Immigration Law and Society

John S. W. Park

• Publisher: Polity
• Year: 2018
• ISBN:
  9781509506033
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Immigration Act of 1965 was one of the most consequential laws ever passed in the United States and immigration policy continues to be one of the most contentious areas of American politics. As a "nation of immigrants, " the United States has a long and complex history of immigration programs and controls which are deeply connected to the shape of American society today. This volume makes sense of the political history and the social impacts of immigration law, showing how legislation has reflected both domestic concerns and wider foreign policy. John S. W. Park examines how immigration law reforms have inspired radically different responses across all levels of government, from cooperation to outright disobedience, and how they continue to fracture broader political debates. He concludes with an overview of how significant, on-going challenges in our interconnected world, including "failed states" and climate change, will shape American migrations for many decades to come.

1
THE TWO REVOLUTIONS

Many politicians and citizens have repeated a truism when it comes to immigration law and policy in the United States over the last 40 years: the immigration system is broken, it doesn’t work, and it needs to be “fixed.” This book contains no “fixes.” Rather, we begin with a set of basic observations that might help us understand why immigration law hasn’t lived up to expectations, at least not since 1965. I propose that the problem might not be the immigrants, but with the dynamic shape of modernity itself: advances in technology allow us to see and to move faster and farther than ever before. In contrast, legislators and presidents and American citizens have shared an underlying premise – namely, that the United States is a stable, fixed nation, and that its legal institutions, representing the citizens of the United States, have the right to determine who may come, who may not come, and who must leave. Many Americans have still conceived their nation as a somewhat closed system with clear boundaries, as if the lines on the map can delineate what is within and what is without. Thus, they have been receptive to arguments about guarding those borders, the boundaries of the nation – perhaps even walling it off. They have believed that it’s possible, that the very nation who drew the boundary can then enforce it, as though enforcement was just a matter of will.

But perhaps these expectations were too simple, or maybe way too optimistic.

The Two Revolutions

We live in the midst of two on-going revolutions that have shaped the modern world – the first in communication, and then the other in transportation. Together, they make the enforcement of national boundaries much more difficult, perhaps impossibly difficult. Since the mid-1970s, as these two revolutions have continued to unfold at a dizzying, accelerating pace, people who’ve expected stability, within a closed, bounded system of states, have been more frustrated than ever before. People around the world share new methods for seeing one another clear across the world, and they have access to new methods of transportation that can take them faster and cheaper and farther than at any time in human history. It’s hard to imagine how any portion of the world can remain a closed system in light of the two revolutions.

Like all revolutions, no single person or entity can claim responsibility for the ease with which we can see one another across vast distances of time and space, nor can we even agree when exactly the transportation revolution began. But traveling anywhere around the world is not so difficult anymore. For people who travel a lot, across oceans and continents, the very mode of transportation is so connected to a set of interrelated communication networks that they don’t have to miss much of anything, even when they’re flying thousands of feet above the world. These methods of seeing and of traveling have become so common in the daily lives of many people that they can take them for granted. For the well-connected, as we shall see in this volume, being in one place and then flying to another clear across the world is not a problem – there are many thousands of people who already enjoy a borderless world with few meaningful restrictions.¹

For poorer people, it’s hard not to covet the life that the well-connected already enjoy. Through televisions, on computer screens, on their cell phones, or in mass print media, many of the poorest, displaced, and dislocated people can still see what Paris or London or New York looks like. Instead of staying around until their own homeland becomes somewhere that could be like one of those magical places, they develop plans to leave for Paris or London or New York. This is in large part because they can’t fathom their own cities or towns ever becoming as gorgeous or livable, at least not in one lifetime. And for them, too, leaving is not so hard. Cell phones allow them to find out how to get from here to there; they can find boats for places with water, or trains to cross vast areas of land; and then they can pay to use trucks, tunnels, and shipping containers to cross an international border. Some can afford to pay for guides to avoid the public officials assigned to keeping them out. Of course, many of them won’t make it, many will die trying – these crossings are dangerous. Moreover, in recent decades, there were more public officials trying everything to keep them out, as well as new and formidable physical obstacles, including walls, fences, and moats.

But some fraction of them will make it – this is why we can see them in Paris or London or New York – in every part of the world where things are marginally better. Because there are so many who wish to come, so many who try, even a small fraction of “success” can yield a large number. Wherever we have points of entry, places tied to the great circuits of global communication, commerce, and travel throughout the world, we also have “unwanted people,” from Iraq, Syria, or Mexico, these poorer migrants who should not have come, at least not from the perspective of the states where they’ve appeared. That so many poorer people have risked their lives to make these journeys – this might well be the most shattering consequence of the two revolutions, unfolding as though, ideally, they should have made all of us more free rather than having condemned so many to premature death. Having underestimated the perils, or having so yearned for a better life, many migrants have perished in horrible ways: by drowning, through exposure, as the victims of predatory others. And yet still more will come.²

For that small fraction that do make it, American citizens have consigned them to a life on the margins of society. Thus, the immigrants often fall short of their dreams and expectations, their miseries rooted in the unmet (unrealistic?) expectations of the people who never wanted them at all. Because our governments have failed to keep you out, the citizens say, we will refuse to incorporate you. The frustrated expectations for a closed system, for a set of sturdy boundaries – these being unsatisfied – have led to strange forms of revenge, even petty forms of vindictiveness. We examine later in this book how millions of people live in this condition – here, and yet not supposed to be here. They are overwhelmingly poor, and they experience socially and legally constructed boundaries long after they’ve surmounted the physical ones that almost killed them. They have experienced an “illegality in everyday life.” Thus, even when they make it across, the legal barriers within nations have become ferocious, too, as many migrants are routinely cast as criminals and wrongdoers, rather than people who were searching, like everyone else, for a better life.

For all of us, the two revolutions will unfold toward a future that we can only still imagine. Even our immediate ancestors might not fathom our present: in 1900, there was no commercial aviation – there was simply no aviation. People couldn’t fly in metal tubes with wings attached to them at 10 or 12 kilometers in the sky. Trains and ships did take people across immense distances much more quickly than before, but nowadays, planes and airports move along millions of people every day, on a scale just inconceivable in 1900. To see why the United States has hundreds of thousands of “illegal immigrants,” one needn’t look at the southern border – instead, consider an average day at LAX or JFK. Count the international flights, and then imagine a small fraction of the “tourists” or other visitors who should leave eventually, but then don’t. Again, small fractions will become, in time, very big numbers, for it was not hard to fly legally into the United States and then fall “out of status” in 2005 or 2010.

A few people grasp the scale of these problems, but their solutions tend to sound ridiculous, even totalitarian: in the presidential primaries of 2015, for example, the Governor of New Jersey, Chris Christie, suggested that everyone coming to the United States ought to be fitted with a bar code, rather like each package going through FedEx, so that we can keep track of everyone, coming and going. His solution sounded absurd, in a scary, Big Brother kind of way, and yet it’s a real challenge, keeping track of everyone, if only because the numbers of people coming and going are so enormous. Another more serious problem might be that it’s not hard to make excellent fake bar codes. It’s a mind-boggling issue, mass migration; its scale is truly hard to fathom: in recent years, more people entered the United States through the international airports than the entire population of the country. Commercial aviation – this technology that did not exist in 1900 – made the United States much more porous than any public official might be willing to admit. A wall or another fence along the southern border will not help as much as some might promise, if only because walls and fences are ancient defensive technologies ill suited to the kinetic world in which we live.³

Similarly, in 1900, sending a message along a telegraph wire was an amazing advance in technology. But my cell phone (attached to nothing) can reach most other people with cell phones, too, in almost every urban area of the world, and, these days, the smartest of smart phones will become obsolete within two or three years. All of this is dizzying and disorienting: I myself admit that I’m unfamiliar with at least half of the computer applications on my own smart phone, and I don’t use most of the social media tools that my own children have never not known. As of this writing, my children are teenagers, but they’ve become so familiar with these instantaneous forms of communication that they don’t quite believe that their parents didn’t have them when they were growing up. It’s so easy for them, posting photographs and epigraphs for their relatives and friends in Asia, Europe, all over North America. And, like all children, they believe that they are at the end of the communication revolution, for what could possibly be better or more powerful than their own smart phones, right here, right now, right in their hands? We adults know, though, that by the time these children are middle-aged, they’ll be as befuddled and disoriented with their latest communication devices as I am now. Again, these things never cease to evolve, exponentially so.⁴ For hundreds of thousands – perhaps millions – of migrants, separated from their loved ones 30 or 40 years from now, we wonder whether the technologies yet to be invented will help them feel closer to their loved ones, or more pained by their absence.

Even in many of the poorest countries in the world right now, people are using their smart phones, their laptop computers, and other connected devices to see across vast distances, with a clarity and detail that was not possible in 1900. They can see how children like my children can have a decent life, where they do not worry about finding things to eat later that day or a place to sleep or clothes to wear. Through these ordinary miracles of modern communication, they see how another kind of life is possible in a place not so far away. Again, is it any wonder that we have so much migration? Is there anything more human than to want to try another place, another life, having seen that such things were possible?

For people who are not especially poor or disadvantaged, the two revolutions have also changed fundamentally how we relate to all that we know and love. In 1900, the University of California drew its students from within the state, and the campuses were located near the major cities of San Francisco and Los Angeles. After World War II, when the system expanded to serve a growing middle class, the new campuses matched the population growth of their regions – by 1960, parents in San Diego or in Sacramento could send their kids to campuses closer to them, rather than sending them to UCLA or Berkeley. Four decades later, however, the University of California drew students across the country and from all over the world. The University of California may have recruited and attracted students from out-of-state because of withering cuts in the state budget (which we will discuss later), but a student from China or Chicago can stay connected to their parents and fly back and forth and otherwise attend a UC campus without great difficulty. Again, to see this trend, one might visit SFO or LAX after final exams to see how many kids aren’t staying in the state for the holidays. And students from San Diego have no problems attending Berkeley or UC Santa Barbara – distance is much less of an issue than it was for a similar student in 1900, in that time before interstate highways and cheap airfares. Many of my students text their parents every day, they post on sites where their loved ones can see what they’re doing, every day – sometimes several times, every day.

When they graduate, they face a labor market that has spread everywhere, all over. We encourage students at the UC campuses to go abroad or go away as part of their undergraduate education, and many of them go and fall in love with Barcelona, Paris, Washington DC, or Seoul. They split after college. The University of California was once predicated on the idea that its graduates would be better citizens of California, and that they would support the economic and political development of this state. This may still be true, but a degree from one of these campuses is so valuable that companies and governments in New York or Shanghai or Tokyo offer jobs to these graduates, and these in turn can evolve into a lifetime away from Salinas or San Bernardino.

The two revolutions have let the privileged live farther away from the communities and the families that nurtured them as children – they can keep us connected through the internet or through cellular networks, even though we might live half a world away. Moreover, states and governments may regulate persons of this class and position, but nowhere near as severely as the people who are destitute. Many of my students and colleagues take vacations across an international boundary, and yet there are no police forces on the other end frisking or stopping them. In California, the great irony is that so many highly educated faculty members and students take vacations in Cabo or Cancun – going to Mexico and then coming back with a tan isn’t a problem for these folks, and so they thus enjoy a freedom of movement unfathomable to a poorer Mexican person trying to cross somewhere near El Paso.

All of this freedom might suggest that life is fantastic for the highly skilled and the affluent – that the borders don’t really matter much for them. There’s certainly much to support this view. Still, it’s not all great: many siblings and parents are spread across states, with perhaps a daughter in San Francisco, another in Vermont, and the parents in South Carolina. Getting together, even for holidays, can be a logistical nightmare, especially ...

Table of contents

• Cover
• Dedication
• Title Page
• Copyright
• Preface
• 1 The Two Revolutions
• 2 The Kinetic Nation
• 3 The Immigration Act of 1965
• 4 The Multiracial State
• 5 Common Wealth
• 6 The Privileged Classes
• 7 Out of Status
• 8 Local, State, and Federal
• 9 The Great Divides
• 10 The Future of American Migrations
• Epilogue
• Index
• End User License Agreement