Excerpted From: Monika Batra Kashyap, A Critical Race Feminism Critique of Immigration Laws That Exclude Sex Workers: Moving from Theory to Praxis, 38 Berkeley Journal of Gender, Law & Justice 52 (2023) (222 Footnotes) (Full Document)


MonikaBatraKashyapImmigration law is built upon a framework of exclusion. From its inception as a nation state, the United States established exclusionary immigration laws. From 1776 to 1875, states erected immigration laws with the sole intent of reifying “otherness” and excluding people from participating socially, politically, and economically in society, based on classifications of criminality, poverty, disability, contagious disease, race, slavery, and ideological grounds. In 1875, Congress passed the Page Act of 1875, which was the first federal law to exclude immigrants from entering the country. The Act did so by explicitly defining two distinct categories of immigrants: “persons who are undergoing a sentence for conviction in their own country of felonious crimes” and “women imported for the purposes of prostitution.” These two targets of the Page Act of 1875--felons and sex workers--have been consistently and continuously excluded under U.S. immigration law through the present day.

Moreover, since 1875, the federal government has expanded exclusionary immigration laws extensively and codified nearly forty distinct categories of exclusion, now referred to as “inadmissibility grounds.” The Immigration and Nationality Act of 1952 (INA) foundation of present immigration law--sets forth the current grounds of inadmissibility, organized into ten categories: health, criminal activity, national security, poverty, labor protection, fraud and immigration violations, inadequate documents, military service in the U.S., polygamy, unlawful voting, and other miscellaneous grounds. The inadmissibility ground excluding immigrant sex workers that is the subject of this Article, INA § 212(a)(2)(D)(i), is categorized under the INA's crime-related grounds of inadmissibility category. This exclusionary ground bars any immigrant who is coming to the U.S. “solely, principally, or incidentally” to engage in sex work--or who has engaged in sex work within the past ten years.

All grounds of inadmissibility control whether an immigrant can live within the boundaries of the United States. All immigrants seeking to live permanently in the U.S. are subject to these grounds of inadmissibility and any immigrant who is deemed to be “inadmissible” based on these grounds may also be subject to deportation.

Critical immigration scholars have critiqued many of these grounds of inadmissibility for their inhumanity, racially disparate impacts, racist motivations, and outdated underpinnings. For example, the public charge inadmissibility ground has been criticized for its racially discriminatory application, its devastating effects on public health, and for impeding public welfare goals to provide for those in need. The “drug abuser or addict” health-related ground of inadmissibility has been criticized for failing to align with the contemporary understanding of substance addiction as a medical condition, while also serving as an excuse for excluding persons based on racial profiling. The health-related inadmissibility ground that concerns mental-health has been critiqued for retraumatizing immigrant survivors of violence, while also reinforcing white supremacist beliefs about race and ability. Crime-related grounds of inadmissibility in general have been critiqued for their racist motivations and racially disparate impacts. Finally, the prostitution-related inadmissibility ground has been criticized for being rooted in archaic notions of morality, failing to penalize immigrant solicitors of sex, and unfairly impacting transgender immigrants. This Article adds a new dimension to the rich work of critical immigration scholarship by directing attention to the prostitution-related ground of inadmissibility through the distinct lens of critical race feminism.

To advance this critique, this Article proceeds in four parts. Part I foregrounds the central analytical tools and approaches of critical race feminism to provide immigration scholars with an unexamined framework through which to understand the INA's prostitution exclusion, INA § 212(a)(2)(D)(i). Part II follows by deploying a critical historical methodology to expose the roots of INA § 212(a)(2)(D)(i) as racist and white supremacist legislation borne from, and inspired by, the racialized and sexualized targeting of women of color. Using anti-essentialism theory, Part III (A) exposes how INA § 212(a)(2)(D)(i) reflects white supremacy and reifies patriarchy by essentializing all sex workers, all sex work, and all women--thereby silencing the voices and experiences of sex workers themselves, especially women of color sex workers. Using intersectionality theory, Part III (B) exposes the ways in which INA § 212(a)(2)(D)(i) refuses to recognize that multiple systems of oppression intersect with each other to produce overlapping and reinforcing harms for sex workers. Part IV moves theoretical critiques into praxis by explicitly connecting the critique of INA § 212(a)(2)(D)(i) to the emerging anti-carceral feminist movement to decriminalize sex work. The Article concludes by challenging immigration and critical race scholars alike to further explore the utility of critical race feminism as an analytical tool to examine the intersections of gender, race, and class in immigration law and, importantly, as a source of inspiration for transformative legal reform.

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Angela Harris explains that “the centrality of transformation” means that every incident of personal violence must be understood in a “larger context of structural violence.” Similarly, Andrea Smith argues that gender violence cannot be addressed without dealing with larger structures of violence, such as “militarism, attacks on immigrants and Indian treaty rights, police brutality, the proliferation of prisons, economic neo-colonialism, and institutional racism.” And in the immigration context, Sherally Munshi argues that to critique the violence of the U.S. border regime, we must confront the ways in which settler colonialism and “hemispheric domination” have both shaped and obscured the ongoing violence of “contemporary racial geographies and legal institutions” that serve to naturalize and legitimate the border.

Therefore, to bring the call for the abolishment of INA § 212(a)(2)(D)(i) into alignment with a transformative justice approach, we must move beyond abolishing individual exclusionary immigration laws and move towards a more “revolutionary project” of expanded abolishment of a system of immigration laws built upon racism and white supremacy. Doing so can open up pathways to alternative forms of coexistence built upon a respect for human life and a commitment to collective survival, to forms of citizenship not reducible to legal status or entitlement, and to a refusal to be confined by illegitimate borders. Doing so can help us move from theory to praxis.

Visiting Clinical Professor of Law, Seattle University School of Law, Ronald A. Peterson Law Clinic. J.D., University of California, Berkeley, School of Law.