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Noncitizenship and the case for illegalized persons

Joel Sati, PhD Student, Jurisprudence and Social Policy | January 24, 2017

-ize (verb suffix): cause to be or conform to or resemble…cause to be formed into… (2): subject to a (specified) action…treat according to the method of…  — Merriam Webster

Part I: Introduction

As a person, a precariously situated immigrant and an activist, I have been obsessed with the words immigrants use as well as the words used to talk about them. Immigrants speak as DREAMers while being talked about as illegals. Immigrants fight for their families while being seen as an alien invasion. No human being is “illegal,” the left argues, merely “undocumented.” As is evident, the focus in contemporary immigration narrative construction has largely been on those two terms. The debate has received extensive treatment in movement meetings and journalistic style guides, and is a distinction that gains new significance in a Trump administration.

In going against the grain, I do not think that “undocumented” is better than “illegal.” At best, it is less bad, but even that assumes only one set of relevant criteria of assessment: that we can invoke legality to make claims about humanity. Arguing that these terms ultimately fail, I propose an alternative lens that avoids their pitfalls: illegalization.

A note before I begin: though “illegalization” or “illegalized” — I interchange between them — might look eerily similar to “illegal,” I am confident that I have made a case for their separation as distinct concepts in the words that follow. But before I make the case for illegalization, I will first go into why “undocumented” and “illegal” ultimately fail, in that order.

Part II: ‘Undocumented’ as an ineffective stopgap

The term “undocumented” is the term-of-art for people in the left to refer to noncitizens without authorization. In public debate, immigrants and their advocates argue for “undocumented” at the expense of “illegal,” which dehumanizes immigrants so called. More importantly, “illegal” as a term for noncitizens commits an error of attribution (being forced to migrate without authorization is conflated with choosing to migrate), while attaching a grave shame reminiscent of biblical original sin. Illegals choosing to enter illegally indicates a corrupt moral nature, one that forever prevents the illegal from becoming a citizen.

“Undocumented,” in direct contrast, does not commit such an error of attribution, nor does it attach anything resembling original sin. An undocumented person, as the term implies, is no different from any documented person save the fact that the former has no papers. This is a gentler term than “illegal” — it makes no claim about the legal or moral status of a person. It is supposed to show citizens that the only thing separating us from them is a matter of circumstance; I happen to not have papers, but you do. Though it does not make the claim all on its own, the term’s force lies in its facilitating an argument for the common humanity of all people. In that sense, undocumented has been a politically effective term, facilitating advance for many (though not all) of the people who fall under the label.

The shortcoming of “undocumented” as a term stems from the very circumstance it illuminates. Consider the following example. When DACA came out in August 2012, I and other activists at CASA de Maryland would participate in helping families apply, and they brought piles and piles of documents to satisfy DACA’s evidentiary requirements. So, it is not that they had no documents; it is that they did not have the right ones. Now it is probably instructive to speak of having the relevant documents, but “undocumented” leaves open the idea that American — and, by extension, Western documents should be desirable. Unlike “illegal”, whose error happens at the start of the immigrant experience, the error of “undocumented” becomes apparent when we are confused about where the end of the immigrant experience is, or ought to be.

But there exists a deeper critique of the term, which I will now go into. What if we did get papers: then what? There is immense historical evidence that even if you do have the formal status of citizenship, that does not guarantee that the state will ensure your substantive enjoyment of the status and its benefits. Black citizens get killed by police, Black citizens’ votes are suppressed, Latinx people are presumed as illegal, so on and so forth. By tying the issue of non-citizenship to papers and status, the term contributes to myopic politics and insufficient normative objectives. Though “undocumented” acknowledges humanity on its face in a way “illegal” refuses to, the fact that it is open to confusing circumstance (the relevant documents) with normativity (the right documents) makes it a silent but dangerous term in our political environment.

Part III: ‘Illegality’ and its unforeseen delimitations

“Illegal” is a contentious term in American immigration politics. It is the foil against which “undocumented” exists, and the mirror against which “undocumented” sees itself. What motivates opposition to “illegal” as it relates to noncitizens so designated is best captured in Elie Wiesel’s well-known quote that “No human being is illegal.” It is important to note that I read him as stating this normatively, i.e. no human being ought to be illegal. But even taking that into account — and this is where I get controversial — human beings are actually illegal. Breitbart does not talk about “illegal immigrants” — they talk about illegal immigrants. When the Supreme Court hears a case on those without authorization, they refer to them as illegal aliens, not “illegal aliens”. The reason why I do not use scare quotes is precisely because the very institutions that determine and reify illegality do not. Illegals are not some theoretical phantasm; there is such a thing as an illegal. In other words, in legal systems such as our own, human beings are illegal as a matter of social fact. The illegal is a social construct, and a very real one at that.

The is/ought distinction is important if we want to pay attention to the use of “illegal,” especially in the phrase “illegal alien.” The term “alien” is a term-of-art in American immigration law, and refers to a foreign individual. This has been the case since the late 18th century. However, in the mid-20th century, known in science fiction circles as its Golden Age, writers appropriated the term to discuss extraterrestrial, nonhuman beings since it does an impeccable job of capturing foreignness. Given the interchange of law and culture in this example, the term “alien” not only carries the legitimacy reinforced by case law, but also carries the valences attached to it by the prevailing culture. Keith Cunningham-Parmeter argues that such terminology makes it easier to conceive of immigrants as essentially foreign and nonhuman, contributing to their marginalized position. William Rehnquist, in his dissent in Sugarman v. Dougal (1973) while an Associate Justice of the US Supreme Court, writes that aliens are unlike naturalized citizens who have assimilated “to our patterns of living and attitudes, and have demonstrated a basic understanding of our institutions, system of government, history, and traditions.”

From such an analysis, illegalized immigrants become not only alien as a matter of phenotype; they become alien as a matter of understanding — citizenship is impossible for illegal aliens because they do not operate in the same cognitive, moral, or political space as citizens do. The urgency that derives from this characterization and its implications is that because common understanding between the alien and the citizen is unachievable, the American way of life is under existential threat.

The interchange of the unfamiliar and familiar within the two valences of the term “alien” is particularly interesting for this reason: the unfamiliar alien as nonhuman, foreign being is placed in terms of the legalized familiar, the alien as foreigner. Those who advocate for the expulsion of immigrants can draw on the legal import of the term “alien” while also drawing on its cultural import. Therefore, when immigrants object that no human being ought to be illegal per Wiesel, they are rebuffed by evidence — found in places such as legal precedent — that there are such things as illegals and that the law can, and does, talk sensibly about them. Alienage and illegality, through their reification in law, have proven a unique ability to conceptualize foreignness in both the legal, political, moral, and cultural consciousness. What “illegal” as a term should show us, then is that, legal institutions and those who have access to them manipulate the cultural valence and legal import of alienage and illegality to push protectionist and predatory immigration enforcement.

Let me present a final critique on “illegal” and “undocumented”. Like “undocumented”, the static nature of “illegal” is a reflection of the false dichotomies that such terms force immigrants and their advocates into; you’re either documented or undocumented, legal or illegal. The terms, and their dichotomous structure, is a brainchild of American politics, and more or less make sense largely when applied to it. To speak of noncitizens in other places around the globe as “undocumented” or “illegal” is not only unheard of, I would argue that it would not actually illumine their situation if we were to use these terms. In thinking about a term that is global in the sense that it is in the world though not of the world, I propose the term “illegalize.” To that I turn.

Part IV: Conclusion: The case for ‘Illegalization’

Having argued against existing terms to discuss noncitizens without authorization, I contend that they are neither illegal nor undocumented, but, as I propose, “Illegalized.” For this term to work, it must avoid the pitfalls that have doomed its predecessors. By being dynamic, transnational, and intersectional, I propose that those committed to social justice conceive of noncitizenship commit to think and act in terms of “illegalization.”

“Illegalization” works because the term indicates a marginalization of noncitizens that is ongoing; its dynamic quality is thus faithful to the noncitizen experience. Being illegalized is the product of a historical, social, and epistemic process, and noncitizens find themselves at one point of a continuum. Historic illegalization speaks to the many ways in which whiteness has violently regarded some people as not being human. Social illegalization indicates how noncitizens have been and are robbed not only of the ability to make sense of their social experience, but are also excluded from the public, social process where legal, moral, and cultural meaning is produced. This is why coming out of the shadows is an important part of the immigrant rights movement; to come out as illegalized is to question the very terms of your ongoing illegalization. Illegalization is an epistemic process because illegalized persons are not seen as people capable of knowledge. Illegalization in the epistemic sense also constitutes an ethical wrong in that it is permissible to disregard this capacity, one that is essential to how all persons view themselves.

Secondly, illegalization is trans-national. That is, illegalization is not defined in contrast to a particular legal or political situation. Refugees in Europe may not be undocumented or illegal, but they are illegalized. Thus, using the “illegalized” facilitates the global nature of the contemporary crisis of noncitizenship. This also facilitates a globally-oriented migrant movement, which I argue is better in the long run. Further, the fact that illegalization does not hinge on a particular legal system means that whether someone is illegalized is completely distinct from whether someone is illegal. When then-Presidential Candidate Donald Trump stoked fear via the prospect of Mexicans as rapists coming through the Southern border, the people he is talking about are not illegal immigrants. But their capability to be rapists—or, conversely, their incapability to be as civilized as citizens are—renders them illegalized regardless of if they undergo the process that would make them illegal. Further, when he promises to deport 3 million “criminal immigrants”, those with criminal records might be illegal in the operative sense, but everyone who looks like an immigrant is illegalized—that is, they are guilty until proven innocent (and that bar for innocence always moves).

As a solution, I would argue that if immigrant rights advocates become aware of the epistemic nature of illegalization, organizations should be unequivocally committed to prioritizing how illegalized people both make sense of their experience and solving the issues illegalized people have in articulating their experience. Further, justice gains renewed importance as a matter of narrative, countering the DREAMer/good immigrant/bad immigrant tropes that have stifled the movement and prevent oppositional organizing even in a Trump presidency. The language of illegalization has the benefit of illuminating situations of noncitizenship around the world, while its independence allows the term to be particularized based on context.

Finally, focusing on illegalization better facilitates intersectional discussions about marginalization at large; thus, situating illegalization vis-à-vis legal status is but one kind of illegalization. Think of other axes of oppression: Trans people are illegalized, women are illegalized, Black people are illegalized, non-binary people are illegalized, First Nations people are illegalized—the list goes on. Still, all are illegalized in different ways, and to different degrees. Speaking in terms of illegalization makes it more apparent that immigrant justice, trans justice, and racial justice are inextricable. Yet it still can retain its roots in immigration in that legality/illegality can and does exacerbate these intersecting oppressions. For academics such as myself, developing and discussing work in terms of illegalization demands an interdisciplinary response to the problem of noncitizenship—the central issue of our time.

The above is only a sketch, and there is more to be worked out here. Nevertheless, I feel safe in contending that a common language among illegalized people is important for a sustainable movement toward justice that exposes, yet is not bound by, the very borders which have determined humanity for much too long.

AUTHORS NOTE: I am indebted to Amy Lin of the Ethnic Studies department here at UC Berkeley for the conversation that sparked the transformative change in my thought, which resulted in this article.

Comment to “Noncitizenship and the case for illegalized persons

  1. Borders are present everywhere in the natural world.
    Most species adhere to borders/boundaries whether enforced by physical force or defined by physical barriers such as streams, cliffs, temperature, etc.
    The body has many boundaries/borders, perhaps the most important being the blood brain barrier structure.
    Philosophizing against borders/boundaries is simply an intellectual game that attempts to create an alt-reality to the natural, actual world.
    A much more productive effort would be to address those who were brought to this country as children and who have lived honestly (DACA).

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