Yale Law Journal – Policing the Polity

Anarba Groub

abstract. The era of Chinese Exclusion left a legacy of race-based deportation. Yet it also had an impact that reached well beyond removal. In a seminal decision, the U.S. Supreme Court upheld a law that required people of “Chinese descent” living in the United States to display a certificate of residence on demand or risk arrest, detention, and possible deportation. Immigration control provided the stated rationale for singling out a particular group of U.S. residents and subjecting them to race-based domestic policing. By treating these policing practices as part and parcel of the process of deportation, the Court obscured the full reach of the law and its impact on U.S. communities. Through case studies of immigration policing and “anti-illegal immigrant” nuisance ordinances, this Essay argues that a “deportation-centric” framework continues to provide too limited a lens to recognize and redress unjustified surveillance within the United States. It argues for adopting what I call a “polity-centric” framework, which treats immigration status as necessarily fluid rather than fixed, and which considers the impact of front-end enforcement practices—including race-based demands to justify one’s presence—in light of the aim of building an integrated political community. This Essay closes by considering how a polity-centric framework could reorient how we understand the reach of immigration enforcement as it relates to antidiscrimination and Fourth Amendment doctrine.

author. Assistant
Professor, University of North Carolina School of Law. I thank Monica Bell,
Rabia Belt, Guy-Uriel Charles, Anne Coughlin, Ryan Doerfler, Jessica Eaglin,
Trevor Gardner, Adam Gershowitz, Ingrid Eagly, Irene Joe, Kevin Johnson, Ben
Levin, Stephen Lee, Kate Levine, Jamelia Morgan, Lindsay Nash, Jennifer Nou,
Leigh Osofsky, Huyen Pham, Anna Roberts, Shalini Ray, and Juliet Stumpf for
their helpful engagement with prior drafts. I also received many useful
comments and suggestions at the Culp Colloquium at the University of Chicago
School of Law, the Virginia Criminal Law Roundtable, the Yale Law Journal’s Legal Scholarship Workshop, and workshops at the
University of Kentucky, University of California, Davis, Washington University,
and Texas A&M University. Patrick Monaghan and the Yale Law Journal’s editorial team provided insightful editorial
work. This Essay is for Avi, Amar, and Naya, who showed extraordinary grace
during the pandemic as I worked to develop these ideas.

Introduction

The era of Chinese Exclusion is foundational to the field of
immigration law. In enduring decisions, the U.S. Supreme Court upheld laws that
provided for race-based exclusion and deportation. Today, immigration scholars
often discuss the seminal 1893 decision, Fong Yue Ting v. United States,
solely as a decision about deportation. Yet it had an impact well beyond the
removal process. The Court upheld a law that required those of Chinese descent
living in the United States to obtain a “certificate of residence” or else
establish through “at least one credible white witness” their eligibility to
remain in the United States.

As a dissenting Justice put it, the law transformed targeted U.S. residents
into “ticket-of-leave men”—a
reference to former prisoners who risked reimprisonment at any time if they
failed to carry and display their tickets-of-leave—who “cannot move about in
safety without carrying with [them] this certificate.”
The policing practices at issue in Fong Yue Ting reflected
a racial presumption that those of apparent Chinese descent were indelibly
foreign; race rendered them deportable and also obligated them to show their
papers on demand.

Fong Yue Ting left two legacies that continue to shape
immigration doctrine: the legacy of the “plenary power doctrine”—the doctrine
of relaxed judicial review of federal immigration law
—and a legacy of race-based
domestic policing in stated service of immigration control. Thus far, the
policing practices at issue in Fong Yue Ting have received relatively
little attention. That may be because the decision predates both modern
deportation procedures and modern policing,
or because the government ultimately
chose not to pursue mass arrests or deportations.
Scholars may also view the policing practices and deportation
practices as two faces of the same coin. The same dynamics—racism, labor
exploitation, colonialism, and an indifference to the suffering of those
considered outsiders—produced both deportation and race-based policing.

I do not seek to discount these dynamics; Fong Yue Ting’s holding
with regard to deportation does much to explain the Court’s acceptance of
race-based domestic policing. Yet my aim in this Essay is to show that its
domestic policing legacy deserves recognition in its own right, and not only as
a path to deportation. By
conceptualizing the law as primarily about deportation, the Court adopted an
analytic lens too narrow to recognize its impact on those who remained present.
This “deportation-centric” account continues to
shape how courts
recognize substantive rights within the United States. “Immigration” law as a field governs admissions and removal
decisions, while “alienage” law governs the treatment of noncitizens within the
United States. But courts lack a vocabulary for recognizing a liminal space
where people are subject to legal regulation because they are presumed not to
belong.

This Essay shows how the deportation-centric approach
developed and how it continues to shape contemporary understandings of
immigration enforcement. It argues for a more expansive approach to
understanding the reach and impact of immigration law, which I call a “polity-centric”
approach. One problem with the deportation-centric framework is that it
conceptually narrows the full reach of enforcement practices. If the aim of
immigration control is to build an integrated political community inside the United
States, then we need, at minimum, a better descriptive account of the legal
processes employed in stated service of building the polity. Those legal
processes include front-end stops and surveillance of U.S. residents,
regardless of any subsequent connection to deportation.

Second, a deportation-centric account provides too limited a
lens to recognize, much less redress, how enforcement
practices themselves conflict with core constitutional protections inside the
United States.

Scholars have examined practices including immigration detention,
jailhouse immigration
screening,
and criminal-immigration prosecution to show how the
intersection of criminal and immigration law enforcement can magnify the
carceral impact of enforcement choices while minimizing procedural protections.
This Essay seeks to add to these conversations by showing how front-end
enforcement practices—such as racialized demands that people justify their
presence in a particular place—erode constitutional protections and cut against
immigration goals of integrating people into a larger political community.

Recognizing front-end immigration-enforcement practices today
is particularly important, given the close connection between immigration
enforcement and domestic policing. In the domestic-policing context, courts and
scholars have recognized the subordinating impact of race-based surveillance.
In Terry v. Ohio,even as the Supreme Court upheld the
constitutionality of police stops justified by a standard less than probable
cause, it acknowledged the “difficult and troublesome issues” inherent in
identifying “suspicious persons” and cited to the “wholesale harassment” that
racial minorities report experiencing during police stops.
A body of legal scholarship
conceptualizes how domestic policing practices erect “racialized borders”
within the United States.
When policing practices target
communities on the basis of race, they alienate communities at large from the
body politic.
As Professor Monica C. Bell
writes, racialized policing practices create the perception among poor people of color that
they are “essentially stateless—unprotected by the law and its enforcers and
marginal to the project of making American society.”

Race-based
policing often operates the exact same way in the immigration context—yet in
the immigration context, the justification is that the targets are “illegal” as
well as criminal. During the period of Chinese Exclusion, the Court adopted a
legal framework that accepted race-based policing as a means of protecting the
polity from a foreign threat. And while that approach has shifted over time, it
has never been abandoned altogether. Courts still characterize front-end
policing practices as nothing more than a pipeline to deportation. This
doctrinal approach essentializes deportation as the primary work that
immigration enforcement does, at the expense of recognizing how front-end
surveillance can operate in tension with the immigration-law goal of promoting
integration into a larger political community.

This Essay aims to
create a discursive space to recognize the front-end impact of immigration
enforcement choices. I examine two contemporary case studies of a
deportation-centric approach: immigration policing and “anti-illegal immigrant”
nuisance ordinances. “Anti-illegal immigrant” nuisance ordinances are an
example of shifting borders; localities employ the logic of national
immigration control to justify surveillance and racial steering inside the United
States. These ordinances operate with the stated aim of blocking those who lack
lawful immigration status from obtaining rental housing within certain
localities. When courts view these laws under the theory that they regulate
immigration by encouraging “self-deportation,” they accept without
justification the underlying assumption that Latinos who move into
predominately white localities are “illegal aliens.” This analysis, in turn, is
too narrow to recognize the full reach and impact of these laws, including
their potential conflict with antidiscrimination law.

My analysis
focuses on courts because of their role in safeguarding rights. However, it
also has implications outside the doctrinal context.
I argue for a
broader recognition of how enforcement practices relate to building a political
community. The kernels of a “polity-centric”
approach appear in a 1941 case, Hines v. Davidowitz, which
involved state surveillance directed towards Italian and German immigrants.
There, the Supreme Court recognized how immigrants could
become future citizens, and how singling out a particular group for
surveillance could undermine important interests in free movement and
integration into the polity.

This Essay closes
by considering how a “polity-centric” approach could reorient constitutional
doctrine with regard to front-end enforcement practices. Local “anti-illegal
immigrant” nuisance laws provide a case study for a more expansive understanding
of the reach and impact of immigration enforcement practices. Any
law
that prevents people from living with whom they choose raises significant equal-protection
concerns, including those that affect millions of mixed-immigration-status
households.
When courts frame these laws
principally in relation to deportation, they obscure how they are part and
parcel of a tradition of promoting residential segregation, including through
laws that have racialized effects on intimate association.

This Essay also adds to a body of criminal-law scholarship
that argues that police stops should be subject to greater scrutiny.
Immigration policing
embarrasses the notion that police are in the business of targeting suspicious
conduct. Immigration is a legal status; it is not about anyone’s conduct at a
particular time. Courts should also recognize how civil-enforcement
responsibilities expand the coercive potential for police-resident
interactions.
This is particularly true when
domestic police have the systemic power to initiate actions such as eviction
without ever making a criminal arrest.

The balance of this Essay proceeds as follows. Part I argues
that the era of “Chinese Exclusion” established a particular way of thinking
about policing practices in the context of immigration enforcement. Namely,
when it came to those racial minorities perceived as foreign, courts focused on
how enforcement practices could lead to deportation, without considering how
surveillance and arrest itself could undercut individual liberty interests.
Parts II and III show the continuing impact of a deportation-centric approach
over time through case studies of contemporary immigration-enforcement
practices, with a focus on policing and “anti-illegal immigrant” nuisance laws,
respectively. Part IV makes the normative case for a polity-centric approach
and considers its doctrinal implications for antidiscrimination and Fourth
Amendment doctrine.

https://www.yalelawjournal.org/essay/policing-the-polity

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