Discipline and Commoditize: How U-Visas Exploit the Pain of Gender-Based Violence

Abstract

U-Visas are granted to immigrant survivors of gender-based crimes. I use critical discourse analysis to examine 100 U-visa cases. I present two arguments. First, U-Visa adjudication establishes a panoptics of pain that disciplines survivors. The panoptics of pain transforms immigrant suffering into objects of scientific knowledge. Second, U-Visas establish an economy of pain that commoditizes survivors’ suffering. The economy of pain establishes transactional exchanges between immigrants and state agencies while generating economic profits for carceral corporations. I conclude with microlevel policy reforms to make U-Visas less exploitative of petitioners, and macrolevel policy reforms to empower working-class immigrants and prevent gender-based violence.

Keywords

gender-based violence immigration U-Visa criminalization of immigration crimmigration

Introduction

The United States witnessed spectacular state violence against immigrants under Donald Trump’s presidential administration. Where previous presidential regimes surreptitiously inflicted violence against immigrants under the guise of a progressive immigration agenda, Trump’s regime has made a spectacle of institutional xenophobia, using it to the fan the flames of a conservative voting base. Almost since the day the President took office, images and sounds of children in cages and crying parents have flooded news media. Under the Trump administration, state agencies have enacted direct and indirect forms of violence against immigrants. Direct forms of xenophobic state violence include the policy of family separation at the border, and increased raids, detentions, and deportations. Indirect and deeply gendered forms of state violence against immigrants include the repeal of gender-based asylum and the constriction of the U-Visa program – policies that have effectively caged immigrant women within abusive families and intimate relationships.

The U-Visa is a 4-year visa granted to survivors of gender-based crimes who assist in criminalizing their perpetrators. Created in 2000 through the Violence Against Women Act, U-Visas reconcile divergent state imperatives to protect survivors and punish perpetrators of gender-based violence. A cursory examination reveals how the visa expands the state’s dominion over the perpetrators of gender-based violence—Trump’s “bad hombres.” Petitioners are required to assist in criminalization, and thus to indirectly further the state’s racialized and gendered regimes of mass incarceration and mass deportation. This paper poses a different set of questions—how do U-Visas expand the state’s dominion over the survivors of gender-based violence—the very people they were designed to benefit? How does the adjudication of U-Visas regulate immigrant entry into the state? How might adjudication processes empower immigration agencies while disempowering survivors of gender-based violence? If petitioners are explicitly required to further the state’s carceral agenda, what other agendas might U-Visas implicitly rope petitioners into?

This paper answers these questions through a critical discourse analysis of U-Visa decisions authored by the Board of Immigration Appeals (BIA). My sample is comprised of 100 BIA decisions on petitioners’ appeals of U-Visa rejections. I argue that U-Visas are fundamentally exploitative of the immigrant survivors they were designed to benefit. I show how adjudication creates new opportunities for state agencies to enact power over immigrant populations. Adjudication disciplines and commoditizes immigrant petitioners, advancing the interests of state agencies and carceral corporations at survivors’ expense.

I structure my analysis around two key concepts: the panoptics of pain and the economy of pain. The panoptics of pain transmutes individual pain into legally knowable injury. Immigration agencies discipline survivors of gender-based violence by knowing their deepest wounds and translating them into commoditizable objects of knowledge. The economy of pain transmutes corporal pain into corporate profit. U-Visas transactionalize gender-based violence against immigrants. Survivors sell their pain to immigration agencies in exchange for legal status. Immigration agencies discipline survivors into receiving pain by rewarding those who have endured unendurable violence with legal status. Carceral corporations exploit survivors’ pain to incarcerate abusers and increase economic profits. I conclude the paper with microlevel recommendations to make the U-Visa program less exploitative of petitioners and macrolevel recommendations to empower working-class immigrant women and reduce the incidence of gender-based violence.

State Violence Against Immigrants Under the Trump Administration

The Trump administration has enacted a series of anti-immigrant reforms, key aspects of which are summarized below.

Building a Wall Against U-Visas

Under the Trump administration, a highly emboldened Department of Homeland Security (DHS) changed the U-Visa protocol and made the application process more challenging for petitioners. In July and August 2019, DHS issued ICE Directive 11005.2, “U-Visa Law Enforcement Resource Guide for Federal, State, Local, Tribal And Territorial Law Enforcement, Prosecutors, Judges, And Other Government Agencies” (U.S. Department of Homeland Security, 2019). As suggested by the document’s title, the intended audience (and beneficiaries) of the new directive are not visa petitioners but state agencies. The key changes introduced by the directive are as follows.

Form-B certification

The new directive makes Form-B certification more challenging for petitioners. “Form-B” is a key component of U-Visa applications, certifying that the petitioner has been or is likely to be helpful in criminal prosecution. Petitioners are required to have Form-B attested by a “certifying agency.” According to the new directive, only law-enforcement or agencies involved in criminalization will now have the authority to certify Form-B (U.S. Department of Homeland Security, 2019). This change is detrimental to petitioners who may receive greater support from social services agencies than from police. Furthermore, the new directive explicitly states that law-enforcement agencies are under no obligation to certify Form-B if they do not feel so inclined (U.S. Department of Homeland Security, 2019). This change hurts petitioners’ chances of success, as without a certified Form-B, a petition is considered incomplete.

Stays of removal

The new directive hurts U-Visa petitioners who are facing removal. Prior policy required Immigrations and Customs Enforcement (ICE) to request U.S. Citizenship and Immigration Services (USCIS) for a prima facie evaluation of a U-Visa applicant who was facing removal. If USCIS’s initial evaluation was favorable, ICE would be required to issue a Stay of Removal for the petitioner, effectively halting removal proceedings. Under the new directive, ICE is no longer required to request USCIS for a prima facie evaluation. Instead, ICE has absolute discretion to “decide whether a Stay of Removal or terminating proceedings is appropriate” (U.S. Immigration and Customs Enforcement, 2019). This means that petitioners whose U-Visa applications are pending at USCIS can be removed from the country without any consideration for their pending application.

Disbelieving survivors of gender-based violence

The new directive claims that petitioners may be “staging” gender-based violence to appear eligible for legal status. ICE encourages law-enforcement agencies to report “fraud and misuse” of the U-Visa program to USCIS, including instances of “Individuals reporting qualifying crimes that did not take place” and “Individuals staging qualifying crimes to appear eligible” (U.S. Department of Homeland Security, 2019, p. 12). This framing perpetuates a culture of disbelieving survivors and thus normalizing gender-based violence.

Attacks on VAWA

The Violence Against Women Act (VAWA) has remained a partisan issue since its inception in 1994. President Trump has been predictably hostile to VAWA. In his 2018 budget proposal, the President outlined phasing out VAWA altogether over a 10-year period (Stupakis, 2019). In Congress, the Senate has obstructed the reauthorization of VAWA. Congress should reauthorize VAWA every 5 years, but Republicans thwart this process, resulting in delays. Most recently, VAWA expired in December 2018 during a government shutdown. The parties dueled over gun control. Democrats proposed banning gun ownership for convicted perpetrators of domestic violence and alleged that Republican opposition to the same stemmed from pandering to the gun lobby (Levine & Everett, 2019). In April 2019, the Democrat-controlled House voted to reauthorize VAWA (Killough, 2019). However, by November 2019, the Republican-controlled Senate had still not approved the move (Udoma, 2019).

Repealing Gender-Based Asylum

Both U-Visas and gender-based asylum are legal mechanisms designed to benefit immigrant survivors of domestic violence. Yet, there are important differences between the two. First, U-Visas and gender-based asylum are separate legal instruments. As the name suggests, the U-Visa is a nonimmigrant visa, while gender-based asylum is a type of refugee status. Second, the two instruments are administered by different bureaucracies. The USCIS administers U-Visas, while the Office of Refugee Resettlement (ORR) administers gender-based asylum. Third, U-Visas are granted to those who have suffered gender-based crimes within the United States or its territories, while gender-based asylum is granted to those who suffered gender-based violence in their country of origin. The Trump administration has repealed gender-based asylum, a hard won legal protection for immigrant survivors of gender-based violence. On June 18, 2018, Attorney General Jeff Sessions argued in Matter of A-B- that surviving domestic violence or gang violence “cannot itself establish an asylum claim” (Molina et al., 2019, p. 1). Sessions’ ruling overturned the precedent from Matter of A-R-C-G- in 2014, which established gender-based violence as a basis of asylum. Policy experts described Sessions’ move as a “racist, misogynistic, and dehumanizing” decision (Haynes, 2018).

The Trump Administration’s Xenophobic Executive Orders

Immediately upon assuming the presidency, Trump authorized a series of anti-immigrant executive orders. The first, titled the “Interior Order,” targeted immigrants inside the country (Executive Order No. 13,768, 2017). The Interior Order expanded the category of “criminals” prioritized for removal to include noncitizens who had been merely charged with a crime or minor violation (Harvard Immigration and Refugee Clinical Program, 2017). The second executive order pertained to “Border Security” (Executive Order No. 13,767, 2017). In implementing this order, ICE escalated mass detentions at the border, separated children from their parents (Montoya-Galvez, 2019), and expedited the removal of asylum seekers (Tahirih Justice Center, 2017). The third executive order came to be known as the “Muslim Ban” (Executive Order No. 13,769, 2017). The earliest version of this order banned the entry of all Muslims—including U.S. permanent residents—from seven Muslim-majority countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen; Ng & Stamper, 2018). The federal judiciary challenged the order’s constitutionality on the grounds that it targeted a specific religious group (Niayesh, 2019). Subsequently, the Trump administration revised the order to target to five Muslim-majority countries (Iran, Libya, Somalia, Syria, and Yemen) (Ng & Stamper, 2018) and two countries that are not Muslim-majority (North Korea and Venezuela; Niayesh, 2019).

On Constructing Immigrant “Victims”

Governing Immigrants Through Gender and Crime

The criminalization of immigration is not unique to the Trump administration. Scholars note that since the 1980s, immigration law has been increasing criminalized (Chacón, 2009; Hernández, 2013; Kanstroom, 2003; Legomsky, 2007; Stumpf, 2006). The term “crimmigration” highlights the increased synchronicity between state practices of regulating crime and migration, including the increased prosecution of minor violations (Chacón, 2009; Kanstroom, 2003) under criminal rather than civil law (Miller, 2002), and with a lack of procedural protections for offenders (Ortega & Lasch, 2014, p. 258). Crimmigration is highly racialized, with 90% of those detained and removed being Latinx (Vázquez, 2015).

States employ an array of gendered tactics to criminalize and enact violence against immigrant populations, ranging from coercive violence to consensual disciplining. Immigration enforcement in the United States targets largely Latinx men, constituting a “gendered racial removal program” (Golash-Boza & Hondagneu-Sotelo, 2013). The United States enacts transphobic violence against transgender immigrants (Gehi, 2012; McKinnon, 2016) and targets women and children in employment- and residential-raids and sexual harassment by immigration officials (Sampaio, 2015; Terrio, 2015). The state enacts indirect violence against immigrant women by deporting them to abusive contexts (Dingeman et al., 2017).

The growth of carceral regimes and the concomitant decline of regimes of care has given rise to an era of what I refer to as “carceral-care,” where disciplinary tactics intertwine state repression with state care. Carceral-care programs are designed to promote the material and psychological well-being of carceral populations. For example, correctional incarceration is increasingly common as a penal strategy (Hutchinson, 2006), including, paradoxically, for women survivors of gender-based violence (Pollack, 2007). Many states in the United States have increased expenditures on prisoner reentry and reintegration programs (Cole, 2011) as a means of providing economic care to former prisoners. The Office of Refugee Resettlement oversees the detention of immigrant children. ORR officials insist that detention programs for unaccompanied children are care-providing facilities, claiming, “This is NOT detention” but “custodial care” (Terrio, 2015, p. 105). Alternative-to-detention programs use discourses around family and motherhood to subject immigrant women to extraordinary surveillance while sparing them outright detention, deportation, and removal (Gómez Cervantes et al., 2017). U-Visas grant survivors legal status if they consent to extensive disciplining and advance the carceral agenda. In doing so, U-Visas preserve the contradictory desires of the state to remove immigrants and to conditionally accept them.

Is carceral-care actually humanitarianism, or is carceral-care actually coercion in the guise of humanitarianism? “Behind-the-veil” analogies do not do justice to the paradoxical nature of carceral-care programs. Borders are neither fully open nor closed, but generally exclusionary with exceptional “conditions of permeability” (Aas, 2011). Immigrant status, too, exceeds the insider/outsider dichotomy, constituting a spectrum of “liminal legality” (Menjívar, 2006). Similarly, carceral-care programs are neither purely coercive nor purely consensual, but contain elements of both coercion and consent, care and incarceration.

Victimizing Immigrant Women

States govern immigrant populations through knowing immigrant sex, portraying foreign women as hapless victims in the process (Davidson, 2006; Duschinsky, 2013; Shdaimah & Leon, 2015). Across European countries, including Denmark (Plambech, 2014), France (Ticktin, 2011), and the United Kingdom (Canning, 2017; Gedalof, 2007), states frame gender-based violence against immigrants as a racially unique phenomenon. States depict immigrant women as victims of their “backward cultures”—with “culture” serving as thinly disguised shorthand for racial difference. In the United States, too, “the perfect victim is ‘exotic’; she represents difference, escaping her backward community, culture, and country to join and be saved by ‘us’” (Nayak, 2015, p. 15; emphasis original). Racialization of gender-based violence abroad enables counter-racialization of the receiving state — “[t]he United States imagines itself in the pastoral role of father, protector of women and children” from “bad men” ( McKinnon, p. 33) or as Trump refers to them, “bad hombres.” The representation of certain crimes as racially and culturally exceptional opens an equally exceptional aperture in the border to let in the victims of those crimes. Gender-based asylum and U-Visas are exceptional measures in the contexts of “zero-illegal immigration” in Europe (Ticktin, 2011, p. 132) and “zero-tolerance policy” in the United States, requiring asylees and petitioners to have suffered exceptional forms of harm.

Immigrants seeking U-Visas or gender-based asylum must perform victimhood to gain legal entry or make political claims, constituting a form of victimhood-as-politics. Within liberal right regimes, claiming injury has become central to the process by which individuals or groups claim rights (Brown, 1995). Some argue that in the contemporary United States, “victimhood seems to have become a status that must be established before political claims can be advanced” (Horwitz, 2018, p. 553). Some scholars offer a sympathetic view of victimhood-as-politics, arguing that discourses of victimhood can foster radical political mobilization (Jaoul, 2013). Other scholars are skeptical, arguing that victimhood-as-politics individualizes and pathologizes structural violence (Pollack, 2007); “[recreates] the kind of politics that bore victimhood in the first place” (Jacoby, 2015, p. 529); essentializes traumatic experience by expecting narrative coherence (Borg, 2018); relegates women to passive victimhood (Zetes, 2015); relies on the dichotomy between “woman-as-victim vs. woman-as-agent” (Picart, 2003, p. 118); and differentiates “pure” deserving victims from agentic, underserving victims (Fohring, 2018).

Domestic Violence Against Immigrants

What are immigrant women “victims” of? Following epidemiological discourse, it is customary to speak of women’s “vulnerability” to domestic violence, similar to describing an individual’s “vulnerability” to a biological pathogen. This language frames gender-based violence as an individualized pathology rather than a consequence of structural disempowerment. High rates of domestic violence against immigrants require structural explanations (Dominguez & Menjívar, 2014). Immigrant women’s disempowerment in personal relations with men is a product of their economic and legal disempowerment. Undocumented immigrant women are forced to undertake low-wage, exploitative labor, contributing to their dependence on personal relationships with men (Erez et al., 2009). Historically codified as “cheap labor,” immigrant women suffer racialized and gendered forms of economic destitution, doing underpaid domestic work (Milkman et al., 1998) or similar “brown collar” jobs (Catanzarite, 2000).

Immigrant women are legally disempowered, facing challenges in filing protection orders against abusers (Messing et al., 2017) and dependent on men because of family reunification law (Menjívar & Salcido, 2002). Owing to fears of deportation, domestic violence is underreported in immigrant communities and varies with legal status (Ammar et al., 2005). These fears are not unwarranted, especially following the changes introduced by the Secure Communities or “S-Comm” Program. “S-Comm ensures that fingerprints for every person booked into jail are compared against federal immigration databases so that ICE officials can choose whether they wish to issue immigration detainers” (Armenta, 2017, p. 147). Emboldened by the Secure Communities Program (Gill, 2013), police carried out “dual arrests” in domestic violence cases (Shapiro, 2002), leading to ICE detentions for some survivors (Hartry, 2012) who risk losing custody of U.S.-born children if deported (S. M. Wood, 2004).

Gendered Discipline in U-Visas

An examination of U-Visas is potentially fruitful for understanding the gendered and racialized criminalization of immigrant populations; the use of victimization for making legal claims; and paradoxical nature of carceral-care programs. The U-Visa’s contradictions are not coincidental. By design, U-Visas were created as a compromise between Congress’s desire to “save” immigrant women and the DHS’s desire to deport immigrant men. Even at the time, it was a difficult compromise that encountered significant delays. While Congress authorized U-Visas through the Violence Against Women Act II in the year 2000 (Shaw, 2008), DHS finally created the visas in 2007 after being sued by immigration law groups (Farb, 2007).

U-Visas privilege state interests by requiring petitioners to help state agencies prosecute their perpetrators (Nanasi, 2018). Evidence of assisting law enforcement has to be certified by the head of a state agency on “Form B,” a part of the U-Visa application that is highly burdensome for petitioners (Abrams, 2009) and renders them vulnerable to further state policing (Kelly, 1997). Law-enforcement agencies are a major obstacle to immigrant survivors’ success, as they are either slow to respond to domestic violence cases (Messing et al., 2017); choose not to interfere at all (Erez et al., 2009); carry out dual arrests and thus render survivors ineligible (Shaw, 2008); or refuse outright to certify applications (Hipolito, 2010). Since Congress made a deal with the devil, perhaps “the marginalization of immigrant victims’ interests should have been foreseen” (Nanasi, 2018, p. 273).

Trends, Data, Case Selection, and Method

Trends

Petitioners’ demand for U-Visas exceeds the short supply (see Table 1). The annual quota for U-Visas is 10,000 for survivors and 8,000 for survivors’ families (18,000 in total). In 2017, nearly petitioners filed nearly 62,000 applications, while USCIS approved only around 18,000 (Table 1). Since the program’s inception, annual applications have increased six-fold (Table 1). Total pending cases, around 190,000, are higher by about 40,000 than the total approved cases, around 153,000 (Table 1). The rejection rate is low. Since 2007, over 150,000 petitions have been approved and fewer than 39,000 rejected by USCIS (Table 1). In 2017, only 17.5% of cases (3,773) were rejected out of those that were processed (approved in addition to denied).

Table 1.

U.S. Citizenship and Immigration Services Decisions on U-Visa Petitions by Year (Victims and Families).

Year	Received	Approved	Denied	Pending
2009	10,937	8,663	846	21,138
2010	17,160	19,388	6,923	13,645
2011	26,801	17,690	4,574	18,513
2012	39,894	17,543	4,331	35,491
2013	43,695	18,228	3,269	58,496
2014	45,268	18,520	7,073	79,009
2015	52,666	17,688	4,680	110,303
2016	60,710	17,937	3,161	150,604
2017	61,686	17,726	3,773	190,361

Source. Adapted from U.S. Citizenship and Immigration Services (2019).

Figure 1 depicts trends in the applications received, approved, denied, and pending. These are the total numbers of U-visas for victims as well as those for families of victims. The current quota can only meet the needs of a fraction of the total number petitioners (Figure 1).

Figure 1.

U.S. Citizenship and Immigration Services decisions on U-Visa petitions by year.

In Figure 2, the number of cases rejected appears short (solid black) relative to the number of cases approved (solid white). This shows that the majority of cases that are processed are accepted rather than rejected. These are the total numbers of U-visas for victims as well as those for families of victims.

Figure 2.

U.S. Citizenship and Immigration Services decisions on U-Visa petitions by year, pending cases excluded.

Data, Sample, and Case Selection

Owing to the prevalence of domestic violence in immigrant communities, I focus specifically on cases pertaining to domestic violence and not any of the other 27 other qualifying crimes for the U-Visa.¹ I examine 100 judicial decisions on appeals to rejections of U-Visa petitions. These decisions are authored by judges on the BIA, a federal agency under the Department of Justice.² Immigrants submit petitions for the U-Visa to the USCIS. If USCIS rejects a petition, the petitioner may file for an appeal with the BIA within 30 days. The USCIS’s decision-making process is largely bureaucratic, with a few lines of justification provided for rejections. In contrast, immigration judges’ decisions on appeals are the only moment of judicial interpretation in the U-Visa adjudication process and thus offer great insight into the program’s governing imperatives. Judges review cases “de novo” (“anew”), or without consideration for the USCIS’s reasons for rejection, providing great insight into the real meaning of the visa’s eligibility criteria. These data allow us to see how judges interpret U-Visa requirements and how the requirements are operationalized in state practices.

To locate and select my sample, I searched the LexisNexis database for (“FORM I-918” AND “PETITION FOR U NONIMMIGRANT STATUS” AND “domestic violence”), using the database’s filters to include both “BIA precedent” and “BIA non-precedent” decisions. This yielded a total of 332 results. My sample comprises of the first 100 of these cases, ranked in descending order of relevance by the database. (“Relevance” of cases in this article refers to the rank-order established by the database.) 100 cases yielded 520 pages of data, with each case averaging around five pages or 2,500 words. I reviewed these cases in the rank-order determined by the database and included the number of cases that allowed me to reach sample saturation. Among the last 23 cases I reviewed, (the 23 least “relevant” out of the 100 in my sample,) seven did not pertain to the specific crime of domestic violence; 12 pertained to inadmissibility; and only four cases included discussion of the petitioner’s injury in a domestic violence case.

The 100 cases in my sample date from 2010 to 2016 (see Figure 3). My sample included one case was from 2010; 21 cases were from 2011; three cases from 2012; eight cases from 2013; 32 cases from 2014; 32 cases from 2015; and three cases from 2016 (Figure 3).

Figure 3.

U-Visa cases in sample by year.

By country, the 100 cases pertained to petitioners from Mexico (35), Haiti (10), El Salvador (8), Guatemala (5), Honduras (2), India (2), and one each from Armenia, China, Czech Republic (CR), Dominican Republic (DR), France, Germany, Jordan, Kenya, Lithuania, Nepal, Nigeria, Tanzania,Venezuela (13) (Figure 4). Country of origin was not available (N/A) for 25 other cases (Figure 4).

Figure 4.

U-Visa cases in sample by country. CR = Czech Republic; DR = Dominican Republic.

By region, the cases pertained to Latin America (63), Asia (six), Europe (three), and Africa (three) (Figure 5). Country of origin was not available (N/A) for 25 other cases (Figure 5).

Figure 5.

U-Visa cases in sample by region. N/A = not available.

Method

I employ the method of critical discourse analysis to examine the data. Critical discourse analysis examines “opaque as well as transparent structural relationships of dominance, discrimination, power and control as manifested in language” (Wodak & Meyer, 2001). Critical discourse analysis “focuses not only on texts, spoken or written, as objects of inquiry . . . [but offers] a theorization and description of both the social processes and structures which give rise to the production of a text” (Wodak & Meyer, 2001; emphasis added). As a critical methodology, discourse analysis locates “the repetition of concepts or meanings” while recognizing that meanings are contextually specific (L. A. Wood & Kroger, 2000). Within critical discourse analysis, all research processes—data-collection, analysis, and writing—are considered interpretive.

Critical discourse analysis “involves repeated readings of the text, the redoing of analyses both in the analysis and write-up stages” (L. A. Wood & Kroger, 2000). Using this method, I undertook several rounds of analysis that cycled back and forth between theory and data. I began with a broadly framed research question about the relationship between the victimization of survivors and state regulation of immigrant populations through U-Visas. I then located the BIA appeals data. Prior to the first round of coding, I read literature on gender and crimmigration (Aas, 2011; Golash-Boza, 2015; Menjívar, 2006). I then coded the 50 most “relevant” cases as ranked by the LexisNexis database. In the first round of coding, I familiarized myself with the data and developed a broad set of thematic codes pertaining to victimization, criminalization, injury, performance, and state violence. Then, I wrote several memos about the gendering of criminality, injury, and victimization. In the writing process, more specific themes emerged. I then conducted a second round of coding in which I expanded my sample to include the next 50 most “relevant” cases as ranked by the database, making for a total of 100 cases. In the second round of coding, I recoded the first 50 cases as well as the new 50 cases. I coded these with a narrowed set of themes around injury and state violence. I then engaged with theories of crime and punishment, feminist theory, and economic theories of value. At this stage, I wrote a full draft, which I re-read and edited. In the final round of coding, I focused on the theme of the construction of injury through the processes of homogenization and quantification of injury.

Glossary of Key Conceptual Terms

I develop the following key concepts to structure my analysis.

Discipline

Discipline is a subtle form of power that is not imposed from above or outside, but comes from below or inside the person that it governs. Institutions and authorities inculcate desirable behavior in their subjects through disciplinary techniques. Institutions enact coercive techniques of power against the will of their subjects. In contrast, disciplinary techniques rely on the will, agency, and desires of those whom they subject.

Rewards

Rewards are a form of discipline that incentive desirable behavior and dis-incentivize undesirable behavior. By monitoring, measuring, and selectively recompensing behavior, rewards use the desire of the subject to discipline them.

Commodities

Commodities are objects or services with two key characteristics—they are useful and exchangeable.

Commoditization

Commoditization refers to the process by which human activity is transformed into an exchangeable commodity.

Panoptics of Pain

I develop the concept of panoptics pain to describe how states govern vulnerable populations by acquiring knowledge of gendered and sexual pain. The panoptics of pain is a realm where individual pain becomes an object of knowledge. In this realm, state agencies discipline subjects through a seemingly ceaseless interrogation of their deepest wounds. The panoptics of pain “homogenizes pain to construct injury.”

Homogenizing Pain to Construct Injury

In U-Visa adjudication, state actors and professional experts translate diverse, individual experiences of ‘pain’ into standardized and universal occurrences of ‘injury.’ Pain is a subjective, embodied experience, while injury is an objective of scientific knowledge.

Economy of Pain

I develop the concept of economy of pain to describe the creation of a market for pain, a realm where corporal pain becomes corporate profit. Adjudication practices enable transactional exchanges of value between survivors of gender-based violence and carceral state agencies and corporations. The economy of pain quantifies injury.

Quantifying Injury

Quantifying injury disciplines survivors by normalizing abuse that is considered ‘nonsubstantial.’ Quantification standardizes transactions between immigrants and the state, ensuring that an identical amount of injury is being exchanged for each U-Visa.

The Panoptics of Pain

Immigration judges desire to know and document petitioners’ pain in as much detail as possible, forming part of what I refer to as the panoptics of pain. I develop the concept of panoptics pain to describe how states govern vulnerable populations by acquiring knowledge of gendered and sexual pain. The panoptics of pain is a realm where individual pain becomes an object of knowledge. Foucault’s (1978) analysis focuses on the panoptics of sexual pleasure—the “incitement to discourse” of sex; the incitement to put sex into words, to undertake a “confession of the flesh” (p. 19) that entails “the nearly infinite task of telling . . . the interplay of innumerable pleasures” of sex (p. 20, emphasis added). I develop the analogous concept of panoptics of pain to describe the incitement to discourse of sexual pain; the incitement to put pain into words, to undertake a confession of the flesh that entails the nearly infinite task of telling the interplay of innumerable pains of gendered and sexual violence.

In the panoptics of pain, state agencies discipline subjects through a seemingly ceaseless interrogation of their deepest wounds. In addition, subjects must submit to the scientific gaze of state agencies as well as a host of medico-legal experts. As a processual framework, the panoptics of pain emphasizes the agency of processes over actors. Power and authority appear to lie with individual decision-makers and state agents. However, it is institutional processes that goad individual actors to know pain. These processes are not concrete but abstract, haunting state bureaucracies with a desire for knowledge-pain. Has the subject suffered enough? How can one be sure? In what ways did they suffer? Does the subject’s suffering merit reward? Specters of knowledge-pain torment judges with such questions in the adjudication of U-Visas. They prod judges to acquire increasing knowledge with increasing certainty of the nature and extent of pain suffered.

The panoptics of pain conducts such insistent interrogations that U-Visa petitioners’ own testimonies of suffering do not nearly suffice. Petitioners fare best when professional experts rise to their defense, providing reports of scientific examinations of the nature and extent of injuries suffered. Professional examinations discipline subjects by placing them “in a whole mass of documents that capture and fix them” (Foucault, 1977, p. 189). “This turning of real lives into writing” transforms individuals into the “effect and object of knowledge” (Foucault, 1977, p. 192).

The U-Visas adjudication process homogenizes pain to create injury. Professional experts translate subjective and heterogeneous and subjective experiences of “pain” into objective and homogeneous occurrences of “injury.” Pain and injury are similar but not identical. Individuals experience pain while experts know injury. Pain is embodied and psychic, while injury is an object of knowledge. Pain is highly subjective, a part of lived, bodily, experience, and in some ways, ultimately unknowable. In contrast, injury is objectively knowable, designed to universalize individual experiences by comparing and contrasting them in relation to standardized, scientific measures. Pain is unmediated by another—that is, pain is experienced by the person who experiences it. Injury is mediated by others—that is, an individual’s injury is analyzed and interpreted by professional experts.

How is pain homogenized to create injury in state practices? In U-Visa adjudication, state agencies such as the BIA and USCIS translate an array of painful experiences into scientific knowledge. Rather than relying on a singular source of information, judges prefer to see a “thick description” (Geertz, 2008) of abuse triangulated across a range of institutional sources. A successful appeal often hinges on the inclusion of forensic forms of evidence that pathologize the petitioner’s suffering, such as medical and police reports and psychological evaluations. Below, an excerpt from a favorable decision indicates the sheer number of expert opinions that might be required to produce a favorable decision (titles of the reports are italicized):

The petitioner claims that her husband abused her physically and psychologically throughout their marriage, beginning in 1996. See Affidavit of [redacted] . . . the petitioner filed a police report stating that her husband attempted to choke her, causing physical injury and substantial pain. See N.Y. Domestic Incident Report . . . ; see also Criminal Complaint . . . According to the Chief of the Domestic Violence Bureau of the Kings Country Office of the District Attorney, the petitioner was the victim of criminal activity involving domestic violence . . . See Form I-918 Supplement B . . . The record reflects that the petitioner sought medical treatment for some of her injuries. See Medical Records for [redacted] Affidavit of [redacted]. (2010 Immig. Rptr. LEXIS 14304; emphasis original)

Another successful appeal indicates the variety of reports that might incline a judge toward a favorable decision:

The petitioner also submitted copies of medical treatment for her injuries, restraining orders issued against her boyfriend and a detailed declaration that described not only the circumstances surrounding the criminal activity listed on the Form I-918 Supplement B, but also her relationship with her boyfriend. The petitioner also described another altercation with her boyfriend that occurred after the July 2007 criminal activity, and provided a copy of the accompanying police report. (2011 Immig. Rptr. LEXIS 14390)

In contrast, the absence of expert corroboration calls into question the veracity of a petitioner’s claim of abuse. In one case, a petitioner’s personal affidavits are insufficient to establish “substantial abuse”—even though the affidavits read like a psychological evaluation, clearly naming and describing symptoms of post-traumatic stress disorder (PTSD). In the excerpt from the judicial decision below, I italicize pronouns and verbs associated with the petitioner to illuminate the limited weight carried by her individual testimony:

She reports that she is scared he will come back to hurt her and that E-R- told her he would take their son from her. She explains that she has trouble sleeping because she stays up late at night “thinking about all the bad things [E-R-] did to me.” She indicates that she has seen a counselor three times but she is busy with her children and has moved, which makes it difficult to see a counselor . . . the Petitioner submitted a second personal statement, in which she repeats the same information from her first personal statement regarding the harm she experienced from the certified criminal activity . . . The Petitioner generally indicates that she is scared and has trouble sleeping since the certified criminal activity took place. (2016 Immig. Rptr. LEXIS 3604; emphasis added)

The judge further notes that in the part of the form “which asks for a description of any known or documented injury to the Petitioner, the certifying official left the space blank” (2016 Immig. Rptr. LEXIS 3604). The judge rules unfavorably, arguing that while “the certified crime was one related to domestic violence,” the appeal is rejected because “the Petitioner has not demonstrated that she suffered substantial physical or mental abuse” (2016 Immig. Rptr. LEXIS 3604). This case suggests that if petitioners’ injury is not “known or documented” by professional experts, it is considered insubstantial and may as well have not occurred.

The italicized text in excerpts from the three cases above reveals the importance of professional expertise to a successful petition. Whereas in the latter case (2016 Immig. Rptr. LEXIS 3604), the appeal fails because of its reliance on personal testimony, in the former two cases (2010 Immig. Rptr. LEXIS 14,304; 2011 Immig. Rptr. LEXIS 14390), the appeals are successful because experts corroborate the abuse.

Judicial decisions do homogenize experiences of suffering not only across cases but also within a particular case. According to one judge, “the [petitioner’s] record contains unresolved inconsistencies and insufficient evidence . . . to establish that the petitioner suffered substantial physical or mental abuse as the result of her victimization” (2015 Immig. Rptr. LEXIS 7376). The inconsistencies that form the basis of the judge’s rejection are as follows: “For instance, the record is unclear when she was pushed by her boyfriend” (emphasis added) as Form B and the hospital record give different dates (2015 Immig. Rptr. LEXIS 7376). The police report states that the petitioner had mild tenderness in her abdomen, while the hospital record states that “there is no lower abdominal tenderness” (2015 Immig. Rptr. LEXIS 7,376; emphases added). The psychological evaluation speaks to long term, protracted abuse in the relationship, while the police report focuses only on the most immediate incident (2015 Immig. Rptr. LEXIS 7376). These “inconsistencies” lead the judge to reject the petitioner’s appeal, demonstrating that minor inconsistencies across documents work against petitioners and diminish their chances of success. The slightest hint of a petitioner’s physical and psychic ability to survive gender-based violence—the question around lower abdominal tenderness in this case—is enough to offset years of documented abuse and psychological trauma. This suggests that judges look for pure experiences of victimhood that are unadulterated by the threat of immigrant agency.

The process of transforming petitioners’ pain into legally knowable injury has both a disciplinary and commoditizing function. Petitioners are compelled to make their suffering known to a whole host of state and private actors—judges, law-enforcement personnel, doctors, nurses, and psychologists. This process disciplines petitioners by transforming their experiences of gender-based violence into objects of scientific knowledge. Furthermore, constructing homogeneous injury makes it possible to commoditize petitioners’ suffering. While individual experiences of pain differ, the injury they have accrued is identical—at least qualitatively. Homogenization transforms individual pain into injury, a commodity that can be bartered for legal status. Just as a factory produces thousands of identical commodities that are mutually interchangeable and sold for an identical price, so, too, does the U-Visa adjudication process produce thousands of occurrences of injury that are then exchanged for legal status.

The Economy of Pain

Having transformed pain into injury, immigration judges measure the amount of injury to see if it meets the mark. The quantification of injury forms part of what I refer to as the economy of pain. The economy of pain is a realm where corporal pain produces corporate profit. As a system of processes, the economy of pain problematizes the significance of individual intentionality, showing how all actors involved—‘good’ or ‘bad’—fall complicit to a nefarious agenda. This economy weaves a web of disparate actors with divergent desires; entangling violent and vulnerable individuals; repressive and relatively humanitarian state institutions; state violence and state care.

In this section, I show how immigration agencies quantify injury by rewarding abuse that is considered “substantial” while disregarding abuse that is considered insubstantial. Quantification both disciplines and commoditizes. Quantification makes discipline by rewarding injury only at sufficiently high levels. Furthermore, quantification makes pain into commodity by making it measurable and exchangeable of fixed quantity for fixed price.

Immigration agencies discipline survivors by selectively rewarding injury. In contrast to coercive techniques of power that rely on (the threat of) physical violence, disciplinary techniques of power are consensual, actively engaging the agency of those they subject. A reward is a disciplinary technique that incentivizes desirable behavior and dis-incentivizes undesirable behavior. Authorities use rewards to create “a distribution between a positive pole and negative pole; all behavior falls in the field between good and bad marks, good and bad points” (Foucault, 1977, p. 180). For example, schoolteachers use rewards to “win the heart of the child” (p. 180), relying on children’s agency to discipline them. Similarly, state institutions such as the USCIS and BIA employ U-Visas as a reward for the “good” behavior of enduring physical violence, relying on petitioners’ agency to discipline them. To obtain a U-Visa, petitioners’ must have endured abuse that is “substantial” and “severe,” leading to “permanent or serious harm”:

An alien is eligible for U-1 nonimmigrant status if . . . The alien has suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity. Whether abuse is substantial is based on . . . the severity of the perpetrator’s conduct; the severity of the harm suffered . . . and the extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim. (Alien Victims of Certain Qualifying Criminal Activity of 2007; emphasis added)

State institutions regulate immigrant suffering by classifying some injuries as “substantial” and other injuries as insubstantial. Survivors deemed “permanently” injured get a prize, while others get a pass. Hardly functioning as a deterrent to gender-based violence, U-Visas enable recidivism—paradoxically, not on the part of the perpetrator, but on the part of the survivor. Petitioners chase legality like a pot of honey at the end of a rainbow. While many do succeed, each step of the journey disciplines them into receiving pain.

In addition to disciplining immigrants, the quantification of injury also commoditizes immigrant pain. In the classical definition, commodities have two defining characteristics—“use-value,” or being useful, and “exchange-value,” or being exchangeable (Marx, 1992). The economy of pain renders pain both useful and exchangeable (Marx, 1992):

The usefulness of a thing . . . is conditioned by the physical properties of the commodity . . . It is therefore the physical body of the commodity itself . . . which is the use-value or useful thing (p. 126; emphasis added).

In the preceding, the usefulness of the commodity’s “physical body” resonates with the usefulness of “the physical bodies” that endure corporal pain. A commodity’s exchange-value is “the quantitative relation, the proportion in which use values of one kind exchange for use values of another kind . . . [and] changes constantly with time and place” (Marx, 1992, p. 126). The economy of pain creates transactions of pain between individuals, state agencies, and carceral corporations. For example, in privatized prisons, state agencies buy and carceral corporations sell the capacity to inflict pain. As pain becomes profit, the endurance of pain becomes labor. For example, the profitability of carceral pain is nowhere more evident than in prison labor, where the pain of incarceration is transformed into a productive act, generating profits for corporations. By making pain useful and exchangeable, the economy of pain transforms pain into a commodity.

The economy of pain is a perverse system that transactionalizes gender-based violence against immigrants. Immigrant survivors are the most direct and immediate beneficiaries of their own pain. Survivors sell their pain to immigration agencies in exchange for legal status. Immigration agencies are the intermediary beneficiaries of survivors’ pain, using it to discipline immigrant women and repress perpetrators. Immigration agencies also advance the interests of carceral corporations by requiring survivors to assist in criminalization. Carceral corporations are the ultimate beneficiaries of survivors’ pain, using it to expand their economic enterprise. These transactions are reminiscent of the fictional dystopia in Margaret Atwood’s (1998) The Handmaid’s Tale, where White women endure gender-based violence and make their bodies useful to receive a modest reward. It appears that the eroticized gender-dystopia of White women’s fantasy corresponds to the living nightmare of immigrant women’s reality.

In the following, I illustrate how BIA judges quantify survivors’ pain. By comparing cases of “substantial” injury with cases where injury is not considered substantial, I show that judges reward injury only at sufficiently high levels. Only life-threatening abuse classifies as “substantial” and meritorious. Abuse that does not leave the petitioner irreparably harmed is considered nonsubstantial and not deserving of recompense, and is thus normalized.

Favorable Rulings for “Substantial” Abuse

As with homogenization of injury, the quantification of injury, too, forms part of the panoptics of pain. Immigration judges are driven to know pain, wanting to know not only if injury has occurred, but also how much. Petitioners actively participate in this process. To improve their chances of obtaining a visa, it is in petitioners’ interest to document their pain in extensive detail. When relayed by sympathetic judges to justify the deservingness of the petitioner, the violence perpetrated against immigrant women reads like a laudable, almost noble, good.

Below, I review four cases of life-threatening abuse that left survivors permanently traumatized. All four cases below received favorable rulings. Favorable decisions are accompanied by graphic details of survivors’ often near-death experiences of intimate partner violence. In the first case, the judge describes how the petitioner and her children were almost killed by her ex-husband and father of her children:

She stated that I-B- wanted to kill her and her four year old daughter and that he chased her around the apartment with a gun. Her children were present in the home during this time . . . The petitioner believes I-B- would have killed her otherwise [if she had not escaped] and stated that there had been other incidents of threats and abuse by the perpetrator. (2015 Immig. Rptr. LEXIS 7429; emphasis added)

The judge rules in her favor, setting a high bar for the suffering that immigrant women must endure before the state is willing to grant them legal status. In the next two cases, I italicize the verbs denoting the perpetrator’s violence and underline the nouns denoting the parts of the petitioner’s body that receive pain.

In the case below, the judge narrates a history of physical, verbal, and sexual assault spanning a period of 16 years, which began when the petitioner married her husband at 14 years of age. The specific incidence of violence is relayed as follows:

[The petitioner’s] husband punched her on the right side of her head with his fist five times, grabbed her by the neck and began choking her, covered her mouth when she began to scream for help, threatened to kill her, grabbed her by her hair, threw her [body] to the ground and then kicked her right arm. (2011 Immig. Rptr. LEXIS 12545; emphasis added)

Another case proceeds as follows:

the petitioner was sleeping when her boyfriend pushed her off of the bed, struck her in the left eye with a closed fist, and then dragged her on the floor by her hair at which time she struck a piece of furniture and injured her arm. The report also indicated that the petitioner’s boyfriend continued to strike her after dragging her [body] on the floor, choked her, and refused to let her leave the residence . . . the petitioner had: visible signs of injury to her nose, chin and eye area. (2011 Immig. Rptr. LEXIS 14390; emphasis added)

In the first of the two preceding cases, the judge is able to rule in the petitioner’s favor by presenting her as a “good” immigrant who has done the bodily labor of enduring gender-based violence. In the second of the two preceding cases, the judge reads petitioner’s “visible signs of injury” as medals of achievement that must be rewarded with legality. The association of verbs with the perpetrator’s violence and nouns with the survivor’s body has a significant rhetorical effect. It creates a dichotomy between bad and good immigrants, in which immigrant agency is associated with violent criminality, while immigrant deservingness is associated with a broken and compliant body.

In a fourth case, the judge is highly sympathetic to the petitioner, devoting 861 words of the ruling (out of 3,518 total) to detail the abuse endured by the petitioner. The story begins in 1993, when the petitioner, then still technically a child at 16 years of age, entered into a 14-year-long relationship with the perpetrator (2014 Immig. Rptr. LEXIS 3622). (The case is decided in 2014, 21 years later.) The relationship was abusive from the beginning. The petitioner became pregnant soon into the relationship but miscarried because of the abuse. A few years later, a second pregnancy led to the birth of her first daughter. She was physically abused the day that she brought the newborn home. After marrying the perpetrator, the petitioner had a third pregnancy that was unhealthy. Her husband refused to take her to the hospital and her baby passed away a few hours after being born. She was understandably upset:

When her ex-husband saw her crying, he began to beat her but she did not call the police. Her ex-husband continued to abuse her once or twice a month, and her children witnessed the abuse. She finally left her ex-husband, obtained a temporary restraining order, and divorced him. (2014 Immig. Rptr. LEXIS 3622)

The judge rules in the petitioner’s favor.

In a system that rewards the endurance of violence upon the immigrant body as a form of “good” behavior, cases approximating the death of the immigrant petitioner, or by extension, her children, are highly likely to receive favorable rulings. In the cases above, sympathetic judges omit any language indicating survivors’ resistance, suggesting that petitioners’ deservingness derives from the passive endurance of bodily pain.

Unfavorable Rulings for “Nonsubstantial” Abuse

Judges quantify survivors’ injury to separate the grain from the chaff, the truly deserving victims from the free-riding, undeserving victims. In the four cases below, judges find petitioners’ suffering wanting in “substance” and “severity,” and choose to reject their appeals.

In the first case, the judge argues,

The evidence in the record fails to establish that the petitioner has suffered substantial physical or mental abuse as a result of the domestic battery incident.,. Though the petitioner describes her nose bleeding from being slapped by the suspect, she does not probatively discuss any permanent or serious harm. (2013 Immig. Rptr. LEXIS 9826; emphasis added)

In a second case, the petitioner was sexually abused by her stepfather when she was a child and was consequently removed from her mother’s custody (2014 Immig. Rptr. LEXIS 1700). Notably, the judge uses a quantitative logic to dismiss the petition, arguing that while “the petitioner was the victim of abusive sexual contact, and the relevant evidence shows that she was directly and proximately harmed by the qualifying crime,” “evidence does not establish that she suffered substantial physical or mental abuse . . . under the standard and criteria prescribed by the regulation” (2014 Immig. Rptr. LEXIS 1700; emphasis added).

In a third case, the petitioner’s child was kidnapped by the perpetrator. Trivializing the petitioner’s suffering while quoting the petitioner’s nonstandard use of English, the judge denies the appeal on the grounds of insubstantial harm:

The petitioner states that in 2010, she was left “with no penny no place to live” and her son was kidnapped by his father . . . although Mr. [redacted] states the petitioner is suffering from trauma, mental abuse, and depression, neither he nor the petitioner probatively describe any permanent or serious harm that the incident caused . . . relevant evidence does not establish that she suffered substantial physical or mental abuse. (2014 Immig. Rptr. LEXIS 1714; emphasis added)

Finally, in a fourth case previously discussed, the judge rejects an appeal on the grounds of insubstantial harm, arguing that the evidence is “inconsistent.” The evidence includes

a psychosocial evaluation by [redacted] a licensed clinical social worker . . . [which] contends that the petitioner’s ex-boyfriend verbally abused her, insulted her, prevented her from seeing her family and friends, destroyed her possessions, threatened her, withheld money, withheld food from her children, and sexually assaulted her for five months. (2015 Immig. Rptr. LEXIS 7376)

Unfavorable decisions illuminate the intricacies of the adjudication process. Judges do not reward all survivors of gender-based violence with legal status. Rather, judges deploy the “severity” requirement to reject claims they consider undeserving. In so doing, they normalize abuse against petitioners who are not deemed “irreparably harmed.”

Disciplining and Commoditization in the Economy of Pain

Both favorable and unfavorable decisions discipline survivors. Favorable decisions reward survivors with legal status for enduring the unendurable. Unfavorable decisions discipline survivors by normalizing abuse that does not leave permanent physical or mental damage. By denying them legal status, judges seem to punish petitioners who manage to survive gender-based violence with their minds and bodies relatively intact.

Both favorable and unfavorable decisions commoditize pain by ensuring that every visa recipient has suffered an adequate “amount” of injury. Quantifying injury standardizes transactions in the economy of pain. Without standardization, transactions in the economy of pain would be inconsistent. What petitioners stand to gain from the transaction is, from the outset, a delineated object—a U-Visa. However, what state agencies stand to gain is potentially abstract and nebulous—injury. Here, standardization bridges the gap by making injury measurable and discrete.

Toward Left Feminist Immigration Reform

State agencies “discipline and commoditize” immigrant survivors of gender-based crimes through the U-Visa adjudication process. Immigration law functions as a wall that removes criminalized immigrant men. U-Visas create a conditional aperture in this wall for survivors of gender-based crimes, extracting benefit from those let in. This illuminates the gendered and exploitative nature of the state’s regulation of migration through crime.

Why do so many immigrants apply for U-Visas despite their exploitative nature? The lack of employment visas for working-class immigrants contributes to the high demand for U-Visas. Currently, the United States prioritizes visas for “high-skilled” workers or families of U.S. citizens. Visas for working-class immigrants are not prioritized, leading to millions of immigrants living precarious lives. Subtle and direct forms of state violence against immigrants require both microlevel and macrolevel reforms.

Reforming the U-Visa Program

The U-Visa program must be reformed to cater to the interests of survivors of gender-based violence rather than the interests of state agencies and carceral corporations. Recommendations to this end are as follows:

Increase the annual quota of U-Visas for survivorsfrom 10,000 to 50,000. The existing quota is too low to meet the needs of petitioners who qualify even under the existing stringent criteria. Raising the quota will also enable faster processing of applications.

Eliminate the requirement for petitioners to have suffered permanent or highly severe physical or mental harm.

Eliminate Form-B and the role of law-enforcement and criminal agencies in the application process.

Administer the U-Visa program through social services agencies rather than criminal agencies.

Repeal ICE Directive 11005.2 from August 2019. Reinstate the possibility of Stays of Removal for U-Visa petitioners.

These changes will make U-Visas less exploitative and will offer immediate relief to survivors who are suffering and undocumented. However, an instrument that rewards survivors with legal status can only ever function as an incentivizing machine, perverting feminist ideals toward disciplinary ends.

Five-Point Agenda for Left Feminist Immigration Reform

Prevention is better than cure. Economic and legal vulnerability are the primary determinants of high rates of gender-based violence against working-class immigrants. These structural factors require structural solutions, and the political moment is ripe for the picking. As exemplified by the policy of family separation at the border, the spate of unbridled state violence against immigrants has reached a crisis point. It is time for the U.S. to privilege immigrant lives over the profit margins of carceral corporations. As Congress debates economic stimulus plans, left feminists must demand broad decarceration and structural reforms to empower immigrants rather than attempting to rescue them. I present a five-point agenda for anti-carceral left feminist immigration reform:

Abolish and defund ICE. Abolish and defund prisons.

Decriminalize migration and legalize all immigrants. Create employment visas for all immigrant workers, including women workers who undertake the labor of social reproduction.

Protect and promote workers’ rights. Institute a living wage for all workers, irrespective of legal status.

Create and fund welfare programs that empower immigrants, working-class people, women of color, and survivors of gender-based violence.

Establish foreign policy and trade agreements with foreign countries that are based on the principles of ethics and social justice. Cultivate reciprocal relationships with progressive foreign governments. Replace free-trade agreements with fair-trade agreements that protect foreign workers. End U.S. imperialism all across the world.

Footnotes

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Ghazah Abbasi

Notes

Author Biography

Ghazah Abbasi is a doctoral candidate in Sociology at the University of Massachusetts Amherst.

References

K. F.

(2011). “Immigrant” bodies and bona fide travelers: Surveillance, citizenship and global governance. Theoretical Criminology, 15(3), 331–346.

Abrams

J. R.

(2009). The dual purposes of the U Visa thwarted in a legislative duel. Saint Louis University Public Law Review, 29, Article 5.

Alien Victims of Certain Qualifying Criminal Activity (2007). 8 CFR § 214.14.

Amar

N. H.

or off

L. E.

Dutton

M. A.

Aguilar-Hass

(2005). Calls to police and police response: A case study of Latina immigrant women in the USA. International Journal of Police Science & Management, 7(4), 230–244.

Armenta

(2017). Protect, serve, and deport: The rise of policing as immigration enforcement (p. 212). University of California Press.

Atwood

(1998). The handmaid’s tale. New York: Anchor Books, a division of Penguin Random House LLC.

Borg

(2018). Narrating trauma: Judith Butler on narrative coherence and the politics of self-narration. Life Writing, 15(3), 447–465.

Brown

(1995). States of injury: Power and freedom in late modernity. Princeton University Press.

Canning

(2017). Gendered harm and structural violence in the British asylum system. Rutledge.

10.

Catanzarite

(2000). Brown-collar jobs: Occupational segregation and earnings of recent-immigrant Latinos. Sociological Perspectives, 43(1), 45–75.

11.

Chacón

J. M.

(2009). Managing migration through crime. Columbia Law Review Sidebar, 109, 135.

12.

Cole

(2011). Turning the corner on mass incarceration? Ohio State Journal of Criminal Law, 9, 27–51.

13.

Davidson

J. O. C.

(2006). Will the real sex slave please stand up? Feminist Review, 83(1), 4–22.

14.

Dingeman

Arzhayev

Ayala

Bermudez

Padama

Tena-Chávez

(2017). Neglected, protected, ejected: Latin American women caught by crimmigration. Feminist Criminology, 12(3), 293–314.

15.

Dominguez

Menjívar

(2014) Beyond individual and visible acts of violence: A framework to examine the lives of women in low-income neighborhoods. Women’s Studies International Forum, 44, 184–195.

16.

Duschinsky

(2013). Sexualization: A state of injury. Theory & Psychology, 23(3), 351–370.

17.

Erez

Adelman

Gregory

(2009). Intersections of immigration and domestic violence: Voices of battered immigrant women. Feminist Criminology, 4(1), 32–56.

18.

Executive Order No. 13,767, 3 C. F. R. 8793 (2017).

19.

Executive Order No. 13,768, 3 C. F. R. 8799 (2017).

20.

Executive Order No. 13,769, 3 C. F. R. 8797 (2017).

21.

Farb

(2007). The U Visa unveiled: Immigrant crime victims freed from limbo. Human Rights Brief, 15(1), 26–29.

22.

Fohring

(2018). Introduction to the special issue: Victim identities and hierarchies. International Review of Victimology, 24(2), 147–149.

23.

Foucault

(1977). Discipline and punish: The birth of the prison. Vintage.

24.

Foucault

(1978). The history of sexuality: An introduction (Vol. 1, p. 208). Vintage.

25.

Gedalof

(2007). Unhomely homes: Women, family and belonging in UK discourses of migration and asylum. Journal of Ethnic and Migration Studies, 33(1), 77–94.

26.

Geertz

(2008). Thick description: Toward an interpretive theory of culture. In The cultural geography reader (pp. 41–51). Routledge.

27.

Gehi

(2012). Gendered (in) security: Migration and criminalization in the security state. Harvard Journal of Law & Gender, 35, 357–401.

28.

Gill

L. J.

(2013). Secure communities: Burdening local law enforcement and undermining the U Visa. William & Mary Law Review, 54, 2055.

29.

Golash-Boza

T. M.

(2015). Deported: Immigrant policing, disposable labor and global capitalism. New York University Press.

30.

Golash-Boza

T. M.

Hondagneu-Sotelo

(2013). Latino immigrant men and the deportation crisis: A gendered racial removal program. Latino Studies, 11(3), 271–292.

31.

Gómez Cervantes

Menjívar

Staples

W. G.

(2017). “Humane” immigration enforcement and Latina immigrants in the detention complex. Feminist Criminology, 12(3), 269–292.

32.

Hartry

A. S.

(2012). Gendering crimmigration: The intersection of gender, immigration, and the criminal justice system. Berkeley Journal of Gender, Law & Justice, 2(8), 1–27.

33.

Harvard Immigration and Refugee Clinical Program. (2017). The impact of President Trump’s executive orders on asylum seekers. https://today.law.harvard.edu/wp-content/uploads/2017/02/Report-Impact-of-Trump-Executive-Orders-on-Asylum-Seekers.pdf

34.

Haynes

(2018). Misogyny and racism in sessions’ unraveling of asylum law. The Gender Policy Report. https://genderpolicyreport.umn.edu/misogyny-and-racism-in-sessions-unraveling-of-asylum-law/

35.

Hernández

C. C. G.

(2013). Creating crimmigration. Brigham Young University Law Review, 2013(6), Article 4.

36.

Hipolito

(2010). Illegal aliens or deserving victims: The ambivalent implementation of the U Visa program. Asian American Law Journal, 17, 153–179.

37.

Horwitz

R. B.

(2018). Politics as victimhood, victimhood as politics. Journal of Policy History, 30(3), 552–574.

38.

Hutchinson

(2006). Countering catastrophic criminology: Reform, punishment and the modern liberal compromise. Punishment & Society, 8(4), 443–467.

39.

IN RE: Petitioner: [redacted], 2010 Immig. Rptr. LEXIS 14304 (2011.)

40.

IN RE: Petitioner: [redacted], 2011 Immig. Rptr. LEXIS 12545 (2011.)

41.

IN RE: Petitioner: [redacted], 2011 Immig. Rptr. LEXIS 14390 (2011.)

42.

IN RE: Petitioner: [redacted], 2013 Immig. Rptr. LEXIS 9826 (2013.)

43.

IN RE: Petitioner: [redacted], 2014 Immig. Rptr. LEXIS 1700 (2014.)

44.

IN RE: Petitioner: [redacted], 2014 Immig. Rptr. LEXIS 1714 (2014.)

45.

IN RE: Petitioner: [redacted], 2014 Immig. Rptr. LEXIS 3622 (2014.)

46.

IN RE: Petitioner: [redacted], 2015 Immig. Rptr. LEXIS 7376 (2015.)

47.

IN RE: Petitioner: [redacted], 2015 Immig. Rptr. LEXIS 7429 (2015.)

48.

Jacoby

T. A.

(2015). A theory of victimhood: Politics, conflict and the construction of victim-based identity. Millennium, 43(2), 511–530.

49.

Jaoul

(2013). Politicizing victimhood: The Dalit Panthers’ response to caste violence in Uttar Pradesh in the early 1980s. South Asian Popular Culture, 11(2), 169–179.

50.

Kanstroom

(2003). Criminalizing the undocumented: Ironic boundaries of the post-September 11th “pale of law.” North Carolina Journal of International Law & Commercial Regulation, 29, 639–670.

51.

Kelly

(1997). Stories from the front: Seeking refuge for battered immigrants in the Violence Against Women Act. Northwestern University Law Review, 92, 665–705.

52.

Killough

(2019, April 4). House passes reauthorization of Violence Against Women Act. CNN Politics. https://edition.cnn.com/2019/04/04/politics/house-passes-violence-against-women-act-reauthorization/index.html

53.

Legomsky

S. H.

(2007). The new path of immigration law: Asymmetric incorporation of criminal justice norms. Washington and Lee Law Review, 64, 469–528.

54.

Levine

Everett

(2019, November 19). Ernst and Schumer spar over Violence Against Women Act. Politico. https://www.politico.com/news/2019/11/19/joni-ernst-chuck-schumer-vawa-election-071565

55.

Marx

(1992). Capital: A critique of political economy (Vol. 1). Penguin Classics.

56.

MATTER OF B-K-V-C-, 2016 Immig. Rptr. LEXIS 3604 (2016.)

57.

McKinnon

S. L.

(2016). Gendered asylum: Race and violence in U.S. law and politics. University of Illinois Press.

58.

Menjívar

(2006). Liminal legality: Salvadoran and Guatemalan immigrants’ lives in the United States. American Journal of Sociology, 111(4), 999–1037.

59.

Menjívar

Salcido

(2002). Immigrant women and domestic violence: Common experiences in different countries. Gender & Society, 16(6), 898–920.

60.

Messing

J. T.

Vega

Durfee

(2017). Protection order use among Latina survivors of intimate partner violence. Feminist Criminology, 12(3), 199–223.

61.

Milkman

Reese

Roth

(1998). The macrosociology of paid domestic labor. Work and Occupations, 25(4), 483–510.

62.

Miller

T. A.

(2002). Citizenship & severity: Recent immigration reforms and the new penology. Georgetown Immigration Law Journal, 17, 611–666.

63.

Molina

R. L.

Ardalan

Scott

(2019). Impact of a US asylum decision on sexual and reproductive health and rights: A call to action for health and legal professionals. Sexual and Reproductive Health Matters, 27(2), 1598232.

64.

Montoya-Galvez

(2019, December 16). The U.S. continues to separate migrant families. For one father, a miscommunication proved costly. CBS News. https://www.cbsnews.com/video/the-us-continues-to-separate-migrant-families-for-one-father-a-miscommunication-proved-costly/

65.

Nanasi

(2018). The U Visa’s failed promise for survivors of domestic violence. Yale Journal of Law and Feminism, 29, 273–320.

66.

Nayak

(2015). Who is worthy of protection? Gender-based asylum and US immigration politics. Oxford University Press.

67.

E. S.

Stamper

C. L.

(2018). A Trump presidency and the prospect for equality and diversity. Equality, Diversity and Inclusion: An International Journal.

68.

Niayesh

(2019, September 26). Trump’s travel ban really was a Muslim ban, data suggests. The Washington Post. https://www.washingtonpost.com/politics/2019/09/26/trumps-muslim-ban-really-was-muslim-ban-thats-what-data-suggest/

69.

Ortega

D. M.

Lasch

C. N.

(2014). Crimmigration and detainers: An opportunity for feminist praxis. Affilia, 29(3), 257–260.

70.

Picart

C. J.

(2003). Rhetorically reconfiguring victimhood and agency: The violence against women act’s civil rights clause. Rhetoric & Public Affairs, 6(1), 97–125.

71.

Plambech

(2014). Between “victims” and “criminals”: Rescue, deportation, and everyday violence among Nigerian migrants. Social Politics, 21(3), 382–402.

72.

Pollack

(2007). “I’m just not good in relationships”: Victimization discourses and the gendered regulation of criminalized women. Feminist Criminology, 2(2), 158–174.

73.

Sampaio

(2015). Terrorizing Latina/o immigrants: Race, gender, and immigration politics in the age of security. Temple University Press.

74.

Shaw

(2008). Barriers to freedom: Continued failure of US immigration laws to offer equal protection to immigrant battered women. Cardozo Journal of Law & Gender, 15, 663–689.

75.

Shapiro

H. R.

(2002). Battered immigrant women caught in the intersection of US criminal and immigration laws: Consequences and remedies. Temple International and Comparative Law Journal, 16, 27.

76.

Shdaimah

C. S.

Leon

(2015). “First and foremost they’re survivors” selective manipulation, resilience, and assertion among prostitute women. Feminist Criminology, 10(4), 326–347.

77.

Stumpf

(2006). The the crimmigration crisis: Immigrants, crime, and sovereign power. American University Law Review, 56, 367.

78.

Stupakis

S. E.

(2019). What the future may hold for victims of domestic and sexual violence without the Violence Against Women Act. Hastings Women’s Law Journal, 30, 261–286.

79.

Tahirih Justice Center. (2017, January 25). New executive orders will keep immigrant women and children from accessing legal protection. https://www.tahirih.org/news/new-executive-orders-will-keep-immigrant-women-and-children-from-accessing-legal-protection/

80.

Terrio

S. J.

(2015). Whose child am I? Unaccompanied, undocumented children in U.S. immigration custody. University of California Press.

81.

Ticktin

M. I.

(2011). Casualties of care: Immigration and the politics of humanitarianism in France. University of California Press.

82.

Udoma

(2019, December 29). Blumenthal, advocates push for Senate reauthorization of Violence Against Women Act. WSHU Public Radio. https://www.wshu.org/post/blumenthal-advocates-push-senate-reauthorization-violence-against-women-act#stream/0

83.

U.S. Citizenship and Immigration Services. (2019). Number of Form I-918, petition for U nonimmigrant status, by fiscal year, quarter, and case status 2009–2018. https://www.uscis.gov/tools/reports-studies/immigration-forms-data

84.

U.S. Department of Homeland Security. (2019). U and T Visa law enforcement resource guide for federal, state, local, tribal, and territorial law enforcement, prosecutors, judges, and other government agencies. https://www.dhs.gov/sites/default/files/publications/U-and-T-Visa-Law-Enforcement-Resource%20Guide_1.4.16.pdf

85.

U.S. Department of Justice. (2018, October 15). Board of immigration appeals. https://www.justice.gov/eoir/board-of-immigration-appeals

86.

U.S. Immigration and Customs Enforcement. (2019). Revision of stay of removal request reviews for U Visa petitioners. https://www.ice.gov/factsheets/revision-stay-removal-request-reviews-u-visa-petitioners

87.

Vázquez

(2015). Constructing crimmigration: Latino subordination in a “post-racial” world. Ohio State Law Journal, 76(3), 599–657.

88.

Wodak

Meyer

(2001). Methods of critical discourse analysis. SAGE.

89.

Wood

L. A.

Kroger

R. O.

(2000). Doing discourse analysis: Methods for studying action in talk and text. SAGE.

90.

Wood

S. M.

(2004). VAWA’s unfinished business: The immigrant women who fall through the cracks. Duke Journal of Gender Law & Policy, 11, 141–155.

91.

Zetes

(2015). Beyond passive victimhood: The narrative and reality of women in transitional justice. New York University Journal of International Law & Politics, 48, 1293.