Review Essay: Papers, Performance, and Making Immigration Matter
When does immigration matter? When does it not? Amidst rapidly changing geographies of international migration, massive displacement by conflict and natural disasters, and a global rise in restrictionist rhetoric and policies, these two questions may not feel particularly unique or worthwhile. Among scholars of law and politics, the latter question may even seem obsolete. Still, as Kate Vieira and Leila Kawar demonstrate, immigration—and in particular, immigration papers and immigration law—remains a site worth exploring and re-exploring. In their recent ethnographic studies of migrant literacy and immigrant rights legal activism, respectfully, these two scholars masterfully upend taken-for-granted assumptions about immigration as a matter of legality or mobility—or even as a priority for those whose lives and work they study.
In American By Paper: How Documents Matter in Immigrant Literacy, Kate Vieira traces how papers matter for migrant literacy. Written most explicitly for education scholars, the book’s aims are three-fold. First, Vieira seeks to update and challenge contemporary assumptions about literacy as a mode of upward mobility, social inclusion, or resistance for migrants and immigrants. Among those who participated in Vieira’s research, literacy is something different. It is powerfully—and at times, exclusively—tied up in papers. ‘Papers and literacy. Literacy and papers,’ echoes throughout the text, a cadence reminding us of the inextricability of the two. With this in mind, Vieira puts forth a ‘sociomaterial theory of literacy,’ one that identifies literacy as both a practice and a product in transnational lives. In this sense literacy is a skill and a resource, a bureaucratic technology, and a trend so circulated as to become “infrastructural” (Vieira 2016: 4). Finally, Vieira aims to contribute to the social history of literacy with American By Paper, informing pedagogy and practice through a comprehensive consideration of literacy, documents, and bureaucracy in ordinary life.
Vieira identifies as a literacy scholar, and she characterizes her work as literacy ethnography, “trac[ing] the everyday practices and meanings of literacy” (ibid: 4) in im/migrant lives. Vieira’s writing is accessible and clear, and she is at once authoritative and self-reflexive as she describes the role that her own socio-legal status, gender, ethnicity, family, and professional identity plays in regards to her academic audience and to those Azorean and Brazilian migrants and Azorean Americans with whom she conducted research. For two years, the author collected ‘literacy history interviews’ from members of both groups in South Mills, a former mill town in Massachusetts. As Vieira explains, the majority of Azoreans, who arrived in South Mills from islands off the coast of Portugal, benefited from the family reunification clause in the 1965 Hart-Cellar Act. They ‘had papers’ when they arrived to work in the area’s factories. Yet at the same time, because the Hart-Cellar Act included quotas for the Americas, those Brazilians who also came to South Mills for factory jobs had few to no paths to legalization and often migrated clandestinely. Thus, despite sharing a language, economic struggles, and similar goals, these two groups remain divided by what Vieira describes as a “documentary border” (ibid: 10). To understand the border, Vieira considers legal documents as well as participants’ writing—sermons, songs, essays, letters—and her own field notes. What results is a nuanced consideration of how papers and literacy interact and mediate the physical and social mobility of three groups: documented Azoreans and Azorean Americans (chapter 2); undocumented Brazilians (chapter 3); and undocumented Azorean and Brazilian youth (chapter 4). Vieira frames the book’s many compelling and often extended ethnographic vignettes through historical analysis, interdisciplinary scholarship on migration and citizenship, and literacy theories including ‘strong text’ and New Literacy Studies.
“Papers,” argues Vieira, “mediate literacy’s promise as a way for migrants to make it in the United States” (ibid: 3). In Vieira’s writing, this is an active process, one by which Vieira relies on but also moves beyond Dorothy Smith’s (1990: 121) concept of ‘active texts.’ There is, of course, the action of filling out and compiling immigration documents, and the author likewise explores how these same documents motivate, facilitate, and stall social action. Yet through so many intimate ethnographic details, Vieira almost unconsciously adds a visceral dimension to the action she traces. Papers ‘loom’ in the lives of her informants; they ‘reverberate’ and ‘course through.’ The value accorded literacy and papers fluctuates in the first chapter, just as the mobility of individuals shifts owing to absent papers or, among many Azoreans, restricted literacy but abundant papers. Chapter 2 centers on the act of writing to get papers, and the exchange of papers among people and state institutions. Here, we find Christina, hyperconscious of her struggle to learn English after failing the English portion of her naturalization test, repeatedly ripping up the affidavit she is writing on behalf of a friend. “So much depended on this process of writing…” (ibid: 75). In chapter 3, papers are traded between state and church bureaucracies, and Vieira’s focus is on those who write but do not have papers. In this space is what Vieira calls ‘intensified religious writing’ as textual capital becomes symbolic capital. In chapter 4, Vieira explores the merging of literacy practices and literacy products among young people. The author recognizes social mobility as a “logical continuation of physical mobility” to many of her young informants (ibid: 117)—and while this physical mobility is most explicitly read as migration, it also refers to the advantages and vulnerabilities implicit in driving (see also Sanger 1995) and even walking — “the dangerous visibility that participants experienced in motion” (ibid: 131).
Amidst racial, economic, political, and gendered marginalization, Vieira argues, it is textual marginalization her informants most want to discuss. A more explicit and critical discussion of the interplay of these forms of marginalization would strengthen this text, at least so far as anthropologists of politics and the law may be concerned, but again the author writes primarily to literacy scholars and educators. Where Vieira’s work edges into law and politics is in its relatively obvious implications: immigration policies, and particularly those that require individuals to register with state agencies such as Deferred Action for Childhood Arrivals (DACA), change how, what, and why im/migrants write. “As this policy… is put into action, transnational migrants will be learning literacy from their particular state-defined positions, with their attendant rights and restrictions” (ibid: 152). While ‘papers and literacy. Literacy and papers,’ is the right refrain for this text, papers and positionality is arguably as compelling. Still, Vieira’s emphasis on literacy, and the sociomaterial theory of literacy she puts forth, powerfully if indirectly contributes to the anthropologies of law, transnational migration, and bureaucracy. “The condition of being written is a bureaucratic one” (ibid: 8), she writes, and this book forcefully demonstrates the intimate contradictions this reality maintains. In the bureaucratic context of immigration papers, it is literacy that matters—at once practice and product, identity and identification, empowerment and alienation (ibid: 146).
Given its title, the central argument of Leila Kawar’s Contesting Immigration Policy in Court: Legal Activism and Its Radiating Effects in the United States and France is relatively clear: juridical activity powerfully impacts immigration policy making. What is perhaps less explicit is what juridical activity. As Kawar compellingly documents in her study of immigrant rights legal activism in the United States and France, it is legal frames, narratives, and performances that guide how policy makers approach immigration issues, rather than coercive or regulatory authority as many would assume. A direct contribution to sociolegal studies, Kawar presents legal activism as “a window for observing law’s culturally productive role,” namely in reformulating immigration debates as questions of law (Kawar 2015: 153).
As Kawar acknowledges, studies of immigration policy tend to focus on those rules and remedies produced by judicial decisions. In Contesting Immigration Policy in Court Kawar responds by exploring what else is produced on the way to, and beyond, judicial decision-making. Underscoring the “constitutive dimension of law” (5), or how juridical engagements construct and reconstruct social relations (Hunt 1985), the author centers in particular on the discursive and performative dimensions of legal practice. Not only do these dimensions shape and inform ontologies in the courtroom, but they provide a site from which to trace the ‘radiating effects’ of legal contestation into the political sphere. Kawar examines these processes comparatively in a “point and counterpoint” (ibid: 21) analysis of immigration-centered legal activism in France and the United States. There are meaningful similarities between the two nations, including the near-parallel development of a specialized field of immigration-centered legal activism amidst the rise of immigrant social movements and restrictionist immigration policies in the early 1970s. Yet as Kawar convincingly demonstrates, differences between these forms of activism powerfully underscore the distinct ways by which legal meanings are produced and reconfigure social relations. For evidence, Kawar conducted interviews with immigrant rights litigators, examined public and organizational archival records, including those of the American Civil Liberties Union Immigrants’ Rights Project and the French Information and Support Group for Immigrants (GISTI), and analyzed legal documents and media coverage. Engaging these data through a constructivist sociolegal approach and a historical and comparative perspective results in what Kawar characterizes as a ‘kaleidoscopic’ analysis, or the examination of activities through a succession of shifts in focus (ibid: 24; see also Knorr Cetina 1999: 24). Kawar begins by providing a historical context for immigrant rights legal activism in Chapter 2, then shifts in Chapter 3 to the cases that brought this litigation onto the political radar. In Chapter 4 Kawar returns to litigators and the ways professional identities changed and were institutionalized in the U.S. and France. Chapters 5 and 6 pursue these processes in more depth, exploring how the institutionalization of immigration practice impacted the work of national administrative officials and more broadly shaped immigration policy making.
As Kawar argues, it is juridical activity in the form of ‘legal frames, narratives, and performances’ that influences how policy makers approach immigration issues. The author sets the scene in Chapter 2, tracing what she describes as “the initial encounter between members of the 1970s generation of law school graduates and the domain of immigration policy” (ibid: 28). It is a fascinating start, and Kawar deftly details and moves between grassroots movements, migration trajectories, intimate reflections, organizational structures, and emergent legal campaigns—in two separate national contexts. In Chapter 3 the author ‘kaleidoscopically’ shifts to the specific jurisprudential regimes these litigators faced. Here, the meaning-making at the center of this study comes into focus as litigators do the ‘creative work’ of qualifying events and relationships in new ways, drawing on logic, precedent, and “connecting immigration to the rights-based normative referents of domestic legality as opposed to those of foreign policy” (ibid: 49) in markedly different jurisprudential regimes and moments. With considerable success and momentum in the late 1970s and early 1980s, as well as heightened awareness of a changing and instable immigrant rights context, legal activists in the U.S. and France sought to develop more institutionalized structures. In the U.S., this meant foundation-sponsored public interest law—an engagement between activists and elite supporters that solidified the project of immigrant legal activism but also shifted its content. In France, where legal activists lacked a ready organizational model, the process was and remains more ad hoc, one by which jurists draw on and combine existing traditions of protest and advocacy. To detail these trajectories, Kawar draws on and augments a history of public interest law in the U.S., then explores legal activism in France amidst—and at times in spite of—a burgeoning Foucauldian contre-expertise model of resistance. Here, the question for jurists was how to meaningfully engage legal theory attached to legal formalism, and likewise fundamentally rethink state structures, via juridical knowledge so entrenched in state functions? Throughout the book, Kawar traces a history that is at once theoretically engaged and richly detailed. This makes for a captivating if not saturated read: at times, the author would do well to more explicitly frame or connect these processes as frames, narratives, and performances. Chapters 5 and 6 offer a more clear instance of the performative aspects at play, particularly in regards to the routinized and ritualized interactions among litigators, judges, agency administrators, and policy makers in the context of immigration class action lawsuits in the U.S. (Chapter 5) and as legal activists, “positioned as supplicants before the Conseil d’Etat” (ibid: 128) routinely utilize recours pour exces de pouvoir (appeal on the grounds of excessive power) for policy-oriented litigation in France (Chapter 6).
The process Kawar traces is one that many of us—particularly scholars of law and transnational migration—often take for granted, specifically the ways activists have made immigration legal, or have effected legal meanings and identities associated with immigration. Contesting Immigration Policy in Court is thus an illuminative history, and it likewise challenges the general view that cause litigation (see, e.g. Sarat and Scheingold 1998, 2001) has limited impact on policy making unless it produces broad rights-protective principles. Indeed, as Kawar demonstrates in the chapters detailed above, legal contestations powerfully reshape how political actors approach immigration issues. The long-term, ‘radiating’ effects of what Kawar characterizes as “culturally productive legal devices” (ibid: 154), including the ‘historical discrimination’ framing in the Warren Court’s civil rights jurisprudence, the repeat petitioning of the Conseil d’Etat, or the near-ritualized attention to the pathologies of particular administrative agencies in immigration class action lawsuits in the U.S., are significant. Not only do these different strategies form the basis for present-day associations of immigration and law in the U.S. and France, but Kawar’s comparative perspective also reminds us that these assemblages are not inevitable. Moreover, and of particular significance to studies of legal mobilization, Kawar demonstrates that immigration rights can be invoked through a variety of juridical frames, narratives, and performances. How these creative processes may impact or respond to what Kawar characterizes as so many ‘discouraging developments’ in the unchanged and even amplified paradigm of immigration restrictionism largely relies on just that: creativity.
The approach, audience, and theoretical engagements of Vieira’s American By Paper: How Documents Matter in Immigrant Literacy and Kawar’s Contesting Immigration Policy in Court: Legal Activism and Its Radiating Effects in the United States and France are markedly different. Where immigration legislation is an obvious but relatively peripheral component of Vieira’s work, it is central to Kawar’s study of legal activists and immigration policy in the U.S. and France. And while Vieira explores how individual immigrants make meaning amidst and through bureaucratic papers and processes, Kawar examines the meanings that are put forth in high profile legal contestations and ‘radiate’ into policy efforts. As a result, pairing such ethnographically rich texts together effectively transports the reader from the everyday to the elite, from filling out a tangible document—or contending with its devastating absence—to formal courtroom performances and policy negotiations. Yet because these authors articulate such different audiences, the likelihood of reading the two books together is low. Accordingly, both Vieira and Kawar would do well to more explicitly address the co-constitutive and creative nature of these everyday and elite realms. Kawar’s attention to text, and in particular to the “complex workings of legal expertise in modernity’s text-based legal systems” (Kawar 2015: 14), is challenged and enhanced by Vieira’s critical recognition of the socio-materiality of texts both in and, importantly, outside of formal legal systems. At the same time, Kawar’s work pushes us further, to an understanding of immigration policy as itself produced, mediated, and contestable. By documenting how immigration texts—texts in the broad and active sense that both authors maintain—are written and ‘read,’ we can trace how immigration meaningfully ‘radiates’ into and between policy and everyday life. Taken together, American By Paper and Contesting Immigration Policy in Court provide an insightful consideration of how action in one realm informs the other in powerful, mundane, and unexpected ways that always matter.
Michele Statz, University of Minnesota
Reviewed in this Essay:
Kawar, Leila. 2015. Contesting Immigration Policy in Court: Legal Activism and Its Radiating Effects in the United States and France. New York: Cambridge University Press. 210 pp. £ 72.00 hardcover.
Vieira, Kate. 2016. American By Paper: How Documents Matter in Immigration Literacy. Minneapolis: University of Minnesota Press. 193 pp. $25.00 paper.
Hunt, Allen. 1985. “The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law.” Law and Society Review 19 (11): 11-38.
Knorr Cetina, Karin. 1999. Epistemic Cultures: How the Sciences Make Knowledge. Cambridge, MA: Harvard University Press.
Sanger, Carol. “Girls and the Getaway: Cars, Culture, and the Predicament of Gendered Space.” University of Pennsylvania Law Review 144 (2): 705-756.
Sarat, Austin, and Stuart Scheingold, eds. 1998. Cause Lawyering: Political Commitments and Professional Responsibilities. New York: Cambridge University Press.
_____ eds. 2001. Cause Lawyering and the State in a Global Era. New York: Oxford University Press.
Smith, Dorothy E. 1990. Texts, Facts, and Femininity: Exploring the Relations of Ruling. London: Routledge.