Undocumented : How Immigration Became Illegal (9780807001684) (4 page)

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, especially Europeans—have created an unequal world of privilege and marginalization.

The second chapter, “Choosing to Be Undocumented,” looks at the origins of undocumented 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 migrate 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 fall out of that status, while others pay thousands of dollars to coyotes (smugglers) to make a dangerous 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?” explores 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 States and the global economy? Who benefits, and who is harmed, by the existence of undocumented status? These chapters look into the jobs and the working conditions of the undocumented, and how their status affects their rights in the workplace and the functioning of the US economy as a whole.

Chapter 7
focuses on children and families. As the undocumented 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 prospects 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 “illegal” people, what can we do to change the situation? I outline 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 of being undocumented in a realistic way, and that only by challenging the contradictions inherent in the category 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 immigration reform, I tell them that I think the immigrant rights movement had it right back in the 1980s 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 discriminatory laws are unjustifiable. Let’s abolish the category “illegal” 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 possibility. Thus, while we insist on unveiling and challenging the roots of injustice and inequality, 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 of the 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 deliberately created illegality, and did so for the purpose of keeping 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 of undocumentedness or illegality in our society.

CHAPTER 1

Most of us think that we know what the word illegal means and why some people fall 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 world 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 another. 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 borders and treat people differently under the law depending on statuses that these same countries assign them.

But there is nothing natural about this state of affairs. Countries, sovereignty, citizenship, and laws are all social constructions: abstractions invented by humans. What’s more, they are all fairly recent inventions. Today, we use them to justify differences in legal status. In this chapter, I will call into question the contemporary concept of illegality by looking at how we came to accept this particular kind of status difference as legitimate, even as we have rejected other historical rationales for laws that inscribe inequality.

We assume that these social constructions have some kind of independent reality or existence, but in fact they don’t: people invented them to serve their own interests. There were historical reasons that people created them, and it’s important to understand those reasons in order to think critically about them.

Our current system of organizing the world into sovereign countries made up of citizens (and, in almost all cases, noncitizens) has roots in past ideas and categories, which have evolved over hundreds of years. The laws that make some immigration—and thus, some people—“illegal” are recent creations, though they grow out of older ideas. Once we carefully examine the history of these concepts, they start to look more and more untenable. Rather than the question we often hear, “What part of illegal don’t you understand?” perhaps we need to ask, “What part of illegal
do
you understand?”

There are several concepts that can help us to trace the roots of illegality. First, we’ll look at ideologies of European domination that spurred the continent’s expansion after 1492. Ideas about
mobility
, and who has the right to move where, played an important role in the ideologies of European superiority that justified conquests and colonization.

Connected to ideas about mobility are ideas about the law. In 1894, French novelist Anatole France noted with irony “the majestic equality of the laws, which forbid rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread.”
¹
Even if a law looks like it treats everybody equally, laws only exist in social contexts. If the social context is unequal or unfair, even a law that purports to be equal might serve to cover up, or even reinforce, existing inequalities. Recently, the discipline of critical legal studies has developed this perspective, arguing that despite its pretensions, the law is never neutral, but rather reflects power relationships in society. As we talk about mobility, we’ll look at how Europeans used laws to assert their superiority and their right to move, and to deny others the right to freedom of movement, all the while asserting that the rule of law must be held sacred.

We’ll also look at how, over the past one thousand years, Europeans have used religion, race, and nationality—that is, countries and citizenship—as organizing principles to divide people into categories or castes. Each has been used hierarchically to justify social inequalities and differential legal treatment of different groups. Once status is inscribed in the law, this becomes an automatic justification for inequality: “it’s the law!”

Status has been used historically to justify forcing people defined as inferior or outsiders to work for those defined as superior or insiders. Low-status people are forced to work in society’s dirtiest, hardest, and most dangerous jobs.

In today’s world, the connection of status to work is different. Until recently, one of the main purposes of status was to create a subject labor force through enslavement and other systems of forced labor. In the twenty-first century, laws are still used keep certain people working in low-wage, undesirable jobs. But the way status is used to enforce labor has changed. Force became more subtle, and work itself became redefined as a privilege. As twentieth-century economic changes in the United States and abroad made it more and more difficult for people to produce their own subsistence, overt force became less and less necessary as a way of making people work. Now, people work out of need.

Along with these structural changes came ideological changes. In today’s ideology, work is a privilege reserved for those of superior status, rather than a burden imposed on those of inferior status. Of course, those of inferior status still work, and they still do the worst jobs. But the system is upheld by laws that claim to
prevent
people of inferior status from working. But the laws are only actually enforced in more desirable sectors of the labor market; thus, people labeled inferior are once again relegated to the worst jobs. Still, it’s notable that the late twentieth century was the first time that laws have claimed to try to reserve jobs for the privileged, rather than force them upon the unprivileged.

These issues are interrelated in many ways. While we’ll address them one by one, the discussion will also build an argument about the arbitrary and historically specific nature of illegality and the role it serves in the modern world.

DOMINATION AND MOBILITY

Some of the unspoken foundations that support the idea of illegality today come to us thanks to Christopher Columbus and the European expansion that followed in his wake. It might surprise readers to hear that many of the structures that have led to the current ways that people are moving around the planet—or prevented from this movement—date back to that same colonial expansion.

The “age of exploration” sent Europeans around the globe with the aim of settling and ruling distant lands and peoples. They developed an ideology to justify this exploration: an ideology that granted full humanity, free will, intellect, and strength to white Christians. To those who did not fall into that category, the Europeans (who did not at that time think of themselves as Europeans or even as white but rather primarily as Christians) attributed irrationality, brutality, stupidity, and barbarity.
²

Along with these ideologies went ideas about movement: who belonged where. Europeans, apparently, belonged everywhere. Christians needed to spread their religion to heathens, European governments needed to expand their realms and bestow the benefits of their government to others, and settlers needed to fulfill their pioneering spirit and manifest destiny by applying their will and their capital to new lands and peoples. And they created countries, governments, and laws to authorize themselves to do these things.

In the mind frame undergirding European exploration, non-Europeans were not capable, nor had they the right, to make their own decisions about residence or movement. It was up to Europeans to forcibly relocate them to where they could best serve European needs. Native Americans and Africans were both subject to transportation—Native Americans to mines and haciendas (in Spanish America) or simply off of lands that Europeans desired (in British America), and Africans to those same lands, to work for Europeans.

In the New Imperialism of the nineteenth century, Europeans (who by now identified explicitly with that term) once more demonstrated their will to move, to rule, and to displace. In the Scramble for Africa, Britain, France, and Germany laid their claims to the continent. The new United States followed its Manifest Destiny and displaced Native Americans westward and onto reservations, and then went on to appropriate colonies like Puerto Rico, Cuba, and the Philippines from the declining Spanish empire. After abolishing slavery, the United States established legal systems of segregation to prohibit African Americans from whites-only spaces. Meanwhile, the new imperial powers transported indentured Africans, East Indians, and Chinese to the Caribbean and the American continent to work on their plantations, railroads, and other enterprises.

In the intellectual spirit of the time, King Leopold of Belgium offered a pseudoscientific justification for this European control of migrations, explaining that “the races inhabiting [the southern continents] are captives in the bonds of all powerful nature; they will never break down the fences that sunder them from us. It is for us, the favored races, to go to them.”
³
Go to them, and then confine them. As one white settler in Arizona proposed, the United States should “[p]lace the Indians on reservations . . . establish military posts along their limits, and shoot every Indian found off the reservations.”
⁴

From apartheid South Africa to the Jim Crow South, white Europeans during the twentieth century made it clear that the right to decide who could move where was inherent to domination. In 1917, the United States created the Asiatic Barred Zone prohibiting immigration by “Asiatics,” who were defined as “aliens ineligible to citizenship” because of their race. Meanwhile, US forces were demanding the opening of China and Japan to US migration, trade, and business enterprise and, indeed, demanding the right of extraterritoriality for its citizens there. As Woodrow Wilson declared in 1907 (before he became president), “The doors of the nations which are closed . . . must be battered down. Concessions obtained by financiers must be safeguarded by ministers of state, even if the sovereignty of unwilling nations be outraged in the process. Colonies must be obtained or planted in order that no useful corner of the world may be overlooked or left unused.”
⁵
Although China was not a colony, with the Treaty of Wanghia in 1844, the United States insisted on American access to Chinese ports and, moreover, that US citizens in China would be subject to US rather than Chinese law. In the words of Teemu Ruskola, not only were Americans guaranteed the right to enter China, but “when Americans entered China, American law traveled with them, effectively attaching to their very bodies.”
⁶