On the illegalized person
As both an immigrant and philosopher of immigration, I am perennially interested in immigration discourse in the United States and around the world. In America, the debate centers on “undocumented” and “illegal”; this debate has extended everywhere from movement meetings to journalistic style guides. And in a Trump administration, such a distinction receives new significance.
Against the grain, I argue that both terms are not faithful to the noncitizen experience. In turn, I propose an alternative lens: “illegalization”.
Immigrants and their advocates argue for “undocumented” at the expense of “illegal”, as the latter is putatively dehumanizing. More importantly, advocates argue that “illegal” commits an error of attribution, i.e. being forced to migrate becomes conflated with choosing to migrate. Illegals, defined as choosing to enter illegally, indicates a permanently corrupt moral nature and one that forever prevents the illegal from becoming a citizen.
“Undocumented,” in direct contrast to “Illegal”, does not commit such an error of attribution, nor does it attach anything resembling original sin. It is a gentler term than “illegal” — it makes no claim about the legal or moral status of a person on its own. It is supposed to shed light on the following: the only thing separating the documented from undocumented is mere circumstance.
Opposition to “illegal” is best captured in Elie Wiesel’s quote that “No human being is illegal.” I read him as stating this normatively, i.e. no human being ought to be illegal. But even taking that into account, human beings are actually illegal. Breitbart does not talk about “illegal immigrants” — they talk about illegal immigrants. When the Supreme Court hears a case on those without authorization, they refer to them as illegal aliens, not “illegal aliens”. The reason why I do not use scare quotes is precisely because the very institutions that determine and reify illegality do not. In other words, in legal systems such as our own, human beings are illegal as a matter of social fact.
In contrast, the shortcoming of “undocumented” stems from the very circumstance it supposedly illuminates.. When DACA came out, I and other activists helped those eligible apply and sort the piles of documents to satisfy DACA’s requirements. It was not that they lacked documents; rather, they did not have the right documents. Confusing circumstance and normativity leaves open the idea that American — and, by extension, Western documents are the right documents. Unlike “illegal”, whose error happens at the start of the immigrant experience, the error of “undocumented” occurs when we are confused about where the end of the immigrant experience ought to be.
Having argued against “illegal” and “undocumented”, I propose “Illegalized.” I argue the terms avoid the pitfalls of “undocumented” and “illegal” by being dynamic, transnational, and intersectional.
“Illegalization” indicates marginalization’s dynamic nature in the historical, social, and epistemic sense, which is faithful to the noncitizen experience. Historical illegalization exposes the many ways in which whiteness has violently regarded some people as not being human. Social illegalization indicates how noncitizens experience great difficulty making sense of their social experience but are also excluded from the production of social meaning. Coming out of the shadows is an important for this reason: coming out as illegalized means confronting one’s illegalization. Illegalization is an epistemic process because illegalized persons are not seen as people capable of knowledge. This becomes an ethical wrong when it is permissible to disregard this capacity, one that is essential to how all persons view themselves.
Secondly, “illegalization” is trans-national, and thus facilitates an understanding of the global, contemporary crisis of noncitizenship. Further, the fact that illegalization does not hinge on a particular legal system means that whether someone is illegalized is completely distinct from whether someone is illegal. When then-Candidate Trump stoked fear of rapist Mexicans coming through the Southern border, the people he is talking about are not illegal immigrants. But their capability to be rapists — or, conversely, their incapability to be as civilized as citizens are — renders them illegalized regardless of if they undergo a legalization process.
Finally, “illegalization” facilitates intersectional discussions about marginalization; situating illegalization vis-à-vis migration is but one kind of illegalization. Trans people are illegalized, women are illegalized, Black people are illegalized, non-binary people are illegalized, First Nations people are illegalized — the list goes on. Still, all are illegalized in different ways, and to different degrees. Speaking in terms of illegalization makes it more apparent that immigrant justice, trans justice, and racial justice are inextricable. Yet it still retains its roots in law in that legality/illegality takes into account law’s role as a mechanism of social control, and how it facilitates intersecting oppressions.
The above is only a sketch; there is more to be worked out here. Nevertheless, I contend that “illegalized” can catalyze a movement toward justice that exposes, yet is not bound by, the very borders which have determined humanity for much too long.
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