Away from the border and into the frontier: The paradoxical geographies of US immigration law

Plenary power

The question in Barton v. Barr was to determine whether Barton could be inadmissible despite having been admitted, meaning legally outside the country but also inside of it altogether, to a point where it became impossible to determine his position in law. As we shall see, however, Barton is but one of the most vivid examples of a broader geographic paradox that characterizes immigration law as a whole, and which can be visualized clearly only by beginning with its history.

Scholars situate the birth of contemporary US immigration law in the late 19th century, when the Federal government began passing laws that would put immigration beyond the reach of the states to make it a solely federal prerogative (Hester, 2017). At its inception, the law was supported by a specific judicial doctrine that had been gaining ground at that time, which is commonly known as the plenary power doctrine (Chan, 1996). In a nutshell, plenary power refers to a power that may be exerted against subjects and territories other than US citizens and US states, and that is, subjects and territories that stand outside constitutional jurisdiction. Historically, it was first adopted to address the legal status of American Indian tribes under federal law, and it eventually expanded to regulate immigration and to encompass those territories that the United States had acquired through the Spanish-American war: Puerto Rico, the Philippines, and Guam (Cleveland, 2002). There are three main characteristics of plenary power: it has few constitutional limitations; it demands a virtually absolute deference from the judiciary; its source of authority is not in the constitution (Cleveland, 2002: 5).

Why are plenary powers to be found outside the constitution? The answer to this question lies in the pressure that was brought on the judiciary to sanction the United States’ transition into an imperialistic and colonial power, a transition that had little textual basis in a constitution written from a liberal perspective (Ramos, 1996; also see Karuka, 2019). In the absence of a textual authority, plenary powers were constructed as “inherent to sovereignty.” The reasoning was that the United States must have possessed certain powers as a sovereign nation, and these would be found in international law (Cleveland, 2002). As a nation, the United States could conquer territories and subject populations that lacked or had lost a separate national allegiance. In between the 19th and 20th centuries, the government identified three such nationless populations and territories.

The first of these were the Indian Tribes, as they were not white, sovereign nations. While the Federal government never acknowledged the Tribes as sovereign authorities, for most of the 19th century they could rely on a degree of territorial autonomy. However, with the introduction of plenary power this autonomy was erased, and Native Americans were constructed as subjects at the full disposal of the federal government (Ablavsky, 2015). This allowed the government to unilaterally rescind the American Indian Treaties and displace Native Americans from their land. Eventually, the same logic was extended to the US colonies, because after the conquest these territories were not foreign, as no other country could claim them, but neither were US states. Therefore, the United States could integrate them into its possession without having to extend constitutional rights to their inhabitants (Perez, 2008; Ramos, 1996). And finally, in the Chinese Exclusion Case the Supreme Court extended the doctrine to immigration law, and it established that aliens remained subject to plenary power for the time they were present in the country. This would invest the government with the unquestionable authority to remove them without offering meaningful constitutional protections (Hester, 2017). According to the Supreme Court, without these powers the republic would have become something less than a nation under international law, and the constitution itself could not be effective as it would lack a sovereign nation to enforce it. ¹

In other words, the judicial construction of the doctrine looked outwards. Plenary powers were not to be found inside the constitution because they were not, from a certain perspective, domestic, as they concerned foreign affairs. Nonetheless, it is easy to notice that the doctrine has its own domestic counterpart, and that is police power (Dubber, 2005). Just like plenary power, police power can escape several constitutional limitations. It usually targets subjects that are constructed as other than the normative citizen, such as the mentally ill, orphans, vagrants, or drunks. Furthermore, both powers are deeply paternalistic, as they aim at improving the welfare of society by taking care of those who lack full autonomy. Native Americans, aliens, and colonial subjects were not necessarily conceptualized as enemies, but also as non-autonomous individuals that the government would take care of in the interest of society (Ablavsky, 2015). In fact, while most historians have focused on foreign affairs to analyze the plenary power doctrine, a few have also stressed its origins in the police (Dubber, 2005: 139–156; Lindsay, 2010). This is particularly true for immigration law, as prior to its federalization US states could often regulate immigration into their borders as part of their police power (Bilder, 1996).

This is not to say that the two theses are contradictory. Instead, plenary power should be thought of as neither strictly foreign nor domestic, but as rooted in a geographic imagination that defied the distinction between the two. Under the doctrine’s logic, the existence of an extra-constitutional power is necessary not just to protect the country’s border, but also to institute it, thereby making the very existence of a domestic territory sensical and effective. In this sense, more than a territorial limit to the doctrine the border constituted its own creation. Plenary power is logically precedent to the border, and it originates in a territory where the border may be eventually drawn. I will refer to this un-bordered space as the frontier. ² Just like the doctrine lacks a textual presence in the constitution, the frontier does not possess a material location. Instead, it is a concept that remains unclarified and unmapped, but which must be present as a logical condition and prerequisite to thinking about sovereignty.

The most memorable description of the geographic confusion that results from the doctrine’s application was given by Justice White in Downes v. Bidwell, when the Supreme Court had to decide the status of Puerto Rico as neither a foreign territory nor a US state. According to White, Puerto Rico could not be foreign in an international sense, as it was under US sovereignty, but neither could be domestic. Instead, Puerto Rico was “foreign to the United States in a domestic sense” (Downes v. Bidwell, 1901: 341). ³

White’s quote opens up for a critical reading of immigration law and its paradoxical traits. Here, my usage of the term “paradox” should not be confused for a legal argument where a statement may be accused of being paradoxical in order to reject it as invalid. A paradox does not designate a lack of sense. Instead, it constitutes the act of producing a new sense through two terms that were previously contradictory. More specifically, the paradox allows the production of new space, a new territorial enclave that complicates the geographic designations of foreign and domestic and pushes them toward a different geographic imagination. As will be discussed through the following analysis, immigration law’s motor of reproduction consists exactly in its ability to produce more and more paradoxes, of which the case of Barton v. Barr is a particularly vivid example. In this sense, the starting question for a geographic investigation of immigration law should be: where are the aliens?

The boundaries of immigration law, or life at the edge

To find the territory of immigration law I draw from the work of Niklas Luhmann (2004). For Luhmann, a legal theory consists in a reflexive endeavor, where a description of the law is given from an internal, legal perspective. In other words, a self-description. The ability to describe itself is what makes an autopoietic system, such as the law, autonomous. However, the law cannot tell us what it is, or else it would be describing itself through an identity, thereby losing its autonomous structure by being identical to a non-legal object. Instead, the autopoietic system will coalesce around an exclusive set of operations that no other system uses, and it will acquire its uniqueness and closure through the repetition of those exact operations. Beside performing their function, the operations also work as reflexive endeavors, thus rendering the law autonomous. For this reason, the self-description will not be an identity but a difference: legal theory will tell us what the law is by telling us what it is not, and that is, everything else.

In this sense, Luhmann suggests we seek a border, the legal description of a non-legal object that establishes a threshold between what is law and what isn’t. By looking at how the law describes its other, and that is, what remains outside, we obtain a negative definition of the interior. Following Luhmann, to find the territory of immigration law we must seek those instances where the law produces it through operations that distinguish it from another location. We must first find a case that happened somewhere else, and specifically on a territory that could acquire its substance by presenting itself as distinct. An instance of this kind may be found in the case of Hernandez v. United States (2015).

In 2010, a Border Patrol officer standing in El Paso, Texas, shot and killed a Mexican teenager who was standing on the other side of the international border in Juárez, Mexico. The boy’s name was Sergio Hernández. He and his friend were playing a game where they would run through the culvert separating the two countries, touch the fence on the American side, and run back to the fence on their side. Upon seeing this act of defiance, the agent grabbed and detained one of the youths, but Hernández was able to flee across the culvert and watch the scene unfold. The agent then pulled out his gun and fired it toward Hernández, striking him in the face. ⁴

The US government refused to bring criminal charges against the shooter. Hernández’s family, however, did not stop there and they brought a civil suit to seek a reparation for the killing of their son, and that is, for the violation of his constitutional rights (Liptak, 2016). When the case reached the Fifth Circuit Court of Appeals, the court was faced with a problem: could a Mexican citizen possess constitutional rights while standing south of the border? At the rehearing, ⁵ the court decided that he could not. Hernández was an alien, outside the United States, and without a “voluntary connection” to the country. The presence of all three factors barred the possibility of extending fourth amendment rights to the victim. Additionally, qualified immunity shielded the shooter from any claim under the fifth amendment, thus fully preventing the family from suing.

While the decision was eventually dismissed by the Supreme Court, the judicial reasoning at work here deserves greater scrutiny. In order to determine the applicability of the fourth amendment to the case, the Fifth Circuit began by distinguishing Hernández and his location from others that would lie under its jurisdiction: a US citizen within the United States. It then followed with a second operation that further distinguished Hernández from an alien “with a voluntary connection.” What constitutes a “voluntary connection” for an alien outside the United States is not easy to say, but at a minimum, the alien must be an immigrant, meaning that he must be aware of being outside the border. Had Hernández been a green card holder on a brief trip to Mexico, the case could have been decided under different grounds. But even after the second operation the court could have carried a third and given Hernández a positive status. During the first hearing, the panel had done so and found that the killing could have violated the fifth amendment because Hernández was a “civilian killed outside [emphasis added] an occupied zone or theater of war.” (Hernandez v. United States, 2014: 268–69). In this case Hernández was distinguished from an enemy fighter, and Juárez was described as a territory at peace, thus acquiring a more specific characterization than just being outside the United States. ⁶ During the rehearing, however, Hernández’s status as a civilian was not considered and no constitutional violation was found.

Of course, the entire process is grossly inconsistent with human rights law. As a human being, Hernández must possess a status which, at a minimum, makes his killing different than that of an animal. But to conclude that the decision made Hernández less than human would be mistaken. The court did not deny Hernández's humanity. Instead, he was coded as a subject within a system where humanity is not a meaningful concept, unlike in human rights law. This is a binary system that can only give two answers: one is either American or not. Having established that, the court carried out a second operation and determined what else Hernández was not, and that is an alien with a “voluntary connection.” In this sense, the court’s treatment of the extraterritorial location of the shooting is more complex than a territorial repartition between outside and inside. Immigration and constitutional law are both at work here, because they perform a double exclusion through the same operation: Hernández is outside the constitution because he is outside immigration law.

The court did not tell us what would have happened had Hernández been a US resident, but only that the possibility of distinguishing him from such an individual determined his exclusion. This turned his location into a double negative. The court acknowledged a lack of law, and it reaffirmed it as such. They argued that the border prevented the case from entering their jurisdiction, but also that it remained under no one else’s for the very same reason. Furthermore, as a result of the two operations they left us with a third possibility: a subject who may be less foreign, on a territory that would not be outside as much. This is the immigrant, or the subject of immigration law.

Excessive laws

As Hernandez illustrates well, the relation between immigration law and space cannot be reduced to a mere matter of designation, where a certain space is “outside” and another is not. A space may only be described in relation to the legal status of the lives who occupy it, in the sense that we are never looking at an empty space or at a placeless life, but always at the mutual relation between the two. Thus, geography here does not help us to designate a space, but more appropriately it is the tool to interpret the spatialized relation between immigration and constitutional law. Immigration law exists as a space unbound, which is in excess to constitutional law. Its very designation as an autonomous body of law indicates it, as these are cases that are not decided under ordinary rules (Motomura, 1990). To quote from Valverde (2009), the problem here is not just one of scales but of jurisdiction. The immigration case is decided under a separate body of law not simply because of a geographic location, but because of the interaction between an authority, its subject, and a territory.

Hernandez is a good starting point exactly because it is outside immigration law, and it shows this relation with clarity. In this case the border is both a physical and legal boundary, as it designates the end of the constitution and of the country’s territory at once. But once the aliens cross it they leave this emptiness behind, and they begin to benefit from a certain access to the constitution while never being fully inside of it altogether. Hence, immigration law re-enters the country whilst following them, and it reproduces foreign space inside, preventing the constitution from applying uniformly across the interior. It is this peculiar structure that is the object of this article. As the relation of outsideness re-enters the country, foreign folds begin appearing across its territory.

Ideally, the alien who enters is accorded “a generous and ascending scale of rights as he increases his identity with our society” (Johnson v. Eisentrager, 1950: 770). This statement is partly inadequate today, as the “identitarian” scale cannot fully encompass the logic behind the production of statuses. However, it still captures the idea of a ladder that distributes degrees of legal protection to the alien population, which is partitioned across a hierarchy of personalities each closer to the ultimate status of the citizen which remains outside immigration law (see Menjívar and Lakhani, 2016). But the alien always carries a certain constitutional void, meaning a certain extraterritoriality where the constitution does not fully apply, and immigration law regulates this foreign space inside. For this reason, the extent of constitutional protections that are available to aliens during their immigration proceedings is difficult to determine, because even though they do have some rights, this is never a full integration of their lives into the Bill (Heeren, 2014).

Instead, the aliens’ condition is regulated through statutory law, ⁷ which distributes privileges to immigrants while leaving constitutional questions largely unanswered (see Motomura, 1990). Statutory law fragments the alien population across statuses, each bearing different privileges and rights, and this allows courts to escape plenary power while also avoiding grounding their rulings on a firm constitutional territory (Heeren, 2014). With time, the demise of plenary power has made immigration law less alien to the constitution itself, and quite more entangled in a game of catch up, where judicial interpretation often consists in wondering loudly whether we are still on the frontier or have already crossed the threshold. As a result, immigration law has developed as an abnormal body of law, where courts rarely decide their cases under constitutional grounds (Lindsay, 2016). Instead, immigration cases are generally decided through statutory construction and administrative law, thus leaving aliens on shifting and perilous grounds (Kim, 2017).

However, the “normalization” of immigration law, meaning the departure from the “exceptionalism” of plenary power, does not imply a mutual exclusion between plenary power and the constitution. To picture their relation as such is a modernist idea, whereby “progress” is thought of in terms of a territorial extension, with the constitution “conquering” the space of plenary power beyond the border. Instead, immigration law exists at once on both sides, and it reproduces itself through its uncertainty that makes us lose our orientation. Thus, the departure from the “exceptionalism” of plenary power corresponds precisely to the normalization of this uncertainty, and of the paradoxical relation between the normalcy of the inside and the exceptionality of the outside (see Hussain, 2007). What we witness is the re-entering of immigration law into the country, which does not result in the displacement of the frontier.

Quite differently, as immigrants are brought inside their spaces are re-bordered, with an entrenching of immigration law that creates multiple distinctions and subclasses to partition the foreign population (Eagly, 2013:  1137-38). Immigration law maintains its fundamental property of establishing an outside, but it does so from within, making the threshold an immanent condition of life across the entire legal space. Hence its complexity: “Much of the obscurity which surrounds the rights of aliens has its origin in this confusion of diverse subjects” (Techt v. Hughes, 1920:237). The subjects that are so constructed are distinguished on the basis of the rights and protections that they enjoy. Each legal status is the result of an operation where a certain privilege is distributed to a group of aliens at the expenses of another. Hence, each status is the result of an operation of bordering, meaning that each operation establishes an inclusion through an exclusion, leaving someone outside and someone inside in relation to what is being distributed.

To take a quick look at how this process works in practice, let us briefly consider certain characteristics of removal proceedings under the Immigration and Nationality Act (INA) and the Code of Federal Regulations (CFR). First, across the alien population we extract the group of those who lack a right to stay, which makes them removable. From this group, we distinguish those who are deportable, as they had been previously admitted, and those who are inadmissible, as they were never admitted in the first place. The former group has several advantages in removal proceedings, particularly if they are Legal Permanent Residents. They do not bear the burden of proof (CFR §1240.8(a)), and they have lesser requirements for being eligible for relief from removal (INA §240A(a)). They may be detained, but they maintain a right to a bond hearing (INA §236(a)). However, those immigrants who have been rendered deportable due to a criminal conviction might belong to another sub-group (INA §236(c)(1)). These are mandatorily detained and cannot be released until the completion of their removal proceedings. From this group we extract another one, those convicted for “aggravated felonies,” as they also lose eligibility for cancellation of removal which makes their deportation virtually unavoidable (INA §240(a)(3)).

I could continue, but the point is to observe how the system operates through the repetition of a simple operation, which ends up producing a very complex scenario. Each right or privilege that is assigned to a group is accompanied to the exclusion of another, because the operation is always binary, and can only perform an inclusion through an exclusion. Each operation establishes a norm through its exception, as each protection is made meaningful and possible by the construction of an exception from its application (Agamben, 1998: 20–25). The operation mirrors the original split between citizens and aliens and reproduces it across the immigrant population, creating a hierarchy of statuses among them. Importanty, the meaning of these statuses cannot be found through identity but only through difference, by describing each status in opposition to its counterpart. To account for this structure, I quote from Roberto Esposito and his research on Roman law:

A category defined in juridical terms, no matter how broad, becomes meaningful [emphasis added] only thanks to the comparison and indeed the opposition with another category from which all other categories are excluded. Leaving aside its breadth, inclusion only makes sense to the degree to which it marks a limit beyond which there is always someone or something. (2012b: 23)

Geographically, these two conditions correspond to the tension between the border and the frontier. As the border separates two discrete entities, it gives a sense of certainty in respect to the separation that is performed. And yet, this certainty can never expand beyond a binary relation between two aliens, and it does not correspond to a clarity of one’s location within the country. The space where all these borders are made and unmade is the frontier. This is a territory that does not sit on a line separating two countries or people, but in a land that is neither inside nor outside, foreign in a domestic sense. The frontier is the space at the edge, whose boundaries shrink and expand unpredictably, and whose inhabitants cannot be fully accounted for.

The alien and the native

Perhaps, it is already evident by now how in the analysis above I am deliberately playing with the ambiguity of the term “outside.” To be outside could either mean being outside the country or outside the protection of a status, and I began with Hernandez because in that case the two meanings coincided, while they do not elsewhere. I focus on this fracture to highlight how an excessive de-territorialization might lead to paradoxical conclusions, as we shall see in the case of Barton v. Barr. But before diving into that case I must further discuss how the law relates to territory, meaning how the law uses one’s physical location to guide the production of statuses.

In the early 20th century, immigration law developed while distinguishing between immigrants inside and outside the country’s borders, leaving the latter in a less favorable position (Coleman, 2012). Whenever immigration authorities set out to remove someone, they would have to distinguish between those who were already inside, who would be “deported,” and those seeking admission at the border, who would be “excluded.” Within this structure, the separation between “outside” and “inside” appears to be neat, as one’s legal status has a direct correlation with a physical location. Nevertheless, two exceptions from the rule were rapidly identified. First, whenever incoming immigrants would be brought inside the country to decide on their removal, their presence would not be acknowledged, and they would be treated as if they were still “outside.” Second, when permanent residents would briefly leave the country and come back they were not treated as applicants for admission, thus preventing them from being entirely “outside” even when physically outside the country. These two possibilities where one’s legal and physical location do not coincide are known as the “entry fiction” (see Lee, 2021).

In 1996, this process made a leap forward with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act, which conflated deportation and exclusion into one proceeding, removal. The distinction between the two was transferred from the type of proceedings to the grounds under which aliens could be removed. Those who had been legally admitted would only be removable under grounds of “deportability,” and they would benefit from greater safeguards. Conversely, all those seeking admission at the border, and those who made it inside without having been admitted, would be removed on grounds of “inadmissibility.” The distinction switched from the physical border to the administrative process of entry, therefore bestowing an “outsideness” to all the “illegal” aliens who made it inside the country while eluding border control (Coleman, 2012).

Under this expansion of the entry fiction, it appears that inadmissible aliens in the country are legally “outside.” However, this is only true when we look at their status in opposition to those who are deportable. If we focus on their binary relations with other categories, the result changes. Among the non-admitted there is yet another group, the aliens who may be expelled through “expedited removal.” Expedited removal may be used against immigrants at a port of entry, and against those who have “illegally” entered fewer than two years earlier. ⁸ It offers even less procedural rights, as immigrants are immediately removed without seeing an immigration judge (CFR §235.3(b)(2)(ii)). ⁹ No doubt, these aliens are “outside” when comparing them to the rest of the inadmissible population.

In other words, the concept of “outside” must not be confused with an actual geographic location. Instead, it functions as a supplement ¹⁰ that allows immigration law to perform its operations. While there is a historical and geographic connection between the outside and the US border, this does not work as a limit for the law, meaning that there is no overarching principle forcing the law to rely on a definition of “outside” that is external to its own system. Instead, the “outside” identifies the negative outcome of a binary operation. Its definition is a tautology, because it lacks meaning outside of the operations that use it to produce their effects.

Borrowing from Esposito again, this structure can be best conceptualized as an immune mechanism (2011). The law’s purpose is to establish an inside, and to protect it through the exclusion of what lies beyond. But in doing so, the very integrity of the national space is violated. To reject the outside, the law integrates it as a supplement for its operation, thus reproducing foreign folds in the interior with the purpose of preventing the border from fading. Therefore, the constitution’s integrity and the country’s borders are protected from the unruliness that lies beyond by integrating that very unruliness within the law, potentially making every legal case extra-constitutional and every space inside the country extra-territorial.

If we go back to the origins of immigration law, the nature of this paradox is sufficiently clear. As discussed, plenary powers were first applied against the American Indian Tribes. This signifies that Native Americans are the very first aliens in US history, as they stand outside the territory of the outsiders, who are bringing their own country with them. This is the birth of immigration law, as the impossibility to establish an outside, and the extension of the frontier to the country. It is as if the outsiders, who are conscious of their alienage, have no other way to establish their community but to include the Native Americans in an antinomic relation: so that the distinction between alien and Native is already a paradox. The Native is brought inside, as the internal territory of the country cannot be maintained if not by allowing it to be outside of itself. Thus, no life and no land is truly in or out, and they are all caught in the paradox which is the very condition for the law’s existence. Within this structure, uncertainty is not an incidental byproduct, but the very condition for the law to apply and reproduce.