In this second of two recent articles on migration I examine the writings of three anthropologists— Nicholas P. De Genova, Andrew Kipnis, and Luis F.B. Plascencia—concerning usage of the phrase “illegal immigrant”. The problem of labelling migrant workers is not one that anthropologists invented, but it certainly is one they take seriously, as they should. If there is one thing that anthropologists understand best, it is the power of symbolism and the deployment of labels to mark group boundaries, to signify who/what belongs and who/what is out of place, and all of the meanings and consequences that being “out of place” entails. The labelling issue is always prominent in the US when debating immigration policy, especially because the labels stake out key positions in political debates.

Illegality and Immigrationism

For my part, I confess to having used the phrase “illegal immigrant” quite freely, because it seemed like an economical way of denoting those who enter a country without legal permission. The response, that “no one is illegal,” seemed inappropriate, or at least it seemed to be another of these feel-good, left-liberal slogans such as “another world is possible”. In the search for accurate terms of reference, I don’t want to be shouted at about how I should “feel” about a subject—and I know more, a lot more, about immigration from first-hand and personal experience than most of the North American activists who ardently defend it. Illegality is not about ontology, it’s about practice. People are not illegal, and no one claims they are or can be. What people do can be illegal. A man breaks into your home at night—you call the police and one thing you certainly will not report is “an illegal man is in my home”. Having said that, as we see in the next sections it’s not the case that the term “illegal immigrant” fares well when submitted to serious cross-examination—it too can be a feel-good motif, that is where those on the right feel good in using the term to deflect attention away from avaricious employers and thus evade any critical examination of the workings of global capitalism.

A separate set of concerns has to do with what I would call “immigrationism”: this is where demography meets the cultural politics of capitalism. Some of the key features of immigrationism can include exoticism, hedonism, and racism, but what is constant is the ultimate aim of service to domination, exploitation and consumerism. The most basic and perhaps unthinking form of immigrationism is advocacy of immigration for the sake of immigration—as if some law of nature dictated that immigration was both inevitable and an essential “good”. For some, there is a circular argument that is to be made in defense of Western liberal politics—that we are to be inclusive in order to demonstrate our inclusivity. Added to this are inchoate and not particularly cogent appeals to “human rights” arguments to assert the unquestionable demand for open borders. Other manifestations of immigrationism are guided by an interest in social engineering—burying the calculated failures of current social structures by doing the next best thing to creating “new people”: importing them, particularly certain preferred types. New forms of patron-client relations can thus be manufactured, to replace discontented, alienated, unemployed and thus angry native-born workers with more grateful dependents from abroad. Disposable workers thus become replaceable voters. There can also be a certain exoticist, pleasure-focused undertone to North American immigrationism, like the importation of prized peoples (“Indians are such diligent bank tellers”), or an active collection of diversity to put on display (“Look at all of the ethnic restaurants this city has to offer!”), or even speaking to baser if not pornographic impulses (“I always wanted a Chinese girlfriend”). In more extreme cases one senses a desire for transcendence on the part of the alienated and those whose own identities have become unhinged, that is, people who have become uncomfortable in their own skin: a loathing of “whiteness” and a thirst for its cure (a “browning,” presumably). What I might also include as an example of immigrationism is that form of middle-class feminist consumerism present in the principle of abort at home, adopt abroad—here the personal sovereignty/agency of the empowered female consumer is doubly affirmed. Yet another form of exploitation—continuing the tradition of draining capital away from the periphery and accumulating it at the centre—is support for the “brain drain”.

On the other hand, some will support an open borders policy believing that this is the correct stance for anti-capitalists and anti-imperialists. I would say you might have had a point there, had there ever been evidence to support this notion. If massive amounts of immigration had such a curative or transformative effect, the US would have disembarked from the imperialist project circa 1900. In addition, as we know, cheap labour subsidizes capital accumulation, just as employers’ right to flood the labour market with new entrants breaks the monopoly power of labour. Others might instead take a less radical stance, eschewing “anti-imperialism” and “anti-capitalism,” in order to take a more reformist, redistributive line. However, as a means of redistribution, immigration is uneven and unequal, favouring those with the resources to move (see the previous essay for more on these points). Indeed, there is little evidence to suggest that mass migratory movements have lessened global income inequalities; more likely, such relocations and dislocations have simply shifted around the loci of income-generation for workers.

None of this is to reject immigration in principle (nor to embrace it in principle, which would be immigrationism), and even less is it intended to disrespect the basic human needs of refugees seeking asylum from violence. What I am instead arguing is that there are certain favoured positions, particular biases, that almost never get a public trial and are thus never held up for examination. It’s this hegemony of immigrationism that I am challenging here, rather than immigration as such.

De Genova: Against “Illegality”

“In this essay,” Nicholas De Genova wrote, “the term undocumented will be consistently deployed in place of the category ‘illegal’ as well as other, less obnoxious but not less problematic proxies for it, such as ‘extra-legal,’ ‘unauthorized,’ ‘irregular,’ or ‘clandestine’” (2002, p. 420, emphasis added). The presence of the polemical term, “obnoxious,” surprised me for being included in an article for the Annual Review of Anthropology, which otherwise prides itself for its balanced, analytical treatments of the “state of the art” concerning this or that branch of contemporary US anthropology. “Obnoxious” is a purely personal, subjective reaction, but it’s also unnecessary to print unless the author thinks he can exploit his moment of authority to signal to readers how they should feel about a subject. Getting past that, we can note that De Genova prefers “migration” to “immigration,” in order to de-centre the narratives of the migrant-receiving nation-state. However, what this does is that it also occludes “emigration”. Instead he lifts everything up to the clouds, so you have “migration,” but without a starting point or an ending point. “Migrants” can thus literally become free-floating personifiers of anthropological theory/ideology. Otherwise, it is not difficult to agree with De Genova that there is nothing “matter of fact” about the so-called illegality of immigrants (2002, p. 439), and that this legal status allows them to be subordinated and exploited by rendering them vulnerable (2002, p. 429), and that the term “illegal immigrant” should thus not be taken for granted.

Andrew Kipnis, whose work was the focus of my preceding article, also has something to say about De Genova’s essay. Kipnis’ main point of contention is that De Genova does not take citizenship seriously enough, as a fundamental analytical principle that relates nationality with sovereignty and law. He sees De Genova focusing on the production of illegality through immigration regulation, reducing it to a politics of class exploitation. However, Kipnis argued, “the importance of legality to citizenship stems from the fact that the nation-state, systems of written laws and notions of citizenship have developed together” (2004, p. 259). Furthermore, restricting immigration cannot be reduced to class exploitation: “if one acknowledges that a completely unregulated flow of ‘legal’ migrants from the developing world would also enable capitalists to find a workforce, then the raison d’être of citizenship laws must be sought elsewhere” (Kipnis, 2004, p. 260). With this last explanation, Kipnis makes relatively easy work of debunking De Genova’s unexamined premise about the “illegalization” of migrants as a class-exploitation strategy.

Luis Plascencia, whose work will be discussed below, also has something to say about De Genova’s contribution. As Plascencia explains, although De Genova’s discussion “explicitly addresses the construction of ‘illegality’ and the role of law in producing ‘illegality’,” his discussion “does not address the possible limitations of the term ‘undocumented’ migrant, including the possibility that the labels ‘undocumented’ migrant or indocumentado may be part of the same broader ‘legal production’ process that marks one group of individuals as part of the force of ‘illegalization’” (2009, p. 403).

Plascencia: Undocumented v. Illegal? Not Much Difference

“The contemporary debate on the ‘illegal’ versus ‘undocumented’ migrant labels is generally thought of as one involving mutually exclusive positions,” Luis Plascencia explains (2009, p. 405), but as he also points out: “This opposition, however, does not mean that they have nothing in common. Both terms share some fundamental premises and limitations” (2009, p. 406). The term undocumented stresses the lack of legal documentation, which like “illegal” places migrants in opposition to the legal system, as illegitimate outsiders. As Plascencia emphasizes, “undocumented” is a term that “also contributes to the production of migrant ‘illegality’” (2009, p. 378). In addition, both “undocumented” and “illegal” share the premise that “the individual is the principal determining actor,” thus the work of the state is pushed into the background (Plascencia, 2009, pp. 406, 407).

Terms that hide the role of the state is a matter of concern for Plascencia, who builds on this point to make another argument against ontological approaches:

“‘undocumentedness’ is an essence, and the subjectivity of individuals labeled ‘undocumented’ migrants is self-selected and self-created. Or stated more directly, it borders on the assumption that persons labeled ‘undocumented’ migrant, are ‘undocumented’ because they have selected not to obtain los papeles (‘the papers’) that would convert them to ‘documented,’ a perspective that excludes the paper-granting entity, the State”. (2009, p. 407)

He also notes cases from US history when sometimes migrants without documents were legally permitted to enter when entry inspection procedures were waived (Plascencia, 2009, pp. 407-408).

Plascencia presents a detailed, in-depth examination of the historical genealogies of the terms “illegal immigrant” and “undocumented migrant,” with respect to US legislation and government policy, academic and popular discourses, and with many examples selected from the US’ immigration history, dating back centuries.

While not suggesting that we simply adopt statutory definitions (not an easy thing to do as he shows), Plascencia points out that both the terms “illegal immigrant” and “undocumented (im)migrant” have no actual basis in US law (i.e., the Immigration and Nationality Act (INA), codified as Title 8 of the United States Code) (2009, p. 380).

Under US law, an “immigrant” is anyone who has been formally allowed to enter the US and live there permanently—there is thus no such thing as an “illegal immigrant” because the first word in the phrase would invalidate the second. However, the law is also quite prone to multiplying labels. As Plascencia outlines, Title 8 of the US Code lists the following categories of resident non-citizens in violation of the law:

(a) to be present unlawfully;
(b) alien unlawfully present (an alien not lawfully admitted);
(c) illegal entrant (an alien present without admission or parole);
(d) not lawfully present [not clear how this differs from (a)];
(e) immigration violator (an alien who has violated an immigration law such as a visa condition);
(f) criminal alien (a non-citizen convicted of an aggravated felony, not lawfully present, or otherwise removable);
(g) unauthorized alien (aliens not authorized to be employed; not an alien lawfully admitted for permanent residence, or authorized to be so employed); and,
(h) illegal alien (any alien convicted of a felony who is in the United States unlawfully) (2009, p. 381).

Thus the popular term “illegal alien,” and the juridical term “illegal alien” are not the same thing. Border Patrol agents informally refer to “illegal aliens” as EWIs (Entered Without Inspection). Likewise, “undocumented immigrant” is an oxymoron, according to statutory definitions. Under US law, an illegal/undocumented immigrant is one who is “subject to removal” for overstaying or otherwise violating the conditions of a visa, committing a crime, or entering the country without formal authorization (“not lawfully present,” or “illegal entrant”). US government usage itself is all over the map, including use of terms in popular discourse, with little consistency in their use (Plascencia, 2009, pp. 382-383). What is notably absent in statutory definitions is any of the popular assumption of an opposition between “illegal” and “undocumented”.

Plascencia provides sufficient evidence that the term “illegal immigrants” was first articulated in the late 1800s and deployed with reference to Mexicans specifically, and that in later decades (the 1950s) the term “illegals” was added. While the term “undocumented” is currently opposed in popular discourse to “illegal,” it was not always so: “undocumented” was often used with reference to migrants from Canada at the same time as “illegal” was used with reference to Mexicans, and sometimes could be used interchangeably as was the case with President Carter’s formal speeches.

It seems that the tendency to emphasize “undocumented” as a more positive quality than “illegal,” stems from sources extraneous to the US, its history, and its discourse. As Plascencia points out, “the United Nations (U.N.) General Assembly passed an important measure at the end of 1975,” that directed UN agencies “to use ‘nondocumented’ or ‘irregular migrant workers’ in all official documents for migrants that ‘illegally and /or surreptitiously enter another country to obtain work’” (2009, p. 397). Also, the International Labour Organization (ILO) and the Council of Europe, since 1975, began to speak formally about “irregular migrants” or “undocumented migrants” (Plascencia, 2009, p. 397).

Plascencia ends by comparing the assumptions shared in common by popular and academic uses of the terms “illegal” and “undocumented”. One is that both place migrants outside of the law. A second common assumption is “the homo economicus perspective of migrants. Both tend to perceive individuals as if they represented autonomous economic units (economic inputs) simply reacting to supply and demand (push-pull forces)” (Plascencia, 2009, p. 408). A third assumption made by both camps is “that there is a clear statutory line that separates a ‘legal’ from an ‘illegal/undocumented’ migrant” (Plascencia, 2009, p. 408). Finally, a fourth perspective common to both sides is “the focus on the ‘problem’ as a Mexico-U.S. ‘border’ issue,” focusing so much on unauthorized entry that they ignore situations such as those involving violations of visa conditions (Plascencia, 2009, p. 409).

Some of the final points of Plascencia’s article were the most important for me, and should be remembered in future debates. One is that the problem with “illegal” is that the term is rarely if ever used to criminalize employers of migrants. Thus he proposes using terms such as “formally authorized” and “informally authorized” migrants, since sometimes laws are waived, or not enforced on employers who “harbour” migrants, hence the informal authorization (2009, p. 410). I agree with Plascencia that it is problematic that employers are not usually called “illegal employers” (2009, p. 411), especially not by those in the media who speak of “illegal immigrants” in critical terms. Moreover, “illegal” makes migrants look like subjectively sinister criminals, thus removing the state and employers from the picture. With these points in mind, I end at a different place than where I started, such that “illegal immigrant” is a problematic concept on multiple levels, and with more precise and accurate language hopefully we can arrive at better understandings and explanations of reality, and better solutions.

References

De Genova, Nicholas P. (2002). “Migrant ‘Illegality’ and Deportability in Everyday Life”. Annual Review of Anthropology, 31, 419–447.

Kipnis, Andrew. (2004). “Anthropology and the Theorisation of Citizenship”. The Asia Pacific Journal of Anthropology, 5(3), 257–278.

Plascencia, Luis F.B. (2009). “The ‘Undocumented’ Mexican Migrant Question: Re-Examining the Framing of Law and Illegalization in the United States”. Urban Anthropology and Studies of Cultural Systems and World Economic Development, 38(2-4), 375–434.