migrant “illegality” and deportability in everyday life - Nicholas De ...

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the empirical messiness that reveals how that ideology “disguises the ambiguous
dealings of its agents” (pp. 11–14). Likewise, illegality is not essentialized as deviance,
subversion, or the putative subculture of a stigmatized group, but instead,
is construed as an option or resource available to diverse groups at particular moments,
including elites and state functionaries as well as states themselves (pp. 13,
19). In these respects, Heyman & Smart critically recuperate many of the hallmarks
of legal anthropology—an awareness of the play of law in its practical contexts,
the persistence of plural and nonlegal modalities, the importance of sociohistorical
specificities, and an analytic distinction between legitimacy and legality (p. 8).
It is noteworthy that Heyman & Smart’s position marks, in important respects,
a considerable theoretical advance from Heyman’s earlier work, in which he contends,
rather more simplistically, that “states are aggregations of rules ...and the
bureaucratic organizations required to implement these rules; for short, states are
rules of the game” (1994, p. 51). Heyman makes a compelling case for ethnography
in his insightful work on the U.S. Border Patrol (1995, 1998b) and the ways that de
facto policies actually guide law enforcement with respect to the undocumented.
He falls prey to a familiar anthropological trap, however, by articulating a theoretical/methodological
disinclination to examine law itself, advancing instead a
one-sided preference for studying the state “from below,” through the ethnography
of local enforcement practices (1998b). Clearly, Heyman & Smart’s approach—
explicitly requiring “that states be viewed ‘from below’ and ‘from within’ as much
as ‘from above’” (1999, p. 15)—is more sophisticated and significantly problematizes
the one-sidedness of a complacent anthropological predilection for the view
“from below.”
In much of his prior work (1991, pp. 40, 197; 1998a, pp. 24–29), Heyman’s general
orientation to the practices of everyday life, including undocumented migrants’
border crossings as well as law enforcement’s efforts at apprehension, obstructs
his capacity to appraise the larger forces at work in the “illegalization” of migrants
who cross the U.S.-Mexico border. Though Heyman discerns the decisive facts in
the history of U.S. immigration law since 1965 that would substantiate an account
of the legal production of migrant “illegality” in its contemporary formulation, he
nonetheless persists in treating undocumented migration as if dramatic revisions
of the law had not been instrumental in restructuring it. Heyman argues:
The migration laws of the United States rely on ‘numerical control’: numerical
targets for finite social types .... Yet such numbers mismatch the social process
of migration and inclusion into the host society .... In real-world migratory
situations, people adapt numerical-legal categories to these actual connections
when possible, and ignore the law when it does not fit migratory intentions ....
Unlike numerical control, actual migration is flexible in who enters and how
long they stay, and adapts quickly to the actual niches and labor demand (that
is, the realities) of U.S. society. As a result, either the migrant network system
manipulates the legal system to its own ends ...or people migrate illegally ....
If current U.S. migration is disordered, the reordering of immigration sought
here simulates, but enriches, the naturalistic migration system. (1998a,
pp. 28–29; emphasis added)