The Racialization of “Illegality”

In a December 2011 interview, the sheriff of Maricopa County, Arizona, Joseph Arpaio, explained to me that his critics did not “get it”: he was not a racist, his only goal and responsibility was to enforce the law.1 To accomplish this, he needed to deploy his officers to neighborhoods and businesses throughout the Phoenix metro area where they had “intel” that “illegal activity” was going on. They were not, he assured me, out to get Latinos; it just so happens that there are many Latinos who are “illegal,” he explained. The U.S. Supreme Court disagreed. The sheriff’s zealous approach to immigration enforcement was found to be unconstitutional; the Court ruled that the Maricopa County Sheriff’s Office racially profiled Latinas/os living in the county.2

Latinas/os–mostly Mexicans, Guatemalans, Hondurans, and Salvadorans–overwhelmingly bear the burden of the immigration enforcement system in the United States today. Immigrants from these four countries make up 70 percent of the undocumented population; however, they are overrepresented among the immigrants who are detained and deported: 88.6 percent of the detainees are from Mexico, Guatemala, Honduras, or El Salvador and 79.4 percent are men; 90 percent of Immigration and Customs Enforcement (ICE) removals are from these four countries as well.3 The reverse holds for other immigrant groups, especially Asians, whose undocumented immigrant population is the fastest growing in the United States, increasing from 7 percent of all undocumented immigrants to nearly 16 percent in 2015 alone.4 For instance, while 4 percent of the Indian population in the country is undocumented, these immigrants constitute only 0.6 percent of ICE removals. And though Filipinos make up 3 percent of the undocumented population, Chinese 3 percent, and South Koreans 2 percent, none of these groups reaches 0.5 percent of ICE removals.5

This strong association between being Latina/o and undocumented, broadcast in the media and cemented through enforcement practices, has led scholars to examine experiences of “illegality” through a lens of race, and to conceptualize illegality as racialized.6 Indeed, some scholars and activists have labeled the targeting of enforcement on the Latino population as a whole, and Latino men in particular, as a racial project and a gendered racial removal program.7 Sociologists Tanya Golash-Boza and Pierrette Hondagneu-Sotelo observed that “between 1993 and 2011 . . . there was a 10-fold increase in the number of Mexican deportees, and a 12-fold increase in the number of Central American deportees while the deportations of Asian and European immigrants increased fourfold and those of African and Caribbean immigrants only doubled.”8 Thus, the immigration regime targets Latinas/os today with particular force: both the legislative and the enforcement side of the regime illegalize and racialize them.9

Sociologists and immigration scholars who point to the increasing use of undocumented legal status as a proxy for race and to the centrality of racialization processes in the immigration system argue that the status of “illegality” is not a race-neutral term; it has become synonymous with “Mexicanness” and with being Latina/o.10 And since race is a “fundamental organizing principle of social relationships,” “illegality,” like race, has become an axis of stratification with effects similar to those of other social hierarchies.11 This race-based enforcement system, as Douglas Massey has argued, affects Latinas/os in similar ways as the criminal justice system marks Blacks.12 The racialization of “illegality,” therefore, has real-life consequences for immigrants, their families, and communities.13

Scholars have thus conceptualized the intersection of legal status (or illegality) and race as the racialization of legal status.14 Asad L. Asad and Matthew Clair developed the concept of racialized legal status to highlight how “ostensibly race-neutral legal classifications . . . disproportionally impact racial/ethnic minorities.”15 Focusing on criminal and legal statuses, they call attention to the disproportionate burden of such classifications on racial/ethnic minorities and to the stigmatization these classifications produce, which enable statistical discrimination “against in-group members who are not” marked by the stigmatized status.16 Amada Armenta has observed that scholarship on the effects of criminalization tends to focus on the effects of immigrants’ legal status, not the racialization of the status, a concept that she argues more precisely captures these conditions.17 Last, San Juanita García has called attention to the institutionalized aspects of “illegality,” which intersect with race to shape various forms of exclusion associated with ­anti-immigrant sentiment; and Juan Herrera has highlighted racialization within stigmatized immigrant groups, which complicates conceptualizations of racialized illegality.18

The racialization of illegality is a product of various forces. It is generally acknowledged that the category of “illegality” is produced by law; it is a political identity that underscores immigrants’ relationship to the state.19 However, “illegality” is also socially constructed based on stereotypes that assign illegality to certain groups, producing what René Flores and Ariela Schachter refer to as “social illegality.”20 Certain characteristics associated with illegality “become embedded in elaborate narratives of threat and transgression that intersect with racism and reactionary politics.”21 Social illegality thus complements and sustains legal structures and bureaucracies of enforcement. Popular discourse buttresses the continued reproduction of a class of immigrants seen as particularly suited for certain jobs who can then be made excludable and disposable.22 Along these lines, Armenta has noted that the overwhelming targeting of enforcement on Latinas/os she found in Tennessee–that is, their racialization as undocumented–is not simply the result of racist officers’ decisions to stop, arrest, and detain these immigrants; instead, these practices are the result of institutionalized policies in enforcement agencies, policies and laws that on their face appear to be race-neutral.23 Nazli Kibria, Cara Bowman, and Megan O’Leary have observed that “the race-immigration nexus” constitutes a “fluid and intertwined bundle of linkages . . . among institutions, ideologies and practices.”24 Thus, the institutionalization of exclusion through “illegality” based on race creates the illusion that enforcement is directed at excluded groups, for instance Latinas/os, because of their legal status, not their race; however, seemingly neutral immigration policies have racial effects because laws are not implemented in a social vacuum but within specific racial formations.25

The social construction of illegality lies at the root of how immigrants are perceived by the public, employers, and institutions and how racialized illegality is deployed in various spheres of life. Flores and Schachter found that certain attributes of an immigrant group–such as national origin, social class, and criminal background–powerfully shape public perceptions of “illegality.” Mexicans as well as other Latin Americans, especially Salvadorans, are particularly suspected of illegality, whereas Asians and Europeans “arouse the lowest levels of suspicion.”26 These scholars also found that jobs in the informal economy have become markers of illegality. Suspicions and perceptions that equate certain national origins, levels of education, and occupations with illegality solidify ethnoracial stereotypes on which social illegality is based. This linkage is not unlike Marta Maria Maldonado’s finding that employers of Latina/o agricultural workers rely on race as a proxy for worker quality, marking recent immigrants (and their legal status) as hard workers and second-generation Latinas/os as “lazier,” thus justifying exploitative working conditions for the recently arrived (and mostly undocumented) workers.27 And Amanda Moras found that employers rely on cultural markers such as English language proficiency to hire domestic workers; such determinations racialize Latina immigrants as domestic workers.28

The racialization of illegality is also tied to notions of deserving and undeserving, good and bad immigrants. Social illegality shapes immigrants’ perceptions of themselves and how they are perceived in society. For instance, a Maya Guatemalan undocumented worker who was apprehended during the Postville, Iowa, raid in 2008, who, according to the interpreter, “No matter how many times his attorney explained his rights to him, he kept saying, ‘I’m illegal, I have no rights. I’m nobody in this country. Just do whatever you want with me.’”29 Furthermore, as undocumented Latina/o immigrants try to distance themselves from their negative portrayals, they seek recognition for their deservingness by underscoring civically accepted acts, such as paying taxes and working.30 In their efforts to signal deservingness and “goodness,” immigrants often outperform U.S.-born workers because the notion of a strong work ethic operates in a racial register.31 Distancing also occurs among other immigrant groups associated with stigmatized minorities. For instance, Hana Brown found that Liberian refugees use their refugee status to distance themselves from native-born Blacks and establish their position above them in the U.S. ethnoracial hierarchy.32

The racialization of illegality we see today has a long history.33 Enduring structural racism is embedded in U.S. immigration law. Formal exclusion based on race, which reinforces stereotypes of immigrants classified as non-White as excludable, inferior, and “alien,” is nothing new.34 At different points in U.S. history, immigration law has institutionalized practices and values that position certain immigrant groups, specifically Mexicans, Latinos, and Chinese, as “illegal.”35 Scholars have traced the relationship between Chinese migration and racialized exclusion, whereby immigration laws that excluded Chinese laborers, presumably to protect American workers and the nation, created an excludable category based on race.36 Likewise, the production of the “illegal alien” category in the 1920s “reframed immigration from Mexico as both undesirable and an affront to strong American traditions of law and order.”37

Therefore, time and space matter significantly. The racialization of legal status is a dynamic process; it is geographically conditioned and historically specific. Given the centrality of racial systems in the organization of social life, the process itself will exist at different historical junctions and across contexts and societies, but the expressions and hierarchies produced will be context-specific and historically situated. For instance, in contrast to the constructions of race that formally excluded certain immigrant groups in the past, immigration policies in the post–civil rights era function through color-blind racism, creating the more subtle yet equally powerful racialization in immigration practices today.38 Thus, in contrast to overtly racist immigration policies such as the Chinese Exclusion Act, the practice today is to deem certain activities that are common among certain immigrant groups “illegal.”39 Legal status today then can serve as a proxy for race, both formally in the immigration system and socially, as when the public and media equate Latinas/os with being undocumented.40

Racialization of illegality also takes different expressions across contexts and societies today. For instance, in the Dominican Republic, illegality has been racialized as Haitian, and postwar migration to Britain has been associated with a host of social problems and with being Asian or Black.41 In India, Bangladeshis are “marked as Muslim and male” and “made synonymous with ‘illegal migrant.’”42 And in a study of the racialization of legal status of Central Asian immigrants in Russia, my colleagues and I found that legal status does not lessen these immigrants’ experiences of racism.43 Within the larger group of Central Asian immigrants, Kyrgyz migrants, despite being culturally closer to Russians and up to that point enjoying a privileged path to citizenship, experienced more hostility. They were racialized as darker and phenotypically more distinct than the other groups in our study, Tajiks and Uzbeks, and thus were more often the target of ethnoracially motivated harassment by authorities who would regularly demand to see their papers.

The racialization of legal status only has meaning in a context of expanded enforcement, fear, and increased penalties for the individuals who are targets. García has called attention to the centrality of context in sustaining racialization processes, which unfold in the workplace, in educational and health institutions, and in the criminal justice system and homogenize Mexicans, regardless of nativity or legal status, as “illegal.”44 Such a climate was the case in Arizona, where a string of laws passed in the 2000s culminated in the signing of SB 1070 in 2010, requiring law enforcement officials to determine an individual’s legal status during a lawful encounter if there was “reasonable suspicion” that the person was unlawfully present in the United States. The law was written and signed in a context saturated by other exclusionary laws, by media broadcasting the association between Latinas/os and undocumented status, and general social illegality that strongly associated being Latina/o with being undocumented.45

Since legal status is not a physically identifiable characteristic, Maricopa County officers needed to use other markers to make this determination. The Maricopa County (the largest county in Arizona) Sheriff’s Office set up checkpoints in predominantly Latino neighborhoods and conducted regular workplace raids overwhelmingly targeting businesses that employed Latina/o workers.46 These practices resulted in “hyper-­surveillance, abusive stops, problematic searches and unwarranted detention of suspected unauthorized immigrants,”47 creating conditions of fear and anxiety for Latinas/os living in Maricopa County, regardless of citizenship or legal status.48

Although experiences of illegality are strongly linked to race and place, the legal production of illegality in the United States is enacted at the federal level, with consequences throughout the country but with specific local manifestations.49 Media play a key role in the creation of social illegality, locally and nationally, contributing strongly to shape associations between undocumented status and being Latina/o. Women’s studies scholar M. Cristina Alcalde found that even though White youth in Kentucky condemned the racism they saw in their communities, their beliefs about immigration were similar to those in their social milieu: these youth made a strong connection between undocumented status and being Latina/o.50 Thus, Alcalde argues, race matters; racism against Latinas/os is the norm rather than the exception for past and current generations.

The strong association between “illegality” and being Mexican or Latina/o produces a spillover effect that reaches Mexicans and other Latinas/os who hold lawful permanent residence, those who are naturalized, and even those who are U.S.-born.51 Because this association is predicated on characteristics socially attributed to Latinas/os as a group, the boundaries of illegality are blurry in practice, not only to the public but also to those who enforce immigration law.52 In practice, then, the category of illegality spills beyond the group that the law formally illegalizes and targets. As such, legal scholar Kevin Johnson has observed that Mexicans (and I would add Latinas/os who share phenotype with Mexican immigrants and speak Spanish or Mayan languages) “bear the brunt of race-based immigration enforcement, which also cuts to the core of their belonging to the national community.”53

García observed that regardless of their legal or generational status or the length of time they have lived in the United States, the women in her Houston-­based study were often marked as undocumented.54 This spillover effect thus extends to a wide swath of the Latino population regardless of generation, nativity, or legal status.55 Although undocumented Latinas/os show the greatest concern about deportation, research has shown that (especially after Trump’s election) 66 percent of Hispanic lawful permanent residents and 33 percent of U.S.-born Hispanics worry about their own deportation or that of a family member.56 In our study comparing perceptions of the police among Latinas/os of different legal and citizenship statuses in Chicago, Houston, Los Angeles, and Phoenix, we found that in a saturated enforcement context like Phoenix, Latinas/os are apprehensive of contacting the police regardless of their legal status.57 Similarly, in El Paso, Texas, researchers found that living in neighborhoods with Latina/o-associated characteristics increases the likelihood for third- and fourth-generation Latinas/os to be questioned about their citizenship status.58

The racialization of illegality for Latinas/os is sustained among Latinas/os as well as through the racialization of legal status for non-Latinas/os. The racialization of “illegality” among Latinas/os is buttressed through distinctions of skin color and ethnicity, which strengthen a system of racial stratification within Latinas/os that can create conditions for within-Latinas/os exploitation.59 Thus, Herrera has challenged the “homogenization of Latinos as a single ‘race.’”60 In his research among day laborers in California, he analyzes constructions of racialized difference between Guatemalan indigenous and nonindigenous laborers as racialized illegality. Indigenous Maya and nonindigenous migrants experience illegality differently, based on how they were racialized in their country of origin.61 Indigenous Latina/o immigrants therefore face institutional and state discrimination as their nonindigenous counterparts do, but also experience an added layer of discrimination based on their indigeneity, which they also encounter from Latina/o peers.62

Internal racism exacerbates experiences of illegality across Latino subgroups. For instance, ICE raids targeting Maya Guatemalans have pushed these immigrants to the bottom of the Latino social hierarchy in the community.63 Knowing that these Guatemalans are racialized as undocumented and thus targeted in the raids, other Latinas/os in the community sought to distance themselves from them to avoid falling onto ICE’s radar.64 ICE enforcement and the racialization of Maya Guatemalans as undocumented can undermine community and intensify intraethnic divisions.65 Andrea Gómez Cervantes has argued against conventional associations of “illegality” with a homogenized Latina/o immigrant. In her research in Kansas, she found deep divisions within Latinas/os, among whom lighter skin can translate into legal protection, but “looking Mexican” or indigenous makes them vulnerable to immigration enforcement.66

The racialization of “illegality” for Latinas/os is further reinforced by the racialization of legal status among other groups. For instance, among Asian immigrants, racialized legal status erases the association between “illegality” and being Asian, even as research indicates that Asians are the fastest growing undocumented racial group in the United States, with a six-fold increase since 1990 and with one in every six Asian immigrants having undocumented status in 2015.67

In her comparative research on Korean and Mexican undocumented youth in Los Angeles, Esther Yoona Cho observes that undocumented Koreans face double racialization. Although they do not experience the daily fear of deportation that Mexicans and Latinas/os do because Koreans are not immediately suspected of illegality, undocumented Koreans conceal their status. As such, their prospects for engaging in coalitional relationships are diminished significantly, especially when they are unaware of other Asians in the same undocumented predicament.68 The racialization of legal status among Asians is based on “model minority” stereotypes that allow them to “pass” for “legal.”69 Cho notes that Koreans struggle with “having to navigate the very palpable constraints of illegality, while being disassociated with illegality due to visible markers of being a model minority.”70 And as undocumented Asians have become aware of the punitive enforcement practices directed at Latinas/os, some Asians “position themselves away” from Latinas/os, thus unwittingly reinforcing the “good immigrant–bad immigrant” dichotomy and posing challenges to organizing efforts for rights of the undocumented across immigrant groups.71

Similarly, Caitlin Patler has found that variations in access to coethnic networks and knowing other students in similar statuses determine whether undocumented students will reveal their status.72 Latina/o undocumented students in her study were relatively open about their legal status, but this was not the case among undocumented Asian and Pacific Islander students and Black students, who reported feeling isolated and too scared or embarrassed to seek support from their friends.73 In addition, Asian American and Pacific Islander youth ­eligible for DACA (Deferred Action for Childhood Arrivals) experience dual liminality, positioned between model minority and marginalization both from mainstream society and from their coethnic communities based on their legal status.74

Undocumented Asians suffer similar forms of exploitation as undocumented Latinas/os, including long working hours and reduced access to medical care, but their invisibility as undocumented (and racialization as documented) hurts coalition building efforts around undocumented workers’ rights. Researchers have also found that assumptions of “legality” for Asians often prevent undocumented Asians from seeking social services for fear of outing their legal status.75 Thus, racialization of legality, in a context of extreme enforcement and hostility toward the undocumented, can also be harmful.76

Ostensibly neutral immigration laws that illegalize certain immigrant groups, enforcement practices that target the same immigrant groups, media discourses that reify notions of the group as “quintessentially” undocumented, and social attitudes and perceptions that reinforce such narratives coalesce to produce the racialization of illegality. It is a relational, dynamic, and historically and context-specific process. This means that expressions of racialized illegality and targeted groups will vary across time and space, but the contours of the phenomenon will be present (and produce specific outcomes) because they are shaped by the existing racial hierarchy at a specific historical moment.