By Bill Ong Hing, Professor of Law, University of San Francisco
We are a nation of immigrants, but we also are a nation that loves to debate immigration policy, and that debate reflects the battle over how we define who is an American. The anti-immigrant movement in the United States is as strong as ever. Immigrant bashing is popular among politicians, talk radio hosts, private militiamen, and xenophobic grassroots organizations. They take full advantage of the high-tech era in which we live, as they complain about the “illegal alien invasion.” Their common thread is the rhetoric of fear. This hysteria leads to tragic policies that challenge us as a moral society. ICE raids, enormous funding for border enforcement, anti-immigrant ordinances, and record levels of detention are manifestations of the venom, while immigrants and citizen relatives are forced to suffer.
Arizona’s SB 1070 is an example of these results. The controversial law would make it a state crime for an alien to be in Arizona without carrying the required documents, bar state or local officials from enacting sanctuary laws, and crack down on those sheltering, hiring and transporting undocumented aliens. The intent of the legislation, major portions of which are currently enjoined, is to make life miserable for the undocumented in Arizona in hopes of achieving “attrition through enforcement.” Critics charge that the law invites racial profiling and exceeds state authority.
Anti-immigrant ordinances and laws at the state and local levels are nothing new. The original thirteen colonies attempted to define their new America by promoting immigration only to select groups. As early as 1751, no less an icon of the New World than Benjamin Franklin opposed the influx of German immigrants, warning that “Pennsylvania will in a few years become a German colony; instead of their learning our language, we must learn theirs, or live as in a foreign country.” After independence, a number of states instituted legislation aimed at the poor from abroad as well as those from other states; in Massachusetts, the 1794 poor laws imposed a penalty on any person who knowingly brought a pauper or indigent person into any town in the Commonwealth and left the person there. Religious belief often limited one’s choice of domicile in the New World. In the spirit of the time, colonial charters frequently denied admission to Catholics. Virginia passed laws ordering that Quakers be detained and deported; death was the punishment for a third unlawful entry. Prior to the Civil War, Southern slave states adopted legislation prohibiting the migration of free blacks and urged free Northern states to do the same. Since many residents of the North were prejudiced against blacks, several free states obliged, either blocking the movement of blacks into the state or requiring good behavior and assurances that blacks would not become public charges.
Of course, well into 19th and 20th centuries, enactment of anti-immigrant state laws and local ordinances continued. The racist laws directed at Chinese in the West have been well-documented. San Francisco’s infamous no-wooden-laundry law aimed at Chinese laundries ended up in the Supreme Court in Yick Wo v. Hopkins. The preclusion of Chinese witnesses testifying against whites in California courtrooms was upheld by the California Supreme Court. A Tucson ordinance banned Chinese from living within city limits. Throughout the West, alien land laws prohibited Asian immigrants from owning or leasing land. And throughout the country, many states’ anti-miscegenation laws were enforced against immigrants of color as well as blacks who attempted to marry whites.
Eventually, all of these laws and ordinances were struck down as either violations of the Fourteenth Amendment or preempted by federal law. Since Congress was deemed to have plenary power over determining who should enter or be deported, local and state laws construed to be attempts to regulate immigration were ruled unconstitutional. For example, in Graham v. Richardson, the Supreme Court struck down a bar to state welfare benefits for lawful resident aliens. In Sugarman v. Dougall, the Court invalidated a citizenship requirement for state civil service positions. In In re Griffiths, the exclusion of lawful resident aliens from the practice of law in Connecticut was invalidated. Similarly, in Bernal v. Fainter, the Court ruled unconstitutional a state citizenship requirement for notary publics. In all of these cases, the court applied strict scrutiny to the alienage classification. One of the high points in this line of cases is Plyler v. Doe, striking down a Texas law that denied undocumented children access to elementary and secondary public schools, in spite of the fact that undocumented status was not deemed a suspect classification and the Court had never deemed the right to education fundamental. Plyler was the authority relied upon by federal judge Mariana Pfaelzer in repudiating Proposition 187’s education provisions in the 1990s.
In spite of the caselaw striking down these anti-immigrant state laws primarily on equal protection grounds, the Supreme Court did carve a huge exception for states to limit certain “public functions” jobs to U.S. citizens in spite of very well qualified lawful resident applicants. Beginning with Folie v. Connelie, the Court has deferred to a state’s requirement of U.S. citizenship when the position entails a public function, or involves the “formulation, execution, or review of broad public policy.” Thus, in Folie, the Court held that New York could bar aliens from holding state law enforcement positions. In Ambach v. Norwick, the Court ruled that pubic school teaching fell within the public functions exception as well, even though a French immigrant was applying to teach high school French. Similarly, in Cabell v. Chavez-Salido, the Supreme Court held that probation officer positions in California could be limited to U.S. citizens.
Although discrimination issues have been raised in the current litigation over Arizona’s SB1070—especially with respect to the prospect of racial profiling that will likely occur if Arizona police are to target undocumented immigrants—the primary argument that the Department of Justice and others have advanced is that the field of immigration enforcement is preempted by federal law. In response, Arizona relies on DeCanas v. Bica, a 1976 Supreme Court case that upheld a California employer sanction law making it illegal for employers to hire undocumented workers. However, in 1986, Congress enacted the Immigration Reform and Control Act (IRCA) that included a federal employer sanction law. One would presume, therefore, that a state’s effort to enact an employer sanction law today would be preempted. In fact, the Third Circuit Court of Appeals recently struck down Hazelton, Pennsylvania’s attempt to enact a local employer sanction law on preemption grounds. However, last year the Ninth Circuit ruled that an earlier Arizona law creating potentially harsh employer sanctions was not impliedly preempted. The state employer sanction issue is headed for the Supreme Court now.
Contextualizing the Racialized Evolution of Immigration Laws
When we consider laws like SB1070, we should not lose sight of the racialized nature of immigration laws—federal or local. The evolution of immigration policy, beginning with the forced migration of African workers through the infamous Asian exclusionary period and then the southwest border regime, is critical for us to keep in mind as we contemplate today’s policies and enforcement approaches. What we find is that racism has been institutionalized in federal and state immigration laws although they may be drafted in nonracial terms. We should not be shy about pointing out the inherent racism embodied in these laws.
The construction of U.S. immigration laws and policies that began with the forced migration of black labor then, vis-à-vis the history of Mexican and Asian immigration to the United States, has evolved into a framework that is inherently racist. The forces of migrant worker enslavement and recruitment, the North American Free Trade Act (NAFTA), globalization, the pull of family reunification, and the allure of a better life in the United States continue to function, while Latino and Asian immigrants collide with the racialized framework. The collision renders the migrants immigration law violators.
The current numerical limitation system, while not explicitly racist, operates in a manner that severely restricts immigration from Mexico and the high-visa-demand countries of Asia. Between 1965 and 1976, while the rest of the world enjoyed an expansion of numerical limitations and a definite preference system, Mexico and other countries of the Western Hemisphere were suddenly faced with numerical limitations for the first time.
Today’s selection system simply does not have room for many relatives because of numerical limitations and no room for those who are simply displaced workers. The system has no slot for anyone whose livelihood is controlled by trade agreements and globalization that cause job loss in low income regions, as multi-national corporations, the beneficiaries of free trade, relocate to other sites where their production costs are cheaper. The system results in severe backlogs in certain family immigration categories – particularly for spouses, unmarried sons and daughters of lawful permanent residents, and siblings of U.S. citizens. For some countries, such as the Philippines and Mexico, the waiting periods for certain categories are ten to twenty years!
The basic civil sanction of removal (deportation) applies to individuals who fall into the immigration trap of following their instincts to reunify with families or to seek economic opportunities. Congress also has enacted criminal provisions that go far beyond the civil sanction of removal and monetary fines for many of these actions. So given insufficient supply of immigrant visas to satisfy the demands for family reunification, and no supply for simple, displaced working class workers, the action of traveling to the United States by circumventing the current structure can easily result in civil and, at times, criminal liability.
From Dehumanization and Demonization to Criminalization
The institutionalized racism of U.S. immigration laws and enforcement policies reflects the evolution of immigration laws that grappled with constant tension over who is and who is not acceptable as a true American. In its early history, the United States largely was defined in western European terms, establishing a perspective that constantly was asserted in battles over immigration laws. The Euro-centrism of the nation’s identity has enabled the institutionalization of an immigration regime that commodifies those immigrants who are left out—namely, newcomers of color—into a faceless group that can more easily be demonized and even criminalized.
The process of criminalizing the immigrant and her dreams requires multiple steps. First the immigrant is dehumanized, then she is demonized and labeled a problem, then further dehumanized until at last her actions or conditions are criminalized. The next step, identifying immigrants as a problem through demonization, today involves familiar allegations: they take jobs, they cost a lot, they commit crimes, they don’t speak English, they damage the environment, they don’t share our values, and they simply are different. Race is not mentioned in the attacks that find a ready audience in members of the public (some gullible, others who themselves are malevolent) who look around, see immigrants working, and facilely conclude that they must be taking jobs that Americans would otherwise be holding. This brand of xenophobia is recycled from the worst nativist periods of the nation’s history.
After hysteria is heightened, the demonization process continues by asking the public if immigration is a problem. Thus, modern day polls and surveys claim to reveal that eighty percent of respondents think that current immigration is bad for the country if asked specifically about immigration. But when general polls ask respondents to name serious societal problems, immigration is either ranked low or not mentioned.
As the level of demonization through anti-immigrant rhetoric reaches new heights, hot talk radio hosts, conservative columnists, and politicians – Democrats and Republicans alike – chime in. The notion of America as the land of immigrants is brushed aside.
Once demonized, immigrants can be further dehumanized. Dehumanization at this stage commodifies immigrants, stripping them of race and ethnicity. The notion of the immigrant-as-commodity makes it convenient for the dominant group to ignore race and view the immigrant as a worker-commodity. This enables the dehumanization that follows.
It does not take long to realize that while immigration laws and enforcement policies have evolved in a manner that continues to prey on Mexicans, Asians, and other Latin migrants, the relationship of those laws and policies with other racialized institutions underscores the structural challenges that immigrants of color face. Consider NAFTA and the World Trade Organization. For example, NAFTA has placed Mexico at such a competitive disadvantage with the United States in the production of corn that Mexico now imports most of its corn from the United States, and Mexican corn farm workers have lost their jobs. Is there little wonder that so many Mexican workers look to the United States for jobs, especially when so many of the multi-national corporations and companies that benefit from free trade are headquartered here?
Thus, the immigration admission and enforcement regimes may appear neutral on their face, but (1) they have evolved in a racialized manner and (2) when the immigration framework interacts with other institutions such as the criminal justice system, NAFTA, globalization, poor neighborhoods, and schools in which many immigrants and refugees are situated, you realize that the structure generates racial group disparities as well. NAFTA and globalization provide a major reason why many migrants of color cannot remain in the native countries if they are to provide for their families. The criminal justice system and poverty prey heavily on poor communities of color, leading to deportable offenses if defendants are not U.S. citizens.
The construction of the U.S. immigration policy and enforcement regime has resulted in a framework that victimizes Latin and Asian immigrants. These immigrants of color end up being the subject of ICE raids. They are the ones who comprise the immigration visa backlogs. They are the ones that attempt to traverse the hostile southwest border. They are targeted by the SB1070 ilk.
Their victimization has been institutionalized. Thus, any complaint about immigrants—fiscal or social—can be voiced in non-racial, rule-of-law, terms because the institution has masked the racialization with laws and operations that are couched in non-racial terms. Anti-immigrant pundits are shielded from charges of racism by labeling their targets “law breakers” or “unassimilable.” Deportation, detention, and exclusion at the border can be declared race-neutral by DHS because the system already was molded by decades of racialized refinement. Officials are simply “enforcing the laws.” The victimization of Latinos and Asians by immigration laws and enforcement policies has been normalized, allowing Americans to accept statistics about disproportionality (just as they have with respect to racial inequities in, for example, the educational or criminal justice systems) as “just the way things are.” Like white privilege, institutionalized racism generally goes unrecognized by those who are not negatively impacted.
We should know better. The cards are stacked against immigrants of color. The immigration law and enforcement traps are set through a militarized border practice and an anachronistic visa system. It’s no surprise that Latin and Asian immigrants are the victims of those traps. They have been set up by the vestiges of blatantly racist Asian exclusion laws, a border history of labor recruitment like the bracero program, Supreme Court deference to enforcement, and border militarization that laid the groundwork for current laws and enforcement policies.
Through the structure of immigration laws, we have institutionalized a set of values that has come to dehumanize, demonize, and criminalize immigrants of color. The public can then use the “illegal immigrant” label without mentioning race, even though the system that has caused the person to be in violation of an immigration law produces racial outcomes because of its inherent racism. To make matters worse, the inherently racist system has conditioned some members of the public to treat all members of certain ethnicities of immigrants with suspicion of being “illegal aliens” or lawbreakers. SB1070 results.
The seemingly neutral logic that flows from an institutionally racist immigration system need not carry the day. We should not be left to object to anti-immigrant laws, raids, border enforcement, and even criminal alien enforcement solely on non-racial terms. Understanding these operations from an institutionalized racial perspective provides another basis for arguing that our system of immigration laws and enforcement policies must be overhauled in order to address the menacing vestiges of racism within that system.
 118 U.S. 356 (1886).
 People v. Hall, 4 Cal. 399 (1854).
 403 U.S. 365 (1971).
 413 U.S. 634 (1973).
 413 U.S. 717 (1973).
 467 U.S. 216 (1984).
 457 U.S. 202 (1982).
 435 U.S. 291 (1978).
 441 U.S. 68 (1979).
 454 U.S. 432 (1982).
 424 U.S. 351 (1976).
 Lozano v. City of Hazelton (No. 07-3531, 3rd Cir., Sep 9, 2010).
 Chicanos Por La Causa v. Napalitano, 558 F. 3d 856 (9th Cir. 2009).
 The discussion that follows is drawn from this article: Bill Ong Hing, Institutional Racism, ICE Raids, and Immigration Reform, 44 USF L.Rev. 1 (2009).
 I understand that the multiple steps toward criminalization I use have much overlap, and others might even suggest that immigrants of color are demonized before being dehumanized depending on the action of the dominant group.
 See Bill Ong Hing, Ethical Borders: NAFTA, Globalization, and Mexican Migration (Temple Univ. Press 2010).
 Anne C. Kubisch, Why Structural Racism? Why a Structural Racism Caucus?, Poverty & Race, Nov./Dec. 2006.
 Sylvia Law puts it this way:
[W]hile white people benefit from white privilege, it is systemic and invisible, and not a matter of individual wrong doing or guilt. I am not guilty of racism because a cab picks me up. I do not discriminate when cops don’t stop me for no reason, and then let me talk them out of a ticket. I am not a racist because my daddy got a good VA mortgage that parleyed into good housing for the rest of our lives. That is not the point. Like it or not, we white people do benefit from white privilege. And most of the time we do not even notice it.
Sylvia Law, White Privilege and Affirmative Action, 32 Akron L. Rev. 603 (1999)