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Immigrants make up a large and increasing portion of the American community. The recent census found an unprecedented number of immigrants within the United States. Immigrants, however, have fewer legal protections than almost any other individuals within our borders. This lack of protection is especially disconcerting given that immigrants are often the most subordinated members of our communities. Particularly after the events of September 11, 2001, the rights and protections available to immigrants—whether they are documented or not—are tenuous. As LatCrit scholars have pointed out, immigration law is intensely racialized, and yet other bodies of law, such as civil rights and labor law, have failed to take into account how identities that are currently legally protected—such as race, color, national origin, and ancestry—intersect with immigrant status and history.

LatCrit theorists have argued that: (1) legal doctrines fragment identities to the point that the subordinated have no recourse at all; (2) existing legal categories ignore identities, cultures, and languages; and (3) legal doctrines are intrinsically racialized even when it comes to purportedly nonracial subjects like immigration. Drawing on these insights from LatCrit Theory, the author conducts a “thought experiment” and questions: What if the law recognized immigrants as immigrants? Do immigrants have any identity interest that the law is obliged to protect? What do we lose, and what do we gain, if we recognize immigrant status and history as an identity axis deserving independent legal protection? These questions implicate central tensions in LatCrit Theory, and in progressive law generally. Specifically, how do we work towards liberation for all, and still recognize the unique identities of individuals, nations, and “races?”

In order to redefine immigrant identity, the author suggests that it might to begin with how racial identity is constructed. As Kevin Johnson argues, we must view the “racial” identity of people of color from at least two vantage points: (1) how people construct their own identity on an individual level, and (2) as LatCrit Theory has pioneered, the ways in which “racially subordinated people should analyze the construction of group identity.” Law is a factor, though not a determinative one, in the production of group identity. Government action delineates who is “legal” and “illegal,” and constitutional doctrine determines to what extent immigrants are allowed to participate in the full range of U.S. civic life. This Essay looks at the way law has rendered immigrant identity invisible by ignoring immigrant status, history, and identity in the so-called “private” realms of work, housing, and public interaction. The essay analyzes how immigrants have constructed their own identities individually and collectively even in the absence of any legal recognition, primarily in the context of labor organization. Finally, this Essay explores points where links can be built between law and social mobilization of groups, and the implications of building those links.

Publication Citation

55 Fla. L. Rev. 511 (2003)