Sexuality, Migration, and the Shifting Line between Legal and Illegal Status

Controlling unauthorized ("illegal") immigration is now a top priority for nation-states around the globe.¹ As that priority has become firmly intertwined with the "war on terrorism," it has authorized the expanded criminalization, incarceration, and withdrawal of rights and due process for all migrants. Consequently, it has become urgent to raise fundamental questions about the historical processes and power dynamics through which various migrant populations become designated as legal or illegal. Focusing on the campaign to secure recognition for same-sex couples under U.S. immigration law, this article challenges neoliberal representations of legal and illegal status as "evidence" of individual character. Instead, I analyze these status distinctions as outcomes of contingent, changing relations of power, including sexuality (which is often framed through a discourse of family) as it intersects with hierarchies of race, gender, class, and geopolitics. The analysis invites us to consider whether and how sexuality may provide a locus for contesting and renegotiating the distinction between legal and illegal, including the multiple relations of power in which it is anchored.

The article first historicizes how and why unauthorized migration occurs, in relation to larger structural factors. This historicization provides a basis for rethinking il/legal status as contingent, unstable, and the outcome of multiple relations of power. The next section explores how same-sex migrant partners remain shut out from accessing legal status on the basis of their relationship with a U.S. citizen or resident, with the result that they must consciously labor to become legal through other means. Their productions of legality, however, often remain precarious, short-term, and haunted by the possibility of becoming illegal in the future. Recognition of their relationships is expected to provide for a more secure legal status, but as the next section argues, heteronormative immigration control has historically withheld recognition from many kinds of relationships, based not only on sexuality but also on intersecting gender, racial, class, and geopolitical factors. Thus the struggle for recognition of same-sex couples must challenge multiple hierarchies or else risk benefiting only the most privileged. The following section further reframes the legal/illegal distinction by exploring how recognized couple ties provide the mechanism through which the state and its assemblages attempt to transform legally admitted immigrants into "good" citizens—while threatening a loss of legal status for those who fail to make that transformation. I explore what issues might arise if same-sex couples were to be included in this process. The article concludes by asking how the campaign for recognition of same-sex couples might be reframed to undermine the production of the il/legal distinction, understood as an outcome of multiple relations of power and inequality that include but are not restricted to sexuality.

Framing "Illegal" Migration

The United States is commonly described as a nation of immigrants, populated by hardworking, industrious, creative people who came from elsewhere. According to the dominant narrative, each immigrant "travels smoothly from settlement to assimilation and then citizenship. This social citizenship is accompanied by a teleology of legal categorization, whereby the immigrant is first lawfully admitted as a permanent resident and then naturalizes to become a citizen."² As Leti Volpp makes clear here, immigrant America is envisioned as being populated by legal—not illegal—immigrants.

The narrative of immigrant America denies histories of slavery, genocide, and annexation as critical to the making of the U.S. nation-state. But it also erases another historical process that is equally formative of the nation-state and the citizenry: the construction of literally millions of people as undocumented (or "illegal") immigrants who live, love, and labor within the territory of the United States. The fact that millions live within the United States without authorization is not particularly surprising. U.S. immigration law is structured by preferences, which hinge on having specific family ties or else high degrees of human or economic capital.³ Anyone who cannot show that she or he fits within one of these preference categories has little likelihood of becoming a legal immigrant, no matter how hardworking, otherwise law-abiding, or decent she or he...