William & Mary Journal of Race, Gender, and Social Justice
Abstract
This Essay examines how systemic racism impacts the ways immigration laws operate to retaliate and criminalize immigrants who dissent. Criminalizing dissent—which recently has become more widespread—is one tool within the immigration system that reinforces America’s racialized caste system. This Essay frames immigration exceptionalism as a continual state that excludes nonconforming bodies and ideologies to instill fear as a means of authoritarian governance. This Essay challenges the history of immigration exceptionalism as an objectively neutral system of governance, arguing that it has historically criminalized racialized migrants to suppress dissent and ideological viewpoints that are not aligned with America’s racialized project. Immigration law functions as a retaliatory tool of governance by constructing criminality to suppress both racial outsiders and ideological dissenters, creating a perpetual undocumented class—especially when the two categories overlap.
Part I sets out the theoretical and historical foundations of immigration exceptionalism as a state of continuity. It traces the legal architecture of immigration exceptionalism to the Chinese Exclusion Acts and Supreme Court cases to demonstrate how the U.S. government has long relied on racialized criminal migrant narratives to construct permanent ideological and racial outsiders who can be summarily deported without regard to their human or constitutional rights. Part II walks through historical examples of how immigration laws construct criminality at the intersection of race and dissent. Part III turns to the present and examines how the current administration has escalated the use of immigration enforcement against universities and foreign students, especially in contexts where political dissent, racial identity, or ideological critique challenge state power. It examines how the state now weaponizes immigration law as a retaliatory mechanism. This analysis shows how immigration law is no longer just a border enforcement tool, but an internal governance strategy to suppress both citizen and noncitizen resistance, where the state leverages immigration law to suppress those who expose its violence, reject its exclusions, and demand accountability.
The Essay concludes by arguing that immigration law must be rebuilt from the ground up with non-reformist reforms. Non-reformist reforms reject the deeply rooted racialized logic of U.S. exceptionalism that treats racialized migrants as inherently deportable and constitutionally unprotected. If due process, proportionality, and judicial review are to have any constitutional meaning, they must be restored as the governing principles of immigration law—not exceptions to it. Only then can the United States begin to reverse the dangerous expansion of executive power that criminalizes racialized migrants and reassert a legal order that recognizes migrants as full subjects who warrant equal protection under the law.
This abstract has been taken from the author's introduction.