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No Human Being Is Illegal: Moving Beyond Deportation Law

César Cuauhtémoc García Hernández is an attorney. His articles have appeared in law reviews at Boston College, Loyola University New Orleans, Seattle University, and, forthcoming, St. Thomas University. He can be contacted at cuauhtemoc_cesar [at]

Crowded on the beaches were the inductees, some twenty million silent black men, women, and children, including babes in arms. As the sun rose, the Space Traders directed them, first, to strip off all but a single undergarment; then, to line up; and finally, to enter those holds which yawned in the morning light like Milton’s “darkness visible.” The inductees looked fearfully behind them. But, on the dunes above the beaches, guns at the ready, stood U.S. guards. There was no escape, no alternative. Heads bowed, arms now linked by slender chains, black people left the New World as their forbears had arrived.

So ends Derrick Bell’s Space Traders, a fictional account of racism and deportation, which depicts a world where aliens from outer space arrive on the shores of the United States in the midst of a deep and steadily worsening economic crisis. The aliens offer a panacea—the promise of enough gold to quiet all fears of economic catastrophe. All they ask for in return is every last black person in the country.

After a national referendum, the results fall directly along racial lines—white people, even the liberals who claimed to be antiracists, vote to trade blacks for gold; black people vote no. No concern is given to the unknown fate of these deportees. They are simply sacrificial victims—welcomed while useful, disposable when convenient—of the coercive arm of the state. Bell’s story is all too fitting in the current climate of immigration round-ups. As Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security, continues its raids on homes and workplaces throughout the nation, immigrants—those perennial sacrificial lambs to capitalism—are again transformed from useful laborers to convenient, and therefore disposable, scapegoats. ICE recently announced that in the 2007 fiscal year it deported more than 220,000 people. Like Bell’s story that stands as a scathing critique of the intractability of racism in the United States, the current round of ICE raids is a reminder of the inherent cruelty of deportation.

Families are divided, individuals uprooted, communities destroyed—all part of a recurring theme of xenophobia and nativism, and all conducted routinely with the sanction of law. So long as the nation’s immigration law is intended to allow some people into the country while keeping most outside its borders, indiscriminate raids will occur.

To wrest control of the immigration discourse away from the policy makers intent on superficial adjustments of immigration law enforcement, we must uncover what former Supreme Court Justice Benjamin Cardozo, in The Nature of the Judicial Process, aptly described as the law’s “subconscious,” the underlying philosophy that gives coherence to its thought and action. This article examines the racist foundation of the modern immigration law regime in the United States, with an emphasis on laws governing deportation, and urges the left to begin an earnest discussion of immigration policy outside the liberal promotion of a guest worker program. The left’s immediate goal must be to shift the debate toward a wholesale revision of the urgent care strategy employed by immigrants’ rights advocates in the wake of recent raids. Such criticism is necessary, but insufficient. Meanwhile, the left’s ultimate goal should be to replace the current model of immigration control with a radically different model premised on the inherent right to travel and thrive, even across borders.

Rooted in Racism

The border and the Border Patrol are children of the same xenophobia, justified by the pseudoscience of eugenics. In 1882 Congress responded to widespread hostility to Chinese immigrants by enacting the first law that effectively excluded all members of a particular nationality from the United States. By 1911 eugenics had gained so much support within policy-making circles that the Senate’s Dillingham Commission concluded that the country would be debased unless migration from southern and eastern Europe—mainly Italians, Jews, and Poles—was substantially curtailed. At roughly the same time, Immigration Commissioner William Williams boasted of using immigration laws to bar “the riffraff and the scum which is constantly seeking to enter.”1

The visions of the invading hordes that policy makers imagined eventually led to a permanent police presence along the nation’s political boundaries. Prior to the 1920s the border was almost entirely porous. A few informal agents trolled the border mainly in an effort to keep out would-be Chinese newcomers. In 1924, however, the federal government created the Border Patrol—the predecessor of today’s ICE and its cousin along the border, the Customs and Border Protection Agency—and in the process, according to historian Mae M. Ngai, raised the border as a genuine obstacle to human migration.

Nowhere was the shift to an increasingly militarized boundary more visible than along the southern border after the 1920s. The Border Patrol started as a loose bunch of young gunslingers, many affiliated with the Ku Klux Klan, patrolling the Mexican border. From the beginning, the agency, through trigger-happy agents and official policies, represented the worst excesses of the expansionist nation. The first leader of the Border Patrol’s El Paso office, Clifford Perkins, recalled that some agents “were a little too quick with the gun, or given to drinking too much, too often.” Meanwhile, official policy required a medical inspection of all entering Mexicans. These inspections, waived for all Europeans and Mexicans entering through first-class trains, demanded that Mexican laborers remove their clothes for fumigation and walk before a medical officer. Within a few years the country was in the midst of the Great Depression and Mexicans proved an available scapegoat.2

Plenary Power Doctrine

Historically, immigration law has been used as a mechanism of social control. According to law professor Daniel Kanstroom, social control deportation laws treat all non-citizens, including lawful permanent residents (i.e., green card holders) as “eternal guests.” Their presence is “legal” or not depending on the whims of the citizenry.3 In practice, this means that non-citizens are in the country at the whim of Congress and the executive branch, buttressed by a compliant Supreme Court.

In a recent case, Demore v. Kim, the Supreme Court clearly explained the key distinction between immigration law and all other aspects of the U.S. legal apparatus. Chief Justice William Rehnquist, writing for the majority of the Court, explained: “this Court has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.” Rehnquist cited cases stretching back more than fifty years, but he could have reached even further. In Nishimura Ekiu v. United States, decided in 1892, the Court outlined the foundation of what has come to be known as the plenary power doctrine. This doctrine gives Congress the power to do almost anything it wants regarding admission, exclusion, and deportation. “It is an accepted maxim of international law,” the Court wrote, “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 admit them only in such cases and in such conditions as it may see fit to prescribe.”

The plenary power doctrine renders immigration law, including the procedures governing deportation, quasi-judicial. Immigration courts and judges are part of the Executive Office of Immigration Review, an arm of the Department of Justice; they are not part of the federal court system. More fundamentally, immigration law lacks basic procedures commonly associated with judicial proceedings. Most notable among these are a lack of due process protections, a lack of protection against dispensation of disproportionate punishments for an illegal act, and a lack of legal representation in immigration proceedings.

The due process protections normally afforded to defendants in judicial proceedings are derived from the Fifth and Fourteenth Amendments, which guarantee due process before the federal and state governments can deprive any person of “life, liberty, or property.” In 1950, the Supreme Court clarified that due process protections do not apply in the immigration context.

In United States ex rel. Knauff v. Shaughnessy, a case arising under the War Brides Act, a law that gave preferential treatment to the foreign wives and children of Second World War veterans, the Court considered a situation in which Ellen Knauff, the German-born wife of an army veteran, petitioned for entry into the United States. Knauff had gone from Germany to Czechoslovakia after the Nazis took power. Eventually, she fled Czechoslovakia and entered England as a refugee. There she worked in the Royal Air Force for three years. After the war, she took a job at the U.S. War Department in Germany. Both Knauff and her husband had received positive work reviews. Their marriage was even sanctioned by the military’s commanding general in Frankfurt. Nonetheless, she was barred from entering the United States “upon the basis of confidential information.”

Justice Minton explained the majority’s reasoning in words as succinct as they are indicative of the Court’s disregard for due process in immigration law: “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” In other words, Congress can choose any criteria for excluding foreigners—no matter how arbitrary or irrational—and the Court will uphold the decision. More than half a century later, the special agent in charge of a recent ICE raid on Long Island evidenced the enduring legacy and real–world implications of Minton’s words when he explained ICE’s decision to conduct raids without warrants: “We didn’t have warrants. We don’t need warrants to make the arrests. These are illegal immigrants.”4

Further expanding Congress’s power is the law’s view, developed in cases stretching as far back as 1882, that deportation is not a punishment for crime. It does not matter to the Supreme Court, which has repeatedly endorsed this position, that deportation often means banishment from the community in which the deported individual has lived for years and where she has important family ties. The popular maxim that the punishment should fit the crime does not apply, since deportation is not legally defined as punishment. Individuals can be deported for such petty crimes as shoplifting or possession of small amounts of marijuana. Though infractions such as these usually lead to minimal jail stays or less, in the immigration context they often result in permanent banishment.

Moreover, immigrants in deportation proceedings are not entitled to legal representation. Though they are allowed to hire a lawyer, the constitutional guarantee of effective counsel does not apply to most civil proceedings, including immigration matters where the defendant faces permanent banishment. According to a study conducted by the National Lawyers Guild in 2005, almost half of all immigration detainees in the Boston area had no legal representation.

A Nation Divided

The closing lines of “Mojado,” a song by the popular musicians from Guatemala and Texas, respectively, Ricardo Arjona and Intocable, asks a question of immense relevance to activists resisting the recent surge of immigration raids and border militarization projects: “¿Por qué te persiguen, mojado, si el consul de los cielos ya te dio permiso?” (“Why do they chase you, wetback, if the consul of the heavens has already given you permission?”) The answer lays in the function of our immigration law regime.

Political expediency practiced by policy makers explains many of the irrationalities and eccentricities of immigration law and enforcement. Exemplifying the irrationality of enforcement, Asa Hutchinson, former under secretary for border and transportation security for the Department of Homeland Security, admitted that there is more evidence of terrorist activity along the Canadian border than the Mexican border in the same breath that he announced that “[t]he best border security on the northern border is the grandmother who has lived in her house on the border for seventy years. She sits in her home and watches that border and calls border patrol when she sees something suspicious.”5 Meanwhile, the Border Patrol is in the midst of an enormous push to hire six thousand new agents, promising to fast-track Spanish-speaking recruits to place them in the field—presumably along the southern, not the northern, border—faster than the standard training process allows.

The Supreme Court played an important role in constructing distinct border policies for the Mexican and Canadian borders in its 1976 decision United States v. Martinez-Fuerte. In that case, the Court granted Border Patrol agents the right to stop and question people “of apparent Mexican ancestry” located anywhere within approximately a hundred miles of the border. No other criterion is necessary. In south Texas, where approximately 90 percent of the population is of Mexican descent, and therefore is presumably “of apparent Mexican ancestry,” agents are legally entitled to stop almost everyone in sight. This unprecedented power to police the southern border region uniquely positions the Border Patrol within border life. Unlike other law enforcement agencies that are prohibited from engaging in racial profiling, the Border Patrol is constitutionally entitled to do so.

While the Supreme Court continues to follow its deferential stance toward Congress’s power to control all immigration matters, the immigration court system remains plagued by blatant political peddling and shoddy decision making. Federal courts have occasionally found that immigration judges rule out of personal bias rather than legal doctrine. For example, the Second Circuit Court of Appeals last year overturned an immigration judge’s denial of asylum to a Chinese applicant because the judge’s “apparent bias and hostility toward Huang…were at least inappropriate and at worst indicative of bias against Chinese witnesses.”6 Another immigration judge was found to have “express[ed] prejudiced opinions about various ethnic groups” and “us[ed] profanity in the courtroom.”7 Even former attorney general Alberto Gonzales admitted that immigration court proceedings leave much to be desired when he noted that many immigration judges exhibit “intemperate or even abusive” behavior toward immigrants.8

In Need of a New Critique

In the aftermath of ICE’s March 2007 raid of a manufacturing plant in New Bedford, Massachusetts, a city with a substantial immigrant population, politicians from across the state rushed to condemn the federal government’s poor planning and inexcusable disregard for the children of detained immigrants. Edward Kennedy, the state’s senior senator, decried the raid for its “insensitivity.” The state’s head of public safety, Kevin Burke, under fire for revelations that the administration of Governor Deval Patrick was informed of the raid several months earlier, said, “We were assured there wouldn’t be any problems….Next time, the state will press more for details in the beginning.”9 In a recent ruling dismissing complaints brought by victims of that raid, a three-judge panel of the First Circuit Court of Appeals added its voice to the debate by criticizing the manner in which ICE performed the raid.

While it is important to criticize the most egregious consequences of the immigration raids and the Bush administration’s anti-immigrant strategy, immigrants’ rights advocates should prevent the oppositional discourse from dissolving into political posturing. Instead, advocates must contextualize any political strategy in Cardozo’s subconscious of law—the racist ideological foundations of immigration jurisprudence and enforcement from its origins in the late nineteenth century to the current round of raids.

The story of immigration law is a story of deportation. Immigration law, as presently conceived, cannot be divorced from deportation law. As the existing immigration law scheme requires welcoming some immigrants while excluding others, the constant threat of banishment is present through each wave of immigration, regardless of racial or national origin. No amount of pre-raid planning or political good will can eliminate the destructive consequences of deportation. On the contrary, an immigration regime that distinguishes between favored and disfavored people requires policing the nation to expunge anyone deemed excludable. This is not an extraordinary operation of law, but an entirely ordinary and logical extension of a bifurcated legal apparatus.

As a former high–ranking immigration official, Hutchinson’s perspective is instructive: immigration law enforcement pits “the rule and integrity of the law versus the compassion of our country.” In the end, he said, “The rule of law must prevail.” Any reassurances derived from references to the rule of law are illusory at best when those laws were born of late nineteenth-century racist, xenophobic hysteria. Given that these laws were then embraced for over a century by a deferential judiciary intent on granting plenary authority to politicians while depriving immigrants of the guarantees provided by much of the Constitution, immigrants and their allies are unwise to set mere ameliorative measures as goals.

The bifurcated regime that identifies some immigrants as “legal” necessarily designates others as “illegal.” These “illegal” residents become the perfect scapegoats for xenophobes who have converted them into criminals in the popular consciousness. Meanwhile, our generations-old immigration law regime refuses them the constitutional protections that they would receive if they were charged with an actual crime and subject to legally cognizable punishment. Further, this scapegoating blurs the distinction between “legal” and “illegal” to the point that a simple minor infraction—for example, failure to report an address change; or doing something that years later may become grounds for deportation even if at the time it was not—can leave a person without legal authority to remain in the country. As long as laws sanction the presence of some people while condemning the presence of others, deportations—or, at least, the threat of deportations—will persist.

For immigrants’ rights advocates to adopt the existing bifurcated position, even in a more humanitarian version, is to concede that the exclusionary rhythm that has guided immigration law for over a century—yesterday targeting Chinese, Japanese, Jews, Irish, and Italians, today targeting Latina/os and Arabs—is acceptable. It is not.

No matter how carefully orchestrated, deportation dehumanizes people who come to this country to work hard. Through their labor, they produce the many luxuries to which we have grown accustomed—clean offices and classrooms, tasty and inexpensive food at restaurants and in grocery stores, new homes, and a well-equipped military (courtesy, in part, of the New Bedford workers).

As Marx and Engels noted in the preface to the 1882 Russian edition of the Communist Manifesto, the economy of the United States rests on the labor of immigrants. At the time of their writing, the new immigrant was Europe’s “surplus proletarian.” Earlier, in the first volume of Capital, Marx had already argued that capital accumulation itself produces a “surplus-population,” that is, more laborers than it needs. Today, the U.S. economy continues to lure immigrants—now primarily from Latin America—with promises of employment. Upon arrival, these immigrants are reminded that they are nothing more than, to borrow from Marx, superfluous laborers.
Instead of limiting criticism to the most unpleasant consequences of deportation, the very premise of deportation—that some people are worthy of inclusion while others are not—must be discredited. In its place is needed a radically reformulated scheme of laws that will abolish the distinction between the favored and the disfavored. Since the advent of modern immigration law over a century ago, the left has yet to develop and advance its own immigration framework. This work is long overdue and urgently needed. 

Whatever the specific contours of a left platform, this new immigration law regime must be rooted in the activist contention that no human being is illegal. That is, human prosperity must not be viewed as a zero sum game that pits insiders against outsiders. A fitting beginning might be the vision offered by lawyer-turned-poet Martín Espada who dreamed of “refugees deporting judges, immigrants crossing the border to be greeted with trumpets and drums.”

1.   Richard Polenberg, Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech (New York: Penguin Books, 1987), 10.
2.   Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton, NJ: Princeton University Press, 2004), 68.
3.   Daniel Kanstroom, Deportation Nation: Outsiders in American History (Cambridge, MA: Harvard University Press, 2007), 6.
4.   Nina Bernstein, “Official Calls for Inquiry After Antigang Raids,” New York Times, October 3, 2007.
5.   Asa Hutchinson, “Keynote Address,” American University Washington College of Law, March 20, 2007, Administrative Law Review 59 (2007): 533, 541.
6.   Huang v. Gonzales, 453 F.3d 142, 148 (2nd Cir. 2006).
7.   Levinsky v. Department of Justice, 208 Fed. Appx. 925, 926 (Fed. Cir. 2006).
8.   Memorandum from Attorney General Alberto Gonzales to Immigration Judges (January 9, 2006),
9.   Eileen McNamara, “A Lapse in Planning,” Boston Globe, March 14, 2007.

2008, Volume 60, Issue 02 (June)
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