Beyond “Liminal Legality”

This May Day, let's demand not just sanctuary from deportation, but legalization for all — and an end to capital's despotic rule.

A migrant worker picks tomatoes on a farm in Fort Blackmore, VA. Bread for the World / Flickr

On February 9, Immigration and Customs Enforcement (ICE) agents across the country arrested more than six hundred immigrants in a series of nationally coordinated actions. In Los Angeles alone, they detained over a hundred people, prompting fierce local resistance and sparking concerns that President Trump was delivering on his campaign promise to remove all eleven million undocumented immigrants from the country.

The previous month, Trump issued a pair of executive orders calling for increased cooperation between local police and federal immigration enforcement, and penalties for those “sanctuary” jurisdictions that limit such cooperation. He designated undocumented immigrants charged with any criminal offense a priority for removal; ordered the creation of a new office called the Victims of Immigration Crime Engagement; mandated the construction of new detention facilities and border walls; and called for the hiring of thousands of additional Border Patrol and ICE agents.

With Trump’s ascendance, the limited concessions wrested from the Obama administration seem to have disappeared under a tide of noxious reaction.

Yet it hasn’t all been venom in Trump’s first one hundred days. In late February, Trump said he was open to granting some form of “legal status” to millions of undocumented immigrants, including citizenship to so-called DREAMers.

At a time of heightened fear and anxiety, it can be difficult to make sense of the White House’s sometimes seemingly contradictory rhetoric. Trump is a bigoted narcissist with a hefty streak of xenophobia. But that observation doesn’t get us very far. It is more useful to deemphasize his personal attributes and consider his structural role in the management of the highly racialized struggle between capital and labor.

Moving forward, a key challenge for the immigrant justice movement, and for the Left in general, will be to couple denunciation with demystification — calling out Trump’s unjust policies while taking a clear-eyed view of their underlying logic.

In the case of immigration, ramping up the Obama administration’s policy of mass deportation would in no way undercut what Trump terms “positive immigration reform.” On the contrary: the expulsion of another several million undocumented immigrants would lay the groundwork for a more tightly controlled low-wage immigrant workforce.

Sanctuary Revisited

So far under Trump, the immigrant justice movement has directed most of its energy toward fighting deportations, especially through the establishment and defense of “sanctuary” cities.

Elliot Young cautions that the concept of “sanctuary” runs the risk of turning into a feel-good but ultimately “meaningless designation” in the absence of consistent grassroots mobilization. David Harvey argues that while “’regional resistances,’ the struggle for local autonomy [and] place-bound organization may be excellent bases for political action,” “they cannot bear the burden of radical historical change alone.”

Hilary Goodfriend is more sympathetic, urging the Left to reclaim the radical heritage of the 1980s sanctuary movement as “but one component of a broad-based, cross-border, anti-imperialist liberation struggle.”

What should we make of these arguments?

For now, the contemporary sanctuary struggle has successfully used grassroots action to pressure local liberal elites in the face of a hostile federal administration. But it is equally important to avoid exaggerating the victories of its forbearer.

One of the sanctuary movement’s key demands was full refugee status for all those forced to flee Central America. The federal government finally responded by creating Temporary Protected Status (TPS) in 1990. A far cry from refugee status, TPS granted mainly Salvadorans the right to work and reside in the country — but not the right to access publicly funded social services — for eighteen months at a time. Cecilia Menjívar describes this state of “liminal legality” as one marked by “enormous anxiety,” with “each deadline accentuat[ing] these immigrants’ precarious situation” and many falling in and out of status over time.

Since it is a juridical condition fully sanctioned and regulated by the state, TPS affords capital an even tighter control over immigrant labor than “illegality” does over undocumented workers. It also allows the state to shirk all responsibility for the social wellbeing of immigrant workers, placing the onus on immigrants themselves (and often, because of the historically gendered dimensions of the division of labor, forcing women to pick up the slack).

Given that TPS’s unveiling also helped demobilize the broader sanctuary movement, we might well consider it a victory for the capitalist state.

Liminal Legality Today

Twenty-seven years after its introduction, TPS remains available to certain individuals from thirteen countries, with Salvadorans (195,000), Hondurans (57,000), and Haitians (50,000) by far the largest beneficiaries (although it is likely that the latter group will soon be ineligible). Its legacy also lives on in the Obama administration’s Deferred Action for Early Childhood Arrivals (DACA) program, in which 750,000 undocumented youth have enrolled — after paying application fees approaching $500 — since late 2012.

DACA provides a two-year work permit and (non-guaranteed) deferment of deportation to a largely bilingual and highly educated segment of the undocumented youth population.

But despite the much-needed temporary relief the program offers, beneficiaries still constantly worry about the long-term fate of their legal status, as well as that of their family members.

Since they do not enjoy access to publicly funded social programs, Pell Grants, or other similar federal scholarships, most students must rely almost exclusively on a combination of low-wage work and loans to finance their education. A recent study of the program’s impact in southern California found that an overwhelming majority of recipients worked jobs paying an average of $11.47 an hour, with only 5 percent belonging to a labor union and more than two-thirds reporting difficulties paying for school.

Just as TPS was a response to the grassroots organizing of the sanctuary movement, DACA was part of the Obama administration’s effort to co-opt the militant organizing of undocumented youth, which had culminated in the occupation of Obama campaign offices around the country in June 2012. Activists were demanding an executive order to halt their deportation, as well as full “legalization” through the DREAM Act.

Although quite popular, DACA has not totally pacified the most militant undocumented students. They entertain no illusions about its limitations, but recognize that it has lulled others into a false sense of security, and sown divisions within the larger movement.

At the same time, they’re also fully aware of the dangers of providing DHS with their personal information. Trump’s early campaign promise to cancel DACA sent shock waves through the immigrant community, placing many in the frustrating position of having to defend a program that does not come close to meeting their needs.

Since becoming president, however, Trump hasn’t made good on that vow. DHS Secretary Kelly stated unequivocally in February that the departmental memos establishing DACA and DAPA — a similar program for parents of undocumented youth and legal permanent residents that the courts have blocked — remain in force.

This apparent about-face makes more sense if we consider the benefits that “liminal legality” offers to capital and the state.

The Revenge of Reform

In his first post-election interview, Trump outlined his immigration plan: “secure” the border, incarcerate and deport the “criminals,” and create a “pathway to citizenship” for the “good” immigrants.

Trump’s approach bears a striking resemblance to S. 744, the immigration reform bill that the Democratic-controlled Senate passed in June 2013.

Despite some noteworthy differences, Trump’s executive orders are entirely consistent with that measure’s overarching goal of transitioning to a new system of immigrant labor control in which the dominant form of subordination consists not of “illegality” but rather “liminal legality,” backed up by a strengthened state that surveils, detains, and deports those who dare step out of line. The Democrats’ bill would have allocated a full $46 billion for “border security” measures.

During his first address to Congress, Trump stated his desire to sign into law “real and positive immigration reform” that would include a “merit-based system.” His Buy American and Hire American executive order, signed last month, seeks to revamp the H-1B visa system for “highly skilled” workers along comparable lines.

Similarly, S. 744 proposed allocating immigrant visas based on the perceived needs of capital, with a newly formed Bureau of Immigration and Labor Market Research providing recommendations for issuing nonimmigrant visas. In addition to increasing the yearly cap on H-2B visas for “lower-skilled” non-agricultural workers, S. 744 would have eliminated the H-2A agricultural program and created a three-year “W” visa for both agricultural and non-agricultural “lower-skilled” positions, removing the restrictions that tie workers to seasonal work with a single employer.

There was a tint of egalitarianism to this change. Activists have criticized traditional guest worker programs for yoking workers to one employer, and so-called “portability” remedied this. But it ultimately represented a triumph of labor precarization, subordinating workers’ rights to capital’s desire for flexibility and a docile workforce. The ability of “guest workers” to remain in the country would still depend on their employment status, exposing them to the extraordinary disciplinary power that capital wields over workers in the US. Employers seeking to use the W visa would not even have had to obtain certification from the Department of Labor (DOL).

Unsurprisingly, Trump’s appointees have reflected the same pro-capital bias. His DOL “landing team” included the president of a contractor specializing in H-2B visas and a Manhattan Institute fellow who has long supported guest-worker programs. Another would-be appointee, Andy Puzder, attracted scorn for his opposition to a minimum-wage increase and background as a fast-food tycoon. His vocal backing of a so-called “pathway to citizenship” received less attention.

But there’s no discrepancy between Puzder’s two positions. Despite the “pathway to citizenship” euphemism, S. 744’s Registered Provisional Immigrant (RPI) status would have institutionalized “liminal legality” on a much wider scale. After paying a thousand dollar fee, RPI immigrants would not have been authorized so much as mandated to work throughout their six-year visa. During this time period, they would have been ineligible for any federal means-tested benefits.

For adults who aren’t the sole caretakers of children, renewal of RPI status would have been contingent on their ability to prove that they hadn’t been unemployed for longer than sixty days, that they were “unlikely to become a public charge,” and that they had an average income or resources equal to at least 125 percent of the federal poverty level.

In theory, maintaining a clean record and meeting these requirements for a full decade would have made one eligible (after paying another thousand-dollar fee) to apply for Lawful Permanent Resident status. However, other stipulations all but guaranteed that RPIs would only be able to apply for green cards after twenty years, if ever.

And an estimated four to five million undocumented immigrants would have been ineligible from the get-go.

The Despotic Rule of Capital

The political struggles and racialized antagonisms of US immigration policy cannot be reduced to the imperatives of capital accumulation. But it’s vital that we recognize the broader terrain on which these battles are fought. Indeed, transnational capital’s pivot away from favoring an immigrant labor control system heavily dependent on “illegality” is itself a response to undocumented immigrants’ ongoing struggles and the threat of mass insubordination.

In this regard, the effect of the unprecedented walkouts in the spring of 2006, culminating in the Great American Boycott on May 1, cannot be underestimated. These mobilizations issued not just a proclamation of “existence as resistance,” but also forcefully rejected undocumented immigrants’ ongoing criminalization and deportation. Lead organizers demanded immediate and unconditional “amnesty” for all undocumented immigrants, while simultaneously opposing the construction of more border barriers and the hiring of more Border Patrol and ICE agents.

Unfortunately, for all their determination — and their success in nixing the extremely punitive Sensenbrenner Bill — the immigrants and organizers behind that action have seen more setbacks than gains over the past decade. With Trump now at the helm and the GOP in control of Congress, any “comprehensive immigration reform” will take on an even more exploitative cast than S. 744. In the meantime, ICE can be expected to try to deport a large majority of those locked out of “liminal legality,” while allowing the remaining undocumented workers to languish as the most exploitable fraction of an increasingly precarious and stratified working class.

The state, to be sure, is not a monolithic entity that can simply snap its fingers and implement a clearly defined plan, on immigration or other matters. As Marxist theorist Nicos Poulantzas argued nearly forty years ago, overall state strategy only emerges from the clashes between its various tactics, networks, and apparatuses of power. The Border Patrol’s deportation of DACA recipient Juan Manuel Montes on February 17, for instance, was likely the action of local officials, not higher management. Those divisions and schisms will persist.

And deportation could be linked to a push for “comprehensive immigration reform.” Recently, Kelly admonished lawmakers critical of DHS to pass such legislation.

At this point, the danger lies in viewing the Trump administration as solely driven by xenophobic impulses and resolutely in favor of removing all undocumented immigrants. Such an assessment overlooks Trump’s role as a servant of capital. And it makes it easier for a “real and positive immigration reform” tailored to meet the needs of transnational capital seem like a victory in comparison.

The day before Montes’s deportation, and a week after ICE’s nationwide raids, tens of thousands of immigrant workers stayed home for the “Day Without Immigrants” action, modeled after the Great American Boycott of 2006. Refusing to bow to the needs of capital and the Trump administration’s intimidation tactics, immigrant workers have also been very active in organizing this year’s May Day marches.

As we take to the streets today, we should remember that, in the words of immigrant justice and labor activist Neidi Dominguez, “labor being engaged and fully at the forefront of the immigrant rights fight in this country is not just out of solidarity. Those are our members.”

Resisting deportations must remain front and center in that fight. But if the immigrant justice movement is to emerge truly victorious, we will have to insist on not just sanctuary or “liminal legality,” but immediate “legalization” for all — and an end to the despotic rule of capital itself.