Illegality: A Social and Historical Construct

Illegality and the Law

Laws are human-made and enforced, influenced by historical context and power dynamics.
Laws evolve to serve specific groups, typically those in power.
Many US citizens assume their ancestors immigrated legally, but most arrived before current legal processes existed.
Illegality, as it is known today, emerged after 1965.
Prior to the 1970s, immigration was not generally depicted negatively in the media or considered a legislative problem.
The demonization of immigrants, particularly Mexican and Latino immigrants, grew into a contentious issue by the 1970s. This shift was influenced by economic changes such as globalization.
Civil rights and anti-colonial movements challenged racial exclusion and discrimination, leading to discussions about a "postracial" society.
Experiencing the human impact of the new immigration regime firsthand led to participation in humanitarian efforts along the US-Mexico border in 2010.
Migrants seeking assistance often need to show deportation documents to receive services, which proves they were deported for lacking proper documentation.
Streamlined migrants face criminal charges and imprisonment, with daily hearings described as unfair and exploitative.
Migrants are often captured in the desert and subjected to harsh conditions, including being stripped of belongings and held in severely overcrowded cells.
Many are sentenced to time served and deported, leaving with criminal records and potential jail time if they re-enter the US.

Exploitation and Violence Against Migrants

Thousands of migrants are kidnapped in Mexico, targeted by gangs and drug smugglers who exploit their vulnerability.
Ransoms are demanded, and migrants may be killed if payment is not received or if they refuse to work for the gangs.
The US has benefited from its position in the global industrial economy, creating a dual labor market where some workers advance while others are trapped at the bottom.
Legal systems were created to maintain this dual system, both domestically and internationally.
Globally, colonialism enabled Europeans to exploit people of color and their resources.
Domestically, slavery and later segregation served to keep certain groups in a subordinate economic position, exemplified by historical instances like the exclusion of black workers from certain labor unions.
Mexico has played a significant role in the dual labor market, with US mining companies employing a dual wage system that pays Mexicans less than white US citizens.
Historically, Mexicans and Chinese workers were viewed as temporary laborers, not potential immigrants or citizens.
Anti-immigrant sentiment and anti-Mexican racism have been directed at new European arrivals and the perceived racial category of Mexicans, respectively.
The nonimmigrant status of Mexican workers underlies the contradiction between the US as a country of immigrants and its restrictive immigration policies.
The first national-level attempt to implement employer sanctions occurred in 1973. These sanctions were later created by the 1986 Immigration Reform and Control Act (IRCA).
Employer sanctions can be suspended to maintain a large, exploitable workforce. This was evident after Hurricane Katrina, where migrant laborers were needed for cleanup and rebuilding efforts.
Companies sometimes relocate within the US to access cheaper immigrant labor and benefit from lower taxes and regulations.
Undocumented migrants perform essential work but the system is unjust, creating legalized inequality that mirrors a global system.
The border is used to justify this system globally, making exploitation seem natural.
Illegality functions similarly domestically, marginalizing workers and producing cheap goods and services.

Criminalization and Social Constructs

Mass incarceration is a system where black people, Mexicans, and other Latin Americans are systematically criminalized.
Although seemingly color-blind, the system targets people of color by criminalizing them and then discriminating based on their criminal status.
This creates a new form of discrimination based on criminality rather than race.
Nicholas De Genova argues that laws were intentionally written to create the status of illegality to maintain an exploitable workforce.
Social and economic systems extend beyond national borders.
Social constructs: Countries, sovereignty, citizenship, and laws are social constructions used to justify differences in legal status.
Europeans have historically used religion, race, and nationality to categorize people and justify social inequalities.
Status inscribed in law is automatically used to justify inequality.

Historical Use of Status and Laws

Status has been used to force those defined as inferior to work for those defined as superior, relegating low-status people to society’s worst jobs.
The assumption that countries can decide who crosses borders and treat people differently based on assigned statuses is rarely questioned.
Laws making immigration “illegal” evolved from older ideologies of European domination.
Ideas about mobility played a key role in ideologies of European superiority that justified conquests and colonization after 1492.
Even seemingly equal laws can reinforce existing inequalities if the social context is unequal.
Critical legal studies argues that law is never neutral and reflects power relationships.
Europeans used laws to assert superiority and deny freedom of movement to others.
In the 21st century, laws still keep certain people in low-wage, undesirable jobs, but force has become more subtle.
Work is now defined as a privilege for those of superior status rather than a burden for the inferior.
Laws appear to prevent people of inferior status from working, but enforcement is selective.
Late 20th-century laws claimed to reserve jobs for the privileged rather than force them upon the unprivileged.

European Ideologies and Conquests

Europeans developed ideologies that granted full humanity to white Christians but denied it to others.
Europeans believed they belonged everywhere and forcibly relocated non-Europeans to serve their needs showing that non-Europeans were not capable, nor had the right, to make their own decisions about residence or movement.
Native Americans were transported to mines, haciendas, or off lands, while Africans were transported to work for Europeans.
Ideas about mobility were based on religion.
By the 1700s, white indentured servants were replaced by African slaves, and laws were imposed to protect white privileges and access to slave labor.
By the 1700s, free blacks became a segregated and separate caste in American society.
Spanish Christians transported and enslaved Africans based on their non-Christian status.
They debated the humanity of Native Americans, deciding they were capable of conversion and not to be enslaved, though considered to have impure blood.
Religion was key for the British in defining themselves and justifying conquest and exclusion.
Legal scholar Aziz Rana argues that the conquest of Ireland was a rehearsal for British conquest in the Americas.
In Ireland, the British refined their rationale for land expropriation based on cultivation and religious adherence.
In the US, rights shifted from being based on religion or race to citizenship status, with racial restrictions replaced by national restrictions.
John Torpey wrote that a monopoly over legitimate means of movement established nation-states' claims to sovereignty.
Hiroshi Motomura’s “intending citizenship” refers to privileges granted to white immigrants. Although not formally citizens, by virtue of their race they were accorded privileges of access to the benefits of society, including the right to vote and virtually automatic naturalization.
Aziz Rana distinguishes formal citizenship from “free citizenship,” available only to whites.
Mexicans and blacks were accorded formal citizenship but denied the right to vote, own land, and move freely.
New immigrants from Europe were accorded all of those rights, even when they were not yet formally citizens, thus race frequently trumped nationality in determining access to rights.

Legal Subjectivity and Global Apartheid

Legal subjection by race and immigration/citizenship status coexisted in the 20th century.
Formal abolition of racial discrimination dismantled legal structures but did not create actual racial equality.
Nationality stood in for race, and citizens of countries like China lost their right to immigrate.
If citizenship were to be granted to all by birth, as per the Fourteenth Amendment, then race could no longer be explicitly used to deny citizenship.
Nationality could once again be mobilized as a method of exclusion.
The status of illegality affected more individuals by the early 2000s than the Jim Crow system at its height.
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 is evidence 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.
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.”
Restricting freedom of movement, as in apartheid, enforces domination and maintains inequality.
Europe—Motomura’s “intended” citizens—were accorded all of those rights, even when they were not yet formally citizens.
Race frequently trumped nationality in determining access to rights.

Illegality and Labor

Illegality enforces a dual labor market and keeps 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.
On a global level, patrolled borders prevent the poor from escaping poverty and accessing opportunities in wealthy countries.
Global apartheid is enforced with walls, stadium lights, and guns and never talks about race, only nationality.
Employers initially used state power to force people into working for them.
Industrialization and colonialism separated people from their lands, leaving them no option except wage labor.
Some sectors of the labor force gained access to consumer society privileges, while others remained marginalized, creating a dual labor market.
Lack of alternatives, rather than force, motivates workers in marginalized sectors.
Work had become a privilege.
Naturalized status hides the human agency that forces workers into this marginalized status.
Illegality serves a crucial role in postindustrial societies' economies and ideologies.

Freedom of Movement and Third World Imprisonment

Citizens of the former colonial powers (and also, generally, postcolonial elites) can travel freely.
These same countries routinely deny entry to people, especially poor people, from their former colonies.
Freedom to travel is still a privilege reserved for those in control.
Holders of US passports tend to believe that freedom to travel is their birthright.
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.
Many citizens of the United States assume that anyone can get a visa to travel legally to any country.
Structural factors, mostly related to the economy and labor needs, have shaped migrations for centuries.
The Caribbean islands in particular fall into this category.
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 enforce 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.

Evolution of Immigration Laws

The 1903 Immigration Act extended the period of potential deportability, in 1917 this was extended to five years.
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.
The 1907 Immigration Act first made entering without inspection itself a violation of the law.
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 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.
The act did not apply to Mexicans.
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.
In 1929, entry without inspection became a misdemeanor, punishable with fines and jail time.
The registry system set a precedent—that a period of residence outweighed the technicalities of inspection, or lack of inspection, upon entry. 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.

Restrictions and Exemptions

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 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.
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.
Most Europeans who arrived in the United States prior to 1924 did pretty much what immigrants from Mexico and Central America did a few decades later: they gathered their families and their belongings, put together the money they needed for the trip, and embarked on their journey.
Mae Ngai argues that with so few restrictions on immigration in the nineteenth and early twentieth centuries, “there was no such thing as ‘illegal immigration. ’ The government excluded a mere 1% of the 25 million immigrants who landed at Ellis Island before World War I, mostly for health reasons. (Chinese were the exception, excluded on grounds of ‘racial unassimilability. ’)
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.
The 1924 law created the concept of illegality by making entry without inspection illegal, and making deportability permanent by eliminating the statute of limitations.
Before 1924, what made a person deportable was his or her membership in an excluded class; furthermore, after the person had been in the country for a period of time, his or her presence became legal despite prior excludability.
Between 1935 and the late 1950s, European immigrants without documentation were allowed to adjust their status by reentering through Canada to obtain legal permanent residency.
After 1940, immigrants who could show that their families would suffer “serious economic detriment” could have their deportation suspended.
All of these provisions applied only to European immigrants, since they were the only ones allowed to immigrate under the 1924 exclusions. (Mexicans were still crossing the border easily, but they were not considered immigrants.)

Terminology and Population Shifts

In 1965, the United States abandoned the differential quota system, replacing it with a new one that imposed equal quotas on all countries.
This meant that, for the first time, Western Hemisphere migrants—primarily Mexicans—were classified as immigrants.
This change essentially created illegal immigration from Mexico and Central America, but without all of the loopholes and exceptions that had allowed Europeans to adjust their status.
The earliest references are to “illegal immigration,” which referred to the movement of workers from China; they appeared immediately after passage of the 1882 Chinese exclusion.
After World War II , the term “illegal immigrants” focused on European Jews entering the British mandate in Palestine then become attached firmly to workers from Mexico, which became known as “wetbacks” crossing the Rio Grande.
Only after 1965 did the term become common in a wide array of writings by journalists, scholars, and Congressional representatives.
The undocumented population in the United States increased rapidly between 1965, when the first restrictive measures were passed against Mexican and other Latin American immigrants, and the beginning of the twenty-first century.
By 1980, there were from 2 to 4 million undocumented immigrants in the country, rising to 8.5 million in 2000 and reaching a peak of almost 12 million in 2007.
In 1970, the 9.6 million Hispanics in the United States made up 4.7 percent of the population. Four decades later, the Hispanic population had jumped to 50.5 million or 16 percent of the population.
Estimates for the undocumented Mexican population rose from 1.13 million in 1980 to 2.04 million in 1990 and 4.68 million in 2000, rising to a high of 7.03 million in 2008 before stabilizing and declining to 6.8 million in 2011.
Together, Central Americans and Mexicans made up three-quarters of the growth in the undocumented population between 1980 and 2008.

Mexican Migration

The largest group of undocumented people in the United States today comes from Mexico.
Many are from the central-western Mexican states that have been sending migrants northward for over a century, although increasingly migrants hail from heavily indigenous regions in the south of the country that had seen little out-migration before the 1990s.
Over half of Mexicans in the United States are undocumented.
Surveys taken of Mexican migrants in Mexico (i.e., having returned from the United States) show another side of the story: that lots of undocumented people return home after being in the United States.
The first Mexicans in the United States did not cross any border; rather, the border crossed them.
Railroads played a crucial role both in moving Mexicans to the border and into the United States and in creating a demand for Mexican labor.
US aid and investment, then, directly uprooted Mexican peasants, recruited them into a migrant labor stream, and initiated the social and cultural changes that led them to leave their homes and work for cash in distant lands.
US influence deep inside Mexico that set into motion the process of out-migration.

Border Control and Labor Exploitation

The Border Patrol was created to prevent the entry of alcohol and Chinese.
Several scholars argue that the system worked well for farmers who needed migrant workers because deportability was useful for labor discipline.
Mexican workers could still cross the border easily, but because they became more deportable, the new laws also made them more exploitable.
The Bracero Program was accompanied by a “massive bilateral deportation policy” that increased deportations to some seven hundred thousand by the early 1950s.
Operation Wetback snared many individuals, including US citizens, simply for being ethnically Mexican.
Attorney General Herbert Brownell distinguished between “the illegal Mexican migrants known as ‘wetbacks,’ and the legal Mexican nationals known as ‘braceros.

Changing Laws and Legalization

The 1965 Immigration Law placed numerical limits on Mexican migration.
The abolition of the Bracero Program failed at creating better, more equal treatment for Mexicans in the United States.
The number of Mexican migrants who lacked the green card and were therefore deportable rose from 88,823 in 1961 to over a million a year by the mid-1970s.
In 1986, the Immigration Reform and Control Act (IRCA) contributed to illegal legalizations which are people using false documents attesting to their status as agricultural workers to apply for, and obtain, legal status in the United States.
The 1986 law also for the first time made it illegal to employ a worker without proper documents.
Meanwhile undocumented migrants, once in the country, began to extend their stays and send for their families, since the long-standing circular migration patterns were disrupted by the border militarization.

Case Studies: Hernandez Cruz Family

The father, Juan Miguel Hernández Pérez, began the family’s migration tradition in the middle of the century, when he was recruited to work in the Bracero Program.
Juan Hernández Cruz’s younger sister, Samantha, followed her brother in 1988, bringing their seriously ill mother with her.
The ins and outs of this family’s immigration history are more typical than unusual for Mexican migrants. Their story, and the long history behind it, helps to explain why Mexicans supposedly choose to come to the United States “illegally.
The coyotes that offer to take them across the border may be considered smugglers under US law, but to the Mayans Foxen studied, they were no different from the labor contractors who had been forcibly recruiting them—legally—for generations.
Instead of going to the Pacific coast to work on plantations, they were now being sent to la costa del Norte to work in jewelry factories.

Migration and Labor Conditions

One campesino (peasant farmer) told her that “he had heard that the INS had not yet arrived in Providence, though they were said to be close (thus likening them to the army or guerrillas).
Few had even heard about the debate to overhaul immigration laws and possibly open a pathway to citizenship for immigrants living illegally in the United States,” he commented.
Guatemala’s highland Mayan populations have been coerced by the winds of the global economy.
They have had to leave their homes and their families to do the hardest, dirtiest, and lowest work for the benefit of others.
They have been discriminated against socially and legally.
Their migration to the United States is only the latest phase of this long history.