Dispatches from a Racialized Border: The Invisible Threat

(Editor’s Note: This article is part of a special Just Security “Racing National Security” symposium edited by editorial board member Matiangai Sirleaf. The goal of the symposium is to render race visible in national security to shift the dominant paradigm toward addressing issues of racial justice.)

We carry the border on our skin, in our language, through our religion. Anyone on the other side of that border — whose skin is Black or Brown; who speaks to their loved ones in Spanish, Arabic, Chinese, or Farsi; whose house of worship is a mosque or a temple — is readily dehumanized as a national security threat.

While this particular brand of racism is levied by many individuals against migrants (and people wrongly assumed to be migrants based on their race), it is important to remember the ways in which immigration law has constructed and perpetuates racist imaginaries of national security. In turn, migration status (or lack thereof) and national security frames can be used to obscure race, though these concepts are deeply intertwined. This dehumanization of immigrants also has a curious twist: when it comes to conversations about race and racial justice, the migrant experience is oddly invisible.

The border in the minds of most Americans is, of course, the southern border with Mexico. Countless atrocities have been committed there in the name of national security. While these racialized harms have been magnified to an extreme under the Trump administration, they have been perpetuated by Democratic and Republican administrations alike for centuries in the name of “keeping the nation safe.”

The most horrific of recent abusive immigration policies was the administration’s family separation program, analyzed as torture by Beth Van Schaack. In 2018, at least 2,800 children were torn from their parent(s), who had been prosecuted for unlawful entry and were told by Customs and Border Protection officials that, as a result, they no longer had a right to be with their children. This “zero tolerance” policy specifically targeted families of color fleeing extraordinary levels of violence in El Salvador, Guatemala, and Honduras. It is not clear what national security goal is served by ripping families apart, or what security threat parents fleeing extraordinary violence pose to one of the wealthiest nations in the world, but that was nonetheless the legal justification for this racist policy.

The law consistently sends a clear message that, at the border, Brown lives do not matter, as they are outweighed by nebulous national security concerns. One stark recent example is the case of Hernandez v. Mesa, decided by the Supreme Court in February. As Steve Vladeck, who helped litigate the case, explained in language from the brief, “We argue only that a border patrol agent could not, without any justification, shoot petitioners’ fifteen-year-old son [Sergio Hernandez] while he hid behind a pillar a few feet into Mexican soil.” Yet citing “foreign relations and national security implications,” the Supreme Court refused to allow Sergio’s parents to pursue a Bivens claim — a lawsuit against the federal officer for violating the U.S. constitution — based on this cross-border shooting. Since the Trump administration found that the CBP officer who shot Sergio “did not act inconsistently with [Border Patrol] policy or training regarding use of force,” it did not prosecute that officer. In other words, the law now tells us that border enforcement officials can shoot across the border to take Brown lives with impunity.

In the face of the coronavirus pandemic, the Trump administration has also invoked national security to close the border to asylum seekers, in violation of our international legal commitments (as analyzed by Oona Hathaway) and with dubious public health justifications. The most recent pronouncement to this end is a proposed new rule issued by the Department of Homeland Security and the Department of Justice on July 9. This rule would permanently enable the executive to bar from asylum and withholding of removal, on national security grounds, applicants traveling from countries where a contagious or infectious disease is prevalent or epidemic. The background to the rule provides a sweepingly broad interpretation of national security, noting that:

the scope of the term extends well beyond terrorism considerations, and “national defense” considerations as well. The Attorney General has previously determined that “danger to the security of the United States” in the context of the bar to eligibility for withholding of removal encompasses considerations of defense, foreign relations, and the economy.

Defined so broadly, public health concerns easily fall within the scope of national security and can be manipulated to exclude asylum seekers on grounds that are not explicitly racial but map conveniently onto racial categories.

These are just a few examples of the many uses of national security as a justification for our racialized physical borders. But the racialized border is everywhere, carried with migrants of color and their descendants, as well as with people of color wrongly assumed to be migrants, in the interior of the country, without regard to individual circumstances and accomplishments. The migrant of color is the perpetual outsider, readily transformed into a national security threat. The recent example of racial discrimination against Asian Americans during the coronavirus pandemic demonstrates how easily even a “model minority” can be shown their place.

How does the law come into play here? For Asian Americans, years of exclusion through immigration law, starting with the Chinese Exclusion Act of 1882 that was not completely dismantled until the Immigration Act of 1965, instantiated and perpetuated the racialized “othering” upon which Trump and others now play.

The pandemic also foregrounds a deep and painful irony in the situation of Latinx migrants. As described above, the Trump administration has used COVID-19 as a justification to completely exclude migrants from the Northern Triangle of Central America who are seeking protection from exceptional levels of violence in their home countries. When it comes to detained migrants, the executive has revisited its torturous family separation policy, offering parents a “binary choice” of remaining in detention with their children in the face of the pandemic or enabling their children to be released by voluntarily accepting family separation.

Yet at the same time, the executive has relaxed the requirements for processing temporary worker visas both in the interior and the exterior; most recipients of these visas are Mexican nationals. Even Trump’s most recent “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” contains an exception for “any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain.” Temporary status, yet essential labor; this is a precarious place to reside. This paradox, instantiated and reified by immigration laws that fail to provide sufficient lawful pathways for plentiful low-wage jobs, underpins the permanent labor underclass upon which the U.S. economy depends. On one side of the border, Latinx asylum seekers are a threat to national security; on the other side, Latinx workers are essential workers but disposable people.

These examples present just a handful of recent uses of racialized national security tropes to exclude immigrants. Though anti-migrant racism abounds in history and has grown exponentially under the Trump administration, the migrant experience curiously disappears from the conversation when it comes to racial justice. To be sure, the original sin of slavery must be the first priority in terms of accountability and redress. At the same time, there must be space to expand the conversation around racial justice to include the very real suffering of all migrant communities of color and their hyphenated progeny.

Racialized borders travel with all of our skin, no matter how long ago our ancestors arrived. From African-Americans who were labeled refugees after Hurricane Katrina, to Puerto Ricans who were treated as foreign in the wake of Hurricane Maria in terms of their receipt of federal aid, to second and third-generation Latinx Americans who are told to “go back to their home country” for speaking Spanish in public, all people of color in the United States are subject to “othering” as foreign. Our experiences are all intertwined in the history of American racism and the enduring power of White supremacy in the country; addressing each of them completely requires attention to all forms of racial subordination.

What would it mean to have a real conversation about racial justice, migration, and national security? We are so extremely far from this reality at the moment that it is difficult to even imagine what this discourse might look like. I do, however, have a first step to offer: humanization. In order to protect the lives of people of color, they must first be valued as equal to White lives. The law has played a central role in devaluing and dehumanizing migrants, often through a national security frame. It is an open question whether law can be nearly as effective in humanizing all people of color in the United States and at our borders. It is also an urgent question: until the full humanity of all racial minorities is recognized, we will carry the border on our backs.

Image: Spencer Platt/Getty

 

About the Author(s)

Jaya Ramji-Nogales

I. Herman Stern Professor of Law, Temple University Beasley School of Law.