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Kitty Calavita: "The persistent gap in immigration law and its stubborn failures"

  • Tue, Jun 1 2010

On May 13, 2010, Kitty Calavita was inducted as the Thorsten Sellin Fellow of the Academy at the Newseum in Washington, DC. In inducting her, Douglas Massey pointed to examples of the work Calavita has done that have affected policy. “In research on the Chinese Exclusion Acts of the 1880s, she used archival records to examine the assumptions about the nature of race and gender that were incorporated into the laws and she showed how those assumptions created dilemmas for customs officials at ports of entry and complicated their implementation.” The following is a transcript of Kitty Calavita’s remarks.

    • Kitty Calavita and Douglas S. Massey
  • Kitty Calavita:"The persistent gap in immigration law and its stubborn failures", Douglas S. Massey on Kitty Calavita
  • Kitty Calavita:"The persistent gap in immigration law and its stubborn failures", Kitty Calavita's Remarks

“I am deeply honored to be named the Thorsten Sellin Fellow of the Academy. I will begin my brief remarks with an astounding statistic. Around the world, 192 million people reside outside their countries of origin. So one out of every thirty-five people alive today is an international migrant. Laws regulating this flow are notoriously prone to failure. The most obvious indicator of this is the large number of immigrants who live and work in the shadows, without legal status. Immigration is one of the most contentious issues on the political agendas of almost all advanced capitalist countries. It is not just that it divides left right and center. It also creates some very strange bedfellows. But one of the few things that almost everyone agrees about is that immigration laws do not work very well. In fact, a look at the experience of other nations and our own nation in other periods reveals a consistent pattern of failure, or at least dissatisfaction with immigration laws. My field of law and society among other things studies the gaps between the law on the books and the law in action. In other words, we study the disconnects between the stated formal law and law as it is practiced and implemented on the ground. Scholars posit all kinds of reasons for these gaps, including the idiosyncrasies of enforcement discretion, various kinds of discrimination, incompetence, and so on. But when the gap between the stated purpose of the law and its outcomes persists across time and place, as it does in the case of immigration, we can reasonably infer that something systemic or structurally patterned is going on. My work focuses on this persistent gap in immigration law and its stubborn failures. It is, in a sense, a “sociology of what doesn’t work,” or an “autopsy of failure.” I proceed from the assumption that if immigration policies fail again and again, and fail in comparable ways across time and place, an autopsy will probably reveal that the cause of death was not mere accident. Instead, there are systemic logics at work. In an early book, I looked at the way the U.S. Immigration [and Naturalization] Service [INS] implemented the Bracero Program in the 1950s and 1960s. That guest worker program for agriculture and the INS itself were plagued by criticism and scandal. I argued that this reflected the institutional location of the INS, at the fault line of a fundamental contradiction between the economic utility of illegal immigrants and the agency’s mandate to staunch the flow. Securing growers’ cooperation and using Braceros instead of illegal immigrants was its response to this institutional dilemma. But the problem was, for the strategy to work, the INS had to ensure a steady stream of Braceros and overlook growers’ frequent contract violations. The program went down in scandal in the early 1960s, not simply because of corruption or incompetence as critics at the time claimed, but because the INS confronted head-on a structural contradiction. As a representative of the INS employee union told Congress in 1980 regarding strict enforcement, “They’re damned if they do and damned if they don’t.”

Another catch-22 can be found in contemporary European policies. In my recent book, Immigrants at the Margins, I look at two decades of law in the new countries of immigration, Spain and Italy. Their laws ostensibly emphasize integration, but at the same time welcome immigrants exclusively as workers in sectors shunned by locals, their legal status contingent on temporary work permits. So they pull in opposite directions at once; limiting immigrant socioeconomic inclusion by denying them permanent residence and ushering them onto the margins of the economy, while at the same time underwriting ambitious programs of social integration. This tension is the manifestation in the policy arena of a broader dialectic. That is, immigrants are useful as others, who work under conditions and for wages that native workers reject, but at the same time this otherness is the pivot on which racialization and anti-immigrant backlashes turn. So immigration law simultaneously constructs otherness and must combat its fallout, spending millions on doomed projects of integration. The consequence of these and similar contradictions in Europe, the U.S., and other capitalist democracies is not only frustration with the immigration problem. The human toll is enormous, with thousands of border crossing deaths every year, appalling living and working conditions for immigrants, and retaliation and civil rights violations by locals.

How might our academic studies help? Sociologists often study the deviant case in order to figure out what makes it deviate and, by extrapolation, what makes the normal normal. And Thorsten Sellin and the many criminologists he influenced asked what social conditions and life experiences are associated with high levels of delinquency and, by implication, what conditions might reduce it. In a similar way, a sociology of what does not work, or autopsies of legal failure, might help us piece together the required ingredients of success. At the very least, it might keep us from repeating the same mistakes over and over again. But, of course, it is not easy. Because, if I am right, it is not a matter of technical expertise alone. Instead it will involve finessing deep-rooted contradictions and a willingness to look outside the narrow box of immigration policy for solutions.”

Disclaimer: The views expressed herein are solely the opinions of the individuals and not those of the Academy.