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Excerpted From: Eisha Jain, Policing the Polity, 131 Yale Law Journal 1794 (April 2022) (219 Footnotes) (Full Document)


EishaJainThe era of Chinese Exclusion is foundational to the field of immigration law. In enduring decisions, the U.S. Supreme Court upheld laws that provided for race-based exclusion and deportation. Today, immigration scholars often discuss the seminal 1893 decision, Fong Yue Ting v. United States, solely as a decision about deportation. Yet it had an impact well beyond the removal process. The Court upheld a law that required those of Chinese descent living in the United States to obtain a “certificate of residence” or else establish through “at least one credible white witness” their eligibility to remain in the United States. As a dissenting Justice put it, the law transformed targeted U.S. residents into “ticket-of-leave men”--a reference to former prisoners who risked reimprisonment at any time if they failed to carry and display their tickets-of-leave--who “cannot move about in safety without carrying with [them] this certificate.” The policing practices at issue in Fong Yue Ting reflected a racial presumption that those of apparent Chinese descent were indelibly foreign; race rendered them deportable and also obligated them to show their papers on demand.

Fong Yue Ting left two legacies that continue to shape immigration doctrine: the legacy of the “plenary power doctrine”--the doctrine of relaxed judicial review of federal immigration law a legacy of race-based domestic policing in stated service of immigration control. Thus far, the policing practices at issue in Fong Yue Ting have received relatively little attention. That may be because the decision predates both modern deportation procedures and modern policing, or because the government ultimately chose not to pursue mass arrests or deportations. Scholars may also view the policing practices and deportation practices as two faces of the same coin. The same dynamics--racism, labor exploitation, colonialism, and an indifference to the suffering of those considered outsiders--produced both deportation and race-based policing.

I do not seek to discount these dynamics; Fong Yue Ting's holding with regard to deportation does much to explain the Court's acceptance of race-based domestic policing. Yet my aim in this Essay is to show that its domestic policing legacy deserves recognition in its own right, and not only as a path to deportation. By conceptualizing the law as primarily about deportation, the Court adopted an analytic lens too narrow to recognize its impact on those who remained present. This “deportation-centric” account continues to shape how courts recognize substantive rights within the United States. “Immigration” law as a field governs admissions and removal decisions, while “alienage” law governs the treatment of noncitizens within the United States. But courts lack a vocabulary for recognizing a liminal space where people are subject to legal regulation because they are presumed not to belong.

This Essay shows how the deportation-centric approach developed and how it continues to shape contemporary understandings of immigration enforcement. It argues for a more expansive approach to understanding the reach and impact of immigration law, which I call a “polity-centric” approach. One problem with the deportation-centric framework is that it conceptually narrows the full reach of enforcement practices. If the aim of immigration control is to build an integrated political community inside the United States, then we need, at minimum, a better descriptive account of the legal processes employed in stated service of building the polity. Those legal processes include front-end stops and surveillance of U.S. residents, regardless of any subsequent connection to deportation.

Second, a deportation-centric account provides too limited a lens to recognize, much less redress, how enforcement practices themselves conflict with core constitutional protections inside the United States. Scholars have examined practices including immigration detention, jailhouse immigration screening, and criminal-immigration prosecution to show how the intersection of criminal and immigration law enforcement can magnify the carceral impact of enforcement choices while minimizing procedural protections. This Essay seeks to add to these conversations by showing how front-end enforcement practices--such as racialized demands that people justify their presence in a particular place-- erode constitutional protections and cut against immigration goals of integrating people into a larger political community.

Recognizing front-end immigration-enforcement practices today is particularly important, given the close connection between immigration enforcement and domestic policing. In the domestic-policing context, courts and scholars have recognized the subordinating impact of race-based surveillance. In Terry v. Ohio, even as the Supreme Court upheld the constitutionality of police stops justified by a standard less than probable cause, it acknowledged the “difficult and troublesome issues” inherent in identifying “suspicious persons” and cited to the “wholesale harassment” that racial minorities report experiencing during police stops. A body of legal scholarship conceptualizes how domestic policing practices erect “racialized borders” within the United States. When policing practices target communities on the basis of race, they alienate communities at large from the body politic. As Professor Monica C. Bell writes, racialized policing practices create the perception among poor people of color that they are “essentially stateless--unprotected by the law and its enforcers and marginal to the project of making American society.”

Race-based policing often operates the exact same way in the immigration context--yet in the immigration context, the justification is that the targets are “illegal” as well as criminal. During the period of Chinese Exclusion, the Court adopted a legal framework that accepted race-based policing as a means of protecting the polity from a foreign threat. And while that approach has shifted over time, it has never been abandoned altogether. Courts still characterize front-end policing practices as nothing more than a pipeline to deportation. This doctrinal approach essentializes deportation as the primary work that immigration enforcement does, at the expense of recognizing how front-end surveillance can operate in tension with the immigration-law goal of promoting integration into a larger political community.

This Essay aims to create a discursive space to recognize the front-end impact of immigration enforcement choices. I examine two contemporary case studies of a deportation-centric approach: immigration policing and “anti-illegal immigrant” nuisance ordinances. “Anti-illegal immigrant” nuisance ordinances are an example of shifting borders; localities employ the logic of national immigration control to justify surveillance and racial steering inside the United States. These ordinances operate with the stated aim of blocking those who lack lawful immigration status from obtaining rental housing within certain localities. When courts view these laws under the theory that they regulate immigration by encouraging “self-deportation,” they accept without justification the underlying assumption that Latinos who move into predominately white localities are “illegal aliens.” This analysis, in turn, is too narrow to recognize the full reach and impact of these laws, including their potential conflict with antidiscrimination law.

My analysis focuses on courts because of their role in safeguarding rights. However, it also has implications outside the doctrinal context. I argue for a broader recognition of how enforcement practices relate to building a political community. The kernels of a “polity-centric” approach appear in a 1941 case, Hines v. Davidowitz, which involved state surveillance directed towards Italian and German immigrants. There, the Supreme Court recognized how immigrants could become future citizens, and how singling out a particular group for surveillance could undermine important interests in free movement and integration into the polity.

This Essay closes by considering how a “polity-centric” approach could reorient constitutional doctrine with regard to front-end enforcement practices. Local “anti-illegal immigrant” nuisance laws provide a case study for a more expansive understanding of the reach and impact of immigration enforcement practices. Any law that prevents people from living with whom they choose raises significant equal-protection concerns, including those that affect millions of mixed-immigration-status households. When courts frame these laws principally in relation to deportation, they obscure how they are part and parcel of a tradition of promoting residential segregation, including through laws that have racialized effects on intimate association.

This Essay also adds to a body of criminal-law scholarship that argues that police stops should be subject to greater scrutiny. Immigration policing embarrasses the notion that police are in the business of targeting suspicious conduct. Immigration is a legal status; it is not about anyone's conduct at a particular time. Courts should also recognize how civil-enforcement responsibilities expand the coercive potential for police-resident interactions. This is particularly true when domestic police have the systemic power to initiate actions such as eviction without ever making a criminal arrest.

The balance of this Essay proceeds as follows. Part I argues that the era of “Chinese Exclusion” established a particular way of thinking about policing practices in the context of immigration enforcement. Namely, when it came to those racial minorities perceived as foreign, courts focused on how enforcement practices could lead to deportation, without considering how surveillance and arrest itself could undercut individual liberty interests. Parts II and III show the continuing impact of a deportation-centric approach over time through case studies of contemporary immigration-enforcement practices, with a focus on policing and “anti-illegal immigrant” nuisance laws, respectively. Part IV makes the normative case for a polity-centric approach and considers its doctrinal implications for antidiscrimination and Fourth Amendment doctrine.

[. . .]

This Essay has sought to engage with the question of how we should view the goals of immigration enforcement in an ever-changing, multiracial, multilingual polity. Starting with the era of Chinese Exclusion, courts and lawmakers narrowed the terms of the debate by treating immigration status as though it is a binary between “legal” and “illegal,” by assuming that immigration status could be ascertained through racial constructs, and by reducing the significance of front-end immigration enforcement to nothing more than a question of ascertaining who remains and who is forced to leave. This vocabulary, with its focus on seemingly binary statuses and deportation, bears little relationship to the actual demographics of the U.S. polity today, which has the largest immigrant population in the world and a constitutional membership structure that grants birthright citizenship. If immigration policies are meant to be responsive to the interests of the membership community, then they cannot be anchored to racial constructs of who is perceived to belong. Nor can immigration enforcement policies assume that immigration status at one particular time precludes full membership in the future. By considering how enforcement choices relate to the ongoing construction of the polity, we can imagine an immigration law that privileges integration and inclusion as ongoing objectives of the law, as opposed to one that centers on deportation.

Assistant Professor, University of North Carolina School of Law.

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