On March 3, 1875, the United States established, for the first time, federal prohibitions on the entry of immigrants deemed undesirable. The legislation, known as the Page Law, excluded criminals and prostitutes from entry into the country, as well as Chinese contract laborers known perjoratively as “coolies.” The act, driven by racial and economic fears and followed by a series of broader Chinese exclusion laws beginning in 1882, is often referred to as the genesis of the “illegal alien” category in the United States.
In the contemporary debate about undocumented migration to the United States, the term illegal aliens is widely perceived to be synonymous with Latino immigrants, and particularly with Mexican immigrants. Yet much is misunderstood about the legislative and social origins of the term. This history, in which the federal government created the category of “illegal aliens” by forbidding entry to a racially targeted class of undesirable immigrants, has engendered the conflation of noncitizenship, nonwhiteness, and criminality into a malleable racial euphemism readily available for private and public enforcement strategies.
In U.S. law, there is not a clear definition of an “illegal alien,” despite the term’s widespread use in popular and policy discourse. Although the conjoined phrase is not found in the Oxford English Dictionary, the word illegal is defined as “not legal or lawful; contrary to, or forbidden by law.” Alien, in turn, is defined as “belonging to another person, place, or family” ; “foreign, not of one’s own” ; or “of a foreign nation and allegiance.” In broader immigration discourse, terms such as illegals, undocumented workers, or unauthorized immigrants are commonly used interchangeably, although they do not necessarily represent the same category. Rather, these terms are often a measure of political sensitivity and ideological position in the U.S. immigration debate. Undocumented workers, for example, are a subset of “illegal aliens” representing those who have entered the workforce. In addition, despite the extraterrestrial implications of the term alien, within U.S. immigration law an alien is “any person not a citizen or national of the United States,” according to the Department of Homeland Security. This is a broad bureaucratic category that includes legal permanent residents, temporary visitors, and unauthorized migrants. An “illegal” alien can be a person who has entered the country without authorization or whose legal status has lapsed—either because the person violated the terms of his or her visa or committed a deportable offense. Consequently, lawful permanent residents, or green-card holders, can become illegal aliens, while some illegal aliens can be paroled into the country and thus be considered lawful persons.
Before 1875, federal and state restrictions on the mobility of persons also produced “illegality.” In the antebellum period, for example, the mobility of both free blacks and slaves was regulated by state and federal laws. While not dubbed “illegal aliens,” persons such as foreign black seamen were nonetheless the target of restricted entry into various states. The overall regulation of slavery notwithstanding, the movement of convicted criminals, the poor, indentured servants, and persons deemed a threat to public health were also variously controlled, restricted, and penalized prior to 1875. In fact, the Page Law, by restricting the “coolie trade,” convicts, and prostitutes, only codified the central elements of pre-1875 restrictions. In this sense, illegal aliens “have always existed in the United States” (Neuman 1993, p. 1901). They are a constituent element of the nation.
The creation of the U.S. Border Patrol in 1924 operationalized border enforcement and the apprehension of illegal aliens. Prior to this, only a token force of mounted officers was commissioned to assist immigration officers in the capture of persons so categorized. The creation of an enforcement apparatus coincided with the Johnson-Reed Act of 1924, which created numerical limits on immigration from throughout the world. Deeply impacted by racism, and by a preference for northern European migrants, the numerical limits of the 1924 law expanded significantly the numbers of present and future “illegal aliens” (Ngai 2004, p. 4).
After 1924, deportation became the central strategy for confronting illegal aliens. The deportation process, which once abided by a statute of limitations (the illegal immigrant had to be caught within a range of zero to five years after entry), was streamlined over the twentieth century by removing the statute of limitations on a migrant’s undocumented status, by denying due process for noncitizens, and by the use of “voluntary departures.” In the latter example, a migrant would sign a prepared statement and then “voluntarily” depart, avoiding any lengthy adjudication process. Further, as Joseph Nevins points out in Operation Gatekeeper(2002), the immigration statute of March 4, 1929, explicitly criminalized “illegal” entry as a misdemeanor and “illegal” reentry as a felony punishable by fine or imprisonment (p. 54). It is during this time period that Mexicans immigrants became the quintessential “illegal aliens.” They were subject to large-scale government repatriation and deportation campaigns in the 1930s and 1950s, with the latter campaign being termed “Operation Wetback” by the Immigration and Naturalization Service (INS).
The focus on Mexican undocumented migrants coincided with a twenty-two-year guest-worker program called the Bracero Program, which contracted an average of 200,000 male Mexican laborers per year between 1942 and 1964. The Bracero Program is said to have greatly increased the presence of undocumented migrants through job recruitment and competition, the stimulation of social and family networks, and the growth of Mexican communities in the United States that developed during the decades-long flow of sanctioned migration. The contradiction of large-scale recruitment simultaneous with large-scale deportation is illustrated by Operation Wetback in 1954. In her book, Inside the State: The Bracero Program, Immigration, and the I.N.S. (1992), Kitty Calavita describes the INS process of “paroling illegal aliens to employers as braceros and legaliz[ing] others with a symbolic step across the border” (p. 109). This process exemplifies not only the preference for illegal labor by employers, but also early strategies of legalization as a way to reconstruct and make the “illegal alien” legal. The end of the Bracero Program in 1964, followed by the equalization of numerical migration quotas for all nations in 1965, also stimulated, nearly overnight, the massive presence of Mexican illegal aliens, for the sanctioned flow of well over 200,000 Mexican persons annually exceeded the legal quota for the entire western hemisphere and would later be limited further to 20,000 per year (De Genova 2004, pp. 172–173).
Since the middle of the twentieth century, illegal immigration has been followed by a pattern of popular outrage and tolerance closely tied to U.S. economic performance. These attitudes have generated a range of policies, including employer sanctions, militarization of the U.S.-Mexico border, denial of public services, reductions in due process, and an amnesty for longtime undocumented residents. These various strategies to halt, control, or regulate the flow of migration, which myopically focus on domestic enforcement instead of international cooperation and global economic development, have largely failed to permanently change the flow and presence of undocumented immigrants. Instead, these policies have heightened the costs of unauthorized migration—stimulating growth in human smuggling, labor exploitation, and vigilante movements against persons perceived to be “illegals,” as well as increasing the migrant death toll along the U.S.-Mexico border. Whereas anti-immigrant activists blame uncaring human smugglers (known as coyotes) or the immigrants themselves, immigrant advocates fault U.S. enforcement practices that make unauthorized entry extremely dangerous, leading to more than 3,600 migrant deaths between 1994 and 2005 (Marosi 2005).
Popular responses to undocumented migration place heavy emphasis on migrants’ “illegality” and suggest an
inherent and self-evident unlawfulness that criminalizes the person rather than the action the person is purported to have committed. The criminalization of immigrants and persons perceived to be immigrants manufactures a sweeping form of illegality that fails to consider the economic, political, social, or historical factors explaining a person’s “illegal” presence. Nevins calls this process illegalization, which he defines as “the process by which immigrants entering the United States without state sanction have become constructed and perceived as lawbreakers and alleged threats to the sociocultural and political fabric of the country” (Nevins 2002, p. 166). Legally, however, most undocumented migrants, while unsparingly referred to as “illegals,” have technically not been charged or tried for the misdemeanor of first-time illegal entry. Roughly half of each year’s cohort of new undocumented immigrants entered by legal means but have allowed their legal entry status to lapse, which is not a violation of the criminal code. Nevertheless, a presumably legal category becomes a cultural one, which envelopes all immigrants regardless of status, especially those most commonly marked as “illegal” in the early twenty-first century—Latinas and Latinos. Popular discourse, especially when racialized explicitly or implicitly, is a central component to the construction and management of “illegal aliens.”
The nonpartisan Pew Hispanic Center estimates that there are 11.5 to 12 million illegal aliens in the United States (based on the March 2005 Current Population Survey), representing 30 percent of the nation’s foreign-born residents. Undocumented migrants from neighboring Mexico make up more than half, or 56 percent, of the undocumented population, whereas Asia accounts for 13 percent. Europe and Canada, meanwhile, account for 6 percent. Two-thirds of undocumented persons reside in just six states (California, Texas, Florida, New York, Illinois, and New Jersey), according to the Urban Institute, while newer immigrant destinations, such as Arizona, Georgia, and North Carolina, have acquired concentrations of illegal aliens amounting to more than 40 percent of these states’ foreign-born populations.
The presence of illegal aliens stimulates a wide-ranging debate about national resources such as jobs, housing, education, and the environment. It also raises cultural fears about bilingual education, racial composition, and crime. Policy issues about noncitizen I.D. cards, driver’s licenses, guest-worker programs, and large-scale “legalization” have been known to polarize communities addressing undocumented migration. Both sides make arguments about what to each is clearly evident: Anti-immigrant activists oppose any policy that “rewards” illegal behavior, while immigrant advocates decry the stark inequality that undocumented immigrants and their families endure.
The issue of potential terrorists entering the United States with the flow of undocumented migration was introduced in the 1990s and reinvoked after September 11, 2001. Economic concerns, meanwhile, such as wage depreciation and job competition with undocumented workers, persist in animating activists and politicians on all sides of the issue. Among “illegal aliens” in the early twenty-first century, more than two-thirds are workers (including 94 percent of male undocumented migrants), representing nearly 5 percent of the total U.S. workforce. Whereas many industries or local economies cannot survive without this source of labor, undocumented workers’ concentration in low-wage industries—such as agriculture, construction, janitorial services, domestic care, hotels and restaurants, and other service industries— perpetuates high poverty rates despite above-average workforce participation. In fact, many immigrant advocates argue that the purpose of most policy initiatives has never been to halt undocumented labor but simply to reduce the rights and protections of undocumented workers, thus making them invisible, exploitable, and a permanent underclass in the nation’s economy.
Throughout U.S. history, illegal aliens have been subject to labor recruitment, deportation, and settlement into the margins of U.S. society. An undocumented status has, in turn, complicated family and community structures, expanding the impact of anti-immigrant sentiment and legislation onto “legal” migrants and U.S. citizens. For example, 3.1 million U.S.-born children have parents who are illegal aliens, and children under the age of eighteen make up almost 16 percent of undocumented migrants. The welfare of the citizenry is thus tied to the welfare of noncitizens. Family structures, transformed by immigrant status, suggest that undocumented migration is a permanent and complex feature of U.S. society, yet it is one that has been made invisible by the moniker “illegal alien.”
Bender, Steven. 2003. Greasers and Gringos: Latinos, Law, and the American Imagination. New York: New York University Press.
Calavita, Kitty. 1992. Inside the State: The Bracero Program, Immigration, and the I.N.S. New York: Routledge.
De Genova, Nicholas. 2004. “The Legal Production of Mexican/Migrant ‘Illegality.’” Latino Studies 2 (2): 160-185.
Lee, Erika. 2003. At America’s Gates: Chinese Immigration during the Exclusion Era, 1882–1943. Chapel Hill: University of North Carolina Press.
Marosi, Richard. 2005. “Border Crossing Deaths Set a 12-Month Record.” Los Angeles Times, October 1.
Neuman, Gerald. 1993. “The Lost Century of American Immigration Law (1776–1875).” Columbia Law Review 93 (8): 1833–1901.
Nevins, Joseph. 2002. Operation Gatekeeper: The Rise of the “Illegal Alien” and the Making of the U.S.-Mexico Boundary. New York: Routledge.
Ngai, Mae. 2004. Impossible Subjects: Illegal Aliens and the Making of Modern America. Princeton, NJ: Princeton University Press.
Passel, Jeffrey, Randolph Capps, and Michael Fix. 2004. “Undocumented Immigran Facts and Figures.” Washington, DC: Urban Institute. Available from http://www.urban.org.
Schuck, Peter H. 1998. Citizens, Strangers, and In-Betweens: Essays on Immigration and Citizenship. Boulder, CO: Westview Press.
David Manuel Hernández