Myth and Reality in the U.S. Immigration Debate [First edition.] 9781315621951, 1315621959, 9781317221548, 1317221540, 9781317221555, 1317221559, 9781317221562, 1317221567

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Myth and Reality in the U.S. Immigration Debate

“What part of illegal don’t you understand?” This oft-repeated slogan reflects the contentious quality of the immigration reform debate in the United States: a debate that has raged on unresolved since at least 1986 when Congress extended amnesty to many undocumented immigrants. This impasse is due, in large part, to widespread misinformation about immigration. This short and accessible textbook takes a critical perspective on immigration law and policy, arguing that immigrant “illegality” is itself produced by law, with tremendous consequences for immigrants and their families. Across six chapters that examine the conceptual, historical, economic, global, legal, and racial dimensions of immigration to the United States, Prieto argues that illegal immigration is a problem of policy, not people. History and cutting-edge social science data guide an analysis of the actual, empirical impact of immigration on U.S. society. By debunking myths about immigration, the reader is invited to form their own opinion on the basis of fact and in light of the unequal treatment different immigrant groups have received since the nation’s founding. Myth and Reality in the U.S. Immigration Debate synthesizes key lessons from the fields of sociology, law and society, history, economics and critical race studies in a digestible and engaging format. This text will serve as an introduction to the study of immigration and a primer for those who wish to engage in a sober and compassionate conversation about immigrants and immigration in the United States. Greg Prieto is an Associate Professor of Sociology at the University of San Diego. His first book Immigrants Under Threat: Risk and Resistance in the Deportation Nation (NYU Press), was the co-winner of the Best Contribution to Research Book Award granted by the Latina/o Sociology Section of the American Sociological Association. His articles appear in the journals American Sociological Review, Latino Studies, and Research in Social Movements, Conflict and Change, among others.

Framing 21st Century Social Issues

Series Editor: France Winddance Twine, University of California, Santa Barbara The goal of this new, unique series is to offer readable, teachable “thinking frames” on today’s social problems and social issues by leading scholars. These are available for view on http://routledge.customgateway.com/routledge-social-issues.html. For instructors teaching a wide range of courses in the social sciences, the Routledge Social Issues Collection now offers the best of both worlds: originally written short texts that provide “overviews” to important social issues as well as teachable excerpts from larger works previously published by Routledge and other presses. As an instructor, click to the website to view the library and decide how to build your custom anthology and which thinking frames to assign. Students can choose to receive the assigned materials in print and/or electronic formats at an affordable price. Available Body Problems Running and Living Long in a Fast-Food Society Ben Agger Myth and Reality in the U.S. Immigration Debate Greg Prieto Series Advisory Board: Rene Almeling, Yale University, Joyce Bell, University of Pittsburgh, Elizabeth Bernstein, Barnard College, David Embrick, Loyola University Chicago, Tanya Golash-Boza, University of California – Merced, Melissa Harris, New York University, Matthew Hughey, University of Connecticut, Kerwin Kaye, SUNY – Old Westbury, Wendy Moore, Texas A&M, Alondra Nelson, Columbia University, Deirdre Royster, New York University, Zulema Valdez, University of California – Merced, Victor Rios, University of California – Santa Barbara.

Myth and Reality in the U.S. Immigration Debate

Greg Prieto

First published 2021 by Routledge 52 Vanderbilt Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Taylor & Francis The right of Greg Prieto to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data A catalog record for this title has been requested ISBN: 978-1-138-65631-4 (hbk) ISBN: 978-1-138-65632-1 (pbk) ISBN: 978-1-315-62195-1 (ebk) Typeset in Bembo by MPS Limited, Dehradun

Contents

Acknowledgements Timeline

vi vii

1

Introduction: The Legal Production of Immigrant “Illegality”

2

A Brief History of Immigration Law and Policy

17

3

Job Takers, Criminals, Fiscal Drains: Fact vs. Fiction in the Immigration Debate

39

4

Harvest of Empire: Globalization and Immigration

66

5

“Get in Line”: The Legal Immigration Queue and the Inequity of Equal Treatment

75

Conclusion: Race, Immigration, and the Moral Case for Reform

86

6

Glossary References Index

1

93 102 115

Acknowledgements

A book is always a collective effort, and this one is no exception. I extend my sincere thanks to Series Editor and mentor Winddance Twine, as well as Senior Editor Dean Birkenkamp, for their support of this project. The University of San Diego College of Arts and Sciences generously provided me with time away from teaching to complete and revise the manuscript. I thank the anonymous reviewer for their thoughtful and detailed feedback on Chapter 3. The research reviewed therein is presented more clearly and accurately thanks to their comments. Over the years, I have learned much from a network of immigration scholars whose insights, ideas, and arguments shaped this book. I extend my heartfelt gratitude to these inspiring colleagues and friends, including Tanya Golash-Boza, Joanna Perez, Tom Wong, David Fitzgerald, Amada Armenta, Abigail Andrews, Angela García, Gilda Ochoa, Rene Flores, Ev Meade, and Victor Carmona. Whatever utility readers find in this text will be due in no small part to all that I have learned from their scholarship and camaraderie. To María Silva and the late Jonathan Yost, your activism and smarts have left an indelible impression on me and inspired this book in the first place. A very special thank you to Mata Flores, Eunice Gonzalez-Sierra, and her parents Leobardo Gonzalez and Margarita Sierra for the book’s cover image. After Eunice earned her bachelor’s degree from UCLA in Chicana/o Studies, Mata captured this moment with Eunice and her parents standing in the strawberry fields of Santa Maria where they have both worked for more than two decades. The image captures the sacrifice and the labor of a family connected by hope and struggle across generations: a story shared by immigrant families all across the United States. And to my friends and loved ones—Zach Thompson, Martin Repinecz, Peter Mena, and Lloyd Burnett—my thanks for keeping me focused, for encouraging me, and for helping me to see the way forward even when I could not.

Timeline

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18th century (–1863): U.S. Slave Trade. 1790: Naturalization Act— also known as the Nationality Act—restricted naturalization to free white persons who had resided in the United States for a period of two to five years, were of good moral character, and swore an oath of allegiance to the Constitution. 1846 (–1848): U.S.-Mexico War. 1861 (–1865): U.S. Civil War. 1863: Emancipation Proclamation. 1864: Immigration Act—also known as the Act to Encourage Immigration— made immigrant labor contracts established abroad enforceable in U.S. courts and created a commissioner of immigration, appointed by the president to serve under the secretary of state. 1868: Passage of the Fourteenth Amendment to the United States constitution, guaranteeing equal treatment under the law to all persons living in the United States. 1870: Naturalization Act—established a system and controls for the naturalization process and made African immigrants and people of African descent eligible to naturalize, while revoking the citizenship of naturalized Chinese Americans. 1870: Passage of the Fifteenth Amendment, which gave Black men the right to vote. 1875: Immigration Act— also known as the Asian Exclusion Act or the Page Act—the first restrictive immigration statute, prohibiting the immigration of criminals, forced Asian laborers, and prostitutes. This latter prohibition barred most unmarried Chinese women from immigrating, presumably to prevent disease, prostitution, and other sexual immoralities from imperiling the monogamous, white American family. Political elites further fretted that if Chinese women were permitted to immigrate with their husbands and went on to have children in the United States, those children would be treated as U.S. citizens after the

viii Timeline

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passage of the Fourteenth Amendment in 1868, even though their parents would be treated as “aliens ineligible for citizenship.” 1882: Chinese Exclusion Act—the infamous Chinese Exclusion Act prohibited all Chinese labor immigration for ten years, declared Chinese immigrants ineligible for naturalization, and authorized the deportation of any unauthorized Chinese immigrants. The Geary Act (1902) extended these provisions indefinitely. The Chinese Exclusion Act was not repealed until 1943. 1907: Gentlemen’s Agreement—a voluntary agreement struck during World War I in which Japan restricted its citizens from emigrating to the United States in exchange for the acceptance of those Japanese immigrants already living in the United States, the ongoing immigration of their families, and an agreement not to formally bar Japanese immigration to the United States as had been done to the Chinese in the Chinese Exclusion Act. 1914 (–1918): World War I. 1917: Immigration Act—also known as the Literacy Act or the Asiatic Barred Zone Act—required any immigrant over the age of 16 to demonstrate basic literacy in any language before being admitted. The law also established the Asiatic Barred Zone, banning immigration from almost all Asian countries (Afghanistan to the Pacific) with the exception of the Philippines (a U.S. colony whose citizens were U.S. nationals who could travel freely) and Japan (where immigration had already been barred voluntarily by the Japanese government as part of the Gentlemen’s Agreement of 1907). China was not included in the barred zone, but the Chinese Exclusion Act already prohibited their immigration. 1922: Ozawa v. United States—this Supreme Court case ruled that Japanese people could not be regarded as white for the purposes of naturalization, which at the time, only extended naturalization to free white persons and persons of African ancestry or nativity. 1924: Indian Citizenship Act—granted citizenship to all Native Americans born in the United States. 1924: National Origins Act—also known as the Johnson-Reed Act— established the national origins quota system. It had three major provisions: first, it barred immigration from all countries whose citizens were ineligible for citizenship, which was limited to whites and persons of African ancestry in accordance with naturalization laws dating from 1790 and 1870. The Asiatic Barred Zone Act of 1917 already prohibited immigration from most of Asia (except for Japan and the Philippines), just as the Chinese Exclusion Act prohibited Chinese immigration. This provision of the act really served as a formal bar to Japanese immigration (though the Gentlemen’s Agreement of 1907

Timeline

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ix

was a voluntary bar of the same). Second, it established a consular control system of immigration, requiring immigrants to secure visas prior to arriving to the United States, geographically expanding the immigration enforcement system beyond U.S. territorial borders to a network of consulates in the sending countries. Third, it established a worldwide immigration cap of 155,000 immigrants per year with no country allowed to send more than 2% of the total number of immigrants residing in the United States in 1890, effectively reserving the majority of quota slots for Western and Northern European immigrants 1929 (–1939): Wall Street Crash and onset of the Great Depression. 1929: Mass repatriations of Mexicans and Mexican Americans to Mexico. 1939 (–1945): World War II. 1942 (–1964): Bracero Program—the Bracero Program, which takes its name from the Spanish word for arm, brazo, or someone who provides manual labor, bracero, provided temporary admission for Mexican laborers to the United States to perform work primarily in agriculture. The program provided for decent living conditions and minimum wage, though reports of employer abuse were common. The program was terminated in 1964. 1943: Magnuson Act—repealed Chinese Exclusion because China was an ally to the United States during World War II, though its quota remained very small under the National Origins Act. 1945: United Nations was established. 1952: Immigration and Nationality Act—also known as the McCarren-Walter Act— eliminated race as a basis for exclusion, granting the minimum quota of 100 to all Asian countries, and permitted them to naturalize. Still, their quota remained tied not to their national origins but to their ancestry. Any person of Asian ancestry, born anywhere in the world, would be charged to the quota of the country that corresponded with their ethnicity and not to the country where they were born. While race was formally removed as a bar to immigration, these new quotas continued to rely on race because Asians continued to be regulated as a racial group, not a national origins group. The Act also updated the quota formula to one-sixth of 1% of each nationality’s population in the 1920 census (not the 1890 census), which still meant that the vast majority of all visas went to immigrants from Northern and Western Europe. The Act also formally incorporated skills and family reunification as priorities for American consuls deciding which immigrants from oversubscribed countries should be granted entry.

x Timeline

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1954: “Operation Wetback”—second mass deportation campaign, after the mass repatriations of the early 1930s. Mexicans and Mexican Americans, mostly from California, were rounded up, placed on trains, and sent back to Mexico. Over 1 million immigrants and citizens were deported as part of the campaign. 1964: Civil Rights Act—the crowning legislative achievement of the Civil Rights Movement outlawed segregation in public places and employment discrimination on the basis of race, color, religion, sex, or national origin. The bill contained no immigration-related provisions, but contributed to a legislative atmosphere focused on equality for disenfranchised populations, including immigrants. 1965: Immigration and Nationality Act— also known as the HartCeller Act—the Hart-Celler Act abolished the 1924 National Origins Act in favor of two hemispheric caps and a per country cap, which applied only to countries in the Eastern Hemisphere. In 1976, those per country caps were extended to the Western Hemisphere, representing the first quantitative immigration restriction ever applied to Mexico. Immigrants were granted admission according to the basic categories that we have today, including family and employer preferences and refugee admissions. Immediate relatives of U.S. citizens were not subject to any cap. 1970: Under pressure from national Latino advocacy organizations, such as the Mexican American Legal Defense Fund, the census added a question on Hispanic origins to the long form sent to a sample of U.S. households. In 1980, a revised version of the question was included on the census short form sent to all U.S. households. 1980: Refugee Act—raised the annual ceiling on refugee admissions from 17,400 to 50,000, created a process for reviewing and adjusting the refugee ceiling, required annual consultation between the President and Congress, and brought the definition of a refugee into line with the United Nations definition: a person with “well-founded fear of persecution” in their home country. The Act also created offices to manage refugee admissions and resettlement in the United States. 1986: Immigration Reform and Control Act (IRCA, erkah)—prohibited employers from knowingly hiring undocumented workers, implemented the US Citizenship and Immigration Services Form I-9 to verify eligibility to work. Significantly, the act legalized most undocumented immigrants who had arrived prior to January 1, 1982, approximately 3 million people. IRCA represents the last immigration amnesty granted in the United States to date. 1990: Immigration Act—increased the global ceiling on immigrant admissions, increased the number of family preference visas, but also limited the definition of family to immediate family members, as well

Timeline

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xi

as specified five employer preference categories, and established the diversity visa lottery for countries with historically low levels of immigration to the United States. The act also established the Temporary Protected Status designation for those fleeing humanitarian emergencies. 1996: Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA, eye-rah eye-rah)—increased immigration enforcement at the border by doubling the number of Border Patrol agents and mandating that fences be built in areas heavily trafficked by undocumented immigrants. The Act also retroactively expanded the grounds for deportation for legal immigrants, removed due process from the vast majority of immigration cases, and imposed mandatory detention for certain classes of immigrants. 1996: Anti-Terrorism and Effective Death Penalty Act (AEDPA)— allowed for the expedited removal of foreigners who are seeking asylum in the United States, but arrived without the proper documents. 1996: Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA)—made most legal immigrants arriving after August 1996 ineligible for welfare (unless they are refuges, veterans, or have been working in the United States for ten years). The Act was significant because it created a sharp distinction between citizens and non-citizens’ ability to access a social safety net. 2000: Legal Immigration and Family Equity (LIFE) Act—made it easier for unauthorized immigrants to adjust their status to Lawful Permanent Resident (LPR) inside the United States if they had previously received approval for a visa, even if they had entered the country or worked without authorization. 2002: Homeland Security Act—reorganized the Immigration and Naturalization Service (INS) under the newly formed Department of Homeland Security (DHS), which included Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE) and the U.S. Citizenship and Immigration Services (USCIS). 2006: Secure Fence Act—mandated the construction of double layered fence over 700 miles of the U.S.-Mexico border. 2012: President Obama signed the Deferred Action for Childhood Arrivals (DACA)—which provided for a two-year temporary stay of deportation and work authorization for qualified immigrants who come to the United States as children. DACA provides no pathway to citizenship. 2017: DACA rescinded—President Trump rescinds the DACA program, but the order is enjoined by several federal courts. In June 2020, the Supreme Court struck down the recission order as a violation of

xii Timeline

the Administrative Procedures Act. DACA remains in effect, at least until the Trump Administration finds a legal way to terminate the program.

Additional timeline sources Cohn, D’Vera. “How U.S. Immigration Laws and Rules Have Changed through History.” Pew Research Center, September 30, 2015. Retrieved May 18, 2020 (http://www.pewresearch.org/fact-tank/2015/09/30/how-u-s-immigration-lawsand-rules-have-changed-through-history/). Pew Research Center. “U.S. Immigration National and State Trends and Actions.” Washington, D.C.: Pew Research Center, October 1, 2015. Retrieved May 18, 2020 (https://www.pewtrusts.org/en/research-and-analysis/data-visualizations/2015/usimmigration-national-and-state-trends-and-actions). Quintero, Angelica. “America’s Love-Hate Relationship with Immigrants.” Los Angeles Times. August 2, 2017. Retrieved May 18, 2020 (http://www.latimes.com/ projects/la-na-immigration-trends/).

Chapter 1

Introduction The Legal Production of Immigrant “Illegality”

Introduction The “immigration problem” in the United States is a problem of policy, not people. A commonsense prevails in the mainstream debate about immigration reform: America is like a pie, there is only so much to go around. This commonsense tells us that the more foreigners we let in, the fewer resources citizens will enjoy. Immigrants bring more than a hope for a better life, so the logic goes. They also bring a host of problems along with them. The central argument of this book is that this commonsense is wrong. The U.S. Immigration Debate draws upon research from economists, sociologists, political scientists, legal scholars, and historians to challenge the myths that continue to circulate in politics and everyday life. The goal of this book is to offer facts that will enable the reader to better understand and evaluate the U.S. immigration debate. Social scientists studying the impact of immigration and immigrants have argued that much of the popular discourse on the topic is at odds with the evidence.1 This gulf between the empirical reality and political discourse mirrors a parallel gap between the academy and society. Rigorous research and careful attempts by academics to understand the complex causes and effects of immigration remain isolated in a small number of academic journals and thus rarely enter the mainstream. On November 6, 1986, Ronald Reagan signed the Immigration Reform and Control Act (IRCA), which, in addition to making it illegal to hire undocumented immigrants and required employers to verify immigrants’ employment eligibility via the US Citizenship and Immigration Services Form I-9, offered a pathway to citizenship, or amnesty, to undocumented immigrants who had arrived prior to January 1, 1982. The year 1986 was the last time any major pathway to citizenship was extended to most undocumented immigrants. More than three decades have passed since this last major legalizing act was passed due, in significant part, to misinformation that derails the debate. The notion that immigrants are economic liabilities, job takers, criminals, and unassimilable foreigners are

2 Introduction

key myths that are trafficked in what passes for debate on this issue. Sold by opportunistic politicians to a beleaguered electorate needing to name the source of its grievances, these tales ring true, but are at odds with the empirical reality. The consequence of this gulf is not only inaction—the last several decades have seen attempt after attempt at reform torpedoed by aggressive misrepresentation of immigration and immigrants—but also, the passage of national and local immigration policy inspired by inflammatory, unfounded, and xenophobic demagoguery. During his first term, Donald Trump repeatedly dramatized the dangers of (undocumented) immigration to galvanize his supporters, demonstrating the ongoing power of this rhetoric to mobilize a segment of the American electorate.2 His nowinfamous reference to Mexican immigrants as rapists and murderers, Mexico’s worst of the worst, has found widespread approval among his growing base of supporters who gravitate to his twin messages of violation and strength.3 These sentiments are hardly new, and policy often follows prejudice. Whether the 1882 Chinese Exclusion Act, the 1924 National Origins Act, the mass deportations of Mexicans in the 1930s and 1950s, or the restrictionist bills of the 1990s:4 the United States is as much a nation of immigrants as it is a nation of nativism and inviolable borders. During the late nineteenth and early twentieth centuries, anti-immigrant rhetoric targeted immigrants from Asia and Europe. Europeans were described as poor and illiterate Germans, Papist Catholics, drunken Irish, or hot-blooded Italians, while Asians were caricatured as deceptive Chinese and disloyal Japanese. The demonization, denigration, and caricature of foreigners is as old as the United States itself. Some liberalizing policies offered a counterweight to these racial and neo-colonial legacies, but as I demonstrate below, even a policy as seemingly pro-immigrant as the 1965 Hart-Celler Act, which overturned national origins and inaugurated the family and employer preference system that we have today, had unintended consequences: producing an explosion of undocumented immigration from Mexico and other places in the Western hemisphere. The human toll of this impasse is considerable, forcing apart families and constricting one of the few mechanisms poor and working people in the global south have to sustain their families. Deportation, in particular, leaves in its wake economic vulnerability and profound personal loss. While deportation numbers have declined in recent years, Barack Obama’s administration oversaw the greatest number of deportations in a single year: 420,000 removed in 2012. As Tanya Golash-Boza notes, “By the spring of 2014, there had been two million removals under the Obama administration—more in just over five years than any previous administration and more than the sum total of all documented removals prior to

Introduction 3

1997”.5 The scope of the deportation regime in this country is historically unprecedented. Which is to say, the answer to the question of what to do about immigrants and immigration policy is of urgent personal and political import. If informed debate is the goal, what kinds of questions must we ask and how might we address them? I approach the immigration issue from six related dimensions: the conceptual, the historical, the fiscal and economic, the global, the legal, and lastly the racial. These themes represent the focus of each of the chapters to come. In this introduction, I turn to the first of these: the conceptual. To conceptualize something is to form an idea of it. Concepts, the ideas we carry around in our heads, provide us with the frames for how we evaluate, interpret, and define a problem, as well as its solution. Without concepts, we cannot understand the origins of a given issue, nor adopt strategies for action. Consider a different social issue—drug abuse and addiction—and two different ways that we might conceptualize the problem. If, for instance, we think of abuse and addiction as a criminal justice issue, then a particular causal story springs to mind and with it comes its attendant sanctions. Drug use, from a criminal justice standpoint, is an individual failure of responsibility—a choice to violate the law. While the problem originates with an individual, it threatens to spillover to the broader community, especially to children and teenagers whose lives might be derailed by drugs. In response, officials employ a variety of punitive strategies on the street (stop and frisk) and in the courtroom (mandatory minimums), to punish drug users in targeted neighborhoods, typically those where Blacks, Latinos and racialized immigrants live, in order to deter the behavior. The war on drugs, beginning in the 1980s, is a clear example of the conceptualization of drugs as a criminal justice issue.6 The results have been devastating for poor communities of color, and Black women in particular.7 Though drug use rates between whites and Blacks are similar, Blacks are 2.5 times more likely to be arrested for drug possession, and arrests for simple possession exceed the number of arrests for all violent crimes combined.8 In the midst of a contemporary opioid crisis among whites across class backgrounds, a new strategy has been adopted to address these “deaths of despair”: or deaths that result from suicide, overdose, or alcoholism in the absence of educational or employment opportunities that have become rarer as capitalism has matured and globalized. While these trends have long affected poor communities of color, when evidence that increasing numbers of whites in rural and suburban zones were using opioids, a compassionate, rather than punitive approach was adopted. Drug use was re-conceptualized as a public health issue among whites, compared to the punitive treatment of Blacks a generation ago.9 In this view, drug abuse and addiction are symptoms of institutional inequality, such as un- or underemployment and

4 Introduction

a lack of educational opportunity, not a personal failing. Understood as the personal manifestation of a wider social issue, drug use is met with decriminalization and sometimes legalization coupled with treatment and resources. Countries such as Norway, the Netherlands, Portugal, and Uruguay approach drug use in this way, developing needle exchange programs, sanctioned use spaces, and coordinated outreach and treatment programs. The consequences are lower rates of addiction without the collateral consequences of decades of criminalization and incarceration. How we think about a problem radically shapes what we imagine can be done about it. How can we conceptualize the problem of undocumented immigrants today?10 One powerful conceptualization of immigrants appears in the oftrepeated slogan, “illegal is illegal” and its corollary “we are a nation of laws.” This call betrays a fundamental misunderstanding about law—its origins, development, and its relationship to politics. These sentiments assume that law is immutable and self-evident. Law is presented as detached from its political origins and the boundary separating legal from illegal is presented as inevitable. How the line is drawn between who or what is legal and illegal is never called into question. According to this logic, undocumented immigrants deserve their lot and, because the issue is presented narrowly as a matter of straightforward legal interpretation and poor personal choices, one might arrive at the conclusion that immigrants have brought their illegality upon themselves. Given the many legal transformations underway at present from gay marriage to recreational marijuana—transformations stimulated by massive collective mobilization—it seems clear that law is closely related to politics. And yet this insight does not enter into the immigration debate. Compassionate observers may sympathize with immigrants’ plight and even go on to call for reform, without examining the political and legal origins of immigrant illegality. Supporters of reform who nevertheless accept the inevitability of the designation “illegal immigration” will find themselves on weak footing because this support is based upon the belief that immigration reform is an act of charity: a symbol of the beneficence of this nation of immigrants. If we think about illegality as the result of the understandable but still illegal choices of immigrants, then the decision not to deport them is framed as a matter of leniency, not fairness. Their support emerges out of a sense of generosity, easily depleted during periods of economic contraction and quickly abandoned in the face of changing political winds. If we consider the political nature of law, then we can demand reform on surer footing: as a matter of fairness, principle, and evidence-driven good sense. Law is an arena of struggle: not an edict handed down from on high, but a venue where social conflict unfolds. An alternative way to think about immigration law is to consider the legal production of illegality. Laws are not

Introduction 5

neutral, rather they are political: simultaneously shaping and shaped by social actors operating from within unequal relationships of power. Consider, for example, the Immigration and Nationality Act of 1965, also known as the Hart-Celler Act for its co-sponsors New York Congressperson Emanuel Celler and Michigan Senator Philip Hart. This bill overturned the overtly racist National Origins Act of 1924, which used a discriminatory quota formula to give preference to immigrants from Northern and Western Europe over those from Southern and Eastern Europe and banned all Asian immigrants and other non-white immigrants who were “ineligible for citizenship” on the basis of their race. Passed in the context of the civil rights movement and growing foreign policy concerns that national origins imperiled diplomatic relations and the international fight against communism, the bill created the immigration system that we

ACTUAL 1965