On its surface modern immigration law in the US may not seem connected to race. Yet, any historically rooted examination of contemporary immigration policy must conclude that immigration law is a form of racist policy that justifies the subordination of entire groups of people—in the contemporary context this group is Latinos. As with other forms of law that create racial categories, and then use those categories to oppress certain racial groups, the ultimate purpose of immigration law in the US continues to be to police the boundaries of whiteness and maintain white supremacy. Undocumented immigrants, the vast majority of whom are Latino, are currently forced to live in the US with no access to the rights, benefits or protections that come with citizenship.
Since its inception, immigration to the US has been tied inextricably to race. The Naturalization Act of 1790 limited eligibility for citizenship to “any alien, being a free white person.” Thus, from 1790 until 1952, when this qualification was removed—over one and a half centuries—whiteness was explicitly a necessary qualification for citizenship in the US. (The only exception to this was created through the Naturalization Act of 1870, which extended naturalization to "aliens of African nativity and to persons of African descent," thus allowing former slaves to become citizens. However, other non-white persons still could not be naturalized.) Although whiteness stopped being the only path to citizenship in 1952, the government continued to explicitly restrict immigration along racial lines until 1965.
In examining Latino, particularly Mexicans' relationship to immigration, the role of the Treaty of Guadalupe Hidalgo cannot be ignored. In 1848, after the Mexican-American War, the Treaty of Guadalupe Hidalgo established Mexicans’ eligibility for US citizenship. However, the treaty did not mention race, thus not addressing the fact that at this time eligibility for citizenship was tied to whiteness (and providing a loophole through which the US could prevent Mexicans from claiming a right to citizenship in the future). In this same treaty, large portions of what had previously been México became part of the US essentially overnight. The US gained basically the entire Southwest, including California, much of Texas, New Mexico, Utah, Nevada and Arizona, from Mexico. Looking at the Treaty of Guadalupe Hidalgo is critical to understanding the immigration law in relation to Latinos because it points to a fundamental difference between Mexicans and other immigrant groups, such as Asians or Europeans—Mexicans did not travel thousands of miles to come live in the US. Many simply happened to be living on land that was appropriated into the US by force. Even though Mexicans have been living in portions of what is today the US for much longer than white Americans, they are still considered somehow more foreign.
Currently, no legal status is available to most of the 11.1 million undocumented immigrants living in the US. Undocumented immigrants must live with the constant fear that they could be detained, deported, and separated from their families at any time. The dominant conservative discourse around immigration has dehumanized undocumented immigrants by labeling them as “aliens,” and criminalizing millions of people simply for entering the US without first gaining legal status. Although it may not be explicit, this discourse is almost always racially targeted toward Mexicans and Latinos, often regardless of their actual immigration status. Thus, although immigration law today may not explicitly mention race, it functions to racialize and other a significant portion of the US population in a manner that can be compared to Jim Crow laws—undocumented people are legally relegated to an underclass in American society.
These 11 million undocumented people, including around 2 million children, are hardworking members of our society. Yet the reality is that it should not matter how hard they work, or how much they contribute. Access to rights and citizenship in our republic should not be based upon race or any other qualifications, beyond being a human being and living in our society. If we conceived of citizenship as a fundamental human right rather than a privilege, state policy would have to be fundamentally altered to confer equal rights and opportunities to all residents of the state, regardless of their existing status within the national community. From a basis in human rights, the legal category of noncitizen, or someone who is completely undocumented, must be recognized as an inherently unequal status.