Unsettling Immigration Laws: Settler Colonialism and the U.S. Immigration Legal System

By Kashyap, Monika Batra | Fordham Urban Law Journal, June 2019 | Go to article overview

Unsettling Immigration Laws: Settler Colonialism and the U.S. Immigration Legal System


Kashyap, Monika Batra, Fordham Urban Law Journal


TABLE OF CONTENTS  Introduction                                                  549 I. The Foundational Processes of U.S. Settler Colonialism     554       A. Indigenous Elimination                               554       B. Subordination of Racialized Outsiders                557       C. Establishment and Enforcement of Laws                559 II. Contemporary Immigration Laws Through a Settler     Colonialism Lens                                          561       A. NSEERS                                               561       B. Trump's 2017 Muslim Bans                             564       C. Trump's Immigrant Family Separation Policy           566 III. Indigenous/Immigrant Solidarity and Resistance           569       A. Aboriginal Passport Ceremony Movement (Australia)    569       B. Canada: No One Is Illegal Indigenous/Immigrant          Solidarity Movement                                  572       C. United States: Indigenous Resistance to Trump's          Family Separation Policy                             573 IV. Unsettling Pedagogies                                     575       A. Indigenous Land Acknowledgement                      575       B. Modifications to the "Personal Immigration History"          Exercise                                             577 Conclusion                                                    579 

INTRODUCTION

The United States sits on invaded Indigenous (1) lands. European settler colonizers invaded Indigenous lands with the intent to permanently settle and form new ethnic and religious sovereign communities on the newly acquired land. (2) These settler colonizers have continued to occupy invaded Indigenous lands by establishing an ongoing complex social structure of invasion called "settler colonialism." (3) This structure of invasion functions through the ongoing processes of Indigenous elimination and subordination of racialized outsiders (4)--as well as through the creation and enforcement of laws that maintain the ongoing invasion. (5) U.S. settler colonialism's invasion may have started in the past, but it is a continuing structure of elimination and subordination that is happening now. (6)

On February 15, 2019, Trump declared a national emergency in order to secure funding for a border wall to confront the "national security crisis" created by what he calls an "invasion" of immigrants at the southern U.S.-Mexico border. (7) The border wall is part of Executive Order 13767, Trump's "Border Wall" executive order, (8) which not only calls for the immediate construction of a costly physical wall along the U.S.-Mexico border, but also institutes new immigration policies that criminalize and dehumanize immigrants. For example, the order increases immigrant detentions, expands immigrant detention capacity, increases the power of state and local enforcement of immigration laws, limits humanitarian protection to asylum seekers, increases criminal prosecutions at the border, and drastically increases expedited deportations. (9)

It will cost over 8 billion dollars to build the wall Trump hopes will stop the "invasion" of immigrants at the U.S-Mexico border (10)--the very border that was created when the United States invaded, occupied, and annexed half of Mexico's territory. (11) Indeed, almost all of Texas, New Mexico, Arizona, California, Nevada, and Utah, as well as portions of Colorado, Kansas, and Oklahoma, were part of Mexico until the Mexican-American War (1846-1848). (12)

The 2,000-mile border created by U.S. invasion and conquest of northern Mexico not only represents a manifestation of the "geographical violence of imperialism," (13) but also bisects Tohono O'odham Nation lands which stretch across southern Arizona and northern Mexico. (14) Specifically, sixty-two miles of the U.S.-Mexico border run through Tohono O'odham Nation lands. (15) Members of the Tohono O'odham Nation live on both sides of the U.S.-Mexico border and have traveled throughout their lands to visit family, as well as to participate in cultural and religious ceremonies and traditions. …

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