Legality, race, and inequality: An interview with Ruth Gomberg-Muñoz (Part II)

This is Part II of an interview with Ruth Gomberg-Muñoz, who is an assistant professor of anthropology at Loyola University Chicago. Her 2011 book, Labor and Legality, explores the work and social lives of undocumented busboys in Chicago. Since 2011, Gomberg-Muñoz has been conducting ethnographic research with mixed status couples as they go through the process of legalization; a book manuscript based on that research is in the works.  Part I of the interview is here.

Ryan Anderson: Earlier you made reference to the historically race-based nature of the U.S. immigration system. Race is an issue that many tend to avoid here in the U.S. — and this is definitely the case when it comes to immigration. Immigration debates often focus on crime, economics, competition over jobs, pressure on social services, taxes, and, of course, upholding the rule of law. It’s almost as if many people bend over backwards to deny that race has anything to do with our current policies. What’s this avoidance and denial all about?

Ruth Gomberg-Muñoz: I think that many people are unaware of the central role that race has played in shaping the U.S. immigration system. For example, the very first major citizenship policy in the U.S. limited citizenship to “free white men of good moral character,” while the first immigration policy, 1882’s Chinese Exclusion Act, prohibited immigration of Chinese nationals. The first comprehensive immigration bill, passed in 1924, was designed to curb immigration of “filthy” and “unassimilable” Southern and Eastern Europeans, and Asians were deemed ineligible for lawful immigration and U.S. citizenship until 1952. It was not until the Immigration and Nationality Act of 1965 that overt racial biases in U.S. immigration policy were eliminated.

After the 1965 Act, explicit mention of race has all but disappeared from immigration policy debates, and “illegal immigration” has become the chief target of punitive policy. As with previous periods, this targeting is conceptually and administratively tied to concerns about criminality, lack of assimilation, and “retaining” America’s heritage, but now these map onto an immigration classification, “illegal alien,” that is ostensibly divorced from ethnoracial associations.

There are two questions raised by this shift: 1. Are current U.S. immigration policies and practices actually race-neutral? 2. Is immigration status a better basis for discrimination and exclusion than race?

As to the first question, as Golash Boza and Hondagneu Sotelo (2013) show, U.S. immigration enforcement is permeated with racial, class, and gendered bias that especially targets Latino men. While immigrants from Latin America make up about 75 percent of the total undocumented population, they have accounted for over 90 percent of deportees since 2000. This disparity is partly due to the concentration of immigration enforcement on the U.S.-Mexico border, and partly due to racial profiling of Latinos by local police who cooperate with immigration agencies; in fact, in 2011, 93 percent of people deported via local/federal cooperation were Latino. And the overwhelming majority of deportees are men.

But racialized enforcement is not the work of rogue officers alone — U.S. policies target and criminalize undocumented people differently. For example, unlawful presence in the United States is a civil violation, and undocumented people who enter the U.S. with a temporary visa and overstay it have not committed any federal crime. But unauthorized entry and reentry are aggressively prosecuted as federal crimes. A 2014 Pew Hispanic Center study found that unlawful reentry, which is a felony, made up 26 percent of all federally sentenced cases in 2012. Nearly all of these migrants are sentenced to jail time — in 2012, prison sentences for unlawful reentry averaged 23 months prior to deportation. Further, three-quarters of prosecutions for unlawful reentry occurred in just five districts — all of which share a border with Mexico. The criminalization of unauthorized reentry and the concentration of criminal prosecutions on the U.S.-Mexico border overwhelmingly ensnare Latin American migrants, and the share of Latinos among federally sentenced offenders rose from 23 percent in 1992 to 48 percent in 2012.

Together, this (and other) evidence shows that “illegal” is not “illegal” in the same way for everyone. Instead, undocumented Latinos are more likely than other undocumented people to be targeted by U.S. immigration enforcement measures and subjected to incarceration, detention, and deportation.

The second question — Is immigration status a better basis for discrimination and exclusion than race? — is more complex. Certainly, many scholars and activists have challenged the idea that non-citizens should be denied rights, advocating for non-state or human rights-based approaches to citizenship. I would just add that, like racial categories, immigration categories are cultural inventions that have been (as racial categories were) codified in law. But legal codification does not make a practice morally legitimate, much less socially just. U.S. policies violate national borders and state sovereignty all the time, so why should migrants be punished for doing it?

I recently read a book foreword in which the author asserted that, “There can be no question about the right of every country to determine who is admitted, when, and how. This is the law, whose present necessity no one could reasonably dispute.” I completely disagree. I believe our responsibility is exactly that: to question how rights, borders, and laws are established and controlled and why nationalist tropes of security and freedom sanction some “unauthorized” border crossings and criminalize others.

RA: Speaking of the laws and policies that shape border crossings, what’s your take on Obama’s recent executive order on immigration?

RGM: On November 20th 2014, Obama announced that his administration would implement a program called Deferred Action for Parental Accountability, or DAPA, to shield certain undocumented people from deportation. In a nutshell, undocumented parents of U.S. citizen and lawfully resident children will be eligible for a 3-year work permit and deferral of deportation as long as they have no “serious” criminal record and can prove that they have not left the United States since January 1, 2010.

Like most people I know, I have mixed feelings about the executive order. On the one hand, DAPA will provide much-needed relief from deportation for millions of people and their family members. Further, those who are eligible will be able to work legally and qualify for tax credits. These are real and meaningful benefits.

On the other hand, DAPA is severely limited in scope, scale, and duration. The majority of undocumented people in the U.S. — some 6 to 7 million — will not qualify for DAPA. Among them are people who are childless (including many LGBTQ people), parents whose children are also undocumented or DACA-eligible, anyone with a “serious” criminal record (likely including convictions for unlawful reentry), and anyone who cannot prove continuous residence since 2010. This last criterion is especially onerous for cyclical migrants and people who work in the informal economy (such as off-the-books domestic work) and may especially burden immigrant women.

The benefits provided by the program, its scale, are also limited. DAPA eligibility does not guarantee protection from deportation, but rather a promise to use prosecutorial discretion in a deportation case — a big difference. And even with work eligibility, program participants will not qualify for most public benefits, including health care under the Affordable Care Act, SSI, Medicaid (except for emergency care), TANF, or SNAP, though workers pay into those programs with their tax dollars. Finally, DAPA is neither lawful permanent residency nor a path to lawful permanent residency — it is merely a promise not to pursue deportation at this time. The economic and political vulnerabilities of DAPA participants may be reduced, but they will persist.

Finally, the duration of the program is limited — eligibility is only good for 3 years. At the end of that period, participants may be able to reapply if the program is still available; but executive action is not legislation, and it can be ended at any time. In the meantime, program participants will be subject to routine and prolonged state surveillance — kind of like parole. Those who remain eligible will be held in a state of permanent legal precarity, or, as Cecilia Menjívar puts it, liminal legality, which confers on them some legal recognition without any long-term security.

Part III of the interview is here.


Ryan Anderson is a cultural and environmental anthropologist. His current research focuses on coastal conservation, sustainability, and development in the Californias. He also writes about politics, economics, and media. You can reach him at ryan AT savageminds dot org or @anthropologia on twitter.

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