All posts 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.

The Practice of Immigration Law as Manumission

I do not want to equate the evil of chattel slavery with the evil of immigration restrictions. They may or may not be equal in one person’s experience or another’s, but I am not out to make a claim one way or another. I want to avoid at all costs what Elizabeth Martinez terms an “oppression Olympics,”1 referring to the weighing of which group is more or less oppressed than another such that the comparison succeeds in turning oppressed people against each other, which is of course a win for the oppressor. All I want to do here is re-frame the moral context of immigration law practice by way of analogy to the practice of manumission law in centuries past.

I. Manumission Law and Immigration Law

During the centuries that chattel slavery persisted in the Americas, there existed also in many jurisdictions the law of “manumission,” or the emancipation of a person from status as a slave through legal means, such as by purchasing or contracting for their freedom from their owner, or having it granted to them by their owner’s will and testament, making them a “free person.”2 Sometimes this involved slave owners asking a tribunal to manumit the human beings they themselves owned,3 but in other contexts it involved enslaved people directly asking the court to allow themselves to be manumitted,4 sometimes with representation by counsel.5 It is this latter scenario of self-manumission through an advocate that we’re referring to here – where an advocate argued on behalf of an enslaved person for their freedom.

The practice of immigration law6 is the lawful application for enhanced liberty or rights for individuals without U.S. Citizenship, before and against a government agency designed to restrict their liberty and their right to have rights, as Hannah Arendt put it.7 The immigration law practitioner petitions a government officer or judge for their recognition of a human being’s right to move, work and survive. This is to say, the non-citizen, through their immigration lawyer, asks the government officer or judge for permission to be treated as a full human being; put even more simply, a non-citizens asks the government, through counsel, to recognize their humanity.

The same law that affords the non-citizen the ability to petition for this recognition and permission is the same law that endows that officer or judge with the unchallenged power to dismember families, crush freedom and sentence deportees to death. Just as the enslaved person asked for their freedom on the authority of their owner’s will or contract – the same owner with the power to end their family, their freedom or their life. But, without comparing the degree of dehumanization or the frequency of torture and murder visited upon human beings within either of these institutions, what other aspects of them appear comparable?

In both instances the law afforded a narrow route of escape (albeit with limited rights to the escapee) from the institution. In both instances a legal advocate, a lawyer, had to work within the laws of the time and make arguments based on those laws and the assumptions that undergird them – seeking relief from the same power that presumed the authority to destroy their client. In both instances, engaging in this kind of advocacy against the institution did not actually challenge the institution’s authority or legitimacy, but rather reinforced them.8 Certainly it failed/fails to challenge but reinforces the artifice of white supremacy. In both cases the advocacy nonetheless enhanced the liberty of individual people on a case-by-case basis

One author describes manumission this way: “Slaves used the law designed essentially to keep them as slaves to win their freedom, and free people of color used the law to maintain and often to fight vigorously to safeguard their liberty.”9 Replace “slaves” with “undocumented people” and the former part of this explanation could easily describe removal defense and bond hearings while the latter could just as easily describe applications for legal permanent residence or naturalization.

II. Moral Tension

Another way in which the practice of manumission is comparable to the practice of immigration law is that neither was/is devoid of moral ambiguity. In each case well-meaning people were working within an institution they may have fundamentally disagreed with or even hated. In doing so they obeyed the rules of that institution and called upon the authority of the slave owner’s ownership to manumit, and thus arguably kowtowed to its authority, thereby legitimizing and reinforcing it. In this sense they were to some degree complicit in the crimes of the institution itself. When we ask the government today to give a person relief from deportation or detention, we imply that we agree that the government has the authority to destroy that person’s life; inasmuch as we appeal to a power, we also consent to it.

But at the same time, there’s a strong moral argument that an attorney’s practice of manumission law to secure a client’s freedom was necessary for a simple reason: it saved lives. It did require a lawyer to play by the rules of slavery, but practically it also saved the lives of individual human beings, shielding them from torture, murder and rape – just as deportation defense often does today.10 Ultimately manumission won an individual person’s liberty (or at least reduced their level of bondage11), albeit without injuring or truly challenging the evil institution from which they were liberated. The same can be said of the practice of immigration law today – like manumission before it, it may be necessary to save lives.

Historian Jessica Millward, in her article discussing how enslaved women used manumission laws to gain their freedom, describes this moral tension:

Manumissions were granted on an individual basis and never jeopardized the balance of power, which positioned the laws of the slaveholding South as an omnipresent force in the lives of African Americans. After all, manumission laws were slaveholders’ laws, and any space left for a slave to gain freedom through them was a loophole, not an open door. However, the ability to negotiate one’s manumission and that of one’s kin became a very important vehicle of resistance for enslaved women.12

As immigration lawyers, especially in the world of public interest law, we take enormous emotional shelter in the perception that we are on the just side of a war between right and wrong, and with good reason – we are. But we do not enough acknowledge the moral tension Millward describes in the context of manumission, where that tension is more obvious: we are doing the right thing, yes, but in a context that is so wrong that any proximity to it at all puts us closer than we want to be to culpability. As such that proximity deserves our scrutiny and critical thoughtfulness.

So this comparison is not to say that a lawyer’s practice of manumission or immigration law was/is evil in and of themselves; rather manumission practice, like immigration practice, could be a necessary vehicle of resistance (to use Millward’s words) when and inasmuch as it becomes a necessary intervention to save lives and protect people from harm. This comparison prompts us to conclude that their practice does not by itself satisfy the moral responsibility of the practitioner. Such a practice is necessary, but insufficient. It was not enough for a lawyer to advocate for the manumission of individuals during a time when the terrorism of slavery thrived – rather the minimum level of moral responsibility required that they call for the abolition of slavery as an institution.

Thus, like legal manumitters before them, it is not enough for immigration lawyers to practice the law – we must be abolitionists. It is morally insufficient to fall somewhere in the middle or to fail to take that position. And it is in that sense too that these two areas of law are analogous – not in the depth of the cruelty of the institution that they were a part of – no oppression Olympics please – but in their failure of each in and of themselves to be morally adequate conduct on the part of the practitioner in each of their respective contexts.

For both the manumitter advocate and the immigration lawyer, it is a failure of their moral imagination to believe that their responsibility ends with their legal work. Our duty does not end with advocacy on behalf of someone’s life or liberty, but with calling for the abolition of the institution that threatens them in the first place. Our job may begin with filing a Notice of Appearance, but it ends only with speaking out in favor of abolishing the border.13

Footnotes

1 Martinez, Elizabeth. 1993. “Beyond Black/White: The Racisms of our Times.” Social Justice 20 (1/2): 22–34.
2See, e.g., Michael P. Mills, Slave Law in Mississippi from 1817-1861: Constitutions, Codes and Cases, 71 Miss. L.J. 153, 184-188 (2001); Andrew Kull, Restitution in Favor of Former Slaves, Symposium: The Jurisprudence of Slavery Reparations, 84 B.U.L. Rev. 1277-78, 1280-81, 1286 (Dec. 2004); Warran T. Burns, Book Review: Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862, 78 Tul. L. Rev. 2339, 2340 (“slaves nevertheless continued to enter into contracts for self-purchase during the antebellum period”).
3 A. Leon Higginbotham, Jr. & F. Michael Higginbothom, “Yearning to Breathe Free”: Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U. L. Rev. 1213, 1255 (Dec. 1993); Michael P. Mills, Slave Law in Mississippi from 1817-1861: Constitutions, Codes and Cases, 71 Miss. L.J. 153, 184-188 (2001).
4 See Warran T. Burns, Book Review: Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862, 78 Tul. L. Rev. 2339, 2340 (“slaves in Louisiana had the right to bring suits for their freedom in their individual capacities . . .”); A. Leon Higginbotham, Jr. & F. Michael Higginbothom, “Yearning to Breathe Free”: Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U. L. Rev. 1213, 1260-61 (Dec. 1993).
5 See Eric Foner, Gateway to Freedom: The Hidden History of the Underground Railroad 42, 133 (2015).
6 I don’t use this phrase here to refer to attorneys who work for Immigration and Customs Enforcement or Citizenship and Immigration Service – although they are practicing immigration law as well, inasmuch as a lawyer representing a slave state in opposition to an enslaved persons request for manumission could be said to have been practicing manumission law.
7 Hannah Arendt, The Origins of Totalitarianism, new edition 296 (1968).
8 This is probably not the case with federal impact litigators who might challenge an immigration law on constitutional grounds, for example, since they may be challenging the institution itself, just as, say, the 13th Amendment did to slavery, or Brown v. Board of Education did to slavery’s later incarnation, Jim Crow.
9 Judith Kelleher Schafer, Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans at xiii (Jan. 2003).
10 In truth, the lawyer defending the person from deportation does not “save” that person – but merely engages in a partnership in which the non-citizen saves themselves through that partnership, and the same can be said for any attorney who defended an enslaved person against a nineteenth century tribunal.
11 Manumission did not restore a former slave to full human being-status – they could still face violence and discrimination and in some jurisdiction could be re-enslaved to pay off their owners debts. Likewise, a non-citizen may win Legal Permanent Residence before an immigration court, but could still be deported if they commit a crime or engage in any number of other actions.
12 Jessica Millward, The Relics of Slavery: Interracial Sex and Manumission in the American South, Frontiers: A J. of Women Studies, Vol. 31, No. 3 (2010), pp. 22-30, at 26.
13 And when I say abolishing the border I mean abolishing the border.

The Immigrant Has a Right to Compete for Your Job

Many economic arguments have been made for why the non-citizen should be permitted to work in the United States. Many have argued that immigrants don’t compete materially with American for jobs, that they only compete with very “low-skilled” U.S. citizens for jobs, or only suppress wages by marginal and ultimately insignificant amounts, or that, regardless of competing slightly for already existing jobs, migrating people also create jobs and economic growth anyway, offsetting any competition.[i] Even I have made these arguments.[ii] But all of these arguments, while compelling and true, miss the point: it really doesn’t matter if immigrants compete with U. S. citizens for jobs- because the jobs in the U.S. do not belong to Americans – they belong to everyone because everyone has a right to survive.

The Right to Work Follows From the Right to Life, Despite Racist Law

The right to life is recognized under both American[iii] and international law.[iv] Unfortunately, the law does not recognize, either domestically[v] or internationally,[vi] that the right to life means the right to cross a border to access the means of survival, such as employment.[vii] Nonetheless, if people have a right to live, and people need to work to live, it follows that people have a right to work. So, while the right of all people to compete for the same job does not follow legally – it does follow logically and morally. The law, as is so often the case, just hasn’t caught up to the morality yet. But the law has not caught up to the morality yet because, while the right to work may follow morally, it does not follow politically.

It does not follow politically because it does not follow racially. White supremacy is naturally opposed to truly color blind and nationality blind, work opportunity. The artifice of white supremacy that says locus of birth dictates whether or not you have a right to survival, long ago found an expression in the law. This vehicle of expression is called the plenary power doctrine.

Like many platforms for white supremacy (e.g., the war the drugs[viii]), the plenary power doctrine hides behind ostensibly race-neutral concepts. On its face the plenary power doctrine says that a nation state is sovereign, meaning it has a right to self-determination, and therefore has a virtually unconditional right to exclude any non-citizen it wants from its territory, for whatever reason it wants, when and (more or less) however it wants.[ix] While generally, the constitution and its protections attach to any person in U.S. territory,[x] the doctrine still effectively allows Congress to eject non-citizens and especially “undocumented” non-citizens from that territory or deprive them of equal treatment basically, willy nilly.[xi] Practically, this means sovereignty absolves our society from any moral duty whatsoever to any human being that is not a citizen of the nation state. In other words, it exploits and abuses the idea of self-determination to vanquish totally the humanity of any human life that is not a citizen. Since citizenship is traditionally tied to race and nationality, and is, I would argue, an unalterably racialized idea,[xii] the ability of this sovereign-supremacy doctrine to serve white-supremacy should be obvious.

The reader may disagree that nationality is an inherently racist idea, but that does not change my moral obligation to call a fig a fig. It is impossible for me to ignore that the practical function of nationality is to allow different rules to apply to different people based on an assigned national label; a label which is itself defined by immutable (e.g., locus of birth, lineage) or non-meritorious traits (e.g., language or religion) – in a word, racism. It is a means to rationalize violence. In an employment context, economic violence.

Actually, Supreme Court Justice David Josiah Brewer, in a dissenting opinion from a late nineteenth century case that discussed the plenary power doctrine, made a not entirely dissimilar criticism of the doctrine than that one I am making right now:

It is said that the power here asserted is inherent in sovereignty. This doctrine of powers inherent in sovereignty is one both indefinite and dangerous. Where are the limits to such powers to be found, and by whom are they to be pronounced? Is it within legislative capacity to declare the limits? If so, then the mere assertion of an inherent power creates it, and despotism exists. May the courts establish the boundaries? Whence do they obtain the authority for this? Shall they took to the practices of other nations to ascertain the limits? The governments of other nations have elastic powers. Ours are fixed and bounded by a written constitution. The expulsion of a race may be within the inherent powers of a despotism. History, before the adoption of this constitution, was not destitute of examples of the exercise of such a power; and its framers were familiar with history, and wisely, and it seems to me, they gave to this government no general power to banish. Banishment may be resorted to as punishment for crime; but among the powers reserved to the people, and not delegated to the government, is that of determining whether whole classes in our midst shall, for no crime but that of their race and birthplace, be driven from our territory.[xiii]

Indeed, the idea that the plenary power doctrine is anything other than a racialized effort to diminish the humanity of others via banishment is belied by the very case law that articulated the doctrine. The seminal cases on the plenary power doctrine, Nishimura Eiku v. U.S.,[xiv] and Fong Yue Ting v. U.S.,[xv] were failed efforts to challenge the Chinese Exclusion Acts, explicitly racist exclusionary laws that prohibited Asian immigration. That the U.S. Supreme Court used an ostensibly race-neutral doctrine to procure an unambiguously racist result that upheld an equally racist law makes suspect the allegation that the doctrine is race-neutral and reveals the true motivation behind the doctrine and the Supreme Court decisions that kept it law.

Nonetheless, today the plenary power doctrine is the legal foundation of the federal government’s power to restrict immigration and permit discrimination, such as restricting which benefits non-citizens may receive, including work opportunity.[xvi] In this way the plenary power doctrine is the most powerful legal tool for protecting (white/american) privileged access to jobs and obstructing the right to life and survival for non-citizens. The argument that marginalized group A is “taking” the work that hegemonic group B has a superior right to is not new. It was wielded against black citizens and citizen women to exclude them from work as well. This exclusion not only gave white men privileged access to wages but also generated a source of cheap labor. As Aviva Chomsky notes in her book They Take Our Jobs!: And 20 Other Myths About Immigration, marginalizing a group of people, be it women or blacks, provided a cheap source of labor for white men, just as marginalizing immigrants does now:

For centuries, the United States and other industrialized countries have institutionalized inequalities by granting rights to some people but not to others. People without rights may be slaves, they may be colonial subjects, they may be racial and ethnic minorities, or they may be immigrants . . . In all cases, though, governments have made sure that there are people without rights to fulfill buisness’s need for cheap workers and high profits.[xvii]

Making the immigrant’s right to work less than the citizen’s right performed the same function today as it did before – shutting out equal opportunity of some group performs the dual purpose of both hoarding wages for the privileged few and creating a cheap source of labor to benefit them. That kind of privilege is just a rationale for brutality.

American Jobs Belong to the World

If everyone has the right to compete for jobs regardless of locus of birth and nationality than no one’s right is superior to anyone else’s. The non-citizen with permission to work is not morally superior to the non-citizen without that permission. They are not more deserving, they are not more accomplished, and they can prove no greater claim to the opportunity. The employment authorization card is issued without the moral authority to issue it: No one should need another person’s permission to survive. To propose that any person or institution has the right to give that permission is an argument against equality. Either everyone who needs to work has the right to work, or no one does.

To horde your local work opportunity for yourself is not just racist – it is also selfish. It is an act of destructive hedonism, a victory for shameless narcissism. The person who endorses “our jobs, not theirs” must admit they enrich themselves at the expense of another. They embrace an amoral, me-first universe and spit on the golden rule. There is no dignifying the law of the plenary power doctrine – it is the mindless law of the jungle masquerading as jurisprudence. Its true purpose is for “determining whether whole classes in our midst shall, for no crime but that of their race and birthplace, be driven from our territory.”

The jobs in the United States belong to the world, to the nation of Humanity, not just to the tribe of Americans. You may insist that you have a superior right to compete for that job in your neighborhood because you accomplished the dumb task of being born closer to it than someone else, but you would be wrong. Of course immigrants bring jobs, but that’s irrelevant because they have a right to compete for existing jobs. Will you lose a job if an immigrant is hired in your place? Of course you will, that’s how sharing works. That’s what equality looks like. Does that mean you may have a duty to make sacrifices so that others might live? Yes, that’s how morality works. Henry David Thoreau, making an argument against slavery that could easily double as an argument against work restrictions, once put it thusly:

If I have unjustly wrested a plank from a drowning man, I must restore it to him though I drown myself. . . But he that would save his life, in such a case, shall lose it. These people must cease to hold slaves . . . though it cost them their existence as a people.[xviii]

Morally, it doesn’t matter if immigrants produce jobs, because they also have a right to compete for your job and my job. No non-citizen can take your job, in fact, because it isn’t yours. But if you are someone who insists on the contrary, curmudgeon myth, for as long as you insist on it, as an immigration lawyer I will insist on aiding as many people as possible to survive by helping them get work permission in the United States – as far and as often as the law allows me. I will work hard to pry what is not yours from your stubborn, selfish hands.


[i] See, e.g, Alex Nowrasteh, “Immigrants Did Not Take Your Job” (Nov. 2, 2012); Sari Pekkala Kerr & Willian R. Kerr, “Economic Impacts of Immigration: A Survey,” Harvard Business School (2008, 2011), available at http://www.hbs.edu/faculty/Publication%20Files/09-013_15702a45-fbc3-44d7-be52-477123ee58d0.pdf; Tanvi Misra, “Immigrants Aren’t Stealing American Jobs,” The Atlantic (Oct. 21, 2015), available at http://www.theatlantic.com/politics/archive/2015/10/immigrants-arent-stealing-american-jobs/433158/; Adam Davidson, “Debunking the Myth of the Job-Stealing Immigrant,” The New York Times (March 24, 2015), available at http://www.nytimes.com/2015/03/29/magazine/debunking-the-myth-of-the-job-stealing-immigrant.html?_r=1.

[ii] Steven Sacco, “In Defense of the Eligible Undocumented New Yorker’s State Constitutional Right to Public Benefits,” 40 N.Y.U. Rev. L. & Soc. Change 181, 228 (2016).

[iii] Obergefell v. Hodges, 135 S.Ct. 2584 (2015) (noting the “life, liberty or property” formulation articulated in the Fifth Amendment of the U.S. Constitution has its roots in the Magna Carta, which included the “right to life.”)

[iv] Art. 6 of the International Covenant on Social and Political Rights. (“Every human being has an inherent right to life”); UN Doc. HRI\GEN\1\Rev.1 at 6 (1982)(“[The Right to Life] is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation . . . It is a right which should not be interpreted narrowly”).

[v] Harisiades v. Shaughnessy, 342 U.S. 590 (1953) (Douglas dissenting)(The power of Congress to exclude, admit, or deport aliens flows from sovereignty itself and from the power ‘To establish an uniform Rule of Naturalization’. U.S. Cnst., Art. I, s 8, cl. 4. The power of deportation is therefore an implied one. The right to life and liberty is an express one. Why this implied power should be given priority over the express guarantee of the Fifth Amendment has never been satisfactorily answered.”)

[vi] While international law recognizes a righto work (See art. 6(1) of the International Convenient on Economic Social and Cultural Rights) international law does not also recognize the right to cross a border to fulfill that right to work See International Convention on the Protection of the Rights of All Migrant Workers and Their Families. (Describing nowhere in the document any right to cross a border for the protection of life, other than the right to seek asylum, which is itself very narrow).  See Also art. 12 on the International Covenant on Social and Political Rights. (ensuring a right to leave one’s country, but no corollary right to enter another has been interpreted). See, e.g., the similar right to leave under the European Convention on Human rights: A.E. v. Poland, No. 14480/04 (31 March 2009), at ¶ 46 (“reiterates that Article 2 of Protocol No. 4 guarantees to any person a right to liberty of movement, including the right to leave any country for another country to which he or she may be admitted”).

[vii] See Supra, Notes 5 and 6.

[viii] See, e.g., Angela Y. Davis, Abolition Democracy: Beyond Prison, Torture and Empire Interviews (2005); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Color Blindness (2010);

[ix] Nishimura Eiku v. U.S., 142 U.S. 651, at 659 (1892)(“It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe”).

[x] See, Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)( The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. . . These provisions are universal in their application to all persons within the territorial jurisdiction); But See Lewis v. Thompson, 252 F.3d 567, 582 (2d Cir. 2001)(finding that a lower standard of review is appropriate for review of laws that discriminate between documented and undocumented people when the law says what federal immigration authorities may and may not do); Mathews v. Diaz, 426 U.S. 67 (1976).

[xi] See, supra, notes 9 and 10.

[xii]

[xiii] Fong Yue Ting v. U.S., 149 U.S. 698, 737-8 (Brewer Dissenting).

[xiv] Nishimura Eiku v. U.S., 142 U.S. 651, at 659 (1892).

[xv] Fong Yue Ting v. U.S., 149 U.S. 698, 728 (1893)(“For the reasons stated in the earlier part of this opinion, congress, under the power to exclude or expel aliens, might have directed any Chinese laborer found in the United States without a certificate of residence to be removed out of the country . . .”)

[xvi] See Mathews v. Diaz, 426 U.S. 67 (1976).

[xvii] Aviva Chomsky, They Take Our Jobs!: And 20 Other Myths About Immigration (2007), at page 27.

[xviii] Henry David Thoreau, “Civil Disobedience” (1849).

Damn Our Euphemisms: Who is the Accomplice to Murder in Dilley, Texas?

[CONTENT/TOPIC WARNING: Descriptions of violence, conflict, confinement. Strong moral exhortations and confrontational questions. Please be prepared when reading.]

I have said before, and I will keep saying: forcing people to return to violence they have escaped is an open endorsement of that violence, a collusion with their persecutor back home and a joining of the open threat on their lives.

Every year the U.S. mass-exile system forces thousands of people to return to war zones and other dangerous places where they may be and sometimes are murdered with impunity.1 Some of those deported are children. Nowhere is this more true than in Central American states like Honduras, El Salvador and Guatemala, where a toxic brew of corruption, organized crime and neo-colonial fallout have generated ubiquitous violence and the highest murder rates in the world.2 Immigration and Customs Enforcement (ICE) returns many immigrants from Central America to these same states where they are being hunted. You could say they are delivered into the hands of their killers – that their murder is enabled, even assisted, by their deportation, by their deporters.

One study found that between January 2014 and September 2015 eighty-three deportees who were sent back to Honduras, Guatemala, and El Salvador were murdered after their return.3 They were people fleeing the killers who eventually took their lives. People like José Marvin Martínez, who fled violence in Honduras and made it to the U.S. when he was 16, but was deported and four months after his forcible return was shot to death.4 Or Juan Francisco Diaz, also deported back to Honduras, where he too was murdered a few months later.5 Or Giovanni Miranda, who, after spending most of his life in the U.S., was deported to El Salvador to be murdered in front of his wife and son in June 2015.6 Or Edgar Chocoy, 16, who ran away from a gang to the U.S. only to be murdered by that same gang seventeen days after he was deported back to Guatemala in 2004.7 Or an unnamed teenager who was shot to death hours after being deported back to San Pedro Sula, Honduras.8 Moises, 19, was murdered after he was deported to El Salvador.9 And there are too many more names we’ll never know.

What’s more, the number of deportees delivered directly to their killers does not include those who survive attempted murder or other violence because of their deportation – a number no one knows. Isais Sosa, who was 19 when the Los Angeles Times covered his story in 2014, survived being shot by a gang days after his deportation.10 The 19 year old daughter of Dora Lina Meza fled to the U.S. from the same gang that, after she was deported back home, raped her at gun point.11 After Juan Ines Alanis was deported he was kidnapped and held for ransom while his fingers were smashed with a hammer.12

The use of euphemism is a common tactic for masking brutality. Many have discussed the use of “bureaucratic euphemisms” to direct attention away from acts of violence in the context of slavery,13 genocide14 and torture,15 for example. From “special resettlement” to describe the forced relocation and mass murder of millions under Stalin,16 to “sleep adjustment,” and “enhanced interrogation techniques” to describe torture in the Abu Graib prison.17 “Euphemism” comes from the Greek word euphemismos, meaning to use favorable words in place of inauspicious ones,18 literally “eu” and “pheme” together mean “good talk.”19 The only reason to use favorable words to describe human suffering is to hide that suffering from yourself and others. But human beings deserve to have their “inauspicious” suffering described as accurately and directly as possible.

The process of deporting people to their death or maiming is facilitated and hidden from us through the use of euphemism. When we strip away the “auspicious” language, we’re forced to confront honestly the suffering of exiled people and our role in their fate. ICE “detains” (kidnaps20) human beings for the purpose of “deporting” (condemning) them to their “home countries” (war zones) where ICE knows that they could be “persecuted” (raped or murdered in cold blood). But while the euphemism is used to hide culpability, the fact of culpability remains. Where A knows that C will murder B if C finds B; and A kidnaps B and delivers B to C – isn’t A guilty of something? When we acknowledge that ICE knowingly facilitates the death of human beings, it makes it difficult not to assign that institution some amount of moral responsibility and culpability for their actions. The evil of euphemisms used to describe evil should be obvious: talk about violence should be direct and honest because we collude with that which we hide and keep secret. We hide and collude with the suffering of people in the mass exile system when we resort to euphemism and doublespeak.

Translating ICE’s auspicious words into their inauspicious meaning forces us to confront the reality of their injustice. In criminal law, when a person does not themselves murder someone but contributes sufficiently to someone else’s act of murder, we deem this person an accomplice or an accessory to murder. If federal agents delivered U.S. citizens directly into the hands of those who sought to harm them, this would probably be considered both criminal and unconstitutional. But as the Supreme Court admits “in the exercise of its broad power of immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.”21 The only reason we don’t recognize mass exile as the moral equivalent of an accomplice crime is because the law has decided that noncitizens are inferior to citizens and may, therefore, be treated as less than human. We protect our own conscience and accommodate this law by covering up human suffering with legal jargon that comports with the denial of human pain. This accommodation makes compliance with the law easier (e.g., “removal to your home country” instead of “deliver you to your killer”).

Let’s discuss a salient example of accomplice crime: a prison for mothers and their children in Dilley, Texas; a place where A kidnaps B and delivers B to C. Let’s talk about how criminal law would evaluate what happens at Dilley if we decided that it actually was not ok to make rules for migrants “that would be unacceptable if applied to citizens.”

The Scene of the Crime

During the week of July 5th to the 11th of 2015, I was one of many volunteer attorneys who spent a week working in the Dilley, Texas internment camp for mothers and their children,22 assisting some of the people imprisoned there with their claims for asylum and “bond” (the immigration equivalent of bail, that is, release from detention while your case is pending).

Just outside the small town of Dilley, just past a federal prison, a forest of industrial flood lights hang over the roof tops of a sprawling internment camp that someone in government has the Orwellian temerity to call the “Dilley Family Residential Center.” That name, which sounds like it might describe a nursing home or gated community, tells you that this is a place of denial and euphemism. Volunteers have compared it to the internment of Japanese Americans during World War II, or refer to it simply as “baby jail.” Both are accurate. It is an ICE operated, Corrections Corporation of America (CCA) administered prison for 2,400 women and children – 1,046 children, in fact, 96 of whom are younger than two.23 It is a series of interconnected trailers and dormitories surrounded by twelve foot high wire fences. It is equipped with a “playground,” and “court rooms,” spartan chambers where immigration judges preside over claims via video monitor from Miami, while the woman on the other end often sits alone with a prison guard at her side, often without an attorney. No one imprisoned in Dilley has been charged with any crime. This is where people are held after their capture near the border before they are either released into the U.S. (if they’re lucky) or deported back to their home country (where, it bears repeating, they may be murdered). Future generations will scarcely believe we were so timid in our opposition to such a place that we allowed it to flourish here. This is where the accomplices hide behind lies.

Much has been written about the madness of places like Dilley, by people with far more knowledge and experience with them than I have, and you should consult these sources first for thorough descriptions of the enormous human suffering Dilley contains.24 I will relate here only two memories from Dilley because they capture the ways in which its brutality is hidden with euphemism and denial.
First, the camp’s entrance: Visitors enter this prison for toddlers and their mothers through a long, white corrugated trailer with a bland gray door. Through the door you pass through antiseptic air and metal detectors flanked by armed guards. You may not enter the facility until you are stripped of any metal or glass on your person. Cell phones are forbidden. Cameras are forbidden. Money is forbidden (although you may take in a maximum of twenty $1 bills). More revealing of Dilley’s true nature, though, are the series of paintings on the wall opposite the metal detectors. They are watercolor-like, saccharine portrayals of life behind the iron fence; people dining carelessly in a prison cafeteria, happy children sitting in a classroom that’s behind bars. Think Norman Rockwell goes to hell. I mention them because they are a visual euphemism – an obnoxious and clumsy effort to convince us that this is a place suitable for human beings; an incredulous invitation to believe there can be happiness without liberty. This awkwardly placed art seems to be a disingenuous answer to a question DHS and CCA wish we would stop asking – how can it possibly be humane (or legal) to imprison whole families? It also smacks of what Vladamir Nabakov and Azar Nafisi called “poshlust,” or the banality and garishness often indicative of brutality, “the falsely important, the falsely beautiful, the falsely clever, the falsely attractive,”25 such as plastic flowers in a prison (or in this case, cheap paintings). The paintings reflect the mundane, humdrum mood with which Dilley personnel regard this place, a mood that evokes what Hannah Arendt called the “banality of evil.” These paintings attempt to warm the world to the idea of putting babies in prison and in so doing reveal the brutality inside.

Second, a very angry parent: At this point in history it is axiomatic to say that immigration detention camps often lack adequate healthcare for their prisoners – and the Dilley camp is no different.26 There are many stories of the people trapped there, adults and children alike, receiving inadequate medical care, or no care at all.27 In one incident, the Dilley facility endangered childrens’ health by giving them dangerously high doses of a Hepatitis A vaccine.28 Add this to humiliating living conditions (I’m told families are packed into bunk beds, in rooms less spacious than a college dormitory, with only a drawn curtain around the bed to simulate privacy, and someone has the gall to call these “suites”); add this to the persistent threats (any time ICE officials and judges remind internees about their imminent deportation they are effectively reminding them of their power to make internees suffer – in any other context we would call that a threat); also consider that many are hostages who cannot pay their ransom (ransom is a much more accurate way to describe the “bond,” $1,500 or more that when paid can ensure their release from this prison until the courts decide their fate, although not all are even eligible for bond); and you can imagine how angry a parent would be if the same people holding their son or daughter prisoner in this place also prevents them from seeing a doctor when they’re sick. Some people don’t need to imagine it. During my time at Dilley, one woman approached some of the volunteers to explain that her son had been feverish for days, that his conditioning was worsening, but that ICE or CCA or both would not release the child to a hospital. This would not be the first time volunteers called 911 for a sick detainee who was not receiving proper care. I cannot forget the rage on that parent’s face. Eyes wide, face red, her lips pursed and her bottom teeth exposed – she was as livid as I have ever seen anyone. If I was outraged, what words exist that could possibly describe how she felt? I feel compelled to talk about that person’s face because it seemed a rare moment of emotional honesty in a place where poshlust and cruel grandiloquence (“Family Residential Center,” “suites”) dominate. She described the injustice of Dilley with her face better than anyone writing about it can with words – her expression stripped away the euphemisms and lies.

So – looking behind the fantasy that those paintings want us to believe – when the people trapped in this government funded hell hole are forced to return to the places where we know they will be harmed or murdered – who is the accomplice to that harm or murder? Is it the ICE officer who physically pushes people into the airplane and forces them to board the flight back into the hands of their killer? Is it the Judge that orders the same? What about the Congress that made this cruelty law and the president who enforces it? Is it the CCA employee who conspires with them to hold that person captive for the purpose of having them forcibly sent away? Is it the guard who ensures this captivity at Dilley? Or the army of technicians, custodians and support personnel who ensure the prison functions and enables the guard? Is it the Customs and Border Protection officer who drags the parent and her child here in the first place to allow this process to begin at all? And what about the denizens of Dilley who support the facility indirectly, by delivering mail or scrubbing floors? What about the lawyers like me who, despite defending the prisoners from exile, must collaborate with this system in the process to do so? What about the taxpayers who funded this place?

Is it hyperbole to call any of these people accomplices to murder? It surely makes us uncomfortable to do so, and that discomfort is precisely what Dilley’s euphemisms are trying to make us forget or ignore. But dismissing this discomfort is dangerous because it deceives us into believing what is not true – that Dilley is anything more than a means to threaten and endanger peoples’ lives. The law of accomplice crime is an important tool for labeling accurately the cause and effect of what goes on at Dilley, even if it seems hyperbolic and especially if it makes us uncomfortable.

Accomplice Crime in Texas

Under Texas criminal law, a person “must” be found an accomplice to a murder when they “engage[] in an affirmative act that promotes the commission of the offense that the accused committed,”29 and do so “before, during, or after the offense,”30 while “intending or knowing” that their actions would “assist in causing the death” of the victim.31 To clarify, simply knowing that the murder will take place, but failing to stop it – or merely being present at the scene of the crime – are not enough to make one an accomplice.32 Rather, the person must engage in some affirmative act intending or knowing that this act will promote the victim’s death. For example, the Texas courts have said that simply disposing of a murder weapon33 or even disposing of the body after the murder,34 does not make one an accomplice to the act itself. It must be an act or omission that promotes the victim’s death.35 The standard for accomplice crime is the same, whether we’re talking about murder or robbery or any other intentional violent crime.36

Now, in criminal cases juries decide facts in the court room, and to do so properly they are given instructions by judges. Depending on the evidence, a Texas judge must instruct a jury to find that a person was an accomplice “as a matter of law,” or “as a matter of fact.”37 A jury will be instructed to find someone an accomplice as a matter of law when the evidence “clearly show[s] that the witness is an accomplice.”38 However, if it is not clear whether the individual is an accomplice, the jury must be asked to determine whether the witness is an accomplice as a matter of fact.39 For example, in one case, Mize v. State, a Texas court concluded that there was “at least” a jury question of accomplice “as a matter of fact” to the crime of robbery where the alleged accomplice drove the getaway car for the robbers and saw the robbers pointing guns at their victims.40 Here the driver’s affirmative act was driving the getaway car, it occurred immediately after the offense of robbery and the driver knew it was a robbery because he saw the guns pointed at the victims – thus, the jury and later the court found that the driver was an accomplice to the crime.41

Driving a getaway car is an apt analogy to the accomplice crime in Dilley. In Mize the driver was actively helping the robber complete their crime because without the driver’s help the robber would not be able to complete the crime. The analogy between driving the robber from the robbed and flying the murdered to the murderer – should be obvious. In a very real sense, ICE is driving the getaway car in reverse when they deliver people to their killers. Without ICE’s help, no killer hunting the deportee would be able to complete their crime. ICE facilitates the crime just like the driver in Mize. And just as the accomplice to the crime in Mize knew that he was chauffeuring around robbers because he saw the guns – ICE knows very well they’re chauffeuring Dilley captives to their death because they know the conditions in Central America, the captive has told them they fear death, and this pattern of deport-murder-repeat is not a secret to anyone. Those involved with physically holding and banishing people back to Central America, therefore, were they on trial in Texas, would at least have earned an instruction to the jury to determine whether or not they are accomplices to murder as a matter of fact.

Additionally, Texas courts have said that a person’s “consciousness of guilt” as to their facilitation of a crime, such as by fleeing the police or hiding their participation, “is perhaps one of the strongest kinds of evidence of guilt,” inasmuch as it would prompt a judge to instruct a jury to determine whether someone was an accomplice as a matter of fact.42 Do we have evidence that ICE wants to hide its participation in the kidnaping and murder of people? Yes. The euphemisms and poshlust are evidence. Why would the authorities who ordered, designed and set Dilley into motion call it a “family residential center” if they weren’t trying to hide the reality that it’s a prison? Why call it “removal” unless you’re trying to hide that it’s exile? Why decorate your prison with fake photos of happy prisoners when their real emotions are terror and rage? Why call them “suites” unless you don’t want people to know they’re cells? Do the higher ups of ICE and CCA believe that employees would find it harder to come to work if they were honest about the facility’s purpose? Does ICE assume the public would be more outraged if they used accurate words? Why hide behind a litany of misnomers if you weren’t trying to hide your own culpability? Those who bolster and entertain the use of these euphemisms let their guilt show. The circumambulation and the poshlust are efforts to hide their participation in violence, and this is evidence of their guilt as accomplices to the crimes committed again deportees. Look past the plastic flowers and you can see what Dilley really is: a crime scene.

No one who keeps Dilley running should be free from the creeping sense of shame or self-doubt. Every person who has ever been inside a place of such morally despicable character, who is not themselves its prisoner, even people like me, should be burdened with the responsibility to ask themselves, just like any Texas jury would have to ask themselves, how their actions have led to the death of other human beings and what role have they played in facilitating those deaths. These questions are the burden and the responsibility of anyone so involved. And if you’ve ever been through Dilley, close enough to it to be implicated in its crimes, then these questions are now yours– you own them. We cannot allow ourselves to assuage our consciences with words that hide the truth. Who is an accomplice to murder in Dilley, Texas? There, that question is yours now. Go live with it.

Related reading

Footnotes

1 See, e.g., Anna Cat-Brigida Deporting People to Their Doom in Murderous Central America, The Daily Beast, Feb. 7, 2016, (“Just last year 75,000 migrants were deported back to the Northern Triangle [Guatemala, Honduras and El Salvador]”).
2 James J. Phillips, Honduras in Dangerous Times: Resistance and Resilience, at 227 (2015); Guy Taylor & Stephen Dinon, Violence Surges in Central America, Threatening New Refugee Flood, The Washington Times, Jan. 10, 2016
3 Attorney General Kamala D. Harris Joins Washington State in Filing Amicus Brief to Ensure Unaccompanied Minors are Guaranteed the Right to Counsel State of California Department of Justice Press Release, March 11, 2016; Sibylla Brodzinsky & Ed Pilkington, U.S. government deporting central American migrants to their deaths, The Guardian, Oct. 12, 2015; Anna Cat-Brigida Deporting People to Their Doom in Murderous Central America, The Daily Beast, Feb. 7, 2016
4 Sibylla Brodzinsky & Ed Pilkington, U.S. government deporting central American migrants to their deaths, The Guardian, Oct. 12, 2015
5 Id.
6 Roberto Lovato, Deported to Death: The tragic journey of an El Salvadoran immigrant, AL Jazeera America, July 11, 2015
8 Cindy Carcamo, In Honduras, U.S. Deportees Seek to Journey North Again, L.A. Times, Aug. 16, 2014
9 Pastor Mark Knutson, Francisco’s Son has been murdered in El Salvador, Feb. 20, 2016
10 Cindy Carcamo, In Honduras, U.S. Deportees Seek to Journey North Again, L.A. Times, Aug. 16, 2014
11 Bob Ortega, Revisiting the immigration pipeline: Deported into Danger, Nov. 13, 2014, The Arizona Republic
12 Aaron Nelson and Jeremy Roebuck, Immigrants are being deported into danger, The San Antonio Express-News, Oct. 5, 2013
13 Winthrop Jordan, Tumult and Silence at Second Creek: An Inquiry into a Civil War Slave Conspiracy, revised edition, at 94 (1995)(describing the word “examine” as a euphemism for whipping as punishment and to extract information).
14 Timothy Ryback, Evidence of Evil, The New Yorker, Nov. 13, 1993 (noting the “extensive” use of euphemisms in official documents that record the genocide at Auschwitz)
15 David Brooks, Shields and Brooks on the CIA interrogation report, spending bill sticking point, PBS Newshour, December 12, 2014 (describing the CIA’s use of the term “enhanced interrogation technique” as a euphemism designed to “dull the moral sensibility.”).
16 Roger Griffin, “’Lingua Quarti Imperii’: The Euphemistic tradition of the extreme right,” at 55, Mathew Feldman & Paul Jackson (Eds), “Doublespeak: The Rhetoric of the Far Right since 1945”(2014)
20 Kidnapping, by the way, is an accurate description of what ICE does when they “apprehend” a person and lock them away against their will, a process you’ll notice is described pretty accurately by the legal definition of kidnapping: To “intentionally or knowingly abduct” another person; “Abduct” is defined as restraining someone “with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force.” TEX. PEN. CODE. ANN. §§ 20.03(a); 20.01(2).
21 Reno v. Flores, 507 U.S. 292, 305-06 (1993)
22 Human Rights Watch, US: Trauma in Family Immigration Detention, May 15, 2015
24 National Immigrant Justice Center, Stop Detaining Families, [last accessed May 5, 2016]; Human Rights Watch, US: Trauma in Family Immigration Detention, May 15, 2015
25 Azar Nafisi, Reading Lolita in Tehran: A Memoir in Books 23 (2003).
28 Jason Bunch, Children at Dilley Detention Center got Adult dose of Vaccine, My San Antonio, July 4, 2015
29 Smith v. Smith, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).
20 Id.
31 TEX. PENAL CODE ANN. § 19.02(b)(1); Sturdivant v. State, 445 S.W.3d 338, 355 (1st Dist. 2013), rev’d on other grounds by Sturdivant v. State, 411 S.W.3d 487 (Tex. Crim. App. 2013).
32 Smith v. Smith, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).
33 Paredes v. State, 129 S.W.3d 530, 537 (Tex. Crim. App. 2004). 
34 Caraway v. State, 550 S.W.2d 699, 702-3 (Tex. Crim. App. 1977).
35 McFarland v. State, 928 S.W.2d 482, 514 (Tex. Crim. App. 1996).
36 See, e.g., Mize v. State, 915 S.W.2d 891, 895 (Tex. Crim. App. 1995).
37 Smith v. Smith, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).
38 Id. e.g. the individual must be chargeable with the same crime committed by the defendant (the murderer). See Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007).
39 Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998).
40 Mize v. State, 915 S.W.2d 891, 896 (Tex. Crim. App. 1995).
41 Id.
42 Hyde v. State, 846 S.W.2d 503, 505 (Tex. App. Corpus Christi 1993, pet. ref’d) (quoting Torres v. State, 794 S.Wd 596, 598-600 (Tex. App. Austin 1990, no pet.)).

Open Borders editorial note: As described on our general blog and comments policies page: “The moral and intellectual responsibility for each blog post also lies with the individual author. Other bloggers are not responsible for the views expressed by any author in any individual blog post, and the views of bloggers expressed in individual blog posts should not be construed as views of the site per se.”

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.

Do I have a right to be here?

Every human being has an inalienable right to migrate across their planet without restriction or fear.1It is impossible to place a restriction upon this right that is not animated by racism and classism.2 An immigration law is an act of violence that enforces and reinforces the idea that it is morally acceptable to hate3 someone because of where they were born. There is no migrant crisis – there is a migration-restriction crisis. These are the presumptions I begin with and proceed from.

In 1896, my great grandmother, Nicolina “Nellie” Falvo, boarded the S.S. Algeria in Naples, Italy for the United States.4 She arrived in New York City on August 15, 1896 as a 15-year old domestic servant.5 It was easy for Great grandma Nellie to enter the United States because the law was different then, and with some racist exceptions,6 many people were permitted to cross the border and settle indefinitely without a visa or papers of any kind.7

Open Borders: The Case editorial note: Check out Vipul Naik’s posts Ellis Island and keyhole solutions and How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910)

The law is different today. Today, my great grandmother would be barred by law from entering New York City and from remaining here indefinitely, with very few exceptions. Instead of standing in line at Ellis Island, she would be received by armed police, prison and forced relocation back to Italy. If great grandma Nellie tried to cross the border today, the law would measure her against an impossibly elaborate list of arbitrary factors to judge her deserving or not deserving of entering and remaining in the U.S. What makes these factors arbitrary is not their complexity or rationale, but their lack of equity. Equity is a wonderful legal concept – more than equality, it means fairness, or more precisely it presumes that all human beings are equal before the law, and that therefore they should be treated fairly as to one another. Black’s law dictionary defines equity this way: “Fairness; impartiality; evenhanded dealing . . . The body of principles constituting what is fair and right; natural law .”8

Immigration restrictions under U.S. law are not equitable because they do not first presume that all human beings are equal. Instead, all immigration restrictions are built upon the foundational idea that non-citizens may be treated differently than citizens only because they are not citizens. This difference and this difference alone justifies their mistreatment, and this is what I mean when I described immigration laws as inequitable or arbitrary – they are morally arbitrary.Immigration laws are fundamentally unfair in their application to human beings and this becomes clearer when we imagine how a rule made for non-citizens might look if it were applied to citizens. Take, for example, the immigration law that says someone may be denied legal permanent residency if that person is designated “a public charge,” that is, using certain forms of welfare for which they were nonetheless financially eligible.9 What about all of the citizens who are “public charges” – the poor, the disabled, the elderly, the Wall Street bankers10 – why not deport them? As author and open borders advocate Teresa Hayter notes:

“. . . in general people over the age of 70 receive more from public expenditure than they contribute to it, an argument corresponding to the one on immigration would have to be that such persons are undesirable and should be expelled from the country. Doubtless the same would apply to the unemployed, the severely handicapped, perhaps to religious people and artists. . .”11

The only reason this Jonathan Swift-like argument is not rejected, Hayter points out, is that it concerns non-citizens. Thus “to take this argument seriously is to contribute to the dehumanization of the migrant.”12 I agree with Hayter that to take immigration laws seriously is to accept that non-citizens are less human than citizens – a fundamentally inequitable idea.

Which brings me back to great grandma Nellie and the point of this article. If Nellie could come here without legal restriction, then it seems only fair that others coming in the same manner today should be afforded the same unencumbered access to enter and remain.If persons in Nellie’s position today are not given the same leave she was, how then can I, a beneficiary of the leave granted Nellie, equitably claim more of right than they to stay and remain and live and seek work here? Why do I deserve to stay and remain at all, and why don’t others? As Hayter has said of immigration controls, they give a state “the right to choose between the deserving and the undeserving.”13 Many factors are often called upon in U.S. immigration law and policy to justify whether someone like Nellie or I “deserves” to be here, some of the more common ones include; birth in the U.S; time in the U.S.; having family in the U.S.; and the fact that someone will face specific kinds of danger if they leave the U.S. I consider these justifications below, and reflect on why they are morally arbitrary and unfair, and question if and why I deserve to be here.

What you will not find below are arguments against immigration controls that are rooted in economics, utilitarianism, or negative policy outcomes.14 Instead I question whether immigration restrictions on their face can be called fair by any person who assumes all human being are equal.15 As author and professor of history Aviva Chomsky has observed about the very idea that it is ok to restrict the immigration of people for some of the below reasons, “with a bit of critical distance, the notion appears more and more absurd.”16

I. Do I deserve to live here because I was born here?

Nellie was not born in the U.S., and would that she had tried to enter today, she would have been punished for that fact. Under current law persons born inside U.S. territory are U.S. citizens at birth, pursuant to the clause of the Fourteenth Amendment of the federal U.S. constitution, which says “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Such people are welcomed by the law with open arms, completely and unconditionally. By contrast persons born outside U.S. territory(with the exception of some persons who have U.S. citizen parents17) incur the law’s disdain and suspicion as “aliens.”

Open Borders: The Case editorial note: Check out Joel Newman’s post Open Borders Allow People, Not Their Place of Birth, To Control Their Lives

That an immutable characteristic like place of birth should justify discrimination contravenes the idea of equality. Professor of immigration law Hiroshi Motomora, understating what should be more obvious than it is, has pointed out the “inherent tension in immigration law- between the basic idea of national borders, which inherently discriminate between insiders and outsiders – with a sense of justice that embraces a commitment to equality.”18 Political scientist Jacqueline Stephens, putting a finer point on it, says the idea of birthright citizenship is as incompatible with a liberal, egalitarian society as discrimination based on race or religion because it is “the epitome of discrimination based on ancestry” and thus constitutes “global apartheid.”19 And she’s right: I did not earn my birth here; I did not chose my ancestry or pick my passport, any more than I decided my skin color or worked toward my sex at birth. How then, could I have possibly earned access to a life and a job here more than anyone else who has earned and chosen as much as I have, but been born elsewhere? Can I claim anything other than the most naked luck and arbitrary participation in the lottery we call “nationality?” I am not a person who immigrated to the U.S, who performed, what Teresa Hayter has called “staggering feats of ingenuity, courage and endurance to assert their right to move and to flee,”20 in order to be in the U.S. Instead, I was born with an American spoon in my mouth. If birthright citizen were about anything more meritorious than immutable characteristics, then maybe people like me, who exerted no effort or initiative to be here, should be deported. But of course it seems unfair to deport people who have lived here their whole lives. Yet that is exactly what the rules of deservingness do to noncitizens in identical positions – those brought here as infants, lived here their whole lives and known no other country, but still subject to deportation.21 This is the brutality of birthright citizenship.

Birthright citizenship is about privilege. One effect of privilege – whether it comes from skin color, or genitalia or locos of birth –is that it bestows enormous power but asks nothing in return. It is a free lunch in every sense of the term;a gift sent to the wrong address; an inheritance from a relative you never acknowledged; the beneficiary is a spoiled child that did not chose its family. By what right do the privileged hoard the good graces of the universe? By no right, of course, that is why it is a privilege. The same can be said of the birthright privilege to remain. As Aviva Chomsky notes, “[i]llegality is the flipside of inequality. It serves to preserve the privileged spaces for those deemed citizens and justify their privilege by creating a legal apparatus to sustain it.”22 This is why Joseph Carens hit the nail on the head when he compared birthright citizenship to the system of nobility and peasantry during the European middle ages – where your opportunity in life is dictatedentirely by the family of your birth.23

Some have challenged the birth-right citizenship rule, typically to exclude, not include, and this challenge, by virtue of its effort to disenfranchise some people who were born in the U.S., ironically highlights the arbitrary nature of birthright citizenship itself. The effort to deprive citizens of birthright citizenship has been a pet project of the political right in the United States at least since 1985, when a book24 introduced the idea into the minds of people looking to justify their contempt for immigrants.25 The authors and their proponents have argued, among other things, that “subject to the jurisdiction thereof” does not apply to babies born to persons who are inside U.S. territory against its laws, because they were not “subject” to the legal jurisdiction of the U.S.26 That interpretationof the Fourteenth Amendment has never been accepted by the Supreme Court,27 nonetheless, the implications of that argument against birthright citizenship stagger the mind, since its retroactive implementation would literally disenfranchise a hundred million people28 whose parents, or grandparents, or great grandparents were not U.S. citizens when their children were born in the U.S.29 I could be one of those people, if, say, my grandfather was born when great-grandma Nellie was still a citizen of Italy and not the U.S. (I actually don’t know when she naturalized). After all, if Nellie’s youngest (my grandfather) was not a U.S. citizen when he was born to her, then neither was my father when he was born, and thus neither am I.

If the idea of taking U.S. citizenship from whole families living in the U.S. for three or four generations should seem unfair or inequitable to anyone, then it’s worth asking why. Does it seem unfair because people born here to noncitizen parents are in the same position as peopleborn here to citizens? Why, after all, should one group be treated differently for reasons they can’t possibly control?Yet the same can be said of birthright citizenship as it exists today. Birthright citizenship deprives the unluckily-born outside the U.S. of rights for immutable reasons, ones related to ancestors and parents they had no choice about. Nellie would have no right to enter the U.S. because she was unlucky enough to have had a mother who went into labor outside its borders. Birthright citizenship excludes persons born outside the U.S. just as unfairly as would a rule precluding birthright citizenship altogether –in both scenarios people are denied rights because of immutable characteristics.

Do I deserve to live here because I was born here? Equitably speaking, if I don’t then it’s difficult to say who does, and if I do, then it’s equally hard to say who doesn’t.

II. Do I deserve to live here because I grew up here?

Another justification for identifying those who deserve to be here from those who do not, is by bean-counting the number of years they can claim they’ve lived within the U.S. The theory is that the longer a person lives here, the stronger their claim to continue to live here.30 One relatively rare form of relief from deportation, for example, is called “cancellation of removal,” and it applies the bean-counting logic. Upon a showing of a number of other arbitrary factors,31 cancellation of removal may be available to an undocumented non-citizen whois in the U.S. against its unjust laws for ten years. Another, even rarer form of relief will allow someone to have permeant legal residency if they’ve accomplished the difficult feat of remaining undocumented inside the U.S. continuously since January 1, 1972.32 Length of time in the U.S. has also been identified as a “favorable” factor in any discretionary grant of permission to remain in the U.S.33

First, the argument that a person deserves to live in a place more than other people because they grew up there is itself an argument that is not,in practice, applied as consistently to non-citizens as it is to citizens. For example, east-coaster that I am, I have never set foot in California or Kansas or Alaska, yet the millions of non-citizens who have called these places home for years or decades have less of a right to be there than I do, because they’re paperwork is different? I, who could not tell you which way Sacramento is from Los Angeles, have, in fact, a legally absolute right to travel, live and work in LA, while someone with different paperwork who has lived in LA enough years to memorize every interstate number may have no such right.

Open Borders: The Case editorial note: Check out The Difference Between an Illegal Immigrant and Me: A Little Memoir and Some Questions It Raises by Robert Higgs

More to the point though, why should my three-plus decades in the U.S. and, say, my two years living in New York City, make me more deserving to live here than someone with fewer years? Why should the accumulation of time in any one location (unearned time vis-a-vis accidental birth, at that) by bootstrapping, create an exclusive right to accumulate more time in that same location? I am here, therefore I should be?

Even assuming time plus geography equals superiority of right to reside, the equitably arbitrary nature of that rule is exposed when one attempts to apply it: Recall that ten years of residence is what an undocumented person34 would need to get “cancellation of removal.” The law says ten, and it means ten.35 So, ten years is enough to deserve to stay here but not nine, never nine – nine would be a ridiculous assertion, as would nine and a half, or nine and three quarters.36 Five years or eight years could never do it, for some just-because reason. And what of the twelve year old child who has lived here for nine years, three quarters of her life? Shouldn’t she have more of a right than a fifty year old who’s lived here for ten years, only one fifth of their life? Ten, in this case, is a number based on little more, it seems, than the vague emotional sense that a decade is a pretty long time, and if deservingness is to sprout out of any length of time, a decade seems a safe duration to choose.

I understand that time is how we measure home – length of time builds bonding with places and the more time the greater the pain of separation. So perhaps the law is simply saying it’s less inclined to tear someone away from the U.S. the longer they’re here, for, say, humanitarian or sentimental reasons. Of course people shouldn’t be torn from places they love, but neither should they be exiled from places just because they lack nostalgia for them. Isn’t nostalgia itself an unfair standard to measure deservingness to enter and remain? Does that mean a ten year old citizen is more easily deportable than a ninety year old citizen, since the latter is clearly more closely bonded with their city or state? What about the U.S. citizens who live in a place, but don’t like it very much (say, teenagers who are tired of their boring hometown), should they be forced to go? No, of course, because citizens cannot be deported at all.37 Thinking it through reveals there is nothing equitable about bean-counting years as it treats non-citizens compared to citizens.

Nellie eventually lived in the U.S. for several decades after her arrival, but before doing so, of course, she could not have claimed deservingness on this ground. I have lived in the United States almost since I was born here, in July 16 of 1982. (I say almost, because counting all the time I’ve spent outside the U.S. leaves me with thirty one and a half years, give or take, of living inside the territory of the U.S). The rationale in immigration law implies that these three decades are a sort of fertile temporal soil out of which my deservingness has sprouted. Yet, as we’ve seen, even for the non-citizen born outside the U.S. who nonetheless lives here for the same period of time, the law says the same is not true for them. One potential retort to the magical ten year line, or for that matter to birthright citizenship, or any other arbitrary rule, is that “we have to draw the line somewhere.” But actually, the whole point of a thousand blog posts on this very site is that no, actually, you don’t have to draw the line anywhere.38 Immigration law is fundamentally unfair precisely because it presumes it can draw a line at all.

III. Do I deserve to live here because I have family here?

The manifest of the S.S. Algeria does not show Nellie arriving with any relatives, though she was only 15.39 It’s possible that she had relatives here already, but it’s also possible she had no family here to greet her. In which case Nellie’s lack of family in the U.S. would today probably keep her out of lawful status her entire life, if not out of the country itself. The law makes out a number of ways for noncitizens to remain in the U.S. if they can show some special relationship to a U.S. citizen or legal permanent resident. For example, remember “cancellation of removal”? In addition to the ten years in the U.S., the undocumented noncitizen would have to show, among other things, that their deportation would result in “exceptional and extremely unusual hardship” to their U.S. Citizen of green card-holding spouse, parent or child.40 Putting aside for a moment the fact that this “exceptional and extremely unusual” standard is extremely high and incredibly difficult to reach,41 this relief shows that the immigration court is concerned, not with the life or death of the noncitizen(indeed their deportation could result in their certain death for all the immigration court cares (more on that below)) but with the “hardship” caused to the citizen or LPR. In other words the non-citizens presence in the citizen’s life must benefit them so much that their deportation would cause them this astronomically high level of “hardship.”

Open Borders: The Case editorial note: Check out Nathan Smith’s blog post The right to invite

But whether or not a person’s presence benefits or does not benefit a U.S. citizen is really just a way to measure someone’s worth or desirability based on how much use they are to others. The law of “cancellation of removal” is saying the non-citizen has no inherent worth, not by themselves anyway – their value is measured only by how much their absence does or does not negatively affect citizens, whether financially, socially or otherwise. This is an unambiguous statement about the inferiority or sub-human character of a person because they were born elsewhere. Of course plenty of citizens give no benefit to other citizens, but we don’t deport them. There are also many citizens who have no spouse or child in their lives, such that their deportation would really affect no child or spouse negatively, except themselves(for example,former Chief Justice of the Supreme Court David Souter or Oprah Winfrey) – but the law will not deport them.Reducing a person to what they’re materially “worth” is what the law does when it asks about their “family ties” and how much “hardship” they would cause the citizen if they were exiled from the country. The inquiry is just a euphemistically veiled process of treating a living human being like a broken kitchen appliance, which is to say like an object, and disposing of them with proportional inhumanity when they’re without use to a citizen. This idea that a noncitizen’s worth can be altered only by way of their relationship to a citizen is also the foundational idea for how many people acquire the infamous green card, or permanent residency in the U.S. Unless you can get a green card through an employer (itself a difficult task),42 or something called the “diversity lottery” (you can’t get more arbitrary than a lottery!),43 or you’re one of the rare ones who gets some form of (very) rare humanitarian relief,44 acquiring a green card through a close family member is just about45 the only other way one can hope to acquire permanent residency in the U.S. Assuming you meet a handful of threshold criteria,46 you might be able to get a green card, for example, through a spouse, parent,twenty-one-year-old-or-older child, or sibling. Without one of these relationships the law will deem the noncitizen undeserving of living in the U.S., classifying such a person as an invisible non-human creature, until they are bestowed with equality and humanity through their marriage to or parenting of a citizen. Again, this rulesuggests that citizens can bestow worth upon noncitizens, but not vice versa – implicitly assigning more humanity to one than the other.

As it happens, I am not married to my partner, so if I lost my citizenship through, say, some vicious reinterpretation of the Fourteenth Amendment, my partner wouldn’t be able to help me stay here at all – our relationship, like my worth as a person, would be invisible to the law.I do have two parents and a brother in the U.S. who are U.S. citizens, and I suppose, in a scenario where I was without U.S. citizenship,I could rely on them as the measure of my value as a human being. I’m certain, however,that were I to try and make out a claim for “cancellation of removal,” I could absolutely not show “exceptional and extremely unusual hardship” to thesefamily members in any event(a standard which is, it bears repeating, unbelievably high),47 because they simply don’t rely on my enough to make my departure “extremely unusual,” to them. Yet, no one’s ever come knocking on my door with a one-way ticket for Naples or forced me to weigh my right not to be exiled from my life in the U.S. against how useful I am to other, more privileged people.

IV. Do I deserve to live here because I would face danger elsewhere?

To quote Teresa Hayter, “I do not accept the moral distinction between political refugees and those who cross frontiers in search of work.”48 This is not meant to lessen at all the moral imperative of giving sanctuary to the asylum seeker – but is instead meant toaffirm the right to immigrate as so fundamental and unconditional, that the reason for a person’s migration is irrelevant. We should not even reach the question of why the person is migrating because, as Hayter put it, “the people best able to decide whether they need to migrate, or to seek refuge, are migrants themselves.”49 Any implication that an asylum seeker has even a smidgen more of a right to enter and remain than someone coming for different reasons, serves to deny everyone their fundamental right to migrate.

The most common way a non-U.S. citizen might seek safety in the U.S. from danger in their home country is through asylum – but qualifying for asylum is notoriously difficult because it requires applicants to squeeze through some very narrow criteria. Like birthright citizenship, the narrow criteria of asylum eligibility highlights the arbitrariness with which the law excludes so many people, even under asylum law’s most liberal interpretation. Under asylum law, a noncitizen may remain in the U.S. if they can demonstrate that they have been persecuted or have a “well-founded fear” of future persecution in their home country. But actually, it’s much narrower than all that – because the non-citizen has to show they were or will be persecuted on account of their race, religion, nationality, their political opinion, or their “membership in a particular social group”50– persecution for any other reasons, or danger from any other source, won’t get you asylum.51 But actually, it’s even narrower than that, because the non-citizen also has to show their government can’t or won’t protect them from the persecutor, and that theycan’t relocate safely within their own country, and they have never participated in the persecution of anyone else themselves, oh and that they’ve never committed a “particularly serious” crime anywhere.52 If you can’t show all of these things – and I do mean all of these things – the person can be deported, even if their deportation would lead to their death, or immense suffering, or a life of grinding poverty, or anything else really.53 That means there are many more scenarios that asylum does not protect you from than the ones it does protect you from – crushing poverty, natural disasters, disease, etc. – even if the end result is the same and just as likely: your bodily harm or death.54

Suppose Nellie, 15 years old, were someone who faced poverty, or sickness, or death or murder if returned to Italy (I have no idea what she actually faced if she was returned to Italy, although poverty is a safe bet). The question of who, under asylum law, “deserves” to live in the U.S. (this often means who deserves to live at all) is ultimately in such tension with the idea of equality, that it does not take much effort to imagine multiple scenarios that highlight this. Let’s list some scenarios in which asylum law would not protect someone like Nellie from harm. Feel free to reflect on whether or not you feel the scenario increases or decreases Nellie’s deservingness to enter the U.S. as compared to someone eligible for asylum, which is to say the merits of Nellie’s right to live at all (I would invite you to substitute your own loved one’s name for Nellie’s):

Suppose Nellie faces lethal poverty in Italyif she is not permitted to enter and stayin theU.S., does she deserve to enter and stay as much as a traditional asylum seeker? What if Nellie is certain to return to homelessness or famine? What if a volcano went off in Italy and covered Naples in a pyroclastic flow – does she deserve to flee and enter the U.S. as much as an asylee now? Suppose Italy is engulfed by civil-war, or the government collapsed and Naples is just Mad-Max-like bedlam ruled by pale gangsters in spikey cars, does she deserve to flee and remain in the U.S.? What if Naples has the highest murder rate in the world? What if it has the highest rate of accidental traffic death in the world? What if turn-of-the-century Italy is overcome by the ebola virus? What if it’s sinking into the sea? What if the water was tainted or a chemical-plant exploded and there was just a higher risk of poisoning or food-born illness, not certain doom, but a much higher likelihood of doom, does she deserve to enter as much then?What if it’s just a higher risk of doom instead of a much higher risk? Are you willing to let your loved one risk it? Forget big macro-level causes of death, what if Nellie is being chased by a bear, and the only way to save her life is to let her cross the border? Replace the bear with a chainsaw-wielding maniac, how does her life fare against an asylee’s life now? What if Nellie needs medical attention she can’t get in Italy? What if she needs medication or care for a chronic illness she can’t get in Italy, and staying there is certain to cut her life short? What if Nellie’s crossing the border is the only way to save someone else’s life? Maybe she has blood or a kidney someone needs. How about if that someone else is a noncitizen? If they’re a citizen does your answer change? What if Nellie has a toddler and Italy has the highest infant mortality rate in the world? What if it’s your toddler? What’s if it’s you?

Open Borders: The Case editorial note: Check out John Lee’s blog post Junk the international refugee system, and open the borders

How little it would matter to any of us exactly what the cause or method of our loved one’s death or maiming is – all we would care about is the fact that they faced death or maiming at all. How unwilling we would be to weigh in our minds their merits of living or even their merits of being happy, against someone else’s “stronger” claim to life or happiness. Why then should immigration law distinguish in the same way between other people’s lives – between who deserves sanctuary from harm and who doesn’t? Why should, in each scenario above, a non-citizen be denied asylum (and they would be, in each of those scenarios above, with the possible exception of the chainsaw wielding maniac56), denied the right to live, or the right to be safe, because their method of death or maiming just didn’t fit one of the five protected grounds?57 Why would we limit at all the number of grounds for which we’re willing to protect human life or human freedom?There are few examples outside asylum that show as clearly as it just how unambiguously the law values the lives of non-citizens less than citizens.

V. Do I deserve to live here because I am a human being?

I have a right to be here because I am a person and this is my planet. I’m unwilling to gauge anyone else on any criteria beyond those. These laws raise questions about what broader principles of inequity are at work behind them, but here are some possibilities: noncitizens are worth less than citizens; humanity is tied to citizenship; non-Americans are sub-human; the value of human life is contingent on locus of birth.

When a person’s right to something is not recognized, the law must instead rely upon an arbitrary judgment of their deservingness in order to determine their fate. Toask whether someone deserves to be free or safe is to make that person’s wellbeing entirely dependent on the discretionary mercy, compassion or contempt of someone else. Author and professor of political science, Ayten Gündoğdu describes this condition of the immigrant as one of “rightlessness,” that is, having not even the right to have rights, becausethey have “lives that are dependent on the favors, privileges, or discretions of compassionate others.”58 Gündoğdu observes that relying on the “capricious moral sentiment” of others, instead of enjoying the protection a right would afford them, “risks unmaking the equal personhood of migrants.”59 A person dependent on compassion to be alive is a person without a right to be alive. Without a right to be here a person loses their status as an equal human being altogether, and they will be subjected to state violence vis-à-vis a thousand arbitrary rules animated by the moral inequity of rightlessness. Sorting through the cruel minutia of U.S. immigration law, I can find no rational justification for why I have more of a right to be here than someone else born, raised, or running from somewhere else. And I can see no reason in the idea that my great grandmother or someone like her, had or would now have less of a right to enter and remain than anyone else born or raised or related to someone here. All I can see in the immigration laws are double standards – one set of rules for this group of people and another set of rules for that group of people – all justified by the dehumanizing idea that U.S. citizenship is the arbiter of human worth.Either everyone has a right to be here, or no one does. Anything in between is a lie.

Related reading

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Footnotes

1 More on this right to come in future posts.
2 “Nationality itself has its origins in racial thinking and still bases itself on birth and origin in ways that echo racialism.” Aviva Chomsky, Undocumented: How Immigration Became Illegal 14 (2014).
3 I do not use the word ‘hate’ lightly. In my view, racialism and white supremacy cannot be separated from U.S. immigration law and policy (I’m not even convinced they can be separated from the very concept of nationality). See supra note 2. Like the ideas that fuel racist ideology, the ideas encouraging immigration restrictions are often sub-conscious and the person acting on them may be unaware they are doing so, or may believe themselves to be unbiased. Nonetheless, these ideas come from a place that is very much fueled by hate, inasmuch as the word ‘hate’ is semantic shorthand for those beliefs that allow us to de-humanize other human beings. That is how I’m using the word here.
4 See ship manifest on file with author.
5Under “occupation” the shipping records list my great grandmother’s occupation as “Help”. See shipmanifest on file with author.
6 The Chinese exclusion Act of 1882 prevented persons of Chinese or Japanese ancestry from migrating to the United States. [FIX!] See Erin L. Murphy, “Prelude to Imperialism”: Whiteness and Chinese Exclusion in the Reimagining of the United States, 4 J. of Historical Sociology 457-490, 476 (Dec. 2005).
7 See Hiroshi Motomura, Immigration Outside the Law 67-68 (2014).
8 Black’s Law Dictionary (9th Ed., edited by Bryan A. Garner) 619 (2009).
9 See 8 U.S.C. 1182(a)(4).
10 See, e.g.,http://money.cnn.com/news/specials/storysupplement/bankbailout/.
11 Teresa Hayter, Open Borders: The Case Against Immigration Controls (2d Ed.) 2004, at 161
12 Hayter, at 161.
13 Hayter, at xxV.
14 Many others have already made these argument far better than I can. At any rate, one does not need to reach or rely on these if one accepts that immigration restrictions are wrong in principle, regardless of their outcome.
15 Of course I’m far from the first to confront these questions – others have asked them before and in more eloquentprose than I (See, for example, the writings of Joseph Carens, Linda Bosniak, or other authors referenced here). I engage these questions again here both because (our world being what it is) they bear repeating, and because I think it is important for immigration lawyers, who may be seen as proponents of the immigration system, to be vocal about their personal opposition to immigration restrictions generally.
16 Aviva Chomsky at 20.
17 See 8 U.S.C. § 1401.
18 Motomora at 98.
19 Chomsky at 36.
20 HAYTER, at 152.
21 In one 2009 case, for example, a man who was “born in Mexico in 1972 and 1973,” was nonetheless ordered deported. See Hernandez-Aguilar v. Holder, 2009 WL 4067644 (9th Cir. 2009), 86 No. 46 Interpreter Releases 2932, at 2935 (2009).
22 Chomsky at 19.
24 Rogers Smith & Peter Schuck, Citizenship Without Consent: the Illegal Alien in the American Polity (1985).
25 See Cristina M. Rodriguez, Symposium: The Second Founding: The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment, 11 U. PA. J. CONST. L. 1363 (2009).
26 See Rogers Smith & Peter Schuck, Citizenship Without Consent: the Illegal Alien in the American Polity (1985).
27 See, e.g.,U.S. v. Wong Kim Ark, 169 U.S. 649, at 688 (1898)(“. . . the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well-considered opinions of the executive departments of the government, since the adoption of the fourteenth amendment of the constitution.”).
29 In theory, of course – barring any statute or like-policy that would preclude a retroactive application of such a catastrophic idea.
30 Actually, this justification is not even afforded to non-citizens in immigration law as much as you might imagine – and there are plenty of circumstances where living here for decades earns you nothing in the eyes of the law, save a prison cell and a flight back where you came from.
31 In addition to continuous presence in the u.s. for ten years, the person must have “good moral character,” not have been convicted of certain crimes, and demonstrate that their deportation would result in “exceptional and extremely unusual hardship” to their U.S. Citizen of Green card holding spouse, parent or child. See 8 USC 1229b(b)(1).
32 See 9 USC § 1259.
33 33SeeJeh Charles Johnson, “Memorandum: Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” November 20, 2014; John Morton, “Memorandum: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens,” June 17, 2011
34 For what it’s worth, I hate this term “undocumented,” but I have not year heard of any more polite alternative to describe persons residing in U.S. territory without the permission of the U.S. government. I welcome others to volunteer alternative nomenclature because I am actively seeking out the same.
35 35See, e.g., Galvez-Martinez v. Holder, 356 Fed.Appx. 47, at 49 (9th Cir. 2009) (“Petitioners’ argument that Jose’s longer physical presence in the United States should be imputed to his daughter Alma so that she might satisfy the 10-year statutory presence requirement of 8 U.S.C. § 1229b(b)(1)(A) is foreclosed … [t]he BIA correctly found that Alma lacked the 10 years of physical presence necessary to qualify for cancellation of removal.”)
36 There is actually an exception to this rule – a temporary absence of no more than 90 consecutive days is permitted, but if the aggregate amount of time outside the U.S. is 180 days or more, then you areineligible, strict standards that open themselves up to the same criticism the strict 10 year-rule does. See8 USC § 1229b(d)(2).
37 See Lopez v. Franklin, 427 F.Supp. 345, 347 (E.D.Mich. 1977).
38 See literally any post on this website.
39 See ship manifest on file with author.
40 See 8 USC 1229b(b)(1).
41 For example, the fact that a non-citizen’s U.S. citizen child, upon the non-citizen’s deportation, would suffer from poverty and poor schools in their home country was simply not unusual enough, let alone extremely unusual, to rise to the level of the kind of hardship you’d have to show. SeeIn Re: Angel Lojano A.K.A. Manuel Pauta, 2012 WL 1705667, at *2.
42 For example, you might be able to get a green card through employment if you were an Iraqi translator for the U.S. government, you worked on the Panama Canal, you’re “an alien of extraordinary ability,” (i.e. you’re a genius in your field, and not, as it sounds, a Kryptonian) or if you can show there aren’t enough “U.S. workers able, willing, qualified and available to accept” the job you want. See, e.g., U.S. Immigration and Customs Service’s “Green Card Through A Job” at http://www.uscis.gov/green-card/green-card-through-job.
43 See 8 U.S.C. § 1153(c).
44 Only a few forms of humanitarian relief, each more difficult to acquire than the last, provide a path to a green card,including such options as asylum, relief under the Violence Against Women Act, special immigrant juvenile status, a U-visa (given to certain non-citizens who were the victim of crime in the u.s. and reported that crime to the police) or T-visa (for victims of human trafficking). If you’ve lived in the U.S. since January 1, 1972, you’re also eligible for a green card, but there aren’t many undocumented people left who’ve managed to live under radar for forty three years.
45 You can also get a green card via that cancelation of removal thing I mentioned before, or by being one of the
slippery 43+ year olds whose evaded capture since 1972.
46 You’ve entered lawfully, or in some cases you have no unlawful presence, or you have a waiver for one of these, or there’s actually not a ten year wait for someone in your category, etc., etc., etc.
47 “Extremely unusual” means the hardship must be “substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here,” so even though a mother demonstrates that her deportation would cause her daughters, aged 11 and 6, to “face complete upheaval in their lives and hardship that could conceivably ruin their lives,” in Mexico, this still does not rise to the level of “extremely usual,” because any child forcibly taken away from their family and lives in the U.S. would have their lives ruined. See In re Andazola-Rivas, 23 I. & N. Dec. 319, at 322-324 (BIA 2002).
48 Hayter, at vii.
49 Hayter, at xxv.
50 (a phrase that is legally more complicated than I can possibly relate here).
51 See 8.S.C. § 1158(a).
52 See 8 U.S.C. § 1158(b).
53 One possible exception to those denied asylum is relief under the Convention Against Torture (CAT) – which doesn’t require persecution on one of those five protected grounds, but does demand you meet a much higher burden of proof – vastly reducing the number of people who can seek refuge under CAT.
54 See, e.g., Begzatowski v. I.N.S., 278 F.3d 665, 670 (7th Cir. 2002) (“. . . if war, famine, political violence or other dangerous conditions affect an entire nation, those conditions cannot establish an individual claim for asylum.”). Sichone v. Gonzales, 183 Fed.Appx. 50, 51 (2d. Cir. 2006) (finding Zambian applicant ineligiblefor asylum, even though “however regrettable” it may be, the applicant is HIV positive and will not have access to medications in Zambia.); Fakalawa v. Mukasey,279 Fed.Appx. 573 (9th Cir. 2008) (finding applicant ineligible for asylum because she “only fears a life of poverty,” if returned to Fiji).
55 Take, for example, the guy who was not eligible for asylum even though his home was destroyed by a Hurricane and he was indebted to the mob. See Cruz-Funez v. Gonzales, 406 F.3d 1187, 1190-91 (10th Cir. 2005).
56 If, say, the maniac were trying to kill Nellie because of one of those five protected grounds and Italy could not protect her from said maniac, then she might have an asylum claim – but if the maniac were just a serial killer, then she would not no claim.
57 One might qualify for relief for similar relief to asylum, such releif under the Convention Against Torture (CAT) where they don’t qualify for asylum, but each comes with their own comparably narrow, inequitable criteria. See, e.g., Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005).
58 Ayten Gündoğdu, Rightlessness in an Age of Rights 93 (2015).
59 Gündoğduat 113.