Undocumented : How Immigration Became Illegal (9780807001684) (6 page)

The status of illegality and its concomitant legal exclusion affected more individuals by the early 2000s than did the Jim Crow system in the US South at its height.
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Just as Jim Crow had imposed discrimination on the basis of race, new legislation in the late twentieth century increased discrimination against noncitizens and especially those who challenged their exclusion from the country by nonviolent direct action—that is, entering “illegally” or overstaying a visa. A study of Hispanic immigrants in rural North Carolina found that they felt that their lack of citizenship status, rather than their ambiguous place in the black-white racial hierarchy, was the main factor causing the discrimination they experienced.
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Recently, political scientist Jacqueline Stevens has suggested that discrimination on the basis of citizenship is incompatible with the notion of a liberal, egalitarian society, as much so as earlier laws and institutions that discriminated on the basis of religion or race. “The history of the United States, as for all countries, is one of a struggle between the voices on behalf of rationality and equality, on the one hand, and those urging the imposition of rigid distinctions based on ancestry and religion,” she writes.
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The idea of birthright citizenship—that people belong and should have rights only in the place they happen to be born—is the epitome of a “rigid distinction based on ancestry.” An immigration system that attempts to force people to reside inside the national territory in which they were born is in fact one of “global apartheid,” she insists.
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Restricting freedom of movement, as in apartheid, is a way of enforcing domination and maintaining inequality. This is true whether the restriction is based on something defined as religion, race, or the arbitrary fact of birthplace. On a global level, patrolled borders prevent the poor of the world from escaping the poverty they were born into and gaining access to the jobs, education, and health and welfare that are reserved for those fortunate enough to be born in the wealthy countries that border them. Global apartheid is enforced with walls, stadium lights, and guns. And global apartheid never talks about race, only nationality.

THE USES OF ILLEGALITY

Throughout most of human history, both states and economic enterprises have struggled to incorporate people into their projects.
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A strikingly different characteristic of the contemporary era is the extent to which access to states and to the right to work has come to be seen as a privilege. In some ways, this change reflects very real shifts in the functioning of states and economies, but in other ways, the differences are more apparent than real.

People have always needed to work for their subsistence. Until well into the twentieth century—and in some regions, into the twenty-first—this has meant, primarily, that they have needed access to land. Most people worked for themselves. Labor for others generally happened as a result of force: when one group conquered another, took control of land, or took prisoners of war, those conquered could be forced to work for their conquerors, often as slaves. “The use of socially marginalized communities for menial tasks helped maintain a higher standard of living and greater property ownership for settlers,” Rana wrote of the early United States.
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While creating privilege for settlers was characteristic of settler colonial societies, the creation and use of the socially marginalized for labor was pretty much a universal of civilization.

Would-be employers initially had to rely on state power to force people into working for them. Gradually, though, direct force was no longer required. In the nineteenth century, industrialization and colonialism separated more and more people worldwide from their lands and left them no option except wage labor. As access to land diminished, people started voluntarily moving to cities and seeking to work for others. Some sectors of the labor force gained access to the privileges and benefits of consumer society. Other sectors remained marginalized, creating what sociologists have termed a segmented or dual labor market. Even in the marginalized sectors, though, a lack of alternatives rather than force became the prime motivation for workers. Work, in fact, had become a privilege.

In her study of mass incarceration, Michelle Alexander notes that coerced labor has given way to mass unemployment among black men. First slavery and then Jim Crow were designed to make blacks work for the white-dominated economy. The dismantling of Jim Crow, she argues, coincided with the collapse of the American manufacturing sector and loss of the jobs that sustained African American communities. She cites sociologist Loïc Wacquant, who “emphasizes that the one thing that makes the current penal apparatus strikingly different from previous racial caste systems is that ‘it does not carry out the positive economic mission of recruitment and disciplining of the workforce.’ Instead it serves only to warehouse poor black and brown people for increasingly lengthy periods of time, often until old age. The new system does not seek primarily to benefit unfairly from black labor, as earlier caste systems have, but instead views African Americans as largely irrelevant and unnecessary to the newly structured economy.”
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The newly structured economy may not need to benefit unfairly from black labor, but it still needs to benefit unfairly from the labor of
some
socially marginalized community. In the late twentieth century, African Americans became less “cheap” because they gained legal rights, gained access to social services, and organized unions. Simultaneously, the sectors like manufacturing and government that had employed them collapsed, contributing to high unemployment among African Americans. But other sectors—“downgraded manufacturing and expanded service sectors,” in Nicolas De Genova’s study of Chicago—began to massively employ immigrant and, especially, undocumented immigrant workers.
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(
Chapters 5
and
6
, on the topic of working, go into more detail about the kinds of work undocumented people do.)

Here, however, I’d like to emphasize how useful illegality has been in the late twentieth-century reconfiguration of work from an obligation to a privilege. Illegality is a way to enforce a dual labor market and keep some labor cheap, in a supposedly postracial era. Illegality uses lack of citizenship—that is, being born in the wrong place—to make workers more exploitable. Once naturalized, the status neatly hides the human agency that forces workers into this marginalized status. It is not just coincidence that illegality has burgeoned in the postindustrial societies of the Global North at the end of the twentieth century. It serves a crucial role in their economies and ideologies.

CHAPTER 2

US citizens often wonder why immigrants in the United States don’t “do it the right way” and obtain proper documents to authorize their entry and presence in the country.
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They believe—usually erroneously—that their own ancestors obtained proper visas prior to coming to the United States and also know that if they intended to travel or move to another country, they would assemble their documents before attempting to travel.

When you get your US passport in the mail, it comes with a flyer that says “With Your US Passport, the World Is Yours!” Holders of the US passport are accustomed to simply arriving at the border of another country, showing their passport, and easily crossing. Rarely, they have to apply for a visa in advance. If they pay the fee and fill out the application correctly, the visa is routinely granted. Holders of US passports tend to believe that freedom to travel is their birthright, a view reinforced by the literature that comes with their passports. For the cost of a plane ticket, and occasionally a small visa fee, they can leave the country they were born in any time they want.

For most of the world’s population, though, freedom to travel is a distant dream. They can’t leave the country of their birth because, instead of that magical ownership of the world that comes with a US passport, they are citizens of countries in Africa, Latin America, or most of Asia. Many of them are also poor and people of color. They can’t leave their countries because no other country will let them in. Least of all, the United States. In today’s global apartheid, whole countries—almost all of them in the First World—shut themselves off to travelers, while assuming that their own citizens have the right to travel anywhere they choose. Meanwhile, the citizens of other countries—mostly in the Third World—are imprisoned in the country they are born in, because of the restrictions established by those richer and more powerful.

From the comfort of their First World homes, many citizens of the United States assume that anyone can get a visa to travel legally to any country. If someone comes to and/or lives in the United States without proper documentation, they assume it must be because they simply failed to follow the correct procedure. If only there were such a procedure to follow.

I’ve even heard a Massachusetts state legislator express this assumption in a hearing on the question of allowing undocumented students to be considered state residents for the purpose of paying in-state tuition rates at public colleges and universities. He interrogated a panel of students, members of the Student Immigrant Movement who had come to testify in favor of the bill. All were undocumented, and each one explained how and why he or she had ended up with that status.

“What’s your status now?” the legislator asked them. “I’m undocumented,” one Brazilian student answered, bewildered. “Why don’t you start the process to become a citizen?” he continued. “I can’t,” she explained. “Why not?” he asked, revealing his profound ignorance of immigration law. Just as the law forbids most residents of the Third World to travel here—by requiring visas, but refusing to grant them—it also forbids virtually all people who are undocumented to regularize their status.

SOME HISTORY

Structural factors, mostly related to the economy and labor needs, have shaped migrations for centuries. Some of the largest sources of out-migration to the United States today were recipients of in-migration only a few generations ago. The Caribbean islands in particular fall into this category. Other places that now send large numbers of migrants to the United States have long histories of temporary, seasonal, and permanent out-migration. Mexico stands out in this regard.

Since the nineteenth century, nation-states have increasingly attempted to regulate migration and control freedom of movement across often newly established borders. US immigration policies have changed frequently, creating a mesh of regulations and statuses that even immigration lawyers and scholars find confusing.

Until 1890, there was no national immigration system or agency in the United States. Individual states enforced existing immigration laws until the establishment of the federally operated immigration inspection station at Ellis Island in 1892. Certain categories of people became excludable starting in 1875, and in 1891 the law provided for deportation of an immigrant who became a public charge within a year of arrival or was found to belong to a prohibited or excluded group—like Chinese contract workers, prostitutes, convicted criminals. After a year, though, those who had entered “illegally”—that is, in violation of the laws that excluded them—could no longer be deported. The 1903 Immigration Act extended these periods of potential deportability to two years for becoming a public charge, and three years for belonging to an excludible class. In 1917, this was extended to five years.
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It’s important to note that so-called illegal entry, up until this time, referred to entry by persons belonging to a
class
of people who were unilaterally denied entry: it had nothing to do with the way a person entered. It was the 1907 Immigration Act that first made entering without inspection itself a violation of the law. The 1907 act formalized the inspection procedure, requiring every would-be immigrant
coming in by sea
to pass through inspection, and made it a misdemeanor for a ship owner to bring in anybody belonging to an excluded class.
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The act did not apply to Mexicans. Inspection was for immigrants, and immigrants were defined as people who arrived by sea, not Mexicans, who crossed the southern border to work. Likewise, Mexicans were exempted from the literacy requirement and head tax imposed on immigrants in 1917, as long as they were coming to work in agriculture. Mexicans weren’t even required to enter through an official port or inspection point until 1919.

For Europeans, a passport was first required for entry in 1918, but even then, it was only for identification. Would-be immigrants did not need to obtain prior permission in their home countries before traveling to the United States, and they couldn’t be deported for entering without inspection until 1924.
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In 1929, entry without inspection became a misdemeanor, punishable with fines and jail time.
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But there were still exceptions for Europeans.

A new process called registry for noncitizens who had entered without inspection prior to this time allowed them—if they were otherwise (i.e., racially) eligible to citizenship—to regularize their status if they could demonstrate “that they had resided in the country continuously since 1921, were not otherwise subject to deportation, and were of ‘good moral character.’”
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In practice, the registry helped Europeans who had evaded the 1919 inspection requirement. The registry system set a precedent—that a period of residence outweighed the technicalities of inspection, or lack of inspection, upon entry. Later laws like the 1986 Immigration Reform and Control Act and the twenty-first-century proposals for a path to citizenship would revive that idea.

The 1924 Immigration Act created what was called the “quota system,” putting numerical limits on immigration (still conceived as European immigration) for the first time. Immigrants from Europe now had to comply with quotas established based on the proportion of immigrants from that country already present in the United States. Non-Europeans didn’t get quotas. The Bureau of Labor Statistics explained the intent of the law: “Immigrants of New World countries or their descendants, aliens ineligible to citizenship or their descendants, the descendants of slave immigrants, and the descendants of American aborigines were specifically excluded from the national-origins plan. In a broad sense, therefore, the problem was to find the extent to which the various countries of Europe, as now constituted, had contributed to the white population of the country.”
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For the first time, Europeans could be excluded, not on the basis of their individual characteristics, but because of the country they came from. Somewhat paradoxically from today’s perspective, Mexican labor migration was unaffected by the restrictive law.