Abstract

Excerpted From: Evelyn Marcelina Rangel-Medina, Citizenism: Racialized Discrimination by Design, 104 Boston University Law Review 831 (April, 2024) (356 Footnotes) (Full Document)

In 2019, Francisco Erwin Galicia, a U.S.-born Latino teenager and rising senior at a public high school, traveled to Ranger College for a soccer tryout with his friends. Although Francisco hoped his soccer skills might earn him a college scholarship, his life changed when he was stopped at a Border Patrol checkpoint in Falfurrias, Texas. Francisco provided evidence of his U.S. citizenship, including his U.S.-issued birth certificate, social security card, and state-issued Texas identification card. Still, Customs and Border Protection (“CBP”) agents accused Francisco of using fake documents and falsely representing himself as a U.S. citizen. This confusion arose because Francisco's mother opted not to put her real name on his birth certificate due to her undocumented status. Despite this easily clarified confusion, he was arrested and incarcerated for nearly a month. During this ordeal, Francisco was detained in a room with up to seventy other people, some of whom were very sick, even though he was a minor. He lost at least twenty pounds and likely suffered psychological trauma. He was not always allowed to brush his teeth or use the bathroom. Even though Francisco is a U.S. citizen by birth, he stated he almost signed an order of deportation because “I didn't want to suffer anymore. I was at a breaking point.”

Cases like Francisco's are not limited to relatively powerless Brown teenagers in Texas. In 2008, the United States, a country founded on the enslavement of Black people, elected its first Black President. However, efforts to question President Barack Obama's constitutional qualifications for the Presidency persisted. Despite clear evidence President Obama is a natural-born U.S. citizen, his eligibility to serve as President was critiqued primarily based on his race and presumed religion.

By comparison, President Obama's white opponent in the 2008 election, Senator John McCain, faced genuine constitutional hurdles to his eligibility for President. Evidence indicated Senator McCain did not possess birthright citizenship. However, the Senate immediately passed a resolution declaring retroactively that seventy-one-year-old John McCain was a natural-born U.S. citizen. This issue received only a fraction of the public's attention compared to questions about President Obama's citizenship at birth, which persisted without merit throughout the two terms of his Presidency.

Francisco's case and the Obama-McCain dichotomy illustrate this country's construction of citizenship through racialized illegality. Central to the legal and societal understanding of U.S. citizenship is a presumption that people of color, particularly the poor and the darker-skinned, are inherently dangerous, unworthy of legal protection, and perpetually foreign. This presumption is operationalized in the everyday lives of people of color, including citizens of color who are racially profiled, detained, questioned, arrested, deported, and even restricted from voting because of their perceived fraudulence and illegality. Thus, while explicit, racialized exclusion in immigration and naturalization law has diminished over time, the citizenship rights and privileges of citizens of color continue to be shaped and delimited by a structural system of discrimination--citizenism.

The need for a term that defines explicitly this legalized form of racial subordination first crystallized for me in 2006. I was an undergraduate at the University of Nevada, Las Vegas. While I had lived as an undocumented immigrant most of my life, by then, I enjoyed the somewhat elusive privilege of Lawful Permanent Resident status. The largest civil rights mobilization of Latinxs and Asian Pacific Islanders (APIs) and immigrant communities erupted that year in response to the Congressional proposal H.R. 4437. This draconian anti-immigration law sought to criminalize every single aspect of undocumented status and communities connected to undocumented people.

In Las Vegas, I co-led the largest grassroots mobilization in the history of Nevada, where between 80,000 and 100,000 people shut down the Las Vegas Strip, demanding immigration reform and the dismissal of H.R. 4437 in Congress. As we planned our organizing strategy, which effectively stopped the passage of H.R. 4437, we understood this legislative proposal and the attacks on immigrant communities locally and nationally were driven by racism hidden by colorblindness. We understood the root of the problem was illegalized people did not have access to a recognized immigration status or citizenship. Thus, citizenism was organically born in organizing spaces to theorize the root of our subordination.

Citizenism provides a new framework for analyzing white supremacy to understand how structural racism operates more fully in the United States. This structure was operationalized out of the legalized illegality of racialized populations after the Civil War. An extensive history of racialized exclusion has laid the foundation for the existing immigration system to function as a race-making apparatus through criminality and the advent of the “illegal other.” Citizenism then reinscribes how race operates as a central organizing principle of U.S. citizenship. It is implemented and maintained through racialized law enforcement and the legal fiction of the fraudulent, criminal--“illegal”--immigrant, which is a euphemism for race. Moreover, the court established plenary power doctrine almost entirely shields this permissible form of discrimination from judicial review in immigration law.

Citizenism:

(1) is a racialized hierarchical system of advantages and privileges formally premised on citizenship status,

(2) legally permits the suppression of precarious rights of citizens of color through legal and presumed racialized illegality, and

(3) mobilizes border and law enforcement to perpetuate structural racial subordination.

Citizenism functions as a legalized system of discrimination that uses citizenship status to perpetuate racialized outcomes for communities of color. It uses the ostensibly race-neutral and purportedly normative legal category of “citizenship” to advance structural violence and subordination across race, Indigeneity, class, immigration, and citizenship status. Citizenism operates through a complex interplay of racism, classism, xenophobia, and nativism. Under citizenism, white citizenship is the standard for full rights under the law, rendering the status of people of color presumptively suspect.

As this Article subsequently profiles, citizenist discrimination impacts racial groups differently. This Article specifically deploys Latinxs as a case study to showcase how law enforcement racializes people of color, with or without status, as well as U.S. citizens of color. Still, showcasing how citizenism impacts Latinxs sheds light on how this system of discrimination functions largely unscathed by legal limitations across racial categories.

Latinxs, including U.S. citizens, experience heightened forms of racial profiling and even deportation because they are racialized through illegalization. Latinxs, like Francisco, are stopped, detained, arrested, and deported for “speaking and looking like an illegal.” These forms of state-sanctioned discrimination are permissible under the law. Most notably, in United States v. Brignoni-Ponce, CBP officers stopped a car on suspicion that undocumented immigrants were inside, relying solely on the fact that the car's “three occupants appeared to be of Mexican descent.” The Supreme Court held “Mexican appearance [to be] a relevant factor” in determining suspicion of undocumented status. The Court failed to provide guidance or a definition of what constitutes “Mexican appearance.” Jurisdictions nationwide--with some exceptions in the Ninth Circuit--have followed suit over the last five decades. In Egbert v. Boule, the Supreme Court allowed CBP officials to continue conducting warrantless stops, searches, and arrests within one hundred miles of U.S. borders with mere reasonable suspicion. Notably, over 70% of people of color in the United States live within this region. It is also home to approximately 75% of the Latinx population. The result of these holdings is unequal treatment under the law through heightened criminalization, erosion of civil rights, and legally permissible racial profiling of people of color, including citizens of color, premised on the racialized construct of the “illegal other.”

Part I of this Article contextualizes the concept of citizenism as a sanitized iteration of structural racism. It briefly situates this concept within broader theoretical frameworks, primarily relying on Critical Race Theory and Critical Latinx Indigeneities. Then, this Part expounds explicitly on the legal underpinnings that produce citizenism by delving into an extensive history of racialized exclusion that has operationalized race-making through immigration and law enforcement. The Intersections of Illegality Table illustrates how the citizenship rights of citizens of color are presumptively suspect and precarious under citizenism. The table also showcases how the fates of noncitizens and citizens of color are inextricably linked as the regime of immigration enforcement expands. Lastly, it discusses how citizenism differentiates and operates through the interplay of racism, xenophobia, and nativism, laying out the foundation to explicate the remaining aspects of the concept.

Part II explores how the legal fiction of illegality is weaponized to delimit the civil and political rights of people of color, even when they possess U.S. citizenship. Specifically, it outlines how citizenism is mobilized within three mixed-status communities, comprised primarily of U.S. citizens, from the early 1900s until today. These examples concretize how citizenism operationalizes unjustified detention and indefinite imprisonment with minimal due process, unlawful deportations, property takings, racialized surveillance, loss of generational wealth, and racial profiling of mixed-status communities of color.

Part III deploys the case study of Latinxs as an apparatus of racialization. Building on Francisco's story, it examines how the racially constructed concepts of “looking like an illegal” and “speaking like an illegal” function as proxies for race that effectively subordinate Latinxs and illegalize citizens of color. This Part focuses on more recent Supreme Court interpretation of the Fourth Amendment (starting roughly in the 1970s), particularly in cases involving undocumented Latinxs. It argues the erosion of constitutional protections against state action in precedent-setting cases involving undocumented people translates into the racial discrimination of Latinxs and other communities of color.

[. . .]

This Article's central intervention is laying out the concept of citizenism as a theory of discrimination that sustains structural racism. Citizenism delimits the civil and political citizenship rights of noncitizens and citizens of color who are racialized as presumptively “illegal.” This structure is rooted in the normative practice of nation-states allocating differential rights based on citizenship status. In the United States, it is specifically engrained in a prolonged history of race-based exclusion from citizenship. From the Naturalization Act of 1790 to the ruling of Dred Scott in 1857, to the Chinese Exclusion Acts of 1882, to the mass deportations of millions of people of Mexican descent in the early 1990s, to the forced internment of people of Japanese ancestry in the 1940s, to the holding in Brignoni-Ponce in 1975, to the racialization of Arabs and Muslims since 2001 race continues to be a central organizing principle of U.S. citizenship. Citizenism, this Article posits, is an underlying layer of white supremacy that uses citizenship status as a proxy for race to perpetuate racialized outcomes for communities of color.

Addressing citizenism is beyond this Article's reach. Yet, structural and legal solutions may be needed to remedy citizenism. Confronting the root causes of citizenism may require a potential restructuring of how nation-states apportion civil and political rights based on citizenship status. This necessitates a reckoning of how the construct of “illegality” maintains a racially subordinated population of millions of people while diminishing the rights of citizens of color. Furthermore, administrative and legislative policies and long-established legal precedents must be reexamined and plausibly overturned. This includes contending with the immense deference underwritten by law with scant judicial review under the plenary power doctrine of immigration control and enforcement.

A readily available legal remedy may be overturning United States v. Brignoni-Ponce. Immigration and law enforcement should not be allowed to use “Mexican appearance” as a reasonable factor to stop or detain people. This ruling has led to the targeting, race-making, criminalization, detention, and deportation of Latinxs within and outside border areas. To address this, Brignoni-Ponce can be renounced as unconstitutional.

Furthermore, weakening Fourth Amendment protections within the 100-mile border zone has broader implications for all people living in the United States. The constitutional protections previously granted by the Fourth Amendment require a more stringent process. Law enforcement must be held to a standard that necessitates more than an arbitrary hunch that a person may lack citizenship based on race. Therefore, increasing Fourth Amendment protections in cases connected to undocumented immigrants can remedy citizenism, provide a higher level of protection from potential governmental intrusion, and limit the growing practice of racial profiling based on the construction of illegality.

Another potential tangible remedy is establishing a cognizable claim for this distinct form of racial discrimination. Like sexual harassment became available to litigants who experienced discrimination in employment, citizenism can become a legally viable claim for racial discrimination under civil rights. Employees, primarily women and LGBTQIA+ people, who experienced workplace sexual harassment lacked avenues for legal remedies before they could sue under Title VII of the Civil Rights Act. Courts turned away potential plaintiffs because sexual harassment was viewed as “a personal, not a civil rights, violation.” Sexual harassment did not fit the definition of discrimination based on sex, and Title VII was viewed as a remedy primarily used to address racial discrimination. Plaintiffs like Diane Williams and Paulette Barnes, advocates like Eleanor Holmes Norton and Lin Farley, and professors like Anita Hill and Catherine MacKinnon effectively persuaded the American judiciary to provide relief for sexual harassment as a practice of sex discrimination in employment. Recognizing citizenism as a form of racial discrimination can serve a similar purpose by naming it as a specific practice and civil rights violation, providing a sense of its systemic pervasiveness, and opening the courts and the law as a forum for legal remedies.

Considering the structural inequalities citizenism imposes on citizens of color, courts could adopt the inequality approach, utilizing the legal doctrines of “disparate impact” and “suspect classification” to allow for the adjudication of claims. In adopting such an approach, however, courts must remain cognizant of intersectionality and “multidimensional discrimination,” being careful not to make citizenist discrimination a “monolithic experience” or mutually exclusive legal claim. In her work, Professor Kimberlé Crenshaw notes the limited scope of antidiscrimination law has forced Black women like Professor Hill to “mold [their] experience [of discrimination] into that of either white women [in sex-based claims] or black men [in race-based claims] in order to be legally recognized.” Analyzing, in particular, the attacks on Professor Hill after her Congressional testimony, Professor Crenshaw notes some scholars viewed “Black women's historical lack of protection [from sexual harassment as] a basis for saying no protection [was] necessary.” Professor Athena Mutua's work on multidimensionality is of further importance, which warns “against imposing a limited and essentialized identity on a multidimensional identity of groups because to do so prevents us from identifying how race, gender, class[,] and nation interact differently to create subordination.” Most importantly, any potential legal remedies to address citizenist discrimination should take into account “intersectional nuances” of power, migration, history, racial construction, and subordination.

Establishing cognizable claims for the legally constructed concepts of “speaking like an illegal” and “looking like an illegal” can extend the rights of citizens of Latinx descent like Francisco Erwin Galicia, Ana Suda, and Martha “Mimi” Hernandez. This remedy would make citizenist discrimination illegal by prohibiting the legally permissible suppression of precarious constitutional and civil rights of citizens of color through state-sanctioned racial discrimination. Making this remedy accessible would address the root causes of citizenism and begin eroding some of the entrenched legacies of racial discrimination embedded in U.S. citizenship.

Citizenism, this Article argues, permits the continued differential and unequal treatment of people of color regardless of citizenship status under the law. Thus, people of color have not only been prohibited from accessing birthright and naturalized citizenship for much of this country's history, but the diminished legal protections of racialized immigrants continue to erode the constitutional rights of citizens of color. Loss of liberty through unjustified detention and indefinite criminal imprisonment with minimal due process, unlawful deportation, presumptive and constructed criminality, large-scale deportation, property takings, racialized surveillance, loss of generational wealth, and racial profiling are realities that people of color, including U.S. citizens, experience under citizenism. By centering citizenship status, the concept of citizenism explains how citizenship is weaponized to sustain structural subordination.

Assistant Professor of Law, Temple University James E. Beasley School of Law.