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Andrew Tae-Hyun Kim, Immigrant Passing, 105 Kentucky Law Journal 95 (2016-2017) (416 Footnotes Omitted) (Full Article)


Andrew Tae Hyun KimWe all hide some aspects of ourselves from others. We also inhabit an identity that is multi-dimensional. Some dimensions of our identities, like our race, are more visible to others. Others, like certain disabilities, are not. They remain hidden, safe from the gaze and judgment of others. The choice to share these invisible parts of ourselves is often a private and personal choice, informed by the extent to which we recognize, accept, and understand these parts of ourselves and trust others to do the same. When we express certain identities that can seem to us, at times, to be vulnerabilities, some may applaud us for the courage, embrace us with empathy, or even celebrate us for the choice to live a life of authenticity. The law both safeguards and enables to varying degrees the admission, expression, and amplification of certain identities defined by race, gender, disability, religious affiliation, and sexual orientation--identities that were often stigmatized. The same cannot be said for other identities that remain discredited, even disgraced. Their disclosure is met with sanction, not approbation, and may mean permanent exile from, not integration with, existing families and communities.

Such is the plight of over eleven million people in this country who, as undocumented immigrants, lack a formal, legal existence according to the United States government. Many came to the United States as children, without the agency to be complicit in the unauthorized border crossing or the overstaying of their visa. Many of these children have become a part of our communities long enough to have their own children. Yet, they live each day under the threat of deportation. That threat is triggered by cultural and legal norms that stigmatize undocumented status and its related attributes, which in turn discourages disclosure and drives undocumented immigrants further underground.

To lift such immigrants out of “the shadow of deportation,” the Obama Administration, in November 2014, announced two landmark immigration policy programs: Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) and the expansion of Deferred Action for Childhood Arrivals (“DACA”). Under these programs, the U.S. Department of Homeland Security *98 (“DHS”) would not pursue enforcement action against specific parents of undocumented children and youths who came to the United States as children. In promulgating these programs, the Obama Administration relied on the executive branch's authority to exercise discretion in prosecuting unlawfully present noncitizens. The programs were an attempt to move forward in a more productive direction years of policy stalemate and contention over immigration that had virtually ground to a halt legislative and other processes. Nevertheless, twenty-six states challenged the President's authority to defer deportations as unlawful under both the U.S. Constitution and the Administrative Procedure Act. A federal district court issued a preliminary injunction, which the U.S. Court of Appeals for the Fifth Circuit affirmed. The U.S. Supreme Court, in a 4-4 decision, affirmed the Fifth Circuit, leaving in place the district court's order. The U.S. Supreme Court's one-sentence decision pointed out that the ruling set no precedent and that the case may well reach the Court again after the district court has held a trial.

The judicial and scholarly debate surrounding DAPA and DACA has mostly concerned the legality of implementing immigration reform through executive action. But at the heart of that debate belies a more important--and, indeed, thornier--question concerning the kind of polity we aspire to and the right immigration policy that would best achieve it. This Article prioritizes and engages that unexamined aspect of the deferred action programs: whether and how they might incentivize those who are in the “undocumented closet” to come out. It approaches DAPA and DACA as legal instruments that attempt to intervene in and challenge existing legal regimes that incentivize what I term “immigrant passing.” Whether unwittingly or not, such traditional immigration regimes--much like “don't ask, don't tell”--have promoted a link between assimilation and discrimination in ways that have stymied the otherwise potential positive effects of the law. This link is new in that, as I explore and theorize, it encourages viewing undocumented status as an immutable identity, a stigma, and an over-determining attribute which may possibly overwrite all other identity dimensions, all of which in turn, share many similarities with other stigmatized identities. Much like ethnicity or gender, undocumented status is perceived as functionally immutable, even while we know that such identity categories are socially constructed, imbued with differential social, historical, and cultural meaning systems, and often evolving and changing. Much like sexual orientation, undocumented status is often perceived socially as central to one's identity, even over-determining of all other identity *99 attributes and characteristics. Even while, like certain disabilities, undocumented status may be invisible to others, its public acknowledgement bringing opprobrium.

Despite such important similarities, what defines and distinguishes undocumented status from other stigmatized identities is its current unlawfulness. Intentionally or unintentionally, the current legal system creates harmful and stigmatizing effects for individuals without materially improving immigration law and policy outcomes. Indeed, the current system, insofar as it articulates certain social and cultural norms associated with undocumented immigrants, encourages clandestine passing. As this Article ultimately shows, the deferred action programs of DAPA and DACA are alternative legal and policy mechanisms that, despite other flaws and limitations, enable a reprieve for immigrants of the demand that they hide who they are, including their unlawful presence.

This Article proceeds in five parts. Part I argues that undocumented status increasingly functions under the rules of stigma, much like other stigmatized identity attributes, thus sharing both similarities and differences with other identity characteristics that have been historically and culturally subject to stigma, like race, sex, sexual orientation, and disability. It does so by situating undocumented status within the broader antidiscrimination framework.

Part II describes the evidence of that stigma in both our legal and cultural discourse.

Drawing on the insights of social psychologists and other legal scholars, Part III conceptualizes a theoretical framework for ways stigmatized identities engage in individual mobilizing strategies and identity performance to cope with the particular stigma. Engaging the intersecting social, psychological, and legal frameworks, it develops a lens through which one may more clearly articulate the continuum between assimilation and discrimination.

Part IV applies this framework to undocumented immigrants specifically and shows the ways in which undocumented immigrants manage their identities in light of the stigma. Relying on intersectionality theory, it posits that undocumented immigrants experience stigma that is multi-dimensional and more oppressive because they are stigmatized on account of not only undocumented status, but also other stigmatizing conditions such as race and national origin.

Part V argues that the current immigration law and policy regime is a de facto passing regime that not only condones, but also encourages undocumented immigrants to pass. It considers the Obama Administration's deferred action programs as an anti-passing policy mechanism that, despite their limitations, by incentivizing immigrants to eschew unlawful hiding, not only helps reduce discrimination, but also provides a first step toward a lawful pathway to a more sustainable integration into American communities.

* * *

The question of how we integrate not only the more than eleven million undocumented immigrants in the United States, but also the growing lawful immigrant population here generally will be a central challenge facing this country in the coming years. In a country as ethnically diverse as ours, the fears of a nation fracturing into separate, indivisible spaces defined mainly along ethnic and religious lines are real and reasonable. But the formation of social solidarity does not have to mean the stark choice between coercive assimilation and balkanization. This Article has exposed the high costs exacted by the legal and cultural norms that have imposed passing demands on the lives of undocumented immigrants in this country. In our continued search for shared values around which we can unite, our immigration laws and policy should validate and encourage the expression of our authentic selves. Despite their limitations, and within the constraints of the current congressional stalemate on immigration reform, the Obama Administration's deferred action programs represent a first step in the direction of providing a lawful pathway for sustainable integration into American communities for millions of undocumented immigrants.

Associate Professor of Law, Syracuse University, College of Law. J.D. Harvard Law school