The path to illegalization and the invisibility of the state

Mariame’s post (linked here) on anti-blackness  prompted some further reflection on militarization and also on merit-based immigration, extending the question of who and what is rendered invisible. One of the key questions mentioned in her post had to do how anti-blackness operates to frame the relationship between race and migration. Mariame received many comments on the facebook note, including suggestions for a number of texts that provide further analysis into how the figure of the “hard working immigrant” and the tropes of the “nation of immigrants” reinforce long-standing racist stereotypes. In a short text for AREA, I tried to deal with the ways that immigrant rights activism often reproduces this rhetoric, not only rendering invisible the colonial project as an ongoing process but also by working to produce the myth of undifferentiated arrivals that erases racial subordination. In other words, we do not all arrive under the same conditions. And we are not all “white on arrival”. Also, several of my organizer colleagues are outspoken about this within the movement, although there is less bibliography to point to since writing is not the primary practice; for example, the No Name Collective has offered this critique in several public workshops and discussions (most directly in an event at Mess Hall, I hope to find the audio recording of this and upload here whenever possible) about how claims such as “we are not criminals” is not a rejection of criminalization, but a claim to respectability and an attempt to become racialized as white, or at the very least to appeal to dominant White understandings of criminality. Some organizers are also keenly aware of the embededness of large and powerful immigrant rights NGO’s within the Democratic Party political machine — the political economy of the most influential political elements of the “movemenent”, along with the value of the Latino vote and the financial power of Spanish language mainstream media have made the immigration issue a specific kind of “Latino” electoral politics. While we have been active in critically analyzing migration policy as an expression of white supremacy in so-called post-racist America, this intervention reminded us that it is not merely racism we must speak about, it is also specifically anti-blackness. We need some teach-ins!


In addition to the resources offered by folks who commented on Facebook — see the series of links under resources in the sidebar —  I wanted to begin with a quote from the work of Nicholas de Genova

“although conventionally considered a ‘natural’ or even inevitable response on the part of sovereign states exercising their prerogative, if not obligation, to control their borders and regulate entry based on membership, deportation is in fact an expression of a complex sociopolitical regime that manifests and engenders dominant notions of sovereignty, citizenship, public health, national identity, cultural homogeneity, racial purity and class privilege.”

De Genova’s work is specifically focused on the deportation regime as an articulation of the nation-state within the circuits of global capital. Deportation is a global regime, but it is constituted via practices, mechanisms and discourses that are highly specific in each country and which function to reproduce and actively create a social order based in historically specific forms of domination and subordination, under the guise of security.

De Genova’s work has also suggested that asking questions about who and what is rendered invisible in the debate can also be accompanied by asking: how certain figures (of the “illegal migrant” for instance) are made to be hyper visible, how attention is deflected away from the actions of the state and onto the actions of migrants, away from structures and onto the people — and i think in this law, specifically, onto the individual.  Three sections of the law are useful examples of this I think: the “Congressional findings”, the provisions on “Border security” and the example that Mariame refers to directly: the merit based system.

Finding what we are looking for

Laws naturalize the perspective of the state such that it becomes the only possible framework, eliminating all others under threat of punishment — all other perspectives, understandings or ways of being remain either outside of the law or are explicitly outlawed, explicitly illegal. Most people today would not question the existence of borders, or of the guns that defend them. Instead, as a result of a long historical process, borders are constructed and assumed as a necessary and inevitable reality — as though given, like forces of nature or divine law. In naturalizing the border and the mandate to “protect” it,  laws place the making of the state in a black box, so that it becomes impossible to question it as a construction within specific conditions. The only thing remaining in question is the action of the migrants.

The text of this bill (have you read it?? ) begins with a section called “Congressional Findings”. The text is so transparently propagandistic and so idiotic that it is difficult to read it aloud to anyone without getting a laugh. A very nervous laugh:

“We have a right, and duty, to protect our borders and to keep our country safe and prosperous. As a nation founded, built and sustained by immigrants we also have a responsibility to harness the power of that tradition in a balanced way that secures a more prosperous nature for America” ..”in order to qualify for the honor and privilege of eventual citizenship, our laws must be followed. The world depends on America to be strong — economically, militarily and ethically….” “illegal immigration… which in some cases has become a threat to our national security”…

In the hype and rhetoric surrounding “debates” about the law, one never asks whose notion of security, or whose prosperity? One never asks why is it not the other way around? why not consider the state a threat to the security of migrants?  One never asks why do some have their citizenship assumed, while others must earn it? By whose authority is there such a thing as unauthorized crossing, or unauthorized presence ? Terms like unauthorized, undocumented or illegal come to qualify people and their actions — as though they are a result of people’s actions and not a result of the actions of the state. Immigration laws are directed at illegalizing people, and yet they put the process of this illegalization in a black box. The only thing remaining in question is how to deal with this illegalized population in the most “efficient” way.

A few months ago, when we were developing our analysis of DACA (see here), No Name Collective proposed a conceptual shift. As media hype was advertising Deferred Action in relation to legalization, we analyzed the policy by remembering that deferred action was actually an uncertain pit stop on path to deportation — from this perspective, what was advertised as a relief program could be seen as an expansion of enforcement. A similar approach could be useful here. Though the bill is touted as offering a pathway to legalization, perhaps it is more useful to read it as part of a process of illegalization — in other words, instead of assuming that some migrants are legal and some are illegal, that there is some kind of natural distinction between “authorized” presence  and unauthorized presence, we can remember that these distinctions are always created by the law and are not in themselves natural, inevitable or given. Perhaps we can develop our own “findings”  by looking precisely among the things we are not supposed to look for, at what we are not supposed to see: the law as pathway to illegalization.

Out of the shadows and into the streets database

The portion on Border Security can be most easily re-read in this way. It establishes the relationship between a series of steps that promise a conditional so-called path to legalization for some (which is less inclusive and much more uncertain than it sounds), but which is contingent or “triggered” by a series of measures that expand enforcement against all others. In other words: the enforcement is guaranteed; the legalization is not. The “triggers” include: increased militarization of the Southern border region (drones, extra personnel, incentives for local and tribal police cooperation, integration with Department of Defense and National Guard, double and triple border fences and on and on) and other measures deemed necessary by DHS until there is a self-determined 90 percent “effectiveness rate”; the implementation of EVerify as compulsory on a national scale; an electronic exit system that collects visa and passport data on all entries and exists at air and sea ports of entry.  The bill also includes significantly increases the prosecutions for “unauthorized” border crossings, as well as expanding the penalties for the “crime” of crossing, legitimizing an increased tendency to treat immigration as a criminal and not civil matter. It also expands the discretionary powers of the Secretary of Homeland Security (can someone please do a teach-in on the history of judiciary power and immigration authorities??).

But illegalization is far more complex than these obvious forms of direct exclusion and naked violence.  It also involves forms of subordination through conditional inclusion. This means guest worker programs, for example, more appropriately understood as illegalization than legalization. The bill also invents a new kind of status called Registered Provisional Immigrant (RPI) which involves registering, tracking, managing and pacifying entire populations with a deceptively nice looking carrot. This status operates according to a double negative: one is not a lawful resident, one is simply provisionally  “not unlawful”. It does not grant rights, protections and guarantees in front of the law, it is probationary and describes a diminished personhood or a non-personhood. It does not in any way alter the conditions of deportability that all non-citizens are exposed to. It is a status that migrants are made to compete for as it functions implicitly via the differentiation of low vs high priority for the purposes of deportation.  It keeps people registered, in the system and in a protracted state of precarity, during which any encounter with law enforcement can jeopardize their status — and RPI can be revoked by DHS at any time. Each of these aspects individually deserve closer attention — taken together, they create the conditions for increased competition and stratification among immigrant categories, a more vulnerable population, more efficient surveillance and management of the exploitable labor pool for various economic sectors in the interests of capital, and the expansion of enforcement in a number of significant ways beyond those immediately apparent in the “security” section. I hope to write a lot more on some of the more complicated aspects of the Registered Provisional Status invention (especially the “registered” part) as well as the ways that stratification works to give few a set of advantages while implicitly and explicitly rendering all others available to increased enforcement, criminalization and punishment. In other words, even in the portions of the bill that deal with the so-called rewards (provisional statuses, STEM visas, DREAM Act and blue cards), one can ask: how does a bit of relief for some actually work as part of the illegalization process?

For now, I would like to return to what Mariame mentioned in her post: the elimination of the diversity visa lottery and the introduction of a merit system. I want to note that the merit-based system is seen as a new paradigm for the future of immigration policy.

This change echoes similar shifts in implementing what sound like racially neutral policies in other areas — such as socio-economic tiers in Chicago Public School lotteries for instance. Of course a merit system is not racially neutral, and will exclude poor people of color from around the world, with a disproportionately large effect on immigrants from African counties, as Mariame pointed out, in the absence of a diversity lottery. Another effect of the merit-based paradigm is to increasingly frame the question of legality and illegality in individual terms, so that if you do not immigrate according to the “legal route” it your own failure. This treats  the politics of migration as though it is about the choices, accomplishments and actions of the individual and not about systemic economic and political factors that render some populations employable in hi-tech areas while others available for exploitation and non-status workers in low-wage sectors, and still others more valuable as captive bodies. Instead of framing migration as  a symptom of a global economic and political system, the merit based paradigm recasts the “problem” as the spectacle of an individualized competition among migrants.