks, with a criminal record and those, mosdy Mexican, who are

undocumented. Stigmatization and exclusion create a vicious circle of further stigmatization and exclusion.

"In the era of colorblindness," Alexander writes, "it is no longer permissible to hate blacla, but we can hate criminals."18 The same argument could be made for Mexicans and criminal- ized immigrants. Anti-immigrant blogs, commentaries, and general opinion frequently emphasize the legalistic nature of their anti-immigrant sentiment: "They broke the lawl" But it's

18 INTRODUCIION

a law that, in design and in fact, is aimed at one, racially de-

fined, sector of sociery

Another aspect that links the criminalization ofblacls and of Hispanics is the enormous rise in detention and what some have

termed the "prison-industrial complex."1e The Supreme Court

commented in zoro on the dramatic changes in federal immigra-

tion law over the previous ninety years. "While once there was

only a narrow class of deportable offenses and judges wielded

broad discretionary authoity to prevent deportation, immigra-

tion reforms over time have expanded the class of deportable

offenses and limited the authority ofjudges to alleviate the harsh

consequences of deportation,"As criminal convictions of people

of color for minor offenses have risen, so have the consequences

ofthese convictions. Now, even legal permanent residents can be

deported for minor convictions, well after the fact.2o

PUTTII{G II AtT T()GETHER

This new criminalization of African Americans and Latinos

relates to their different places in a changing labor market. Al- exander points out that earlier mcial caste systems (slavery and

Jim Crow) served to keep African Americans as an exploitable

labor force. Now, the criminalization of Afiican Americans has

coincided with their removal fiom the labor force. With the

collapse of the urban manufacturing sector, their labor was no

longer necessary. They have become a surplus population, to be

warehoused in the prison system.

The criminalization of Mexican immigrants, however, un-

derlies their increasingly important role in the economy. The

language and ideology are similar: fear, marginalization, and ex-

clusion are based upon the supposed crimin'ality of the objects

of hatred and justified with repeated invocations of the color-

blind nature of modern US sociery But in the case of immi- grants, the criminalization jtutfa their location in the lor rest

ranks ofthe labor force.

INTROD UCIION I9

Like Alexander, Nicholas De Genova argues that changes in the law deliberately criminalized a group that could no longer be legally defined by race. Illegaliry he writes, is not "a mere fact of life, the presumably transparent consequence of unauthor- ized border crossing or some other violation of immigration law." lnstead, he argues, laws themselves were written with the express purpose ofcreating this new status ofillegaliry because

it served the purpose ofkeeping workers exploitable.2l

At an even deeper level, anti-undocumented sentiment plays into deeply held beliefs and fears about the state, the na- tion, and sovereignty. The world's wealthy nations have created

islands ofprosperity and privilege, and those who live in these

islands have an interest in preserving them-and in justifi.ing their own access to them. Illegality is the flip side of inequal- ity.It serves to preserye the privileged spaces for those deemed citizens and justi4, thelr privilege by creating a legal apparatus

to sustain it. Heightened panic about "illegality" coincides with growing global inequality and the dependence ofthe privileged on the labor ofthe excluded.

The idea that countries are such discrete entities is inher- ently flawed. As every Mexican is aware, the contemporary US-Mexico border is an arbitrary product of the US invasion of Mexico from 1846 to 1848, and the subsequent demand that a huge segment of Mefco's territory be ceded to the United States. As the descendants ofthe Mexican population living in what is now the southwestern United States like to remind us, "We didn't cross the border; the border crossed us."

Even since the creation of this new border, in the case of the United States, Mexico, and Central America, the histo- ries, economies, politics, and militaries ofthese countries are so

deeply intermeshed that each would be totally different without its relationship with the others. Without Mexican and Central American labor, and the consumer goods and profits that come

from that labor, US prosperity would look entirely different.

20 INTRODUCTION

And without US military political, and economic intervention,

Mexico and Central America would be quite different as wel1.

A person might be a citizen of, and live inside the borders of, a

single country. But the social and economic systems that struc

ture our lives go well beyond the borders of any country.

AIso worth considering, for a moment, is what it means to

criminalize movement or presence. While we are accustomed

to a global order in which nation-states define their sovereignty

in part by their ability to control movement in and out oftheir territories, we should also be capable ofcritiquing this equation

and imagining different definitions of sovereignty. Is it neces-

sary to rely on a legal order that forces people to remain inside

the political unit into which they were born and makes unlaw-

ful their presence outside of that political unit? With a bit of critical distance, the notion appears more and more absurd.

()UTTINE ()F IHE B Ol}I(

The first chapter of this book, "Where Did Illegality Come

From?" seeks to unveil the beliefs and assumptions that have led

us to accept discrimination on the basis of a human invention

that we call "citizenship." It places illegality in a long historical

trajectory of different ways that people-and, since 1492, espe-

cial1y Europeans-have created an unequal world of privilege

and marginalization.

The second chapter, "Choosing to Be Undocumented,"looks

at the origins ofundocumented people and the different paths

to undocumented status. It looks on the ground at sending

communities in Mexico and Guatemala, and the historical and

social forces that lead people to mlgrate and lead them into

undocumentedness.

Chapter 3, "Becoming Illegal," looks at the different ways

that people enter the United States without authorization or

lose authorization after entering legally. Some enter the country

with legal permission but fal1 out of that status, while othe$

NTRODUCT ON 2I

pay thousands ofdollars to coyotes (smugglers) to make a dan- gerous and sometimes fatal trip across the desert. This chapter

also discusses how Operation Gatekeeper and other US border policy choices have affected people's lives and choices.

Chapter 4, "What Part of 'Illegal'Do You Understand?" ex-

plores what exactly is considered illegal about people without documents. It looks at what is actually prosecuted and how this has changed over time, and at who is deported and why. It also

examines the contradictory and shifting legal landscape that structures migrants' lives.

Chapters 5 and 6 look at the world of work. What kinds of work are undocumented people doing in the United States?

How does their work support the United Srates and the global economy? Who benefits, and who is harmed, by the existence of undocumented status?These chapters look into thejobs and the working conditions ofthe undocumented, and how their status

affects their rights in the workplace and the functioning ofthe US economy as a whole.

Chapter 7 focuses on children and families. As the undocu- mented population grew, its profile also changed. In earlier years, the undocumented were primarily single, working-age men. By the late twentieth century, large numbers of children were undocumented or had undocumented parents. How does

status affect the lives of children and families? What kinds of organizations have these youth formed, and what are the pros- pects for their future?

The last chapter looks at solutions. If we do not want to live in a society divided by status, with large numbers of "il- legal" people, what can we do to change the situation? I out- line some of the so-called solutions that have been attempted, ranging from deportation to border patrols to legalizations. I argue that current immigration reform proposals do not address

the problem ofbeing undocumented in a realistic way, and that only by challenging the contradictions inherent in the category

22 NTRODUC] ON

itself-that is, by declaring that no human being is illegal-can the law adequately address human rights and human needs.

When people ask me what I think we should do about im- migration reform, I tell them that I think the immigrant rights

movement had it right back in the r98os when we insisted that

"no human being is illegal." If discrimination on the basis of national origin is illegal, then we need to acknowledge that our

immigration laws are illegal. Human rights-including the

right to be recognized as a person equal to other people-apply to everyone: no exceptions. Let's admit that our discdminatory

laws are unjustifiable. Let's abolish the category "illegali'and

give everyone the right to exist. We would solve the problem of illegal immigration with the stroke of a pen.

But I also understand that a lot of political and cultural

change is going to have to occur before such a policy change

could enter the realm of possibiliry Thus, while we insist on

unveiling and challenging the roots of injustice and inequal-

iry we need to also, pragmatically and simultaneously, work to

relieve its excesses where we can, even if our larger goals seem

distant.It's important, though, to keep sight ofthe larger goals

as well and not adopt short-term campaigns that work at cross-

purposes to what we really believe and seek to change.

If we accept the argument that changes in the law delib-

erately created illegaliry and did so for the purpose of keep-

ing Mexican workers available, cheap, and deportable, then it should not be unimaginable to propose drastically changing the

law. Likewise, if we understand that, with respect to Mexico,

restrictive immigration legislation has had virtually no effect on

migration patterns, we must be able to question the value of such legislation even in achieving its avowed purpose. I hope

that this book will contribute to opening a new debate that

goes well beyond so-called comprehensive immigration reform

to challenge the very concept ofundocumentedness or illegality

in our societv.

CHAPTER i

Where Did lllegality Come From?

Most of us think that we know what the word illegal means

and why some people fa1l into this category. It seems right and natural to us that people should be divided by citizenship, and by documents, into different categories with differential rights.

We assume that the wodd is naturally divided into countries and that every human being somehow belongs in one country or another. People are supposed to stay in the country that they were born in, unless they can get special permission to enter an- other Each country expresses its sovereignty by deciding who is allowed to enter into its territory and who is allowed access to citizenship. So we rarely question the idea that countries should be able to decide who can cross their h^',-i... "-,1 i-^^" ^^^-1- differently under the law d countries assign them.

But there is nothing natural about this state ofaffairs. Coun- tries, sovereignry citizenship, and laws are all social construc- tions: abstractions invented by humans. What's more, they are

all fairly recent inventions. Today, we use them to justify differ- ences in legal status.In this chapter,I will call into question the contemporary concept of illegality by looking at how we came