Deferred action and the discretionary state: migration, precarity and resistance^*

^*Earlier versions of this paper were presented at UC Santa Cruz at the ‘Rethinking Migration Conference’ sponsored by the Chicano Latino Research Center and at the Latin American Studies Association meeting.

Abstract

In the United States, the lives of undocumented people have become increasingly precarious due to increased surveillance, enforcement, criminalization, and detention. In this context, deferred action, a form of prosecutorial discretion in which the government declines to pursue removal and provides temporary work authorization, has become a source of both hope and vulnerability. Based on fieldwork, interviews, and legal analysis, we delineate the forms of partial inclusion experienced by deferred action recipients and explore the position from which they can make claims on the US state. Our analysis advances citizenship theory by detailing the relationship between the discretionary state and its transitory, noncitizen subjects, as well as how this relationship is complicated by resistance from youth activists and their allies. The liminal legality afforded by deferred action provides partial but insecure relief from the precarity experienced by the undocumented.

Keywords:

• Immigration
• precarity
• liminality
• discretion
• law
• United States
• resistance

Acknowledgments

The authors are grateful to Daniel Goldstein and audience members at the UC Santa Cruz "Rethinking Migration" conference and at a Latin American Studies Association panel for their comments and questions. We also thank our research assistants: Elizabeth Clark, Jason Palmer, Edelina Burciaga, and Alma Garza.

Notes

^* Earlier versions of this paper were presented at UC Santa Cruz at the ‘Rethinking Migration Conference’ sponsored by the Chicano Latino Research Center and at the Latin American Studies Association meeting.

1. Some activists embrace ‘illegal’ much in the way that queer was embraced by LGBT activists. They describe ‘undocumented’ as a term used by liberal allies that obscures their actual condition.

2. There are regulations and statutory references to deferred action, but they do not dictate how deferred action is to be granted.

3. Indeed, just as mandatory sentencing rules displace discretion from the judiciary to the prosecution (Lynch 2011), so too do the 1996 immigration reforms, which included ‘court-stripping provisions’, increase the importance of prosecutorial discretion in the immigration realm (Wadhia 2010; see also Chacón 2016).

4. In the United States, English language skills have been treated legally as evidence of acculturation and deservingness (Coutin 2003).

5. Gang membership is a highly malleable classification (Muñiz 2015). Those who do not consider themselves gang members, may be so characterized in a database (which may rely on old or erroneous evidence that is not available to the individual).

6. Such suspicion makes undocumentable presence into an absence, perhaps akin to the sense in which migrants are an ‘absent presence’ in their homelands (Coutin 2007), or the case of Japanese Americans who, following WWII internment, were something of an absent presence in the United States (Simpson 2001). On the challenges of documenting undocumented presence, see Coutin 2000.

7. This distinction between ‘families’ and ‘felons' is an instance of a broader dichotomy between innocence and culpability, according to which the ‘innocent’ (such as child arrivals) might be deserving of legalization, in contrast to the ‘culpable’ (such as those who entered the US without authorization as adults) who might not. See Lee (2015, 1417) for a discussion of this dichotomy and of what he terms ‘a theory of membership as innocence’, that is, respect for the law.

8. One of us, who was on the East Coast at the time, heard a similar reaction during a conversation with an individual of immigrant background immediately following the president’s announcement.