Contesting criminality: Illegal immigration and the spatialization of legality

1. Efforts to criminalize previously ‘acceptable’ behavior—ranging from drunk driving to hate crimes to domestic violence—have, however, been a focus of research (Green, 1989; Merry, 1995; Schneider, 2000; Jenness and Grattet, 2001).

2. On the relationship between law, space and social exclusion, see Sibley (1995); Cresswell (1996); Herbert (1997).

3. In other words, if social exclusion is incomplete (as is often the case), offenders can use their participation in ‘legitimate’ social activities to challenge their location in a domain of criminality.

4. For instance, drugs that can be obtained legally can also be abused, and illicit economies (such as black markets) can make money available for legal transactions.

5. Joan Petersilia describes one such alternative:

Ex-offenders should have an opportunity to show they are good risks through consideration of the circumstances of the crime, the severity of the sentence, or their rehabilitation. England’s Rehabilitation of Offenders Act provides a good model. That act allows for persons convicted of a crime and sentenced to prison for less than 2.5 years to have that conviction ‘spent,’ or ignored, after a period of time has elapsed if no felony convictions occur during this time period... The individual’s criminal history legally ‘expires’ after a given number of years. (2003: 20)

6. Simon points out that super-max prisons are designed ‘to contain his [the individual’s] “toxic” behavioral properties’ (2000: 301). As ‘containers’, prisons bound and separate domains of legality and criminality. Petersilia (2003) points out that reentry has replaced ‘rehabilitation’ as a focus of penal reform. Unlike rehabilitation, which is supposed to transform a person, ‘reentry’ focuses on moving individuals between spaces.

7. Petersilia (2003: 228) cites research indicating that people who commit crimes can none the less provide positive parenting to their children.

8. According to labeling theory, labels are applied less on the basis of deviant behavior and more on the basis of social characteristics, such as the race, gender, ethnicity or social class of the person labeled. Labels are then said to contribute to secondary deviance, as individuals internalize their labels and exhibit the behavior to which they are believed to be predisposed—though individuals can also contest their labels (Rogers and Buffalo, 1974). Moreover, individuals who are labeled as deviant are excluded from conventional activities, an exclusion that further reinforces labelees’ alleged deviance. ‘Deviance’ that results from such exclusion may be structural in nature. For instance, if unauthorized immigrants are denied drivers licenses, they may commit the ‘deviant act’ of driving without a license. Such exclusion may constitute individuals as the beings that labels name. Thus, individuals are materially constituted as ‘convicts’ through incarceration, job applications that ask them about prior convictions, employers who consider it prudent not to hire them and so forth.

9. Cohen notes that:

criminalization is the process of identifying an act deemed dangerous to the dominant social order and designating it in law as criminally punishable. This fateful decision produces a peculiar illusion (peculiar because we know very well that it is an illusion): that acts of conduct were divided originally into positive/negative, criminal/virtuous... Unlike social norms that we know as subtle, continuous, and negotiable, we start to talk about a dichotomous variable, crime/noncrime. (1988: 257)

10. And of course, some crimes—e.g. drug-dealing—are less likely to be officially identified as criminal if they are performed by middle-class youth.

11. Reminding readers of ‘the contingent nature of “fear of crime” as an object of criminological inquiry’ (Lee, 2001: 469), Lee points out that ‘fearing subjects are to be considered both the imagined objects of governmental regulation... and also the subjects of disciplinary analysis whose very subjectivity is imagined through the quantification of survey data and the like’ (2001: 471, emphasis in original). The same could be said of ‘the criminal’.

12. While recent changes in US immigration policy—particularly the 1996 immigration laws and the Patriot Act—have further criminalized immigrants, presumptions that immigrants may be criminals are nothing new. See Cole (2001) for a history of characteristics believed to indicate criminality.

13. According to Harwood (1984), the INS only requested prosecution on charges of violating US immigration laws when aliens were involved in smuggling or fraud rings, caused injury to others or were wanted on other charges. In plea-bargain agreements, aliens sometimes pled guilty to entry without inspection instead of to a more serious charge (Harwood, 1984: 541), and federal and state prosecutors sometimes prosecuted suspects on immigration-related charges when they were not certain that they could obtain convictions on more serious grounds (Harwood, 1984: 543). Prosecuting an individual solely for entry without inspection, however, is rare.

14. Several factors may explain the failure to arrest and prosecute illegal entrants. Within the INS, fighting ‘real criminals’ such as drug smugglers was more prestigious and rewarding work (Heyman, 1995). Moreover, as undocumented workers are economically useful to certain industries, the INS was under political pressure to limit its efforts to prevent the entry of these migrants (Jenkins, 1978; Calavita, 1992).

15. Note that while employers may want to hire undocumented immigrants, other workers may resent competition from ‘illegal aliens’. Until recently, the AFL-CIO opposed calls for a broad-based legalization program.

16. On post-11 September 2001 changes in US immigration law and policy, see Cole and Dempsey (2002); Human Rights Watch (2002); Lawyers Committee for Human Rights (2003).

17. Other methods of legalization included family visa petitions, employment-based visa petitions, suspension of deportation and the legalization program created by the 1986 Immigration Reform and Control Act (IRCA). In the early 1980s, few Salvadorans had US citizen or legal permanent resident relatives, employers willing to petition for them or the seven years of continuous presence required for suspension of deportation. Additionally, most arrived after 1 January 1982 and were therefore ineligible for legalization under IRCA. The earliest Salvadoran migrants were eligible for IRCA’s amnesty program, however, and eventually, after becoming legal permanent residents themselves, were able to petition for the legalization of other relatives.

18. The Reagan administration did welcome refugees from other countries, such as Cuba, Nicaragua and the former Soviet Socialist Republics, whose regimes were considered repressive. The USCR reports that between 1983 and 1986,

[asylum] applicants from Iran had the highest approval rate..., 60.4 percent, followed by the Soviet bloc countries, Romania (51.0) Czechoslovakia (45.4), Afghanistan (37.7), Poland (34.0), and Hungary (31.9). Among the countries with the lowest approval rates were El Salvador (2.6), Haiti (1.8), and Guatemala (0.9). (1986: 8)

19. These laws are directed against alien-smugglers, but, since 1986, employers have also been held accountable for the legal status of those they hire.

20. ABC class members’ asylum applications remained unadjudicated for many years because US immigration authorities, who faced a huge backlog of pending asylum applications, delayed scheduling these hearings.

21. Suspension of deportation was replaced by a cancellation of removal, which required 10 years of continuous presence and established a higher hardship bar. Additionally, IIRIRA placed a cap of 4000 on the number of individuals who could qualify for cancellation annually, making this an unlikely remedy for the 300,000 ABC class members seeking residency.

22. The logic used in this statement reflects the strategies through which Salvadorans and Guatemalans contested illegality. Referring to Central Americans as a ‘special category’ suggests that Salvadorans’ efforts to argue that they were an exceptional case were successful. References to the amount of time that these immigrants lived in the United States and to the ways that their lives became ‘intertwined with their communities’ indicate that although these migrants were initially prohibited and situated in an ‘underground’, over time, they left this space, to a certain degree. Pulled from a domain of social exclusion to one of at least partial inclusion, these formerly ‘invisible’ migrants were able to ‘appear’ and be legally recognized.

23. Proponents of restrictive immigration policies might not see immigration as so different from these other offenses. Immigration reform advocates might argue that illegal immigrants are assaulting the United States, robbing US citizens of jobs and public benefits and destroying the nation.