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Immigration Law is by Nature Exclusionary and Racist

We didn’t always have a federal immigration bureaucracy. The idea began in the 1870s and 1880s, when we had finished building the railroads and accomplished enough developmental goals to feel that we could dispense with cheap imported labor. The presence of large numbers of Chinese and other Asians on the West Coast was leading to the same complaints about unfair job competition that we hear today, buttressed by the same inflammatory rhetoric. The racist Chinese Exclusion Act of 1882 was our first immigration law, setting the tone for our federal bureaucracy ever since then.

For Justice Stephen Johnson Field who ruled on the first important case upholding exclusion, Chae Chan Ping v. United States (1889), the Chinese “remained strangers in the land,” forever alien and unassimilable. We went from individual states setting the conditions for immigration to a federal bureaucracy founded on excluding a subpar race from tainting our racial stock.

From our foundation until our first immigration laws, our openness allowed us to successfully assimilate immigrants of diverse origins, all of whom had at first been looked upon suspiciously, such as the Germans and the Irish. Once we established a federal bureaucracy, it needed continuous rationales to sustain itself and to grow. From excluding the Chinese we moved to the Japanese, and then eastern and southern Europeans along with Jews, followed by subversives during the Cold War, and finally Muslims and Arabs as the latest target of exclusion.

Some of us may be under the illusion that we follow objective criteria to decide who comes in and who stays, observing standards that make moral, economic, or political sense. That has never been the case since the beginning of federal immigration policy.

The targets vary, but the logic remains the same. At the beginning of the twentieth century, progressives, trade unionists, eugenicists, and respectable politicians of all stripes were angered by large numbers of “inferior,” disease-carrying, non-English speaking southern and eastern Europeans, so we shut them out with the 1924 national origins quota system, and decided instead to unofficially bring in large numbers of Mexicans.

We preferred Mexican immigrants persisting in limbo to European immigrants we would have to accommodate as citizens. We just had to make sure to periodically evict them from territorial assertion, as we did during the Great Depression, and as we did when we followed up the Bracero Program (importing guest workers) with Operation Wetback (mass deportation), a pattern that repeats to this day. We may say that we had an unofficial Bracero Program since the beginning of NAFTA until today, but we now want to expel the labor force.

Our history of exclusion is inherent in the nature of the bureaucracy and in all the laws that have been passed to empower it. During World War II we decided not to admit Jews seeking refuge from the European inferno. The logic of Asian exclusion easily led to the internment of Japanese Americans by our most progressive president. Today we willfully exclude some of the best and brightest amongst us, if they happen to be Latino or Muslim or Arab. Exclusion affects whole classes of people and causes great national damage each time.

The contemporary havoc goes back to the 1996 law.

But the repugnant national origins quota system, the internment of a whole race of people and the persecution of individuals because of political beliefs are all things well in the past, right? We don’t do these things anymore, do we? After all, what was the great liberalization of the 1960s all about, if not to end such practices?

In reality, some of the most barbaric practices we as a nation have followed in terms of removal, slavery, and exclusion have come back in full force due to a reconceptualization of immigration under the 1996 law called IIRIRA (the Illegal Immigration Reform and Immigrant Responsibility Act). The key word here is “responsibility,” used in a twisted neoliberal manner, placing burdens that are not so much responsibilities as refusals of humanity.

Though Trump’s so-called “travel ban” has been getting much of the attention lately, the infinitely greater area of concern is his targeting of every immigrant as potentially a “criminal alien” subject to “expedited removal.” The authority Trump needs to put his genocidal plan into action was gifted to him under the 1996 law. It vastly expanded the definition of crimes and included everything from shoplifting to child neglect as “aggravated felonies” leading to deportation without appeal. “Expedited removal” means that the traditional safeguards offered to those under deportation proceedings are gone, and prosecutorial discretion is limited to the point of nonexistence.

The distinction between legal and illegal is intentionally blurred in such laws. “Aggravated felonies” retroactively subject not just undocumented people but legal permanent residents to deportation. Countless permanent residents have fallen under the net of this repressive law, one of the worst in our nation’s history. Years or decades ago someone may have copped a guilty plea to a misdemeanor to get a lighter sentence, as is common in our criminal justice system. An encounter with the police, bringing the earlier “crime” to light, may abruptly destroy that person’s life.

The 1996 law severely curtails the chances of refugees for having a fair hearing, while asylum seekers are presumed guilty when making a claim and put in mandatory detention that can last for years. Families who have experienced torture in countries that we have often had a hand in destabilizing are then placed in detention amongst hardened criminals, and made to wait for years before knowing their fate.

The 1996 law was part of the same movement toward “personal responsibility”—which is an euphemism for blaming victims for social crimes against them and then punishing them to boot—that also resulted in ending welfare, and expanding the reach of anti-terrorism in a law that became a precursor to the Patriot Act. These three laws—on immigration, welfare, and terrorism—overlap, for instance in curtailing judicial review, or ending public assistance for legal immigrants.

Neoliberalism is the main cause of the present “illegality.”

So-called illegality is purely a self-created bureaucratic problem, which it is convenient for the neoliberal state to address as a criminal matter. It comes in handy because it keeps the lid on demands for democracy across racial lines, and it maintains a permanent underclass without rights, acting as a counterweight against universal fairness in the workplace.

The modern problem of illegality began in 1994, when NAFTA was passed. NAFTA offered a set of advantages to American big business and agriculture, creating tremendous pressure on Mexican small industry and farms and leading to the displacement of millions of workers, many of whom headed north. NAFTA freed capital movement at the same time as it restricted labor movement. So on the one hand, we created dire pressure for migration northward—to call it “push and pull” seems disingenuous, as though referring to inexorable laws of economics—at the same time as we cut off pathways to legal migration.

Before the 1990s, we always had a pattern of circular migration from Mexico. Migrants came and went; they didn’t necessarily want to stay for good. Almost thirty million Mexicans entered the country between the start of the Bracero Program and the 1986 immigration law, but most of them went back. But the neoliberal regime made the price of mobility prohibitive. Border controls became so repressive, and the price of reentry so high, that most decided to put down roots. The children of these migrants have become the Dreamers we now so proudly claim are the immigrants worthiest of our compassion.

When we wanted cheap agricultural labor we willfully let in large numbers of immigrants whom we did not want to assimilate. And now that the latest phase of globalization has run its course, the Trump regime wants to repatriate these people, long resident in our country, back “home.” We can always crack the wall open a bit when later we need a new burst of cheap labor.

Under neoliberalism, we shuffle off unwanted labor to our private detention system, which daily commits horrors on a scale worthy of some of history’s worst nightmares. Our policy preference is to put immigrants in detention for long periods of time before expelling them, so that they become revenue-earners for private prisons. Under Trump we are about to witness a massive resurgence of the private prison industry, which lobbies for criminalization of immigrants.

Comprehensive Immigration Reform (CIR) is always a boondoggle.

In every version it appears, CIR, a favorite prescription of both major political parties, is nothing but a Trojan horse to sneak in and formalize existing inhuman practices. Each CIR bill has been increasingly regressive, starting with the one that actually passed, Ronald Reagan’s 1986 IRCA (Immigration Reform and Control Act).

Every CIR attempts three things: 1. It further criminalizes and delegalizes growing categories of people, reducing pathways to citizenship, while offering some sort of legal status to those few who qualify within increasingly narrow boundaries; 2. It seeks to convert immigrants into guest workers to the extent possible, implementing a regime that strays from linear outcomes; and 3. As a bargaining chip to sway restrictionists, who may have problems even with limited forms of legal status, it implements new policing measures to harden the already militarized border.

CIR is no solution. The 2006, 2007, and 2013 bills were each more draconian than their predecessors. The last one, under Obama, was much harsher than the ones Bush wanted. Militarization, which already stands at mind-boggling levels, with more than twenty thousand border patrol agents, would have gone up drastically in each CIR bill. To the extent that a wall can exist, it already does. Each time a CIR bill is proposed, its legalization provisions don’t become reality, but its militaristic provisions come true by other means.

Ever since the 1970s—with the arrival of Southeast Asian and Caribbean refugees, and the growing visibility of Asians in our population—sharply restrictionist moves have been packaged as CIR. Environmentalist John Tanton has been at the fount of most recent anti-immigrant advocacy. His organization FAIR (Federation for American Immigration Reform), along with associated organizations such as CIS (Center for Immigration Studies) and NumbersUSA, seeks to restrict legal immigration. CIR bills have moved this goal closer and closer in sight, until Trump can almost smell victory. FAIR and its affiliated organizations are consulted by the press on every policy move, and given equal footing with the vast array of pro-immigrant groups.

The “Dreamers” have been a destructive wedge issue.

This relates to my point about some immigrants offered ambiguous legalization, rather than universal access to citizenship offered to everyone under predictable conditions. The “Dreamers” are the splinter group artfully deployed to silence the demand for rights for all other immigrants.

The concept of the Dreamers arose in the early 2000s (Democrat Dick Durbin was an early proponent), once the 1996 legislation had had time to work its way through the system, creating further avenues for “illegality.” Instead of welcoming the immigrant, as we had done through all our history, we would welcome only the Dreamer. Anyone not certifiably a Dreamer would not belong.

What exactly is a Dreamer? A Dreamer is the postmodern version of a slave, embodying the idea of the pliant immigrant we seem most comfortable with. The Dreamer is brought here against his will (evoking the rhetoric of slavery), yet harbors no resentment toward the white majority who have enslaved his people. The Dreamer is not expected to mind that his parents may not be recognized as persons, even if present in the community for decades. The Dreamer willingly pays for college out of pocket, putting up with all the obstacles strewn by anti-immigrant states, particularly in the south and southwest. The Dreamer is unashamedly invested in the capitalist dream that he will have to purchase, as a consumer not a citizen. The Dreamer is expected to be grateful for grudging symbols of identity, a temporary work permit or a driver’s license. The Dreamer begs to be granted the least token of recognition in return for partaking in our collective dream.

What about the elderly and disabled, the creative and artistic, the bohemian and nonconformist, all those not employed in the professions neoliberalism elevates? What about the parents of Dreamers? What about those who have committed any transgressions? They don’t count as Dreamers, they are “criminal aliens.”

The Dreamer is seen as accepting exclusion as a principle in return for being made a provisional part of our nationhood. No doubt Trump will use the Dreamers to split the rest from this small slice, to whom he might grant minimum concessions on the road to ending legal immigration. The Dreamers would be expected to go along, because all CIR bills, Obama’s included, have separated the “good” from the “bad.”

These excerpts are from Anis Shivani’s new book called This Is the Only Way to Solve the Immigration “Problem”: The Radical Human Rights Approach That Can Break the Left-Right Stalemate (Feb. 2018). Shivani is also the author of Why Did Trump Win? Chronicling the Stages of Neoliberal Reactionism and Confronting American Fascism: Essays on the Democratic Collapse, 2001-2017.

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