The ubiquitous paradoxes in contemporary American public discourse seem to be the criminalising narratives of illegality and the militarisation of the southern border with Mexico (Chavez, 2012), satiated by a regime of racialisation, deterrence and volatile polities of ‘securitisation’, while the ethos of modernism, including technologies, information and capital are surging across borders at an unprecedented velocity. The implications of the Latino/a communities’ struggle for inclusion in the 21st century has been exacerbated by niches in state apparatuses and procedures that criminalise the immigrant body, a response to the War on Terror. The statutory framework and processes of immigration law are inherently penal, premised upon the protection of national security and state sovereignty. This paper will demonstrate the continuity of reliance on criminal punitiveness and deportation, and the resistance and dialogic struggle of undocumented immigrant youth movements by drawing upon penological literature, namely Bill Ong Hing’s The Immigrant as Criminal: Punishing Dreamers (1998), Walter J. Nicholls’s The Dreamers: How the Undocumented Youth Movement transformed the Immigrant Rights Debate (2013) and Helen Morris’s Zero Tolerance: The Increasing Criminalisation of Immigration law (1997). The immediate relevance of the works of Karl Marx, C. Wright Mills and Max Weber to the historical juncture and pedagogy of the ‘Dreamers’ is readily apparent when applying Social Conflict Theory and the Hegelian dialectic ‘thesis–antithesis–synthesis’, as a formula for the explanation of historical and philosophical progress, or lack thereof.
Paradoxically, the undocumented immigrant movement (the Dreamers) references the classic mythos of the perennial American Dream and the promises of social stratification, cited in the Statue of Liberty- these national narratives are incongruent with the extensive history of US colonial hegemony and eugenics, and have long been permeated by classifications of class, race and gender to determine citizenship-acquisition and socio-economic rights. As early as the 1970s, US immigration laws and reform efforts were catalysed by the changing demographics of immigrants into the US (Hing, 2010) and international politics (e.g., Chinese immigrants in the 1880s, Jewish refugees during WWII, Cambodian and Vietnamese refugees during the Vietnamese war and the undocumented immigrants after the crises of the Mexican economy.) A confluence of macro-factors incited these changes, including post-industrial economic decline, unemployment, the ascendancy of right-wing political conservatism and the trepidation about rising illegal immigration. In the 1990s, the Bill Clinton administration responded to this by ramping up border security with Operation Gatekeeper in 1993, restricting welfare entitlements with the Personal Responsibility Act (1996), strengthening employer sanctions, lowering the threshold for deportable offences, and expediting deportation procedures with the Illegal Immigration Reform and Immigrant Responsibility Act. This exemplifies C. Wright Mills’ contemporary conflict theory that insists the ‘unequal distribution of power and resources in the society’ influences the movement and discontent of individuals. In The Immigrant as Criminal: Punishing Dreamers (1998), Professor Bill Ong Hing describes the process by which undocumented workers are lured into the US then problematised, demonised, dehumanised, and ultimately criminalised in a manner that ‘renders punishment of aliens a part of the American psyche.’ The changes in legislation, the continuity of the emergence of diasporic communities, and the increased criminal prosecutions of immigration violations are expanding the authority of the criminal justice system, and simultaneously distorting its traditionally adjudicative function into a quasi-administrative police state – this underlines the very contradictions embedded in the so-called ‘American dream’. In accordance with Marx’s conflict theory, Noam Chomsky asserts that the motive of such politics is to ‘protect the minority of the opulent against the majority’, primarily through exploitation of labour and cycles of stringent immigration enforcement and deportations. Derived from the work of Michel Foucault, H. Morris’s theory in Zero Tolerance: The Increasing Criminalisation of Immigration law (1997) is that ‘crime and punishment have become the occasions and institutional contexts’ for shaping the conduct of others – and similarly, proponents of the ‘new penology’ categorise this process as ‘governing through crime.’
Furthermore, the terrorist attacks of September 11, 2011 derailed an embryonic softening in political discourse toward illegal immigration and delineated the ease by which immigration law could be flouted and manipulated for malevolent purposes. This dynamic propagated xenophobic ideology (Masuoka, 2008) and reinforced the tendency within the policy debate on immigration to centre on exclusion and enforcement. In addition to passing five restrictive laws, the Department of Homeland Security introduced twelve measures to strengthen borders and facilitate the detection and deportation of undocumented immigrants. This legislation enabled law enforcement agencies to demand documentation under ‘reasonable suspicion’, and therefore had the freedom to racially profile POC who resembled the immigrant body that mainstream America had crafted. Bill Ong Hing in The Immigrant as Criminal: Punishing Dreamers (1998), proposes that the ‘disobedient body’ is an ‘embodied geography of disobedience to the law’ and a part of this construction is that Mexican immigrants are disposable and are a foreign labour force that is used when needed and otherwise discarded. This sentiment seems fitting in the current neoliberal paradox, that ‘allows goods but not people to cross borders’- particularly conflicting with Article 13 and 14 of the 1948 Universal Declaration of Human Rights, that ‘humans have the right as individuals to move across borders whether for economic, personal or professional reasons.’ In June 2012, the Obama administration announced the Deferred Action for Childhood Arrivals (DACA) program via executive action- a compromise that was devised after Congress failed to pass the Development, Relief and Education for Alien Minors (Dream) Act, which would have offered those who had arrived illegally as children the chance of permanent legal residency. The bipartisan act was introduced in 2001 and has repeatedly failed to pass. This tenuous protection of DACA is yet to be codified by congress into law, and instead has been rescinded in 2017 by the Trump administration. In this dialectical relationship, public discourse on Mexican migration generates the situation in which policy is written and in turn policy responds to and creates the situation public discourse discusses and racialises immigrants.
A frustration with these policies- of which are rife with exceptionalist strategies and a racial ontology- spurred dreamers and pro-immigrant activists to develop new frames and prognoses to regain control of the narrative. In decrying the illegitimacy of deportations, collective social movements have been agents of discursive change (Glenn, 2010), and dynamic sites of meaning-making and knowledge production in building the momentum necessary to disentangle the national discourse on comprehensive immigration reform. Conflict theory, particularly Weber's approach posits the significance of radical, counter-hegemonic action and a critical stance toward existing social arrangements, in this case a negation (antithesis) of nativist sentiment and restrictionist immigration policies. Walter J. Nicholls’s The Dreamers: How the Undocumented Youth Movement transformed the Immigrant Rights Debate (2013) maps the trajectory of the undocumented youth movement, and cites the agentic potential of Dreamers as self-determined and autonomous political bodies that utilise cultural and symbolic capital, and national habitus to produce public voice, challenge entrenched systems of oppression and hegemony, and reshape definitions of citizenship and American identity. Although Marx’s sociological interpretation of conflict has been exceptional in explaining the paradigmatic changes in socio-economic structure, it falls short by not accounting the utilisation of social networking technologies and new media affordances to recruit, sustain and engage the political participation of undocumented youth immigrants. For a synthesis and reconciliation of immigration conflict to ensue, a constellation of substitutive alternatives to the immigration restrictions that enable a right to freedom of movement, including a right to remain, and that would tether immigration regulation to economic development and other measures to address human needs rather than restrictionist border enforcement, are essential. Under the neo-liberal conservative government of Donald Trump, the prospects of immigration law and relative political processes remain a morass – to create new realities that intersect and bypass hegemonic forces aimed at criminalising migration, a recognition of the various autonomous movements (Perez, 2012) and their potential for transformative change as a collective, including the Dreamers, Bad dreamers, undocumented/or immigrant youth and Undocuqueer/Undocutrans, is pertinent.
Irrevocably, the focus on illegality in contemporary political discourse has constructed a conflict between legal and moral paradigms, rendering change pivotal in the foundations and imperatives for fully implementing a comprehensive protection regime for undocumented immigrants. It is apparent that the penal system of the US government, under the various presidencies lack a clear understanding of the obligations contained in international immigrant and humanitarian law instruments and the failure of the government to put in place a comprehensive legal and policy framework giving voice to those obligations. The work of activists and immigration movements certainly mitigates the neglect which many undocumentees suffer, but are bearing an unequal burden in providing for the financial and social welfare needs of undocumented immigrants as well as keeping the issue on the public and political agenda. Through an application of the various sociological theories of conflict theory, the continuity of the criminalisation of immigration law has left families and youth at destitute as a direct consequence of official ineffective action and negligible social and welfare provision by the authorities.