Publication Title

Harvard Journal on Legislation

Document Type



Current pro-immigrant reform efforts focus on legalization. Proposals seek to place as many of the eleven million undocumented people in the United States as possible on a “path to earned citizenship.” However, these reform efforts suffer from a significant and underappreciated blind spot: the strategies used to advocate legalization harm those to whom the path to citizenship is barred—such as those with prior deportation orders, prior criminal convictions, and those who have yet to arrive. The problem begins with rhetoric: in making the push for legalization, immigrant rights groups have deployed imagery of the undocumented as law-abiding, hard-working, and family-oriented—the ideal respectable candidates for an invitation into the protected sphere of citizenship. The flaw in this approach is evident in the comprehensive immigration reform bill passed by the Senate in 2013. While the bill would have provided additional safeguards for those who qualify for the path to legalization, it would have simultaneously rendered more vulnerable the millions of immigrants who do not qualify. For that latter group, the bill would have meant further criminalization of employment, increased border enforcement and deaths, and a cemented pipeline between local law enforcement, detention, and deportation.

This Article proposes that the push for legalization is responsible for the legislative bait-and-switch, which appears to fix a broken system by offering legalization to some, but in fact makes the system worse for many. To avoid that result, advocates should avoid prioritizing legalization, and instead address the systemic harms related to the category of “illegality.” Pro-immigrant advocacy and scholarship should be guided by the question, “Will this intervention increase or decrease the harms related to living without lawful status?” Such a strategy would move the focus away from an individual’s eligibility for citizenship and towards issues that confront the most vulnerable among the undocumented. By addressing those most harmed by “illegality,” new opportunities emerge for crafting reforms that dismantle immigrant vulnerability.



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