Excerpted From: Tori DeLaney, What Do We Do with You: How the United States Uses Racial-gendered Immigrant Labor to Inform its Immigrant Inclusion-Exclusion Cycle, 92 University of Cincinnati Law Review 206 (October 20, 2023) (273 Footnotes) (Full Document)


ToriDeLaneyThe United States has constructed and continues to enforce gender, race, and labor assumptions through the Immigration and Nationality Act's (“INA”) deportation rules. The United States crafted its immigration laws to be flexible enough to lean on and vilify immigrant labor depending on the nation's labor needs. Modern enforcement of the INA's abstract inadmissibility and deportation standards perpetuate these historical racial and gendered assumptions.

This Comment focuses on the language used in the INA's inadmissibility and deportation sections and how that language allows immigration officials to alter the scope of enforcement based on the gendered labor needs of the nation. Section II of this Comment lays the foundation for how gender will be used in this Comment, how gender connects to labor and race, and how gender, race, and labor (“racial-gendered labor”) relate to the United States' immigration system. Section II also traces the formation of the United States' immigration structure, from one of its first exclusionary codes to the current version of the INA. Section III then discusses how the INA's vague language incorporates and perpetuates racial-gendered and labor assumptions. This Section specifically analyzes the public charge and criminal and related grounds categories within the inadmissibility and deportation statutes. Section III further examines how the flexibility of this language provides discretion to immigration officials to deport immigrants for historically racial-gendered reasons under the guise of neutrality.

Throughout this Comment, foreign nationals in the United States are referred to as either “noncitizens” or “immigrants” regardless of their authorization status, whether they intend to stay or are only entering for work. By using these two terms, this Comment simplifies immigration language to make it more accessible to readers and humanizes the immigrant experience by intentionally omitting the term “alien.” Use of the terms “noncitizen” and “immigrant” in this Comment predominantly refers to individuals who plan to reside permanently in the United States (immigrant) but may encompass some experiences had by temporary laborers (nonimmigrants). Additionally, it is of note that this Comment focuses its analysis on noncitizens coming to the United States from China and Mexico. The prolonged relationship between the United States and these two nations is well documented and helps to exemplify the historical race, gender, and labor assumptions made during the creation of the INA, and how those assumptions continue today.

[. . .]

The above discussion has offered tangible prescriptions for Congress to remove several instances of racial-gendered stereotypes from the INA, thus allowing Congress to break the inclusion-exclusion cycle.

This Comment has addressed the repetitive, expansive, and discretionary language used in Sections 212(a) and 237(a) of the INA. It points out how exclusionary immigration laws are founded on racial- gendered and labor assumptions and how those assumptions are perpetuated through the vague language embedded in Sections 212(a) and 237(a). Congress should use the suggestions provided above to identify the repetitive language found in Sections 212(a) and 237(a) and remove language that unnecessarily expands immigration officials' discretion to determine an immigrant is inadmissible or deportable beyond what can be supported by objective measures. It should consolidate and narrow the discretion identified in Sections 212(a) and 237(a) of the INA and remove vague language that can be imbued with racial-gendered overtones to mitigate historical and continuing exclusionary tactics that arbitrarily target immigrants of color and immigrants with certain gender identities.

Congress should not allow Sections 212(a) and 237(a) to play off each other in ways that harm immigrant communities by tearing away members who no longer serve the racial-gendered labor needs of the nation. This Comment urges Congress to remove language from the public charge and controlled substance categories that allow immigration officials to rely on historically racial-gendered biases. It further argues for the complete removal of the prostitution subcategory because its origins and continued use perpetuate racial-gendered stereotypes about immigrant women's morality. Lastly, this Comment implores Congress to define or omit crimes of moral turpitude because the term's current use in the immigration context allows immigration officials to wield excessive discretion over an immigrant's inadmissibility.

The removal of racial-gendered and labor biased language alone cannot end racial-gendered biases in immigration law. To totally remove biases from immigration law will require a complete social overhaul of existing racial-gendered and labor systems. However, this Comment aims to move both laws and society toward a more equitable immigration system by starting with the easiest step, adjusting the legal language and how it is implemented.

Citations Editor, University of Cincinnati Law Review.