k immigration aff
****COURTS VERSION****
FYI
at: What is plenary power doctrine?
This is what it is
Koulish 15 (Robert, Joel J. Feller Research Professor of Government and Politics at the
University of Maryland, “Spiderman’s Web and the Governmentality of Electronic
Immigrant Detention,” 2/1/2015, Law, Culture and the Humanities, ProQuest)//JL
The doctrine of plenary powers, a term coined by Stephen Legomsky,2 is a Court creation that gives Congress and the
executive branch sovereign authority over immigra-tion. Since the sovereignty of the U.S. predates the
Constitution, the concept of sovereignty assumes government power that pre-exists the Constitution
and thus as a result leeches beyond the realm of Constitutional constraints on state power.
at: what is ATD?
Here’s mainly what it is
Koulish 15 (Robert, Joel J. Feller Research Professor of Government and Politics at the
University of Maryland, “Spiderman’s Web and the Governmentality of Electronic
Immigrant Detention,” 2/1/2015, Law, Culture and the Humanities, ProQuest)//JL
In 2002, the soon to be former INS introduced the Alternative to Detention Initiative (ATD Initiative), a pilot program that deployed
electronic monitoring via radio frequency and global position satellite monitoring and was intended to ensure that “aliens
released from detention appear for their court hearings.”80 The ATD Initiative consisted of three programs:
the Electronic Monitoring Program (EMP), which began in 2007; the Intensive Supervision Program (ISAP), which was
initiated in 2004 and quickly became the most popular of the programs; and the enhanced Supervision Reporting Program (ESR),
which was initi-ated in 2008. ESR used the same monitoring methods as ISAP but required fewer home visits. The ESR
contract was also initially awarded to the firm Group 4 Securicor (G4S). In practice, these programs were distinguishable by their different reporting require-ments
and little else. ISAP
has been the most popular program and recipient of the most funds. The programs are
managed through the Office of Detention and Removal Operations (DRO). It consisted largely of
electronic monitoring and home arrest, structured reporting requirements and unscheduled home visits.
In August 2009, ICE announced plans to overhaul its immigration detention system.81 One component of this
effort has been to accelerate the development of ATD programs. It is worth noting that neither ISAP nor ESR designers
drafted regulations under 8 CFR. The programs were drafted outside APA requirements, with no public notice and
comment, i.e., no feedback, and no accountability. The lack of public accountability provides an explanation for an
investigation reported in the Houston Chronicle that found that ESR “suffered from poor data tracking of immigrants who
have absconded from the program.”82 Such flaws provide examples of the venom-like impulses associated with plenary powers. Funding for ATD programs started small but quickly grew into a significant finan-cial
commitment. In 2002, Congress appropriated $3 million for ATD. In FY 2005, Congress authorized $5 million. The following year its commitment to ATD
jumped to $28.5 million.83 In 2004 ATD was outsourced to Behavioral Interventions (BI), a private firm that
specializes in electronic monitoring of criminals.84 June 2004, BI case specialists were tasked with administering the new program as a
trial run in eight cities including Washington D.C. and Baltimore. The program relied on ankle bracelets, GPS monitoring devices,
telephonic reporting, unannounced home visits and home arrest (curfews).85 In July 2009, DRO awarded a $372 million five-year
contract to BI Incorporated for the Intensive Supervision Appearances Program (ISAPII). At about the same time federal allocations jumped to $63 million in FY
2009, and approximately $72 million in FY 2011.86 Since 2010 these three programs coalesced under GEO Group management, at about the same time GEO Group,
known for detaining immigrants, acquired BI Incorporated for $415 million. It
is not insignificant that GEO Group has come to
manage both closed detention facilities and ATD.87 As a private firm seeking to increase its share of the immi-grant control market,
GEO Group now has no financial incentive to distinguish detained from non-detained immigrants, or to
distinguish alternatives to detention from alternatives to release. The idea is that GEO Group stands poised to
extend its services into the market of immigrants who are not in detention. At the moment about 17,500 immigrants are
enrolled in ISAPII, and as LIRS has reported, “ISAPII is poised to expand; according to ( )contract with ICE, more offices were scheduled to open from July 2009
through July 2014.”88
at: what is demore v kim?
Here’s the necessary background
Kanstroom et al 2 (Daniel, Boston College Law School, Susan Akram, Boston University School of Law Filippa Anzalone, Boston
College Law School Arthur Berney, Boston College Law School Eric D. Blumenson, Suffolk Law School Richard A. Boswell, University of California
Hastings College of Law Mark Brodin, Boston College Law School Gabriel J. Chin, University of Cincinnati College of Law Michael J. Churgin,
University of Texas School of Law Valerie C. Epps, Suffolk Law School Ed Fallone, Marquette University Law School Anthony Farley, Boston
College Law School Taylor Flynn, Western New England College School of Law Niels W. Frenzen, University of Southern California Law School
Phillis Goldfarb, Boston College Law School H. Kent Greenfield, Boston College Law School Dean Hashimoto, Boston College Law School Michael
G. Heyman, John Marshall School of Law Kevin Johnson, University of California, Davis, School of Law Karl Klare, Northeastern University School
of Law Michael M. Levy, College of William & Mary Stephen H. Legomsky, Washington University Peter Margulies, Roger Williams School of Law
M. Isabel Medina, Loyola University, New Orleans, School of Law Jennifer Moore, University of New Mexico School of Law Hiroshi Motomura,
University of Colorado Lori Nessel, Seton Hall University of Law Nancy K. Ota, Albany Law School Margaret Taylor, Wake Forest University
School of Law Natsu Taylor Saito, Georgia State University College of Law Alexander Tallchief Skibine, University of Utah College of Law, Aviam
Soifer, Boston College Law School, “BRIEF FOR AMICI CURIAE LAW FACULTY IN SUPPORT OF RESPONDENT,” October 2002, American Civil
Liberties Union, https://www.aclu.org/legal-document/law-professors-al-amicus-brief-demore-v-kim)//JL
Respondent Hyung Joon Kim, a citizen of the Republic of Korea, entered the United States legally as a six
year old child in 1984. (Pet. App. 2a). He became a lawful permanent resident of the United States in
1986, at the age of eight. (Id. at 31a-32a). A decade later, in 1996, at the age of eighteen, Mr. Kim was
convicted of a crime for which he received a suspended sentence. (Id. at 32a). In April 1997, he was
convicted of “petty theft with priors,” and sentenced to three years’ in prison. (Id.) Despite his long
residence, entry as a child, family ties, and various other humanitarian factors, Mr. Kim was charged by
the U.S. Immigration and Naturalization Service (INS) with being subject to removal due to his 1997
conviction for an “aggravated felony.”1 (Id. ). See 8 U.S.C. §§ 1101(a)(43)(g), 1227(a)(2)(A)(iii)(2002). He
was taken into custody by INS on February 9, 1999. Due to the requirements of 8 U.S.C. 1226(c),2 INS
refused to release him on bond or even to grant him a meaningful bond hearing. (See Pet. App. at 33a).
Mr. Kim sought judicial relief in the form of a habeas corpus action brought pursuant to 28 U.S.C. § 2241
in the United States District Court for the Northern District of California. (Pet. App. at 2a, 31a, 33a). He
challenged § 1226(c) as facially unconstitutional because it precludes an individualized bond hearing in
violation of both substantive and procedural guarantees of due process under the Fifth Amendment.
The District Court declared §1226(c) unconstitutional on its face and ordered a meaningful,
individualized bond hearing at which assessment could be made whether Mr. Kim presented either a
flight risk or a danger to the community. (Id. at 31a-51a). The district court held specifically that “lawful
resident aliens” possess both substantive and procedural due process rights and the § 1226(c) scheme
failed on both counts, pursuant to United States v. Salerno, 481 U.S. 739, 747 (1987) and Mathews v.
Eldridge, 424 U.S. 319, 335 (1976). (Pet. App. at 39a-50a). The court of appeals affirmed on the specific
ground that § 1226(c) violated due process as applied to Mr. Kim, a lawful permanent resident. (Pet.
App. at 30a). The court held that “a lawful permanent resident in removal proceedings cannot
constitutionally be deprived of ’a bail hearing with reasonable promptness to determine whether the
alien is a flight risk or a danger to the community.’ (Id. at 30a).
1ac
1ac—Biopolitics Adv
Immigrants can’t get habeas relief now – their very existence is denied by the Courts
Koulish 15 (Robert, Joel J. Feller Research Professor of Government and Politics at the
University of Maryland, “Spiderman’s Web and the Governmentality of Electronic
Immigrant Detention,” 2/1/2015, Law, Culture and the Humanities, ProQuest)//JL
Beyond interpreting statutes and liberty interests under the 5th Amendment, the courts must also
contend with the Great Writ (U.S. Constitution, Art. I Sec. 9), which is another potential source of relief
for immigrants whose liberty has been unlawfully deprived. Although habeas corpus can apply to the
immigration context in terms of physical deten-tion,105 the question of whether habeas applies to the
electronic detention scenario comes down to whether or not electronic bracelets constitute custody. A
recent Board of Immigration Appeals (BIA) decision demonstrates that habeas corpus does not apply to
immigrants who are tethered to ankle bracelets and home arrest. ATD immigrants are not in custody, to
dramatic effect: Petitioners for habeas relief would not be presenting a live case or controversy. The
habeas petition would be denied and the case dismissed.106 The key to understanding ATD as a
technology of plenary power has to do with how ATD circumvents the right to habeas corpus by
defining the custodial nature of the electronic bracelets (combined with house arrest) sanction as
existing outside of custody. In other words, the question is how to distinguish being tethered to the
state and being in its custody. In criminal law, habeas corpus extends beyond incarceration to include
conditions of parole, probation and bail, sentencing to a halfway house, or subject to house arrest or
electronic monitoring, i.e. the individual may be considered to be in custody even if not incarcerated. In
the criminal context, it is suggested that even restraints on conditions of release on recognizance
constitute custody107 or that that placing restrains and conditions on a parole order amount to
custody.108 By contrast, immigration law has a much narrower definition for custody, equating it with
detention.109 In immigration law the terms custody, detention and incarceration have interchangeable
definitions, which is to suggest custody is defined in terms of detention.
Immigration surveillance is the manifestation of sovereign control and violent
governmentality – this focus on self-preservation justifies xenophobic exclusion
Koulish 15 (Robert, Joel J. Feller Research Professor of Government and Politics at the University of
Maryland, “Spiderman’s Web and the Governmentality of Electronic Immigrant Detention,” 2/1/2015,
Law, Culture and the Humanities, ProQuest)//JL
I examine the governmentality of the exception in the immigration context. My purpose is to describe
how technologies of sovereign power have been deployed on immigrants in the enforcement context.
Michel Foucault coined the term governmentality during a series of lectures in the late 1970s, to
connote a form of productive power that constitutes people as a particular sort of subject. For Foucault,
power relations are central to any analysis of society. Unlike liberal conceptions of power, which are
mostly negative, Foucault imagines that power can be liberating or productive as well as being
repressive. Foucault’s project is not to condemn power but to examine its genealogy in specific fields. He
has famously written about panoptic power as it pertains to sexuality, the asylum, or prison. Thus it is
also with immigration and the notion of plenary power. Following Foucault, I discuss immigration
plenary powers in its panoptic and post-panoptic guise. Further, while I agree with the juridical
inclination to condemn the government’s use of unchecked power on immigrants, it is more important
to my project to examine how such power is utilized. Thus, as Foucault says, governmentality should
also be understood as the “conduct of conduct,” or, a purposeful calculated attempt to regulate human
behavior.45 Three important aspects of governmentality are worth mentioning. First, according to
Judith Butler, “governmentality operates through policies and departments, through mana-gerial and
bureaucratic institutions, through the law, when the law is understood as ‘a set of tactics,’ and through
forms of state power, although not exclusively.”46 Following Butler, therefore, I refer to
governmentality in terms of how control tactics operate through policy, i.e., how technologies regulate
the liberty of immigrants into and within society, punish immigrants within a civil law context. Second, it
includes the role private actors play in directing human behavior, which suggests examining the
privatization of immigration control technologies. Third, it includes how individuals shape their own
subjectivities. Thus, following Cruikshank who examines the technologies, or ethical obligations, of
citizenship,47 and Rose who examines self-governance as extending government into the soul,48 I
examine technologies of membership and exclusion that pertain to immigrants who find themselves
outside custody but still surveilled and their liberty constrained . In this way it covers how these
control strategies get immigrants to internalize features of control that enhance the likelihood of the
immi-grants’ own incarceration and subsequent removal from the country. I examine immigration
control technologies that combine two approaches to sovereignty, which the courts perceive as the
basis for immigration law. By Foucault’s account, early sovereignty has to do with the sovereign’s selfpreservation as demonstrated during the ancien régime.49 The sovereign’s preoccupation with selfpreservation provides the logic for a pre-constitutional approach to sovereignty. The sovereign can act
with impunity to ensure its own self-preservation. Any other conceivable task pales in importance. I
analogize Foucault’s early sovereign’s concern for self-preservation to the pre-constitutional concep-tion
of sovereignty that the Supreme Court has used to justify the basis for federal immi-gration power since
1889. In terms of deploying mechanisms of control, the logic of self-preservation lends itself to
draconian enforcement measures and broad exclusion. Next is the modern account of sovereignty,
which is rooted in constitutionalism and a normative concern for the wellbeing of the population, a
concept Foucault defines in terms of it being docile and productive.50 As federal immigration law
developed in 1882 and 189151 upon the infrastructure of the new administrative state,52 mechanisms
of control were introduced, including immigrant inspections and quarantines that focused on matters of
exclusion, and public health and wellbeing. This contested terrain of sovereignty (between self
preservation and well being) provides a useful interpretation of immigration law’s more anomalous
nature. Immigration rests upon a structure of sovereignty that predates the constitution and thus can
legitimize any exclusion that is justified on the basis of self-preservation. It develops within the modern
administrative state, which enhances state capacity for inspecting and surveilling the immi-grant
population for the sake of public health.
This inscription within biopolitics is at the heart of violence allowing every ‘citizen’ to
be devalued and eliminated in the name of sovereign management.
Agamben 98 (Giorgio – Univ. Verona Philosophy professor, Homo Sacer: Sovereign Power and Bare
Life, Stanford UP, p. 139-140)
**we don’t not agree with the author’s use of gendered language
<3.3. It is not our intention here to take a position on the difficult ethical problem of euthanasia, which
still today, in certain coun¬tries, occupies a substantial position in medical debates and provokes
disagreement. Nor are we concerned with the radicaliry with which Binding declares himself in favor of
the general admissibility of euthanasia. More interesting for our inquiry is the fact that the sovereignty
of the living man (person) over his (their) own life has its immediate counterpart in the determination
of a threshold beyond which life ceases to have any juridical value and can, therefore, be killed
without the commission of a homicide. The new juridical category of "life devoid of value" (or "life
unworthy of being lived") corresponds exactly-even if in an apparently different direction-to the bare
lifeof homo sacer and can easily be extended beyond the limits imagined by Binding. It is as if every
valorization and every "politicization" of life (which, after all, is implicit in the sovereignty of the
individual over his own existence) necessarily implies a new decision concerning the threshold beyond
which life ceases to be politically relevant, becomes only "sacred life," and can as such be eliminated
without punishment. Every society sets this limit; every society-even the most modern-decides who its
"sacred men"(people) will be. It is even possible that this limit, on which the politicization and the
exceptio of natural life in the juridical order of the state depends, has done nothing but extend itself in
the history of the West and has now-in the new biopolitical horizon of states with national
sovereignty-moved inside every human life and every citizen. Bare life is no longer confined to a
particular place or a definite category. It now dwells in the biological body of every living being.> <139140>
Individualizing and identity forming methods of governance are the new predominant
forms of power. The production and administration of life lead to the maneuvering of
subjects in ways that culminate in violence, war, and genocide.
Foucault ’78 (Michel – late philosopher, History of Sexuality An Introduction Vol. 1, Vintage Books, p.
135-137) **We do not agree with this authors use of gendered language
For a long time, one of the characteristic privileges of sovereign power was the right to decide life and
death. In a formal sense, it derived no doubt from the ancient patria potestas that granted the father of
the Roman family the right to "dispose" of the life of his children and his slaves; just as he had given
them life, so he could take it away. By the time the right of life and death was framed by the classi¬cal
theoreticians, it was in a considerably diminished form. It was no longer considered that this power of
the sovereign over his (their) subjects could be exercised in an absolute and unconditional way, but
only in cases where the sovereign's very existence was in jeopardy: a sort of right of rejoinder. If he
were threatened by external enemies who sought to over-throw him or contest his rights, he could then
legitimately wage war, and require his subjects to take part in the defense of the state; without "directly
proposing their death," he was empowered to "expose their life": in this sense, he wielded an "indirect"
power over them of life and death.' But if someone dared to rise up against him and transgress his laws,
then he could exercise a direct power over the offender's life: as punishment, the latter would be put to
death. Viewed in this way, the power of life and death was not an absolute privilege: it was conditioned
by the defense of the sovereign, and his own survival. Must we follow Hobbes in seeing it as the transfer
to the prince of the natural right possessed by every individual to defend his life even if this meant the
death of others? Or should it be regarded as a specific right that was manifested with the formation of
that new juridical being, the sovereign?' In any case, in its modern form-relative and limited-as in its
ancient and absolute form, the right of life and death is a dissymmetrical one. The sovereign exercised
his (their) right of life only by exercising his right to kill, or by refraining from killing; he
(they)evidenced his power over life only through the death he was capable of requiring. The right
which was formulated as the "power of life and death" was in reality the right to take life or let live.
Its symbol, after all, was the sword. Perhaps this juridical form must be referred to a historical type of
society in which power was exercised mainly as a means of deduction (prelevement), a subtraction
mechanism, a right to appropriate a portion of the wealth, a tax of products, goods and services, labor
and blood, levied on the subjects. Power in this instance was essentially a right of seizure: of things,
time, bodies, and ultimately life itself; it culminated, in the privilege to seize hold of life in order to
suppress it. Since the classical age the West has undergone a very profound transformation of these
mechanisms of power. "Deduction" has tended to be no longer the major form of power but merely
one element among others, working to incite, reinforce, control, monitor, optimize, and organize the
forces under it: a power bent on generating forces, making them grow, and ordering them, rather
than one dedicated to impeding them, making them submit, or destroying them. There has been a
parallel shift in the right of death, or at least a tendency to align itself with the exigencies of a lifeadministering power and to define itself accordingly. This death that was based on the right of the
sovereign is now manifested as simply the reverse of the right of the social body to ensure, maintain,
or develop its life. Yet wars were never as bloody as they have been since the nineteenth century, and
all things being equal, never before did regimes visit such holocausts on their own populations. But
this formidable power of death -and this is perhaps what accounts for part of its force and the cynicism
with which it has so greatly expanded its limits -now presents itself as the counterpart of a power that
exerts a positive influence on life, that endeavors to adminis¬ter, optimize, and multiply it, subjecting it
to precise controls and comprehensive regulations. Wars are no longer waged in the name of a
sovereign who must be defended; they are waged on behalf of the existence of everyone; entire
populations are mobilized for the purpose of wholesale slaughter in the name of life necessity:
massacres have become vital. It is as managers of life and survival, of bodies and the race, that so
many regimes have been able to wage so many wars, causing so many men to be killed. And through a
turn that closes the circle, as the technology of wars has caused them to tend increasingly toward all-out
destruction, the decision that initiates them and the one that terminates them are in fact increasingly
informed by the naked question of survival. The atomic situation is now at the end point of this process:
the power to expose a whole population to death is the underside of the power to guarantee an
individual's continued existence. The principle underlying the tactics of battle-that one has to be
capable of killing in order to go on living-has become the principle that defines the strategy of states.
But the existence in question is no longer the juridical existence of sovereignty; at stake is the biological
existence of a population. If genocide is indeed the dream of modern powers, this is not because of a
recent return of the ancient right to kill; it is because power is situated and exercised at the level of
life, the species, the race, and the large-scale phenomena of population.
Biopolitics generates violence on a previously unseen scale, authorizing extermination
at will
Agamben 98 (Giorgio – Univ. Verona Philosophy professor, Homo Sacer: Sovereign Power and Bare
Life, Stanford UP, p. 113-115)
<It is jean-Luc Nancy's achievement to have shown the ambiguity of Bataille's theory of sacrifice, and to
have strongly affirmed the concept of an "unsacrificeable existence" against every sacrificial temptation.
Yet if our analysis of homo sacer is correct, and the Bataillian definition of sovereignty with reference to
transgression is inadequate with respect to the life in the sovereign ban that may be killed, then the
concept of the "unsacrificeable" too must be seen as insufficient to grasp the violence at issue in
modern biopolitics. Homo sacer is unsacrificeable, yet he may nevertheless be killed by anyone. The
dimension of bare life that constitutes the immediate referent of sovereign violence is more original
than the opposition of the sacrificeable and the unsacrificeable, and gestures to-ward an idea of
sacredness that is no longer absolutely definable through the conceptual pair (which is perfectly clear in
societies familiar with sacrifice) of fitness for sacrifice and immolation ac-cording to ritual forms. In
modernity, the principle of the sacredness of life is thus completely emancipated from sacrificial
ideology, and in our culture the meaning of the term "sacred" continues the semantic history of homo
sacer and not that of sacrifice (and this is why the demystification of sacrificial ideology so common
today remain insufficient, even though they are correct). What confronts us today is a life that as such
is exposed to a violence without precedent precisely in the most profane and banal ways. Our age is
the one in which a holiday weekend produces more victims on Europe's highways than a war
campaign, but to speak of a "sacredness of the highway railing" is obviously only an antiphrastic
definition (La Cecla, Mente locale, p. 115). The wish to lend a sacrificial aura to the extermination of the
Jews by means of the term "Holocaust" was, from this perspective, an irresponsible historiographical
blindness. The Jew living under Nazism is the privileged negative referent of the new biopolitical
sovereignty and is, as such, a flagrant case of a homo sacer in the sense of a life that may be killed but
not sacrificed. His killing therefore constitutes, as we will see, neither capital punishment nor a
sacrifice, but simply the actualization of a mere "capacity to be killed" inherent in the condition of the
Jew as such. The truth-which is difficult for the victims to face, but which we must have the courage not
to cover with sacrificial veils-is that the Jews were exterminated not in a mad and giant holocaust but
exactly as Hitler had announced, "as lice," which is to say, as bare life. The dimension in which the
extermination took place is neither religion nor law, but biopolitics. If it is true that the figure proposed
by our age is that of an unsacrificeable life that has nevertheless become capable of being killed to an
unprecedented degree, then the bare life of homo sacer concerns us in a special way. Sacredness is a
line of flight still present in contemporary politics, a line that is as such moving into zones increasingly
vast and dark, to the point of ultimately coinciding with the biological life itself of citizens. If today there
is no longer any one clear figure of the sacred man, it is perhaps because we are all virtually homines
sacri.> < 113-115 >
The aff resolves two critical internal links—
-- The first is the plenary power doctrine—
Plenary power is a mechanism to justify social control – the aff can open up critiques
of sovereignty from within but focusing on policy is key
Koulish 15 (Robert, Joel J. Feller Research Professor of Government and Politics at the University of
Maryland, “Spiderman’s Web and the Governmentality of Electronic Immigrant Detention,” 2/1/2015,
Law, Culture and the Humanities, ProQuest)//JL
Now for the dramatic tension: The government’s mission to vanquish undesirable immi-grants must
overcome the challenge of its own limited capacity and unrealistic expectations, and the mission usually
crashes and burns right there. Recent expectations, explicit or merely inferred, have included
adequately sealing off approximately 6,000 miles of open border or removing millions of unauthorized
immigrants from within territorial borders. The virtual fence,15 a multi-billion boondoggle that never
advanced beyond the pilot stage; NSEERS,16 which was responsible for the government rounding up
thousands of Muslim men without cause or suspicion; and US-VISIT,17 which is supposed to track the
names of everyone who enters and exits the country; have all been abysmal failures.18 Simply put, the
reality of immigration control must be distinguished from its symbolic if somewhat cartoonish rhetoric.
The controls are not designed to rid the country of unlawful immigrants; the controls are serialized into
an industrial complex that reaps profits for private firms while subjecting the noncitizen enemy to a
wide variety of disciplines and controls .19 Here you also have the structure of virtually any 23-minute
superhero cartoon, a quintes-sential law and order bad guy/good guy narrative. The narrative is simple,
even simplistic and yet it makes sense of the relationship between the state and immigrants since the
origins of immigration law. The state is the superhero that acts on behalf of the law-abiding citizenry,
and stands watch against potential evildoers to crash upon our sovereign shores. Each episode
showcases a life or death scenario that justifies assuming superhero powers and putting down the
threat with gadgetry and anything else at its disposal. But to get superhero powers, we must recognize
the aberrational nature of the superhero relationship. The relationship is unlike any other that Peter
Parker or Clark Kent have had with other people in the course of their everyday lives. It takes the
presence of some perceived danger to morph ordinary Peter Parker into the extraordinary Spiderman,
or Clark Kent into Superman. For this article, I am interested in how the superhero qua state gets its
strength and puts it to good use via state of the art gadgetry/technologies. I say ‘‘good’’ use because the
authoritarian nature of these scenarios involves the moral authority to fight for “the American way,” to
borrow from the Cold War-inspired original Superman television show. The “securitization” of this
authoritarian ethos helps legitimize the plenary powers that are claimed power on behalf of the
American people. At the same time, it is important to recognize the irony of superhero cartoons
particularly to the extent the superhero has prescience regarding guilt, innocence and risk. Such
certainty of vision makes it easy for the superhero to ignore basic criminal rights. But in the real world,
the state lacks the superhero’s foresight and instead must bank its moral authority upon constitutional
norms with references to the 4th, 5th and 6th Amendments. The problem for immigration enforcement
occurs when humans claim superhero powers but ignore a democratic society’s need for constitutional
norms. In this way the immigration regime lacks the moral authority and clarity of execution that we
align with our superheroes or the constitutional norms that we align with mortals who wield law
enforcement power. This problem of superhero power originates in sovereignty, which is the basis for
federal immigration law. In the immigration field, the state uses sovereign power to secure territorial
boundaries. Specifically, I am interested in how sovereignty discourse translates state power into
unaccountable technologies of social control .20 Is it possible for a state relying on the plenary powers
of sovereignty to pursue and subdue immigrants while maintaining its integrity as a democratic state?
Since unchecked powers are anathema to democratic governance, the immigration regime has a
daunting task to say the least. With a squint and a smirk I can imagine how immigration controls over
the years might inspire the arc of many a superhero cartoon. Indeed, the Venom arc in the Spiderman
series lends itself to a skeptics view to the problem of immigration control. The Venom arc represents
how unchecked power can distort the simplicity of a ‘‘good versus evil’’ narrative structure. Plenary
powers are the black ooze that drips around the edges of constitutional constraints. They are the
venom-ous ooze that drips onto Spiderman’s body and then leeches into his soul, changing both his
behavior and moral compass. This venomous black ooze is a ‘‘symbiote,’’ as noted in Spiderman3. “It
changes you. It amplifies characteristics of its host, especially aggression. This could be dangerous.”21 It
is important to note that in the policy context the formula loses its comic appeal as parody gives way
to critique. In this immigration control narrative, the venomous black ooze of plenary powers changes
how judges suddenly look beyond constitutional norms whenever immigrants appear on the horizon.
Sovereignty constructs a threat to justify biopolitical control and racist rhetoric –
removing the plenary power doctrine is key
Koulish 15 (Robert, Joel J. Feller Research Professor of Government and Politics at the
University of Maryland, “Spiderman’s Web and the Governmentality of Electronic
Immigrant Detention,” 2/1/2015, Law, Culture and the Humanities, ProQuest)//JL
In large part the exemplary status of immigration law derives from interweaving two his-torically
different approaches to sovereignty. Early modern characteristics describe sover-eignty in terms of selfpreservation.53 Rogers Smith has written extensively about how the exclusionary threads of
immigration law are irreconcilable with liberalism.54 These illiberal threads are rooted in the early
modern conception of sovereignty that play out in both the process and substance of immigration law.
In terms of process, the doctrine of plenary powers gives Congress nearly unchecked authority to
establish processes for detention and removal. In terms of substance, Congress enjoys the same sort of
power to exclude any category of immigrants of its choosing, accountable only to the court of public
opinion. Traces of these early-modern origins would persist as immigration law developed upon a
modern administrative foundation. The state would rely upon plenary powers to imple-ment its vision
for wellbeing in the immigration context. Wellbeing would be perceived through the lens of disciplining
immigrants through inspections and surveillance, which draws inspiration from Foucauldian concepts of
biopolitics and the panopticon. Thus plenary powers, like venom’s ooze triggered through alien
interaction, would creep into modern administrative initiatives to dangerous effect. Early immigration
controls of the late 19th and early 20th centuries provide a quintes-sential example of Foucault’s
biopolitics which is the mode of power that operates through the administration of life (bodies). It deals
with such characteristics of managing a popula-tion as health, sanitation, mental and physical capacities
and more (McKee 2009). Such was the initial focus of federal immigration control when Congress started
excluding immigrants on the basis of individual characteristics in the Immigration Act of 1875 and then
in 1882 when Congress barred idiots, lunatics, convicts, and “persons likely to become public charges.”
In describing the role of the panopticon, Foucault said, Power has its principle not so much in a person
as in a certain concerted distribution of bodies, surfaces, lights, gazes; in an arrangement whose internal
mechanisms produce the relation in which individuals are caught up… So, it is not necessary to use force
to constrain the convict to good behavior, the madman to calm, the worker to work, the schoolboy to
application, the patient to the observation of the regulations… He who is subject to a field of visibility,
and who knows it, assumes responsibility for the constraints of power; he makes them play
spontaneously upon himself; he inscribes in himself the power relation in which he simultaneously plays
both roles; he becomes the principle of his own subjection.55 Since Chae Chan Ping, immigration control
has provided an example of how the modern state deploys sovereign power. The Immigration Acts of
1875, 1882 and 1891 introduced categories of immigrants that would be excluded at ports of entry.
These immigrants were perceived either to be burdens “on the public purse,” or “unassimilable.”56
Unassimilable immigrants were either excluded or deported while the rest were perceived of as at risk
for being a burden “on the public purse.” The latter group were admitted into the country and then
subjected to panoptic risk assessment strategies. These early Court cases constructed a scenario of
danger that helped rationalize the use of prerogative powers as the basis for immigration control. It
seems the state’s power grew as it came into contact with the alien ooze. Justice Field appeals to
sovereignty as the power of self-preservation that was needed to deal with crisis and potential crisis
situations, com-ing as a result of war or, put another way, from “vast hordes of people crowding upon
us.”57 Field also suggests a preemptive function of sovereignty is to mitigate potential crises. “The
existence of war would render the necessity of the proceedings only more obvious and pressing. The
same necessity, to a less pressing degree, may arise when war does not exist, and the same authority
which adjudges the necessity in one case must also determine it in the other. In both instances its
determination is conclusive upon the judiciary.” Thus, sovereignty serves as a relevant source of
authority even when the “vast hordes” are at bay. In discussing even preemptive plenary powers, the
Court provides the rationale for shifting the short-term exception into a long-term policy. “The same
necessity, in a less pressing degree, may arise when war does not exist.”58 Here the exception becomes
the rule as Justice Field recognizes the state’s super power morphing out of the alien ooze. Indeed the
perception of the potential danger of the alien other was and remains the key rationale why sovereignty
persists as the basis for immigration law. Just a few years later, in Fong Yue Ting Justice Gray touched
further on ideas surround-ing risk when he legitimized Congress’ “white witness” rule as a way of
preventing the “… great embarrassment ... (and) suspicious nature’’ of a court entertaining the “loose
notions entertained by the witnesses” … “of the same race” as the Chinese immigrant.59 The border at
issue had to do with law courts. The “white witness” rule addressed the perceived risk that Chinese
immigrants might well embarrass the rule of law/court by not taking “the obligation of an oath”
seriously.60 It diminished risk by allowing for the deportation of such immigrants. In each instance (Chae
Chan Ping and Fong Yue Ting) plenary powers were invoked to protect important institutions. Whereas
Chae Chan Ping focused on sovereign powers at the territorial border, Fong Yue Ting applied the same
super power to persons inside the country. Of course modern case law has added several nuanced
revisions on the use of plenary powers. Still, current immigrant debates continue to shift and turn
within a narrow discourse that exploits fears that ‘‘vast hordes are crowding upon us,’’ and that such
hordes pose a risk to some basic tenets of democracy as broad as the notion of social contract or as
narrow as local government services and tax revenues.
We’ll pre-empt their defense – there is no legal or logical limit to government power
in the context of xenophobic violence towards immigrants
Koulish 15 (Robert, Joel J. Feller Research Professor of Government and Politics at the
University of Maryland, “Spiderman’s Web and the Governmentality of Electronic
Immigrant Detention,” 2/1/2015, Law, Culture and the Humanities, ProQuest)//JL
I make use of superhero cartoons to discuss immigration because there
has always been a satiric bravado to immigration
controls that wield almost unchecked government power against immigrants. In a manner similar to superhero
cartoons, the government is on a mission to repel or least subdue unwanted evil (foreign) advances across
territorial borders, and relies on plenary powers in achieving its ends. A Manichaean narrative of good against evil creates
the moral authority for such power. With each storyline, or immigrant flow, a risk is constructed, exacerbated and
then overcome.
-- The second internal link is Alternative to Detention Hearings, or ATDs
ATDs create a state of exception that violates immigrants’ liberty – the plan is key
Koulish 15 (Robert, Joel J. Feller Research Professor of Government and Politics at the University of
Maryland, “Spiderman’s Web and the Governmentality of Electronic Immigrant Detention,” 2/1/2015,
Law, Culture and the Humanities, ProQuest)//JL
The scenario suggests that political branches of the federal government have unchecked powers over
immigrants which causes a great deal of hardship in immigrant communities. The logic of classic
immigration control originates in a turn of phrase by Justice Field in 1889 that first refers to plenary
powers to describe the prerogatives of Congress to regulate immigration with impunity.22 Field located
plenary powers in the international law concept of sovereignty, which remains the extra constitutional
core of immigration control .23 The problem with plenary powers is that it is anathema to the limited
powers embed-ded in liberal government. With plenary powers immigration regulation too often
becomes an exception to the rule of law, on par with emergency situations and crisis responsibili-ties.24
Such moments occur when the exemplary and prerogative powers of the executive are invoked to
protect the state against foreign invasion, wars, natural and national crises.25 The problem is that when
the executive seizes exceptional powers for more than brief periods s/he reaches beyond the limits the
constitution sets for legitimate governance. When it comes to protecting sovereign boundaries from
foreign invasion, Justice Field in Chae Chan Ping analogized foreign invasion instigated by enemies of the
state to the invasion of unassimilable immigrants .26 Just as prerogative powers were enlisted to help
the nation through times of crisis, Field suggested, the federal government had plenary powers with
which to preempt alien invasion. This law case introduces some important questions for immigration
control that have to do with the governmentality of the exception, which demonstrates how the
exception is embedded into policy. I intend to examine this question with frameworks offered by Giorgio
Agamben and Michel Foucault. Agamben emphasizes how emergency state powers have become the
normal face of governance. He suggests the “state of exception establishes a hidden but fundamental
relationship between law and the absence of law. It is a void, a blank and this empty space is
constitutive of the legal system.”27 Foucault’s framework provides an interpretation of power in terms
of the panopticon and govern-mentality, discussed below, which helps with mapping out this state of
exception. My project follows this query into the immigration field. Specifically, I examine how ICE
initiatives that introduce ATD activities comprise an example of this sort of empty space where, as
Agamben suggests, “governance through management is on the ascen-dancy, (and) rule by law appears
to be in decline.”28 In other words, I examine how management technologies is replacing law as the
method of deciding entry and exit requirements as well as how immigrants inside the country are dealt
with. The literature is replete with investigations into plenary powers in the immigration field.29 Natsu
Saito focuses on the immigration example of such exceptional powers,30 and David Cole (2003)
specifically focuses on how such powers have led to a loss of rights in the after-math of 9/11. Saito and
Cole contend that plenary powers never really left the immigration scene. Saito (2003) reminds us that
as a result of existing precedent on plenary powers, Congress and/or the executive have the power to
decide who can come, how long they can stay, and when they must leave. … Congress can change the
rules and then apply new rules retroactively without violating the prohibition on ex post facto laws. …
Because deportation is deemed not to be punishment, the constitutional protections guaranteed to all
persons in criminal trials do not apply, allowing, among other things, the use of secret evidence and
indefinite incarceration without a hearing.31 Stephen Legomsky discusses several justifications the
Supreme Court has offered for the government using plenary powers in the immigration context.32
Legomsky questions these justifications and suggests the exceptional powers are neither necessary nor
legitimate.33 He says, the Court incorrectly concludes that when Congress acts in the immigration field,
the courts lack the power to review its acts for compliance with the individual rights provi-sions of the
Constitution. Indeed, several prominent scholars have documented the erosion of plenary powers over
the years.34 Legomsky35 and Hiroshi Motomura36 demonstrate the court’s increasing reliance on
constitutional norms to interpret immigration statutes. My argument acknowledges the increasing
willingness of the courts to interpret immi-gration statutes along constitutional lines as they open up a
new administrative space for plenary powers to continue dripping black ooze onto state practices. My
focus on admin-istrative spaces of extra-legality extends the Legomsky,37 Cole38 and Saito39 thesis into
a post-modern framework. Several recent immigration initiatives are responsible for creating extra-legal
admin-istrative spaces that diminish judicial review of administrative decisions that restrict the liberty of
immigrants.40 These initiatives make use of digital technologies in the enforce-ment of immigration law.
Along the way they leave spaces of unchecked power that are as dark and wide as any discretionary
wiggle room immigration officers have historically enjoyed in the course of their law enforcement
activities. My discussion of ATD will provide an example of just such an extralegal space and high-light
one example of how federal immigration law normalizes the exception. I focus on ATD programs,
specifically electronic monitoring, which constrain mobility in ways other than relying on secure
detention. ATD immigrants are denied access to an immigration judge after seven days, and to habeas
corpus relief in the federal courts primarily because they are per-ceived as not being in custody and
because the courts perceive technological constraints on liberty as unimportant.41 This regime has
scary implications for immigrants and the rule-of-law by making rights less accessible and relying upon
privatized and automated management techniques. Such control techniques replace face-to-face
administrative inspections and make due process and individual adjudication seem increasingly
anachronistic. The ATD programs introduce a scenario in which immigrants who have neither been
arrested nor charged with a crime nor are in custody are nonetheless forced into a criminal-like process
albeit without judicial review. The courts’ logic suggests that electronic devices fail to rise to the level of
depriving immigrants of a liberty interest or amount to a custodial relationship. Whereas political
branches and courts typically legitimize control technolo-gies by adding the palliative of judicial review,
the immigration scenario that I examine circumvents this normalizing process.42
Surveillance of immigrants and forthcoming DAs rely on a flawed risk-management
model that collapses identity and classifies individuals – ending ATDs is key
Koulish 15 (Robert, Joel J. Feller Research Professor of Government and Politics at the
University of Maryland, “Spiderman’s Web and the Governmentality of Electronic
Immigrant Detention,” 2/1/2015, Law, Culture and the Humanities, ProQuest)//JL
Soon after 9/11, a new postmodern governmentality began to emerge alongside this bur-geoning closed
detention industry. In this section I introduce the postmodern technology of electronic detention,
referred to in policy papers and case law as an alternative to detention (ATD). When discussing how ATD
strategies gained power, I consider sover-eignty and plenary powers on the one hand and administrative
(civil) law on the other. The outcome is an uneasy relationship that enhances plenary powers over the
individual in an administrative law setting. Generally, the difference between modern and postmodern
governmentality comes down to the technologies of control. The panopticon confines the individual
within a bricks and mortar institution and imposes discipline. The postmodern scenario is less confining:
it focuses on efforts to fragment individual identities with a multi-directional (post bureaucratic) set of
techniques. This scenario occurs in the “control society” that Gilles Deleuze examines in Postcript on a
Control Society.73 Deleuze extends Foucault’s approach to domination in the absence of confining
spatial arrangements, and attributes this expansion of power to the use of digital technology. He talks
about controlling persons through digital technologies that control access to digital space (access space).
Management techniques are relied upon to digitalize data collected from surveillance and inspection.
Such techniques disaggregate the individual into both fragments and aggregates of identity data, which
introduces a new approach to human subjectivity. Such management techniques are designed to:
dissolve the notion of a subject or a concrete individual, and put in its place a combination of factors,
the factors of risk. Such a transformation, if this is indeed what is taking place, carries important
practical implications. The essential component of intervention no longer takes the form of the direct
face-to-face relationship between the carer and the cared, the helper and the helped, the professional
and the client. It comes instead to reside in the establishing of flows of population based on the
collation of a range of abstract factors deemed liable to produce risk.74 In this scenario, human
interaction between guard and inmate is replaced by the push of a button on a database, and guided by
risk management principles. Risk-management consists of transparent calculative regimes of accounting
and management.75 It places special and sometimes insidious constraints on the liberty of “high risk”
immigrants. Ankle bracelets and databases, hair samples and radio frequency identification (rfid) tags
replace the watchtower as the dominant tools for surveillance, and passwords and databases replace
the signature and case file number (paper trail).76 Instead of having to carry documents on one’s person
certifying lawful presence as Chinese laborers did during the 1890s, under these new initiatives data is
contained within databases and recognizes rfids, ankle bracelets, one’s retina, fingerprint or DNA. The
technologies include electronic monitoring, biometrics, digital databases and DNA databases, all of
which deepen the state’s capacity to gain information and knowledge about populations distinguishing
members and nonmembers within its territorial borders. The question arises that if such alternatives to
detention were categorized as a form of custody, then nonviolent immigrants subjected to mandatory
detention would be eligible for electronic bracelets and other less confining ATDs. The criminal law
categorizes electronic monitoring as a form of custody. Were it a form of custody in the immigration
context it would be available for nonviolent immigrants in mandatory detention. Custody would also
trigger due process and make it possible for immigrants under electronic monitoring to file habeas
corpus petitions. The problem with immigration is that electronic monitoring is not considered to be
custody or detention in the immigration context. In the criminal field instructions to wear electronic
bracelets are accompanied by procedures where the state lays charges, provides counsel and must meet
the standard of proof beyond a reasonable doubt or “demonstrate by clear and convincing evidence
that an individual post a danger if released pretrial.”77 Similar instructions in the immigration context
come void of such procedural safeguards because electronic monitoring in the immigration context is
perceived as regulatory rather than criminal.78 In other words, as the American Immigration Lawyer’s
Association (AILA) suggests, “All of DHS’s alterna-tives to detention programs rely heavily on electronic
(tagging) devices which seriously restrict an individual’s freedom of movement – thereby converting the
program into an alternative form of custody rather than an alternative to detention.”79 In sum,
criminalizing civil penalties reveals a punishment laundering process that opens the door for civil
authorities to unleash unaccountable and unchecked techniques that, as a result, must also be
perceived as plenary. This laundering process cleans up everything but the black ooze.
1ac—Plan
Thus the plan – The United States Supreme Court should overrule its decision in
Demore vs. Kim by finding that status quo alternative to detention hearings violate
the fifth amendment of the United States Constitution
1ac—S
Federal law serves to put immigrants in mandatory detention creating a panoptic
paradigm – overruling Demore v Kim solves
Koulish 15 (Robert, Joel J. Feller Research Professor of Government and Politics at the
University of Maryland, “Spiderman’s Web and the Governmentality of Electronic
Immigrant Detention,” 2/1/2015, Law, Culture and the Humanities, ProQuest)//JL
The heyday of panoptic controls on immigrant populations coincides with a broader crimi-nalization
movement that first gained popularity as the “war on crime,” which President Nixon introduced in 1973
and President Reagan popularized during the 1980s. In its initial construction, criminalization was
intended as a law and order backlash against the urban riots, anti-Vietnam War protests and flower
power movements of the late 1960s. In its initial stages it weakened the due process safety net
established under the Warren Court.61 By the 1980s, criminalization was a preferred method to
“manage rising inequality and surplus populations” for the postindustrial era.62 This turn transformed it
into a facile tool of the neoliberal agenda. Under neoliberalism strategies of privatization and
deregulation weakened accountability to the rule of law. Ideological appeals to fear helped weaken
safeguards for the accused, minorities, immigrants and other vulnerable categories of people.63 By the
late 1970s–1980s, immigrants found themselves in the crosshairs of criminal-ization strategies. The U.S.Mexico border was militarized with Vietnam-era surveillance and low intensity conflict technologies,64
and by the mid-1980s, the Corrections Corporation of America (CCA) opened the first private detention
facility for immigrants. In 1988, Congress enacted legislation that instructed immigration authorities to
imprison and then remove immigrants for offenses that would not imprison citizens.65 The 1988
legislation, the Anti Drug Abuse Act (ADAA),66 introduced the “aggravated felony” category of
excludable and deportable offenses. ADAA provisions required “the initiation and, to the extent
possible, the completion of deportation proceedings … before the alien’s release from incarceration.”
This requirement led to the Institutional Hearing Program (IHP), which similarly intended deportation
proceedings for criminal aliens (aggra-vated felons) in federal and state prisons before the completion of
their sentences. The ADAA also turned the phrase “aggravated felony” into an important rhetorical
weapon in the war on drugs and similarly on immigrants. An aggravated felony committed any time
after entry now subjected non-citizens to deportation. No longer were criminal aliens protected by a
five-year statute of limitations. This meant that when it came to crime immigrants would be held to a
higher degree of scrutiny than citizens. Immigrants could be deported for minor offenses committed no
matter how long ago. The 1990 Immigration Act expanded the list of deportable offenses to include
lesser drug crimes and raised the bar to re-entry after a conviction to twenty years. It also made certain
aggravated felonies ineligible for discretionary relief from deportation. Mitigating circumstances were
no longer considered. The Act also eliminated judicial recommendations against deportation (JRAD),
which had given the courts a check on executive removal power.67 The Clinton White House pushed
through the Anti-terrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA) as responses to the bombing in Oklahoma City.68 The Acts
unleashed egregious aspects of criminalization, perhaps inextricably linking immigrants, crime and
terrorism in the public consciousness. They made it difficult to imagine crimes that do not qualify as
aggravated felonies, requiring mandatory detention followed by removal. Immigrants who found past
offenses on the growing list of deportable offenses were sud-denly ineligible for relief, and were barred
from reentering the country for twenty years. By the end of the 1990s, immigrants who were leading
pretty productive lives and raising families in this country were “rounded up” as a risk to the safety of
the national community. Such enforcement activities contributed to overcrowded prisons and detention
centers. As the nonprofit organization CLINIC describes mandatory detention, Despite its lamentable
track record and failure to make even marginal progress on many of these issues over the span of many
years, Congress passed legislation in 1996 … that has nearly tripled the number of noncitizens in INS
custody. The act requires the ICE to detain virtually all immigrants inadmissible or deportable on
criminal and national security grounds; virtually all asylum seekers who present themselves at the
border but lack proper documents, until they can demonstrate a “credible fear” of persecution; those
seeking admission to the United States who appear inadmissible for other than document problems;
and those ordered removed for 90 days or if the person “conspires or acts to prevent his removal” for
more than the 90-day “removal period.”69 In Demore v Kim,70 the Court legitimized mandatory
detention in language that is derived from the immigration exception, saying, “In the exercise of its
broad power over natural-ization and immigration, Congress regularly makes rules that would be
unacceptable if applied to citizens.”71 This shift towards criminalization in the immigration field also
helps lock immigration control within a panoptic paradigm. As LIRS notes, “rather than impose a burden
upon the government to justify the need to detain individuals on a case-by-case basis, the law mandates
detention of certain categories of immigrants without a bond hearing or any other judicial review.”72 As
long as mandatory detention exists and electronic monitoring and other ATD are constructed as
noncustodial, many nonviolent immigrants would remain within the walls of closed detention sites.
Mendoza-Martinez and Demore are the precedents for violations of rights – the plan’s
overturning solves
Koulish 15 (Robert, Joel J. Feller Research Professor of Government and Politics at the
University of Maryland, “Spiderman’s Web and the Governmentality of Electronic
Immigrant Detention,” 2/1/2015, Law, Culture and the Humanities, ProQuest)//JL
Like many digital-laden initiatives, ATD gets its plenary powers from the criminalization process and
more specifically from two sources. First, ATD gets power from a line of cases that minimize the liberty
interests at stake with electronic monitoring and second, it derives power from courts mutating
traditional habeas corpus to make it inapplicable for immigrants in this immigration scenario. As an
outcome, such programs incentivize immigration authorities to require monitoring when in the past
they would just release the person. The rubric for distinguishing criminal measures from regulatory ones
was introduced in Kennedy v Mendoza-Martinez,97 a case that involves an immigration statute that
revoked the citizenship of those who left the country to evade military service.98 Mendoza-Martinez
(1963) distinguished between criminal and civil law in terms of its effects. Accordingly, Whether the
sanction involves an affirmative disability or restraint, whether it has historically been regarded as a
punishment, whether it comes into play only on a finding of scienter, whether its operation will promote
the traditional aims of punishment – retribution and deterrence, whether the behavior to which it
applies is already a crime, whether an alternative purpose to which it may rationally be connected is
assignable for it, and whether it appears excessive in relation to the alternative purpose assigned…99
Courts have subsequently referred to the Mendoza-Martinez test as a way of condoning technological
restraints on liberty. Because such restraints are decidedly regulatory, not punitive, there are no clear
appeals to constitutional scrutiny. When it comes to constraining liberty interests under the 5th
Amendment, Murphy draws attention to the functions of digital technology at the government’s
disposal to control potentially dangerous persons without subjecting them to physical incarceration.100
It is important to note that whereas physical incapacitation requires some procedural safeguards and
constitutional scrutiny, non-institutional technological restraints are not so constrained.101 Thus, it is
important to distinguish custody and technologies that constrain liberty. Although persons in custody
retain a right to habeas corpus and thus some important means of redress, the technological constraint
itself is not construed as harming a person’s liberty. In the immigration context, persons hitched to an
electronic monitoring device are construed as neither in custody, nor as having a liberty interest that is
subject to harm. Consider this sleight of hand. Here the electronic monitoring bracelet, as the courts
con-strue it, is truly a virtual restraint; it is not real. It is also worth noting that the Court fails to
recognize the immigrants’ liberty interests, which weakens any rationale for judicial scrutiny over
government abuse.102 In Demore v Kim, the Court suggests that an immigrant’s interest in not being
mandatorily detained pales against the government’s plenary power.103 As Justice Souter notes in
dissent, ‘‘The [majority’s] holding that the Due Process Clause allows [detention] under a blanket rule is
devoid of even ostensible justification in face and at odds with the settled standard of liberty” 104
Almost any government objective here would be perceived as legitimate. Thus immigrants tethered to
an electronic monitoring box seem to have three strikes against them: 1) they are not in custody; 2) they
have no fundamental liberty interest; 3) electronic monitoring does no harm to the residual liberty
interests they enjoy. The outcome harkens back to the dark days of Chinese exclusion and the Cold
War when the government’s plenary powers over immigrants were as obvious as they were repressive.
The difference now is that plenary powers are concealed within administrative initiatives rather than
subjected to the light of statutes, and the form of restraint is digital rather than institutional. Otherwise,
the outcome is quite similar as the government ignores the liberty interests of immigrants who have
been tethered, without cause or counsel and without access to the courts.
1ac—VTL Impact
Electronic surveillance is devastating for immigrants – facilitates physical and
psychological violence while stigmatizing their existence
Koulish 15 (Robert, Joel J. Feller Research Professor of Government and Politics at the
University of Maryland, “Spiderman’s Web and the Governmentality of Electronic
Immigrant Detention,” 2/1/2015, Law, Culture and the Humanities, ProQuest)//JL
*edited for language
According to the courts, the electronic monitoring bracelet turns house arrest into an efficient and humane
punishment. Like Judge Love the courts perceive little harm in adapting Spiderman to the real world. Like Judge Love they forget that the
ankle bracelet would undoubtedly serve part of some larger nefarious agenda. As Deleuze argued, this sort of
agenda moves the locus of control from closed institutions to open spaces. In terms of detention policy, this
suggests a shift from an ATD initiative to an alternative to release. Again, few would prefer sitting in a prison cell to wearing an
ankle bracelet. But as central as this claim is for the courts – at least electronic monitoring isn’t as bad as prison – this
observation is beside the point. At issue is how the privately managed ATD/ISAP program helps ICE to constrain the
liberty of immigrants. It is not whether you or I would prefer home arrest to a prison cell; the issue has to do with how the state
unaccountably impedes liberty interests of individuals who have committed no crime and for whom ICE
has given no justification to hold under its ‘‘custodial’’ authority. The monitoring device itself is about five inches square making
it too big to conceal beneath normal street clothes. As the Detention Watch network has documented, “the bracelet can be uncomfortable,
particularly for pregnant women, and participants describe the experience as one of shame and humiliation.”89
ISAPI90 guidelines place restrictions on the movement of immigrants as well as on how they spend time and plan a schedule. As the
immigration judge (IJ) in Aguilar-Aquino said, it “does cause the loss of a great deal of Respondent’s liberty, and requires
confinement in a specific space, i.e., the Respondent’s home between 7pm and 7am every day.” It also requires immigrants to spend up to 3 hours
each day physically attached to a cord and electrical socket in order to recharge the electronic ankle bracelet. In brief, … participants agree to a set
of strict rules, including … three face-to-face meetings per week with a case worker, and unannounced telephone calls and home visits from the authorities.
Each immigrant is also fitted with a GPS monitoring ankle bracelet and must install voice recognition technology on his home
telephone line, which allows caseworkers to confirm they are speaking to the ISAP participant during routine phone calls.91 ISAP constrains and
regiments activities within the home. It limits mobility and the ability to work and creates social stigma
for immigrants forced to wear the device. Even small-bore violations like answering the phone after too many rings or failing to pick
it up can beget penalties. It is a matter of discretion for the individual BI agent to recommend that a particular violation took place and deserves some
penalty. Inattention to the unexpected knock on the door, as per the guidelines, or an impolite response and a poor attitude could lead to
physical punishments like returning the immigrant to secure detention, deprivations and petty humiliations in front of family, neighbors and
employers. Although procedural due process issues arise when changes in punishment follow such kinds of violations, immigrants have no rights
here to seek redress, except for a brief seven-day period of administrative review before an IJ. Perhaps most crippling [devastating]for
some immigrants are the psychological effects of electronic monitoring, the fear and anxiety that
continuous monitoring causes. Hofer and Meierhoefer report that home confinement can take a psychological toll.92
Further, by adding an ankle bracelet to home confinement, “the offender is constantly reminded of his status and that
“someone is watching.”93 It has been documented that some offenders choose jail over house arrest and electronic monitoring
because of the “high level of surveillance and supervision associated with electronic monitoring .”94 One
study reports findings from women in Canada that claims electronic monitoring and home arrest was more difficult than
imprisonment due to increased stress.95 The fear and anxiety is accentuated when the immigrant goes out in public. For
immigrants who already fear the state either because of their status in their home countries or as a refugee or undocumented immigrant in the U.S., being
tethered to the state is a constant reminder of their extreme powerlessness and can have acute
consequences. Human rights advocates suggest the ankle bracelet is par-ticularly humiliating for women. As Salvadoran
immigrant Maria Bolanos, a domestic violence victim, recently said of her ISAP experience “I’m really ashamed to show it in public. People see it and think I am a
murderer. I try to keep it covered at all times.”96
2ac Answers
2ac – at: t – surveillance
Electronic surveillance is under plenary authority
Paul 98 (Joel, Professor at the University of Connecticut School of Law, “The Geopolitical
Constitution: Executive Expediency and Executive Agreements,” July 1998, California
Law Review, Lexis)//JL
Courts also used concerns about contemporary geopolitics to sustain the President's power to engage in foreign intelligence operations. For example, in United States v. Clay, 259 the Fifth
Circuit affirmed the conviction of Cassius Clay, Jr., (Muhammad Ali), for refusing to submit to induction into the military. The Government had secretly recorded Clay's phone conversations
without a warrant and without revealing the existence of these secret recordings to Clay's attorney. 260
The court held that the executive had plenary
authority to use electronic surveillance without a warrant if national security required it. The Fifth Circuit did not question the executive's dubious claim that
Clay's refusal to serve in the military actually threatened the nation's security. Instead, the court asserted that no one would seriously doubt in this time of serious international insecurity and
peril that there is an imperative necessity for obtaining foreign intelligence information, and we do not [*722] believe such gathering is forbidden by the Constitution or by statutory
provision... 261
The USA Patriot Act uses plenary powers in immigration – that’s surveillance
Gonzalez 3 (Tracey, JD from Yeshiva University, “Individual Rights Versus Collective
Security: Assessing the Constitutionality of the USA Patriot Act,” Fall 2003, University of
Miami International and Comparative Law Review, Lexis)//JL
The most devastating terrorist attacks in United States history took place on September 11, 2001. 3 Less than two months later, Congress responded by passing a comprehensive anti-terrorism
the Uniting and Strengthening America by Providing [*76] Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001," so as to form the
acronym "U.S.A. P.A.T.R.I.O.T. Act." 4 Characterized as the bill with the "long name, and longer reach," 5 the Act quickly became a target for
critics, who warned of its "relentless assault on civil liberties" 6 and Orwellian 7 tactics. Supporters of the bill, however -- including, it seemed, a commanding majority of the American
public 8 -- hailed the measure as justified, "because terrorists are trying to kill Americans -- as many as they possibly can." 9 This article examines two of the most
controversial provisions of the USA Patriot Act: first, the Attorney General's expanded powers to detain,
deport, or deny admission to suspect aliens attempting to enter the United States; and second, the government's broadened authority to conduct
confidential searches of suspected terrorists' homes 10 and to intercept and monitor suspects' telephone and Internet communications. Both provisions expand
government authority under previously existing law. 11 [*77] The discussion begins with an historical overview of national security in the United States, tracing the sources
of executive and legislative power from the earliest days of the republic through the passage of the USA Patriot Act in October 2001. An overview of immigration in the
United States follows, with particular emphasis on Congress's plenary power to regulate immigration and the judiciary's
traditional deference to such power. Next, this article explores the Attorney General's broadened authority over
immigration pursuant to the USA Patriot Act, concluding that the Attorney General's newly delegated powers
fall well within the legislative branch's plenary power over immigration, and therefore pass constitutional muster. Finally, this article
finds ample support for the constitutionality of the government's broadened search and surveillance powers under the USA
Patriot Act. The legislative branch historically has taken the lead in authorizing investigation of national security matters, and the judiciary has granted Congress special deference in its
measure, awkwardly titled
efforts to balance national security concerns against any intrusion on constitutionally protected privacy interests. 12 The USA Patriot Act expands these powers only incrementally, and they
remain within the constitutional bounds established by Congress and sanctioned by the courts.
2ac – at: t – domestic = persons
We meet – migrants are persons – due process proves
Kanstroom et al 2 (Daniel, Boston College Law School, Susan Akram, Boston University School of Law Filippa Anzalone, Boston
College Law School Arthur Berney, Boston College Law School Eric D. Blumenson, Suffolk Law School Richard A. Boswell, University of California
Hastings College of Law Mark Brodin, Boston College Law School Gabriel J. Chin, University of Cincinnati College of Law Michael J. Churgin,
University of Texas School of Law Valerie C. Epps, Suffolk Law School Ed Fallone, Marquette University Law School Anthony Farley, Boston
College Law School Taylor Flynn, Western New England College School of Law Niels W. Frenzen, University of Southern California Law School
Phillis Goldfarb, Boston College Law School H. Kent Greenfield, Boston College Law School Dean Hashimoto, Boston College Law School Michael
G. Heyman, John Marshall School of Law Kevin Johnson, University of California, Davis, School of Law Karl Klare, Northeastern University School
of Law Michael M. Levy, College of William & Mary Stephen H. Legomsky, Washington University Peter Margulies, Roger Williams School of Law
M. Isabel Medina, Loyola University, New Orleans, School of Law Jennifer Moore, University of New Mexico School of Law Hiroshi Motomura,
University of Colorado Lori Nessel, Seton Hall University of Law Nancy K. Ota, Albany Law School Margaret Taylor, Wake Forest University
School of Law Natsu Taylor Saito, Georgia State University College of Law Alexander Tallchief Skibine, University of Utah College of Law, Aviam
Soifer, Boston College Law School, “BRIEF FOR AMICI CURIAE LAW FACULTY IN SUPPORT OF RESPONDENT,” October 2002, American Civil
Liberties Union, https://www.aclu.org/legal-document/law-professors-al-amicus-brief-demore-v-kim)//JL
This Court, as noted above, has long held that non-citizens within our physical borders are persons within the
meaning of the Due Process Clause. See, e.g., Yick Wo, 118 U.S. at 369; Wong Wing, 163 U.S. at 238; Plyler v. Doe, 457 U.S. 202, 210 (1982) (“Aliens, even
aliens whose presence in this country is unlawful, have long been recognized as 'persons' guaranteed
due process of law by the Fifth and Fourteenth Amendments”). See also Almeida-Sanchez v. United States, 413 U.S. 266, 272-74 (1973) (Fourth
Amendment protects as to searches and seizures within the United States). This is no less true when persons are placed in removal proceedings. Concurring in Wong
Wing, Justice Field, the original author of the ‘plenary power doctrine,’ put the matter as follows: The
term 'person,' used in the Fifth Amendment, is
any and every human being within the jurisdiction of the republic . . . This has been
decided so often that the point does not require argument.
broad enough to include
1ar – at: undocumented migrants not persons
Legal status is irrelevant
Kanstroom et al 2 (Daniel, Boston College Law School, Susan Akram, Boston University School of Law Filippa Anzalone, Boston
College Law School Arthur Berney, Boston College Law School Eric D. Blumenson, Suffolk Law School Richard A. Boswell, University of California
Hastings College of Law Mark Brodin, Boston College Law School Gabriel J. Chin, University of Cincinnati College of Law Michael J. Churgin,
University of Texas School of Law Valerie C. Epps, Suffolk Law School Ed Fallone, Marquette University Law School Anthony Farley, Boston
College Law School Taylor Flynn, Western New England College School of Law Niels W. Frenzen, University of Southern California Law School
Phillis Goldfarb, Boston College Law School H. Kent Greenfield, Boston College Law School Dean Hashimoto, Boston College Law School Michael
G. Heyman, John Marshall School of Law Kevin Johnson, University of California, Davis, School of Law Karl Klare, Northeastern University School
of Law Michael M. Levy, College of William & Mary Stephen H. Legomsky, Washington University Peter Margulies, Roger Williams School of Law
M. Isabel Medina, Loyola University, New Orleans, School of Law Jennifer Moore, University of New Mexico School of Law Hiroshi Motomura,
University of Colorado Lori Nessel, Seton Hall University of Law Nancy K. Ota, Albany Law School Margaret Taylor, Wake Forest University
School of Law Natsu Taylor Saito, Georgia State University College of Law Alexander Tallchief Skibine, University of Utah College of Law, Aviam
Soifer, Boston College Law School, “BRIEF FOR AMICI CURIAE LAW FACULTY IN SUPPORT OF RESPONDENT,” October 2002, American Civil
Liberties Union, https://www.aclu.org/legal-document/law-professors-al-amicus-brief-demore-v-kim)//JL
The fundamental protections of the Fifth Amendment “are universal in their application, to all persons
within the territorial jurisdiction” of the United States. Yick Wo v. Hopkins , 118 U.S. 356, 369 (1886). As this Court has recently noted, “[o]nce an
alien enters the country, the legal circumstances change, for the Due Process Clause applies to all 'persons'
within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or
permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). The mere fact that a non-citizen has been arrested and charged as
‘subject to removal’ does not strip a person, even one who may have been convicted of a crime, of the right to be free of unconstitutional
detention. Wong Wing v. United States, 163 U.S. 228, 236-38 (1896). This is especially true in the case of a lawfully admitted permanent resident with long residence in the United
States since childhood and extensive family and community ties, such as the Respondent, Hyung Joon Kim. In our society, liberty is the norm, and detention prior to trial is the carefully limited
exception. United States v. Salerno, 481 U.S. 739, 755 (1987). This Court has repeatedly confirmed the “general rule” of substantive due process that the government may not detain a person
prior to a judgment of guilt in a criminal trial. Id. at 749.
2ac – at: biometrics CP—s def
Biometric surveillance is performed by state authorities
Kalhan, 13, J.D. from Yale, associate professor at Drexel University School of Law, (Anil, Immigration
Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, Ohio State Law
Journal, Vol. 7, Iss. 6, p. 1107-1165, http://moritzlaw.osu.edu/students/groups/oslj/files/2013/12/14Kalhan.pdf//RF)
In the extent to which they enmesh state and local police in immigration enforcement, all previous
federal initiatives are dwarfed by Secure Communities. In appropriations legislation for 2008, Congress
directed ICE to develop a plan to “identify every criminal alien, at the prison, jail, or correctional institution in
which they are held” and establish a process to remove those judged deportable using a methodology that
prioritizes noncitizens convicted of “violent crimes.”93 In response, ICE formulated a strategy intended to identify
these individuals in much larger numbers while simultaneously doing so in a less labor- and time-intensive manner,
emphasizing automated biometric identification and information sharing among DHS, the FBI, and states and
localities and risk-based methods of prioritizing individuals presenting the greatest risks to public safety.94 While
efforts to make DHS and FBI databases interoperable are longstanding, Secure Communities aggressively goes
further by seeking to establish what ICE terms a “virtual presence in every jail” at the moment that every arrestee
nationwide is booked.95 Although practices vary widely among jurisdictions, particularly for minor offenses, during
the typical post-arrest booking process police record an arrestee’s fingerprints, and transmit them to their
state’s criminal records repository.96 In turn, although not required by federal law, all states voluntarily submit
these fingerprints to the FBI’s IAFIS system for individuals arrested of felonies and serious misdemeanors—usually
with a request for a response providing identification and criminal history information, but in many instances
simply to update the FBI’s records.97 Upon receipt, the FBI processes the fingerprints and, as applicable, generates
a response—a process which, according to the FBI, on average now takes only thirty minutes for criminal
fingerprint submissions, compared to much longer periods even a few years ago.98
Automated immigration surveillance is done on the state and local level
Kalhan, 13, J.D. from Yale, associate professor at Drexel University School of Law, (Anil, Immigration
Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, Ohio State Law
Journal, Vol. 7, Iss. 6, p. 1107-1165, http://moritzlaw.osu.edu/students/groups/oslj/files/2013/12/14Kalhan.pdf//RF)
Automated immigration policing has enabled massive levels of state and local involvement in
immigration enforcement that could never have been achieved under earlier programs. The NCIC
Immigration Violators File, for example, now makes over 298,900 records of potentially deportable individuals
accessible to state and local police nationwide.111 Under Secure Communities, over twenty-eight million
sets of fingerprints have been transmitted to DHS since the program’s inception—“thousands” of
fingerprints per day, according to one official, including fingerprints of all individuals born outside the
United States or whose place of birth is unknown—from which DHS has identified over 1.4 million matching
records in IDENT. ICE has returned or formally removed 279,482 of these individuals, with the number of removals
attributable to Secure Communities jumping from 14,364 in 2009, representing four percent of all removals, to
83,815 in 2012, representing one-fifth of all removals.112 In light of these numbers, the Obama Administration has
decreased its reliance on task force agreements under the 287(g) program, one of the cornerstones of the previous
generation of federal immigration policing initiatives
Specifically, Secure Communities involves an incredible amount of involvement from
local police
Kalhan, 13, J.D. from Yale, associate professor at Drexel University School of Law, (Anil, Immigration
Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, Ohio State Law
Journal, Vol. 7, Iss. 6, p. 1107-1165, http://moritzlaw.osu.edu/students/groups/oslj/files/2013/12/14Kalhan.pdf//RF)
Secure Communities goes even further, inducing and routinizing the assistance of state and local police
en masse. Here, the informational end run proceeds in the opposite direction from the flow of information using
the NCIC. Rather than sending immigration status information to law enforcement officials, DHS
automatically extracts identification and criminal history information from state and local law
enforcement agencies when they routinely transmit that information to the FBI for purposes that are unrelated
to civil immigration enforcement, but understood as essential for criminal law enforcement.115 DHS then uses
that information for immigration enforcement purposes—without regard to whether those jurisdictions have
affirmatively chosen to cooperate with federal immigration authorities in helping to identify potentially deportable
individuals whom they encounter.
State authorities play critical roles in immigration enforcement and are the ones who
own the data—either the aff isn’t topical or they can’t solve state efforts
Kalhan, 13, J.D. from Yale, associate professor at Drexel University School of Law, (Anil, Immigration
Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, Ohio State Law
Journal, Vol. 7, Iss. 6, p. 1107-1165, http://moritzlaw.osu.edu/students/groups/oslj/files/2013/12/14Kalhan.pdf//RF)
Separately, scholars have also assessed the prospects for aligning the interests of companies collecting personal
information with interests in privacy.227 Since, as discussed above, states and localities increasingly possess
large volumes of information that federal authorities seek for their own surveillance and enforcement
purposes, the institutional role of states and localities as holders of this information warrants critical
examination as well. For example, Robert Mikos has recently argued that under prevailing understandings of
Tenth Amendment principles, federal efforts to compel states to provide this information should be foreclosed as
an impermissible form of commandeering.228 While anti-commandeering doctrine itself has limits, as Mikos
acknowledges, his analysis points to the possibility of information federalism as a constraint on federal
surveillance, whether as a matter of constitutional doctrine, legislation, or technological design.229
It doesn’t matter who does the ‘curtailing,’ or that federal agencies has access to the
data, but rather who does the actual surveillance. Biometric immigration surveillance
is done explicitly by local and state authorities along the border.
2ac – at: biometrics CP—links to politics
The counter plan links to politics—DHS opposes and expansion efforts are being
ramped up in the status quo
Sternstein, 14, senior government correspondent at NextGov, covers cybersecurity and homeland
security (Aliya, DHS WANTS FACIAL RECOGNITION BORDER SURVEILLANCE SYSTEM,
http://www.nextgov.com /emerging-tech/2014/02/dhs-wants-facial-recognition-border-surveillancesystem/79088/)
The Homeland Security Department is exploring technology that would use facial and iris recognition to
track the departure of foreign visitors, according to contracting documents. “At land border exit[s], currently
there are no biometrics captured resulting in an inability to accurately verify that a departing traveler
matches a specific entry record," states a market research survey released on Wednesday. "To biometrically
identify the broadest set of travelers as well as to discourage spoofing attempts , it is envisioned that the exit
solution may utilize more than one biometrics modality." The system officials have in mind would be
deployed at crossings for pedestrians and drivers. DHS has struggled for years to keep tabs on travelers who
overstay their visas, such as Amine El Khalifi, a Moroccan immigrant living in Virginia on an expired 1999 visa,
when, in 2012, he attempted to bomb the U.S. Capitol Building. More than a decade ago, DHS began trying
out machinery to check the fingerprints and photos of visitors entering and exiting the United States. But
the exit component of the system -- the one that would spot invalid visas -- still does not exist. The bar for
precision in Homeland Security’s latest effort is set high: Officials say their goal is a system that can
biometrically identify more than 97 percent of foreign pedestrians. The plans expect that services will be
available for “fingerprint, iris, and facial matching capabilities and solutions." The survey asks contractors,
“What are your views on the key tradeoffs between leveraging the existing fingerprint enrollment database for exit
identity verification versus creating a solution with iris or face or both? How are these tradeoffs affected by the
pedestrian versus vehicular environments?” Visitors’ names and other descriptive information are too easy to
intentionally or inadvertently record incorrectly, say proponents of using biometric identification to track exits.
"Recently it was discovered that Boston Marathon bomber Tamerlan Tsarnaev’s name was misspelled on a
manifest list of a flight to Russia, meaning that the FBI did not have the benefit of an important lead in
investigating his terrorist ties," Janice Kephart, a former special counsel for the Senate Judiciary Committee,
testified to House lawmakers in November 2013. Even software that could detect such name anomalies would fail
to flag “complete biographic identity changes, a much more nefarious problem that biometrics solves in seconds."
Comprehensive immigration reforms approved in the Senate last year would require a computerized biometric exit
system that, according to the Los Angeles Times, could cost more than $7 billion. This week's request for
information from industry asks for "a realistic timeline, projected cost and feasibility of achieving the goal" of
accurate identification.
2ac – at: foucault
Understanding punishment of immigrants is a prerequisite to challenging the
surveillance state
Hasselberg 14 (Ines, Ph.D. from Sussex University, “Coerced to Leave: Punishment and
the Surveillance of Foreign-National Offenders in the UK,” 2014, Surveillance & Society,
Lexis)//JL
Overall, the
lived experiences of surveillance and deportation examined in this article highlight the punitive and
disciplinary effects of these practices. Intentional or not, these effects must be acknowledged and should be
challenged. Punishment should only be inflicted through a judicial process, not in the form of an
'unaccountable' administrative practice (Fekete and Webber 2009; Fassin et al. 2013). As others have argued, deportation and
related practices of surveillance are a straightforward consequence of a criminal conviction; they are too
closely linked to the criminal justice system, and too punitive in practice to continue to be exercised as
administrative actions (e.g. Dow 2007; Pratt 2005; see also the contributions in Aas and Bosworth 2013). The punitive elements
inherent to the practice of deportation and related state surveillance over deportable bodies cannot be dismissed as
unintended invisible punishments (cf. Travis 2002). In the US, such questions have been considered by legal scholars (see, for instance, Pauw
2000; Stumpf 2013). It is important to underline the fact that the confinement and supervision of foreign-national offenders in the UK are no longer restricted to
their criminal sentences. Foreign-national
offenders who are served with deportation orders are not just imprisoned and deported: they are often
stripped of their right to work (and support their families), to travel, and even of their liberty and freedom of movement through
practices of state surveillance like immigration detention and reporting. The experience of deportation cannot
be separated from the experience of state surveillance over deportable men and women-they are intertwined and embedded in
each other. Foreign-nationals find themselves in detention or in queues to report due to their deportability. The additional incarceration
and related conditions of bail, even if exercised under immigration powers, are in practice forms of state power that not only
mirror practices of incarceration and supervision in the criminal justice context, but are also experienced as extremely punitive and unfair. Furthermore, between
imprisonment and deportation, foreign-national
offenders and their families live in limbo. Their lives are unsettled, ungrounded
and uncertain. Research participants felt that they were being punished consecutively: they had served their time in prison but rather than moving on with
their lives as a British national would, they found
themselves facing expulsion from their country of residence which in the meantime subjected
them to constant restrictions and surveillance. Ironically, but perhaps not unintentionally, those who are deemed a risk and subjected to
surveillance and banishment are the ones constantly feeling vulnerable and in need of protection. Because they do not consider
themselves a danger to society, they understand state surveillance not as a measure of control over them, but
rather as punishment for wanting to stay-it is, in their eyes, a technique designed to coerce them to leave.
2ac – at: politics
Plenary power is extremely controversial – specifically in the context of deportation
Kanstroom et al 2 (Daniel, Boston College Law School, Susan Akram, Boston University School of Law Filippa Anzalone, Boston
College Law School Arthur Berney, Boston College Law School Eric D. Blumenson, Suffolk Law School Richard A. Boswell, University of California
Hastings College of Law Mark Brodin, Boston College Law School Gabriel J. Chin, University of Cincinnati College of Law Michael J. Churgin,
University of Texas School of Law Valerie C. Epps, Suffolk Law School Ed Fallone, Marquette University Law School Anthony Farley, Boston
College Law School Taylor Flynn, Western New England College School of Law Niels W. Frenzen, University of Southern California Law School
Phillis Goldfarb, Boston College Law School H. Kent Greenfield, Boston College Law School Dean Hashimoto, Boston College Law School Michael
G. Heyman, John Marshall School of Law Kevin Johnson, University of California, Davis, School of Law Karl Klare, Northeastern University School
of Law Michael M. Levy, College of William & Mary Stephen H. Legomsky, Washington University Peter Margulies, Roger Williams School of Law
M. Isabel Medina, Loyola University, New Orleans, School of Law Jennifer Moore, University of New Mexico School of Law Hiroshi Motomura,
University of Colorado Lori Nessel, Seton Hall University of Law Nancy K. Ota, Albany Law School Margaret Taylor, Wake Forest University
School of Law Natsu Taylor Saito, Georgia State University College of Law Alexander Tallchief Skibine, University of Utah College of Law, Aviam
Soifer, Boston College Law School, “BRIEF FOR AMICI CURIAE LAW FACULTY IN SUPPORT OF RESPONDENT,” October 2002, American Civil
Liberties Union, https://www.aclu.org/legal-document/law-professors-al-amicus-brief-demore-v-kim)//JL
For various reasons, since its first enunciation,
the plenary power doctrine has proven controversial, generating strong
dissents and significant limitations in virtually every case in which the government has sought for it to be applied. See also Reid v. Covert, 354
U.S. 1, 5-7 (1957) (stating that the United States is “entirely a creature of the Constitution. Its power and authority have no other source. It can only act in
accordance with all the limitations imposed by the Constitution. . .”) (footnotes omitted). As many commentators have noted, the
plenary power
doctrine has impeded the development of coherent principles of constitutional immigration law. See e.g.,
Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation
suggesting that the plenary
power doctrine has prevented the growth of a coherent constitutional framework
for immigration law, within which its sub-constitutional levels: statutes, regulations, agency directives, etc, can develop and be administered fairly and
predictably.) The doctrine became most controversial in the context of deportation. In Fong Yue Ting v. United
States, 149 U.S. 698, 707 (1893), the Court majority stated that “the right of a nation to expel or deport
foreigners…rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their
entrance.” The case involved the deportation of Chinese persons who could not meet a statutory requirement of a “credible white witness.” Within a decade,
however, the basic position advocated by the dissenters generally prevailed and has been the law ever since.
2ac – at: plenary power good
No offense – plenary power doctrine is antiquated and shouldn’t apply to immigration
Kanstroom et al 2 (Daniel, Boston College Law School, Susan Akram, Boston University School of Law Filippa Anzalone, Boston
College Law School Arthur Berney, Boston College Law School Eric D. Blumenson, Suffolk Law School Richard A. Boswell, University of California
Hastings College of Law Mark Brodin, Boston College Law School Gabriel J. Chin, University of Cincinnati College of Law Michael J. Churgin,
University of Texas School of Law Valerie C. Epps, Suffolk Law School Ed Fallone, Marquette University Law School Anthony Farley, Boston
College Law School Taylor Flynn, Western New England College School of Law Niels W. Frenzen, University of Southern California Law School
Phillis Goldfarb, Boston College Law School H. Kent Greenfield, Boston College Law School Dean Hashimoto, Boston College Law School Michael
G. Heyman, John Marshall School of Law Kevin Johnson, University of California, Davis, School of Law Karl Klare, Northeastern University School
of Law Michael M. Levy, College of William & Mary Stephen H. Legomsky, Washington University Peter Margulies, Roger Williams School of Law
M. Isabel Medina, Loyola University, New Orleans, School of Law Jennifer Moore, University of New Mexico School of Law Hiroshi Motomura,
University of Colorado Lori Nessel, Seton Hall University of Law Nancy K. Ota, Albany Law School Margaret Taylor, Wake Forest University
School of Law Natsu Taylor Saito, Georgia State University College of Law Alexander Tallchief Skibine, University of Utah College of Law, Aviam
Soifer, Boston College Law School, “BRIEF FOR AMICI CURIAE LAW FACULTY IN SUPPORT OF RESPONDENT,” October 2002, American Civil
Liberties Union, https://www.aclu.org/legal-document/law-professors-al-amicus-brief-demore-v-kim)//JL
Among other arguments made by Petitioners in this case is the general claim that the “policy judgments that
Congress made when it enacted § 1226(c) are within its plenary power over the admission and expulsion of aliens and deserve judicial
deference.” (U.S. Petitioner’s Brief at 13, DeMore v. Kim, 2002 WL 31016560 (9th Cir. 2002) (No. 01-1491)). This argument -- when applied to this
case -- rests upon a series of implicit omissions and fundamental misunderstandings about the so-called
‘plenary power doctrine.’ It should not be overlooked that the doctrine at the root of Petitioner’s deference
arguments had its origins in what--apart from Scott v. Sanford, 60 U.S. 393 (1856); Plessy v. Ferguson, 163 U.S. 567 (1896) and Lochner v. New York,
198 U.S. 45 (1905) -- may be the most criticized case in all of U.S. jurisprudence, Chae Chan Ping v. United States, (The Chinese
Exclusion Case) 130 U.S. 581 (1889). That case has been well -described as “a constitutional fossil, a remnant of prerights jurisprudence that we have proudly rejected in other respects.” Louis Henkin, The Constitution and United States Sovereignty: A
Century of Chinese Exclusion and its Progeny, 100 Harv. L.Rev. 853, 862 (1987).3 While the present case does not require the court to re-examine the plenary power
doctrine entirely, a
doctrine of such dubious parentage that is so deeply contradictory to the better norms of
our constitutional legal system should be invoked, if at all, with great care and in the most limited ways possible. It should
certainly not be extended into the realm of constitutional consideration of the mandatory detention of
lawful permanent residents.
2ac – at: equal opportunity
The myth of opportunity is flawed and ignores history, culture, and races; its instead
used to scold immigrants for failure
Chock 91 (Phyllis, PhD, Catholic University, “"illegal aliens" and "opportunity": myth-making in congressional testimony” American
Ethnologist, Vol. 18, No. 2 (May, 1991), pp. 279-294 Stable URL: http://www.jstor.org/stable/645149 1991 JM)
The immigration stories that were told in this testimony are versions of what I call the "myth of
opportunity." Opportunity stories, like American success stories, are about persons (Schneider 1980) or
individuals. The typical opportunity story centers on an immigrant (man) whose arrival in America,
desire for betterment, striving in adversity, and putting down of roots make him a "new man." That is,
he is the Promethean hero of his own story; the story erases his past, foreign cultural baggage, and
restraining social ties (Chock 1989). The telling of such stories thus focused the debate about illegal
immigration on individuals, the heroes of the stories, rather than on social structure, culture, or history.
The contradictions between what might be said and what must be said emerge when such stories are
used, as they were in the hearings, to mediate between the individual and the nation. That is, the
stories simultaneously compose the individual and the nation in the same terms. Opportunity stories
in the testimony phrased the debate in moral terms that could in turn be used to scold minorities for
their laziness, to describe and affirm the upward mobility of previous generations of immigrants and
their descendants, and to applaud or condemn striving immigrants, even illegal aliens, by sizing them
up against family pioneers.
2ac – at: alt causes
The illegal immigrant is the quintessential subject through which biopower controls,
and is made through the act of crossing over from the undesirable land to the desired
land and is continually raced, gendered and criminalized by the state
Cisneros 12 (Natalie Packard, Doctorate in Philosophy, dissertation paper submitted to Vanderbilt, “THE “ILLEGAL ALIEN”: A
GENEALOGICAL AND INTERSECTIONAL ACCOUNT” http://etd.library.vanderbilt.edu/available/etd-07172012103621/unrestricted/TheIllegalAlienAGenealogicalandIntersectionalApproach.pdf 2012 JM)
In Discipline and Punish, Foucault describes his methodology as an attempt to provide a “history of the
present,” distinguishing his genealogical analysis from a historical one by emphasizing that it is
motivated and informed by present events rather than “historical facts.”2 Foucault makes clear that his
critique of the carceral system exists not by virtue of investigation into the past, but instead because of
his encounter with present events: “That punishment in general and the prison in particular belong to a
political technology of the body is a lesson that I have learnt not so much from history as from the
present.”3 Foucault’s insights into how “delinquent” bodies are disciplined and subjectivities are formed
come from contemporary political struggles. My analysis of “illegal alien” subjectivity in the United
States context is in this sense in line with Foucault’s goals of writing a “history of the present.” By
focusing on current constructions of the “illegal alien,” my dissertation centers on this formation of
subjectivity as it is being constituted in the midst of current political struggles and discourses. As a
genealogical and intersectional approach to political and ethical questions surrounding immigration, this
project focuses on the ways that the “illegal alien” has come to be raced, gendered, and criminalized
in specific ways. My analysis places the formations of “illegal alien” subjectivity at the center of various
discourses and operations of power. In particular, I discuss the constitution of the “illegal alien” as
occupying a position at the center of what Foucault calls regulatory and disciplinary functions of
power: …we have, then, two technologies of power which were established at different times and which
were superimposed. One technique is disciplinary; it centers on the body, produces individualizing
effects, and manipulates the body as a source of forces that have to be rendered both useful and
docile. And we also have a second technology which is centered not upon the body but upon life: a
technology which brings together the mass effects characteristic of a population…4 For Foucault,
disciplinary and regulatory mechanisms of power are in some sense distinct or distinguishable—the
former operates through institutional mechanisms of surveillance and training in individualizing bodies,
and the latter functions through state regulation of biological processes. But that these regimes of
power are theoretically distinguishable does not mean, for Foucault, that they are mutually exclusive; to
the contrary, because these two sets of mechanisms exist at different levels, they can be “articulated
with each”5 In fact, these two regimes of power are both operational in what Foucault calls “the
normalizing society”: The normalizing society is a society in which the norm of discipline and the norm
of regulation intersect along an orthogonal articulation. To say that power took possession of life in the
nineteenth century, or to say that power at least takes life under its care in the nineteenth century, is to
say that it has, thanks to the play of technologies of discipline on one hand and technologies of
regulation on the other, succeeded in covering the whole surface that lies between the organic and the
biological, between the body and population. We are, then, in a power that has taken control of both
the body and life or that has, if you like, taken control of life in general—with the body as one pole and
population as the other.6 For Foucault, our existence in a “normalizing society” or “biopolitical society”
means that we are simultaneously subjected to and by both disciplinary and regulatory power— power
has covered the whole surface of life through its management of individual organisms on one hand and
disindividuated biological processes on the other. Rather than mechanisms of regulatory power
replacing those of disciplinary power, Foucault makes clear that technologies of the body on both of
these levels function together in the service of the “care of life.” These two mechanisms of power “took
possession of life” in this way through and towards the enforcement of norms; in regulatory disciplinary
regimes, “the norm is something that can be applied to both a body one wishes to discipline and a
population one wishes to regularize.”7 Disciplinary regulatory power or “biopower” is at its center a
normalizing regime, and so, for Foucault, is at the center of an investigation into how “human beings
are made into subjects” in the contemporary era. Through an analysis informed by this description of
biopower, I provide an account of how the “illegal alien” has been constituted as a subject on the United
States’ 5 border, both materially (in terms of locations of governmental institutions and disciplinary
technologies) as well as symbolically (in terms of language, ethnicity and culture). In this vein, in
addition to drawing on Foucault’s genealogical analyses, my dissertation also draws conceptually and
methodologically on Anzaldúa’s Borderlands/La Frontera. Like Foucault, Anzaldúa is interested in “how
human beings are made into subjects” within normalizing structures of power. In particular,
Anzaldúa’s project is concerned with the formations of subjectivity on the linguistic, cultural and
material border between the United States and Mexico. She describes the U.S. Mexican border as a
“vague and undetermined” home of bodies pushed to the margins by the processes of normalization:
The prohibited and forbidden are its inhabitants. Los atravesados live here: the squint-eyed, the
perverse, the queer, the troublesome, the mongrel, the mulatto, the half-breed, the half dead; in
short, those who cross over, pass over, or go through the confines of the “normal.8 Her project, unlike
Foucault’s discussions of normalizing regimes of power, deals explicitly and at length with the formation
of perverse, criminal, and impure subjectivities in the context of immigration discourses and practices in
particular. The inhabitants of the “borderlands” are the subjects who have been constituted by their
marginalization as the nation’s “other.” Anzaldúa’s use of the Spanish word “atravesados” to
characterize these inhabitants points to their constitution as broadly immigrant (the Spanish verb
“atravesar” can be translated as “to cross” or “to pass/ go through”) and perversely hybrid (as an
adjective, “atravesado” can be translated as perverse, troublesome, mongrel, half-breed). In this way,
Anzaldúa provides an account of how the “transgressions” of the bordercrossers through immigration
are linked with other kinds of perversity and impurity 8 Gloria Anzaldua, Borderlands/La Frontera, the
1st Edition (aunt lute books, 1987), 2. ix within a normalizing regime of power. In this vein, this project
attempts to make room for a reflection on how Anzaldúa’s work might contribute to new reflection on
how “illegal aliens” are constituted in and by discourse and the ways that the oppressive mechanisms of
the “normalizing society” might be resisted by these “abnormal” borderland subjects through the
enactment of what Anzaldúa calls mestizaje—a consciousness which is rooted in the embracing of the
hybrid impurity of identity. As guiding resources for my genealogical and intersectional account of
“illegal alien” subjectivity, Anzaldúa and Foucault’s works are joined by a variety of works in critical race
theory and gender and feminist theory. Theoretical resources from these fields, and particularly work on
intersectionality (and especially that by women of color feminists such as Angela Davis) have been
indispensable to my analysis of how the “illegal alien” has been constituted in the United States context.
In my integration of these various analyses of race, gender, sexuality, colonialism, immigration,
migration, subjectification and biopower, my account of the “illegal alien” is both inspired and informed
by Foucault and Anzaldúa’s resistances to historical meta-narratives. In this spirit, these other critical
accounts serve as disruptions and tools for criticism rather than alternative narratives to which my
account adheres. Instead of incorporating these texts into my project as unquestioned guides, I position
all of these theoretical contributions as contingent and historically-situated theoretical tools, in fidelity
to the genealogist’s commitment that “Knowledge is not made for understanding; it is made for
cutting.
Racializing the illegal immigrant is a function of biopower that justifies laws that make
illegal immigrants disposable—reinforcing this system justifies genocide and mass
death; getting rid of the states soveirgnty is a key first step to solve
Cisneros 12 (Natalie Packard, Doctorate in Philosophy, dissertation paper submitted to Vanderbilt, “THE “ILLEGAL ALIEN”: A
GENEALOGICAL AND INTERSECTIONAL ACCOUNT” http://etd.library.vanderbilt.edu/available/etd-07172012103621/unrestricted/TheIllegalAlienAGenealogicalandIntersectionalApproach.pdf 2012 JM)
I draw this terminology from Foucault’s 1975-1976 lectures at the College de France, where he describes
the emergence of “modern racism” as bound up with the regulatory disciplinary regime of power
Foucault calls “biopower”: The specificity of modern racism, or what gives it its specificity, is not bound
up with mentalities, ideologies, or the lies of power. It is bound up with the technique of power, with
the technology of power…We are dealing with a mechanism that allows biopower to work. So racism is
bound up with the workings of a State that is obliged to use race, the elimination of races and the
purification of the race, to exercise its sovereign power.32 In Foucault’s account, sovereign power,
which functions through obedience to the law of the king or a centralized figure of “top-down”
authority, gradually retreated in the eighteenth and nineteenth centuries with the emergence and
building dominance of disciplinary, and later, regulatory structures of power. Under sovereign regimes
of power, “from the point of view of life and death, the subject is neutral, and it is thanks to the
sovereign that the subject has the right to be alive or, possibly, the right to be dead.”33 Put differently,
before the transformation of functions of power in the eighteenth and nineteenth centuries, sovereign
power functioned in large part in terms of the right to take life or let live. With the rise of normalizing
power in the eighteenth and nineteenth century, this right to “take life or let live” was transformed and
complemented by a new right which “permeate[s] it”: “the power to ‘make’ live and ‘let’ die.”34 Under
this new regime of power, bodies are “disciplined”—that is, “made” to live and put to work in various
ways. This strategy of power operates in large part on individual bodies, including mechanisms,
discourses, and technologies of individualization, surveillance, organization, inspection, and reporting.
For Foucault, in the second half of the eighteenth century the new strategy of regulatory power
emerged alongside existing disciplinary mechanisms and discourses. This second strategy is operative
not primarily at the level of the body, but at the level of “populations” and biological processes—
regulatory power manages and regulates groups of humans en masse rather than training individual
bodies. According to Foucault, the strategies of regulative power “dovetail into [disciplinary technology],
integrate it, modify it to some extent, and above all, use it by sort of infiltrating it, embedding itself in
existing disciplinary techniques.”35 These dominant strategies of disciplinary and regulative power,
along with remaining functions of sovereign power, function together in what Foucault calls the
“normalizing regime.”36 Because these more recent technologies of power take control over the body
on one hand and biological processes on the other, power has “taken control over life in general.”37 34
Ibid., 241. 35 Ibid., 242. 36 Ibid., 253. 37 Ibid. 14 For Foucault, the retreat of sovereign power and the
rise of regulatory disciplinary power which define what he calls the “biopolitical” era does not mean that
these strategies don’t retain the old sovereign right to kill. Instead, this normative regime of power
functions through the mechanism of “modern racism” which he describes as the creation of fractures
in a population in the constitution of particular “races” as inferior “subraces”: What in fact is racism? It
is primarily a way of introducing a break into the domain of life that is under power’s control: the break
between what must live and what must die. The appearance within the biological continuum of the
human race of races, the distinction among the races, the hierarchy of races, the fact that certain races
are described as good and that others, in contrast, are described as inferior: all this is a way of
fragmenting the field of the biological that power controls…That is the first function of racism: to
fragment, to create caesuras within the biological continuum addressed by biopower.38 For Foucault,
“modern” racism functions to divide human life into “types,” constituting these divided bodies as
“good” or “inferior,” “degenerate,” and “abnormal.”39 In the regime of regulatory disciplinary power,
racism is a necessary technology which allows for the exposure of particularly-raced bodies to
violence and, ultimately, death. Put differently, even with juridical “power over death” on the retreat
and biopolitical “power over life” on the rise, modern racism allows (and indeed, calls for) the state to
kill. In so doing, regulatory disciplinary racism reaffirms the state’s sovereignty by making government
necessary for the “protection” of society against the “threat” of inferior races: Whereas the discourse of
races, of the struggle between races, was a weapon to be used against the historico-political
discourse…the discourse of race (in the singular) was a way of turning that weapon against those who
had forged it, of 38 Ibid., 254–255. 39 Ibid., 255. 15 using it to preserve the sovereignty of the State, a
sovereignty whose luster and vigor were no longer guaranteed by magico-juridical rituals, but by
mediconormalizing techniques.40 For Foucault, in contradistinction to what he calls the discourse of
“race struggle,” in which a battle is waged between races, the discourse of race “in the singular” is a
“centered, centralized, and centralizing power,” where one race is understood as the “true race” and all
others are threatening deviations from the norm. As such, whereas before the apparatuses of the state
were understood as tools to be used by each race against the other, in the discourse of modern racism,
the normalizing techniques of biopower function as both the apparatuses of the State and as its
legitimation: “State sovereignty thus becomes the imperative to protect the race.”4 Brewer’s claim that
the Arizona legislation is necessary to “protect Arizonans” from the threat which is “creep[ing]” across
its southern border is an example of the functioning of disciplinary regulative racist discourse in this
vein—by justifying the mechanisms of biopower which the legislation is meant to inaugurate by
referencing a human threat which might compromise the “quality of life” of all Arizonans, Brewer’s is
engaging a central strategy of disciplinary and regulatory racism. Though responding to critics’
concerns about racial profiling by citing the “crisis” caused by Arizona’s “porous southern border” seems
at first a poor rhetorical strategy, Brewers’ and others’ reliance on the racialized nature of the “illegal
alien” subject in defense of the legislation is made intelligible as a function of modern racism. Thus, the
always already racialized nature of the illegal alien, betrayed by Brewers’ comments as well as the
measure itself, is not accidental relative to the legislation or the discourse surrounding it; instead, the
“racialization” of the “illegal alien” subject makes intelligible the “threat” posed by “alien” bodies,
and in doing so makes possible the particular mechanisms of biopower inaugurated by the legislation
Borders create an us-them dichotomy that reinforces the biopolitical state and
characterizes illegal immigrants as “violent” and “destructive” which justifies the
state’s violence against bodies
Cisneros 12 (Natalie Packard, Doctorate in Philosophy, dissertation paper submitted to Vanderbilt, “THE “ILLEGAL ALIEN”: A
GENEALOGICAL AND INTERSECTIONAL ACCOUNT” http://etd.library.vanderbilt.edu/available/etd-07172012103621/unrestricted/TheIllegalAlienAGenealogicalandIntersectionalApproach.pdf 2012 JM)
The operation of strategies of regulative disciplinary racism surrounding the legislation is evident in the
normalizing discourse that Brewer employs in describing the threat posed by “illegal aliens.” As I
discussed above, under a regime of disciplinary regulative racism, for self-protection society must rid
itself of threatening “subraces” through technologies and discourses of normalization. 42 In this way,
“modern racism” operates not only through the mechanisms of biopower which defend the “true race”
from the “dangerous race,” but also in (re)forming this very distinction. In the normalizing discourse
Brewer employs, the dangerous “race” of “aliens” poses a threat by its very nature—“illegal aliens” are
characterized by their “violence,” “destruction,” poverty, and national and/or ethnic origin (from
“south of the border”), and fully virtuous citizenship is thus constituted in opposition to these
characteristics. The stigmatization of some as “alien”—that is, precarious and deviant “anti-citizens,”
despite their technical citizenship status—indirectly protects the safety and privileges of others as
model citizens. Because as a dangerous “sub-race” the “illegal alien” is always-already constituted as an
impure threat, those things that characterize this deviant subject also become “social ills” of which the
virtuous citizen must be free. Such discourses of purity function at the center of the operation of
normalizing power. As Foucault explained: “State racism [is] a racism that society will direct against
itself, against its own elements and its own products. This is the internal racism of permanent
purification, and it will become one of the basic dimensions of social normalization.”43 Thus, “State
racism” or “modern racism” operates internally, “purifying” society of elements deemed “degenerate”
or “abnormal.” In Borderlands/La Frontera, Anzaldúa describes the way in which normative structures of
power operate in the subjectification of inhabitants of the US/Mexico border in particular, in large part
through the functioning of discourses and practices of purity and purification: Borders are set up to
define the places that are safe and unsafe, to distinguish us from them. A border is a dividing line, a
narrow strip along a steep edge. A borderland is a vague and undetermined place created by the
emotional residue of an unnatural boundary. It is in a constant state of transition. The prohibited and
forbidden are its inhabitants. Los atravesados live here: the squint-eyed, the perverse, the queer, the
troublesome, the mongrel, the mulatto, the half-breed, the half-dead; in short, those who cross over,
pass over, or go through the confines of the “normal.”44 In a description which in important ways
overlaps with Foucault’s analysis of “modern racism,” Anzaldúa points to the way that “alien” subjects
are constantly (re)constituted as impure, dangerous, and perverse against a confining norm. The
“inhabitants of the borderlands” of which Anzaldúa speaks can thus be understood as an “impure
subrace,” constituted through the fracturing in US society into the “one true race” of virtuous, pure, and
healthy citizens and its antipode, a threatening race of dangerous “border-dwellers.” She makes explicit
that the “impure subrace” who dwells at the Mexico/United States border is constituted as racially
impure—by describing this “alien” group as “the mongrel, the mulatto, the half-breed,” she illustrates
the way in which normalizing discourse of purity/impurity is intimately bound to conceptions of race in
this context. In this way, her analysis affirms the centrality of discourses “purity” in the context of
modern racism in general, while illustrating the important role it plays in the constitution of the “illegal
alien” subject in particular.
2ac – at: ATD > jail
This comes from a point of privilege and doesn’t apply to those who haven’t
committed crimes
Koulish 15 (Robert, Joel J. Feller Research Professor of Government and Politics at the
University of Maryland, “Spiderman’s Web and the Governmentality of Electronic
Immigrant Detention,” 2/1/2015, Law, Culture and the Humanities, ProQuest)//JL
By nearly all accounts an individual’s wearing
an ankle bracelet and being forced to stay at or near one’s home is less intrusive than
being in jail or prison. In such ways, alterna-tives to detention are perceived as a humane alternative. It
has been used as a punishment of privilege in earlier incarnations for the likes of dissident intellectuals and, more recently in
celebrity culture. Celebrities like former International Monetary Fund head Dominique Strauss-Kahn, film director Roman Polanski, and celebrities Paris Hilton
and Lindsay Lohan prefer it to going to jail. Individuals are neither in a jail cell nor exposed to the institutional life of
uniforms, institutional food, and dangerous conditions of prison con-finement. Instead, they can eat in their own kitchen, watch
television, wear their own clothes and sleep in their own bed. This contemporary legacy of the ankle bracelet reinforces the
idea that its effects on liberty are negligible and for the most part not worth complaining about. It was only with the
assistance of a brigade of high-priced lawyers that Strauss-Kahn could convince a judge to order his release on rape charges from Rikers Island. Forced to wear an
ankle bracelet, Strauss-Kahn was ordered to a chichi East Side apartment suite with his wife. By
wearing the ankle bracelet out in public,
Lindsay Lohan and Paris Hilton created a fashion statement as well as helped commodify the ankle bracelet as a
punish-ment of choice for lawfully challenged celebrities. The publicity helped raise the financial value of the firms like
Behavioral Interventions put these beleaguered stars in the headlines; and is fodder for entertainments shows and
entertainment magazines. So when non-celebrity criminals, mental patients, drug addicts, sex addicts and immi-grants are saddled with
similar devices, they face a difficult time countering the public perception of ankle bracelets as a nonserious, somewhat frivolous sanction. The more that popular descriptions of the ankle bracelet describe it as frivolous
or lenient, the more difficult it becomes to raise legal concerns. Such spin about the trivial nature of this
constraint on liberty easily transfers to non-celebrities who are saddled with a similar punishment but without the headlines and media
ratings. In such situations, it becomes easy to imagine how this alternative to deten-tion strategy morphs into a strategy that
emphasizes alternative to release from detention, which increasingly includes persons who have
committed no crime/offense and should never be in state custody. The ankle bracelet phenomenon
allows for the extension of technologies of control to constrain the liberty of people for whom the state has no
sus-picion or cause to detain. The ATD programs were created during the early 2000s in part to lessen growing pres-sure on institutional facilities. But of
course ATD came with its own set of problems. Given the breadth of the mandatory detention statutes and the fact that ATD programs were not considered a form
of custody,
many nonviolent immigrants who were imprisoned under mandatory detention could not be
released into the ATD programs.
****NON-USFG VERSION****
**note—
There are lots of different ways to blend/construct this 1ac, so the goal was to allow a
little bit of mixing/matching
1ac—Bare Life
Status Quo surveillance reduces immigrants to “bare life” by isolating them,
discriminating against them, and targeting them. These states of exception justify
genocide. Vote Aff to resist total exclusion and advocate zones of indistinction
Gonzales and Chavez 12 (Roberto G. Gonzales - Assistant Professor, Harvard University
Immigration, race and ethnicity, migration, unauthorized migration, Latina/o Studies and Leo R. Chavez Professor
Ph.D., Stanford University. “Awakening to a Nightmare” Abjectivity and Illegality in the Lives of
Undocumented 1.5-Generation Latino Immigrants in the United States” - June 2012. Current
Anthropology Volume 53, Number 3, P. 257. Accessed 7/13/15.
http://www.socsci.uci.edu/~lchavez/Chavez1.pdf) dortiz
targeting undocumented or unauthorized
immigrants shape the lived experience of undocumented 1.5-generation Latinos and how they respond
to such constraints. Agamben speaks of “bare life,” the natural life that is distinct from the “good life,” the political life in classic Western thought. In modern politics, bare life,
once kept at the margins, is now increasingly included in the political order (Agamben 1998:9). But what happens to those objects of state regulation
whose bare life is kept at the margins of the political order? They become states of exception, their lives
bracketed as in the nation but not part of the nation, which allows them to become the object of laws
and other techniques of regulation (Agamben 2005). These can include everyday experiences of ill treatment by
the larger society, discrimination, and targeted police actions. When taken to its extreme, the state can
target such exceptions, physically separate them from society, isolate them into “zones of social
abandonment,” and even engage in practices of genocide, extermination, or ethnic cleansing (Biehl 2005).5 But
We are also interested in the intersection of Foucault’s two research directives, that is, how the practices
before such endpoints are reached, if ever, a set of practices can emerge that mark off or bracket a group as different, less than, unworthy, illegitimate, undeserving (Sargent and Larchanche´-
What marks the group as “Other” derives from particular histories and can
coalesce around any number of traits: race, religion, sex, physical or mental disability, stigmatized disease, migration history, or citizenship status, among others.
Importantly, it is not something inherent to the particular bracketed group that is important here, but
the practices that make their lives miserable, constrained, limited, invisible or differently visible,
stigmatized, feared, and even dangerous. And yet, despite these practices of exclusion, it is sometimes
possible that a sense of inclusion emerges through everyday lived experiences such as working, forming families, making
friends, paying taxes, playing sports, engaging in community affairs, and interacting with social institutions, particularly schools (Agamben 1998; Chavez 1998; Yuval-Davis 2006). These
“zones of indistinction,” as Agamben called them, are paradoxes in which the law and social practices legitimize that
which law has prohibited (Agamben 1998; Coutin 2007). Importantly, as Nicholas De Genova (2010:37) has noted, zones of indistinction, and
bare life, are produced by sovereign (state) power. But we must note that, as we will show,
undocumented 1.5 generation can, and do, resist total exclusion. The ultimate exclusionary act here is
deportation, which De Genova (2010:34–35) has observed, is where “the whole totalizing regime of citizenship and alienage,
belonging and deportability, entitlement and rightlessness, is deployed against particular persons in a
manner that is, in the immediate practical application, irreducibly if not irreversibly individualizing.”
Kim 2006; Tormey 2007; Willen 2007; Zhang 2001).
1ac—Borders
Border Surveillance is a form of biopower that reduces migrants to bare life
Doty PhD 10 (Roxanne Lynn Doty - Ph.D. Political Science, University of Minnesota AND Assoc
Professor at Arizona State. “Bare life: border-crossing deaths and spaces of moral alibi” – 2/10/10.
Society and Space. Accessed 7/19/15. http://www.envplan.com/abstract.cgi?id=d3110) dortiz
On Friday, 6 July 2007, volunteers with two local humanitarian groups in Tucson, Arizona, Humane
Borders and Samaritans, went in search of Prudencia Martin Gomez, age 18 from Guatemala. She was
headed to Oakland, California, to join her boyfriend/fiance¨ and had been missing since 11 June in the
Ironwood National Forest, a 129 000-acre expanse of land, in the Sonoran Desert 25 miles northwest of
Tucson. There are no facilities in the Ironwood National Forest, and visitors are warned of the hazards of
the extreme heat. Human beings simply cannot survive in this part of the southwestern deserts for as
long as Prudencia had been missing, so there was no pretense that they would find her alive, and they
did not. The official location of her body was recorded as GPS: N 32 0 25.455/W 1110 307.80 (Arizona
Daily Star 2010). Prudencia had fallen ill and had been unable to continue. Her fellow travelers left her
with water, but it was not enough. She was only a mile south of a Humane Borders' water station, but a
mile can be a very long way in the desert, in the month of June, when one has already walked a long
distance. Authorities determined that Prudencia had died on 15 June. The recorded high temperature
on that day was 1158F. Prudencia was a contemporary version of what Agamben (1998) refers to as
bare life, life that can be taken without apology, classified as neither homicide nor sacrifice. She was US
border policy stripped to its essence. And hers, tragically, is not an isolated example. In 2004 Mario
Alberto Diaz, 6 feet tall with a black belt in karate and working on a masters degree in biology crossed
the border near Sasabe, Arizona. His body was discovered twenty days later in a creek in the foothills of
the Sierrita Mountains (Bourdeaux, 2004). In the summer of 2005 the Pima County medical examiner in
Tucson, Arizona, had to rent a refrigerated tractor-trailer to store the bodies of migrants due to the
record number of deaths that year (Arizona Republic 2005). The deadly trend continues. Even as
apprehensions have steadily declined, deaths continue to rise (McCombs, 2009).(6) The migrant death
count for fiscal year 2009 is the third highest since 1998. In the fifteen-year period since ``prevention
through deterrence'' was first introduced approximately 5000 migrants have died, though near (6)
Associated Press 2009, ``Border deaths up despite apparent dip in crossings'', 8 April, reported by No
More Deaths e-mail to author, 9 April 2009. Bare life: border-crossing deaths and spaces of moral alibi
601 universal agreement exists that estimates of migrant deaths are undercounts and the actual
number is likely much higher (Coalicion de Derechos Humanos, 2007). When they debated, formulated,
and put into effect the various border control operations collectively known as prevention through
deterrence, policy makers likely had never heard of GPS: N 32 0 25.455/W 1110 307.80 or the Ironwood
National Forest or the Sierrita mountains or the many other locations at which migrant bodies have
been, and continue to be, found. However, it is arguably inconceivable that they did not know of the
harsh conditions to which migrants would be subjected under this border strategy. The Border Patrol's
own blueprint for one of the early and well-known manifestations of the new operations, Operation
Gatekeeper, noted that it would channel migrants to locations where ``the days are blazing hot and
nights freezing cold''.(7) In this section I argue that the prevention through deterrence border control
strategies exemplify Foucault's theoretical writings on how biopower, sovereign power, and racism
can be articulated with one another thus to function in concert. While biopolitics, as formulated by
Foucault, is generally understood as being concerned with the governance and regulation of a
population in matters such as health and sexuality, it is also consistent with what Agamben refers to as
bare life. For Foucault the emergence of the ``problem of the population'' coincided with the
development of an art of government wherein the main concerns of government were on the wealth,
longevity, health, and sexuality of the population, giving rise to the notion of biopower as ``making life
live'' (Foucault, 1991). Through regulations in these matters, subjects become entangled in the practices
of statecraft. Agamben has critiqued what he calls Foucault's ``progressive disqualification of death'' (ie
the circumscription of the issue of death to discussions of classical sovereign power), offering a
conceptualization of biopower which focuses on the ways in which sovereign power produces a radical
exposure abandoning subjects, stripping their identities to that of bare life, and thereby creating spaces
of exception or a ``juridical void'' which permits abuses and killings without punishment.(8) While
Agamben's theorizations of biopower and its relation to bare life are invaluable for understanding how
modern power works, he arguably draws a bit of a strawman when it comes to Foucault. In Society Must
be Defended, Foucault poses the following question. How can biopower, whose function is to improve
life and prolong its duration, kill? ``How can the power of death, the function of death, be exercised in a
political system centered upon biopower?'' (2003, page 254). His definition of `killing' is not ``simply
murder as such, but also every form of indirect murder: the fact of exposing someone to death,
increasing the risk of death for some people, or, quite simply, political death, expulsion, rejections, and
so on'' (page 256). Clearly Foucault recognizes that biopower does not preclude the taking of life. He
responds to his own question by turning to race, suggesting that race performs two functions: (1) it
introduces a break in the domain of life under power's control between what must live and what must
die thus fragmenting the field of the biological that power controls, and (2) it establishes a relationship
between life and death. ``If you want to live, you must take lives, you must be able to kill''
1ac—White Supremacy
This Paradigm of Modern Immigration Surveillance state and the manipulation of the
foreignter strikes to the very heart of the sustenance in the White American order- It
must be destroyed to confront racism writ large
Hernandez ’97 [1997, Tanya Kateri Hernandez “Construction of Race and Class Buffers in the
Structure of Immigration Controls and Laws, The Symposium: Citizenship and Its Discontents: Centering
the Immigrant in the Inter/National Imigination: Part II: Section Three: Rethinking Agency: Global
Economic Restructuring and the Immigrant” 76 Or. L. Rev. 731]
In the midst of current anti-immigration sentiment,1 which is motivating dramatic changes in the United
States' immigration laws, there exists the myth that prior immigration laws were more equitable and
humanitarian.' Yet historical analysis reveals that immigration law has been put to uses far from idyllic,
and has always been concerned with the racial makeup of the nation. Specifically, national
preoccupation with the maintenance of a "White country"4 is reflected in immigration law.5 The
continued national preference for White immigrants is explicitly featured in the visa profiling codes of
U.S. embassies and consulates. 6 This Essay employs a race-conscious 7 lens to analyze the way in which
immigration law has been structured to perpetuate a racial hierarchy which privileges Whiteness,
primarily by preferring White immigrants to immigrants of color, and secondarily by drafting immigrants
of color to form a middle-tier buffer8 and, alternatively, to provide a bottom-tier surplus labor supply.
My thesis is that the structure of immigration laws9 in the United States has often facilitated the
formation and maintenance of a middle-tier buffer class of residents to preserve racial hierarchy.1 " I
utilize the model of the middle-tier buffer to reveal the use of race in immigration policy and the need
for recognition of its strategic deployment in hindering movements for solidarity in opposition to racial
hierarchy. This Essay will first present the origins and purpose of middle-tier buffer classes, and then
review the United States history of race-based nativism in its preference for White immigrants. This will
be followed by an analysis of historical and present constructions of middle-tier buffer communities
during cyclical national concerns with the number of White residents. I conclude by observing that this
nation's racial hierarchy cannot be dismantled until immigrants of color take note of the divisive
function of middle-tier buffer formation.[]Sociologists have developed the concept of "middleman
minorities" to describe the structural positioning of various ethnic minorities into an intermediate status
level between a privileged class and the lowest socioecomic class of residents.11 Such structural
positioning allows the privileged class to use the intermediate class as a buffer to deflect hostility and as
a scapegoat during times of crisis.12 Middle-tier communities are accorded greater access to economic
opportunity than the masses of the lower class, but at the same time are prevented from entering the
privileged class.13 Yet middle-tier buffers are inherently fluid in that demographic and socio-economic
changes in a society will motivate either a shift in the groups that comprise the middle-tier or, in the
alternative, motivate an interest in temporarily deactivating the use of a middle-tier buffer. Thus, who is
treated as a middle-tier buffer, and when, is not static but varies with the perceived status stability of
the privileged class. Groups of persons are treated as a middle-tier buffer when a marked status gap
exists between elites and the lower class.14 Immigration often serves to fill status gaps.15 Yet not all
immigrants are positioned as middle-tier buffers, which indicates that there is a factor at work separate
from the need to fill a status gap. Although sociologists have analyzed the ways in which the culture of
being an immigrant has contributed to the dynamic of a middle-tier buffer, 16 the degree to which
immigration laws themselves have facilitated the construction of middle-tier communities and the ways
in which racial thinking underlies such formations has been an open question. The structure of
immigration laws is one of many pull factors17 for immigrants, but a very forceful one. 18 For instance,
although labor demands influence the flow of immigration, not all countries with similar economic
instabilities are subject to the same U.S. urging for emigration to the United States.19 Instead, the U.S.
bias in favor of White immigrants and the consequent invisibility of persons of color as recognized
citizens of the United States2" influences the structure of immigration laws. This Essay will explore the
manner in which a privileged White class' fear of becoming overwhelmed by the demographic increase
of ethnic minority populations in a pluralistically diverse society informs the use of immigration laws for
the two-fold purpose of increasing the number of White residents and constructing a middle-tier buffer
to preserve the privileges of White supremacy. Although this Essay focuses on the construction of
middle-tier buffers in the United States, I note that the power of this model is borne out by its use in
other ethnically diverse countries with a small White privileged class The impetus for utilizing a middletier buffer model of immigration at various points in U.S. history and presently has been rooted in the
White privileged class' concern with maintaining its status. In fact, the shift in what groups constitute a
middle-tier buffer is triggered by fluctuating concerns with the continued predominance of White
persons as a numerical majority of the U.S. population. Thus, before examining the operation of middletier buffers, this Essay shall set forth the tangible U.S. preference for White immigrants as a mechanism
for maintaining a system of White privilege. Although a comprehensive federal immigration legal
structure was not instituted until 1875,22 the United States quickly became concerned about the
growing racial makeup of the nation. 3 Such preoccupation is evident in congressional debates from
1900 to 1916 surrounding the legal status of residents of two newly acquired U.S. possessions-Puerto
Rico and the Philippines. Although not immigration laws per se, the debates about status and citizenship
were rooted in concerns about the entry of "others" into the contiguous United States which would be
facilitated by granting U.S. citizenship to residents of the two possessions. Such citizenship proposals
were often met with skepticism and concern, and were treated as if they were proposals for direct
immigration of persons from the U.S. possessions. For instance, during the debates one congressman
cautioned Congress against "open[ing] wide the door by which these negroes and Asiatics can pour like
the locusts of Egypt into this country."24 Therefore, decisions regarding citizenship for residents of U.S.
territories effect a type of immigration control. In the congressional debates regarding the citizenship
status of Filipino and Puerto Rican residents, which extended from the 56th Congress through the 64th
Congress, the racial makeup of such populations figured prominently.25 Congress preferred Pu erto
Rican immigration to the contiguous United States due to the mistaken perception that Puerto Ricans
were primarily White.26 Furthermore, Congress articulated the sentiment that "[t]he people of Porto
Rico are of our race, they are people who inherit an old civilization-a civilization which may be fairly
compared to our own."2 7 In contrast, the perceived African attributes of Filipinos rendered them a less
desirable supply of immigrants. Filipinos were denigrated by Congress because they were perceived by
Whites as "physically [sic] weaklings of low stature, with black skin, closely curling hair, flat noses, thick
lips, and large, clumsy feet" who would not be as beneficial to the nation as the Europeans who were
incorporated as citizens when Louisiana was made a state.28 "How different the case of the Philippine
Islands .... The inhabitants are of wholly different races of people from ours-Asiatics, Malays, negroes
and mixed blood. They have nothing in common with us and centuries can not assimilate them .... They
can never be clothed with the rights of American citizenship "2.... 9 When assessing the distinctions
between the Philippine and U.S. populations, it is clear that Congress did not consider the presence of
African-American U.S. citizens, from whom Filipinos would not be a "wholly different race." Nor did
Congress appreciate the irony of admitting many more persons of African ancestry into the contiguous
United States when Pu erto Rico was extended U.S. citizenship.3 " The preference for White immigrants
regardless of skill level is not exclusive to the United States. Comparison to a Latin American context
demonstrates the general role maintenance of racial boundaries plays in the development and
implementation of immigration law. When Argentina sought to industrialize, it constitutionally
mandated an increase in the number of European immigrants to improve the country by "whitening"
it.31 The decision to recruit European immigrants was not based primarily upon any considerations of
skill level or wealth, but upon a belief that the White race was superior to that of the Afro-Argentines
and native peoples who inhabited Argentina up until the twentieth century.32 The European immigrants
who arrived in Argentina displaced Afro-Argentines from most forms of employment and social
status.33 Similarly, the United States recruited European immigrant labor before and after the Civil War
to fill a presumed need for labor, despite the surplus of labor available from newly freed slaves. 34
European immigrants recruited to the United States displaced free Black persons from employment.35
The historical preference for a White workforce in the United States continues today.36 It is the
consistent preference of White employers for White employees which, in part, accounts for the
opposition some persons of color currently have towards increased immigration,37 despite the common
struggles which immigrant and nonimmigrant persons of color face. As the section that follows eveals,
this preference for Whites became the rule of law with the enactment of the Immigration Act of
1924.3[REDACTED FOR LENGTH]With the enactment of the 1965 amendments to the Immigration and
Nationality Act,7 7 the United States abolished the national origins quota immigration selection system.
In its stead, Congress created a family preference system which reserved 74% of admissions for family
members of resident U.S. immigrants regardless of their geographic origin.7 8 Yet this was not as racially
neutral as it appeared on the surface. The family preference system most immediately benefited
southern and eastern Europeans who already had a broad base of family members in the United States
who could petition the government for family unification.79 In addition, the family preference system as
drafted adversely affected immigrants from Africa and Asia who had low rates of emigration to the
United States before the legislation was enacted, and thus had a smaller proportion of persons in the
United States who could petition for family reunification. 0 Just as the formal barrier of the national
origins quota system was abolished, the 1965 Act developed other mechanisms to exclude persons of
color as immigrants to the United States. Because of congressional concerns about the rapid population
growth of immigrants of color from the Western hemisphere, the 1965 Act established a limit81 on
immigration from Mexico, Cuba, Haiti, the Dominican Republic, and the Canal Zone. Westernhemisphere immigrants were also required to meet qualitative requirements and obtain labor
certification.82 This dichotomy in requirements between Western-hemisphere immigrants and most
other immigrants suggests that the family preference system as intended was far from the great race
equality measure commentators have characterized it to be.83 In fact, the Act's proponents did not
envision a radical welcoming of diverse cultures as a result of the legislation. Policy-makers predicted
that the most significant increase in immigration resulting from the Act would be from Greece, Italy and
Portugal, whereas they did "not expect that there would be any great influx" from the Asia-Pacific
triangle. 84 Yet the number of immigrants of color did increase for reasons not anticipated by the 1965
Act legislators." Following the enactment of the law, Congress established a transition period of three
years. For the first time, this provision permitted unused visas from countries with undersubscribed
quotas to be entered into a visa pool which could be tapped on a first-come firstserved basis by
countries with oversubscribed visa quotas. This flow of additional visas into a visa pool for countries with
oversubscribed quotas unintentionally benefitted immigrants of color.8 6 After enactment of the
legislation, Western Europe be- came more economically and politically stable, thereby reducing the
incentive for White immigrants to enter the United States. 87 Furthermore, an unintended consequence
of the United States' foreign policy of communist containment was the increase in immigrants of color,
in that many immigrants of color sought refuge in the United States from communist countries of
origin.8" For example, Cambodians, Laotians, Vietnamese, Cuban, and Nicaraguan immigrants were
admitted as political refugees; immigrants from the Dominican Republic entered the United States in
large numbers following the U.S. military intervention of the Dominican Republic in 1965 to avoid
"another Cuba;" and Korean immigrants were admitted in large numbers after the United States
stationed a military presence in South Korea after the Korean War. In short, the United States' foreign
policy of communist containment provided a large base of racial minorities in the United States who
could petition for reunification with family members. Furthermore, the United States' own racialized
perspective of the nation as one consisting only of White persons skewed its predictions about the
effects of the family preference system. The two countries with the largest source of immigrants to the
United States after the enactment of the 1965 Act were Mexico and the Philippines. "In both countries,
decades of active agricultural labor recruitment by the United States-of Mexicans to the Southwest, and
Filipinos to plantations in Hawaii and California-preceded the establishment of chain migrations of
family members and eventually of large and self-sustaining migratory social networks."89 Nor was the
United States ever a country of purely White residents, given the existence of Native Americans before
the arrival of the Europeans, the coerced importation of Africans as slaves, the preexisting residence of
Mexicans on Mexican land later forcibly claimed as U.S. territories, and the continual migration of
diverse peoples throughout time. Thus the privileged class' image of the United States as peopled
almost solely by White Nordics was defective,90 and left the nation unprepared for the cumulative
effect of the family preference system-mass arrival of the brown-skinned residents who were
considered invisible to the conception of what the nation was. The settlement of the 1965 Act's new
arrivals raised the same cyclical concern regarding the diminished status of Whites in the face of a
growing number of racial minorities that had influenced the passage of the 1924 National Origins Act.9'
Rather than welcoming the newest arrivals for full integration into North American society, the
membership of middle-tier buffer communities shifted to constrain these immigrants with stratified
access to social, political, and economic opportunities.92 One example 93 of the ways in which new
arrivals had their place in society structured into the middle-tier is the post-1965 treatment of Asian
Americans in the United States. 94 The discussion which follows demonstrates that the pervasive
"model minority" 95 discourse regarding the many nationalities of persons encompassed by the
umbrella term Asian Americans is itself a mechanism for limiting the opportunities afforded to Asian
Americans as a racial minority, while at the same time structurally positioning them as a community
presumably dissociated from other persons of color.96 This is because the model minority label accords
prestige to some groups of persons of color but not to others, which alienates the groups and prevents
them from forming coalitions against racial bias. Simultaneously, racial bias operates to limit the
opportunities of the labeled model minorities. Thus, to view Asian Americans as a model minority traps
them as a middle-tier buffer regardless of the actual status of individual members of the buffer class.9 7
In order to maintain a hierarchy of privilege, while defusing the potential for coalition building among
people of color, Asian Americans have been positioned as a middle-tier buffer. The middle-tier
positioning was accomplished by providing Asian Americans with a nominal number of enhanced
opportunities for advancement.98 For instance, in the much discussed dominant positioning of Koreans
vis-a-vis African Americans,99 Koreans have been provided with enhanced access to rental properties,
business licenses, and supply of goods-yet have been subject to discrimination when attempting to
move into White dominated areas. 1°° Such intermediate positioning of Koreans within Black
communities permits Whites to use Koreans as a scapegoat for discontent because of their enhanced
status in and physical proximity to the Black community. 10 1 During the Los Angeles riots which
followed the Rodney King verdict in 1992, businesses of Korean merchants were subject to arson and
looting. Koreans noted that the White media "intentionally focused on Korean- Black conflicts during the
riots in order to divert Blacks' economic frustrations onto Korean merchants."1 °2 This is the same
pattern of hierarchical "buffering" which occurred during the Durban, South Africa, riots against Indians
in 1949,1°3 and during the Watts riots in Los Angeles against Jewish merchants in 1965, where
subordinated class members channeled their frustrations about their oppressed status in the form of
urban violence against middle-tier class members. 10 4 The ways in which the 1965 Act's inadvertent
increase in immigrants of color motivated the transformation of Asian Americans from being a
subjugated class into a middle-tier buffer demonstrate the fluidity of the middle-tier construct. The
parameters of middle-tier buffers are inherently fluid, to serve the purpose of being easily modified to
respond to cyclical White fears of becoming a numerical minority with diminished privilege. The cyclical
pattern of White fear is characterized by: 1) preferencing White immigrants to maintain or create a
numerical majority of Whites; 2) positioning non-White immigrants as a middle-tier to buffer privileged
Whites from the discontent of subordinated classes when White immigrants are not available; and 3)
decreasing middle-tier advantages and seeking non-White immigrants as a bottom-tier supply of surplus
labor, while making renewed appeals for White immigrants when the number of middle-tier class
members becomes so large or prosperous that the privileged class begins to view the middle-tier as a
threat to its status rather than a shield to protect it. This cyclical pattern is evident in the post-1965
movement to "reform" immigration laws. The enactment process of the Immigration Reform and
Control Act of 1986 ("IRCA") 10 5 reflected undercurrents of the White fear of becoming a numerical
minority, 10 6 as demonstrated by the following IRCA debate remarks: The problem western European
immigrants face today is rooted in the most recent immigration reform effort, undertaken in 1965....
Events of the last 20 years, however, have exacerbated the problem of discrimination, not eliminated it.
No one predicted, in 1965, the massive wave of immigration from Asia.... As a result of this policy, in
effect since 1965, Europeans are being squeezed out of the immigration mix[,] ... immigrants from
countries that have historically contributed to our immigrant stock.... 7 These remarks regarding the
"problem" with European immigration were made during the IRCA debates, despite the fact that a large
proportion of nonpreference visas had already been reserved for Western Europe.' °8 In addition, IRCA's
formal method for containing illegal immigration also functioned to maintain the hierarchy of a
dominant/middle-tier/subordinant socio-political structure for legal immigrants. IRCA chose to address
the matter of illegal immigration by imposing sanctions on employers who illegally hired, recruited, or
employed undocumented workers.'0 9 Given the concern for the potential exacerbation of
discrimination against documented persons who "looked foreign," IRCA also included an anti-discrimination provision which placed civil penalties on employers using discriminatory employment
practices based on national origin or citizenship. 110 Yet this saving measure was faulty by design. When
the U.S. General Accounting Office ("GAO") conducted a legally mandated evaluation of the employer
sanctions provision, it found implementation of IRCA directly resulted in a pattern of widespread
discrimination against persons perceived as alien because of their subordinated ethnicity.111 IRCA also
discourages redress for such discrimination by requiring a plaintiff to show a discriminatory intent on
the part of the employer, in addition to providing evidence of the actual discrimination. 12 This legal
standard dilutes the effectiveness of the anti-discrimination provision in that it "provides less protection
to victims of discrimination because it places a heavier burden on the plaintiff, thus reducing the
likelihood of successful litigation."1'13 The effectiveness of IRCA's anti-discrimination principle was
further diminished by the congressional delegation of enforcement of the anti-discrimination provision
to the INS - an agency which "[h]istorically... had little or no experience in regulating businesses or
employer hiring or firing practices."' 14 Consequently, the GAO study found a causal link between
employers' fear of receiving sanctions for employing undocumented workers and their consequent
discrimination against employees and job applicants whose race, ethnicity, or English language skills
were deemed to be foreign by employers.1 5 Although IRCA provided for a possible repeal of the
employer sanctions provision if GAO found a pattern of widespread discrimina tion,116 Congress took
no action after GAO issued its indictment against the discriminatory effect of the employer sanctions
provision. The benefit of maintaining an ineffective anti-discrimination immigration policy is the
marginalization of the surplus labor supply.117 IRCA essentially authorizes employers to use the possible
denial of employment because of employer concerns with violating the law as a mechanism for keeping
all wages down and discouraging employees from making demands for appropriate working conditions.
Specifically, IRCA places undocumented persons of color (more likely to be considered foreign than
White immigrants who "look American") and documented workers of color (who are also considered to
"look foreign") in the precarious position of having to feel thankful for employment at lower wages and
sometimes unsafe conditions-thankful because they easily could be turned down for employment
because they look foreign and have no effective recourse for such discrimination. 18 In addition, low
income Whites are provided with a scapegoat for their economic and social discontent.11 9 In short,
IRCA uses an ineffective anti-discrimination provision to maintain the existence of a large marginalized
population as a bottom-tier supply of surplus labor. At the same time, IRCA allows recruitment of more
Whites by reserving for them large numbers of nonpreference visas, and leaves fixed the status of an
Asian-American middle-tier buffer. Therefore, IRCA functions to shield the privileged from challenge to
their systemic entitlements.12 ° This works because the tripartite racial hierarchy fosters dissension
among subordinated group members concerned with their status vis-a-vis one another. The imposed
economic competition among subordinated groups deflects their attention from the system of privilege
and thereby hinders the formation of coalitions to combat privilege. A survey of the most recent
immigration reform efforts demonstrates the desire for increased marginalization of people of color as a
bottom-tier surplus labor supply to preserve this tripartite racial hierarchy. The following overview of
the 1996 immigration legislation is necessarily concise given its recent enactment. Each of the racialized
aspects of the 1996 legislation noted herein is worthy of its own scholarly investigation. The scope of
this Essay only permits me to briefly note the racial implications of the legislation. The Illegal
Immigration Reform and Immigrant Responsibility Act of 1996121 has been touted as being part of
welfare reform in general with respect to its limitations on participation in any means-tested public
benefits program. 122 Yet one of the Act's more pernicious aspects is its prohibition on adjustment of
immigration status for those undocumented persons who were em- ployed while unauthorized. 123
Thus, even though the Act purports to concern itself with the self-proclaimed problem of
nondocumented persons accessing welfare benefits, it also sanctions employed undocumented persons.
The bar against ever altering the immigration status of the very same persons employers seek to hire
effectively treats such residents as guest workers permanently excluded from political participation,
thereby positioning them as a perpetual bottom-tier class. 124 The Act also makes it a criminal penalty
for undocumented persons to vote in a federal election. 12 5 Extending the sanction of criminal law to
undocumented persons who feel vested enough in this country to want to vote is more than symbolic of
the sentiment that immigrants perceived as problematic should in no way consider themselves part of
the United States. The recurring theme of subordinated status as fixed is also made clear by the Act's
provisions which allow for state prohibition of drivers licenses for undocumented persons, 126 and
which deny eligibility for post-secondary educational benefits on the basis of residence within a state12
7 -both of which announce that unwanted un- documented persons should not try to improve their
station beyond that of bottom-tier surplus labor by increasing their mobility or educational level. The
Act's denial of benefits from unemployment 128 and social security 129 programs (to which
undocumented persons have often contributed while working in the United States) also sends a
message of marginalization. 130 The 1996 Act also includes provisions that reflect White immigrant bias
in their divergent treatment of White versus nonWhite immigrants. For example, Cubans who arrive in
the United States by airborne transport (and are primarily White13 1 ) are not subject to summary
exclusion, 13 2 unlike Afro-Cuban immigrants who arrive by boat, raft, and other non-airborne
transport. Yet another example of racially varied treatment of immigrants is observed in the fact that
unlike similarly situated immigrants of color, Polish immigrants who were not successful in having their
immigration status adjusted in 1995 after being selected to receive a visa are again eligible for the 1997
Diversity Visa Lottery. 133 A more subtle, though no less racially charged provision of the Act makes
female circumcision ("FC") a crime punishable by five years in prison.134 The criminalization of FC
selectively targets immigrants from certain African countries 135 where FC is practiced for culturallybased reasons. 36 In addition to the severity of criminalizing a cultural custom for which greater public
debate is needed, the criminalization also adversely affects both male and female African immigrants
given its intersection with the Antiterrorism and Effective Death Penalty Act of 1996.137 The
Antiterrorism Act expands the criteria for deportation from the grave category of crimes of moral
turpitude to the more expansive category of crimes for which a sentence of one year or longer may be
imposed, thereby encompassing the custom of FC.1 38 Finally, the 1996 Act's limitation on class action
litigation1 39 can also be viewed as a provision rooted in White immi grant bias, in that the provision
seeks to avoid the kinds of lawsuits which disempowered immigrants from subordinated groups have
successfully used to attack discriminatory immigration policies in the past.140 CONCLUSION This
examination of the construction of middle-tier buffers demonstrates that immigration law functions not
only as a mechanism for defining our nation's borders, but also to set and reset fluid racial boundaries
14 1 for the purpose of preserving racial hierarchy. The members of the middle-tier may shift, but the
buffer structure remains to preserve White privilege. Through the model of the cyclical middle-tier
buffer, the current restrictions on immigration can be recognized as a reaction to the "browning"'142 of
North America as opposed to uniform limitations on all immigration. The current resurgence of nativism
143 is not an objection to all foreigners, just foreigners of color.144 The primary lesson to be learned
from the long history of middle-tier formations is that middle-tier formations are artificial obstacles that
pit the oppressed against one another 145 and prevent successful coordination of solidarity
movements.146 Immigrants are useful tools in the construction of middle-tier buffers in that their status
as strangers to the United States diminishes any fixed expectation about their place in the new society.'
47 Yet it is the recognition of such positioning by immigrants and citizens of color which is vital to
dismantling racial hierarchy in the United States.148 An example of effective coalition building which
transcended the middle-tier buffer structure is the unification of Coloureds with Blacks in South Africa in
order to overturn apartheid. 149 Once Coloureds rejected the hierarchy which had used them as a
middle-tier buffer, and Blacks surmounted their alienation from Coloureds who had been positioned as
dominant to them, 150 the two communities were able to work together towards the dismantling of
apartheid. Only when the disaffected members15' of this country acknowledge the existence of
middletier structures and work towards transcending them will they start to confront White privilege in
immigration law and elsewhere.
2ac v Framework
Biopolitics DA—2ac
The Aff shouldn’t have to defend USFG. Abjectivity of migrant individuals began with
the biopolitics of the surveillance state. Dissenting against oppressive
governmentalities is critical and just.
Gonzales and Chavez 12 (Roberto G. Gonzales - Assistant Professor, Harvard University Immigration,
race and ethnicity, migration, unauthorized migration, Latina/o Studies and Leo R. Chavez - Professor
Ph.D., Stanford University. “Awakening to a Nightmare” Abjectivity and Illegality in the Lives of
Undocumented 1.5-Generation Latino Immigrants in the United States” - June 2012. Current
Anthropology Volume 53, Number 3, P. 256. Accessed 7/13/15.
http://www.socsci.uci.edu/~lchavez/Chavez1.pdf) dortiz
Abjectivity speaks to how the “casting away” of individuals and
populations shapes (or perhaps delimits) their social, economic, and biological life. We believe that abjectivity draws
attention to the forces creating the condition of abjectivity. Abjectivity is the effect of social forces, but we must also ask about the causes of that condition. We argue that the
practices of the biopolitics of citizenship and governmentality—surveillance, immigration documents,
employment forms, birth certificates, tax forms, drivers’ licenses, credit card applications, bank
accounts, medical insurance, and mandatory car insurance—may frustrate anyone, citizen and
noncitizen alike, because they enclose, penetrate, define, and limit one’s life and actions. But for
undocumented 1.5-generation Latino immigrants (and others in a similar status), these practices of
governmental contact and surveillance can create enormous distress, detention, and even deportation
We are interested in the experiences of living in abjection.
(Inda 2006). These “rites of institution,” as Pierre Bourdieu (1992) called them, are central to the power of nation-states to construct identities and produce, in a perverse way, the “sweet
abjectivity underscores the link between the mechanics of
biopower and the lived experiences of those most vulnerable to the exercise of power. Our construction of
abjectivity clearly draws on Michel Foucault’s biopolitics, the development of techniques that work on
the body to produce docile bodies (Foucault 1977, 1990 [1976], 3. See Uli Linke’s (2006) argument that the state also has a corporeal grounding. Gonzales and
sorrow” of a sense of belonging (to borrow from Shakespeare). Thus,
Chavez Undocumented 1.5-Generation Latino Immigrants 257 1997; Gordon 1991).4 This led Foucault, as Giorgio Agamben (1998) points out, to two research directives. The first focuses on
The state, with its “political techniques (such as the science of the
police) . . . assumes and integrates the care of the natural life of individuals into its very center” (Agamben
1998:5). Second, Foucault examines “the technologies of the self by which processes of subjectivization bring
the individual to bind himself to his own identity and consciousness and, at the same time, to an
external power” (Agamben 1998:5). Judith Butler (1997b) also argued that power and subject are interlocked in a paradox of subjectivization, or the formation of a self-conscious
the way power “penetrates subjects’ very bodies and forms of life.”
identity and thus agency.
The Aff is a form of dissent against the abjectivity imposed on immigrants by the
biopolitics of the surveillance state.
Gonzales and Chavez 12 (Roberto G. Gonzales - Assistant Professor, Harvard University Immigration,
race and ethnicity, migration, unauthorized migration, Latina/o Studies and Leo R. Chavez - Professor
Ph.D., Stanford University. “Awakening to a Nightmare” Abjectivity and Illegality in the Lives of
Undocumented 1.5-Generation Latino Immigrants in the United States” - June 2012. Current
Anthropology Volume 53, Number 3, P. 256. Accessed 7/13/15.
http://www.socsci.uci.edu/~lchavez/Chavez1.pdf) dortiz
Abjectivity speaks to how the “casting away” of individuals and
populations shapes (or perhaps delimits) their social, economic, and biological life. We believe that abjectivity draws
attention to the forces creating the condition of abjectivity. Abjectivity is the effect of social forces, but we must also ask about the causes of that condition. We argue that the
practices of the biopolitics of citizenship and governmentality—surveillance, immigration documents,
employment forms, birth certificates, tax forms, drivers’ licenses, credit card applications, bank
accounts, medical insurance, and mandatory car insurance—may frustrate anyone, citizen and
noncitizen alike, because they enclose, penetrate, define, and limit one’s life and actions. But for
undocumented 1.5-generation Latino immigrants (and others in a similar status), these practices of
governmental contact and surveillance can create enormous distress, detention, and even deportation
We are interested in the experiences of living in abjection.
(Inda 2006). These “rites of institution,” as Pierre Bourdieu (1992) called them, are central to the power of nation-states to construct identities and produce, in a perverse way, the “sweet
abjectivity underscores the link between the mechanics of
biopower and the lived experiences of those most vulnerable to the exercise of power. Our construction of
abjectivity clearly draws on Michel Foucault’s biopolitics, the development of techniques that work on
the body to produce docile bodies (Foucault 1977, 1990 [1976], 3. See Uli Linke’s (2006) argument that the state also has a corporeal grounding. Gonzales and
sorrow” of a sense of belonging (to borrow from Shakespeare). Thus,
Chavez Undocumented 1.5-Generation Latino Immigrants 257 1997; Gordon 1991).4 This led Foucault, as Giorgio Agamben (1998) points out, to two research directives. The first focuses on
The state, with its “political techniques (such as the science of the
police) . . . assumes and integrates the care of the natural life of individuals into its very center” (Agamben
1998:5). Second, Foucault examines “the technologies of the self by which processes of subjectivization bring
the individual to bind himself to his own identity and consciousness and, at the same time, to an
external power” (Agamben 1998:5). Judith Butler (1997b) also argued that power and subject are interlocked in a paradox of subjectivization, or the formation of a self-conscious
the way power “penetrates subjects’ very bodies and forms of life.”
identity and thus agency.
Education DA—2ac
Immigrant Issues are invisible – discussion key to reveal the underlying problems
Romo and Chavez 08 (Jaime J. Romo is a leader in the study and development of border pedagogy, an
emerging field in multicultural education. Claudia Chavez is a doctoral candidate in tile Educational
Leadership program at the University of San Diego. “Border Pedagogy: A Study of Preservice Teacher
Transformation” - 30 Jan 2008. Taylor & Francis. Accessed 7/17/15.
http://www.tandfonline.com/doi/pdf/10.1080/00131720608984885) dortiz
Teachers, the majority of whom have ancestral roots in Europe, often are surprised when they hear of
discrimination and exclusionary issues facing recent immigrants (Nieto 1999). Unfortunately, immigrant
issues are virtually in visible to them, and Huntington's proposal that immigrants just should become
Americans appears to guide legislation. A growing number of states are passing legislation that impacts
immigrants (Lace y 2004; Crawford 2000). In 1994, California voters passed Proposition 187, denying
illegal immigrants access to education. Subsequently, the federal district courts decreed that the
proposition violated the 1982 U.S. Supreme Court decision in Plyler vs. Doe, 457 Ll.S. 202-a case which
allowed undocumented, illegal residents of the United States the right to receive free public K- 12
education. Though legislative changes are forthcoming, immigrant students are generally overlooked
and underserved (Ruiz-de-Velasco, Fix, and Clewell 2000) at the classroom and institutional levels in preK-12 schools (Romo, Bradfield, and Serran o 2004). The following data illustrate preservice students'
feelings of transformation by learning about and forming relationships with immigrant students. One
student described how he moved from ignorance about the community to having his eyes opened and
becoming allies with immigrant students and families. In everyday life, it is so easy for me to become
friends with people who are similar to me because I see them at social functions, they look like me . . .
we are similar. At first, I felt ashamed by how little I knew about the country of Sudan and the Sudanese
people. I didn't know about the oppression and war that has occurred and continues. I didn't realize the
lifestyle changes that people have to make to live in the United States. In an attempt to become a
multicultural competent advocate for all children, all members of the education program, including
myself have embarked on a challenging journey. This journey, or process, has and continues to feature
community service learning, practicum experience, and multicultural study. Thus far, it has been an
incredible challenge and has already redefined my concept of advocacy in education. The preservice
teachers' experiences in the CSL settings also impacted the ways these students analyzed curriculum
and instructional strategies. One preservice teacher, who was enrolled concurrently in a methods course
that required 50 hours of practicum at a school where Sudanese students sat through culturally
irrelevant lessons, shared: Here, first- and second-generation Americans, the majority of whom are
Sudanese refugees, come together in the collective aspiration to succeed in a new environment. An
example I noticed was an assignment focusing on the southern colonies. The emphasis rested on
geographical attributes that each region held, and the impact of these attributes on production. The
student I was helping could not even come close to visualizing the varying environments. lt is the
teacher's job to make these far-off realities attainable for the student by relating them to existing
dynamics that are more accessible to the cultural groups present in the classroom.
Border Pedagogy—2ac
Border pedagogy produces a self-reflexive epistemology that combats dominant
pedagogies – only the 1AC solves
Giroux, Miami University professor, in 91 (Henry A. Giroux, “Border Pedagogy as Postmodern
Resistance,” Postmodernism, Feminism, and Cultural Politics: Redrawing Educational Boundaries,
published by State University of New York Press, 1-1-1991, accessed 7-17-15)//JRom
Finally, central to the notion of border pedagogy are a number of important pedagogical issues
regarding the role that teachers might take up in making a commitment to fighting racism in their
classrooms, schools, communities, and the wider society. The concept of border pedagogy also helps to
locate teachers within social, political, and cultural boundaries that define and mediate in complex ways
how they function as intellectuals who exercise particular forms of moral and social regulation. Border
pedagogy calls attention to both the ideological and the partial as central elements in the construction
of teacher discourse and practice. In part, this suggests that to the degree that teachers make the
construction of their own voices, histories, and ideologies problematic they become more attentive to
Otherness as a deeply political and pedagogical issue. In other words, by deconstructing the underlying
principles which inform their own lives and pedagogy, educators can begin to recognize the limits
underlying the partiality of their own views. Such a recognition offers the promise of allowing teachers
to restructure their pedagogical relations in order to engage in open and critical dialogue questions
regarding the knowledge taught, how it relates to students’ lives, how students can engage with such
knowledge, and how such practices actually relate to empowering both teachers and students. Within
dominant models of pedagogy, teachers are often silenced through a refusal or inability to make
problematic with students the values that inform how they teach and engage the multifaceted
relationship between knowledge and power. Without the benefit of dialogue, and understanding of the
partiality of their own beliefs, they are cut off from any understanding of the effects their pedagogies
have on students. In effect, their infatuation with certainty and control serves to limit the possibilities
inherent in their own voices and visions. In this case, dominant pedagogy serves not only to disempower
students, but teachers as well. In short, teachers need to take up a pedagogy that provides a more
dialectical understanding of their own politics and values; they need to break down pedagogical
boundaries that silence them in the name of methodological rigor or pedagogical absolutes; more
important, they need to develop a power-sensitive discourse that allows them to open up their
interactions with the discourses of various Others so that their classrooms can engage rather than block
out the multiple positions and experiences that allow teachers and students to speak in and with many
complex and different voices.
Democracy is ruined by dominant, racist pedagogies that reproduce themselves – only
a replenished border pedagogy create a more productive democracy
Giroux, Miami University professor, in 91 (Henry A. Giroux, “Border Pedagogy as Postmodern
Resistance,” Postmodernism, Feminism, and Cultural Politics: Redrawing Educational Boundaries,
published by State University of New York Press, 1-1-1991, accessed 7-17-15)//JRom
If the construction of anti-racist pedagogy is to escape from a notion of difference that is silent about
other social antagonisms and forms of struggle, it must be developed as part of a wider public disclosure
that is simultaneously about the discourse of an engaged plurality and the formation of critical
citizenship. This must be a discourse that breathes life into the notion of democracy by stressing a
notion of lived community that is not at odds with the principals of justice, liberty, and equality. Such a
discourse must be informed by a postmodern concern with establishing the material and ideological
conditions that allow multiple, specific, and heterogeneous ways of life to come into play as part of a
border pedagogy of postmodern resistance. This points to the need for educators to prepare students
for a type of citizenship that does not separate abstract rights from the realm of the everyday, and does
not define community as the legitimate and unifying practice of a one-dimensional historical and
cultural narrative. Postmodernism radicalizes the emancipator possibilities of teaching and learning as a
part of a wider struggle for democratic public life and critical citizenship. It does this by refusing forms of
knowledge and pedagogy wrapped in the legitimizing discourse of the sacred and the priestly; its
rejecting universal reason as a foundation for human affairs; claiming that all narratives are partial; and
performing a critical reading on all scientific, cultural, and social texts as historical and political
constructions. In this view, the broader parameters of an anti-racist pedagogy are informed by a political
project that links the creation of critical citizens to the development of a radical democracy; that is, a
political project that ties education to the broader struggle for a public life in which dialogue, vision, and
compassion remain critically attentive to the rights and conditions that organize public space as a
democratic social reform rather than a regime of terror and oppression. It is important to emphasize
that difference and pluralism in this view do not mean reducing democracy to the equivalency of diverse
interests; on the contrary, what is being argued for is a language in which different voices and traditions
exist and flourish to the degree that they listen to the voices of others, engage in an ongoing attempt to
eliminate forms of subjective and objective suffering, and maintain those conditions in which the act of
communicating and living extends rather than restricts the creation of democratic public spheres. This is
as much a political as it is a pedagogical project, one that demands that anti-racist pedagogical practices
be developed within a discourse that combines a democratic public philosophy with a postmodern
theory of resistance.
Border pedagogy allows us to question social constructs and epistemology
Romo and Chavez 08 (Jaime J. Romo is a leader in the study and development of border pedagogy, an
emerging field in multicultural education. Claudia Chavez is a doctoral candidate in tile Educational
Leadership program at the University of San Diego. “Border Pedagogy: A Study of Preservice Teacher
Transformation” - 30 Jan 2008. Taylor & Francis. Accessed 7/17/15.
http://www.tandfonline.com/doi/pdf/10.1080/00131720608984885) dortiz
The data suggested that a process and a product of border pedagogy are needed to respond to the
study question: How are future teacher candidates, who are monocultural, effectively prepared to teach
in a border context? Preservice teachers need cognitive preparation and external motivation to engage
in unfamiliar settings. At the beginning of the study, many preservice teachers were motivated by their
required participation in unfamiliar neighborhood educational settings. Many were afraid of what they
did not know. Over time, the preservice teachers demonstrated a transformation of their knowledge
base, dispositions, and skills to function as multiculturally competent advocates for all students. This
shift began with university classroom supports to help these preservice teachers see and contextualize
their educational experiences. Experiential learning activities reinforced class content and helped them
gain a better understanding of themselves, their students, and teaching in a border region. The data also
provided insights into the study question: What are some important characteristics of border pedagogy
teachers? When preservice teachers had gained a border pedagogy knowledge base, they began to
consider curriculum in sociopolitical terms and to see complexities of identity-such as class, national
origin, language, race, and culture-in a border region. These border pedagogy teachers began to see
racism, sexism, classism, and discrimination in relation to their own class, background, and biased
epistemology. They began to understand their own and students' racial and cultural identity
frameworks and cognitive background. They also began to recognize the sociopolitical influences on
immigra The Educational Forum » Volume 70 • Winter2006• 151 Downloaded by [] at 07:04 18 July
2015 When border pedagogy educators reflect on their experiences and knowledge base, they appear to
develop dispositions that support a strong sense of personal identity as teachers, learners, family
members, and community members. Romo and Chavez tion, mono- and multicultural curriculu m and
learning environments, and class and privilege issues in teaching and learning.
Access DA—2ac
Accessibility DA – educational accessibility restricts undocumented immigrants from
being able to pay resident tuition and not being allowed to find work after college
which prevents a border pedagogy from taking root – turns their limits claims
Frum, UGA PSO VP, in 7 (Jennifer, VP for public service and outreach at the University of Georgia,
one of Georgia Trend magazine’s 2012 “Power Women” in Georgia, 1999 Fulbright award winner;
“Postsecondary Educational Access for Undocumented Students: Opportunities and Constraints,”
American Academic Volume Three, published 2007, accessed 7-18-15,
http://www.williamperezphd.com/articles/frum-2007.pdf)//JRom
Each year, U.S. high schools graduate an estimated 65,000 undocumented students, of whom only 5
percent ever attend college.1 For most undocumented immigrants, the major barriers to postsecondary
access are both financial and legal. For instance, 39 percent of undocumented children live below the
federal poverty level (compared to 17 percent of native-born children) while the average income of an
undocumented immigrant’s family is 40 percent lower than that of either native-born families or legal
immigrant families.2 Although states are required to provide undocumented students access to free
public K-12 education, once they reach college age such students are in some respects abandoned by
the public educational system. For instance, even if an undocumented student was brought by his/her
parents to the United States as a young child, graduated from a U.S. high school, and is accepted to a
public college or university, in 40 states that student is required to pay non-resident or out-of-state
tuition, which costs an average 140 percent more than resident tuition.3 Equally, under federal law
these same undocumented students are prohibited from receiving federal financial aid for their
education. This prohibition, which applies to undocumented students but not to their counterpart noncitizens who are legal permanent residents, prevents undocumented students from receiving Pell Grants
and participating in federally funded work study programs. Furthermore, even if they could afford to
attend college or university, such students’ undocumented status means they cannot legally work after
graduation under current law. This is another restriction that distinguishes undocumented students
from their counterpart documented non-citizens, who may obtain permission to work legally in the
United States.
Role of the Judge—2ac
The role of the judge is to be an ethical policy maker- immigration discourse has been
historically dehumanizing and exclusive to the moral travesties of the border
Hing ’01 [Spring 2001 ,Bill Ong Hing is a Professor of Law and Asian American Studies, University of
California, Davis “ARTICLE: The Dark Side of Operation Gatekeeper” Copyright (c) 2001 The Regents of
the University of California
U.C. Davis Journal of International Law & Policy]
Conflicts that are at bottom about race often get masked by language about "problems." The problem in
this case is the "problem" of people coming across the border. Problematizing undocumented migrants
allows us to demonize them, n249 and, in turn, to render the inherent racism invisible. But in fact, the
migrants involved are human beings--Mexican human beings. The focus of the U.S. immigration policy is
on Mexico-U.S. border enforcement, where Congress has spent over a billion dollars implementing
Operation Gatekeeper alone. n250 Yet only half of the estimated five million undocumented aliens in
the United States come to the country via illicit border entries; the other half are visa overstays-students, tourists, temporary workers--from all over the world. n251 With Gatekeeper, the stories of
human existence, of struggle and of difficulty, are solved by police power. When we ask "how is this
possible?" the question feels naive because that lost human existence is viewed through a very
particular racial lens and does not have a powerful meaning or resonance. Border enforcement is
viewed as the exercise of a conceptual sovereign right against a faceless mass. The [*160] enforcement
of this sovereign right enables us to dehumanize the entity--the horde in popular terms--in a manner
that allows us to ignore racial implications. Thus, in the popular image, the Border Patrol is eliminating a
problem. But in a humanized image, the Border Patrol is eliminating people. Some well-meaning
attempts to re-humanize migrants are only somewhat helpful. For example, descriptions of those who
are dying as our future yard workers, busboys, or farm workers appear accurate. n252 But these
depictions actually encode racism. Such depictions are so stereotypical that they completely fail to
convey what brings the people across the border, what their lives become once they are here, or who
they are. They contribute to a sense that these individuals are disposable. n253 They ignore the nuanced
personalities of each individual, allowing them to remain nameless and faceless. By categorizing
migrants in our social and economic structure as our future yard workers, migrants are placed in a
conventional subordinated position through what might generously be labeled "unconscious racism."
n254 Thus, these depictions are a direct product of a very passive kind of racism. The danger of using
police power against people who are seeking a better life should be troubling. Gatekeeper represents
pervasive use of police power against human beings seeking productive lives who are involved in nonviolent activity. Although Operation Gatekeeper directs police force against an unpopular nationality
group, race has disappeared from the discourse. Instead, the conversation presents itself as being about
turning a "nuisance" and "annoyance" in the urban areas of San Diego into "an improvement in quality
of life," by moving the migrants out of the public's view. Two related concepts are in play. First, the
public generally is inured to police force. Second, the public is immune from it when it is invisible. In the
instance of Gatekeeper, the public becomes inured to the use of police power (essentially violence) to
do everything for it as long as it is not noticed. The public is similarly so accustomed to discourse about
convenience and quality in (middleclass, white) life, that its normalcy is not challenged. This latter
problem is very old and, perhaps, is not much more pervasive than before. But now [*161] it exists in
tandem with the deadly policies of Gatekeeper that make middle class complacency especially
dangerous, problematic, and lethal. VI. RECONSIDERING OPERATION GATEKEEPER: "WITHDRAWING
FROM VIETNAM" Given the immediate intractability of the economic imbalance, the billions of dollars
invested in border-control measures with little if any impact on apprehension rates, and most of all the
resulting deaths, we have to ask whether the continuation of Operation Gatekeeper really makes sense.
Avoidable deaths have resulted from this major undertaking, raising serious moral issues. Should the
expenditure of time and money be spent elsewhere to address the question of illicit border crossing?
The crossings are the manifestation of the forces of economic imbalance, family ties, and history.
Gatekeeper's attempt to address the symptoms--crossings--has done little to address the root causes,
with tragic results. Beefing up Gatekeeper, in effect militarizing the border, has only ensured that the
tragedy will continue. Yet the United States continues to spend up to $ 2 billion a year on the
"deterrence" strategy along the Southwest border. n255 As a former INS General Counsel now
concedes, Operation Gatekeeper does not "deter the way we thought it would. Operation Gatekeeper
has become our Vietnam, mistakenly thinking that if we added just a little more [to the build up], then a
little more, that we would get results." n256 On the surface, Gatekeeper has given the impression of
addressing the problem. People are crossing surreptitiously, so fences are erected, and patrols are
beefed up. But crossers continue to enter, simply shoved out of sight toward more treacherous routes.
Understanding the phenomenon of border crossing reveals that Gatekeeper has been a popular,
conventional response that does little to address the long term goal of assisting Mexico out of its poor
economic times. In fact, Gatekeeper was constructed during one of Mexico's most dire economic eras,
contributing to Gatekeeper's ineffectiveness. Gatekeeper demonstrates little understanding of the
tradition of migrant Mexican workers who benefit economically and psychically from their movement
into the United States, but who also benefit U.S. society. We would do better by acknowledging the
needs of the workers, their [*162] families, n257 and the industries involved, and determining how to
facilitate the movement in a manner that is sensitive to various interests. Migrant border deaths raise
important ethical questions. The persons who die are the citizens of Mexico, other countries in Latin
America, and elsewhere. The policies that lead to those deaths are set by another country, the United
States. The United States claims sovereign authority to control its own borders. Yet to do so creates
conditions leading to a high number of death among migrants. If these were United States citizens who
were dying, mortality bills this high would doubtless raise considerable controversy. The extreme
physical measures of border enforcement epitomized by Gatekeeper have not succeeded at deterring
undocumented immigration. Rather, they have placed human beings in mortal danger. The nation has a
moral responsibility for the hazardous conditions that have been created. Gatekeeper's successful
movement of migrant foot-traffic out of the public eye is not a legitimate reason for maintaining a
strategy that claims lives. Assuming for the sake of argument that undocumented migration to the
United States is bad, n258 the continuation of the Operation Gatekeeper enforcement strategy remains
problematic. n. The inevitability of theseGiven the fact that many undocumented immigrants will
continue to risk everything, including their lives, to gain entrance into this country, the number of
environmental deaths will remain high as long as the crossers are pushed into life-threatening terrai
gruesome deaths should give us pause as a civilized nation. If behavior we dislike is nonetheless going to
happen, why cruelly increase the suffering when it occurs? Might we not tolerate one evil, at least in the
eyes of certain policy makers and certain segments of the public, in order to avoid a greater evil? n259
Consider the possible analogy with needle exchange or teen contraception programs. Most would argue
that a reasonable societal goal is to eliminate all injection drug use. Proponents of needle exchange
programs argue that injection drug use will continue with our without access to sterile needles and
syringes, so clean [*163] ones should be supplied to reduce the spread of AIDS. Similarly, the likely
societal goal regarding sexual behavior is to delay intercourse until marriage or at least until an age of
responsibility. Yet, since sexual intercourse among the young will not cease if access to contraceptives is
withheld, proponents of providing contraceptives to teens seek to provide them with contraception to
avoid teen pregnancies. We can imagine that the contraception programs work in some cases. And
empirical studies on needle exchange programs have definitely found them to be successful. The
incidence of HIV infection among needle exchange participants decreased by a third, while the existence
of such programs do not result in increased drug use among participants or the recruitment of first-time
drug users. n260 Another analogy can be drawn between the profit-gouging alien smugglers and drug
dealers. Drug sellers are "simply more highly motivated than those who are paid to stop them. Drug
sellers make enormous profits--much more than they could make at legal jobs--and they are willing to
risk death and long prison terms to do it." n261 As we have already seen, alien smugglers and their
clients may be more highly motivated than the Border Patrol. And the alien smugglers make large
profits, not only risking their own death, but also the deaths of the immigrants that they smuggle.
Whether immigrants cross the border over relatively flat land with normal temperatures versus rocky,
mountainous terrain or deserts with extreme temperatures, they will still cross. n262 Do we really want
to make things worse by forcing them through the latter terrain knowing that certain of them will die as
a result? n263 Or should we accept the notion--as we have with needle exchange programs--that even
while we seek to stop an activity, we should try to minimize the suffering of those whom we would
stop? Reverting to pre-Gatekeeper enforcement strategies would be no less effective, in terms of
apprehensions and deterrence, but would result in far fewer deaths. The less dangerous routes to entry
would be re-opened and the need for high-priced smugglers reduced. Understanding the economic and
social situation in Mexico and the nature of the relationship between Mexicans and the United States
enables us to formulate better approaches to border crossing. Addressing push-pull factors should be
the priority, not militarizing the border in response to the results of push-pull factors. Like it or not,
Mexico and the United States not only share a border, but they share a long social, economic, and
political history. The new administration in Mexico presents new opportunities for the United States to
meaningfully address economic [*164] and social challenges in Mexico. Recognizing that family
reunification is a major reason for border crossing suggests that special visas facilitating permanent or
seasonal reunification are in order. Understanding the long-standing tradition of back-and-forth
migration for seasonal employment and the needs of U.S. employers should lead us to serious consider
how to facilitate this phenomenon. For the amount of money and time we have spent on Operation
Gatekeeper, our strategies can be much more creative and relevant than simply hiring more border
patrol officers. n264 Thus far, U.S. border policies have not reflected an understanding of the reason for
undocumented migration. n265 CONCLUSION The issue presented by Operation Gatekeeper is not
whether the United States has a right to control its border. Rather, the issue is whether the United
States has abused that right with a strategy designed to maximize the physical risks, thereby ensuring
that hundreds of migrants would die. In its second response to the Inter-American Commission on
Human Rights, the U.S. government said that "every state has a sovereign right to control entry into its
territory and to take effective and reasonable steps to prevent unlawful, unauthorized entries." n266 Is
Gatekeeper effective and reasonable? By adopting an explicit policy that maximizes physical risks that
everyone knows will result in deaths, can the policy truly be regarded as reasonable? The primary
question that policy makers need to consider is how many human lives are we willing to sacrifice with
current enforcement policy? Immigration officials have entered into a dubious moral arithmetic--how
many migrant lives are we prepared to lose to keep the problem out of the national spotlight?
Motivations for continued migration call into question the likely effectiveness of a program such as
Gatekeeper if the goal is to discourage border crossers. Beyond the economic situation in Mexico, a
socio-cultural phenomenon is at play. The phenomenon is the long, historical travel patterns between
Mexico and the United States, coupled with the interdependency of the two regions. Migration from
Mexico is the manifestation of these economic problems and social phenomena. The militarization of
the border represented by Gatekeeper does nothing to address these phenomena. Instead, it is killing
individuals who are caught up in the phenomena. Gatekeeper represents a false practical solution to
moral questions raised by the flow of migrants pushed and pulled by economic and [*165] social factors.
The migrants have become objectified, problematized, and demonized, n267 allowing proponents to
skirt the moral questions. Thus, Gatekeeper has moral implications in an abstract way (as in "what kind
of people are we to permit such things to happen to") and in a concrete way (the death toll and the
hardship for Gatekeeper's victims, and the attitude of those who enforce it, and live with it). The dark
side of Operation Gatekeeper reveals "knowledge" of the high probability of deaths on the part of the
U.S. government officials. The INS has knowingly created a death trap to control the Southwest border.
Shifting apprehension statistics disclose that crossers have not been discouraged from continuing to
enter. The push-pull factors that continue to drive undocumented migration do not appear to be
subsiding. The safest routes to cross the border surreptitiously have been foreclosed. INS officials
recognize that the terrain over which crossers are now forced to enter poses threats of mortal danger.
Yet instead of retreating from its life-threatening strategy, INS forges on, creating even greater physical
challenges for crossers. The INS response is to develop lifesaving operations in the environmental hazard
zone it has created. Operation Gatekeeper is not simply a law enforcement operation that has created a
harsh result. Gatekeeper is a law enforcement operation that imposes a death sentence on individuals-principally Mexicans--who simply are seeking a better life because of economic imbalance or seeking to
be with family. Operation Gatekeeper is a moral outrage, and our nation has lost its soul in supporting it.
Historical analysis key
US policies come from nativist history that constructs the US-Mexican border
differently than others—lead to racially constructing immigrants as goods, criminals,
and the enemy
Ngai 3 (Mae M., American historian and Lung Family Professor of Asian American Studies and Professor of History at Columbia University,
Law and History Review--Columbia Volume 21 / Issue 01 / Spring 2003, pp 69-1082003 DOI: http://dx.doi.org/10.2307/3595069 (About DOI),
Published online: 28 October 2011 JM)
The illegal alien that is abstractly defined is thus something of a specter, a body stripped of individual
personage, whose very presence is troubling, wrong. Moreover, this body stripped of personage has no
rights. It is no coincidence that the regime of immigration restriction emerged with World War I. The
war, by simultaneously destroying the geopolitical stability of Europe and solidifying the nation-state
system, also created millions of refugees and stateless persons, as well as denationalized and
denaturalized persons during the postwar period.22 Recalling Hannah Arendt, philosopher Giorgio
Agamben tells us, "In the system of the nation-state, the so-called sacred and inalienable rights of man
show themselves to lack every protection and reality at the moment in which they can no longer take
the form of rights belonging to citizens of a state." Certainly the illegal alien appears in the same
historical moment and in the same juridical no-man's-land that was created when the war loosened the
links between birth and nation, human being and citizen.23 23 Second, the mere idea that persons
without formal legal status resided in the nation engendered images of great danger. In 1925 the
Immigration Service reported with some alarm that 1.4 million immigrants--20 percent of those who had
entered the country before 1921--might already be living illegally in the United States. The service
conceded that these immigrants had lawfully entered the country, but because it had no record of their
admission, it considered them illegal. It warned, 24 “(I)t is quite possible that there is an even greater
number of aliens in the country whose legal presence here could not be established. No estimate could
be made as to the number of smuggled aliens who have been unlawfully introduced into the country
since the quota restrictions of 1921, or of those who may have entered under the guise of seamen. The
figures presented are worthy of very serious thought, especially when it is considered that there is such
a great percentage of our population . . . whose first act upon reaching our shores was to break our laws
by entering in a clandestine manner--all of which serves to emphasize the potential source of trouble,
not to say menace, that such a situation suggests.24” Positive law thus constituted undocumented
immigrants as criminals, both fulfilling and fueling nativist discourse. Once nativism succeeded in
legislating restriction, anti-alien animus shifted its focus to the interior of the nation and the goal of
expelling immigrants living illegally in the country. The Los Angeles Evening Express alleged that there
were "several million foreigners" in the country who had "no right to be here." Nativists like Madison
Grant, recognizing that deportation was "of great importance," also advocated alien registration "as a
necessary prelude to deport on a large scale." Critics of nativism predicted that "if every man who wears
a beard and reads a foreign newspaper is to be suspected unless he can produce either an identification
card or naturalization papers, we shall have more confusion and bungling than ever." 25 Prohibition
supplied an important cache of criminal tropes, the language of smuggling directly yoking illegal
immigration to liquor-running. The California Joint Immigration Committee described illegal aliens as
"vicious and criminal," comprising "bootleggers, gangsters, and racketeers of large cities."26 Similarly,
Edwin Reeves, a Border Patrol officer in El Paso during the 1920s, recalled, "Every fellow you caught
with a load of liquor on his back . . . was a wetback." The National Republic claimed that two million
aliens intent upon illegally entering the United States were massed in Canada, Mexico, and Cuba, on the
"waiting lists" of smugglers.27 25 In this story, aliens were not only subjects--that is, the smugglers--they
were also the objects, the human goods illegally trafficked across the border. In 1927 the Immigration
Bureau reported that the "bootlegging of aliens" was "a lucrative industry second only to smuggling of
liquor." It emphasized, "The bootlegged alien is by all odds the least desirable. Whatever else may be
said of him: whether he be diseased or not, whether he holds views inimical to our institutions, he at
best is a law violator from the outset." 28 This view that the undocumented immigrant was the least
desirable alien of all denotes a new imagining of the nation, which situated the principle of national
sovereignty in the foreground. It made state territoriality--not labor needs, not family unification, not
freedom from persecution, not assimilation--the engine of immigration policy. 26 Territoriality was
highly unstable, however, precisely because restriction had created illegal immigrants within the
national body. This was not an entirely new phenomenon, but important consequences resulted from
the different nature and scale of illegal immigration in the late 1920s. Illegal immigrants now comprised
all nationality and ethnic groups. They were numerous, perhaps even innumerable, and were diffused
throughout the nation, particularly in large cities. An illegal immigrant might now be anyone's neighbor
or coworker, even one's spouse or parent. Her illegal status might not be known to her social
acquaintances and personal intimates. She might not even be aware of it herself, particularly if it
resulted from a technical violation of the law. She might, in fact, be a responsible member of society
(employed, tax paying, and, notwithstanding her illegal status, lawabiding). Even if she were indigent or
uneducated, she might have a family, social ties in a community, and interact with others in ways that
arguably established her as a member of society. 27 The problem of differentiating illegal immigrants
from citizens and legal immigrants signified the danger that restrictionists had imagined--to them, illegal
aliens were an invisible enemy in America's midst. Yet their proposed solutions, such as compulsory
alien registration and mass deportations, were problematic exactly because undocumented immigrants
were so like other Americans. During the interwar period a majority of political opinion opposed alien
registration on grounds that it threatened Americans' perceived rights of free movement, association,
and privacy.29 The Immigration Service had traditionally "never made any considerable attempt . . . to
go out and look for aliens unlawfully in the country" and through the late 1920s remained reluctant to
conduct mass raids, particularly in the north.30 The problem of differentiation revealed a discontinuity
between illegal immigration as an abstract general problem, a "scare" discourse used at times to great
political effect, and illegal immigrants who were real people known in the community, people who had
committed no substantive wrongs. 28 Yet, if illegal aliens were so like other Americans, the racial and
ethnic diversity of the American population further complicated the problem of differentiation. We
might anticipate that illegal aliens from Europe and Canada were perceived and treated differently from
those of Mexican or Asian origin.31 In fact, the racial dimensions of deportation policy were not merely
expressions of existing racial prejudice. Rather, they derived from processes of territoriality and
administrative enforcement that were not in the first instance motivated or defined by race. 29 We
might approach this problem by considering the question of defining and controlling the border and by
returning to Commissioner Hull's testimony that the Border Patrol did not operate "on the border line"
but "back of the line." Contemporaries understood the distinction, if not the full implications. Writing
about the Border Patrol in 30 the Southwest, one author described apprehending aliens "at some
distance back from the International Line" a "man-sized job." She explained, "To capture an alien who is
in the act of crawling through a hole in the fence between Arizona and Mexico is easy compared with
apprehending and deporting him after he is hidden in the interior, among others of his own race who
are legally in this country."32 The Border Patrol's capacious definition of its jurisdiction suggests that the
nation's borders (the point of exclusion) collapsed into and became indistinguishable from the interior
(the space of inclusion). But, this is not to say that the border was eliminated. Policies of restriction and
deportation reconstructed and raised the borders, even as they destabilized them. History and policy
also constructed the U.S.-Mexican and U.S.-Canadian borders differently. The processes of defining
and policing the border both encoded and generated racial ideas and practices that, in turn, produced
different racialized spaces internal to the nation.
The 1AC’s criticism challenges nativist politics rooted in identity—critiquing the law is
the first step to changing the law
Ngai 3 (Mae M., American historian and Lung Family Professor of Asian American Studies and Professor of History at Columbia University,
Law and History Review--Columbia Volume 21 / Issue 01 / Spring 2003, pp 69-1082003 DOI: http://dx.doi.org/10.2307/3595069 (About DOI),
Published online: 28 October 2011 JM)
Specifically, critics charged, aliens were often "forcibly detained." The boards of special inquiry, which
conducted formal deportation hearings, were often one-man tribunals, with the immigration inspector
often appearing simultaneously as arresting officer, prosecutor, and judge.69 The boards operated
without rules of evidence, readily admitting hearsay, opinion, anonymous letters, and "confidential
information." The alien also bore the burden of proof "to show cause . . . why he should not be
deported." One study found that only one-sixth of aliens in deportation proceedings had legal
representation, ranging from 1 or 2 percent along the Mexican border to 20 percent in New York City.70
56 Moreover, the service interpreted the statute in ways that grossly stretched the law's meaning in
order to justify grounds for deportation. For example, it interpreted "entry without proper inspection"
to cover not only aliens who circumvented inspection but also instances where the examining inspector
had failed to ask a question that would have revealed the alien's excludability.71 The greatest abuse
surrounded the application of the provision "liable to become a public charge at time of entry," or "LPC,"
which, Clark said, was "shaken on deportation cases as though with a large pepper shaker." The service
deported immigrants who committed minor crimes or violated norms of sexual morality, such as bearing
children out of wedlock, which were not deportable offenses, on grounds that they were "LPC before
entry." In other words, the Immigration Service considered lapses or misfortune subsequent to entry to
be the teleological outcome of a prior condition, which it adduced by way of retroactive judgment. 72 57
Finally, immigrants under warrants of deportation had few avenues of appeal. The Labor Department's
board of review, which made recommendations to the secretary of labor, had no statutory authority.
Judicial review was extremely rare because the federal courts historically practiced great restraint in
immigration cases, having progressively narrowed the grounds for judicial review in Chinese exclusion
cases over the years. During the late 1920s and 1930s the courts heard fewer than three hundred writs
of habeas corpus in deportation cases and found nearly 70 percent of them in favor of the Immigration
Service.73 58 The legal critique of deportation policy evinced the preoccupations of legal realism during
the years between the two world wars: a rejection of categorical thinking and a desire to transform
differences of kind into differences of degree; the privileging of experience over formal logic; and,
consequently, a belief in the need for administrative discretion in the emerging regulatory state.74
According to the legal critics, deportation policy seemed to be law gone amok. They believed that the
problem perhaps came less from politics than from the administration of law based on rigid categories
without room for discretion or experience. Because the main thrust of the criticisms concerned
problems in procedure and enforcement, administrative law reform provided an alternative, less
contentious route for reforming deportation policy than the more overtly political tack taken by liberal
social welfare 59 and immigration advocates. The latter had few friends in Congress during the
Depression, when work was scarce and there were renewed calls for restriction and deportations. In
fact, the gaze of administrative law reformers was aimed not so much at Congress as it was toward the
judiciary, where they believed progress might be made in more clearly defining the limits of executive
power in matters of deportation.75 Yet embedded in the arguments for administrative law reform was a
powerful political critique. That critique challenged the eugenical premises of immigration policy, that
is, the idea that social undesirability derived from innate character deficiencies, which were perceived
to be rooted biologically in race, gender, or "bad blood." In a sense, administrative law reform was a
stalking horse for a broader cultural challenge to nativist politics, challenging, in particular, late
nineteenth- and early twentieth-century theories about social degeneracy and, more specifically, ideas
about gender roles, sexual morality, and crime. These normative standards of social desirability and
moral fitness for citizenship continued to define the qualitative standards for immigrant admission and
deportation in the Immigration Act of 1924, even as they were eclipsed by the law's new emphasis on
numerical restriction. In the late 1920s and 1930s legal critics challenged the application of these
qualitative standards in deportation cases. 60 The trend may be discerned from a reading of William Van
Vleck's treatise, Administrative Control of Aliens, published in 1932. Administrative Control followed
several lines of criticism that challenged traditional ideas about female dependency and sexual
morality. Van Vleck cited several cases in which the Immigration Service had ordered women deported
as LPC because they were without male support, even though the women were employed and selfsupporting. In one case, the service deported a woman whose husband became ill with tuberculosis
fourteen months after they arrived in the U.S., on grounds that she was dependent on her husbandeven though she was employed. Van Vleck cited other cases of single mothers supporting their children
or living with other relatives. He recognized that the family was a diverse institution that included
female-headed households and extended families.7
Immigration policies have always been racist—any new law will mask over the harms
of the other laws
Ngai 3 (Mae M., American historian and Lung Family Professor of Asian American Studies and Professor of History at Columbia University,
Law and History Review--Columbia Volume 21 / Issue 01 / Spring 2003, pp 69-1082003 DOI: http://dx.doi.org/10.2307/3595069 (About DOI),
Published online: 28 October 2011 JM)
Significantly, however, the privilege of pre-examination became restricted to European immigrants.
Asiatics did not qualify, because they were categorically excluded from immigration on grounds of racial
ineligibility.109 Mexicans were not initially excluded. After MacCormack formalized the pre-examination
procedure, INS El Paso district director Grover Wil-moth implemented the procedure for Mexican
hardship cases. But in 1938 he became stonewalled by the American consul in Juárez, William Blocker,
who argued that those applying for visas at Juárez "were of the laboring class, some of them actually on
relief." They should, he said, "unquestionably" be denied visas. In fact the INS Board of Special Inquiry
had ruled in Canadian pre-examination cases that receipt of relief during the Depression, when no work
was available, was not evidence of LPC. Blocker deliberately slowed the work of processing visas for
Mexican pre-examination cases to only a handful a month in order to frustrate Wilmoth's efforts to
grant relief to Mexican cases.110 88 I found no evidence that Wilmoth's higher-ups in the INS argued
with the State Department for a fair application of the policy; rather, the INS seems to have quickly
scuttled the program for Mexicans.111 It clarified that the "general pre-examination procedure is
limited to certain aliens--relatives of U.S. citizens--desiring to proceed to Canada." Later documents
conspicuously referred to the program as the "Canadian pre-examination procedure." Thus, initially,
Mexicans were excluded not explicitly but by a lack of propinquity, by their distance from Canada,
where physical departure and reentry were performed. In 1945 the INS explicitly restricted preexamination to "other than a citizen of Canada, Mexico, or any of the islands adjacent to the U.S." This
policy appeared to be race-neutral in that it applied to all countries with contiguous borders to the U.S.,
but in fact it was meant to categorically deny relief to Mexicans and Caribbean migrants. Because preexamination involved permission for temporary entry into Canada to acquire the U.S. visa, it was
irrelevant to Canadians, who did not need special permission to enter Canada.112 89 The racism of the
policy was profound, for it denied, a priori, that deportation could cause hardship for the families of
non-Europeans. In stressing family values, moreover, the policy recognized only one kind of family, the
intact nuclear family residing in the United States, and ignored transnational families. It failed to
recognize that many undocumented male migrants who came to the United States alone in fact
maintained family households in their home country and that migration remittance was another kind of
strategy for family subsistence. 90 For Europeans, however, the policy was clearly a boon. In fact, preexamination became an official and routine procedure for adjusting the status of Europeans who were
not legally present in the United States.113 By the early 1940s pre-examination was used to help adjust
the status of refugees from European fascism who had entered the United States in the 1930s by way of
tourist or visitor visas.114 Pre-examination continued with only two brief interruptions until the practice
was terminated in 1958. The data indicate that between 1935 and 1959 the INS processed nearly 58,000
pre-examination cases and granted approval in the vast majority of them.1
2ac v Ks
Agamben K—2ac
Illegal immigrants are deemed the homo sacer, disenfranchised and destroyed by the
sovereign
Sabo and Lee in 15 (Samantha Sabo, U of Arizona prof; Alison Elizabeth Lee, Universidad de las
Américas Puebla, Cholula, Mexico prof; “The spillover of US immigration policy on citizens and
permanent residents of Mexican descent: how internalizing “illegality” impacts public health in
the borderlands,” Frontiers in Public Health Volume 3 Article 155, published 6-11-15, accessed 714 15)//JRom
The territorial boundary of the sovereign state has always been fundamental to the creation of social
hierarchies. The intersections of ethnicity, race, class, and gender relegate people to social categories
some of whose members have rights of membership, including US citizens and permanent residents and
“Others” who do not possess such rights, such as unauthorized immigrants or “illegal aliens” (5, 6). In
the US–Mexico border region, the process of “Othering” categorizes Latino immigrants and migrants,
including their non-immigrant co-ethnics as “illegal aliens” (5, 7, 8). The symbolic violence (9, 10) or the
implicit way in which cultural and social domination is maintained on an unconscious level through
discriminatory practices generated by sexism, racism, and classism naturalizes the notion of “illegality.”
Through this process, certain groups are categorized as non-rights-bearing individuals (11, 12). The
erasure of legal personhood manifests as the inability to obtain work authorization and restricted
physical and social mobility, which reinforces immigrants’ forced invisibility, exclusion, and sense of
vulnerability to being deported (12, 13). The militarization of the border contributes to the construction
of such notions of “illegality” of Latino populations by inscribing difference “upon Mexican migrants”
themselves, as their distinctive spatialized (and racialized) status as “illegal aliens,” as Mexicans “out of
place” (5). In the context of the “War on Terror,” the regulatory policies associated with enforcement
conflate migrants with terrorists, drug smugglers, and human traffickers who represent a threat to
national security (14–16). The criminalization of immigration law erodes the legal protections that once
covered non-citizens, subjecting ever-growing numbers to deportation (17–19). Further, there is
growing evidence that border enforcement leads to maltreatment of persons that violates their civil and
human rights through the excessive use of force and verbal and physical abuse (4, 14, 20). Cumulative
exposure to institutional arrangements, ethno-racial hierarchies, and citizen/non-citizen distinctions
that systematically marginalize individuals create disproportionate levels of structural vulnerability (21).
Defined as “a positionality that imposes physical and emotional suffering on specific population groups
and individuals in patterned ways,” structural vulnerability reproduces inequality by casting certain
groups as less worthy of material and social protection (22). The subordinated status created through
“illegality” may be internalized by Latino immigrant and migrants and detrimental on a biopsychological
level (23–26). Farmworkers especially experience high levels of structural vulnerability due to their
subordinate status in the social hierarchy (27). As a result, farmworkers in general experience greater
prevalence of chronic disease risk factors and poorer mental health outcomes compared to nonfarmworker US Hispanic populations (28–31).
Illegal immigrants always life in a state of exception—they can never be killed but they
can never live, which destroys value to life
Schinkel 9 (William, Professor of Sociology at Rotterdam University, “‘Illegal Aliens’ and the State, or: Bare Bodies vs the Zombie”
http://www.researchgate.net/profile/Willem_Schinkel/publication/240711536_Illegal_Aliens_and_the_State_or_Bare_Bodies_vs_the_Zombie
/links/0deec534f86b127e8d000000.pdf 2009 JM)
Global inequality results from the plain but compelling fact that, in Bauman’s observation, ‘the tourists
travel because they want to; the vagabonds because they have no other bearable choice’ (Bauman,
1998: 93) The prevailing motive for migration is economic (Albrecht, 2002; Aronowitz, 2001). This,
however, should not be taken to mean that more elaborate welfare states attract migrants. There is no
empirical evidence for such a relationship, though it is nonetheless often used as a political ploy (Bloch
and Schuster, 2002). Once the vagabonds are on the move, Western European welfare states do not
seriously attempt to solve the problem of global economic distribution (nor could they in all likelihood),
but they respond by categorizing, turning the ‘economic immigrant’ into a new kind of ‘enemy of the
state’. There is a modern hors la loi declaration by means of which this kind of immigrant is reduced to
an ‘illegal’. ‘Economic refugees’ are not allowed to stay in the West, and if they do, they are ‘illegal’. In
their case, the immigrants’ actions are not the prime focus in the discourse of illegality. Rather, their
being is. The totality of the personhood of the irregular migrant is reduced to the instrumental label of
‘illegal alien’. Since the regular laws do not apply to him or her due to lack of citizenship or even
‘humanitarian status’, this alien can be incarcerated for an indefinite period of time. Behind the curtains
of normal social life, yet in part constitutive of the normality thereof, are waiting-rooms, inbetween
areas at airports, detention centres housing irregular migrants. Agamben’s (2002) comparison to the
concentration camp perhaps sounds perverse, yet a biopolitical differentiation between zoè (bare life)
and bios (the life form of a group) is already common practice. What Agamben draws attention to is the
comparison between the sovereign and the homo sacer, excluded from the community. As in Hobbes’s
Leviathan, the sovereign retains something of the ‘state of nature’ as he or she stands within and at the
same time above (and thus outside) the commonwealth which finds its fixation in him or her. Similarly,
the homo sacer is excluded from the law. Agamben thus draws attention to the possibility of creating a
‘camp’ in which the politicization of ‘bare life’ takes place, and in which bare life (zoè) is explicitly
separated from life in the community (bios). In the case of irregular migrants and their detention as
‘illegal aliens’, this is precisely what is at stake. The state tries to preserve a precarious balance
between inclusion and exclusion, between bios and zoè (Agamben, 2002: 14; cf. Bauman, 2002a: 225–
6). Irregular migrants are these ‘bare bodies’ imprisoned, of whom bone scans are taken to determine
their age if doubt exists. They are what Agamben understands by the Roman concept of homo sacer:
they cannot be sacrificed or killed (since they are never really ‘inside’ – ‘integrated’), but can be
treated as existing outside the law in ‘zones of exemption’ (since they are always already ‘external’ –
excluded) (cf. Rajaram and Grundy-Warr, 2004). Agamben has for instance mentioned those interned at
Guantanamo Bay as modern-day homines sacri (Agamben, 2005: 3–4). Agamben uses Foucault’s notion
of biopolitics to describe the reduction to ‘bare life’ of the homo sacer. Western politics is characterized
by an exception, an exclusion of ‘bare life’ that is at the same time an inclusion (cf. Schmitt, 1996). In
(bio)politics, life is included through its exclusion, and the sovereign retains the possibility of raising a
ban on life at any time. It is, Agamben says, the exclusion of bare life on which the polis rests (Agamben,
2002: 13). The holy life of the homo sacer fulfils a political function (Agamben, 2002: 113). The parallel
between the sovereign state and the homo sacer lies in their juxtaposition as opposite poles of the state
of exception. Both sovereign and homo sacer are partly inside, partly outside the law. One might argue
that incarcerated immigrants are not exempt from law because they are citizens somewhere and fall
under some countries’ law, but that is for many not the case, because the reason for prolonged
detention often lies in the fact that ‘sending countries’ are not prepared to issue a laissez passer,
acknowledging that the person in question is a citizen in their country (which may be due to lack of
registration, such as for instance in Somalia), thus effectively rendering detainees stateless and hence
lawless. The state and the irregular migrant furthermore coincide the moment ‘national security’ is used
as a legitimation of detention, as happened in the US after the ‘Patriot Act’, and specifically after
Attorney General Ashcroft in 2003 explicitly stated that ‘national security considerations clearly
constitute a reasonable foundation for the exercise of my discretion to deny release on bond’ (cited in
Welch and Schuster, 2005b: 336). Administrative detention of Palestinians in Israel takes place on
similar grounds, and can be ordered by military officials. Something similar happened in the UK after the
Terrorism Act (which broadens possibilities of detaining undocumented migrants), and in the
Netherlands where, since 2006, intelligence directives became sufficient reason for expulsion of
unwanted foreign persons. This bears close similarities to the ways in which western states have, on
numerous occasions in the 20th century, used security reasons to effectively bypass the law and thus
enter a state of exception (Agamben, 2005)
Cap K—2ac
Capitalism isn’t the root cause and no link—states accept immigrants because of
sovereignty; economic factors are insufficient
Joppke 9 (Christian, Professor at John Hopkins University, “Why Liberal States Accept Unwanted Immigration” World Politics, Vol. 50,
No. 2 (Jan., 1998), pp. 266-293 http://www.jstor.org/stable/25054038?origin=JSTOR-pdf 2009 JM)
Various authors have argued that global constraints force states to accept unwanted immigration. Saskia
Sassen has identified two such external constraints on state sovereignty: economic globalization and the
rise of an international human rights regime.10 The penetration of peripheral countries by multinational
corporations has created the push of an uprooted and mobile labor force seeking entry into the core
coun tries of the world system. In addition, the secondary labor market in the receiving countries
provides a powerful pull for immigrants. An emergent international human rights regime protects
migrants, independent of their nationality, limiting the discretion of states toward aliens and devaluing
national citizenship. Echoing the work of Jacobson, Sassen argues that the basis of state legitimacy has
undergone a shift "from an exclusive emphasis on the sovereignty of the people and right to self
determination ... to rights of individuals regardless of nationality."11 Taken together, economic and
political globalization "reduce[s] the au tonomy of the state in immigration policy making,"12 despite
the state's desperate attempts to renationalize this policy area under the sign of populist restrictionism.
The diagnosis of globally diminished sovereignty indicates that the West has partially created what it
seeks to contain international migration. But it does not answer the question as to why Western states
accept unwanted immigrants. First, the space-indifferent logic of globalization cannot explain why
some states, such as the immigrant receiving states of the oil-producing Middle East, are very efficient
at keeping out, or sending back, unwanted immigrants.13 Only liberal states are plagued by the
problem of unwanted immigration. Second, globalists operate with a hyperbolic notion of strong
sovereignty that never was. In terms of economic transactions, the world of the late nineteenth century
was no less global than the world one hundred years later.14 If the Bonn Republic allowed its guest
workers to stay, while Wilhelmine Germany practiced resolute rotation and mass expulsions, a state
weakened by economic globalization cannot be the explanation. The state always had to vindicate
itself within and against an inherently globalizing capitalism. Third, and related to this, the very
reference to economic factors is insufficient to explain why states accept immi grants, wanted or
unwanted. Economic globalization explains the mo bilization of potential immigrants in the sending
societies, as well as the interest of domestic employers in acquiring them, but not their actual
acceptance by the receiving states. Unless one subscribes to the ques tionable view that the state is
always a tool of capitalism, the task would be to identify the domestic processes by which, say,
expansionist em ployer interests cancel out the restrictionist interests of the public in specific times and
places. But then sovereignty would turn out to be in ternally, not externally, diminished. Fourth, the
international human rights regime is not so strong as to make states fear and tremble. Jack Donnelly
characterized it as a "relatively strong promotional regime," which rests on widely accepted norms and
values, but lacks implemen tation and enforcement powers.15 Devoid of hard legal powers, the in
ternational human rights regime consists of the soft moral power of discourse.16 This is better than
nothing. But globalists have been con tent with listing formal treaty and convention titles, avoiding the
"de tailed process-tracing" by which their soft power may become domestically effective.17 Perhaps
there would be little process to trace. For instance, the recent tightening of asylum law and policy across
Western states demonstrates that these states have been extraordinarily inventive in circumventing the
single strongest norm of the interna tional human rights regime, the non-refoulement obligation.18 In
the following, I propose an alternative explanation. The capacity of states to control immigration has
not diminished but increased as every person landing at Schipohl or Sidney airports without a valid
entry visa would painfully notice. But for domestic reasons, liberal states are kept from putting this
capacity to use. Not globally limited, but self-limited sovereignty explains why states accept unwanted
immi grants.
The cold war created the dichotomy of Capitalism versus Communism, of enemy
versus friend; this has shifted to discourse found within anti-immigration legislation
Mehan 97 (Hugh, University of California San Diego, “The Discourse of the Illegal Immigration Debate: a case study in the politics of
representation” http://das.sagepub.com/content/8/2/249.full.pdf 1997 JM)
The Cold War is often characterized as a terrifying period of time in history when the major nations,
indeed the entire world population. was held hostage to weapons of mass destruction. The nuclear
weapons policy of both the US and the Soviet Union. known as mutually assured destruction’, may have
been responsible for preventing nuclear war and containing the Soviet Union, portrayed as an
expansionist state hell-bent on destroying Capitalism and Democracy, but the discourse that invented
this policy had other, deeper consequences: it facilitated the construction of the Soviet tJnion as the
Enemy of the United States and the West. As Nathanson (1987) has argued, this was an artful practice.
The Soviet Union was not our ‘natural’ enemy. Indeed, during World War LI. the Soviet Union was the
ally of the West; the Soviets suffered more casualties than France. Britain and United States combined.
But, even as the victors in World War II celebrated, the Soviet Union was being constructed as the
enemy of the West. It is beyond the scope of this paper to detail the institutional work of the
construction of the Soviet Union as the enemy of the West. Suffice it to say that the development and
deployment of intercontinental ballistic missiles (!CBMs), forward’ military bases, Kennan’s long
telegram in which the cultural and historical imperatives of the Russian people (conveniently elided into
the Soviets) set in motion a process by which the Soviet Union was demonized. A reciprocal process
operated on the Soviet side. The placement of US air bases in Turkey ringing the Soviet Union was used
by Soviet military planners to justify the rapid expansion of their 1CHM force, which later would be
mounted with nuclear warheads. Indeed, both the Soviet Union and the United States needed each
other as enemies in order to perpetuate the arms race and sustain the Cold War. Cold War discourse
helped condition the people to seek enemies. The anti-immigrant discourse of Proposition 187—and its
anti-poor, anti- minority cousins found within The Bell Curve (Herrnstein & Murray, 1995). the Contract
for America (Gingrich. 1995). the English Only movement (Woolard. 1989), anti-immigrant sentiment in
Britain. France and Germany (Suárez-Orozco, 1995; Macias, 1996), and anti-affirmative action proposals
such as the California Civil Rights initiative—are shifting that search from enemies outside to enemies
within society. In all cases, the consequences are the same: a polarization of the population, and a
threat to civil society.
Foucault K—2ac
Perm-- The aff is a starting point to resolving the impacts; illegal immigrants are
always in a state of exception and represents the Other that the kritik talks about
Schinkel 9 (William, Professor of Sociology at Rotterdam University, “‘Illegal Aliens’ and the State, or: Bare Bodies vs the Zombie”
http://www.researchgate.net/profile/Willem_Schinkel/publication/240711536_Illegal_Aliens_and_the_State_or_Bare_Bodies_vs_the_Zombie
/links/0deec534f86b127e8d000000.pdf 2009 JM)
Hannah Arendt once said that refugees would determine the face of the 20th century. Today, the figure
of the ‘illegal immigrant’,1 a frontier-case that defies existing categories, is the best candidate to
determine the face of immigration issues in the 21st century. The ‘illegal immigrant’ is located at the
crossroads of debates about globalization, the state, justice, human rights and citizenship, to name a
few. The categorization and subsequent incarceration of ‘illegal immigrants’ in Western Europe is a
prime illustration of Giorgio Agamben’s thesis that ‘the camp’ is not a historical anomaly, but the
‘hidden matrix of our times’, ‘the nomos of the political space in which we still live’ (Agamben, 2002:
178). The ‘illegal immigrant’ marks a state of exception that runs parallel to the state of exception
embodied by the sovereign state. According to Agamben, these juxtaposed figures are two extremes of
a relation that is fundamental to the modern democratic state. In this article, the ‘illegal immigrant’ is
therefore analysed in his or her relation to the state, threatened in its sovereignty by the process of
globalization, of which the occurrence of irregular migration is one exponent. Current world migration is
comprised of second- or third-wave migrants joining their families, of refugees and of migrants from the
‘second’ or ‘third world’ seeking improvement of their life chances (Albrecht, 2002; Sayad, 2004). The
latter are born on the ‘dark side of the earth’ that is opposed to the centre of the current world
economy, where, as Fernand Braudel says, ‘the sunshine of history brings out the bright colours’
(Braudel, 1977: 89). There, the Occident lures. Its tentacles reach everywhere: the glamour of the Italian
TV shows in Tunisia, the BBC immaculacy in Tirana, the dream of an American way of life in Mexico . . .
‘The West’ is to many a world attractively different from the sending countries of irregular migration
(see Sayad, 2004). Apart from a steady flow of regular migration, a significant number of migrants
crosses Europe’s borders ‘irregularly’ (Albrecht, 2002; Engbersen et al., 2002b). Western European
states respond to the appearance of irregular migrants – which are in this process termed ‘illegal
migrants’. ‘Illegality’, a label attached to a state of being instead of a state of acting, 2 becomes the
basis of incarceration and forced repatriation. This article takes the practice of detaining ‘illegal
immigrants’ as a starting point for reflection on some central features of the current debate about
globalization. It specifically deals with two such features: (1) the declining relevance of space and (2) the
declining relevance of nation-states. I argue that both may be taking place, but they are being countered
by states adapting themselves to the condition of globalization. Nation-states declining in relevance, in
part due to the declining relevance of space, can reinvigorate themselves by exercising a more
repressive control over their territories, which is what is taking place in the case of (irregular) migration.
In the case of the incarceration of ‘illegal aliens’, this takes the form of a specific localization that can be
seen as a response to globalization. The creation of detention centres for irregular migrants turns local
spaces into sites that have a complex matrix. I approach the character of the space of the detention
centre by means of the notions of the camp as described by Agamben, of Foucault’s notion of
heterotopia and Augé’s idea of ‘non-places’. These concepts are utilized here in order to get a grasp of
the ambiguity in which localities such as these detention centres are shrouded. Only through the legal
ambiguity that marks its state of exception can the state gain increasing control over national space.
Speaking For Others—2ac
English is a second language for most immigrants. The rate of speaking and time
constraints involved in policy debate discourage immigrants from participating. Many
of them are unable to speak for themselves in debate. Our 1AC is an attempt to use
our structural advantages to give these people a voice.
Romo and Chavez 08 (Jaime J. Romo is a leader in the study and development of border pedagogy, an
emerging field in multicultural education. Claudia Chavez is a doctoral candidate in tile Educational
Leadership program at the University of San Diego. “Border Pedagogy: A Study of Preservice Teacher
Transformation” - 30 Jan 2008. Taylor & Francis. Accessed 7/17/15.
http://www.tandfonline.com/doi/pdf/10.1080/00131720608984885) dortiz
By the end of 2003, 25 percent of the students in California public schools were living in non-English
speaking homes (California Department of Education 2005). Despite research demonstrating that
students learn a second language best when they build academically upon their first language, California
bilingual education programs and teacher training were undermined in 1998 by Proposition 227 (Katz
and Kohl 2002). This type of legislation means that new teachers will not be equipped to understand the
majority of their students linguistically, culturally, or academically. Wittingly or unwittingly, schools act
as transmitters and preservers of the dominant culture, even in schools where the majority of students
are not European American .Schools are places that require conformity rather than places of
opportunity and access. Not surprisingly, the data from this study showed that monolingual preservice
teachers experienced frustration in classrooms with second-language learners because they did not
have the linguistic ability to understand the students. Of particular interest, however, were two bilingual
preservice teachers who carried the knowledge, dispositions, and skills of linguistic colonialism. One
wrote: 150 • The Educational Forum » Volume 70 • Winter2006 Downloaded by [] at 07:04 18 July 2015
Most teachers are likely to ask more complex questions at provide more praise, use a wider variety of
strategies, provide more opportunities to learn, and positively evaluate students whose culture and first
language are most like their own. Research Reports When I went over to help student B, I noticed that
she was writing in Spanish. This alarmed me. I told her in English, 'I think you need to write this in
English.' Her classmate then intruded and said, 'Mrs. lets us write in Spanish if we want. Student B
doesn't speak English well, so she can.' I was amazed that the instructor allowed the use of another
language in the writing journal, yet shocked that the other students did not take up the offer and,
instead, continued to write in English. As a substitute teacher, I have mistakenly imposed my biased
values and beliefs onto students. I have even said to the students, 'I do not want to hear anyone talking
in Spanish in this class, because I want you to learn English. If I hear anyone not trying, and talking to me
in Spanish, you will write a disciplinary essay.' It became clear that imposing my prejudices upon the
students is not the correct thing to do. Yet, it can be easy to do if one is not exposed to multiculturaloriented activities that provide the educator with cultural awareness and sensitivity to differences.
Statistics prove – Hispanics are less likely to be in high school, let alone policy debate
Romo and Chavez 08 (Jaime J. Romo is a leader in the study and development of border pedagogy, an
emerging field in multicultural education. Claudia Chavez is a doctoral candidate in tile Educational
Leadership program at the University of San Diego. “Border Pedagogy: A Study of Preservice Teacher
Transformation” - 30 Jan 2008. Taylor & Francis. Accessed 7/17/15.
http://www.tandfonline.com/doi/pdf/10.1080/00131720608984885) dortiz
Power and privilege are unequivocally intertwined with race in Ll.S, society. Power, inequitably
distributed, is represented by time, territory, and task. Who gets the time and attention? Who sets the
schedule, and whose schedule counts? Who dominates our lives in positions and organizations? Who's
an insider? who determines what's important for us to do, value, or compare to as a measure of our
worth? Power and privilege intersect race and gender, the balance of which falls into the hands of
European-American males. Teachers must understand this intersection to provide a more equitable
education for students outside the circle of power. One way to gain understanding is to examine the
school performance of students who do not have access to the power or privilege of the u.s. dominant
culture. The dropout rates across the nation for Hispanics/Latinos, African Americans, and America n
Indians are particularly high (Romo, Bradfield, and Serrano 2004) when compared to EuropeanAmerican students. In the United States, dropout rates for Latinos and American Indians hover between
40 and 50 percent, almost double that for African Americans and triple that for European Americans
(Children's Defense Fund 2005; Pew Hispanic Center 2005). The problem becomes even more dramatic
when the racial mix of teachers to students is examined .Though the teaching force is approximately 93
percent European American, people of color comprise more than 50 percent of the population in states
such as Arizona, Florida, California, and Texas (United States Census Bureau 2000). Unfortunately, most
teachers are likely to ask more complex questions of, provide more praise, use a wide r variety of
strategies, provide more opportunities to learn, and positively evaluate students whose culture and first
language are most like their own. In short, monocultural teachers have the most success with students
who are most like themselves (Stanton-Salazar 1997; Rom o, Brad field, and Serrano 2004).
VVV I didn’t cut this card, I just grabbed it from the Islamophobia file so that we’d be sure it include it
into the SFO border block – it’s not specific to Muslim oppression
Claiming that only the victims of oppression can understand it dooms identity politics
and reproduces exclusion
Bhambra 10—U Warwick
AND—Victoria Margree—School of Humanities, U Brighton (Identity Politics and the Need for a
‘Tomorrow’, http://www.academia.edu/471824/Identity_Politics_and_the_Need_for_a_Tomorrow_)
It is inexcusable to build analyses of historical experience around exclusions, exclusions that stipulate,
for instance, that only women can understand feminine experience, only Jews can understand¶ Jewish
suffering, only formerly colonial subjects can understand colonial experience (Said 1993: 35).¶ The idea
of a politics underpinned by solidarities based on “sameness” has a long history in the critical tradition.
Marx’s initial conceptualisation of the standpoint of the proletariat (albeit, significantly different from
those of subsequent developments of standpoint epistemology) has been used by feminist theorists as
well as those arguing for a post-colonial perspective in terms of the subaltern, and, more recently, for a
dalit standpoint (Hart- sock 1984, Guha 1983, Rege 1998, 2000). However, while using identity as the
basis of political action has been seen to be powerful (and effective), it has also increasingly become
seen as problematic. The exclusionary politics of movements such as black power, much radical and
lesbian feminism, and latterly, movements for ethnic purity and/or religious integrity, for example, have
yielded a deep concern with the programme of separation and isolationism that such movements are
often seen to be based upon. For many critics, more troubling still has been the usually accompanying
claim that only women can be feminists, or only black people can work against racism, or only dalits
against caste oppression, and so on.¶ A position which states that only those who have experienced an
injustice can understand and thus act effectively upon it seems to rest upon an essentialist theory of
identity which assumes that the possibility of knowledge about particular situations is restricted to one’s
possession of the relevant (seemingly) irreducible traits (being female, black, dalit, and so forth).
Arguably, one consequence of these separatist tendencies is that they perpetuate the individualist
fallacy that oppressive social relationships can be reformed by particular subjects without the broader
agreement of others who, together, constitute the social relations within which the injustices are
embedded. But even where the limitations of a purely exclusionary form of identity politics are
recognised, many theorists continue, nevertheless, to argue for a form of “strategic essentialism” (Fuss
1989, Spivak 2003) suggesting that where structures of inequality overlap with categories of identity,
then a politics based on those identities is both liberatory and necessary (Bramen 2002).
Wilderson K—2ac
Wilderson’s analysis doesn’t apply to the immigrant narrative- discrimination of the
immigrant is not the nonhuman/human dichotomy of slavery but the parasite/host
binary of governmentality
Inda ’06 [2000, JONATHAN XAVIER INDA earned a Ph.D. in Anthropology from the University of
California, Berkeley in 1997. His research areas include the politics of immigration, governmentality and
life politics, the critical study of race and medicine, the anthropology of globalization, and Latino
populations in the United States. “Foreign bodies: Migrants, parasites, and the pathological nation”]
Discourse 22.3
During the last three decades of the twentieth century, California underwent a major demographic
transformation, changing from overwhelmingly `white" and U.S.-born to increasingly Latino and foreignborn.1 An important consequence of this metamorphosis was that, during the 1990s, the state
witnessed a notable flourishing of nativism, producing a political and cultural climate that was distinctly
hostile toward immigrants, especially Mexicans. Much of this hostility centered on the economic
consequences of migration, such as the economic costs of these newcomers. One common nativist claim
was that California had been forced to spend so much money on the welfare, education, and healthcare
of undocumented immigrants that its coffers had been depleted, thus precipitating a decline in the
general "health" of the state. This nativism also tended to more broadly blame immigrants for many of
the socioeconomic problems of the U.S. - unemployment, crime, deteriorating schools, deficiencies in
social services, and so forth. The prevalent assumption here, then, was that immigrants posed a threat
to the general welfare of the nation. One of the most curious things about this nativism was its
propensity to attribute social illness-the maladies of the nation exclusively to external factors, to foreign
bodies. It is as if nativists implicitly endorsed the exogenous explanations of illness put forth by
nineteenth-century germ theory microbiologists, who suggested that disease originated not in the
essential composition of the body, but in an external, intruding pathogen to which the body had been
unwittingly exposed.2 So just as nineteenth-century scientists attributed illness to the pathogenic
incursions of foreign bodies, late-twentieth-century nativists ascribed the sicknesses of the nation to the
influx of foreign populations. The purpose of this paper is to explore this nativist tendency to attribute
the origins of social illness to invasive foreign bodies. More specifically, it examines how nativist rhetoric
implicitly figures the immigrant, the Mexican immigrant in particular, as a parasite intruding on the body
of the host nation, drawing nutrients from it, while providing nothing to its survival and even
threatening its well-being. We will thus see how this rhetoric operates through the construction of
asymmetrically opposed counterconcepts, that of the nation or host on one side, and the immigrant or
parasite on the other: the former is seen as primary, providing sustenance to the second, while the
latter appears as derived from the first, inferior to it, completely dependent on it for its being. The
political effects of this rhetoric have not been insignificant. It has legitimated numerous efforts to
exclude the Mexican immigrant from the body of the nation. The logic here is simple: if one expels the
pathogen, the illness will go away, the nation will be cured. I will suggest, however, that the nation
would not necessarily be cured if the immigrant were eliminated. It may very well be that the immigrant
is a parasite. But it is not necessarily the case that he/she is an inessential or harmful guest. And while
the nation is no doubt a host, it is not unambiguously or only so. In short, I will propose that the
relationship between the immigrant and the nation is more intricate that the nativist rhetoric of
immigration admits. Perhaps, in the end, all we will be left with is nothing but parasites.
Racialized Nativism The nativism of the 1990s in California is very much a racialized nativism.3 Despite
the fact that immigrants come from all over the world, including Europe, the populations most often
stigmatized as pathological are those that are physically different from the mainstream, "white"
population. More specifically, it is principally the Mexican immigrant who is construed as a foreign body
that threatens the integrity of the nation. This racialized nativism can thus be seen as a form of racism. It
is not a type of racism, however, that resorts to crude biologisms in which different racial groups are
seen to possess distinct natural endowments. Rather, it is one that emphasizes differences of cultural
heritage and their incommensurability. As Etienne Balibar has noted: It is a racism whose dominant
theme is not biological heredity but the insurmountability of cultural differences, a racism which, at first
sight, does not postulate the superiority of certain groups or peoples in relation to others but 'only' the
harmfulness of abolishing frontiers, the incompatibility of life-styles and traditions .... (21) The logic here
suggests that humanity is divided into a number of groups who bear distinct and incommensurable
cultures, and whose members are prone to enter into conflict with one another since it is human nature
to be xenophobic. In an ideal world, each culture would be spatially segregated from one another. Only
with such separation could any of them flourish. In theory, this view does not imply the ordering of
different cultures hierarchically. In fact, it appears to be quite the opposite, seemingly bent toward the
recognition of the variety and equality of cultures. The problem comes when a territory, let us say a
national territory, is inhabited by a multiplicity of cultures. In such a situation which is not unlike the one
found today in the U.S., where different cultural groups interact with one another on a daily basis-this
racist logic suggests that the only possible outcome can be cultural conflict as each culture struggles to
maintain its integrity. Different cultures simply cannot co-exist in the same spatial frames. A
consequence of such thinking is that those people who are the bearers of non-national cultures -the
alien, the foreigner, the stranger, the immigrant-are often construed as threats to the integrity of the
nation-to the nation "conceived as founded on a bounded and distinct community which mobilizes a
shared sense of belonging and loyalty predicated on a common language, cultural traditions, and
beliefs" (Stolcke 8). And since these populations are construed as threats, they are customarily relegated
to the margins of society, often blamed for the social and economic ills that befall the nation, and
exposed to a host of efforts to neutralize their difference. Racialized nativism, then, is not as egalitarian
as it makes itself out to be. Such nativism is actually quite hierarchical: it exalts the national while
denigrating the non-national. The curious thing, too, is that the non-national cultures this nativism
debases almost always belong to people whose visible characteristics distinguish them from the majority
("white") population. The politics of race thus gets played out in the terrain of culture. As such, the
threatening immigrant is not just any immigrant but the more culturally alien Mexican or "Third World"
immigrant. It is the Mexican immigrant who has been the object of anti-immigrant politics during the
1990s in California. It is he/she who has been blamed for the social ills of the state. Immigrants and
Parasites The racialized nativism of the 1990s in California was best embodied in Proposition 187, a
voter initiative that proposed to bar undocumented immigrants from receiving access to such public
services as education, welfare, and healthcare.4 The main assumption behind this proposition, also
tellingly known as the Save Our State initiative, was that undocumented immigrants were using public
services at such high rates that California's coffers were going dry. The state was thus increasingly
unable to take care of its citizens and legal residents: The people of California have suffered for too long
from the impact of illegal immigration, specifically in the areas of crime and from the costs of health,
education and welfare for illegal aliens. The time has come to stop rewarding illegal aliens for breaking
our laws. With California's budget deficits spiraling out of control, the taxpayers of this state must
conserve their scarce financial resources for the benefit of citizens and legal immigrants. (Citizens for
Legal Immigration N. pag.) The hope was that the denial of public benefits would reduce, if not
altogether stop, the flow of undocumented immigrants, as well as compel those illegally inside the state
to go back to their countries of origin: "Many of the hundreds of thousands of illegals who arrive every
year will be discouraged from coming. Many of the more than two million illegals already here will be
encouraged to leave" (Citizens for Legal Immigration N. pag.). The state would thus be relieved of a
significant burden on its monies, paving the way for a healthier and more affluent California: Prop 187
will save taxpayers billions of dollars .... California's public services (health, education, and welfare)
won't be depleted by funding illegals. With more money available for citizens and legal residents, the
quality of services will improve. (Citizens for Legal Immigration N. pag.) The proposition's goal, in short,
was to solve California's social, political, and economic problems. The key was getting rid of the state's
main pathology: the "illegal" immigrant. A number of commentators have suggested that this
construction of the undocumented immigrant as the main source of the California's problems implicitly
figures him/her as a parasite. For example, the anthropologist Marcelo M. Suarez-Orozco argues that
"the dominant imago in the public space now is that of unstoppable waves of parasitic 'aliens' set on
(ab)using our social services, refusing to `assimilate,' and adding to the crime and social pathologies of
the American urban landscape" (153); and Dorian Friedman, a writer for U.S. News & World Report,
suggests that "one of the most persistent myths about immigrants in America is that they are parasites
who live on welfare provided by hard-working U.S. taxpayers" (38). These commentators basically define
the parasite as a dependant entity that drains its host of vital nutrients and contributes nothing in
exchange. This is the standard view of the parasite: the parasite is that presence which profits in any
economy of loss and gain. Following these commentators, I argue that the nativist rhetoric of
Proposition 187, as well as the anti-immigrant rhetoric of the 1990s more generally, does indeed often
construe the immigrant as a parasitic element encased in the bosom of the nation. The tendency of this
rhetoric has been to attribute the illnesses of the nation to the pathogenic incursions of foreign bodies.
We can take a closer look at how this rhetoric works by focusing on a couple of representative opinion
pieces that appeared in southern California newspapers at the height of the Prop. 187 debate (during
the latter half of 1994). The word "parasite" does not expressly appear in these pieces (or often in
nativist rhetoric more generally). There is no doubt, however, that the nativist discourse of Prop. 187 is
implicitly organized around the parasitical relationship between the nation and the immigrant: the
undocumented migrant is often tacitly figured as a parasite, while the nation, or the state as a figure of
the nation, is figured as a host. This structure is nowhere more apparent than in the opinion pieces of
some of the main supporters of Proposition 187. For example, Ron Prince, chairman of the Save Our
State Committee and one of the drafters of the proposition, argues, in a Los Angeles Times piece, that
the problem of illegal immigration, given the burden immigrants place on public services such as
education, health, and welfare, "has now grown to the point where it threatens to literally bankrupt this
state" (B5). In terms of education, he suggests that "the deterioration in the quality of our education
system," for which he faults the immigrant, "threatens our economic competitiveness," a situation that
"cannot be reversed as long as more illegal aliens continue to pour into the system, demanding more
and more special programs" (135). The removal of undocumented children from public school thus
promises to 11 alleviate an inappropriate drain on scarce resources" and "move our public school
system to the level necessary for successful preparation of children in the 21st Century" (B5). With
respect to the issue of health care, Prince indicates that the health care system is also burdened with
increasing costs, much of it due to immigration, which poses a threat to the health of the general
population: Because the system is overloaded, the overall quality of care is being reduced to dangerous
levels. According to the Los Angeles County Department of Health, for example, there isn't enough
money for TB screening or follow-up care. This is the greater threat to public health-not the deportation
of illegals with communicable diseases. (B5) And in relation to welfare, Prince claims that
undocumented immigrants also abuse the system: The system is being drained of funds that are then
unavailable for those in need, those who are rightfully entitled to them. When food stamp allocations
are reduced next year, what do we say to Americans who don't have enough to eat? (115) Overall, then,
Prince construes the undocumented immigrant as posing a great problem for the well being of the
nation. The immigrant is a dangerous body that threatens the welfare of the population. The parasitical
logic here is clear enough: the immigrant sponges off the host nation and contributes nothing in return.
In this economy of loss and gain, the immigrant seemly always gains and the nation apparently always
loses. The parasitical structure that governs the nativist rhetoric of immigration is also clear in the
writings of those among the general populace that supported Prop. 187. For instance, Dennis Walker, in
an opinion piece published in The Orange County Register, maintains that "squandering our scarce tax
dollars to fund illegal aliens and their offspring has brought our state and country to the verge of
bankruptcy" (Metro 9). Moreover, he states that ... it is a sad history indeed that we have allowed illegal
aliens to have their children in this country at our expense, to be educated and fed at our expense, with
the end result being children who cannot speak English, who overflow our jails and prisons, and who
prey on law-abiding citizens. (Metro 9) So not only are immigrants unhealthy dependents over-utilizing
America's public resources, they are also criminals who prey on and victimize law-abiding American
citizens. This additional pathology makes immigrants even more parasitic, for the criminal is a parasite
par excellence, a figure that makes a living by preying on dutiful citizens and gives nothing back to
society.
Theories of biological racism misdiagnose roots of oppression- the problem is now a differentialist
racism rooted in the fear of ideological impurity as a threat to dominant narratives of culture
Balibar ’91 [1991 , Étienne Balibar (born 23 April 1942) is a French philosopher and a Distinguished
Professor of French & Italian and Comparative Literature at the University of California Irvine, Is There a
Neo-Racism?" Race, Nation, Class: Ambiguous Identities. By Etienne Balibar and Immanuel Wallerstein.
London and New York: Verso, 1991. 17-28.]
We can now turn our attention to 'neo-racism'. What seems to pose a problem here is not the fact of
racism, as I have already pointed out - practice being a fairly sure criterion (if we do not allow ourselves
to be deceived by the denials of racism which we meet among large sections of the political class in
particular, which only thereby betrays the complacency and blindness of that group) - but determining
to what extent the relative novelty of the language is expressing a new and lasting articulation of social
practices and collective representations, academic doctrines and political movements. In short, to use
Gramscian language, we have to determine whether something like a hegemony is developing here. The
functioning of the category of immigration as a substitute for the notion of race and a solvent of 'class
consciousness' provides us with a first clue. Quite clearly, we are not simply dealing with a camouflaging
operation, made necessary by the disrepute into which the term 'race' and its derivatives has fallen, nor
solely with a consequence of the transformations of French society. Collectivities of immigrant workers
have for many years suffered discrimination and xenophobic violence in which racist stereotyping has
played an essential role. The interwar period, another crisis era, saw the unleashing of campaigns in
France against 'foreigners', Jewish or otherwise, campaigns which extended beyond the activities of the
fascist movements and which found their logical culmination in the Vichy regime's contribution to the
Hitlerian enterprise, Why did we not at that period see the 'sociological' signifier definitively replace the
'biological' one as the key representation of hatred and fear of the other? Apart from the force of strictly
French traditions of anthropological myth, this was probably due, on the one hand, to the institutional
and ideological break which then existed between the perception of immigration (essentially European)
and colonial experience (on the one side, France 'was being invaded', on the other it 'was dominant')
and, on the other hand, because of the absence of a new model of articulation between states, peoples
and cultures on a world scale,4 The two reasons are indeed linked, The new racism is a racism of the era
of 'decolonization', of the reversal of population movements between the old colonies and the old
metropolises, and the division of humanity within a single political space, Ideologically, current racism,
which in France centres upon the immigration complex, fits into a framework of 'racism without races'
which is already widely developed in other countries, particularly the Anglo-Saxon ones, It is a racism
whose dominant theme is not biological heredity but the in surmountability of cultural differences, a
racism which, at first sight, does not postulate the superiority of certain groups or peoples in relation to
others but 'only' the harmfulness of abolishing frontiers, the incompatibility of life-styles and traditions;
in short, it is what P. A. Taguieff has rightly called a differentialist racism.s To emphasize the importance
of the question, we must first of all bring out the political consequences of this change. The first is a
destabilization of the defences of traditional anti-racism in so far as its argumentation finds itself
attacked from the rear, if not indeed turned against itself (what Taguieff excellently terms the ' turnabout effect' of differentialist racism). It is granted from the outset that races do not constitute isolable
biological units and that in reality there are no 'human races'. It may also be admitted that the
behaviour of individuals and their 'aptitudes' cannot be explained in terms of their blood or even their
genes, but are the result of their belonging to historical 'cultures'. Now anthropological culturalism,
which is entirely orientated towards the recognition of the diversity and equality of cultures - with only
the polyphonic ensemble constituting human civilization - and also their transhistorical permanence,
had provided the humanist and cosmopolitan anti-racism of the post-war period with most of its
arguments. Its value had been confirmed by the contribution it made to the struggle against the
hegemony of certain standardizing imperialisms and against the elimination of minority or dominated
civili7..ations - 'ethnocide'. Differentialist racism takes this argumentation at its word. One of the great
figures in anthropology, Claude Levi-Strauss, who not so long ago distinguished himself by
demonstrating that all civilizations are equally complex and necessary for the progression of human
thought, now in 'Race and Culture' finds himself enrolled, whether he likes it or not, in the service of the
idea that the 'mixing of cultures' and the suppression of 'cultural distances' would correspond to the
intellectual death of humanity and would perhaps even endanger the control mechanisms that ensure
its biological survivaL6 And this 'demonstration' is immediately related to the ' spontaneous' tendency of
human groups (in practice national groups, though the anthropological Significance of the political
category of nation is obviously rather dubious) to preserve their traditions, and thus their identity. What
we see here is that biological or genetic naturalism is not the only means of naturalizing human
behaviour and social affinities. At the cost of abandoning the hierarchical model (though the
abandonment is more apparent than real, as J we shall see), culture can also function like a nature, and
it can in particular function as a way of locking individuals and groups a priori into a genealogy, into a
determination that is immutable and intangible in origin. But this first turn-about effect gives rise to a
second, which turns matters about even more and is, for that, all the more effective: if insurmountable
cultural difference is our true 'natural milieu', the atmosphere indispensable to us if we are to breathe
the air of history, then the abolition of that difference will necessarily give rise to defensive reactions,
'interethnic' conflicts and a general rise in aggressiveness. Such reactions, we are told, are 'natural', but
they are also dangerous. By an astonishing volte-face, we here see the differentialist doctrines
themselves proposing to explain racism (and to ward it off). In fact, what we see is a general
displacement of the problematic. We now move from the theory of races or the struggle between the
races in r human history, whether based on biological or psychological principles, .( to a theory of 'race
relations' within society, which naturalizes not racial belonging but racist conduct. From the logical point
of view, differentialist racism is a meta-racism, or what we might call a 'secondposition' racism, which
presents itelf as having drawn the lessons from the conflict between racism and anti-racism, as a
politically operational theory of the causes of social aggression. If you want to avoid racism, you have to
avoid that 'abstract' anti-racism which fails to grasp the psychological and sociological laws of human
population movements; you have to respect the 'tolerance thresholds', maintain 'cultural distances' or,
in other words, in accordance with the
The affirmative’s analysis of discrimination upon culture through immigration is crucial to the
interrogation of the interactions between racism, government, and societal discourse
Balibar ’91 [1991 , Étienne Balibar (born 23 April 1942) is a French philosopher and a Distinguished
Professor of French & Italian and Comparative Literature at the University of California Irvine, Is There a
Neo-Racism?" Race, Nation, Class: Ambiguous Identities. By Etienne Balibar and Immanuel Wallerstein.
London and New York: Verso, 1991. 17-28.]
It is in fact conservative, since, on the pretext of protecting European culture and the European way of
life from 'Third Worldization', it utopianly closes off any path towards real development. But it
immediately reintroduces the old distinction between 'closed' and 'open', 'static' and 'enterprising',
'cold' and 'hot', 'gregarious' and 'individualistic' societies a distinction which, in its turn, brings into play
all the ambiguity of the notion of culture (this is particularly the case in French!). The difference
between cultures, considered as separate entities or separate symbolic structures (that is, 'culture' in
the sense of Kultur), refers on to cultural inequality within the 'European' space itself or, more precisely,
to 'culture' (in the sense of Bi/dung, with its distinction between the academic and the popular,
technical knowledge and folklore and so on) as a structure of inequalities tendentially reproduced in an
industrialized, formally educated society that is increasingly internationalized and open to the world.
The 'different' cultures are those which constitute obstacles, or which are established as obstacles (by
schools or the norms of international communication) to the acquisition of culture. And, conversely, the
'cultural handicaps' of the dominated classes are presented as practical equivalents of alien status, or as
ways of life particularly exposed to the destructive effects of mixing (that is, to the effects of the
material conditions in which this 'mixing' occurS). 11J This latent presence of the hierarchic theme today
finds its chief expression in the priority accorded to the individualistic model (just as, in the previous
period, openly inegalitarian racism, in order to postulate an essential fixity of racial types, had to
presuppose a differentialist anthropology, whether based on genetics or on VOikerpsychologie): the
cultures supposed implicitly superior are those which appreciate and promote 'individual' enterprise,
social and political individualism, as against those which inhibit these things. These are said to be the
cultures whose 'spirit of community' is constituted by individualism. 26 RACE, NATION, CLASS In this
way, we see how the return of the biological theme is permitted and with it the elaboration of new
variants of the biological 'myth' within the framework of a cultural racism. There are, as we know,
different national situations where these matters are concerned. The ethological and sociobiological
theoretical models (which are themselves in part competitors) are more influential in the Anglo-Saxon
countries, where they continue the traditions of Social Darwinism and eugenics while directly coinciding
at points with the political objectives of an aggressive neo-liberalism, I I Even these tendentially
biologistic ideologies, however, depend fundamentally upon the 'differentialist revolution'. What they
aim to explain is not the constitution of races, but the vital importance of cultural closures and traditions
for the accumulation of individual aptitudes, and, most importantly, the 'natural' bases of xenophobia
and social aggression. Aggression is a fictive essence which is invoked by all forms of neo-racism, and
which makes it possible in this instance to displace biologism one degree: there are of course no 'races',
there are only populations and cultures, but there are biological (and biophysical) causes and effects of
culture, and biological reactions to cultural difference (which could he said to constitute something like
the indelible trace of the 'animality' of man, still bound as ever to his extended 'family' and his
'territory'). Conversely, where pure culturalism seems dominant (as in France), we are seeing a
progressive drift towards the elaboration of discourses on biology and on culture as the external
regulation of 'living organisms', their reproduction, performance and health. Michel Foucault, among
others, foresaw this,I2 It may well be that the current variants of neo-racism are merely a transitional
ideological formation, which is destined to develop towards discourses and social technologies in which
the aspect of the historical recounting of genealogical myths (the play of substitutions between race,
people, culture and nation) will give way, to a greater or lesser degree, to the aspect of psychological
assessment of intellectual aptitudes and dispositions to 'normal' social life (or, conversely, to criminality
and deviance), and to 'optimal' reproduction (as much from the affective as the sanitary or eugenic
point of view), aptitUdes and dispositions which a battery of cognitive, sociopsychological and statistical
sciences would then undertake to measure, select and monitor, striking a balance between hereditary
and environmental factors ". In other words, that ideological formation would develop towards a 'postracism', I am all the more inclined to believe this since the internationalization of social relations and of
population movements within the framework of a system of nation-states will increasingly lead to a
rethinking of the notion of frontier and to a redistributing of its modes of application; this will accord it a
function of social prophylaxis and tie it in to more indi- IS THERE A 'NEO-RACISM'? 27 vidualized
statutes, while technological transformations will assign educational inequalities and intellectual
hierarchies an increasingly important role in the class struggle within the perspective of a generalized
techno-political selection of individuals. In the era of nationenterprises, the true 'mass era' is perhaps
upon us.
Case Internals—General
Inherency
Surveillance of immigration pervades every aspect of life and legal process- makes
indiscrimant government deportation possible
Kalhan ’14 [2014, Anil Kalhan Associate Professor of Law, Drexel University. A.B., Brown University;
M.P.P.M., Yale School of Management; J.D., Yale Law School “Article: IMMIGRATION SURVEILLANCE”
Maryland Law Review 74 Md. L. Rev. 1]
The New Surveillance Infrastructure of Mass Immigration Enforcement As these immigration
enforcement activities have widely proliferated, and the scale of the enforcement regime's "formidable
machinery" has grown and solidified, authorities have deployed a variety of new surveillance,
dataveillance, and tracking systems as key components of their enforcement strategies at every stage of
the migration process. n110 In this Part, I analyze the swift, extensive, and largely unconstrained
implementation of these technologies, which have given rise to what I term, adapting from Jack Balkin,
the immigration surveillance state: an approach to immigration governance "that features the
collection, collation, and analysis of information about populations ... to identify problems, to head off
potential threats, to govern populations, and to deliver valuable social services." n111 These systems
enable and routinize the collection, storage, aggregation, processing, and dissemination of detailed
personal information for immigration control and other purposes on an unprecedented scale and
facilitate the involvement of an escalating number of federal, state, local, private, and non-U.S. actors in
immigration control activities. [*28] First, I develop and articulate a framework within which to analyze
these developments, disaggregating "immigration enforcement" as a category to identify and analyze
the specific purposes for which new surveillance processes and systems have been implemented. These
purposes fall into four broad categories: identifying individuals, screening and authorizing individuals,
tracking and controlling mobility, and sharing information. Second, I highlight and assess the
deployment of new technologies - across all of the different enforcement initiatives discussed in Part I to control the territorial border, to monitor and regulate entry, exit, and travel by both noncitizens and
U.S. citizens, and to monitor and regulate noncitizens after entry into the United States. A. The
Functions and Practices of Immigration Surveillance As conceptualized by John Gilliom and Torin
Monahan, surveillance involves "the systematic monitoring, gathering, and analysis of information in
order to make decisions, minimize risk, sort populations, and exercise power." n112 In this Section, I
identify and analyze a series of specific surveillance practices and technologies that have become
increasingly important components of immigration enforcement strategies. The processes and
technologies that comprise the information infrastructure of immigration enforcement enable new
approaches to four distinct sets of surveillance activities: identification, screening and authorization,
mobility tracking and control, and information sharing. 1. Identification Perhaps as much as anything
else, the recent expansion of immigration enforcement has helped spark heightened attention to
identification - and in particular, the deployment of systems that seek to authenticate or verify the
identity of a particular individual ("Is this person who she says she is?") or to ascertain the identity of an
unknown individual ("Who is this person?" or "Who generated this biometric?"). n113 Identification
mechanisms, of course, have always been a central element of immigration regulation. While one's
[*29] identity ordinarily plays no role in most aspects of day-to-day life for either noncitizens or U.S.
citizens, rules governing admissibility or deportability necessarily require authorities to accurately
identify and determine the particular individuals who are eligible for admission or subject to
deportation. n114 Debates over the proper role and scope of identification systems for immigration
regulation purposes - including most prominently, in recent decades, the potential role of a mandatory,
standardized national ID card - have accordingly persisted and recurred over many generations. n115
Even as debates over the appropriate role of identification systems in immigration governance have
assumed renewed prominence in recent years - as they have, increasingly, in debates about governance
more generally - a set of de facto national identification systems already are taking shape. n116
Although current efforts to develop identification systems for immigration control purposes have origins
in initiatives taken during the 1990s, the aftermath of the 2001 terrorist attacks has hastened their
development. In its reports, the September 11 Commission emphasized the ability of the 2001 hijackers
to obtain various U.S. identification documents, in some cases by fraud, and the failure of immigration
and law enforcement officials who they had previously encountered to identify them and ascertain the
threats that they posed. Accordingly, the Commission recommended the establishment of a
comprehensive screening system that would collect, store, process, and share detailed personal
information, along with the development of more secure identification documents, in order to identify
individuals at the border and in a range of other areas of social life [*30] within the United States in
order to assess any risks that they might present. n117 Infused with this national security significance and substantial resources, as a result - immigration authorities have implemented a complex and farreaching set of identification systems. n118 Officials now collect large quantities of personal information
about both noncitizens and U.S. citizens in a variety of different contexts. In line with the September 11
Commission's recommendations - but building upon nascent initiatives already under way before the
2001 terrorist attacks - these systems collect not only biographic data but also biometric identifiers,
which are "unique markers that identify or verify the identity of people using intrinsic physical or
behavioral characteristics," such as fingerprints, facial recognition-ready digital photographs, iris scans,
DNA, palm prints, hand vein scans, or voice prints. n119 Based on the supposition that automated
biometric processes enable efficient and highly accurate identification of individuals, their use has
exploded since 2001, with immigration control serving as a leading edge of this trend. n120 Immigration
authorities store this biographic and biometric information in a growing system of interoperable
databases. At the core of this database network is DHS's Automated Biometric Identification System
("IDENT"), which INS originally developed to help the Border Patrol identify and track individuals
unlawfully crossing the U.S.-Mexico border. Today, IDENT is used for a much broader variety of
immigration and security-related functions and constitutes the main DHS-wide biographic and biometric
information system.n121 Growing at a rate of ten million new entries per year, IDENT holds records on
over 160 million subjects who [*31] have had any contact with DHS, other agencies, and even other
governments - including visa applicants at U.S. embassies and consulates, noncitizens traveling to and
from the United States, noncitizens applying for immigration benefits (including asylum), unauthorized
migrants apprehended at the border or at sea, suspected immigration law violators encountered or
arrested within the United States, and even U.S. citizens enrolled in DHS's registered traveler programs
or who have adopted children from abroad. Given its data collection and retention practices, IDENT also
contains fingerprint records for many naturalized U.S. citizens who were fingerprinted before
naturalizing and lawfully present noncitizens. n122 At the same time, IDENT does not include records of
noncitizens who have never had any contact with DHS, such as those who entered the United States
without inspection. n123 Finally, Congress and immigration authorities have required both noncitizen
and U.S. citizen travelers to possess secure identification and travel documents that can be linked to
these database records. n124 Noncitizens entering the United States under the Visa Waiver Program
must possess machine-readable passports that incorporate biometric identifiers, and the visas issued to
other noncitizen travelers by the State Department are now tamper-resistant, machine-readable
documents that include biometric identifiers linked to records in DHS's databases. Other identification,
travel, and entry documents issued to noncitizens, such as employment authorization documents and
permanent resident cards, have similar enhancements. n125 U.S. citizen travelers also are subject to
enhanced identification and travel document requirements. All U.S. citizens must possess a passport or
other approved travel document to enter the United States, and since 2007, all newly issued U.S.
passports have been so-called "e-passports." These machine-readable documents not only include
electronically printed digital photographs, but also are embedded with radio frequency identification
("RFID") chips containing biographic and biometric data about the document holder that can be read
wirelessly and [*32] linked to government databases. n126 Congress also has enacted legislation
providing that state driver's licenses and ID cards may be accepted for official purposes by federal
agencies only if the state satisfies minimum federal standards for eligibility criteria, application
procedures, document contents, and document security. n127 2. Analysis, Screening, and Authorization
Hand-in-hand with these identification systems, policymakers have implemented a variety of
authorization mechanisms to facilitate large-scale analysis and screening of migrants and travelers, once
they have been identified, in the many settings in which immigration control activities now take place
and require screening and authorization based on immigration status, citizenship status, or other
criteria. n128 With the widespread expansion of immigration enforcement activities, as discussed in Part
I, these settings are now manifold - ranging from U.S. consulates, airline check-in counters, and ports of
entry to local police stations, private workplaces, benefits agencies, universities, health insurers and
providers, and beyond. n129 The specific processes and criteria used in these various settings differ
depending on the particular context and immigration control activities involved. In many instances,
screening and authorization can involve seemingly straightforward determinations, such as whether
individuals are noncitizens or U.S. citizens or whether noncitizens are clearly inadmissible or deportable.
However, determinations of citizenship status, potential inadmissibility or deportability, employment
authorization, benefits eligibility, and other screening determinations involved in these various
immigration enforcement programs often can be more complex than they appear, requiring collection
and synthesis of information from multiple sources, interpretation, clarification, analysis, and the
exercise of discretion [*33] and judgment. n130 Moreover, in a growing number of situations, these
screening determinations are made using predictive, probabilistic risk assessments that may be
automated or semi-automated. n131 Screening and authorization systems perform two categories of
interrelated, mutually complementary "sorting" functions. n132 On the one hand, authorities rely upon
information in these systems to identify individuals who should be denied authorization in a particular
context or who are deemed to require closer attention and scrutiny. For example, actors involved in visa
processing, border inspection, and immigration policing screen the names of individuals whom they
encounter against information in the FBI's main criminal records database, the National Crime
Information Center ("NCIC") - a clearinghouse that includes information on criminal history and
outstanding warrants - to determine whether they may be inadmissible to enter the United States or
potentially deportable. n133 These officials also screen the names of these individuals against watchlists
generated from the FBI's Terrorist Screening Database ("TSDB"), a consolidated antiterrorism watchlist
containing over one million records on approximately 400,000 subjects identified and designated as
known or suspected terrorists. Individuals are periodically added and removed from the TSDB, and from
this master database the FBI generates and distributes several more specific lists, such as the No Fly List
and the Automatic Selectee List, to various immigration control, criminal law enforcement, and
transportation security authorities in the United States [*34] and other countries. n134 Increasingly,
employers subject to employer sanctions screen the names of their employees against the federal
government's E-Verify database system to determine whether they are authorized to work in the United
States. n135 The Affordable Care Act requires electronic verification of citizenship and lawful presence
for all individuals seeking to purchase health insurance through the government-established exchanges,
to obtain credits or subsidies for health insurance premiums, or to secure benefits under Medicaid or
the Children's Health Insurance Program ("CHIP"). n136 Other systems aggregate and analyze
information from a multiplicity of sources to furnish automated, probabilistic risk assessments to
officials in real time, with the goal of identifying unknown individuals whose names might not be listed
in immigration, criminal records, or antiterrorism databases, but whose information matches previously
identified profiles and who therefore are deemed to warrant closer scrutiny. For example, CBP's
Automated Targeting System ("ATS"), a "decision support tool" originally developed by the U.S. Customs
Service to screen cargo for illegal drugs and other contraband, aggregates detailed information about all
travelers entering and leaving the United States and assesses the risks presented by each of them in
order to identify and prioritize individuals deemed to warrant greater attention by CBP border
inspectors. n137 The ATS analyzes information collected from a wide variety of different sources,
including information collected from transportation carriers about travelers and information contained
in a broad array of other government databases. n138 [*35] For domestic flights, the Computer-Assisted
Passenger Prescreening System ("CAPPS") operated by the Transportation Security Administration
("TSA") performs a similar role. n139 On the other hand, these systems (and others) simultaneously are
intended to perform a second sorting function by facilitating more rapid, efficient screening and
authorization of individuals who are regarded as presenting comparatively low risks. This second
dimension of screening and authorization seeks to minimize inconvenience to these individuals but also
to permit officials to devote greater attention and resources to those deemed to present higher risks or
more complicated situations. n140 With massive numbers of people and volumes of goods entering the
United States, and DHS targeting large numbers of noncitizens for investigation and enforcement within
the country, officials regard ensuring efficient movement by those believed to present low risks as an
imperative - in order, for example, to prevent cross-border traffic from grinding to a halt, as it did in the
days immediately following the 2001 terrorist attacks. n141 Similar kinds of efficiency and risk
management concerns arise in post-entry enforcement programs. Accordingly, immigration-related
screening and authorization mechanisms increasingly have been designed with these efficiency-and risk
management-related objectives in mind. For example, DHS has actively encouraged participation in
several registered traveler programs - Global Entry, NEXUS, SENTRI, FAST, and TSA PreCheck - under
which it collects, maintains, and analyzes detailed information on individuals who have been
prescreened and approved as presenting low risks. Applicants to these programs must pay an
application fee and submit photographs, fingerprints, and detailed personal information - including
current and prior employment information, current and prior residential addresses, travel history,
criminal history, and immigration history - and must successfully pass an extensive background check,
which includes an in-person interview and a review of criminal history, customs, immigration,
agriculture, and national security databases. Whether or not applicants are approved, this information is
stored in CBP databases and biometric records are created for all applicants in IDENT. Once approved,
these individuals are deemed to require more limited scrutiny when entering the United States and are
[*36] eligible to enroll in TSA's PreCheck program, a registered traveler program for air travelers
believed to present limited risks to aviation security. n142 Similarly, at certain ports of entry, CBP has
deployed automated passport control systems that collect, analyze, and store biographic information,
photographs, and travel information from arriving individuals (currently, only U.S. and Canadian citizens
and individuals seeking to enter the United States under the Visa Waiver Program) using self-service
kiosks - or, in a new pilot program, using smartphone applications - rather than having CBP inspectors
manually collect and process that information using paper forms. Individuals must then present their
passport and a document generated by the automated system for review by CBP inspectors before they
may be authorized to enter the United States. As with its registered traveler programs, these new
automated systems are intended not only to facilitate more efficient entry of individuals deemed to
present low risks after their information has been analyzed and processed, but also to permit officials to
identify and sort individuals deemed to present higher risks, so that officials may devote greater
attention and scrutiny to those individuals. n143 3. Mobility Tracking and Control The proliferation of
settings in which immigration enforcement activities take place also has given rise to extensive
government monitoring and control over travel and mobility of both noncitizens and U.S. citizens. In the
wake of the 2001 attacks, travel itself has been deemed a source of potential danger to public safety: in
the words of the September 11 Commission, "Targeting travel is at least as powerful a weapon against
terrorists as targeting their money." n144 Accordingly, the Commission recommended that border
screening systems be integrated into a broader network of screening systems covering transportation
and other sensitive facilities. n145 Government authorities have invested heavily to develop and [*37]
upgrade systems that collect, analyze, store, and disseminate detailed information about individuals'
mobility and travel plans - both internationally and domestically, and including both noncitizens and U.S.
citizens. n146 These travel and mobility tracking systems have been developed within a broader context
in which the government's capacity to undertake day-to-day location tracking, using GPS systems,
cellular telephone location data, automated license plate readers, and other mechanisms, has also been
significantly enhanced. n147 In combination with authorization mechanisms that restrict travel for
certain individuals, these systems have enabled a comprehensive regime that accumulates and stores
detailed, permanent records about individual travel histories and patterns, and enables much individual
travel, both international and domestic, only to take place upon receipt of affirmative, advance
government permission. n148 Several information systems enable this regime of mass surveillance and
control of travel and mobility. As discussed below, CBP collects several categories of personal and travel
information from transportation carriers, computerized reservation systems, other government
agencies, and directly from individual travelers using a variety of mechanisms - beginning before
individuals commence their travel and extending through completion of the inspection process at the
port of entry. This information is stored within a series of database systems - but even when it does not
store information in its own systems on travel and mobility, DHS has required transportation carriers to
provide real time access to obtain this information directly from their reservation and departure control
systems.n149 In addition, the new e-passports have the technical capacity to include an archive of the
holder's travel history, although to date this feature has not been activated for U.S. passports. [*38] For
both noncitizens and U.S. citizens, individuals' personal and travel information is stored within ATS and
within TECS, a CBP-managed system that officials describe as "one of the largest, most important law
enforcement systems currently in use," a "multifaceted computing platform" that has evolved into a
"system of systems." n150 The system includes multiple databases that aggregate and store many
different categories of personal information, including: . Passenger and crew information collected and
transmitted by transportation carriers; . Border crossing information on close to one billion travelers
who have entered and departed the United States; . Records on enrolled participants in DHS's registered
traveler programs; . State Department records on U.S. citizens who have been issued passports and
other travel documents and on noncitizen visa applicants (including individuals who have been both
issued and denied visas); . USCIS records on over fifty-seven million applicants and petitioners for
immigration benefits, including both noncitizens and U.S. citizens; and . Information from other
government databases, such as those maintained by state motor vehicle departments, that facilitate
CBP's identification and admissibility determinations for noncitizens and U.S. citizens seeking to enter
the United States. CBP officials use TECS when determining whether noncitizens and U.S. citizens
seeking to enter the United States may be admitted. The system enables travelers' information to be
compared against antiterrorism watchlists generated by the TSDB, criminal history records in the NCIC,
risk assessments generated by the ATS, and immigration history records within TECS itself. n151 When
individuals enter the United States, records of those border crossings - including narrative reports
containing information that CBP inspectors deem relevant to their encounters with travelers - are
created and [*39] maintained in TECS's Border Crossing Information System ("BCIS"). In addition, for
noncitizens, this travel information also is copied and stored in TECS's Arrival and Departure Information
System ("ADIS"), which holds detailed biographic and travel records on over 280 million noncitizens who
have applied for entry, entered, or departed the United States and that are linked to the biometric
records in IDENT. n152 The primary purpose of ADIS is to monitor and identify temporary
nonimmigrants who may have remained in the United States beyond their periods of authorized stay by
matching records of arrival and departure. n153 However, the system also is accessed for other
immigration control, law enforcement, and national security purposes. In addition to information
collected from individual travelers and transportation carriers, ADIS also holds information collected
from colleges and universities on noncitizens admitted on student visas. n154 4. Information Sharing
and Interoperability Finally, especially in the aftermath of the 2001 terrorist attacks, information sharing
and interoperability of database systems have become high government priorities - particularly for
national security purposes, but increasingly for other purposes as well. n155Accordingly, both Congress
and the executive branch have directed the development of a variety of systems and processes to
disseminate and share information that might be relevant for security-related purposes among various
actors, including intelligence agencies, law enforcement, immigration authorities, international entities,
foreign governments, and other institutions, both public and private. n156 In [*40] some instances,
these efforts have involved the creation of new institutional forms altogether, such as the "fusion
centers" authorized by Congress to "co-locate" federal, state, and local officials together to work
collaboratively, along with private contractors, on the collection and analysis of intelligence concerning a
broad array of potential threats. n157 In many other instances, they have involved efforts to make
government databases interoperable and more widely accessible across agency lines. This emphasis on
interoperability in immigration governance has been particularly great as the federal institutions
involved in immigration regulation have become more fragmented. With the creation of the
Department of Homeland Security, most immigration policy functions were transferred from a single
agency within the Department of Justice (the INS) to multiple agencies within DHS (USCIS, CBP, and ICE)
- even as other immigration-related functions have remained vested within the Department of Justice,
Department of State, Department of Health and Human Services, and Department of Labor. Moreover,
as immigration control activities have proliferated in a variety of new state, local, and private
institutions, and the overall scale of enforcement has skyrocketed, the number of public and private
actors performing immigration enforcement functions has grown exponentially. In this context, the
post-2001 emphasis on information sharing for national security purposes has also given a boost to
initiatives to make the technological systems used for immigration control by different agencies
interoperable with each other and more widely accessible to different actors involved in immigration
enforcement. n158 In this context, these interoperability initiatives have not simply fashioned the
"connective tissue" that ties different federal immigration agencies together with each other. n159 They
also integrate those institutions with the administrative infrastructure of criminal justice, national
security and military defense, employment, transportation, and other federal, state, local, and private
institutions - thereby enabling immigration control and enforcement institutions to be used for a range
of other purposes. For example, IDENT is now interoperable with the FBI's Integrated Automated
Fingerprint Identification System ("IAFIS"), which integrates and stores fingerprints and other personal
information collected and submitted by federal, state, and local law enforcement agencies and other
contributors for over 100 million subjects and links those fingerprint records to criminal [*41] history
records in databases across the country. n160 Eventually, both of these systems will be made fully
interoperable with the Department of Defense's multimodal biometrics database system, Automated
Biometric Identification System ("ABIS") - thereby completing the development of what the Defense
Department refers to as the "biometrics triad." n161 Increasingly, immigration control systems also have
become integrated with private information systems, most notably the computerized reservation
systems and departure control systems of transportation carriers. B. Immigration Enforcement as
Immigration Surveillance These four sets of migration and mobility surveillance functions - identification,
screening and authorization, mobility tracking and control, and information sharing - play crucial but
underappreciated roles in immigration control processes across the entire spectrum of migration and
travel. In the growing number of contexts in which immigration control activities now take place,
enforcement actors engage in extensive collection, storage, analysis, and dissemination of personal
information, in order to identify individuals, screen them and authorize their activities, enable
monitoring and control over their travel, and share information with other actors who bear immigration
control responsibilities. Initially deployed for traditional immigration enforcement purposes, and
expanded largely in the name of security, these surveillance technologies and processes are qualitatively
remaking the nature of immigration governance, as a number of examples illustrate. 1. Border Control
Despite implementation challenges, Congress and DHS have placed new surveillance technologies at the
heart of border control strategies. n162 Physical barriers along the U.S.-Mexico border have been
supplemented with advanced lighting, motion sensors, remote cameras, and mobile surveillance
systems, and DHS has deployed a fleet of unmanned aerial [*42] vehicles to monitor coastal areas and
land borders. n163 To date, these drones primarily have been used to locate illegal border crossers and
individuals suspected of drug trafficking in remote areas using ultra high-resolution cameras, thermal
detection sensors, and other surveillance technologies. n164 However, drones also have been used to
patrol and monitor activities within Mexico itself. n165 In addition, government documents indicate that
DHS's drones are capable of intercepting wireless communications and may eventually incorporate facial
recognition technology linked to the agency's identification databases. n166 According to one official,
CBP's drones can "scan large swaths of land from 20,000 feet up in the air while still being able to zoom
in so close that footprints can be seen on the ground." n167 The DHS has plans both to expand its fleet
of drones and to increase their surveillance capabilities, and immigration reform proposals in Congress
would significantly build upon these recent expansions. n168 2. Overseas Visa Issuance and Refugee
Processing In 2001, Congress mandated the State Department to conduct biometric screening for all visa
applications, and by 2004, diplomatic posts worldwide were collecting fingerprints from all visa
applicants along with photographs, biographic information, background information, and other personal
details. n169 The State Department maintains records on all visa applications, including both issuances
and denials, in its Consular Consolidated Database ("CCD"), which holds biometric and biographic [*43]
records on over 100 million visa cases and grows at a rate of approximately 35,000 visa cases per day.
n170 The CCD also holds records on all applicants for U.S. passports and other U.S. citizen services.
Through CCD, consular officials run name checks on applicants against the Consular Lookout and
Support System ("CLASS") - a State Department database containing over twenty-six million records
collected from individual applicants and the databases of numerous other government agencies - in
order to identify individuals who may be ineligible for visa issuance or warrant special handling. n171
Now, CCD is also interoperable with DHS's IDENT and the FBI's IAFIS systems, which enables consular
officials to share visa information and run biometric checks against records in those databases, and with
ATS. n172 At some diplomatic posts, consular officials have access to ADIS, which enables them to
determine whether applicants have previously "overstayed" while in the United States. Additional
screening is conducted by DHS agents assigned to certain diplomatic posts, who have access to TECS and
other databases and who conduct more in-depth analysis and investigation of applicants as necessary.
With the deployment of new technologies that permit remote review of visa applications by personnel
in the United States, this additional layer of DHS review is being extended to all visa applications
worldwide. n173 Overseas processing of refugees also now involves an intensive process of information
collection, screening, and dissemination, including biographic and biometric background checks against
the databases of multiple government agencies. n174 In a recent pilot program, the State Department
collected and tested DNA from African refugees seeking to reunite with relatives in the United States in
order to detect fraudulent family reunification claims. As a result of that pilot program, the State
Department suspended its refugee family reunification program in certain parts of Africa, and when it
resumed that program in 2012, the State [*44] Department instituted rules that made DNA testing
mandatory to establish the legitimacy of certain claimed family relationships. n175 3. Entry, Exit, and
Travel Control CBP and TSA collect, analyze, store, and disseminate large quantities of detailed personal
information and travel history about both noncitizens and U.S. citizens arriving in or departing from the
United States by air or sea before they commence their travel. More recently, this same basic system
has been extended to domestic travel by air within the United States, thereby integrating the
surveillance and tracking mechanisms for both domestic and international travel. As a result of these
systems, much travel now only can take place after carriers receive affirmative, advance government
permission to permit individuals to travel - without travelers themselves necessarily being made fully
aware of the need for that permission - and is accompanied by collection, aggregation, and storage of
detailed personal information and travel histories for millions of noncitizens and U.S. citizens. The
information collected consists of several categories of overlapping but distinct data. First, noncitizen
visitors seeking to enter the United States by air or sea without visas, under the Visa Waiver Program,
must apply online for authorization before commencing their travel. These individuals are required to
submit biographic and travel information and to answer questions concerning their eligibility using the
Electronic System for Travel Authorization ("ESTA"), and carriers must verify compliance before
permitting them to board. ESTA shares this information with the National Counterterrorism Center and
automatically screens this information against antiterrorism, immigration control, and criminal law
enforcement databases, using ATS and other TECS databases, to determine whether these would-be
visitors present threats to aviation security or national security, are of interest to law enforcement, or
may be inadmissible for some other reason. Like visas, travel authorizations under ESTA, which are valid
for two years, do not establish or guarantee admissibility, and by the same token, individuals who have
been denied authorization are directed to U.S. diplomatic posts where consular official may issue visas
to those individuals or otherwise resolve the issue. n176 [*45] Second, as discussed above, Congress has
required air and sea carriers traveling to and from the United States to transmit all passenger and crew
manifest information to U.S. officials before departure, including both noncitizens' and U.S. citizens'
information. Non-U.S.-based air carriers must also submit this information for flights within or overflying
the United States. n177 This advance passenger information ("API") consists of basic personal
information collected from the traveler's passport and other travel documents but also includes
information collected from the carrier's own reservations and departure control systems, such as flight
or vessel details. API data also includes information collected directly from travelers at check-in,
including information on the individual's travel and U.S. destination. n178 Noncitizen travelers who
decline to provide this information may be inadmissible, and U.S. citizens who decline to provide this
information may be prohibited from traveling by the carrier or subjected to greater scrutiny upon arrival
in the United States. n179 Through its Advance Passenger Information System ("APIS"), CBP begins
receiving this information in batches as early as seventy-two hours prior to departure and analyzes and
compares this information in real time against information in the No Fly and Selectee watchlists
generated by the TSDB. When this review is complete, CBP either clears the carrier to issue a boarding
pass, instructs the carrier to conduct additional security screening, or directs the carrier not to issue a
boarding pass. n180 As discussed above, CBP also stores this information in the BCIS and ADIS [*46]
databases within TECS and compares it against other government databases to facilitate customs and
immigration clearance upon arrival. Third, Congress and DHS have required international air and sea
carriers to transmit passenger name record ("PNR") data to U.S. officials prior to departure to or from
the United States, and to give U.S. officials the ability to also access this information directly from
airlines' reservation and departure control systems. n181 PNR data overlaps with but is broader than API
data. Depending on the particular configuration of the carrier's reservations and departure control
systems, PNR data can include not only the traveler's biographic data, contact information, and basic
travel data, but also detailed information on the individual's travel, including the full itinerary for the
trip, transactional details about the reservation (including notations of all changes), payment and billing
details, frequent flier program information, baggage and seat information, information about travel
companions and other parts of the individual's trip, and comments by reservation systems or travel
agents on special issues or requests (such as special meal requests or particular medical needs). n182
CBP stores PNR data in ATS and, as discussed above, compares and analyzes this information against a
broad array of government databases in order to assess terrorism-related risks the traveler is deemed to
present. n183 Finally, under TSA's "Secure Flight" program, airlines must send TSA basic biographic
information, referred to as "Secure Flight Passenger Data" ("SFPD"), for all passengers traveling by air including international flights that arrive in, depart from, or overfly the United States and domestic
flights within the United States. While overlapping in some respects, the data collection process for
Secure Flight differs from CBP's API and PNR data collection processes in both timing and content. When
passengers make flight reservations, carriers must request basic biographic information from them as it
appears on an approved identification document. Then, seventy-two hours before the scheduled
departure time (or at the time of the reservation, for reservations made within seventy-two hours of
departure), the carrier must transmit this information to TSA via APIS along with other information in
the airline's reservation systems, including itinerary details, PNR record locator, and, if already available
to the airline, the traveler's [*47] passport information. n184 CBP (for international flights) or TSA (for
domestic flights) then compares and analyzes that information against the No Fly and Selectee Lists
generated by the TSDB. As with the API process, the airline is either cleared to issue a boarding pass,
instructed to conduct additional security screening, or directed not to issue a boarding pass. n185 When
flights and vessels arrive in the United States, CBP inspectors compare the information in the arriving
passengers' travel documents with the API data transmitted prior to departure and a series of other
government databases. Officials now also collect biometric data at almost all ports of entry from most
categories of noncitizens arriving in the United States, including virtually all individuals arriving by air or
sea and many individuals arriving by land. n186 As discussed above, records of all border crossings are
recorded in the BCIS database within TECS and, for noncitizens, within ADIS. 4. Post-Entry Enforcement
With both direct and indirect immigration enforcement activities increasingly taking place after
individuals have entered the United States, as discussed in Part I, surveillance processes and
technologies that enable collection, processing, storage, and dissemination of personal information have
also proliferated to facilitate those enforcement activities. n187 A number of examples illustrate these
developments: Monitoring and Registration. The NSEERS program initiated in the aftermath of the 2001
attacks, which is discussed above, required Arab and Muslim nonimmigrant men (1) to be fingerprinted
and photographed upon arrival in the United States (or to appear for registration if already in the United
States), (2) if they remained in the country longer than thirty days, to periodically report for in-person
interviews, and (3) to register again when departing the United States. n188 Biometric identifiers
collected from these individuals have been enrolled in IDENT, and other personal information and
narrative reports of NSEERS interviews - and of the "voluntary" interviews conducted by the FBI have
been stored in other government databases. n189 By the end of 2003, officials had collected
information on approximately 83,000 registrants, leading to the deportation of almost [*48] 14,000
individuals. n190 When the Obama Administration partially suspended NSEERS in 2011, it already had
been partially superseded by more general entry-exit tracking mechanisms, but the Administration did
not terminate the program altogether or foreclose its future use. Information collected under NSEERS
continues to be maintained and used by DHS - for example, by CBP's Automated Targeting System when
making its automated risk assessments. n191 Congress also has mandated more extensive ongoing
monitoring of international students and exchange visitors, requiring educational institutions to share
enrollment status and other personal information on these individuals and their dependents with DHS
and expanding the FBI's ability to obtain student records that otherwise would be protected from
disclosure. n192 To implement these mandates, DHS has developed the Student and Exchange Visitor
Information System ("SEVIS"), a database system through which schools must regularly report personal
information about international students - including their enrollment status, class attendance, changes
in majors, disciplinary action, or early graduation - and their dependents. n193 DHS officials use SEVIS
not only to monitor and identify international students who may have fallen out of lawful nonimmigrant
status but also to "identify patterns of criminal activity, including terrorism" and to "identify trends and
patterns to assist in planning and analyzing risks." n194 Immigration Policing. Interoperable databases
now play a powerful role in federal programs to enlist state and local law enforcement and corrections
officers in the identification of potentially deportable noncitizens by enabling automatic, routine, and
effectively mandatory [*49] immigration status determinations by these officers in the course of their
day-to-day responsibilities. Under DHS's "Secure Communities" program, fingerprints that are recorded
and transmitted to the FBI's IAFIS database (to obtain identification and criminal history information as
part of the typical post-arrest booking process) are now simultaneously transmitted to DHS for
comparison against records in IDENT. If the fingerprints match a record in IDENT - or even if there is no
match, but the individual has an unknown or non-U.S. place of birth - the system automatically flags the
record for further review. Based on enforcement priorities and other factors, ICE may decide to initiate
removal proceedings against the individual and issue a detainer requesting that the state or local agency
hold the individual for transfer of custody. A second automated immigration policing program enables
automatic identification of suspected immigration law violators by including automatic searches of civil
immigration records whenever state and local law enforcement officers search the NCIC to obtain
information on criminal history and outstanding warrants on individuals who they encounter. Both
programs have been implemented in a manner that makes participation effectively mandatory for states
and localities.n195 Immigration Benefits Applications. Just as the State Department does with
individuals applying for visas and refugee status from overseas, DHS, through USCIS, collects, stores,
analyzes, and disseminates significant amounts of personal information from individuals affirmatively
applying for parole, adjustment of status, asylum, employment authorization, lawful permanent resident
status, naturalization, and other immigration benefits within the United States. USCIS maintains and
tracks benefits applications using its Central Index System, which is able to access over fifty-seven
million records concerning the individuals who have applied for these immigration benefits in a variety
of different case management database systems. n196 Collection of fingerprints from immigration
benefits applicants has become routine, and serious consideration has been given to routine collection
of other biometric data, most notably DNA. n197 Officials conduct background checks against a variety
of other government databases. n198 USCIS has even used social networking platforms to conduct
surveillance on individuals seeking to naturalize. The agency has instructed its officials [*50] to "friend"
petitioners for naturalization and their beneficiaries on social networks in an apparent effort to detect
potential grounds upon which those petitions might be denied, such as the failure to meet the legal
standard for a genuine marriage. n199 Employment Eligibility Verification. The process by which
employers verify whether their new hires are eligible to work in the United States is undergoing a
significant transformation with the implementation of USCIS's E-Verify system. Under this pilot program,
which was first authorized and initiated during the 1990s, employers collect personal information from
the identification and work authorization documents that employees already must present under the
existing, paper-based verification process and submit that information through the online E-Verify
system. The system then attempts to match the individual's data with records contained in databases
maintained by DHS, the State Department, and the Social Security Administration ("SSA") in order to
determine whether the individual is authorized to work in the United States. If the system finds a match,
then the employer is informed that the individual is authorized to work. If there is no match, or there
are discrepancies between the information submitted and the database records, the system will issue a
"tentative non-confirmation" and direct the employer to refer the employee to either DHS or SSA to
resolve the issue. If the issue is not resolved within eight days, the employer will be informed that the
individual is not authorized to work. n200 While formally still a pilot program that remains voluntary for
most employers, E-Verify has grown extensively in the past ten years due to a series of federal, state,
and local mandates. In 2008, the Bush Administration mandated the system's use by federal contractors
and subcontractors, and the Obama Administration has maintained the requirement. n201 In addition,
while some states have sought to limit the system's use by employers within their jurisdictions, a
growing number of states and localities have mandated its use by various categories of employers. n202
Leading reform proposals would dramatically extend the reach of this system - not only by requiring all
employers to use E-Verify [*51] but also by enhancing the system to incorporate biometric identification
mechanisms and, potentially, by making the employment verification system interoperable with other
database systems. n203 Public Benefits, Services, and Licenses Eligibility Verification. Somewhat less
visibly than some of their other database systems, such as Secure Communities and E-Verify, federal
immigration authorities have developed the Systematic Alien Verification for Entitlements ("SAVE")
program, which enables federal, state, and local government agencies to verify immigration status
information for individuals applying for an ever-growing variety of public benefits and services. n204
Now administered and maintained by USCIS, SAVE was initially authorized by IRCA in 1986 to enable
officials to obtain immigration status information from INS in order to determine applicants' eligibility
for certain specified federally funded benefits programs. n205 Since then - with significant expansions in
the extent to which federal, state, and local authorities have restricted eligibility for services and
benefits on the basis of immigration and citizenship status - the ambit of the SAVE program has been
extended to encompass a broader range of federal, state, and local benefits, services, licenses, grants,
and other programs. n206 [*52] Over one thousand agencies now access SAVE, including federal, state,
and local benefits agencies and state drivers' licenses bureaus. SAVE also is used by agencies that
conduct federal security clearances and background investigations on individuals to verify the
immigration status of those individuals and their family members, cohabitants, and other affiliates, and
by military officials in the course of their recruitment activities. n207 To implement the large scale
eligibility verification requirements established by the Affordable Care Act, which are discussed above,
federal authorities have integrated SAVE with the systems created by the Department of Health and
Human Services to operate the exchanges established under the legislation. n208 SAVE does not itself
furnish any eligibility determinations but rather provides immigration status information from its
systems upon which the many federal, state, and local agencies requesting that information make those
determinations themselves using their own applicable criteria. Those agencies collect personal
information from applicants and other sources and transmit that information to SAVE using an online
system. As with E-Verify, the SAVE system then attempts to match the individual's data against a series
of government databases that contain over 100 million records, the majority of which are maintained by
agencies other than USCIS. If the SAVE system identifies a matching record, it provides the requesting
agency with information concerning the individual's immigration status. If it does not find a match, SAVE
instructs the agency to take additional steps, in consultation with USCIS officials, to verify the
individual's immigration status. n209 Recent enhancements to SAVE enable agencies to transmit
photographs for comparison against digital photographs in government databases. n210 Public Health
Surveillance. Public health officials have also implemented systems to conduct disease surveillance on
noncitizens who have entered the United States. Individuals long have been inadmissible on certain
public health-related grounds, and Congress has required individuals seeking admission to undergo
medical examinations in their countries of origin before being issued immigrant visas or being admitted
as refugees. Individuals seeking to enter as nonimmigrants can be required to undergo medical
examinations upon arrival at ports of entry. n211 To implement these [*53] inadmissibility provisions
and the statutory obligation to prevent communicable diseases from being introduced and transmitted
within the United States, the Centers for Disease Control and Prevention has established the Electronic
Disease Notification system, which collects and stores health information on these individuals and
transmits that health information to state and local public health authorities and refugee resettlement
authorities when noncitizens with certain specified health conditions enter their jurisdictions. n212
Detention and Removal. Finally, both ICE and the Department of Justice's Executive Office of
Immigration Review ("EOIR"), which supervises the immigration courts and the Board of Immigration
Appeals, maintain systems to collect, store, analyze, and disseminate information about noncitizens who
have been investigated or charged as inadmissible or deportable, booked and placed in removal
proceedings, held in detention or alternative forms of custody, and removed from the United States.
ICE's Enforcement Integrated Database ("EID"), which officials access using a system referred to as
ENFORCE, stores this information in several separate modules. ENFORCE also enables ICE officials to
access information in other database systems, such as the FBI's NCIC system and DHS's IDENT database.
n213 A component in ENFORCE also is used to generate automated risk assessments for individuals
when they are booked, which ICE uses to determine whether and under what kinds of circumstances
individuals should be detained. n214 EOIR maintains case management information in its Case Access
System for EOIR ("CASE"). n215 These systems have facilitated the significant increases seen in recent
years in the number of individuals detained and removed. For example, enrollment in IDENT has
enabled expanded use of reinstatement of removal. n216 [*54]
Overly intrusive surveillance has become hidden and automatized as a implicit method of state
control, advocacy building, and deportation
Kalhan ’14 [2014, Anil Kalhan Associate Professor of Law, Drexel University. A.B., Brown University;
M.P.P.M., Yale School of Management; J.D., Yale Law School “Article: IMMIGRATION SURVEILLANCE”
Maryland Law Review 74 Md. L. Rev. 1]
I.
IV. The Consequences of Immigration Surveillance What happens when technology,
surveillance, and information are placed at the heart of immigration governance? In this
Part, I identify and discuss several consequences of this transformation, analyzing
immigration surveillance within the context of a broader set of developments, extending
beyond immigration regulation itself, concerning the role of technology, surveillance, and
information in contemporary governance. First, I highlight the ways in which immigration
surveillance has deterritorialized the national border for migration and mobility purposes,
which complicates and blurs lines of oversight and accountability by dramatically expanding
both the actors conducting immigration control activities and the locations where those
activities take place. Second, I identify and analyze two sets of concerns arising from these
developments that highlight the need for stronger accountability mechanisms: the risks and
fallibilities arising from automation and the risks that immigration surveillance systems will
later be deployed for secondary purposes not contemplated at the time of implementation.
Across all of the many domains in which immigration surveillance takes place, these risks
increasingly impose the costs of immigration control upon U.S. citizens and noncitizens with
lawful status in the United States. A. Deterritorializing the Migration Border Borders, it is
routinely observed, are malleable constructions rather than fixed realities: "less than
definite, permeable, and subject to shifts and changes." n234 As such, to speak of "the
border" in the context of immigration governance can be misleading and insufficiently
nuanced. While territorial borders have long played a constitutive role in defining nationstate sovereignty under international law, like other kinds of boundaries they can be
relevant and important for some purposes but not for others, and in varying degrees. n235
In some contexts, nonterritorial [*59] demarcations are more consequential than territorial
borders. The significance and meanings given to both territorial and nonterritorial
boundaries are legally, politically, socially, economically, and culturally defined, and can
evolve and shift over time. n236 The deployment of new technologies and practices of
immigration surveillance has accelerated a long-term process of decoupling the territorial
border of the United States from what I term its migration border: the set of boundary
points at which nation-states authorize individuals to enter or be admitted, prevent or allow
their entry or admission, or subject them to possible expulsion. n237 Of course, migration
borders have never been fully coextensive with territorial borders as a literal matter.
Indeed, a longstanding cluster of legal fictions treats individuals as being "at the border" or
seeking "entry" when they have been paroled into the United States or arrive at boundary
points that, strictly speaking, are well within the country's territorial limits. n238 Like other
nation-states, the United States also has long acted extraterritorially to prevent individuals
from entering - for example, by interdicting and turning away would-be migrants while they
are still traveling to the United States through international waters. n239 Migration
boundary points also typically exist within broader zones that often are treated as roughly
equivalent, in varying degrees, to the actual boundary points themselves. n240
Nevertheless, a powerful and commonplace narrative assumes that migration borders are
and should be coextensive with territorial borders - as reflected in the very fact that the
doctrinal principles that comprise entry-related legal fictions are understood as [*60]
"fictions" in the first place rather than simply as doctrinal nuances or complexities. However,
in combination with immense expansions of immigration enforcement activities,
immigration surveillance has hastened the detachment of migration borders from territorial
borders. On the one hand, the changes in rules and practices for use of drones along the
U.S.-Mexico border, visa issuance, the Visa Waiver Program, preinspection and screening of
travelers outside the United States, and pre-departure collection and analysis of travelers'
data from international carriers all seek - self-consciously and by design - to push the
migration border extraterritorially outward. n241 This objective long predates the 2001
terrorist attacks. As volumes of cross-border traffic into the United States became
considerably larger, officials began to implement extraterritorial screening mechanisms as a
means of facilitating more efficient immigration and customs screening when individuals
and goods arrived in the United States. n242 Since the late 1990s, however, and especially
since the 2001 attacks, the expansion of extraterritorial migration and mobility screening
mechanisms increasingly has been justified with reference to antiterrorism, national
security, and public safety-related concerns - as seen in Congress's explicit 2004 finding that
"the further away from the borders of the United States that screening occurs, the more
security benefits the United States will gain." n243 DHS understands its own mission in
precisely these terms: to "push[] our operational borders outward so that our physical
borders become our last line of defense and not our first." n244 On the other hand, the
expansion of both direct and indirect post-entry enforcement simultaneously draws the
migration border inward, self-consciously constructing virtual, domestic border checkpoints
throughout the country's interior by identifying "events that are necessary for life in a
modern society" where it may be possible to "exercise control" over individuals in a manner
analogous to the control exercised at the territorial border. n245 The particular approaches
of these post-entry enforcement [*61] initiatives vary considerably, and each one involves a
distinct set of public and private actors - including law enforcement and criminal justice
officials, but also welfare agencies, public hospitals and health agencies, motor vehicle
licensing agencies, private employers, private landlords, and potentially others. Collectively,
however, these initiatives establish a kind of immigration panopticism, which eliminates
zones in society where immigration status is invisible and irrelevant and puts this large array
of public and private actors in the position of identifying individuals and determining
immigration status; collecting, analyzing, and storing personal information; screening and
identifying potential immigration law violators; and sharing information with federal
immigration authorities. n246 While these initiatives increase the likelihood of placing many
individuals in removal proceedings, proponents place even greater emphasis on their ability
to trigger a process they characterize as "self-deportation," which disciplines potentially
deportable noncitizens into internalizing the perception that their immigration status is
constantly being monitored and, ultimately, into both revealing their status in a range of
day-to-day settings and conforming to social expectations that they depart the country.
n247 Far from being a clear, fixed line that is coextensive with the territorial border, the
picture of the migration border that emerges is a worldwide, pointillist archipelago of
layered boundary points, both fixed and mobile. New immigration surveillance technologies
are what make this reconfiguration of the migration border possible. To police this
deterritorialized boundary, federal immigration authorities cooperate and coordinate with
an enormous number of public and private actors - both within and outside the United
States - to collect, analyze, store, and share biometrics and other personal information, to
identify individuals, to monitor and control mobility, and in some instances to detain
individuals or otherwise restrain their liberty. Interoperable database systems help to create
and make possible these broader assemblages, which "integrate and coordinate otherwise
discrete surveillance regimes" in both "temporary configurations [and] in more stable
structures" - thereby connecting and integrating the vast array of actors and institutions
involved in immigration governance. n248 [*62] This outward and inward projection of the
U.S. migration border creates significant challenges to ensure transparency and
accountability - particularly as it has been accompanied by the outward and inward
projection of the federal government's policy objectives, priorities, and influence into a
variety of other lawmaking and governance settings. As the United States increasingly has
emphasized the collection, analysis, management, and dissemination of information about
migrants and travelers, it has actively cultivated the development of laws, institutions, and
processes - both internationally and domestically - that are conducive to those immigration
surveillance objectives. n249 Internationally, for example, the United States has strongly
advocated within international organizations for the implementation of interoperable global
standards for machine-readable travel documents, e-passports, and computerized
reservations system data formats that facilitate their use in the new information collection
and analysis systems that the United States has instituted. n250 The expanded collection,
storage, and dissemination of API and PNR data by the United States has led to a series of
clashes with the European Union - whose data protection regime places greater limits on
collection and retention of this data than U.S. law - and ultimately to a series of E.U.-U.S.
agreements that acquiesce to U.S. immigration surveillance practices. n251 Congress also
has required countries participating in the Visa Waiver Program to enter into a series of
bilateral agreements to share information on individuals traveling to the United States,
including antiterrorism watchlists, criminal history records, and lost and stolen passport
information. n252 Domestically, the implementation of surveillance technologies in
connection with the federal expansion of post-entry enforcement has given rise to a similar
dynamic vis-a-vis states and localities. n253 For example, even as the Obama Administration
has proactively sought to restrain states from unilaterally undertaking some immigration
enforcement activities, [*63] such as Arizona's SB 1070, it simultaneously has implemented
automated immigration policing programs, such as Secure Communities, that effectively
mandate state and local law enforcement collection and information sharing for
immigration control purposes - thereby precluding states and localities from making
affirmative, calibrated, and negotiated choices about the level of immigration policing
assistance they wish to furnish, which they previously had greater latitude to make. As with
immigration surveillance initiatives that operate extraterritorially, the technological
architecture of these programs shapes the institutional relationships among different actors
involved in immigration governance, effecting end runs around affirmative state and local
choices and complicating accountability. n254 To speak of the migration border's
detachment from the territorial border is not to suggest that the territorial border itself has
lost significance for migration and mobility purposes. To the contrary, even as the expansion
of immigration surveillance has broadened the array of boundary points that comprise the
migration border, both extraterritorially and domestically, the territorial border itself
remains a site of ever more aggressive immigration surveillance and control. As the massive
border fortification investments perenially contemplated by leading immigration reform
proposals indicate, demonstrating "toughness" in policing the territorial border continues to
carry tremendous expressive and symbolic value for elected officials, quite apart from
whether those measures actually succeed in controlling migration. n255 Still, an enormous
and growing piece of the immigration control action is now found elsewhere. It is not simply
the case that the migration border of the United States is "everywhere," although
increasingly it is. n256 In addition, with the implementation of immigrationsurveillance
technologies - and the resulting projection of influence by the United States over lawmaking
and governance, both internationally and domestically - a vast number of actors now
contribute to the policing of that migration border at an effectively limitless number of
boundary points around the world, which creates significant challenges in promoting
transparency, consistency, and accountability among the many actors in that sprawling
transnational network. n257 [*64] B. Automating the Migration Border With the
proliferation of interoperable information systems, monitoring and controlling this
deterritorialized migration border has become increasingly automated and semi-automated.
n258 By itself, automation is by no means inherently or necessarily harmful. n259 To the
contrary, at least conceptually automation can help to make government processes more
efficient, effective, or fair. For example, the use of machine-readable travel documents and
the pre-departure collection of passenger data from international carriers helps to make
immigration and customs screening processes upon arrival in the United States more
efficient - which, as discussed above, was the original reason why U.S. officials began to
collect that information from carriers in the first place. Defenders of CBP's use of
antiterrorism screening mechanisms such as the No Fly List, Selectee List, and ATS
emphasize the role of these mechanisms in permitting agency officials to devote scarce
resources to more intensive screening of travelers deemed to present the greatest risks.
n260 In some instances, these automated and semi-automated systems seek to respond
directly to concerns arising under their non-automated predecessors. For example,
proponents of E-Verify argue that automated employment eligibility verification may reduce
opportunities for unlawful discrimination that exist under the existing non-automated
employment verification regime. n261 Similarly, proponents of automated immigration
policing programs such as Secure Communities argue that by seeking to eliminate
discretionary determinations by state and local police concerning whose immigration status
should be investigated and verified, these programs, at least theoretically, reduce the
incidence of errors based on police officers' lack of knowledge of immigration law or
invidious exercises of discretion on the basis of race, ethnicity, or national origin. n262 [*65]
At the same time, automation and semi-automation present significant risks and concerns
of their own. Studies indicate that decisionmaking when using computerized systems can be
distorted by automation complacency and automation bias, two related phenomena in
which individuals place too much trust in the proper functioning of automated systems even
when they suspect error or malfunction. When these phenomena are at work, individuals
may regard these systems as resistant to error, fail to sufficiently monitor their operation, or
overtrust the answers, recommendations, and cues they provide. n263 These risks may be
exacerbated with large, complex networks of interoperable information systems like those
used for immigration surveillance, since their proper utilization and maintenance present
distinct challenges. As Erin Murphy describes, government databases are the "ultimate
collaborative projects," often involving multiple systems and distributed collection,
maintenance, access, analysis, and exchange of information among many different actors
over extended periods of time. n264 In this context, inadequacies in the quality, accuracy,
and relevance of information contained in the database systems used for immigration
surveillance raise several distinct types of concerns. First, large database systems invariably
contain inaccurate, outdated, or irrelevant records, particularly as they grow larger and
contain greater quantities of information. Fair information principles emphasize that
personal data in government databases should be accurate, complete, and current. n265
For decades, however, "immigration authorities have been criticized for maintaining
unreliable and inaccurate records and inadequately managing their information systems."
n266 While some improvements have been made, these concerns have persisted. For
example, E-Verify regularly issues tentative non-confirmation notices for a significant
number of individuals, including both noncitizens and U.S. citizens, who in fact are lawfully
eligible to work. n267 Similarly, a [*66] GAO analysis of Secure Communities found that ICE
had no record of the criminal arrest charges for more than half of all individuals removed
under the program during 2011 and the first half of 2012; other evidence indicates that a
significant number of individuals are detained and placed into removal proceedings as a
result of the program who ultimately prove not to be deportable. n268 More recently, over
one million immigrant families have experienced difficulties applying for health care
coverage and insurance subsidies under the Affordable Care Act due to problems with
verification of their immigration or citizenship status. n269 Second, when database systems
are made interoperable and accessible to large numbers of actors, erroneous information
can propagate widely and quickly and can become even more difficult to correct. n270
Outside of immigration agencies, other databases that are relied upon for immigration
surveillance purposes suffer from similar data quality problems. For example, despite some
recent improvements, criminal history records databases often remain inaccurate,
inconsistent across states, and incomplete. n271 Improper deprivations of liberty based on
inaccurate information in these database records remain common. n272 Observers also
have documented large numbers of concededly innocent individuals whose names have
been added to watchlists generated by the TSDB, such as the No Fly List and Selectee List,
and inadequate mechanisms exist to remove names of innocent individuals from those lists.
n273 Third, contrary to the connotations suggested by the term "database," the use of these
systems does not simply involve the retrieval and reliance [*67] of "factual" information,
whether accurate or otherwise. To the contrary, as discussed above, much of the
information generated by these systems and relied upon by enforcement actors necessarily
incorporates analysis, risk assessment, and the exercise of subjective and evaluative human
judgments at some stage. Those judgments may have been made directly, such as when
individuals are identified for inclusion in the No Fly List, Selectee List, or other watchlists, or
indirectly, as with the automated risk assessments made by systems like the ATS and CAPPS,
whose evaluations and predictions are generated using algorithms that invariably embed
human judgments, assumptions, fallibilities, and potential biases. n274 However, in either
case, the nature of the data generated and distributed by government database systems coupled with the opaque nature of the criteria for inclusion - can mask the subjective and
evaluative judgments that underlie that information, making it seem more objectively
factual to enforcement actors relying upon it than may be warranted. n275 Finally, the
biometric identification technologies upon which immigration surveillance relies are not
foolproof. For example, although automated fingerprint identification systems can be
extremely accurate in determining identity, they nevertheless can yield inaccurate results,
owing to technological limitations, the quality of fingerprint recording processes, and even
the particular demographic groups in which the subjects are members. n276 Advanced
multimodal biometric identification systems that are currently under development have
limitations and fallibilities of their own. n277 All of these risks, limitations, and concerns
might be more tolerable under circumstances in which database screening processes were
merely one step in a fuller investigative process. Indeed, even if it were hypothetically
possible for database systems and biometric technologies to be perfectly accurate,
consistent, and complete, well-functioning interoperability processes would still depend on
competent and effective "human and institutional layers." n278 Officials emphasize that
ATS, for example, "does not replace human decision making" but rather is simply a "decision
support tool" that "assists the border authorities in targeting [*68] scarce inspection
resources." n279 Similarly, when E-Verify generates a tentative non-confirmation for a
would-be employee or ESTA denies a would-be visitor authorization to travel without a visa,
those individuals are given opportunities to resolve the issue in person before any final
denial of authorization is issued. Over the long term, improvements in data quality and
integrity might help to reduce the percentage of improper deprivations generated by these
systems - as already seen to some extent, for example, with E-Verify. n280 The nature of
immigration surveillance, however, limits the space for these human and institutional layers
to function carefully and effectively - and given the enormous scale of immigration
surveillance activities, even small error rates can result in very large numbers of individuals
facing improper deprivations that are often left unremedied. While intended to eliminate
improper discrimination, immigration surveillance mechanisms sometimes merely shift the
point at which such discrimination takes place. With E-Verify, for example, employers often
decline to hire individuals who receive tentative non-confirmations without properly
notifying them - depriving these workers of employment without any opportunity to resolve
errors in database records. n281 Similarly, even as Secure Communities seeks to preclude
police from any direct immigration policing role after individuals have been arrested, it
empowers police to arrest individuals for the very purpose of booking them and having their
immigration status screened - without regard to whether that arrest leads to any criminal
prosecution. Evidence to date suggests that in some jurisdictions, this is precisely what has
happened. n282 With both of these systems, evidence suggests that these types of errors
and deprivations fall disproportionately upon particular communities. n283 Moreover,
agencies involved in immigration surveillance are typically subject to limited oversight and
deferential (if any) review. Accordingly, those agencies have few incentives to ensure that
the records contained in their database systems are accurate, complete, and current. In
addition, many of these systems are not governed or meaningfully constrained by any
framework statutes. While the Privacy Act of 1974 requires agencies to ensure that
government records of personal information are accurate, relevant, timely, and complete,
the statute only applies to systems of [*69] records about U.S. citizens and lawful
permanent residents. n284 Moreover, even for records on those categories of individuals,
the statute permits agencies to exempt records concerning law enforcement or national
security from its coverage. n285 While some individuals have filed lawsuits challenging their
improper inclusion in these database systems, the lack of transparency concerning the
criteria and operations of these systems makes those legal challenges difficult.n286 While
more accurate database systems would better serve these agencies' own interests, the
incentives for immigration control, law enforcement, and national security agencies to
devote the resources necessary to ensure the accuracy and integrity of these databases on
their own, without external oversight, are limited. n287 In short, the combination of
database errors, automation-related biases, complex but time-pressured decisionmaking,
massive volumes of identification and screening activities, fragmented responsibilities
among different authorities, and laws and agency incentives that are misaligned with the
goal of ensuring data accuracy and integrity can easily result in large numbers of improper
denials of immigration-related authorizations in a variety of different contexts. In many
instances, these deprivations fall disproportionately on particular groups. n288 Especially
given the lack of transparency and oversight mechanisms in these systems, the limited
procedural protections and access to counsel afforded to noncitizens at all stages of the
migration process, and the limited protections for U.S. citizens who are outside the United
States or seeking to enter, the consequences of these fallibilities can be significant and
difficult to remedy. C. Data Collection, Retention, and Secondary Use Quite apart from the
accuracy and integrity of data in these systems, immigration surveillance raises the problem
of "function creep": the gradual and sometimes imperceptible expansion of surveillance
mechanisms, once in place, for secondary uses beyond those originally [*70] intended or
contemplated. n289 Fair information principles urge limits on the secondary use of
information for purposes not specified when collected. n290 However, a lengthy list of
examples demonstrates that such constraints are often lacking in the first place or difficult
to maintain: the proliferation of surveillance camera systems to police a widening array of
low level offenses, n291 the expanding use of online tracking, n292 the use of census data
and voter lists to facilitate targeting of disfavored individuals or groups, n293 the expansion
of DNA databases maintained by law enforcement to encompass rapidly widening
categories of individuals and purposes, n294 and the repurposing of various categories of
identity documents and identification systems. n295 Surveillancepractices undertaken in the
aftermath of the 2001 terrorist attacks have routinely morphed beyond the scope of their
original antiterrorism purposes. For example, the "fusion centers" established during the
past decade to collect, analyze, and exchange terrorism-related intelligence information
among law enforcement agencies almost immediately, and unapologetically, expanded the
scope of their activities to encompass ordinary crimes. n296 By virtue of the enormous
quantities of information that they collect, store, and disseminate - and the rapidly
increasing ability to access and share that information among different public and private
entities - the systems that comprise the surveillance infrastructure of immigration
surveillance are particularly susceptible to secondary uses and function [*71] creep. The
deployment of immigration surveillance systems and processes has taken place with very
few constraints or limitations. Data retention periods for the biometric, biographic, and
other personal information in identification systems, travel and mobility control systems,
and other databases used for immigration enforcement purposes are exceptionally long,
and few limits constrain routine sharing of information among different agencies. Moreover,
as the cost of storing information continues to decrease and the technological capabilities of
these systems continue to improve, the number of possible secondary uses for these
systems will increase even further - particularly given the premium placed on unconstrained
information sharing. n297 For example, the most recent enhancements to the FBI's
identification systems enable collection and storage of unparalleled quantities of biometric
and biographic information from a variety of different sources, including multimodal
biometric records of fingerprints, multiple photographs, iris scans, palm prints, voice data,
and potentially other biometric identifiers along with detailed biographical information.
Those systems also will be made fully interoperable with the other identification systems
maintained by DHS and the Defense Department that comprise the "biometrics triad," as
discussed above. n298 In connection with these enhancements, immigration authorities
have begun to deploy systems in pilot programs that permit the identification of individuals
without any need to review identification documents, using facial recognition and iris
recognition technologies that compare biometrics captured in the field with information
stored in multiple federal and state government databases. n299Some of these systems also
may enable remote identification of individuals without the need to be in their immediate
physical proximity. n300 Officials [*72] also have piloted programs to collect other kinds of
biometrics, including DNA from refugees in Africa seeking admission to the United States
and noncitizens in immigration detention. n301 With database systems becoming
increasingly sophisticated and interoperable, the pressures for expanded use of the
information stored in these systems will continue to mount. At the same time, with few
limitations inhibiting them from doing so, immigration authorities might well seek even
greater access to database systems maintained and held by federal, state, local, and even
private entities for immigration control purposes. However, even as the prospect of ever-
widening uses of these systems highlights the importance of addressing those possibilities
before particular surveillance mechanisms are widely implemented, the ability to do so can
be elusive - particularly when those mechanisms have been deployed rapidly, with minimal
transparency, under vague legal authority, and subject to limited external constraints. n302
VI. Conclusion Technology, as Erin Murphy has explained, "alters - rather than just
mechanizes - the relationship between the individual and the state." n323 With the
introduction of new surveillance and dataveillance technologies, the traditional
relationships between individuals and the institutions of immigration control are being
reconfigured in fundamental ways for both noncitizens and U.S. citizens alike. And yet,
compared to other aspects of the expansion of immigration enforcement, these shifts in
migration and mobility surveillance have garnered exceedingly little attention, analysis, or
concern - even as vigorous debates about surveillance and dataveillance by public and
private institutions have emerged in other settings. These shifts have not simply contributed
to a regime of mass enforcement, in which hundreds of thousands of noncitizens have faced
detention and deportation. More fundamentally, the evolution of immigration enforcement
institutions, practices, and meanings has also contributed to a more basic transformation of
the nature of immigration governance - with implications for noncitizens and U.S. citizens
alike. By recounting and analyzing this transformation and its consequences, this Article
highlights the need for scholars, advocates, policymakers, and other observers to devote
greater attention and scrutiny to the onset of the immigration surveillance state and its
rapid integration into the broader national surveillance state.
Internal—Dehumanization
The structural visualization of the Illegal immigrant is only possible through the
governmental practices of instrumental surveillance
Inda ’06 [2006, JONATHAN XAVIER INDA earned a Ph.D. in Anthropology from the University of
California, Berkeley in 1997. His research areas include the politics of immigration, governmentality and
life politics, the critical study of race and medicine, the anthropology of globalization, and Latino
populations in the United States. Dr. Inda is currently Associate Professor of Latina/Latino Studies and
Criticism and Interpretive Theory. “TARGETING IMMIGRANTS Government, Technology, and Ethics” ]
To elaborate a bit, the concern of this part is to look at how the post-1965 problematization of “illegal”
immigrants has largely taken place in ethical terms – at how the “problem” of “illegal” immigration, that
is, has on the whole been rendered understandable as an ethical problem. To be more precise, this part
is concerned with investigating how a variety of immigration “experts” – social scientists, INS/DHS
bureaucrats, policy analysts, immigration reform organizations, and the popular press – have
constructed “illegal” immigrants – typically imagined as Mexican – as anti-citizens incapable of
exercising responsible self-government and thus as threats to the overall well-being of the social body.
This ethical problematization of “illegal” immigrants has taken a number of specific forms. One
important form we will be concerned with here is that of “illegal” immigrants as lawbreakers. The idea is
that such immigrants are, to put it plainly, illegal: that they are by definition criminals. For these are
people who, by virtue of having overstayed their visas or crossed the border clandestinely, have
flagrantly violated US immigration laws. A second important form we will deal with is that of “illegal”
immigrants as job takers. The general belief seems to be that the undocumented take away or steal jobs
from (at least some) Americans. And a third form of ethical problematization we will be interested in is
that of illegal immigrants as public burdens. The thinking here is that these immigrants come to the
United States primarily to get on welfare and take advantage of the government’s generous social
services. Indeed, they are commonly seen as bent on sponging off the American state and people. For
many experts, then, “illegal” immigrants – to the extent that they are imagined as criminals, job takers,
and welfare dependents – simply cannot be proper subjects. They are uncommitted to personal
responsibility and the rule of law. They are not capable of proper self-management. The putative
consequence of this immigrant irresponsibility is the cultural and economic wounding of the social body.
Central to the problematization of “illegal” immigrants as unethical beings, I suggest, have been a
variety of numerical technologies: statistics, population counts, economic forecasts, and the like. The
centrality of these technologies in the constitution of “illegal” immigration as a problem domain is
intimately linked to the general place that numbers occupy in the relationship between government and
knowledge. I noted in the introduction that the exercise of government is inextricably connected to the
activity of thought – that all government depends on the elaboration of specific languages that
represent and analyze reality in a manner that renders it intelligible and amenable to political
programming. The idea here is simply that knowledge is necessary for effective rule. It is that
government needs to “know” reality in order to act efficaciously upon it. Numerical technologies have
perhaps been the most potent scientific instruments for knowing reality and for enabling interventions
into social processes (Urla 1993; Appadurai 1996; Poovey 1998; Rose 1999a; Kalpagam 2000). Indeed, it
is primarily through numbers that we come to know the problem domains (e.g., unemployment, crime,
poverty) and objects (e.g., the unemployed, the criminal, the poor) upon which government operates.
Numbers produce at least two kinds of knowledge in relation to these object domains. One kind is
enumerative: numbers, at the most basic level, simply generate information about the size and scale of
governmental objects (Cohen 1982: 43). The other kind is what could be called surveying: numbers – in
the form of rates, averages, percentages, probabilities, and the like – create a general map or picture of
given governmental domains. The combined effect of these numerical knowledges or calculative
practices is the creation of a bond of uniformity around the targets of government. It is the mapping of
their limits and the delineation of their internal features. What numbers do, then, is basically make up
governmental object domains (Rose 1999a: 197): they single out a certain segment of existence, identify
its properties and processes, and give it categorical visibility. The argument that I would like to make in
this part is that, like governmental domains more generally, it is largely through numerical technologies
that “illegal” immigration has been made up as a problematic dimension of experience. This argument
will have two strands. One strand will focus on how practices of enumeration have largely been
responsible for the production of the “illegal” immigrant as a socially significant category. This strand
will concentrate, that is, on how the “illegal” immigrant is fundamentally an effect of the efforts to
count him/her. The second thread will deal with how surveying routines, through the countless “facts”
they generate about “illegal” immigration, have fashioned a domain with very specific qualities and
features. To be more specific, this thread will note how, through numbers, “illegal” immigration has
largely been constituted as an ambit littered with subjects who imprudently depend on the social body
for their well-being. Important to this analysis will be what I earlier referred to as material inscriptions
(Latour 1986; Rose 1998). These are the mundane technical instruments – surveys, reports, pamphlets,
manuals, architectural plans, written reports, drawings, pictures, bureaucratic rules and guidelines,
charts, graphs, and so forth – that translate reality into documentary form. Such devices will be key
because it is via them that political and other authorities accumulate numerical facts about “illegal”
immigration: it is through them, indeed, that “the illegal” is written down, counted, measured, and
tabulated. The specific inscriptions that will concern us here include INS/DHS policy documents, reports
to Congress, Census statistical returns, policy think-tank reports, immigration advocacy group pamphlets
and manuals, government-sponsored investigations, and scholarly papers. In the end, I will suggest that,
above all, what calculative practices and the devices that inscribe them have made visible is the “illegal”
immigrant as unethical subject: the “illegal” immigrant as criminal, job taker, and welfare dependent.
The analysis will focus on the post-1965 period up to the September 11, 2001 “terrorist” attacks on the
United States. However, by way of conclusion, I will briefly lay out what has happened since.
The technologies and processes of government immigration surveillance has visualized the
immigration “problem” into manageable public discourse
Inda ’06 [2006, JONATHAN XAVIER INDA earned a Ph.D. in Anthropology from the University of
California, Berkeley in 1997. His research areas include the politics of immigration, governmentality and
life politics, the critical study of race and medicine, the anthropology of globalization, and Latino
populations in the United States. Dr. Inda is currently Associate Professor of Latina/Latino Studies and
Criticism and Interpretive Theory. “TARGETING IMMIGRANTS Government, Technology, and Ethics” ]
The conceptualization of this project in terms of the relation between knowledge and government
draws from and is meant to contribute to the growing body of interdisciplinary literature that has
developed since the late 1980s or so around the theme of governmentality. This work has emerged out
of Michel Foucault’s (1988, 1991) scattered writings and lectures on the arts of government. In these
pieces, the term “government” refers generally to the conduct of conduct – to the more or less
calculated and systematic ways of thinking and acting that propose to shape, regulate, or manage the
conduct of individuals and populations toward specific goals or ends (Rose 1996a; Dean 1999).
Understood this way, government points our attention very broadly to any rational effort to influence or
guide the comportment of others – whether these be workers in a factory, inmates in a prison, wards in
a mental hospital, the inhabitants of a territory, or the members of a population – through acting upon
their hopes, desires, circumstances, or environment. The term thus designates not just the activities of
the government and its institutions but, more generally, the practices of all those bodies whose aim is to
shape human conduct. From this perspective, then, the state is only one element, albeit an important
one, in the multiple networks of actors, organizations, and entities that exercise authority over
individuals and populations. Scholars working with this notion of government have been most
concerned with exploring those practices that take as their target the wealth, health, security, and
happiness of populations. More specifically, they have been occupied with studying all those strategies,
tactics, and authorities that seek to mold conduct individually and collectively in order to safeguard the
welfare of each and of all. They have thus drawn attention to the intrinsic links between strategies for
knowing and directing large-scale entities and schemes for managing the actions of particular individuals
– to how the conduct and circumstances of individuals are connected to the security and well-being of
the population as a whole. Focusing along these lines, scholars of governmentality have produced
important studies on a broad range of subjects, including: space and urban planning (Rabinow 1989);
psychiatry, medicine, and psychology (Castel 1981; Ong 1995; Rose 1998); poverty and insecurity (Dean
1991; Procacci 1993); social insurance and risk (Ewald 1986; Defert 1991); the regulation of pregnancy
and reproduction (Horn 1994; Weir 1996; Ruhl 1999; Greenhalgh 2003); programs for self-esteem and
empowerment (Cruikshank 1999); crime control (O’Malley 1992; Rose 2000b); globalization (Ong 1999;
Ferguson and Gupta 2006); colonialism (Kalpagam 2002; Scott 2006); and the regulation of
unemployment (Walters 2000). The perspective of these studies does not amount to a formal
methodology or a unifying theory of government. It is actually a perspective that draws attention to
government as a heterogeneous field of thought and action – to the multiplicity of authorities,
knowledges, strategies, and devices that have sought to govern conduct for specific ends. Nonetheless,
it is possible to single out at least three closely related analytical themes along which their analyses are
organized. A review of these themes will help better establish the aims and limits of this book. The first
analytical theme involves the political rationalities (or mentalities) of government. According to Nikolas
Rose and Peter Miller, two of the foremost proponents of the governmentality approach, this domain
designates: “the changing discursive fields within which the exercise of power is conceptualized, the
moral justifications for particular ways of exercising power by diverse authorities, notions of the
appropriate forms, objects and limits of politics, and conceptions of the proper distribution of such tasks
among secular, spiritual, military and familial sectors” (1992: 175). Political rationalities may thus be
generally conceptualized as intellectual machineries that render reality thinkable in such a manner as to
make it calculable and governable. They point to the forms of political reasoning ensconced in
governmental discourse, the language and vocabulary of political rule, the constitution of manageable
fields and objects, and the variable forms of truth, knowledge, and expertise that authorize
governmental practice (Dean 1995: 560) Political rationalities, in short, name that field wherein lies the
multiplicity of endeavors to rationalize the nature, mechanisms, aims, and parameters of governmental
authority. With respect to this first analytical theme, governmentality scholars generally have a couple
of important concerns. One concern is with the epistemological character of political rationalities (Miller
and Rose 1990; Rose and Miller 1992; Dean 1999; Walters 2000). They are interested in how these
rationalities both foster and rely upon assorted forms of knowledge and expertise – such as psychology,
medicine, sociology, public policy, and criminology. Knowledges of this kind embody specific
understandings of the objects of governmental practice – the poor, the vagrant, the economy, civil
society, and so forth – and stipulate suitable ways of managing them.2 Moreover, such forms of
knowledge define the goals and purpose of government and determine the institutional location of
those authorized to make truth claims about governmental objects. Governmentality scholars, then, are
occupied with how the practices of government are intertwined with specific regimes of truth and the
vocation of numerous experts and authorities. They show that the activity of governing is possible only
within particular epistemological regimes of intelligibility – that all government positively depends on
the elaboration of specific languages that represent and analyze reality in a manner that renders it
amenable to political programming. The other important concern of governmentality scholars is with
the problem-oriented nature of political rationalities (Rose and Miller 1992; Dean 1999). They note that
government is inherently a problematizing sphere of activity – one in which the responsibilities of
administrative authorities tend to be framed in terms of problems that need to be addressed. These
problems are generally formulated in relation to particular events – such as epidemics, urban unrest,
and economic downturns – or around specific realms of experience – urbanism, poverty, crime, teenage
pregnancy, and so on. The goal of governmental practice is to articulate the nature of these problems
and propose solutions to them. Guided by this perspective on government, the governmentality
literature tends to explore how certain events, processes, or phenomena become formulated as
problems. Moreover, it is often concerned with investigating the sites where these problems are given
form and the various authorities accountable for vocalizing them. To focus on government, then, is to
attend, at least on some level, to its problematizations – to the ways intellectuals, policy analysts,
psychiatrists, social workers, doctors, and other governmental authorities conceptualize certain objects
as problems. It is to focus on how government is bound to the continual classification of experience as
problematic. The second analytical theme of the governmentality literature involves the programs of
government – that is, how government is conceptualized into existence in programmatic form (Miller
and Rose 1990; Rose and Miller 1992; Dean 1999; Walters 2000). Government is programmatic in the
sense that it assumes that the real can be programmed – that it can be made thinkable in such a manner
as to make it amenable to diagnosis, reform, and improvement. This programmatic character manifests
itself most directly in specific programs of government – that is, in more or less explicit knowledgeable
schemes for reforming reality, for rendering the world intelligible and susceptible to rational
administration. Governmentality scholars tend to train a good deal of their attention on these programs
of government. They focus on how such governmental schemes conceptualize, manage, and endeavor
to resolve particular problems in light of specific goals. They attend to how such plans attempt to shape
the environment and circumstances of specific actors in order to modify their conduct in very precise
ways. All in all, this emphasis on the programmatic calls attention to the eternally optimistic disposition
of government – to its firm belief that reality can be managed better or more effectively. Finally, the
third analytical theme of the governmentality literature concerns the technologies of government – that
is, how government takes on a technological and pragmatic form (Miller and Rose 1990; Rose and Miller
1992; Dean 1995; Rose 1996a, 1998; Walters 2000; Ong and Collier 2005). The technological is that
domain of practical mechanisms, devices, calculations, procedures, apparatuses, and documents
through which authorities seek to shape and instrumentalize human conduct. It is that complex of
techniques, instruments, and agents that endeavors to translate thought into practice and thus actualize
political rationalities and abstract programs. Governmentality scholars’ concern with the technological
domain reveals itself best in the attention paid to specific technical instruments. These instruments
encompass such things as: methods of examination and evaluation; techniques of notation, numeration,
and calculation; accounting procedures; routines for the timing and spacing of activities in specific
locations; presentational forms such as tables and graphs; formulas for the organization of work;
standardized tactics for the training and implantation of habits; pedagogic, therapeutic, and punitive
techniques of reformation and cure; architectural forms in which interventions take place (i.e.,
classrooms and prisons); and professional vocabularies. Particularly important technical instruments are
what Bruno Latour (1986) calls material inscriptions. These are all the mundane tools – surveys, reports,
statistical methodologies, pamphlets, manuals, architectural plans, written reports, drawings, pictures,
numbers, bureaucratic rules and guidelines, charts, graphs, statistics, and so forth – that represent
events and phenomena as information, data, and knowledge. These humble technical devices make
objects “visible.” They render things into calculable and programmable forms. They are the material
implements that make it possible for thought to act upon reality. The governmentality literature’s
concern with technologies of government, then, draws attention to the technical means for directing
the actions of individuals and populations. Without these technologies the government of conduct
cannot take place. In line with these emphases of the governmentality literature, the present study has
three objectives. First of all, it aims to explore how certain mentalities and intellectual machineries –
those that might be called post-social (see below) – have constituted “illegal” immigration as an object
of government: how they have rendered it thinkable, calculable, and manageable. Part of this
exploration entails looking into how the phenomenon of “illegal” immigration has been constructed as a
problem to be addressed and corrected. More specifically, it involves scrutinizing the precise ways in
which this phenomenon has been problematized: most notably as an issue of criminality, job theft, and
welfare dependency. Another part entails paying close attention to the assorted forms of knowledge
and expertise – specifically those of social scientists, politicians, INS/CBP bureaucrats, policy analysts,
and the public at large – that claim to set forth facts about “illegal” immigration. It involves, in other
words, analyzing the specific regimes of truth and the various authorities with which the practice of
governing immigration is intertwined. The concern here is thus to explore the constitution of “illegal”
immigration as a problem object, as well as the variable forms of truth, knowledge, and expertise that
render it intelligible and governable. The second objective of this book is to explore the programmatic
aspects of governing “illegal” immigration. More precisely, it is to study a number of more or less explicit
knowledgeable schemes for reforming the circumstances of “illegal” immigrants in order to direct their
conduct in very specific ways. These schemes include Operation Gatekeeper and Operation Hold the
Line, both of which aim to secure the US–Mexico border against illicit entry. This focus on border control
has to do with the fact that, over the last few decades, it has been the primary way through which
political and other authorities have sought to manage undocumented immigrants.3 The goal here is to
detail how boundary enforcement programs have attempted to resolve the problem of “illegal”
immigration. The third objective of this study is to examine the technological dimensions of managing
“illegal” immigration. In other words, there is a strong focus on the actual mechanisms or technical
devices – such as border architecture, military know-how, pamphlets, policy reports, and INS/DHS
statistics – through which governmental authorities actualize particular political mentalities and abstract
programs. One of the aims here is to draw attention to the material tools that make “illegal”
immigration “visible.” The book as a whole, then, just as the literature of governmentality more
generally, is concerned with how assorted forms of knowledge, modes of calculation, kinds of governing
authorities, and technical means intertwine to construct particular objects – in this case “illegal”
immigrants – as targets of government. The book can thus be read as an attempt to examine the art of
governing “illegal” immigration – art in the sense that the activity of governing “requires craft,
imagination, shrewd fashioning, the use of tacit skills and practical know-how, the employment of
intuition and so on” (Dean 1999: 18). Such an examination consists, on the one hand, of empirical
description: it depicts how particular regimes of knowledge have produced truths about “illegal”
immigrants and, consequentially, how various entities in positions of authority have sought to regulate
them.4 And on the other, the examination entails critical diagnosis: it is diagnostic to the extent that it
seeks to establish a critical connection to practices of government, attending to their exclusions,
presuppositions, assumptions, naivetés, oversights, and costs (see Rose 1999a). Overall, then, this
analysis consists of describing and diagnosing the assemblage of mechanisms and devices for producing
knowledge about and intervening upon the problem of “illegal” immigration. The book can thus also be
read as an exploration of how the practice of government is inextricably tied to the activity of thought. It
is intimately concerned with the connection between thinking and acting, representing and intervening,
knowing and doing. It deals, in essence, with the modern operations of power/ knowledge.5
The United States enforces the “immigrant problem” through numerical data collection that makes
immigrants visible in its distinct categories of governmentality that results into totalizing social control
Inda ’06 [2006, JONATHAN XAVIER INDA earned a Ph.D. in Anthropology from the University of
California, Berkeley in 1997. His research areas include the politics of immigration, governmentality and
life politics, the critical study of race and medicine, the anthropology of globalization, and Latino
populations in the United States. Dr. Inda is currently Associate Professor of Latina/Latino Studies and
Criticism and Interpretive Theory. “TARGETING IMMIGRANTS Government, Technology, and Ethics” ]
Now let us turn to the resolute and often fervent post-1965 problematization of “illegal” immigration.
This problematization has largely turned, I have suggested, on the question of numbers. Indeed, it has
appreciably been through figures that the “illegal” immigrant has been constituted and made visible as a
problem object. There are two types of knowledge that numbers have generated with regard to
undocumented immigration. One I have called enumerative, the other surveying. In this section, I would
like to concentrate on the former. This type of knowledge has taken two basic forms. One form is that of
the apprehension statistics of the INS/DHS. These statistics record the number of aliens arrested in
violation of US immigration laws. The other form encompasses the statistical estimates of
demographers, academics, statisticians, and the INS/DHS concerning the number of people residing
“illegally” in the United States. The importance of these enumerative practices cannot be overstated. At
the most basic level, these practices have rendered the “illegal” immigrant categorically visible. The idea
here is simply that to make a count of something, especially if it is an official count, is to confer
recognition upon it (Starr 1987). What these practices have done, moreover, is given “illegal”
immigration visibility as a phenomenon of “great” magnitude. Words such as “flood,” “out of control,”
and “invasion” have routinely been used to characterize the flow of “illegal” immigrants. Particularly
important in this regard has been the way that politicians and the mass media have picked up and
reported on the enumeration of “illegal” bodies. Given the patent importance of counting practices,
what I would like to do in this section is delve into the specifics of how they have made up the “illegal”
immigrant. We will begin with a general look at these practices: at the calculating authorities, forms of
enumeration, and documentary procedures involved. Calculating Authorities Important in enumerating
“illegal” immigration and producing truths about the size and scale of the phenomenon have been a
number of entities. One of these is the Immigration and Naturalization Service (INS). Until March 1,
2003, when it was officially abolished and its duties transferred to various agencies within the newly
created Department of Homeland Security (DHS), this federal agency of the US Department of Justice
had, among other duties, primary responsibility for enforcing the country’s immigration laws. Crucial
among its enforcement activities were the detection and apprehension of deportable (or illegal) aliens.
A deportable alien is someone who has violated US immigration laws. Included among the deportable
are aliens who entered the United States without inspection, as well as persons who entered legally but
subsequently lost their lawful status (e.g., tourists who overstayed their visas). Two INS units bore
foremost responsibility for carrying out the work of locating and arresting such aliens: the US Border
Patrol and the Investigations Division. 10 The principal mission of the former was (and still is) to
safeguard the land and water borders of the United States between official entry ports, its chief goals
being “to prevent illegal entry into the United States, interdict drug smugglers and other criminals, and
compel those persons seeking admission to present themselves legally at ports of entry for inspection”
(US INS 2002: 230). The Investigations Division concentrated on enforcing immigration laws within the
interior of the country. Its duties included investigating “aliens involved in criminal activities” and
inspecting “work sites to apprehend unauthorized alien workers and to impose sanctions against
employers who knowingly employ them” (US INS 2002: 230). Aliens apprehended by these INS units
were typically expelled from the country. Some underwent formal removal or deportation proceedings.
This was typically the case with aliens implicated in serious criminal doings. Most deportable aliens,
however, were offered what is called voluntary departure. Under this procedure, an alien admits to
illegal status, waives his/her right to a hearing, and is removed under INS supervision. This practice was
common with aliens apprehended while attempting to enter the United States without inspection. An
attendant aspect of the INS’s enforcement activities entailed keeping statistics about apprehensions.
From 1933 through 1977, these statistics, as well as others dealing with more general immigration issues
(e.g., asylees, temporary admissions, naturalizations), were documented in the Annual Report of the
Immigration and Naturalization Service. Then from 1977 through 2001, they were published in the
Statistical Yearbook of the Immigration and Naturalization Service. (Now they appear in the Yearbook of
Immigration Statistics, which is printed under the auspices of the DHS. 12 ) Apprehensions, as noted
above, measure the number of aliens picked up for violating US immigration laws. We are dealing here
not with individuals but with events. For instance, if an alien were apprehended two times during a fiscal
year, that person would show up twice in the apprehensions statistics. The Annual Report and the
Statistical Yearbook typically present apprehension figures, as well as all other numbers, in table form.
Apprehensions tables essentially amount to historical pictures of alien arrests. Each furnishes a tally of
the total number of deportable aliens located from 1925, when apprehension figures were first
recorded, through the present of a given report/ yearbook; a decade by decade breakdown of the
aggregate number; and annual totals for most years (see Figure 2.1). 13 Significantly, the two INS
statistical books also normally contain a section – variously titled “Border Patrol and Investigations,”
“Domestic Control,” and (most recently) “Enforcement” – that gives a narrative overview of
apprehensions data together with a re-presentation of arrest figures in chart form. The charts generally
take the shape of either bar or line graphs. These serve to highlight how apprehension figures change
from one year to the next as well as to illustrate long-term arrest trends. The narrative overviews
typically contain a statement about the number of aliens apprehended during a given fiscal year. They
also generally provide information about the number of Mexican nationals found in illegal status. If not,
then they will normally note how many apprehended aliens were arrested along the Southwest (US–
Mexico) border. Additionally, the overviews sometimes compare one year’s figures to those of the
previous year; at other times, they discuss how apprehensions numbers have changed over time. A
second attendant aspect of the INS’s enforcement activities involved making estimates of the number of
aliens living “illegally” in the United States. This aspect, however, was not as thoroughly developed, at
least not until later years, as that of apprehensions. It was only with the publication of the 1995
Statistical Yearbook that the INS began consistently calculating and publishing information on the size of
the “illegal” immigrant population. This yearbook and a number of others afterward contain a section
entitled “Estimates.” 14 These sections as a rule present estimates data in table form together with a
brief narrative rundown. The tables provide information on the size of the “illegal” immigrant
population at a particular point in time, as well as data on the top twenty countries of origin and states
of residence. The narrative descriptions re-present many of these statistics along with a few other
figures: for example, the annual growth level of the “illegal” immigrant population, the number of
“illegal” immigrants estimated to have entered the United States without inspection (as opposed to the
number believed to have entered legally on a temporary basis and then failed to depart), and the
percentage of the US population living in “illegal” status. These INS estimates of the “illegal” alien
population are generally considered to be analytical. This means that they are empirically based and
statistically sound. Prior to the 1995 Statistical Yearbook, the INS’s efforts at calculating and
documenting the size of the “illegal” immigrant populace were rather sporadic. The earliest effort dates
back to the early 1970s. A handful would follow later in the decade. Then there is nothing until the
1990s. These efforts were also somewhat on the speculative side. This means that the estimates they
produced were not methodologically reliable. At their simplest, these speculative estimates amounted
to little more than impressionistic guesses. At their best, they were the outcomes of methodological
techniques employing “a combination of fragmentary data, reasonable assumptions, informed guesses
from experienced people, simple arithmetic, and logic” (Corwin 1982: 244). The documentary forms in
which these estimates were circulated varied. Some were published in special reports; others simply
appeared in prepared statements delivered by INS commissioners before various Congressional
committees. Also important in enumerating “illegal” bodies and producing facts about them have been
an array of demographers, statisticians, and academics. Like the INS, these technicians of numbers have
been intimately involved in estimating the scale of the “illegal” immigrant population residing in the
United States. The estimates these individuals have produced have tended to be analytical. Although, to
be sure, there has been a fair share of speculative ones. They have also tended to be of two types (Van
Hook and Bean 1998). One type measures the stock of the “illegal” immigrant populace. “Stock” is a
demographic term used to indicate the size of a population at a given moment in time. The other kind
gauges the flow of the “illegal” immigrant stream. “Flow” designates the amount of entries into (in-flow)
or exits from (out-flow) a population during a specific time interval. Some attention has been given here
to what is called net flow (in-flow minus out-flow). This measure is generally taken as an indicator of
population growth. A special concern of investigators has been to quantify the Mexican component of
the “illegal” immigrant population. Indeed, there are very few studies that do not on some level deal
with Mexican immigrants. Many even focus exclusively on them. This extraordinary preoccupation with
Mexicans is largely due to the perception that they make up a significant portion of the deportable
population. The estimates produced of the “illegal” Mexican immigrant populace, as well as of the
“illegal” population more generally, have been published in a wide variety of forums. They range from
demography and immigration journals to policy documents and conference proceedings. These
estimates have also been carried out under the auspices of a wide assortment of institutions: research
universities, immigration think-tanks, the Mexican government, the Bureau of the Census, and various
US governmental commissions and groups established to study the “problem” of illegal immigration
(e.g., the Select Commission on Immigration and Refugee Policy and the US Commission on Immigration
Reform). 11
Enumerative statistics gathering determine governmental discourse of the immigration problem and
illegals
Inda ’06 [2006, JONATHAN XAVIER INDA earned a Ph.D. in Anthropology from the University of
California, Berkeley in 1997. His research areas include the politics of immigration, governmentality and
life politics, the critical study of race and medicine, the anthropology of globalization, and Latino
populations in the United States. Dr. Inda is currently Associate Professor of Latina/Latino Studies and
Criticism and Interpretive Theory. “TARGETING IMMIGRANTS Government, Technology, and Ethics” ]
The importance of these enumerative practices, as I briefly noted above, is that they have made the
“illegal” immigrant visible. Indeed, they have brought him/her into visibility. At the most basic level, this
visibility has been categorical. What counting practices have done, in effect, is produced the very
category of the “illegal” immigrant. They have singled out individuals who have violated US immigration
laws, divided them off from other people, and classified them together under various labels (“illegal
immigrants,” “illegal aliens,” “deportable aliens,” and so forth). The general idea here, one that Ian
Hacking has alerted us to, is that “counting is hungry for categories” (1982: 280). It is that processes of
enumeration generate the very categories they add up. It is that counting practices as a rule sort up and
divide things, people, and conduct into classes, creating all sorts of groupings and classifications (Urla
1993: 820). At this basic level, what enumeration has also done is conferred recognition upon illegal
immigrants. The general claim here is that to categorize and make a count of some phenomenon is to
grant it authenticity (Starr 1987; Porter 1995). This is especially true if the count is an official one. For
official statistics, as Paul Starr notes, are “cognitive commitments of a powerful kind” (1987: 53). Once
particular categories have been operationalized in government data, they enter not only the language of
administration but also generally that of society at large (i.e., the mass media, academia, the public, and
so forth). Thus it is that phenomena become socially recognized. In the case of “illegal” immigration, the
count has certainly been official. This official count has principally taken the form of INS statistics.
Indeed, these have noticeably operationalized the category of the “illegal immigrant.” From there, this
category has entered other domains of social life and the phenomenon of “illegal” immigration has been
made recognizable. At another level, this one being perhaps more important, practices of enumeration
have made illegal immigration visible as a phenomenon of “vast” scale. This process of visibilization has
involved three interconnected elements. One element has to do with apprehension figures and the way
they have been presented in INS statistical books. These books have consistently highlighted how, in the
post-1965 period, apprehensions of deportable aliens have generally climbed from one year to the next,
often quite dramatically. Moreover, they have tended to strongly link the problem of “illegal”
immigration with Mexican nationals surreptitiously crossing the US–Mexico border. A second element
involves the expert enumerations of the stock and flow of “illegal” bodies. These have generally shown
that the “illegal” immigrant population has consistently numbered in the millions, the range being from
1 to 12, and that it has generally grown from year to year. Here too there has been considerable
attention placed on “illegal” immigrants from Mexico. The final element in this process of visibilization
has to do with the way politicians and the mass media have taken up and couched the various
enumerations of the “illegal” immigrant population. Their tendency has been to dramatize the numbers
and associate “illegal” immigration with such terms as “out of control,” “invasion,” and “flood.” Mexican
immigrants and the US–Mexico border, not surprisingly, have once again figured prominently in the
picture. At this other level, then, what has happened is that immigration experts, politicians, the mass
media, and the INS have come together, although not necessarily wittingly, to visibilize “illegal”
immigration as a massive phenomenon. Revealed in these passages are at least three things. First of all,
there is little doubt that apprehensions grew significantly, at least threefold, from 1965 to 1970. 16
Second, it is quite evident that a rise in Mexican apprehensions accounted for much of this growth. And
third, it is clear that most apprehended aliens, above all Mexicans, entered the United States
clandestinely. At the beginning of the 1970s, then, apprehension figures showed that “illegal”
immigration was a growing “problem” – one primarily due to the increasing number of Mexican bodies
crossing the US–Mexico border on the sly. Moving ahead in the decade, we find that apprehension
figures just kept on climbing. Consider, for instance, the 1976 Annual Report (US INS 1978). This report
contains a chart that graphs the number of deportable aliens found in the United States each year from
1972 through 1976 (see Figure 2.2). The chart is split in two: one half focuses on “Mexicans,” the other
on “All others.” For each grouping, we get details on the number of aliens apprehended during a given
year, as well as on these aliens’ status at entry (e.g., surreptitious). The chart indicates that overall
apprehension figures continued to march upward, solidifying the trend begun in the mid-1960s.
Moreover, it shows that the “problem” of illegal immigration became more decidedly a Mexican one:
the number of Mexican apprehensions nearly doubled from 1972 to 1976 (beginning just above 400,000
and ending just below 800,000), while the figure for all other nationalities went up only slightly
(remaining below 100,000 for the entire period). Finally, the chart reveals that surreptitious entry
continued to grow as the primary way that apprehended aliens were entering the United States.
Significantly, the Annual Report also contains a narrative overview of the apprehension figures
presented in the chart. This overview reinforces, augments, and dramatizes the visual data. Note the
following quotes, for example: other routes. (13–14) In the mid-1970s, then, apprehension figures
indicated that “illegal” immigration continued to be a rapidly growing phenomenon. They also showed
that the illicit movement of Mexican bodies across the southern border remained the primary source of
the mounting “problem.” Central as well to the problematization of illegal immigration as an event of
some magnitude were numerous expert counts of the stock and flow of illicit bodies. As apprehension
figures mounted during the 1970s, a number of entities – demographers, researchers, the INS, and so
forth – became concerned with getting a better handle on the scale of the “illegal” immigration
problem. Arrest statistics had served well in signaling that the number of illegal “aliens” entering the
United States was increasing, but they could not really be taken as gauges of magnitude. The drawback
with these statistics was that they did not actually measure the size or flow of illegal immigration. They
simply tallied the number of arrests in violation of immigration law. Put otherwise, apprehension data
documented not the number of aliens who successfully dodged detection but the number who were
caught. It was the former figure that one needed in order to determine the extent of the “problem.” 17
Taking the lead in gauging the magnitude – that is, stock and flow – of “illegal” immigration was the
Immigration and Naturalization Service. This agency put forward a series of essentially speculative
estimates during the 1970s. 18 In terms of stock, the earliest calculation came in 1972. Speaking before
a Congressional committee, INS Commissioner Raymond Farrell (1972) testified that the total “illegal”
immigrant population surpassed 1 million. This number would be upped significantly a few years later. In
1975, Farrell’s successor, Leonard Chapman (1975a), noted that the unauthorized population added up
to between 4 and 12 million. Subsequent INS counts would put the number of illegal bodies variously at
8.2 million (Lesko Associates 1976), 8 million (Chapman 1976a), 6 million (Chapman 1976b; Guss 1977),
and 3 to 6 million (Castillo 1978). Notably, a number of the INS’s total stock calculations contained
subtotals on the “illegal” population of Mexican origin. Estimates of the size of this population included
5.2 million (Lesko Associates 1976), 6 million (Chapman 1976a), and 3 to 3.5 million (Chapman 1976b).
As for the flow of “illegal” immigration, the estimates put forward, which were not as many as those of
stock, ranged from 500,000 total entries per year (Chapman 1976a) to 0.97 million annual entries for
Mexicans alone (Lesko Associates 1976). Of all the INS numbers, perhaps the most important were those
proposed by Commissioner Chapman. It is not so much the actual numbers that were significant,
although they did matter, as the way they were presented. What Chapman did, first of all, was put these
numbers forward in very public ways: through magazine articles, mass media interviews, public talks,
testimonies before Congress, and so forth. And second, he made it very clear that, numerically, “illegal”
immigrants constituted a grave problem. Consider, for example, the following quotes: The image that
Chapman and the INS fostered for a good portion of the 1970s was thus that unauthorized immigration
was very much out of control. It was that “illegal” immigrants were overrunning the country. Soon after
the INS started counting “illegal” bodies, other entities – demographers, statisticians, academics, the
Mexican government – joined the effort. A primary factor motivating these entities, or at least a good
percentage of them, was the conviction that the INS’s numbers were highly speculative – often little
more than guesses – and generally inaccurate (Siegel, Passel, and Robinson 1981; Briggs 1984). The idea
was thus to put the counting of “illegal” immigrants on more solid analytical footing. 19 The estimates
produced using analytically based procedures, which numbered no more than a handful during the
1970s, were generally lower than those of the INS. For instance, Clarice Lancaster and Frederick
Scheuren (1978) calculated that there were a total of about 3.9 million “illegal” immigrants residing in
the United States in 1973. This number was derived from matching the Census Bureau’s Current
Population Survey records for March 1973 with Internal Revenue Service individual earnings data and
Social Security Administration benefit and income figures. 20 In terms of immigration from Mexico, to
use another example, the Mexican government assessed that only about 500,000 to 1.2 million of its
nationals were living clandestinely in the United States at the beginning of 1977 (García y Griego 1980).
This estimate was obtained through comparing INS apprehensions data with the migration histories of
persons whom US authorities had caught and returned to the Mexican border. And with respect to the
flow of “illegal” immigrants, to employ a final (REDACTED FOR LENGTH) So clearly, not only did the
leaders of immigration reform organizations construct the “problem” of undocumented immigrants as
being rather sizable. They also conceptualized it as being a largely Mexican affair. What takes place
during the early to mid-1990s, then, is the renewed visibilization of illegal immigration as an event of
considerable scale. More to the point, what we witness is particularly forceful imaginings of
undocumented immigrants as invasive and overwhelming. Such imaginings would eventually subside
later in the 1990s. But they have never quite gone away. In fact, as we will see, they have resurfaced in
the post-9/11 context: with a twist.
Surveillance and interpretation of data underwrites the narrative of the immigrant as the
ungovernable and the irredeemable to general social health
Inda ’06 [2006, JONATHAN XAVIER INDA earned a Ph.D. in Anthropology from the University of
California, Berkeley in 1997. His research areas include the politics of immigration, governmentality and
life politics, the critical study of race and medicine, the anthropology of globalization, and Latino
populations in the United States. Dr. Inda is currently Associate Professor of Latina/Latino Studies and
Criticism and Interpretive Theory. “TARGETING IMMIGRANTS Government, Technology, and Ethics” ]
Having focused on one kind of numerical knowledge – enumerative – used to make up undocumented
immigrants, I now want to turn to another: what I have called surveying. This type of knowledge has
been instrumental in specifying the problematic nature of there being “large” numbers of unauthorized
people residing in the United States. To be more precise, surveying routines have produced a host of
statistical data regarding the effects of mass “illegal” immigration on various domains of US social and
economic life. Two domains have received particular attention: the labor market and public services.
With respect to the former, the concern has been that “illegal” immigrants displace native workers and
depress wages; while in terms of the latter, the worry has been that the undocumented produce a
substantial drain on programs such as welfare, food stamps, hospital care, and public education. What
various data sources have suggested (not unproblematically) is that, in some ways, “illegal” immigrants
have had an adverse impact on the labor market and put a strain on public services. During the 1970s,
for example, the general tendency in the policy research community was to argue that “illegal”
immigrants competed with and displaced low-wage native workers in the secondary labor market. And
in the 1990s, the tendency was to suggest that the undocumented were generally a net cost to society,
using more in public resources than they contributed in taxes. Perhaps more significant than the actual
data, however, has been how actors at the popular level – politicians, INS officials, and immigration
reform organizations – have taken it up and framed it. Their inclination has been to dramatize the
figures and portray “illegal” immigrants as people who take jobs away from Americans and abuse
precious social services. The popular image regularly constructed of “illegal” immigration has thus been
as insecurities that threaten the well-being of the social body. Given the importance of surveying
practices in the making up of “illegal” immigrants, what I would like to do in this section is delve into the
specifics of their workings. We will begin with a look at how the effect of “illegal” immigration on the
labor market has been problematized. They Take Our Jobs The labor market impact of “illegal”
immigrants has been a constant governmental concern in the post-1965 period. However, its principal
problematization took place during the mid-1970s to mid-1980s. Indeed, this time period was privy to a
particularly keen focus on the relation between the undocumented and the labor market. Other “illegal”
immigration impact issues, while important, were generally secondary concerns (e.g., public service
use). 30 Crucial in producing knowledge about the effects of undocumented immigrants on the labor
market were a variety of entities: independent researchers, the US General Accounting Office (US GAO),
the public, and a host of government committees and commissions. The knowledge these entities
produced was of at least three kinds. One kind was empirical research. Encompassed here are various
empirical studies dealing, on some level, with the role of “illegal” immigrants in the labor market. The
second type consisted of review and analysis. Covered here are numerous government reports assessing
the general impact of undocumented immigration on the United States. This assessing was generally
based on available empirical evidence. Finally, the third type consisted of public interpretation and
dissemination. Included here are countless magazine articles, political speeches, pamphlets, and so forth
that circulated popular understandings apropos the labor market effects of the undocumented. The
conclusion these knowledges generally came to was that, in certain ways, undocumented immigrants
had a harmful impact on the labor market. Let us first consider the empirically based knowledges.
During the mid-1970s through the middle of the 1980s, the undocumented immigration research
industry was very much in its infancy stage. The empirical research produced at this time on the
relationship between “illegal” immigrants and the labor market was thus on the whole rather scant. It
also tended to be somewhat on the speculative side. Most studies focused on particular population
samples – undocumented aliens in specific industries, persons at the border, INS apprehendees – and
then made generalizations about the characteristics and impact of the undocumented community as a
whole. This empirical research was nevertheless often taken as speaking general truths about “illegal”
immigration. The most influential study of the labor market impact of undocumented immigrants was
published in 1976 under the auspices of the Department of Labor. It was titled The Characteristics and
Role of Illegal Aliens in the US Labor Market: An Exploratory Study. Its authors were David North and
Marion Houstoun, two independent researchers. Like most studies, this one did not actually measure or
quantify the effect of “illegal” immigrants on the labor market. Rather, it gathered information on the
work history of a small sample of undocumented persons and then made inferences about the labor
market impact of the entire clandestine population. The sample consisted of 793 apprehended “illegal”
immigrants who had worked for at least two weeks in the United States before being seized by the INS.
Of this total, 481 were from Mexico, 237 from other Western Hemisphere nations, and 75 from the
Eastern Hemisphere. The study found that these “illegal” immigrants had generally been employed in
the secondary labor market: that is, in low-wage, low-status jobs. Half, for example, had most recently
worked in unskilled occupations, as services workers or as laborers (both farm and non-farm), while
another 30 percent had done semi-skilled work, principally as operatives (North and Houstoun 1976:
109). The study further found that the immigrants in its sample earned considerably less than
comparably employed US workers – while the latter earned an average of $4.47 an hour, the hourly
wage of the former only averaged $2.66 (124) – and that their average hourly pay varied radically
according to the area of US employment (the lowest being the Southwest at $1.98) and region of origin
(the least remunerated group being Mexicans at $2.34) (115). Based on these and other figures, as well
as on the data of other researchers, North and Houstoun concluded that illegal immigrants were
probably clustered in the secondary labor market and appeared “to increase the supply of low-wage
labor and compete with disadvantaged US workers” (153). The logic they used was Other studies of the
period by and large corroborated North and Houstoun’s conclusions regarding the likelihood that
“illegal” immigrants had some negative impact on the labor market. The US GAO, for example,
calculated that the number of jobs the undocumented took away from legal workers in 1976 probably
ranged from 0 to 3.9 million (1980: 63). And Walter Fogel (1979), a UCLA economist, determined that
the low incomes of South Texas were primarily due to the availability of large supplies of Mexican
unskilled (and often illegal) labor. 32 Bolstering the idea that illegal immigrants presented a problem
with respect to the US labor market were a number of government committee and commission reports.
A major aim of these reports was to assess the impact of illicit immigration on the United States,
including labor market impact. The most significant report was undoubtedly the US Select Commission
on Immigration and Refugee Policy’s US Immigration Policy and the National Interest (1981). 33 The
analyses and recommendations found there formed the basis of the Immigration Reform and Control
Act of 1986. The report’s examination of the labor market impact of the undocumented focused on two
issues: job displacement and wage depression. With respect to each issue, the examination entailed
surveying the existing empirical research and the testimony of experts. The report showed that in both
cases there was conflicting evidence about the impact of illegal immigration. Regarding job
displacement, for example, it noted the following: Despite the contradictory evidence, however, the
report reached a definite conclusion about the impact of “illegal” immigrants on the labor market. It
determined that “the continuing flow of undocumented workers across US borders has certainly
contributed to the displacement of some US workers and the depression of some US wages” (41). 34
Significantly, other government reports generally concurred with the Select Commission’s verdict. For
example, a report prepared for the Committee on the Judiciary of the US House of Representatives
noted: “The available evidence suggests that illegal aliens compete successfully with US workers in the
secondary labor market and that they tend to adversely affect the wages and working conditions in
occupations where they are present in considerable numbers, most notably in the Southwest”
(Congressional Research Service 1977: 14). And a preliminary report from the Domestic Council
Committee on Illegal Aliens, a group established to undertake a comprehensive review of
undocumented immigration and its implications, concluded: “To the extent that illegal aliens are
predominantly lower skilled workers, their presence tends to lower the wages and working conditions of
US workers in low skilled jobs” (1976: 185). A final element in the problematization of “illegal”
immigrants as in certain ways harmful to the labor market was a host of public actors – politicians, INS
officials, and so forth. Their tendency, as I noted above, was to sensationalize the whole matter. An
important figure here was INS Commissioner Leonard Chapman. As with the case of magnitude,
Chapman repeatedly drew public attention to the labor market effects of “illegal” immigration. In a 1976
for example, he blamed the undocumented for massively displacing American workers: What’s more, in
a 1975 Immigration and Naturalization Reporter piece, Chapman argued that the displacement of native
workers severely hurt the economy: “Our largest city, New York, has one million people on welfare, and
that will grow by another quarter of a million this year to some 15 percent of the city’s population. One
million dollars per hour is being doled out in the form of relief checks in that city. I believe it is
imperative that we find and implement ways to halt the illegal flow of persons into the United States
and the drain they cause upon our economy” (1975a: 17–18). The implication here is that, if it were not
for illegal immigrants, there would not be so many people on welfare sapping the economy. Other
important voices in the problematization of “illegal” immigrants as detriments to the labor market were
Ray Marshall, Secretary of Labor under President Jimmy Carter (1977–81), and Richard Lamm, then
governor of Colorado (1975–87). Much like As with the case of labor market impact, the public service
use of “illegal” immigrants has been an issue all through the post-1965 period. Its main
problematization, though, occurred during the 1990s. Indeed, this was a period in which the impact of
undocumented immigration on social benefits was of particular concern to researchers, politicians, and
the public. In fact, it was their main preoccupation then. The entities involved in creating knowledge
about this issue were several. The list includes independent researchers, policy research organizations,
the GAO, the public, and various state and local governmental bodies. The knowledge forms these
entities produced added up to at least three: empirical research, governmental reviews, and public
interpretation. These were the very same forms created in the case of labor market impact. Significantly,
these knowledges generally focused on two issues. One issue was the general cost of providing public
services to “illegal” immigrants. The concern here was that the undocumented as a whole were
adversely affecting the social and economic welfare of the United States. The second issue was the cost
associated with providing public services just to “undocumented” women and their children (“illegal” or
otherwise). The worry here was that the reproductive practices (both social and biological) of “illegal”
immigrants were particularly taxing on US coffers. The conclusion these knowledges generally reached
was that, in monetary terms, undocumented immigrants received more from society (in the form of
public services) than they gave in return (in the form of taxes), and that their reproductive practices
were indeed especially burdensome. Let us first consider how the empirical and review-type knowledges
(with an emphasis on the former) constructed these issues. Calculations of the general costs associated
with “illegal” immigration occurred on three scales of analysis: the national, the state, and the local.
With respect to the national scale, there were three important studies produced during the early to mid1990s (see US GAO 1995a). First, there was Donald Huddle’s The Costs of Immigration (1993). The Urban
Institute – a non-partisan, non-profit, policy research organization – then followed with a reassessment
of Huddle’s work, How Much Do Immigrants Really Cost? A Reappraisal of Huddle’s “The Cost of
Immigrants” (Passel and Clark 1994). Finally, Huddle produced an updated study called The Net National
Cost of Immigration in 1993 (1994). These studies all concentrated on measuring the national net cost of
“illegal” immigrants: that is, the costs they generated, minus the revenues they produced. In each case,
the net cost estimate was obtained from measuring three principal components. First, there were the
direct expenditures. These were the costs generated as a result of providing public benefits and services
to the undocumented. Included here were such government programs as primary and secondary
education, school lunches, Head Start, Medicaid, the Special Supplemental Food Program for Women,
Infants, and Children (WIC), and housing assistance. 35 Second, there were the displacement outlays.
These were the costs incurred from providing public assistance to US workers whom “illegal” immigrants
had displaced. Finally, there were the public revenues that the undocumented generated. Included here
were a variety of federal, state, and local taxes: income tax, Social Security tax, unemployment
insurance tax, and gas, sales, and property taxes. The conclusion reached in the three studies was that
undocumented immigrants were a net fiscal burden on the United States. Huddle’s updated study, to
begin with, calculated the net cost of “illegal” immigrants at $19.3 billion for 1993. This was the highest
estimate. Next came the initial Huddle study with a 1992 estimate of $11.1 billion. And last was the
Urban Institute’s report with a net expenditure total of $1.9 billion for 1992. The discrepancy in the
estimates, which was considerable, can be attributed in large part to differing assumptions as to what
counts when measuring costs and revenues. Both Huddle studies, for example, calculated the costs of
displacement at $4.3 billion. The Urban Institute report, in contrast, came up with a figure of $0. The
difference here was that the latter took into account the positive economic effects of illegal immigration
(e.g., the new jobs and extra spending the undocumented generated through consuming goods and
services), determining that these sufficiently offset any job displacement expenditures. One further
illustration: the updated Huddle study included monies ($4.6 billion) spent on educating the citizen
children of illegal immigrants as a cost, while the other two did not. These expenditures were taken into
consideration, according to Huddle, because they were part of the overall fiscal impact connected with
undocumented immigration. To be sure, these children were not illegal. But they would not have been
in the country using public resources if their parents had been prevented from crossing the border
illegally. Regardless of the wide variation in estimates, though, the fact remained that all three studies
calculated that “illegal” immigrants generated more in costs than they produced in revenues. 36 Indeed,
despite quibbles over actual amounts, there was considerable agreement among researchers that, at
the national level, the undocumented were generally a net cost. With respect to the state and local
scales, there were also a number of important studies produced during the 1990s. These studies, not
surprisingly, focused primarily on California and some of its localities (e.g., Los Angeles and San Diego
Counties). California was the site with the largest undocumented population in the country and thus
where the fiscal impact of “illegal” immigration, if any, was likely to be the greatest. At the state level,
the most influential study came from the California Governor’s Office. It was titled Shifting the Costs of a
Failed Federal Policy: The Net Fiscal Impact of Illegal Immigrants in California (Romero and Chang 1994).
The study unequivocally concluded that illegal immigrants posed a tremendous burden on California
taxpayers: Put otherwise, the report reckoned that the net cost of “illegal” immigrants to the state was
rather considerable. The undocumented might have made significant tax contributions. But these did
not come close to covering the price tag of the public services they consumed. At the local level,
meanwhile, there were at least two significant studies, one focused on the Los Angeles area, the other
on San Diego County. The former study, titled Impact of Undocumented Persons and Other Immigrants
on Costs, Revenues, and Services in Los Angeles County (LA County Internal Services Department 1992),
was prepared for the LA County Board of Supervisors. 38 Its main goal was to determine the
immigrationrelated costs borne by the County of Los Angeles. 39 A major conclusion reached in the
report was that “illegal” immigrants generally took more from the county than they gave in return. For
FY 1991–92, as a case in point, it was calculated that LA County spent an estimated $308 million in
public services for the undocumented but received approximately only $36 million in taxes from them.
The net county cost of illegal immigrants that fiscal year was thus $272 million. Most of the money was
spent on health care and criminal justice services. As for the San Diego study, titled Illegal Immigration
in San Diego County: An Analysis of Costs and Revenues (1993), it was prepared for the California State
Senate Special Committee on Border Issues. Its main goal was “to estimate the net annual fiscal impact
upon State and local governments in San Diego County of providing public services to undocumented
immigrants who are present in the County either permanently or temporarily” (Parker and Rea 1993: ii).
Like the LA study, this one concluded that “illegal” immigrants were unquestionably a fiscal burden: the
net state and local government cost of providing them with public services in the San Diego area was
estimated to be $244 million for FY 1992–93. The main services that the undocumented made use of
were criminal justice, public health, education, and welfare. As with the case of national studies, then,
local- and state-scale investigations generally calculated that “illegal” immigrants were net costs.
Indeed, the general conclusion was that the undocumented were economic burdens not just on a
national scale but also on more localized levels. 37 Besides being preoccupied with measuring the
general costs of “illegal” immigration, researchers and policy analysts were concerned about calculating
the more specific expense of providing public services to undocumented women and their children,
whether legal or illegal. The general belief seemed to be that the costs associated with the biological
and social reproduction of the immigrant family were particularly burdensome on US taxpayers.
Biological reproduction here refers simply to the process of bearing children. Public costs incurred in
relation to this process were principally for health care (e.g., childbirth services and prenatal care). Social
reproduction, on the other hand, refers to the practice of raising, educating, and caring for children.
Expenses contracted as a result of this practice were largely for public education, health care (e.g.,
Medicaid), and social services (e.g., Temporary Assistance for Needy Families [TANF], formerly Aid to
Families with Dependent Children [AFDC]). That measuring the price tag of reproduction was a concern
is already somewhat clear from the general cost studies discussed above. They all, on some level, dealt
with reproductionrelated expenditures. For example, the LA County Board of Supervisors’ report
measured the cost of providing public education to undocumented children; the two Huddle national
studies estimated the expense of making AFDC available to “illegal” immigrant families; and the report
to the State Senate Special Committee on Border Issues calculated the cost of delivering health services
to undocumented women and their children. This concern over reproduction becomes clearer still if we
look at more narrowly focused cost studies. Indeed, there were a number that concentrated specifically
on reproductive issues. Take, for instance, a 1997 US GAO report titled Illegal Aliens: Extent of Welfare
Benefits Received on Behalf of US Citizen Children. Its main purpose, as the title indicates, was to
determine the cost of providing public benefits – such as AFDC and Food Stamps – to illegal immigrant
parents for the care of their citizen children. 40 The report summarized its results as follows: The focus
here is obviously on undocumented women and their children (both legal and illegal). FAIR unmistakably
considered the expense of providing them with public services to be rather exorbitant. Now consider the
following newspaper titles: “Births to Illegal Immigrants on the Rise: California Taxpayers Finance
Soaring Number of Foreigners’ Babies” (Dalton 1994); “Medi-Cal Fraud Cases Soaring Here: State
Probers Blame Mexicans Seeking Free Care” (Duerksen 1990); and “Blockade at Border Hasn’t Cut
Births” (Cleeland 1994). The spotlight here was again on undocumented women and their children. They
were singled out as being particularly burdensome on the United States. Besides creating a general
public image of “illegal” immigrants as exploitative, then, popular knowledges also fashioned a specific
picture of undocumented women as welfare mothers. Indeed, they, as reproducers, were seen as
specially prone to being public charges. During the 1990s, then, particularly toward the middle part of
the decade, “illegal” immigrants come to be largely perceived as having a negative impact on public
services and, more generally, on the wellbeing of the nation. The general image that thus gets produced
of the undocumented is as drains on the economy. Indeed, they are imagined as rather parasitic, with
undocumented women and their children deemed particularly so. the following: What has taken place
during the post-1965 period, then, is that “illegal” immigrants have essentially been anathematized as
unethical subjects. Indeed, they have been deemed as uncommitted to personal responsibility and the
rule of law. They have been viewed as unable or unwilling to take proper care of their selves. They have,
in short, been signaled out as condensing in their bodies all that is anti-prudent: disorderliness,
economic dependency, and crime. The putative consequence of such irresponsibility has, of course,
been social and economic wounding of the social body. Significantly, this anathematization of the
undocumented has not come without its consequences. As we will see in the next part, the fact that
they have been cast as insecurities that endanger the social body has rendered them suspect and thus
vulnerable to authoritarian interventions. It has located them in a realm of abjection where they could
be subjected to all kinds of punitive measures in the name of protecting the welfare of the population.
31
Internal—Division of Life
Discourse, policy, and knowledge formation of the immigration narrative through
technologic surveillance is rooted in the narrative of the legitimate, self policing
citizen in antagonism to the non conforming racialized other
Inda ’06 [2006, JONATHAN XAVIER INDA earned a Ph.D. in Anthropology from the University of
California, Berkeley in 1997. His research areas include the politics of immigration, governmentality and
life politics, the critical study of race and medicine, the anthropology of globalization, and Latino
populations in the United States. Dr. Inda is currently Associate Professor of Latina/Latino Studies and
Criticism and Interpretive Theory. “TARGETING IMMIGRANTS Government, Technology, and Ethics” ]
While the governmentality literature’s emphasis on the individualization of responsibility goes a long
way in identifying the moral imperatives of post-social regimes of rule, it has left relatively unexplored
one important element of such regimes: their technologies of exclusion – especially their racial
technologies of exclusion, those practices and techniques through which racially marginalized subjects
are constructed and managed. The way to understand these practices is to think about them in relation
to the responsibilization of the subject. For what the responsibilizing imperatives of contemporary
government have done is created a realm of abjection – composed of debased and stigmatized subjects
deemed impervious to the demands of prudentialism. Postsocial regimes of rule, in other words, have
produced a division between active citizens and anti-prudential, unethical subjects, between a majority
who can and do secure their own well-being through judicious self-promotion and those who are judged
incapable of managing their own risks: the criminals, the underclass, the homeless, the vagrants, the
truly disadvantaged. And this is very much a racialized division: the subjects most often deemed
irresponsible – African Americans, Latinos, Native Americans, Asian Americans – are those whose
phenomenal/cultural characteristics serve to distinguish them from the dominant “white” population.8
The argument here, then, is that the figure of the prudential subject needs to be understood in relation
to its antipode: the oft-racialized anti-citizen unable or reluctant to exercise responsible selfgovernment. For post-social regimes have been involved not just in the responsibilization of citizens but
also in their irresponsibilization. They have not just produced communities of prudential subjects but
also made visible throngs of individuals who putatively do not quite measure up to the demands of
prudentialism. In short, it is necessary to understand not just the inclusions of contemporary
governmental technologies and political rationalities but also their exclusions – to grasp how post-social
regimes have been actively involved in producing and naturalizing a highly racialized division between
the prudent and the anti-prudent, the autonomous and the dependent, the citizen and the anti-citizen,
and the ethical and the unethical. The importance of paying heed to such dividing practices cannot be
overstated. For the construction of particular individuals as irresponsible has radical implications for the
way they are governed. There seems tobe a twofold strategy for managing such subjects (see Rose
2000b). On the one hand, there are technologies – following Barbara Cruikshank (1999), we can call
them technologies of citizenship (see Part One) – that endeavor to reinsert the excluded into circuits of
responsible selfmanagement, to reconstitute them through activating their capacity for autonomous
citizenship. We can see these technologies at work in the government of welfare. Contemporary
programs of welfare reform, such as the Personal Responsibility and Work Opportunity Reconciliation
Act of 1996 (Welfare Act), take the ethical reconstruction of the welfare recipient – most often
constructed as a young, black, single mother – as their primary task. Such programs have a tendency to
underscore the demoralizing effects of receiving welfare: how it leads to the formation of a culture of
dependence, to a situation in which welfare subjects lose their capacity to perform the functions of
ordinary citizens, including work. Welfare recipients are thus basically constructed as non-prudential
subjects existing outside the circuits of civility and responsible self-management. What these programs
endeavor to do – through a multiplicity of quasi-autonomous agencies – is regulate the conduct of
welfare subjects in order to remoralize them. They emphasize the importance of making the
reformation of habits a condition for receiving benefits. Pragmatically, this means that access to
monetary aid has become largely contingent upon having a job or searching for one. For example, the
Welfare Act imposes work requirements on those receiving welfare. Recipients can only receive
federally funded Temporary Assistance for Needy Families (TANF) for two years. After that they must be
taking part in work-related activities in order to obtain such assistance. And then they can only receive it
for a total of five years during their lifetime. The philosophy here is that the most effective way to get
recipients off welfare is to require them to find a job as swiftly as possible and acquire work skills
through hands-on experience. The overall goal is to end dependency. It is to nourish and reconstruct
autonomy and self-sufficiency. The idea of such post-social schemes is thus to govern the excluded in a
way that prepares them to take upon themselves the responsibility for managing their own well-being
and that of their kin. Should the project of ethical reconstruction fail, however, and it does fail, people
are nevertheless cut off from aid and left to their own devices. On the other hand, there are post-social
technologies – we can call these anti-citizenship technologies (see Part One) – that deem the exclusion
of certain anti-citizens to be unavoidable, and endeavor to regulate these individuals and sectors of
society – most notably young African American and Latino males but others as well – through operations
that seek to contain the threats they and their actions pose. These technologies include policies such as
“zero tolerance” and “three strikes,” the preventive detention of unmanageable individuals, and the
increasing use of the death penalty (see Rose 2000b; Stenson 2000). What has happened, according to
Jonathan Simon, is that “crime and punishment [have] become the occasions and the institutional
contexts in which we undertake to guide the conduct of others (or even of ourselves)” (1997: 174). He
refers to this development as “governing through crime.” At the forefront of this development are
sentencing regimes of just desserts, deterrence, and retribution that place a high premium on the
notion of individual responsibility. Part of the idea here is that offenders must be held accountable for
their actions: that they must bear the burden of their lifestyle choices. The calculus of punishment thus
serves to press upon the offending (or potentially offending) party the need to be responsible and
govern oneself ethically. Part of the idea is also that normal people must be protected from all those
who threaten their security and quality of life – unreconstructable welfare subjects, muggers,
prostitutes, the homeless, pimps, gang members, petty criminals, drug offenders, murderers, and the
like. The confinement of the few thus becomes a requirement for the freedom of the many. The result
of all this – of governing through crime – has been a rather dramatic increase in the prison population
and the general upsizing of the penal complex. Indeed, those who cannot manage their own risks have
increasingly become subject to imprisonment: not as a mechanism of remoralization, however, but
simply as a method of containment. An image thus takes form – one that is very much racialized – “of a
permanent underclass of risky persons who exist outside the normal circuits of civility and control and
will therefore require permanent and authoritarian management in the name of securing a community
against risks to its contentment and its pursuit of self-actualization” (Rose 2000a: 164). The other side of
the post-social coin is thus the increased use of law and order measures to govern the marginal and the
excluded. What is taking place, then, under post-social forms of rule, is that while political government
might have been downscaled and the responsibility for dealing with society’s need for health, security,
andwelfare largely displaced to a multiplicity of specific agencies (individuals, communities, schools,
localities, charitable organizations, the market, and so forth), this does not mean that the state is simply
withering away. And while it may be that under such rule the government of conduct generally works
through fostering the self-managing capacities of individuals, it does not mean that harsh, despotic
measures have no relevancy at all. We thus find that inasmuch as the government of the majority – of
those who can secure their own well-being through active self-promotion – by and large takes place
through the mechanisms of market and outside the formal political apparatus, the regulation of those
who cannot manage their own risks occurs increasingly through the widening reach of the repressive
arms of the state. To be sure, the post-social state does make some effort to remoralize and reinsert
risky individuals into circuits of civility – those of family, work, and consumption. But on the whole, it
seems to favor governing them through crime – through harsh punitive measures. The price paid for the
entrepreneurial and individualist autonomies of the majority thus appears to be a growing dependence
on crime and punishment to contain the hordes of racialized anti-citizens. What we are witnessing, then,
just to sum up, is the unfolding of a particular relation between the penal and welfare complexes such
that while welfare budgets are trimmed, penal budgets expand: while the social state is deliberately
allowed to wither, a kind of post-social police state flourishes as a penal dragnet comes to blanket and
demarcate racialized zones of exclusion. We are seeing, in short, a police and criminal shadow cast over
the marginal sectors of society as the responsibilizing imperatives of post-social government come to
rely on punitive institutions to make up for the downscaling of social protection. It is within this
exclusionary and neglected side of post-social government that I would like to situate the contemporary
problematization of illegal immigration. The book will thus explore, on the one hand, how a variety of
experts – social scientists, INS/DHS officials, policy analysts, immigration reform organizations, and the
public at large – have constructed illegal immigrants – typically imagined as Mexican – as imprudent,
unethical subjects incapable of exercising responsible self-government and thus as threats to the overall
well-being of the social body. This problematization of illegal immigrants as anti-prudent has taken a
number of specific forms. The most visible form has undoubtedly been that of illegal immigrants as
lawbreakers. The idea here is that such immigrants are, to put it plainly, illegal. These are people who
have flagrantly violated US immigration laws, either by crossing the border clandestinely or by
overstaying their visas. They are thus by definition criminals. Illegal immigration is a crime. A second
important form is that of illegal immigrants as public burdens. The thinking here is that these immigrants
come to the United States primarily to get on welfare and take advantage of the state’s social services.
Indeed, they are commonly seen as bent on sponging off the American people. And a final important
form is that of “illegal” immigrants as job takers. The general feeling appears to be that the
undocumented take away or steal jobs from (at least some) American workers. For many citizens, then,
illegal immigrants – as criminals, welfare dependents, job stealers – simply cannot be proper subjects.
They are uncommitted to personal responsibility and the rule of law. They are not capable of proper
selfmanagement. And it is the social body that is harmed as a result. On the other hand, the book will
examine how the programs that have been formulated to govern illegal immigrants and contain their
threat have been rather restrictive, exclusionary, and punitive. The aforementioned Operation
Gatekeeper, for instance, has brought together an impressive array of policing technologies – personnel
(Border Patrol agents), material structures (fences and lights), and surveillance devices (helicopters,
ground sensors, TV cameras, and infrared nightvision scopes) – at the San Diego–Tijuana border in order
to keep undocumented immigrants out of the United States. The result has been to cast an everdensening web of control and surveillance over the US–Mexico border and those migrants who attempt
to cross it illicitly. Put otherwise, as vast amounts of resources have been poured into boundary
enforcement, this southern border, along with numerous marginalized subjects, has become ensnared
in a police and criminal dragnet. The gist here is thus that insofar as illegal immigrants have been
constructed as anti-prudential subjects who harm the well-being of American citizens, the measures
employed to govern them have become extremely exclusionary and punitive. So much like the
government of racialized anti-citizens more generally, illegal immigrants have increasingly been
regulated through police and punitive measures. Indeed, crime and punishment have become the
occasions and the institutional contexts in which we undertake to govern illegal immigration. Illegal
immigrants have effectively been criminalized and treated as a criminal class. Introduction: Government
and Immigration 23 This book, then, while firmly grounded in the governmentality literature, also seeks
to address and remedy one of its major shortcomings: the failure to deal substantially with the racially
exclusionary practices of post-social government. It addresses and remedies this failure through placing
the management of illegal immigration – read Mexican immigration – primarily within the repressive
side of post-social government. It handles it through exploring how such government tends to deal with
racialized subjects, illegal immigrants in this case, through draconian measures. The main contribution
the book makes to the governmentality literature is thus to expand its purview. It is to bring within its
range of vision those subjects deemed averse to the exigencies of prudentialism: those reckoned to
threaten the welfare of the population
Internal—Eurocentrism
Current policy discourse constructs Mexican and Latin American immigrants as iconic
aliens, creates them as a different class of persons and creates internal exclusion
Ngai 3 (Mae M., American historian and Lung Family Professor of Asian American Studies and Professor of History at Columbia University,
Law and History Review--Columbia Volume 21 / Issue 01 / Spring 2003, pp 69-. 2003 DOI: http://dx.doi.org/10.2307/3595069 (About DOI),
Published online: 28 October 2011 JM)
This essay examines the advent of mass illegal immigration and deportation policy under the
Immigration Act of 1924 and how these trends altered meanings of inclusion in and exclusion from the
nation. It argues that numerical restriction created a new class of persons within the national body-illegal aliens--whose inclusion in the nation was at once a social reality and a legal impossibility. This
contradiction challenged received notions of sovereignty and democracy in several ways. First, the
increase in the number of illegal entries created a new emphasis on control of the nation's contiguous
land borders, which emphasis had not existed before. This new articulation of state territoriality
reconstructed national borders and national space in ways that were both highly visible and
problematic. At the same time, the notion of border control obscured the policy's unavoidable slippage
into the interior. 6 Second, the application of the deportation laws gave rise to an oppositional political
and legal discourse, which imagined deserving and undeserving illegal immigrants and, concomitantly,
just and unjust deportations. These categories were constructed out of modern ideas about social
desirability, in particular with regard to crime and sexual morality, and values that esteemed family
preservation. Critics argued that deportation was un-just in cases where it separated families or exacted
other hardships that were out of proportion to the offense committed. As a result, during the 1930s
deportation policy became the object of legal reform to allow for administrative discretion in
deportation cases. Just as restriction and deportation "made" illegal aliens, administrative discretion
"unmade" illegal aliens. 7 Taken together, these trends redefined the normative basis of social
desirability and inclusion in the nation. That process had an important racial dimension because the
application and reform of deportation policy had disparate effects on Europeans and Canadians, on the
one hand, and Mexicans, on the other hand. But, the disparity was not simply the result of existing
racism. Rather, the processes of territorial redefinition and administrative enforcement informed
divergent paths of immigrant racialization. Europeans and Canadians tended to be disassociated from
the real and imagined category of illegal alien, which facilitated their national and racial assimilation as
white American citizens. In contrast, Mexicans emerged as iconic illegal aliens. Illegal status became
constitutive of a racialized Mexican identity and of Mexicans' exclusion from the national community
and polity.
Exceptions don’t apply equally—they’re applied on the basis of a constructed race and
favor Europeans
Ngai 3 (Mae M., American historian and Lung Family Professor of Asian American Studies and Professor of History at Columbia University,
Law and History Review--Columbia Volume 21 / Issue 01 / Spring 2003, pp 69-1082003 DOI: http://dx.doi.org/10.2307/3595069 (About DOI),
Published online: 28 October 2011 JM)
The discourse on unjust deportation referred mostly to European immigrants and only occasionally to
Mexicans. Ethnic Mexicans in the United States voiced the same concerns as did Europeans; for
example, the Los Angeles Spanish-language newspaper La Opinión criticized the deportation of
Mexicans who had ten years of residence in the U.S., businesses, and family.89 But Mexicans remained
marginalized from the mainstream of immigration discourse. Among Euro-American reformers,
references to immigrants of good moral character were usually not racially explicit, but by definition
such immigrants were unlikely to be Mexican because "Mexican" had been constructed as a negative
racial category. More important, reformers did not call for leniency in cases of unlawful entry, because
this was a core component of the system based on numerical restriction, which none of them directly
opposed. In contrast to environmentalist and relativist notions of crime, the idea of transgressing the
nation's sovereign space stood out as an absolute offense. Thus, while European immigrants with
criminal records could be constructed as "deserving," Mexicans who were apprehended without proper
documents had little chance of escaping either the stigma of criminalization or the fate of deportation.
73 Legislative and administrative reforms operated in ways that fueled racial disparity in deportation
practices. In 1929 Congress passed the Registry Act, which legalized the status of "honest law-abiding
alien[s] who may be in the country under some merely technical irregularity." The law allowed
immigrants to register as permanent residents for a fee of twenty dollars if they could show that they
had resided in the country continuously since 1921 and were of good moral character.90 The law did
not formally favor Europeans over Mexicans. But, of the 115,000 immigrants who registered their prior
entries into the country between 1930 and 1940, eighty percent were European or Canadian. According
to Berkeley economist Paul S. Taylor, many Mexicans qualified for an adjustment of status under the
Registry Act but few knew about it, understood it, or could afford the fee.91 74 During the 1930s and
1940s the Labor Department instituted a series of reforms that addressed, albeit in limited ways,
questions of due process in deportation proceedings and established administrative mechanisms
whereby certain illegal aliens--mostly Europeans--could legalize their status. Immigration and
administrative law reformers welcomed the administration of Franklin D. Roosevelt in 1933. Roosevelt's
secretary of labor, Frances Perkins, was a New York Progressive-era reformer and the new head of the
INS, Daniel W. MacCormack, was the first immigration commissioner who did not come directly from
organized labor. 92 Perkins and MacCormack took seriously the criticisms that had been mounting
against the Immigration Service's practices. The secretary noted that "much odium attached to the
Service due to [its] policies and methods" in deportations.
Laws historically created Mexicans as forever criminal and undeserving of relief,
whereas other immigrants are viewed as deserving of citizenship—creates the
dichotomy of territoriality so that it is always controlled by the European
Ngai 3 (Mae M., American historian and Lung Family Professor of Asian American Studies and Professor of History at Columbia University,
Law and History Review--Columbia Volume 21 / Issue 01 / Spring 2003, pp 69-1082003 DOI: http://dx.doi.org/10.2307/3595069 (About DOI),
Published online: 28 October 2011 JM)
Numerical restriction legislated in the 1920s displaced qualitative reasons for inclusion and exclusion
with criteria that were at once more abstract and arbitrary--the quota slot and the proper visa.
Previously, territoriality had been exercised to exclude people not deemed fit to be part of the nation. In
the 1920s qualitative norms of desirability remained in the law as grounds for inclusion and expulsion
but, as we have seen, they were employed in deportation cases less often than was the rule of
documentation and, moreover, they were applied irregularly and with considerable discretion. As
qualitative norms receded in importance, territoriality--defining and policing the national space-became both the means and the ends of immigration policy. 96 However, Americans increasingly
believed that deportation, initially imagined for the despised and dangerous classes, was undemocratic
and unjust when applied to ordinary immigrants with homes and families in the United States. Hence
during the 1930s and early 1940s statutory and administrative reforms attempted to ease the tension
between sovereignty and democracy that immigration policy had created. Family values and
environmentalist views of delinquency and morality paved the way for reform, while race directed its
reach. 97 Thus it became possible to unmake the illegality of Italian, Polish, and other European illegal
immigrants through the power of administrative discretion. Of course, not all illegal European
immigrants were legalized, but a rough estimation suggests that between 1925 and 1965 some 200,000
illegal European immigrants, constructed as deserving, successfully legalized their status under the
Registry Act, through pre-examination, or by suspension of 98 PM deportation. The formal recognition
of their inclusion in the nation created the requisite minimum foundation for acquiring citizenship and
contributed to a broader reformation of racial identity, a process that reconstructed the "lower races of
Europe" into white ethnic Americans.122 By contrast, walking (or wading) across the border emerged
as the quintessential act of illegal immigration, the outermost point in a relativist ordering of illegal
immigration. The method of Mexicans' illegal entry could thus be perceived as "criminal" and Mexican
immigrants as undeserving of relief. Combined with the construction of Mexicans as migratory
agricultural laborers (both legal and illegal) in the 1940s and 1950s, that perception gave powerful sway
to the notion that Mexicans had no rightful presence on United States territory, no rightful claim of
belonging. 99 The basic principle of immigration law doctrine that privileged Congress's plenary power
over the individual rights of immigrants remained intact. The contradiction between sovereignty and
individual rights was resolved only to the extent that the power of administrative discretion made
narrow exceptions of the sovereign rule. In the context of immigration law that foregrounded
territoriality and border control, and in the hands of immigration officials operating within the
contingencies of contemporary politics and social prejudices, that discretion served to racialize the
specter of the illegal alien.
Internal—Terrorrism
9/11 threat discourse has furthered problematization of immigrants in society- terror
discourse is simply another continuation of the governmentality of the governable
subject
Inda ’06 [2006, JONATHAN XAVIER INDA earned a Ph.D. in Anthropology from the University of
California, Berkeley in 1997. His research areas include the politics of immigration, governmentality and
life politics, the critical study of race and medicine, the anthropology of globalization, and Latino
populations in the United States. Dr. Inda is currently Associate Professor of Latina/Latino Studies and
Criticism and Interpretive Theory. “TARGETING IMMIGRANTS Government, Technology, and Ethics” ]
Clearly expressed here is the idea that there is an ever-present possibility that foreigners might seek to
enter the United States in order to commit acts of terrorism. Moreover, there is an articulation of the
need to protect against this threat and safeguard the homeland. 45 A related change in post-9/11
immigration politics involves the increased problematization of non-Mexican immigrant illegality.
Without a doubt, Mexicans continue to be the main group associated with “illegal” immigration.
However, now there is also a concern that others, particularly from populations not friendly to the
United States, are attempting to sneak into the country. This problematization has been explicit at both
the popular and policy level. At the popular level, a good example is the Time article discussed earlier
(Barlett and Steele 2004). Following the brief discussion of numbers (that is, of the size of the
undocumented population) quoted above, the authors ask: “Who are these new arrivals?” The answer:
Clearly, there is a strong concern here with other than Mexicans crossing the US–Mexico border
clandestinely. But not all OTMs are equally worrisome. The mention of Egypt, Iran, and Iraq in the
context of terrorism makes it patent that the OTMs of particular concern are those from Muslim
countries. These are the places deemed to breed terrorists. With respect to the policy level, we can turn
to a February 12, 2004 House of Representatives hearing on “Preventing the Entry of Terrorists into the
United States.” The anxiety about other than Mexicans entering the United States surreptitiously is best
expressed by Bill West, a consultant for the Investigative Project, a counterterrorism research institute
based in Washington, DC, and former INS employee in the Investigations Division. Speaking before the
Subcommittee on International Terrorism, Nonproliferation, and Human Rights, West notes: In this case,
the troublesome OTMs are not explicitly linked to Muslim countries. However, it has become obvious
that, in the post-9/11 context, to speak of foreign terrorists is to speak of Muslims. It was Muslim
“extremists” who carried out the 9/11 attacks. And it is they who are seen as continuing to wish America
harm. A final adjustment in the post-9/11 politics of immigration is the increased problematization of
the US–Canada border and official ports of entry (POEs). Unquestionably, the Southwest border,
particularly between ports of entry, continues to be seen as the primary doorway for unauthorized entry
into the United States. Now, though, there is more attention being placed on other avenues of illicit
access. One avenue is the US–Canada border. This border has historically been largely unguarded and
the flow of people between the two countries relatively unfettered. But given the “threat” of terrorism
today, the fear is that the unregulated nature of this dividing line is being exploited by those who seek
to commit violent acts against the United States. The US–Canada border has thus come to be
constructed as a potential source of danger. Such a construction can be seen, for example, in the
testimony of witnesses who appeared at the hearing mentioned above. One such witness, Peter Nunez,
a faculty member of the Department of Political Science and International Relations at the University of
San Diego, articulated the danger of the northern border as follows: Another avenue that has been
problematized is ports of entry. POEs are the officially designated spaces through which people may
legally enter the United States. There are approximately 300 of these in the United States: land, sea, and
air ( US DHS 2004a: 145). POEs have become an issue because every one of the 9/11 hijackers came to
the United States through an official entryway: all nineteen had visas, some fraudulently obtained (West
2004: 46). The fear is that “terrorists” are continuing to exploit weaknesses in the inspections process at
ports of entry in order to make their way into the United States. This fear is best expressed in a GAO
report titled Land Border Ports of Entry: Vulnerabilities and Inefficiencies in the Inspections Process ( US
GAO 2003). The purpose of this report was to evaluate “immigration-related inspections at land border
POEs” (US GAO 2003: 1). Among the problems it found were the following: inspectors sometimes
experienced problems authenticating the identity of travelers; inspections were not consistently carried
out according to policy; lack of technology and equipment hampered access to data systems; and
inspectors lacked the time and training to collect, analyze, and use intelligence information. The report
concluded that persons wishing to enter the United States illegally could take advantage of any of these
weaknesses. Moreover, it noted: “given the threat of terrorism against the country, it is Particularly
important that inspectors at land border POEs have the support they need to collect, analyze, and use
intelligence information” (US GAO 2003: 4). All things considered, there have been some significant
changes in the post-9/11 problematization of “illegal” immigration. The concern now is not just with the
prototypical “job-stealing,” “welfaredepending” unauthorized immigrant but also with those who would
sneak into the country to commit acts of terrorism. Whichever figure we are dealing with, though, the
“problem” of immigrant illegality is still basically understood as an ethical one. Both types of
unauthorized persons are deemed to be irresponsible non-citizens tied to communities of anti-civility
and uncommitted to the rule of law. One would do the United States harm through abusing social
services, the other through mass destruction. The anathematization of unauthorized migrants as
unethical had already rendered this group susceptible to various kinds of authoritarian interventions
prior to September 11, 2002. Now, with every illegal entrant potentially a terrorist, they have been cast
even more deeply into a realm of abjection where punitive measures carried out in the name of
protecting the well-being of the social body are deemed all the more legitimate.
Case Internals—Fugitivity
Internal—Fugitivity
Undocumented immigrants have been stigmatized as fugitives
McKanders, University of Tennessee prof., in 12 (Karla Mari McKanders, “Immigration
Enforcement and the Fugitive Slave Acts: Exploring Their Similarities,” Catholic University Law Review,
Volume 61 Issue 4, published 2012, accessed 7-12-15,
http://scholarship.law.edu/cgi/viewcontent.cgi?article=1032&context=lawreview)//JRom
The 1850 Fugitive Slave Act is analogous to current immigration enforcement laws and policies in terms
of federal supremacy and congressional deference—both demonstrate the failure of federalism. In the
case of fugitive slaves, the states could not agree and the federal government was relatively powerless
to enforce the desires of the southern states until 1850. The underlying problem, of course, was a
fundamental disagreement about the meaning of personhood and citizenship. The southern states felt
quite comfortable abusing African Americans’ rights because they strongly believed that slaves were
property and they were not intended to become citizens.163 The fundamental disagreement with the
northern states on this issue made political compromise impossible.164 The immigration story is an
example of reverse-federalism. States are currently frustrated by the federal government’s relative
inaction on the immigration front.165 Accordingly, states like Alabama, Arizona, Utah, and Georgia have
begun enacting their own immigration laws.166 The state immigration laws will have a significant
impact on immigrant rights. This section examines the reverse federalism story and the extent to which
current federal immigration enforcement policy reinforces state and local actors enacting their own
immigration laws against both citizen and noncitizens’ rights—especially those who look or sound
foreign. Similar to the time when the 1850 Fugitive Slave Act was enacted, there is currently a conflict
amongst states and localities about how to address immigrants within their communities.167 Recently,
various states and localities have enacted laws targeting immigrants while others have enacted laws that
give sanctuary to immigrants within their communities. 168 When discussing federal authority over
immigration, most dialogues start with the proposition that immigration went largely unregulated until
the federal government first exerted authority over immigration in the early twentieth century.169
Discussions related to federal supremacy in the area of immigration are often based on the plenary
powers doctrine to justify federal control over immigration without a detailed examination of the
historical underpinnings of the federal immigration system.170 Recently, immigration scholars have
focused on the relationship between federal, state, and local governments in regulating
immigration.171 States and localities claim that they should be able to use their Tenth Amendment
police powers to regulate immigrants within their borders, while the federal government claims
exclusivity in the area of immigration law and policy.172 One striking similarity between the Fugitive
Slave Acts and current immigration laws is that the 1850 Act created a unique federal law enforcement
institution that removed power from state and local hands.173 The Thomas Sims case perfectly
illustrates the parallel.174 Thomas Sims, a fugitive slave, escaped to Massachusetts and began
working.175 A few years later, his former owner located him in Massachusetts and sought his
return.176 The former owner went through a commissioner to obtain a certificate of removal and then
sought to arrest Sims.177 Instead of using U.S. Marshals to enforce the certificate of removal, the
federal government deputized state and local officials as federal agents to enforce the provisions of the
1850 Act.178 City policemen were hastily sworn in as deputy federal marshals and effectuated the
arrest.179 They ignored the Massachusetts personal liberty law, which stated that Massachusetts would
not comply with the 1850 Act and return fugitive slaves to slave states in the South.180 Despite the
clash between federal and Massachusetts law, Sims was returned to Georgia as a fugitive slave.181 B.
States and Localities Take Action Currently, states and localities argue that the federal government fails
to enforce existing federal law governing the removal of immigrants within their borders.182 For
example, the Immigration and Nationality Act (INA) § 287(a) gives U.S. Immigration and Customs
Enforcement (ICE) the power to interrogate any person believed to be a noncitizen regarding his or her
right to be present in the United States and to arrest noncitizens for violation of immigration laws.183
Further, INA § 287(g) empowers the federal government to enter into agreements with states and
localities to apprehend and deport undocumented immigrants.184 States and localities believe that the
federal government is not effectively implementing these types of federal provisions and, as a result,
have begun enacting their own laws that mimic § 287(a).185
Undocumented immigrants live in fugitivity and are disenfranchised and discriminated
against by state policy
Gonzalez and Chavez in 12 (Roberto G. Gonzalez, Harvard prof, and Leo Chavez, UC Irvine prof,
“’Awakening to a Nightmare’: Abjectivity and Illegality in the Lives of Undocumented 1.5-Generation
Latino Immigrants in the United States,” Current Anthropology Volume 53, No. 3, published June 2012,
accessed 7-13-15)//JRom
The voices heard here indicate bitter lessons learned. With the awakening reality of their abject status
as socially constituted noncitizens, these young people came to realize they were not like their peers.
Even though they may have come to believe the civic lessons so essential to citizenship and to hold dear
the values driving the American Dream, the illegality that defined their abject status left them with a
clear sense of their difference. As noncitizens, they were full of discardable potential. No matter how
hard they worked or how they selfdisciplined, applied themselves, and self-engineered their very beings,
they were to remain on the sidelines, waiting, leading abject lives on the margins of society, desiring
government documentation of their presence. Knowing they have more to offer society and themselves,
they wait for the possibility that future changes to immigration laws would someday ameliorate their
condition. Some wilted under such pressure, while others resisted, pursued education and training,
struggled to survive economically, contributed to organizations working to change the nation’s
immigration laws, and maintained hope in a future where they would be allowed full participation in
society. For example, of the 76 in-depth interviews conducted during or after the immigrant marches of
2006, 65 had participated in at least one march.23 This includes all but one of the interviewees quoted
in this paper. Another 42 of the in-depth interviewees, including Catarina, Cesar, Misto, Grace,
Esperanza, and Miguel, have contributed their time to organizations working to promote passage of the
DREAM Act. We interpret these acts of resistance as acts of cultural citizenship, which Flores and
Benmayor (1997:15) define as a broad range of activities that disadvantaged groups use to claim space
and rights in society. However, their lives are narrowly circumscribed by a multitude of regulations that
protect citizens and ensure the persistence of an abject population against which citizens are defined,
such as policies regarding immigration, detention, deportation, access to social services, medical care,
driver’s licenses, Social Security cards, bank accounts, work authorization, and many other
micropractices of control. Despite, or even because of, these constraints on their lives, many of the
young people examined here assert their cultural citizenship through their political activities and by
continuing their education.24 These acts blur the boundaries between objects and subjects of political
power and are important forms of resistance to the condition of abjectivity that informs and frames
their lives. Finally, although 1.5-generation undocumented Latinos engage in both self-disciplining and
resistance, their full integration into society is on hold. Their fates—whether they will continue living in a
state of illegality, be allowed to become legal permanent residents, or be deported—are unknown to
them. In the meantime, there is the suffering that goes along with the contradictions of being raised in a
society that finds you discardable. Focusing on abjectivity among the undocumented 1.5 generation
draws our attention to the practices of power that help construct the abject, such as laws targeting
immigrants. But by no means is abjectivity limited in its applicability. There is much to be learned about
the subjective understanding of living in an abject status among various individuals and groups who find
themselves relegated to such a status. By way of a postscript, young undocumented Latinos continue to
have their fates and hopes raised and dampened by public policies and polarized political discourse.
Under President Obama, the threat of deportation for undocumented immigrants actually increased. In
2009, for example, 387,790 people were deported, a 5% increase over 2008, the last year under George
W. Bush’s administration (Medrano 2010). In addition, the federal Secure Communities program, which
works in cooperation with local police to locate undocumented immigrants, received criticism for
deporting immigrants with minor offenses and for splitting apart families (Preston 2011a). Then, on July
26, 2011, Representative Luis Gutierrez (Illinois) was arrested for protesting, outside the White House,
the one millionth deportation by the Obama administration, about half the number deported over 8
years under George W. Bush (DHS 2011:95). However, in a dramatic change in policy, the Obama
administration, in August 2011, began reviewing all deportation cases in order to separate criminals
from noncriminals. Those who have not been convicted of a crime would possibly receive a suspension
of deportation and be allowed stay, and would also possibly be able to apply for work permits (Preston
2011b). This policy has raised the hopes of many. As one 21-year-old undocumented student who was
brought to the United States as a boy and whose mother is facing deportation put it: “It makes me
happy and hopeful. I hope they go through my mother’s case, stop her deportation and, if possible, get
her a work permit” (Goffard et al. 2011). While possibly reducing the 24. For more on cultural and social
citizenship, see Dwyer (2004); Ong (1996); Rosaldo (1997); Sassen (2003); Schiller and Caglar (2008);
Stephen (2003). risk of deportation for some of the undocumented 1.5 generation, it does not solve the
problem of their lack of citizenship—rather, it creates another subclass of individuals living in limbo. The
new deportation policy does not provide undocumented immigrants with a path to citizenship, which is
something only Congress can do. Until Congress acts, the young people examined here will continue to
live with uncertain futures.
Internal—Undocumented women
TIGRES SONG
I have made the United States my home...
I continue to be an outlaw.
What good does money do me, if I live like a
prisoner, inside this great nation.
When I remember, I even cry.
Although the cage is made of gold, it is a prison.
From work to home, I don't know what happens
to me.
Although I'm the man of the house, I almost
never go out to the street, because I'm afraid
they 'll haul me away and deport me.
- From "Jaula de Oro," by Los Tigres del Norte (1984)
Undocumented women migrants live in a constant state of fugitivity
Parson and Heckert in 14 (Nia Parson, Rutgers Anthropology prof; Carina Heckert, Dedman
Anthropology prof; “The Golden Cage: The Production of Insecurity at the Nexus of Intimate Partner
Violence and Unauthorized Migration in the United States,” Human Organization 73.4; published winter
2014, accessed 7-15-15)//JRom
Women's narratives reveal that the security provided by the family is crucial in the United States, in the
absence of biopolitical personhood or secure belonging to the state. Women often talked about
interpersonal abuses they sustained that preyed on this sense of insecurity in relationship to the state.
In a sense, intimate partner relationships and families provide shelter from the challenges posed by the
state's policies that unsettle foundations of individual and collective identities. Meanwhile, for many
women, the base of family constitutes but another dimension of the same insecurity-produced at the
nexus of the intimate and political, where one solution is to seek recourse from the state and social
service agencies. Migration is agency, but that agency as it emerges in many women's narratives is
wrought out of the impossible choice of staying in an untenable situation where life is at risk, and
migrating into an environment where there are imagined possibilities for themselves and their futures
(Segura and Zavella 2007). The emotional valence in women's narratives is one of melancholy, remorse,
disappointment, and failed expectations for their possible lives in the United States. They inhabit so
many spaces of violence, including memories of violence, the substrate of fear, and ontological
insecurities. Memory as a space of violence is an important thread running throughout many of the
narrative pieces women shared with us about migration, domestic violence, political violence, drug
violence, economic violence, and concomitant emotional pain. The fact of crossing the border is but
one facet of unauthorized migration as unfinished social process. For many of the women we
interviewed, unauthorized migration attaches to other vulnerabilities and facets of their social lives to
produce ontological insecurities, a subjective sense that the world, the routine, the ordinary, cannot be
trusted. Ontological security is not always produced out of routinization. When abuse is the routine, the
daily grind of intimate insult occurs in a sphere of supposed "safety," which is the family, in juxtaposition
to a non-existent or insecure relationship to the state, with the attendant underlying fears of
deportation that pervaded women's narratives of their personal and social lives. This pervasive sense of
insecurity was produced within a political economic context in the United States related to toughening
laws and high rates of deportation on undocumented immigrants at the federal, state, and local levels.
Partners' invocations of the arbitrary and constant threat of the state's intervention and deportation
become an intimate form of abuse. This form of psychological abuse is in part the threat of deportation,
which is a well-known dimension of interpersonal social control, but this research highlights another
dimension. These constant reminders of the ontological insecurity that unauthorized and precariously
documented immigrants occupy is an important form of intimate partner abuse for some women.
Intimate partners' everyday reminders of women's biopolitical insecurity produce suffering and
degradation that cannot be remedied without a permanent and secure relationship to the state.
Ontological insecurities for women who occupy unauthorized or precarious biopolitical relationships to
the state are inseparably political and personal, and strategies to address intimate partner violence
against women in such vulnerable positions demand attention to these entanglements. This article
suggests a need for attention to the palpable sense of insecurity produced by the political and economic
situation in the United States related to immigration laws at the federal, state, and local levels and to
the intimate partner violence women experience. In particular, the burden of evidence for VAWA could
be alleviated and these cases expedited to reduce time in a precarious status. Additionally, Prosecutorial
Discretion in cases of deportation could be more widely applied to cases involving intimate partner
violence.
Impact—Structural Violence
The fugitive status of undocumented immigrants justifies tangible and structural
violence against Hispanic people while demanding their labor to maintain the system
of oppression
Chavez, UC Irvine prof, in 91 (Leo, “Outside the Imagined Community: Undocumented Settlers and
Experiences of Incorporation,” American Ethnologist, Volume 18, No. 2, published May 1991, accessed
7-13-15)//JRom
With such rapid changes have come mounting tensions between those who live in houses,
condominiums, and apartments, and migrant workers, who live in makeshift campsites and stand on
busy streets waiting for offers to work. These tensions erupt periodically, as when it was feared that
migrant workers were about to cause a malaria epidemic (Dawsey 1988) or when migrant workers were
accused of extorting lunch money from schoolchildren (San Diego Union 1986). A candidate for the
County Board of Supervisors in 1986 conveyed these themes using images of war, disease, and disaster:
Nowhere else in San Diego County do you find the huge gangs of illegal aliens that line our streets, shake
down our schoolchildren, spread diseases like malaria, and roam our neighborhoods looking for work or
homes to rob. We are under siege in North County, and we have been deserted by those whose job it is
to protect us from this flood of illegal aliens. [quoted in Weintraub 1986] These and other fears
sometimes give way to expressions of violence. For example, there have been cases in which
unidentified men have driven by in trucks and used sticks to club fieldhands walking along the street; on
one occasion a Mexican fieldworker waiting for a bus was shot in the back, paralyzing him from the
waist down; and on another occasion a Mixtec Indian from Oaxaca was tied up, beaten, and left with his
head covered with a paper bag bearing the message "no mas aqui" (sic; "no more here") (Freedman
1990). Undocumented immigrants, that is, are not generally regarded as members of the community;
they are society's "Others," who, as Michel Foucault (1970:xxiv) notes, "for a given culture, [are] at once
interior and foreign, therefore to be excluded (so as to exorcize their interior danger)." As a
consequence, the larger society often endows the identity, character, and behavior of the illegal alien
with mythic qualities. And, like most mythicization, this helps justify and give meaning to the social and
economic order. The larger society's beliefs and attitudes concerning undocumented immigrants are an
expression of what Antonio Gramsci calls hegemony: the permeation throughout civil society ... of an
entire system of values, attitudes, beliefs, morality, etc. that is in one way or another supportive of the
established order and the class interests that dominate it.... To the extent that this prevailing
consciousness is internalized by the broad masses, it becomes part of "common sense." [Greer 1982,
quoted in Martin 1987:23] The "common sense" view of undocumented immigrants stresses their
transience, so affirming their ostensible lack of commitment to the community's well-being. As "illegal
aliens" they are not legitimate members of the community. The "illegal" component of this term
underscores the fact that they exist outside the "legal" system that constitutes society. "Alien" is
synonymous with "outsider," "foreigner," and "stranger." As criminals, or potential criminals, they exist
outside the laws that govern the behavior of lawful citizens. In short, the undocumented immigrant's
image consists of a conglomeration of negative values and missing qualities (even "undocumented"
stresses the lack of documentation). The hegemonic beliefs and attitudes that define "illegal aliens"
must be taken into account when one is considering the immigrants' incorporation into society.
Although undocumented immigrants may settle in U.S. communities, their incorporation into the life of
the larger society does not depend solely on their own actions and perceptions. A society that is
unwilling to "imagine" undocumented settlers as part of the existing society places limits on their
incorporation. Undocumented immigrants are, for example, the targets of state policies that limit, or
attempt to limit, their participation in state programs such as health care, education, and housing
(Rumbaut, Chavez, Moser, Pickwell, and Wishik 1988; Chavez 1986, 1988). The state also attempts to
limit their ability to work. Agents of the INS raid places where undocumented immigrants are suspected
of working, and Congress passes laws that make it illegal to hire undocumented workers (Chavez, Flores,
and Lopez-Garza 1990; U.S. Congress, House of Representatives 1986). Even when not working,
undocumented immigrants face the constant threat of apprehension and actual physical removal from
the country (Chavez and Flores 1988; Chavez, Flores, and Lopez-Garza 1989). The state makes it very
clear that undocumented immigrants are unwelcome, actively seeking to restrict their economic
opportunities and discourage their continued presence in the country. At the same time,
undocumented workers are part of the local economy. Employers view undocumented laborers as
dependable and hardworking, and some industries have come to rely on their labor (Cornelius 1988).
Obviously, the larger society harbors complex and contradictory attitudes about undocumented
immigrants. In Orientalism (1978), Edward Said points out how such oppositions can form part of the
image a society creates of the "Other." Said argues, as Jackson (1989:150) notes, that the "relationship
between East and West is not a purely imaginative relation, but one that is based on very real material
foundations, including the history of French, British and American imperialism." Like the West's ideas
about the East, the larger society's views of "illegal aliens" are not myths merely in the sense that they
may be false. The generally negative, but also contradictory, views of undocumented immigrants serve a
purpose; they obscure the undocumented immigrants' contributions to the economic wellbeing of the
communities in which they settle.