In the United States, as in many other countries, the undocumented exist in two simultaneous worlds. In one, they are a part of the social fabric of their communities, neighbors, co-workers, friends, and family. In the other, they are perpetual outsiders, marginalized “illegals” who are demonized as criminals, burdens on the economy, and threats to national culture and public health. The contemporary construction of the “undocumented immigrant” as a figure both racialized and criminalized has its roots in the period of the 1920s and the passage of the Undesirable Aliens Act of 1929. To know what it means to be undocumented in America, one must first understand the racial animus underlying this initial act of criminalization.
Before the 1920s, undocumented immigration across the Southern border had largely been viewed as a labor issue, regulated by demands for workers in the U.S., and for the most part ignored by federal officials (Ngai 2004). As national borders hardened in the post-World War I period, unrestricted Mexican migration increasingly came to be seen as a problem (Nevins 2010; Ngai 2004). By the mid-1920s, eugenicists and restrictionists increasingly saw Mexican migrants as a racial threat to the United States, something reflected in the statements of Congressmen like Rep. John Box of Texas, who claimed that, “One purpose of our immigration laws is to prevent the lowering of the ideals and average of our citizenship, the creation of race friction and the weakening of the Nation’s powers of cohesion, resulting from the intermixing of different races. The admission of 75,000 Mexican peons annually tends to the aggravation of this… (Box, 2818).” John Box, a eugenicist and longtime proponent of quotas for Mexican immigration, was not just any member of Congress but sat on the House of Representatives’ influential Immigration and Naturalization Committee (Gonzalez O’Brien 2022).
The Undesirable Aliens Act was the culmination of this push to restrict Mexican immigration, which began in earnest after the passage of the Johnson-Reed Act of 1924. Johnson-Reed represented a massive victory for eugenicists, who had argued that “new” immigrants from Southern and Eastern Europe, seen as being of a lesser form of whiteness, were a threat to the racial purity of the nation (Jacobson 1999). The act created a national origins quota system that privileged Northern and Western European immigration, significantly reduced the number of immigrants from Southern and Eastern Europe and prohibited any who could not naturalize from entering the United States, effectively banning immigration from Asia, as immigrants of Asian descent could not become American citizens (Tichenor 2002; Ngai 2004). After their success with Johnson-Reed, restrictionists like Rep. Box began to push for a national origins quota to be applied to Mexico. However, this attracted significant opposition from agricultural interests. Previous legislation prohibiting immigration from China (1882), nearly all of Asia (1917), and the strict quotas on Southern and Eastern European immigration introduced in 1924 had left agribusiness, particularly in the Southwest, dependent on Mexican labor (Gonzalez O’Brien 2018; Ngai 2004; Tichenor 2002). As a compromise between restrictionists and business interests, the Undesirable Aliens Act was introduced in the Senate by Coleman Blease of South Carolina. Blease was a proud white supremacist who had sought a constitutional amendment against miscegenation and defended the lynching of African Americans (Lytle Hernandez 2017). The Undesirable Aliens Act made illegal entry a misdemeanor and reentry after deportation a felony, formally criminalizing the undocumented for the first time. The Congressional debate over the legislation focused almost exclusively on immigration from Mexico and the racial threat posed by those of Latinx descent. During the debate, Representative W.T. Fitzgerald of Ohio claimed that Mexican immigrants were, “…poisoning the American citizen,” while Box argued that inaction on Mexican immigration was, “…breeding another one of those great race questions (Fitzgerald 1929; Box 1929).” The Undesirable Aliens Act was passed with little opposition in either the House or Senate. For agribusiness, it would be a boon, giving employers another tool that could be used to control their undocumented workers through the threat not only of deportation, but also incarceration (Gonzalez O’Brien 2018).
Despite the explicit racial animus toward Mexican, and more broadly Latinx, immigrants present in the Congressional debate over the Undesirable Aliens Act, the criminalization of undocumented entry and reentry has, until relatively recently, received little legal or Congressional scrutiny in its ninety-three-year history. That changed on August 18th, 2021, with the case of United States vs. Gustavo Carrillo-Lopez, which I served as an expert witness for. Federal District Court Judge Miranda Du found that 8 U.S.C. § 1326, the contemporary section of U.S. code criminalizing undocumented reentry, was unconstitutional. She ruled that it was a violation of the Equal Protection Clause of the Fifth Amendment due to the animus present in its initial codification in 1929 as part of the Undesirable Aliens Act and subsequent reenactment in 1952 as part of the McCarran-Walter Act (U.S. v. Carrillo-Lopez 2021). Judge Du’s decision, as well as other recent court cases challenging the constitutionality of 8 U.S.C. § 1325 (illegal entry) and reentry (1326), represent the first formal acknowledgement of the racism toward Latinx immigrants that motivated the passage of the Undesirable Aliens Act. Criminalization has led an estimated 10.5 million immigrants, a majority of whom are from Mexico or Central America, to live in the shadows of America’s carceral state, unable to move freely or access needed services due to fear not only of deportation, but also criminal charges (Lopez 2021).
Beyond these challenges in the courts, some cities, counties, and states have sought to address the marginalization of their undocumented residents by passing what are broadly referred to as sanctuary policies. Drawing on religious traditions of refuge, sanctuary policies were first passed in the 1980s in support of a faith-based movement that was created to help shield Guatemalan and Salvadoran asylum seekers from deportation (Ridgley 2008). The Reagan administration’s involvement in the civil conflicts of both countries, where it was supporting anti-communist forces, led asylum requests by Salvadorans and Guatemalans to be routinely denied (Ridgley 2008). In response, the Sanctuary Movement was formed on March 24th, 1982, to provide shelter for Salvadoran and Guatemalan asylum seekers in churches and synagogues across the country (Golden and McConnell 1986). Cities, beginning with Madison, WI on June 7th, 1983, passed policies in support of the movement and later also prohibiting local officials from inquiring into the immigration status of residents or cooperating with federal enforcement actions (Collingwood and Gonzalez O’Brien 2019).
These policies, initially meant to shield asylum seekers, would shift their focus in the post- September 11th period, as the Bush administration began to crack down on undocumented entry (Ridgley 2008). Many localities that had passed sanctuary resolutions in the 1980s revised their policies to include their undocumented residents. Based on the federal nature of U.S. government, states, counties, and cities are not required to participate in enforcement operations, as immigration is the sole jurisdiction of the federal government. Because they are not required to participate, these localities can legally forbid officials and law enforcement from using local resources to assist Immigration and Customs Enforcement (ICE) operations, as long as there is no interference with federal agents or agencies (Collingwood and Gonzalez O’Brien 2019).
Today, sanctuary policies exist along a continuum, from those that are largely symbolic and affirm the importance of all residents regardless of legal status, to those that expressly forbid cooperation with ICE (Collingwood and Gonzalez O’Brien 2019). While for the most part presidents, as well as Congress, have chosen to ignore these policies, in 2015 Donald Trump elevated them onto the national agenda (Gonzalez O’Brien 2020). Promising a crackdown on undocumented immigration, the construction of a border wall between the U.S. and Mexico, and to strip federal grants from sanctuary cities, Trump claimed that undocumented immigrants were a threat to the physical safety of Americans (Collingwood and Gonzalez O’Brien 2019). During the announcement of his campaign, he claimed, “When Mexico sends its people, it’s not sending its best…They’re bringing drugs. They’re bringing crime. They’re rapists (Phillips 2017).” Trump’s rhetoric throughout his campaign and presidency in many ways echoed the racist and eugenicist language that had been used to justify the criminalization of undocumented entry in 1929 and demonstrated how central racial animus has remained in the making of immigration policy.
Many cities, counties, and states responded to the Trump presidency by passing new sanctuary resolutions or strengthening their existing policies. Research on the effects of these policies also grew during this time. This growing body of literature has found no evidence that these policies increase crime, as Trump so often claimed. Instead, those cities or counties with sanctuary policies in place have been found to have lower crime rates, while the passage of these policies has been found to have little effect on crime (Collingwood and Gonzalez O’Brien 2019; Martinez et al. 2018; Gonzalez O’Brien et al. 2017; Wong 2017; Lyons et al. 2013). Furthermore, it has been shown that cooperation with federal immigration officials on the part of local law enforcement can reduce the likelihood that members of the Latinx and undocumented communities will report crimes against themselves or others, and that policies that mandate cooperation can lead to decreased calls to 911 (Wong 2020; Collingwood and Gonzalez O’Brien 2019; Theodore 2013). Some evidence has suggested that sanctuary policies may increase the incorporation of the local Latino community, as measured by voter turnout and the number of Latinx individuals on the police force (Collingwood and Gonzalez O’Brien 2019; Lyons et al. 2013). These policies thus represent a way for localities to incorporate their undocumented community to the greatest extent possible under existing law.
Sanctuary policies and legal challenges to the constitutionality of 8 U.S.C. § 1325 and 8 U.S.C. § 1326 have created a space for Congress and the American people to rethink our approach to undocumented immigration. Deportation and incarceration are not only detrimental to the undocumented community, but also to the cities, counties, and states they live in. Local law enforcement is dependent on everyone to report crime and cooperate in investigations. If undocumented residents fear deportation and incarceration, evidence has shown they will be less likely to do so. Additionally, criminalization has been found ineffective as a deterrent. Evidence from Operation Streamline, which increased prosecutions for undocumented entry and reentry, found this had little impact on rates of illegal entry (Corradini et al. 2018). Despite its seemingly ineffectual nature, the criminalization of undocumented community costs American taxpayers over $1 billion dollars a year (Johnson 2015). We now have the opportunity to honestly reassess this nation’s deportation and incarceration regime, something that is long past due.
Box, John C. (TX) (1929). “Immigration”. Congressional Record 70(4), p. 3520.
Collingwood, Loren and Benjamin Gonzalez O’Brien (2019). Sanctuary Cities: The Politics of Refuge. Oxford, UK: Oxford University Press.
Corradini, Michael, Kringen, Jonathan Allen, Simich, Laura, Berberich, Karen, and Meredith Emigh (2018). “Operation Streamline: No Evidence that Criminal Prosecution Deters Migration”. Vera Institute of Justice June.
Fitzgerald, William T. (OH) (1929). “Immigration”. Congressional Record 70(4), p. 3520.
Golden, Renny and Michael McConnell (1986). Sanctuary: The New Underground Railroad. Ossining, NY: Orbis Books.
Gonzalez O’Brien, Benjamin (2018). Handcuffs and Chain Link: Criminalizing the Undocumented in America. Charlottesville, VA: University of Virginia Press.
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Gonzalez O’Brien, Benjamin (2022). “’A Very Great Penalty’: Mexican Immigration, Race, and 8 U.S.C. § 1326”. Maryland Journal of International Law, forthcoming.
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Nevin, Joseph (2001). Operation Gatekeeper: The Rise of the ‘Illegal Alien’ and the Remaking of the U.S.-Mexico Boundary. New York, NY: Routledge.
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Phillips, Amber (2017). “’They’re rapists.’ President Trump’s campaign launch speech two years later, annotated”. The Washington Post, June 16.
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Wong, Tom K., Kang, S. Deborah, Valdivia, Carolina, Espino, Josefino, Gonzalez, Michelle, and Elia Peralta (2021). “How Interior Immigration Enforcement Affects Trust in Law Enforcement”. Perspectives on Politics 19(2): 357-370.
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