How did we get here? Chinese Exclusion Act buildup (1848-1872)

When co-blogger Chris Hendrix started off a series a couple of years ago on the origins of immigration restrictions, he fittingly began with the Chinese Exclusion Act (1882), looking at the arguments made for the act at the time. He examined them both the evidence available at the time and the evidence that has emerged since then. In a subsequent post in the series, I briefly examined the early years of the implementation of the Chinese Exclusion Act (1882-1910). While both these posts examined some aspects of the Chinese Exclusion Act in some detail, there is a lot about the history and aftermath of the Act that went unexplored.

Recently, I had the opportunity to create a number of Wikipedia pages on topics related to the Chinese Exclusion Act: Chae Chan Ping v. United States, Angell Treaty of 1880, Chy Lung v. Freeman, Fong Yue Ting v. United States, and others. As I worked on these pages, I familiarized myself more with the situation surrounding the Chinese Exclusion Act. I became more convinced that a more in-depth look at the Chinese Exclusion Act would help shed light on the modern border control regime.

I therefore intend to do at least three more posts on the subject. The current post will focus on the key developments and tug-of-wars that occurred until about 1872 (with passing mentions of trends that would continue into the late 1870s). A later post will discuss the more eventful years starting 1873. The year 1873 was marked by the Panic of 1873, the beginning of an economic downturn in the United States. The economic downturn was likely a contributing factor to increased anti-Chinese sentiment over the coming years, and key legislative and judicial developments related to immigration happened beginning 1875.

This post looks at the “keyhole solutions” used by state and local law enforcement in California before the federal government got on board with significantly restricting immigration.

Limitations of my analysis

Perhaps the biggest limiting factor to the quality of my analysis is the fact that such little data is maintained about that time period; in particular, about how ordinary people (both Chinese and the others in California) perceived the situation at the time. There is no Twitter, Tumblr, or Instagram to gauge public sentiment. There was no equivalent of Gallup polls. There were few newspapers and even those that existed don’t have all their archives available to peruse. Therefore, apart from actual legislative or judicial records, the main guidance present is various summaries provided by historians, who are in turn relying on observations penned by a few people, who may in turn have their own biases.

The lack of good resolution on who was thinking what leads to broad-brush generalizations in many parts of the text. I talk about the “Chinese” and “whites” but both groups were probably quite heterogeneous in terms of their habits, attitudes, beliefs about the other group, legislation they supported, etc. A more able historian with more time to research the issue and more space to devote to describing it would be able to pick nuances better. As such, please take any general statements I make about ethnic groups below with a large grain of salt: they are a third-hand summary of very incomplete data examined through possibly biased lenses.

How my thinking has evolved

Writing this post has led to some minor updates in my thinking. Here is a summary, that you can read without having to read the whole post.

  • As I had previously noted in “Why was immigration freer in 19th century USA?”, there were no restrictions on immigration till the late 19th century (the Page Act of 1875 being the first federal regulation, and the Chinese Exclusion Act was passed in 1882). Even then, the first restrictions applied only to Chinese immigration. But I now see that the sentiment to oppose and restrict migration existed far in advance of actual restrictions, and the reason that it took so long to restrict immigration was mostly the federal structure of governance combined with the poor connectivity of California with the rest of the United States.
  • This post also makes me more confident of observations I had made in my post on South-South migration and the natural state: despite the virulent and hostile response to Chinese immigration in California, migration remained freer and arguably closer to a state-of-nature than it does in the modern world.
  • My feelings on “keyhole solutions”, and in particular, on the question of their feasibility and stability, have evolved a bit. I am now more convinced that they are not a stable equilibrium that placates those favoring restrictions. One reason is that some keyhole solutions, particularly those involving taxes and tariffs, can hurt migrants so much that their subsequent impoverishment makes them look even worse on social indicators to the rest of the population (a point related to what co-blogger Nathan alluded to in his post the dark side of DRITI). Another is that keyhole solutions need to be extremely punitive (at risk of impoverishing migrants and making them look worse) to make a significant dent in migration trends, to the level that would satisfy those who seek restrictions. Keyhole solutions at an intermediate level can generate revenue for government and can address rationally calibrated concerns about immigration, but they can’t really solve the public’s general aversion to migration. Keyhole solutions might work better in quasi-democratic settings. In quasi-democratic settings, not every individual policy choice is debated. Rather, as long as the quasi-democratically elected leaders’ overall performance meets natives’ expectations, they buy into the policy package despite not liking parts of it. A country like Singapore might be an example.
  • Seeing the effects of migration isn’t guaranteed to drive one in favor of migration. In the case of events prior to the Chinese Exclusion Act, in fact, exposure to Chinese migrants led people to oppose it. California, which experienced the Chinese first, turned anti-migration first. Later, when the Chinese arrived in the Eastern cities, anti-Chinese sentiment also spread there. This does not mean that exposure to migrants always leads to anti-migration sentiment, nor does it mean that such anti-migration sentiment is factually grounded. Rather, we have to keep in mind existing narratives and biases that have been developed, in addition to the characteristics of migrants and natives, and results on sentiment towards migration could go in either direction. I don’t think nativist backlash is inevitable, but writing this post has led me to somewhat increase the importance I place on it as a force to reckon with.

First, they came for the Chinese

John’s post on tearing down Chesterton’s fence offers a good bird’s eye view of how immigration restrictions originated worldwide. While researching the subject, I noticed that in at least two other English-descended countries (Canada and Australia) the first significant immigration regulations appear to have been explicitly targeted at the Chinese, as I noted in an Open Borders Action Group post.

The situation in Australia closely paralleled the situation in California. In both cases, large numbers of Chinese moved to the area around 1850 in search of gold. In both cases, resistance to Chinese started off with native miners and labor unions of “natives” (i.e., whites, rather than the indigenous population), but gradually spread to the rest of society. Continue reading “How did we get here? Chinese Exclusion Act buildup (1848-1872)” »

Update on the Open Philanthropy Project’s Work on Migration Liberalisation

[A draft of this post was reviewed by Alexander Berger, Program Officer for US Policy at the Open Philanthropy Project, and a number of changes were made to it based on his comments and corrections.]

UPDATE: The Open Philanthropy Project now has a page linking to their grants, conversations and other material related to immigration policy. Most of the Open Phil material on that page as of the time of publication of this post is discussed in this post.

As I start drafting this, it’s been exactly one year since my overview of the Open Philanthropy Project’s work on migration liberalisation was published on this blog. It’s time for an update, and the developments over the last year deserve a post of their own.

Lightning-speed recap: The Open Philanthropy Project (Open Phil) is a joint venture of the charity evaluator GiveWell and the philanthropic foundation Good Ventures. Good Ventures is in charge of donating Facebook co-founder Dustin Moskovitz’s wealth of several billion dollars over the lifetime of Moskovitz and his wife Cari Tuna, and its operations are overseen by Tuna. In contrast with GiveWell’s focus on identifying charities that can provide clear evidence of outstanding effectiveness, Open Phil investigates and funds work on charitable causes for which effectiveness is not as easily measured. Among the handful of focus areas chosen for their estimated positive potential, migration liberalisation has been given a prominent role from the beginning, and it has been and continues to be ranked among the most important causes involving US policy change.

My previous roundup described four grants that were awarded for specific projects aimed at furthering this cause. Extensive updates on three of those projects have since been published on Open Phil’s website, and two entirely new migration-related projects have been awarded grants. That’s six projects in total, which I will cover in this order:

  • Center for Global Development: Policy research and advocacy work
  • U.S. Association for International Migration, International Organization for Migration, and Protect the People: Increasing the availability of H-2 working visas for Haitian lower-skill workers
  • ImmigrationWorks: Advocacy work focusing on lower-skill migration to the US

The last grant described in last year’s roundup is neither about international migration nor about policy, and is more closely associated with GiveWell than with Open Phil:

  • Evidence Action: Empirical research on the scalability of seasonal migration subsidies, with hopes of creating a new Top Charity

And the two newcomers:

  • Niskanen Center: Research on immigration policy
  • New York University: A comparatively small grant to help fund a randomised controlled trial on the “comprehensive returns” of guest worker migration

Continue reading “Update on the Open Philanthropy Project’s Work on Migration Liberalisation” »

Open Borders Day 2016 round up

Open Borders Day is held annually on March 16. It is held to raise awareness on the usefulness of open borders as a development tool and to make the case of freedom of movement as a basic human right. Last year we released a manifesto, which you can still sign. This year several Open Borders Day events were independently organized in DC, Chicago, Philadelphia, Boston, San Francisco and elsewhere. You can still catch a few of them today – click here for venue details.

Off-Site Posts about Open Borders Day

The glorious lasting accidental liberalization by Bryan Caplan

How to argue for immigration restrictions by Jason Brennan

Open Borders Day 2016 by Chad Nelson

Migration: a human capability by Paul Crider at Sweet Talk, a cross-posting of an older OB post.

Some thoughts on open borders and conservatism by Ilya Somin

Open borders for conservatives by Fabio Rojas

Why Canada needs open borders by Fergus Hodgson

This listing will be updated throughout the day. Feel free to contact us via email or the OB facebook group if we miss any. We thank everyone for their participation.

Open Borders Day Idea #2: Write a Blog Post

Open Borders Day in on March 16th and several events are being planned to commemorate the date. Readers may wish to join in, but may not have the time or resources to host an event. One thing all readers can do is write a blog post about OB day.

OpenBorders.info is read by a large cross section of readers from all sorts of backgrounds. This means that if were to blog on OB day our collective posts would reach a wide audience. Even a short tweet would go a long way of promoting OB day.

Posts could be a short message informing friends and family that it is OB day and directing them to learn more about OB on the site, attend a nearby event, or sign the OB manifesto.

If you have the time to spare you might wish to elaborate on why you support open borders. Here are samples of previous OB day related blog posts.

We Are Not Aliens

This is a guest post by Steven Sacco. Steven Sacco is an attorney practicing in the areas of immigration law and public benefits law in New York City. Sacco is interested in challenging the borders from human rights and critical race theory perspectives. Sacco has previously written for Openborders.info.


 

“We are not aliens. We are human beings who lost their families.”[i] That was the response given during an interview of an unnamed person who was identified as an asylum seeker living in New Zealand in 2014.[ii] The sentiment was echoed by journalist and activist Jose Antonio Vargas, when he wrote in an L.A. Times article entitled “Jose Antonio Vargas: I’m not an ‘Alien,’” in August of last year:

The label “alien” is nothing but alienating. And when coupled with “illegal,” it’s especially toxic. The words seep into the psyche, sometimes to the point of paralysis. They’re dehumanizing.[iii]

Mr. Antonio Vargas’s and the New Zealand interviewee’s choice of words should give us all pause. Their words not-coincidentally mirror a statement made by Frederick Douglas in which he asserted the humanity of people of African descent in response to the pervasive and aggressive white supremacy of the nineteenth century: “We are Americans. We are not aliens. We are a component part of the nation.”[iv] In this century, the refrain has also been used to assert the humanity of LGBTQI persons, as in “We are not aliens, we’re people, and we have rights.”[v]

The border may be a fixed line on a map, but practically it is also an idea that produces “alienation and devastation on the material lives of immigrants,” regardless of their physical location. [vi] “[T]erritorial borders,” professor Ayten Gundogu writes, “end up creating divisions within humanity –in effect assigning asylum seekers and undocumented immigrants a narrower set of rights with very uncertain and fragile guarantees.”[vii]  For the person who crosses a border, that border in effect follows them into the interior of the country by tagging them with this inferior status; “alien” is merely the verbalization of the border that follows you around – “alien” is the sound the border makes when it latches onto a person like a ball-and-chain around their ankle. In mobile fashion, it continues to restrict the freedoms and rights of the person it clings to – the border robs them of employment, public welfare, the right to vote, etc. and threatens their deportation or the rending of their family.

The border also follows people around in the form of popular epithets, which can be efficiently hurled at migrants to harm them politically by supporting and legitimizing policies that marginalize or directly harm them. “Illegal immigrant,” like the word “alien,” is a way of verbalizing the border – excluding a person from society just as effectively as a physical line that is forbidden to cross. Language like “illegals,” “illegal immigrants,” or “aliens” are ways of verbally weoponizing the border.

“Illegals” and “alien” are slurs that verbally enforce the border by: (1) dehumanizing migrants; (2) legitimizing violence against migrants; and (2) functioning as an instrument for white supremacy.

“Alien” and “illegal” dehumanize

It’s hard to imagine a more direct way of insisting that you are a human being than to declare that you are not an “alien” being. It’s equally hard to imagine a more direct way of stripping someone of their humanity or more effectively draping a cloak of otherness over another person than to call them an “alien.” Not least of all because in English we also use “alien” to describe grotesque monsters from other planets,[viii] making it a synonym for a definitively non-human entity. Professor and feminist scholar Cheris Kramarae once wrote “feminism is the radical idea the women are human beings.”[ix] Cornell West echoed that idea: “The notion that black people are human beings is a relatively new discovery in the modern West.” [x] Mr. Antonio Vargas and the New Zealand interviewee remind us that “alien” is a way of denying a person’s humanity because they are not a citizen of the state in which they reside – and also insist we understand that the word promotes this lie.

The meaning of “alien,” like its colloquial counterpart “illegal,” is not simply ‘someone who is not a citizen or national of the United States,’ although that is what the law pretends it means.[xi] Law professor Michelle Goodwin, in her 2003 article discussing the history of the world’s most infamous epithet, “Nigger and the Construction of Citizenship,” explains how “nigger” does not mean black person, but rather black person plus, that is, black person plus the characteristics of being “indolent, lazy, oversexed, aggressive, deadly, heathenish and immoral.”[xii] Similarly, “alien,” does not just mean someone who is not a U.S. Citizen, but rather a non-citizen plus something else, and that something else is identifiable from the other words juxtaposed with “alien” and “illegal,” like “swarms,”[xiii] or “floods,”[xiv] or other words that describe migrating people as dangerous, criminal, undeserving, invading monsters – such as candidates for U.S. president who have compared non-citizens to rabid dogs,[xv] or grouped them as “rapists.”[xvi] Professor Goodwin reminds us that “the N-word was never simply a word. It’s users generated image and myth . . .”[xvii] and “alien/illegal” share this utility.

As such, the people who use the slurs “alien” and “illegal” to describe their neighbors are exercising deliberate efforts to tie citizenship to humanity and to reinforce the idea that having U.S. citizenship make you a human being, but lacking government-sanctioned immigration status, makes you sub-human. The term “illegal,” as in “illegal alien” or “illegal immigrant,” communicates that this person is per se guilty of a crime, not because of what they have done, but because of who they are. They have not just committed illegal acts, they are illegal beings. Just by being born they have trespassed against the state because they were not born in the right place. They were born wrong, their humanity is improper, their life is a crime. Turning someone’s very existence into a criminal act smacks of the thinking behind history’s genocides; if someone’s life is a crime, then their death may be lawful. That may seem hyperbolic when deporting a person to a relatively safe part of the world, but much less so in those instances where asylum seekers have been deported only to die as a result, or their deportation commenced with full knowledge that their death would likely result. Nobel Laurette Ellie Wiesel has not missed this connection between “illegal,” and the devaluation of human life, prompting him to use the phrase “no human being is illegal,” to draw a parallel between immigration restrictions and the genocide that turned the Laurette himself into a refugee.[xviii] For contemporary examples of how immigration and citizenship law can be used as a genocidal weapon against ethnic minorities, see Burma[xix] or the Dominican Republic[xx] today.

These slurs, it should not be forgotten, are protected by a thick shell of legitimacy by virtue of claiming status as a legal term of art. “Alien,” and its related but equally venomous term “illegal,” are in fact the common nomenclature to describe many human beings in the law.[xxi] Title 8 of the U.S. Code of federal laws, itself entitled “Aliens and Nationality,” uses the word “alien” in approximately 454 different sections,[xxii] and “illegal alien” is the norm among federal courts.[xxiii] This cover of legitimacy has convinced too many of us (lawyers especially) to regard the word as civil, even polite language. It is neither. It is a naked effort to construct otherness and to justify the criminalization of other people; a deliberate effort to justify brutality which is masquerading as harmless legal jargon.

People wishing to build support for cruel policy are very conscious of the power of these words have to inspire contempt among many. Frank Luntz, a conservative consultant, winner of the 2010 PolitiFact Lie of the Year award,[xxiv] and the Orwellian wordsmith responsible for the phrase “death tax” to describe the estate tax,[xxv] wrote in his 2007 book “Words that Work,” that[t]he label used to describe those who enter America illegally determines the attitudes people have toward them . . . never say: undocumented workers/aliens, instead say: illegal immigrants.”[xxvi] This conclusion is also not lost on Jose Antonio Vargas: “. . . language frames the political conversation. And more humane language can lead to more humane policies, and vice versa.”[xxvii] 

Dehumanizing language, it bears repeating, invites and justifies brutality. . .

 “Alien” and “illegal” legitimize violence

By striping a person of their humanity, “alien” legitimizing the brutality with which the law treats migrating people – it invites violence against migrant bodies. Much as other racial epithets were used to justify violence against people of color and their treatment as inferior beings,[xxviii] “alien” and “illegal” justify the use of violence of the state – arrest, detention, family separation, deportation – against migrating people and people born outside the United States. Law professor Kevin R. Johnson reminds us in his article on the subject[xxix] that using the word “alien” has real world consequences:

“The concept of the alien . . . helps to reinforce and strengthen nativist sentiment toward members of new immigrant groups, which in turn influences U.S. response to immigration and human rights issues. . . [xxx] [s]imilar to the social construction of race, which legitimizes racial subordination, the construction of the alien has justified the fact that our legal system offers noncitizens limited rights. Alien terminology helps rationalize the harsh treatment of persons from other countries.” [xxxi]  

In other words, these terms, like all slurs, are weapons. Jabari Asim, in his book “The N word,” demonstrates how the most infamous of racial slurs has been used for centuries as a means of spreading the idea of the inferiority of people of color in order to justify their subordination, writing “. . . the word “nigger” serves primarily – even in its contemporary “friendlier” usage – as a linguistic extension of white supremacy. . . helping to perpetuate and reinforce the durable, insidious taint of presumed Africa-American inferiority. . .”[xxxii] We know in fact that implicit racial bias, of the kind Asim is referring to, influences peoples’ willingness to justify violence against people of African descent.[xxxiii] The slur both justifies violence and reinforces that justification. In this way the slur is also a recruiting tool, convincing other would-be oppressors of the sub-human nature of the subject people in order to elicit the majority’s collaboration with and ascent to violence.

And like other slurs, “alien” not only justifies violence, but functions doubly as an unambiguous threat of violence. Professor of law Michelle Goodwin notes that “nigger” carries with it the threat of violence, likening it to a burning cross, or a clear use of the memory of Jim Crow lynching and police brutality to inspire fear and terror.[xxxiv] Professor Goodwin writes:

“. . . the use of racial epithets not only provokes hatred, but [] they also are words commonly associated with violence, and are themselves fighting words.[xxxv] Nigger . . . hovered below black lynched bodies and accompanied civilian and police brutality against blacks throughout the last century[xxxvi] . . . its use has accompanied physical and emotional violence[xxxvii] . . . the wounding power of “nigger” may be derived from the physical violence and social castration that historically has accompanied its usage.”[xxxviii]

When an elected official or other person talks about building a wall or deporting “the illegals,” [xxxix] they are not endorsing a policy – they are issuing a direct and explicit threat of violence against a specific person and their family. “Illegals” says ‘we will break down your door, hand cuff and shackle you in a prison and forcibly return you to poverty, hunger and war’ and is unmistakably a threat of pain against someone’s physical body – against their wrists and stomach and liberty and life. The “wall” is not a wall – for someone escaping gang war in Honduras or civil war in Syria, a border wall is an endorsement of the violence they are fleeing – it is to collude with their persecutor back home and join the open threat on their lives. “Illegal immigrant,” communicates support for the laws that make the slur-user’s threat credible, and in doing so compels memories of the trauma and violence of immigration detention and deportation in the same way “nigger”’ compels memories of the murder, torture and terrorism of lynching and Jim Crow. With horrifying subtext, the word terrorizes its subject. “Alien,” is designed to make people afraid, to traumatize, and to achieve the ultimate goal of any act of terror – self-policing on the part of the terrorized (often referred to as “self-deporting”[xl]) – and in so doing crush the free movement of people.

Actually, the law acknowledges the power of slurs to legitimize violence. Law professor Randal Kennedy, in his book “Nigger: The Strange Career of a Troublesome Word,”[xli] documents the ways in which the law and the courts have acknowledged the power of that racial slur to produce outcomes in court that lead to the physical harm of people of color. Professor Kennedy discusses case law in which the use of the n-word in court, by prosecutors or among jurors has been found to have prejudiced or to have had the potential to prejudice juries and courts as to their findings, resulting in prejudiced outcomes for defendants, even possibly the death penalty.[xlii]

Like other slurs, courts have likewise regarded “alien” and “illegal” to have the capacity to influence the likelihood that physical violence will be sanctioned against the people they refer to. While many courts have regarded the use of “alien” and “illegal alien” as acceptable, even unremarkable language,[xliii]others have declared them be derogatory or prejudicial to parties in a cases outside the immigration context.[xliv] In a 1983 civil negligence case, for example, the Fifth Circuit Federal Court of Appeals found the use of “alien,” and “illegal alien,” to refer to the plaintiff actually prejudiced the jury because “illegal alien” was an “incendiary and derogatory expression.”[xlv] The Court again reaffirmed this conclusion in 2013.[xlvi] This, nevertheless, is hypocritical coming from the Fifth Circuit, which, despite twice admitting to the terms’ prejudicial and derogatory nature outside immigration law, nonetheless uses them with abandon when adjudicating immigration law cases.[xlvii] One wonders just how incendiary and prejudicial the use of the terms has been upon the outcome of proceedings that determined whether violence would be inflicted upon the bodies of non-citizen people in so many immigration cases.

That “alien” and “illegal immigrant,” have been found prejudicial by courts means that the law acknowledges their power to convince juries or other persons that the people they refer to are more deserving of punishment, imprisonment or of death. These terms operate no differently upon law makers deciding immigration policy, or upon voters choosing lawmakers – than they do upon juries deciding guilt. In each case they justify or encourage the infliction of pain upon bodies born outside the borders of the United States.

It is, of course, no coincidence that one slur shares the qualities and powers of another, because both are engaged in the same racist agenda . . .

“Alien” and “illegal” function as an instrument of white supremacy

Many have shown how the immigration laws act as a proxy for racial oppression of people of color and how “alien/illegal” are coded language meant to announce the same.[xlviii] Just consider, for example, the way in which economics[xlix]and “security” are used as a proxy for racial exclusion in the visa waiver program – which makes entry for Europeans visitors and other white tourists far easier than it does for their darker skinned counterparts coming from non-Euro-American countries.[l] Or consider the frequency with which people in immigration detention experience racism and racial slurs in particular (one in four, by one account[li]), or the extent to which immigration detention itself contributes to the mass incarceration of people of color.[lii] Or, and this is perhaps most telling, the history of the first immigration laws, and indeed citizenship itself, all originally built upon racialized categories and systems.[liii] All of these reveal the immigration laws and the border to be tools of white supremacy.

Beyond this, however, immigration restrictions, and their associated verbal expressions like “alien” and “illegal immigrant,” nonetheless extend racialism and racial oppression even beyond bodies, cultures and languages of color, and into traits we may not typically associate with racialized thinking: locus of birth and nationality. While white people without documentation are undoubtedly shielded by their white privilege (white Irish without U.S. citizenship, for example, generally suffer deportation and detention at lower rates than people of color without citizenship, such as Mexicans without citizenship, for example[liv]), even with their white privilege shields held high, they are still sometimes subject to the brutality of “alien” and the marginalization and violence of the immigration laws. In this sense the racialism of immigration laws can extend beyond skin color, culture or language – and into locus of birth and nationality – casting the net of white supremacy across a larger number of people – and shaping an expanded form of racial oppression one might term American-supremacy, or maybe citizenship-supremacy.

Alternatively, but with equal accuracy, one could say “alien” extends the territory of white supremacy by merely assigning non-white-ness to non-citizens that would otherwise be labeled as white and assigned the privileges thereof. This may be a reversal of the process of white-washing that occurred with Irish and Italian immigrants, for example, in the 19th and 20th centuries.[lv] In this sense, the immigration laws are not merely a proxy for white supremacy – they are also an expansion of its power and territory.

Moving Beyond “Undocumented”?

The world is certainly not without its popular opposition to these slurs. Mr. Antonio Vargas recently launched a campaign aimed at getting 2016 presidential candidates to drop “illegal immigrant” from their lexicon using the hashtag #WordsMatter.[lvi] Occasionally a court will actually condemn the use of the term “illegal alien” outright,[lvii] or qualify that it’s use of “alien” is not meant to be pejorative[lviii] (albeit a qualification that should generally alert the court that the term is pejorative whether they want it to be or not, as in “I’m not saying this in a racist way, but . . .”). Some law makers have also condemned “alien” as derogatory, including Texas U.S. representative Joaquin Castro,[lix] California governor Gerry Brown and California’s entire labor code, which recently purged itself of the word.[lx]

In its place many have shown support for the term that may dehumanize the least: “undocumented,” a word preferred by Jose Antonio Vargas to describe people in his situation.[lxi] Many others agree, including Hillary Clinton[lxii] and the Society of Professional Journalists,[lxiii] for example, acclaimed feminist Rinku Sen,[lxiv] the faculty of Washington State University,[lxv] entrepreneur Charles Garcia,[lxvi] and John Lee, a blogger on this site. The word has gained much popularity among persons and organizations advocating for the rights and humanness of people present in the United States contrary to its medieval laws. Others, like linguist Otto Santa Ana, have expressed a preference for the very similar but slightly different “unauthorized.” [lxvii] Many major news organizations have already stopped using “illegal” in their publications, while The New York Times and CNN remain regressive holdouts in this regard.[lxviii]

The benefit of “undocumented” is that it speaks merely about documents, and in doing so acknowledges the only real difference between one group and the other: paper. Although, John Lee has pointed out, insightfully I think, that the term “undocumented” is “agnostic,” in that it does not, on its face, preclude the possibility of attaching blame to the subject. If the term expresses any agnosticism about the injustice of immigration restrictions, then people filled with absolute faith in open borders shouldn’t use it. I, at least, have no interest in expressing agnosticism about border restrictions which should be regarded as evil in totality and without hesitation. “Alien” and “illegal,” certainly, are devastatingly unambiguous in their meaning, and it seems, deserve a counterweight that is equally so. That leaves us pressed, however, for an alternative we don’t yet have.

If anyone has proposed an alternative to “undocumented,” or “unauthorized,” I have not yet heard of it. Perhaps the closest any undocumented community has come to giving the world a new designation is the Sans Papier (literally “without papers”) movement in Europe.

Recently, a friend of mine suggested, perhaps echoing John Lee’s thoughts, that “undocumented” itself has a slight but still stigmatizing power. Together, we threw around a couple of alternative expressions – each woefully clumsy (“people without papers,” “undocumented humans,” etc.), but ultimately concluded that any new nomenclature had to be named and owned by a person who was themselves present in the U.S. without the government’s permission – and not by people steeped in the privilege of U.S. citizenship.

I feel compelled then to invite our neighbors, friends and loved ones without documentation to develop some humanizing nomenclature alternatives to “undocumented,” and “unauthorized.” And it would be great if new nomenclature carried within it, not just unmistakable acknowledgement of people’s humanity, but also unapologetic condemnation of the immigration laws.

As open border advocates, we reject wholly the idea that the border should be enforced as a restriction on another person’s freedom or as the diminution of another person’s human rights or humanity. So we should take note then, of how rhetoric can function as epithet and in doing so promote and evoke beliefs and ideas which enforce the border in ways that are anathema to freedom and equality. “Alien” is the sound of the border and we should refuse to honor it – lawyers, and non-lawyers alike – with the same fervor with which we refuse to honor the border and the partitioning of humankind. No one is an alien and no border will change that.


References
[i] A. Bloom & M. Udahemuka, ‘Going Through the Doors of Pain’: Asylum Seeker and Convention Refugee Experiences in Aoteara New Zealand, Kōtuitui: The New Zealand Journal of Social Sciences Online, Vol. 9, No. 2, pp. 70-81, at 77 (2014).

[ii] Id. at 72 (2014) (The person was interviewed as part of a study published by the New Zealand Journal of Social Sciences Online, described as “a qualitative study of the experiences of 18 Convention refugees,” with the aim to “portray the lived experience of Convention refugees and explore the extent to which they are realizing their rights and opportunities to participate in Aotearoa New Zealand.”).

[iii] Jose Antonio Vargas, “Jose Antonio Vargas: I’m not an ‘Alien’,” The L.A. Times (Aug. 13, 2015).

[iv] Leon Litwack, “North of Slavery: The Negro in the Free States 1790-1860” 259 (1961).

[v] “We Are Not Aliens, We’re People, and We Have Rights: Canadian Human Rights Discourse and High School Climate for LGBTQ Students, Special Issue: Sexuality, Sexual Health, and Sexual Rights,” Canadian Review of Sociology/Revue Canadienne de Sociologie, Vol. 48, No. 3, 275–312 (August 2011).

[vi] Chrsitine G.T. Ho & James Loucky, Human Migration: Establishing Legitimacy and Rights for Displaced People 85 (2012).

[vii] Ayten Gundogdu, Rightlessness in an age of Rights: Hannah Arendt and the Contemporary Struggles of Migrants 19 (2015).

[viii] I am far from the first person to point this out: “[i]t is no coincidence that we still refer to noncitizens as ‘aliens,’ a term that calls attention to their ‘otherness,’ and even associates them with nonhuman invaders from outer space.” Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection, 42 U.C.L.A. L. Rev. 1425, 1428 (1995).

[ix] Amitabh Sen Gupta, Memoir of an Artist 91 (2014).

[x] Cornell West, Prophesy Deliverance! An Afro-American Revolutionary Christianity 47 (2nd ed. 2002).

[xi] 8 USC § 1101(a)(3);

[xii] Michelle Goodwin, Nigger and the Construction of Citizenship, 76 Temple Law Review 129, 189 (2003).

[xiii] http://www.theguardian.com/uk-news/2015/jul/30/david-cameron-migrant-swarm-language-condemned

[xiv] Jana Winter, “Endless wave of illegal immigrants floods Rio Grande valley,” Fox News (Jul 14, 2014), available at http://www.foxnews.com/us/2014/07/14/night-time-on-border-endless-wave-illegal-immigrants-floods-rio-grande-valley.html.

[xv] Nolan D. Mccaskill, “Ben Carson Compares Refugees to Rabid Dogs,” Politico (Nov. 19, 2015), available at http://www.politico.com/story/2015/11/ben-carson-syria-refugee-dogs-216064.

[xvi] Marina Fang “Donald Trump: It’s Okay to Call Undocumented Immigrants ‘Rapists.’” Huffington Post, Jul. 13, 2015, available at http://www.huffingtonpost.com/2015/07/12/donald-trump-immigration_n_7781140.html.

[xvii] Michelle Goodwin, Nigger and the Construction of Citizenship, 76 Temple Law Review 129, 172 (2003).

[xviii] Mark Chmiel, Elie Wiesel and the Politics of Moral Leadership 72 (2001); Josue David Cisneros, The Border Crossed Us: Rhetorics of Borders, Citizenship & Latina/o identity 129 (2013).

[xix] Nichlas Kristof, “Myanmar’s Peace Prize Winner and Crimes Against Humanity,” The N.Y. Times (Jan. 9, 2016).

[xx] “Dominican Republic denies arbitrarily deporting citizens with Haitian roots,” The Guardian, available at http://www.theguardian.com/global-development/2015/aug/06/dominican-republic-citizens-haitian-descent-arbitrarily-deported

[xxi] While “illegal alien” is not found in the INA, it is used often by judges in their legal opinions.

[xxii] See generally, 8 U.S.C. §§ 1101-1778

[xxiii] Guamamtario v. Sound Beach Partners, LLC, 2015 WL 467234, at *6 (noting the terms “alien” and “illegal alien” are used regularly by the Supreme and other federal courts).

[xxiv] http://www.politifact.com/truth-o-meter/article/2010/dec/16/lie-year-government-takeover-health-care/

[xxv] Joshua Green “Meet Mr. Death”, The American Prospect, May 20, 2001, available at http://prospect.org/article/meet-mr-death.

[xxvi] Frank Luntz, “Words that Work: It’s Not What you Say, It’s What People Hear,” 284 (2007).

[xxvii] Jose Antonio Vargas, “Jose Antonio Vargas: I’m not an ‘Alien’, The L.A. Times (Aug. 13, 2015).

[xxviii] Michelle Goodwin, Nigger and the Construction of Citizenship, 76 Temple Law Review 129, 147, 157 (2003).

[xxix] Kevin R. Johnson, “Aliens” and the U.S. Immigration Laws: The Social and Legal Construction of nonpersons,” 28 U. Miami Inter-Am. L. Rev. 263 (1997).

[xxx] Id. at 265.

[xxxi] Id. at 268.

[xxxii] Jabari Asim, The N-word: Who can Say it, Who Shouldn’t and Why 4 (2007).

[xxxiii] Gregory S. Parks & Shayne E. Jones, Nigger: A Critical Race Realist Analysis of the N-Word within Hate Crimes Law, 98 J. of Crim. L. and Criminology 1305, at 1341 (2007-2008)(“Implicit anti-Black bias predicts Whites’ justification of violence against Blacks”); Randall Kennedy, Nigger: The Strange Career of a Troublesome Word 60 (2002)(“Greenberg and Pyszczynki found that observers who overheard the insult [“nigger”] exhibited a marked tendency to lower their evaluation of the slurred black debaters.”).

[xxxiv] Michelle Goodwin, Nigger and the Construction of Citizenship, 76 Temple Law Review 129, 135, 201-203 (Summer 2003).

[xxxv] Id. at 135.

[xxxvi] Id. at 193.

[xxxvii] Id. at 201.

[xxxviii] Id. at 203.

[xxxix] See the rhetoric of any 2016 Republican candidate for U.S. president.

[xl] Poveda v. U.S. Atty. Gen. 692 F.3d 1168, 1177 (11th Cir. 2012)(referring to “aliens who have self-deported . . .”).

[xli] Randall Kennedy, Nigger: The Strange Career of a Troublesome Word (2002).

[xlii] Id. at 59 – 72 (2002).

[xliii] See, e.g., U.S. v. Gonzales, 2008 WL 160636, at *8 (U.S.D. Miss. 2008)(“The Defendants move to remove from the Indictment the term “illegal alien” and to preclude use of that term during trial, arguing that the term is racially charged. The court concludes that this motion is without merit since “illegal alien” is a term commonly used by the courts (citation omitted). Furthermore, the term accurately describes the concept of a person who is not a citizen or lawful resident of the United States and who is in the United States illegally”); U.S. v. Atienzo, 2005 WL 3334758, at *3, FN14 (“The court is also hard-pressed to understand how the term “illegal alien” can be regarded as pejorative when defense counsel in this case (and in Esparaza–Mendoza ) used this term as well”); Guamamtario v. Sound Beach Partners, LLC, 2015 WL 467234, at *6. (noting that the terms “alien,” “illegal alien,” “unauthorized alien,” and “undocumented alien,” were used regularly by the Supreme and other federal courts (which they indeed are[xliii]), found “that the defendant may use any of these terms when referring to the plaintiff . . . and . . . to describe witnesses who testify in the plaintiff’s behalf . . .”).

[xliv] See, e.g, U.S. v. Morgan, 2003 WL 22245138, at *4-5 (E.D.Pa 2003) (noting that the use of the term “illegal alien” was not prejudicial to the criminal defendant, but only because the trial court “took careful steps to assure that Morgan’s status as an illegal alien would not prejudice the jury against him,” by instructing the jury not to consider the term when determining charges against the defendant which were not related to his immigration status); U.S. v. Cruz-Padilla 227 F.3d 1064, at 1069-1070 (8th Cir.2000) (referring to defendant as an “illegal alien,” the court found that “[t]he government’s repeated references to Cruz-Padilla’s status reinforced to the jury his foreign origin and contributed nothing of a legitimate evidentiary value . . . As such, we similarly hold that these pervasive references to Cruz-Padilla’s status ‘gave the jury an improper and convenient hook on which to hang their guilty verdict … by calling attention to the fact that [Cruz-Padilla was] not local.’”); See Also, Hurtado v. United States, 410 U.S. 578, 604 (1973) (Douglas, J., Dissenting)(“[w]e cannot allow the Government’s insistent reference to these Mexican citizens as ‘deportable aliens,’ to obscure the fact that they come before us innocent persons who have not been charged with a crime. . .”).

[xlv] Rojas v. Richardson, 703 F.2d 186, 191 (5th Cir. 1983).

[xlvi] Sifuentes v. Abreo, 531 Fed.Appx. 481, 493 (5th Cir. 2013) (re-affirming Rojas’s finding that “the use of the term “illegal alien” can be highly prejudicial”).

[xlvii] See, e.g., U.S. v. Merkt, 764 F.2d 266, 272 (5th Cir. 1985)(“Willful transportation of illegal aliens is not, per se, a violation of the statute, for the law proscribes such conduct only when it is in furtherance of the alien’s unlawful presence.”); Valdiviez-Hernandez v. Holder, 739 F.3d 184, 188 (5th Cir. 2013) (“There is no dispute that Valdiviez is an alien who committed an aggravated felony (illegal alien in possession of a firearm), and who has no status as a lawful permanent resident”).

[xlviii] See, e.g., Richard A. Boswell, Racism and U.S. Immigration Law: Prospects for Reform After “9/11?” 7 J. Gender Race & Just. 315 (2003); Kevin R. Johnson, Race, the Immigration Laws, and Domestic race Relations: A “Magic Mirror” into the Heart of Darkness, 73 Indiana L. J. 1112 (1994); Karen Manges Douglas, Rogelio Saenz & Aurelia Lorena Murga, Immigration in the Era of Color-Blind Racism, Am. Behavioral Scientist, Vol 59, No. 11, pp. 1429-1451 (Oct. 2015).

[xlix] Incidentally, even this proxy for racialist exclusion is itself an express admission that the poor are less desirable than the wealthy – more on that in future posts.

[l] Alison Siskin, Visa Waiver Program, Congressional Research Service (Jan. 4, 2011).

[li] Jacqueline Maria Hagan, Scott Phillips & Nestor Rodriguez, “Brutal Borders? Examining the Treatment of Deportees During Arrest and Detention,” Vol. 85, No. 1, pp. 94-109 (Sept. 2006) (describing a survey where 1 in 4 deportees experienced racial slurs from gov’t/prison officials).

[lii] See, e.g., Michelle Alexander, The New Jim Crow (2010).

[liii] See, e.g., the fact that U.S. Citizenship was limited exclusively to people of European descent, or that the original immigration restrictions were the Chinese exclusion acts. See Also Johnson, supra note 7, at 271-2.

[liv] John Burnett, “For Irish Illegally in U.S., A Life Locked in Place, Hoping for Change,” NPR (Oct. 24, 2015), available at http://www.npr.org/2015/10/24/451213832/for-irish-illegally-in-u-s-a-life-locked-in-place-hoping-for-change (reporting that undocumented migrants from Ireland are deported at lower rates than their counterparts from Mexico).

[lv] See, e.g., Noel Ignatiev, “How the Irish Became White,” (1995).

[lvi] Lauren Gambino, “’No human being is illegal’: linguists argue against mislabeling of immigrants,” The Guardian (Dec. 6, 2015), available at http://www.theguardian.com/us-news/2015/dec/06/illegal-immigrant-label-offensive-wrong-activists-say

[lvii] See, e.g., U.S. v. Gorauska, 482 F.Supp 576, 578 (SDNY 1979)(“The Court chooses the term “undocumented” in place of the more common designation “illegal” to refer to aliens in the United States without the necessary documents. The Court feels that the term “illegal aliens” places an unjustified stigma upon the individual so labeled, and also assumes the conclusion that the alien is illegally in this country.”); Lozano v. City of Hazelton, 620 F.3d 170, 176, FN. 1 (3rd Cir. 2010) (recognizing the significant criticisms many have made of the term “illegal aliens” and “undocumented immigrants”).

[lviii] See Keller v. City of Fremont, 719 F.3d 931, 938, FN2 (8th Cir. 2013) (“The INA defines “alien” as “any person not a citizen or national of the United States.” Like the district court, we do not use the term pejoratively.”); In re Garcia, 58 Cal.4th 440, 467 (Sup. Ct. of CA 2014) (using “unlawful alien,’ instead of ‘illegal alien’ in an explicit effort of the court to be “neutral” and not pejorative).

[lix] Suzanne Gamboa, “Rep. Joaquin Castro: Stop Using the Word ‘Alien’ in Federal Law, Signs,” NBC News (Oct. 22, 2015).

[lx] Jose Antonio Vargas, “Jose Antonio Vargas: I’m not an ‘Alien’, The L.A. Times (Aug. 13, 2015) (“As [Governor Brown] told The Times: ” ‘Alien’ is now commonly considered a derogatory term for a foreign-born person and has very negative connotations. . .”)

[lxi] See Jose Antonio Vargas, “My Life as an Undocumented Immigrant,” The N.Y. Times Magazine (June 22, 2011).

[lxii] Joanna Rothkopf, Hillary Clinton Vows to Stop Using ‘Illegal Immigrant,’ Jezebel (Nov. 24, 2015), available at http://theslot.jezebel.com/hillary-clinton-vows-to-stop-using-term-illegal-immigra-1744456608.

[lxiii] Timothy B. Lee, “Society of Professional Journalist: Reporters Shouldn’t Use Prejorative Terms Like “Illegal Immigrant,” Forbes Magazine (Sept. 30, 2011), available at http://www.forbes.com/sites/timothylee/2011/09/30/society-of-professional-journalists-reporters-shouldnt-use-pejorative-terms-like-illegal-immigrant/#32225fa1769a.

[lxiv] Rinku Sen, The Accidental American: Immigration and Citizenship in the Age of Globalization 63 (2008); RInku Sen, Why the AP’s Choice to Drop the I-word is a Crucial Victory, Colorlines, Apr. 3, 2013, available at https://www.colorlines.com/articles/why-aps-choice-drop-i-word-crucial-victory.

[lxv] Alexandra Sims, “University to Mark Down Students Who Say ‘illegal immigrants,’ in class,” The Independent (Aug. 30, 2015), available at http://www.independent.co.uk/news/education/education-news/university-to-mark-down-students-who-say-illegal-immigrants-in-class-10478643.html.

[lxvi] Charles Garcia, “Why ‘Illegal Immigrant’ is a Slur,” CNN, Jul 6, 2012, available at http://www.cnn.com/2012/07/05/opinion/garcia-illegal-immigrants/.

[lxvii] Lauren Gambino, “’No human being is illegal’: linguists argue against mislabeling of immigrants,” The Guardian (Dec. 6, 2015), available at http://www.theguardian.com/us-news/2015/dec/06/illegal-immigrant-label-offensive-wrong-activists-say

[lxviii] Id.

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