Migrant illegality, nation-building, and the politics of regularization in Canada.

Author:McDonald, Jean
Position:Interview
 
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Abstract

Regularization, a means for people living with precarious immigration status to legalize or "regularize" their status, is a central demand of immigrant rights groups across Canada. From a perspective of No Borders, does the demand for regularization, while challenging the day-to-day practices of Citizenship and Immigration Canada, also unintentionally reinforce state power? Historical research on regularization programs in Canada suggests that regularization programs do not eliminate migrant illegality but reconfigure it. In this way, regularization may be implicated in processes that both makes and unmakes illegality within the context of immigration and citizenship in Canada.

Resume

La regularisation, un moyen pour les personnes vivant avec un statut d'immigration precaire de legaliser ou de > leur statut, est une revendication centrale de la defense des droits des immigrants partout au Canada. D'un point de vue No Border, la demande de regularisation, tout en contestant les pratiques usuelles de Citoyennete et Immigration Canada, ne renforce-t-elle pas aussi involontairement le pouvoir etatique? La recherche historique sur les programmes de regularisation au Canada indique que ceux-ci ne suppriment pas l'illegalite des migrants; ils ne font qu'en modifier la configuration. De cette facon, la regularisation peut etre impliquee dans des processus qui a la fois font et defont l'illegalite dans le contexte de l'immigration et de la citoyennete au Canada.

Introduction

Regularization, a means for people living with precarious immigration status to legalize or "regularize" their status, is a central demand of immigrant rights groups across Canada. But what are the implications of this demand? Coming from a perspective of No Borders, does the demand for regularization, while challenging the practices of Citizenship and Immigration Canada, also unintentionally reinforce state power? Historical research on regularization programs in Canada from 1960 to 2004 demonstrates that the regularization process is a nation-building exercise. "Regularization" is the term most often used by government officials to describe programs that offer opportunities for people living with precarious immigration status in Canada to apply for permanent status. (1) Regularization programs, however, do not eliminate migrant illegality; instead this illegality is reconfigured through the regularization process. In this way, regularization may be implicated in processes that both make and unmake illegality within the context of immigration and citizenship in Canada.

The theoretical concept and methodological approach of governmentality (2) is useful for exploring processes of illegalization within the context of immigration policy in Canada. "Illegalization" refers to those processes that make people illegal: processes that illegalize certain bodies in particular spaces within the globalizing nation-state system. In Canada, we can see the ways in which people are made illegal through the classist, gendered, and racist processes of selection and exclusion embedded in the Immigrant and Refugee Protection Act (IRPA). The majority of people living with precarious immigration status in Canada are people who do not meet the restricted requirements of the points system, a system that emphasizes particular work skills and economic status while also privileging an education from white-dominated countries, such as Australia, the US, the UK, and others. Unable to access the points system, many have submitted refugee claims or have failed these claims and have decided to remain in Canada rather than face persecution in their country of origin. Others hold work, visitor, or student visas or have overstayed their visas. From a governmentality approach, processes of illegalization--the processes that make a person "illegal"--can be understood as created not solely through state bureaucracies and institutional mechanisms but also through technologies of government. Who should be governing, who needs to be governed, what social practices need governing, all become thinkable and rationalized through social institutions and practices on, and of, the self--not simply through official state policy. One of the techniques of power in this regime of governmentality is the definition of various categories of deviants in opposition to "normal" society.

In Canada, this practice of categorization becomes clear in an examination of regularization programs from 1960 to 2004. It is through the criteria that determine eligibility for permanent immigration status that definitions of deserving and undeserving applicants become thinkable. The legality of a person, then, becomes thinkable and acceptable through various technologies of government that define and make rational the categorization of deserving migrants as opposed to those deemed "undesirable." This in turn legitimates immigration policy that operates under the anti-immigrant discourse of the need to protect the Canadian national body politic from possible "foreign" contamination, constructing the Canadian nation as valid and pure/purified.

While politicians often consider regularization programs to be a "humanitarian act of a compassionate government" (3)-a way to deal with the "problem" of illegal immigrants--historical research complicates this view. From 1960 to 2004, regularization programs have been characterized as onetime-only procedures. Generally coinciding with stricter border controls and increased enforcement, regularization programs often foretell an increase in the production of migrant illegality, as legal channels for migration become minimized and enforcement measures are increased.

Primary research from a project entitled "Non-Status Immigrants: Exploring Models of Regularization," which took place in 2004-2005, (4) will form the basis of this paper. In this project, the research team, of which I was a part, undertook historical and archival research, as well as conducted key informant interviews, focus groups, and round-table discussions on regularization programs in Canada from 1960 to 2004. In this paper, I will first outline the major regularization programs in Canada from 1960 to 2004 to better understand how regularization programs reconfigure illegality during this time period. In the second section, I examine common criteria for exclusion in the regularization process by posing the question: what are some of the anti-immigrant and racist discourses that have been reproduced through regularization? Through a discussion on the politics of regularization in Canada in the third section, I elaborate on the idea of illegality as a process and expand upon processes of illegalization in the context of immigration policy in Canada.

Regularization: The Making and Unmaking of Illegality

Within the Canadian context, the term "regularization" tends to be used more frequently than the term "amnesty" by government officials and immigrant rights' advocates alike when describing programs that provide the opportunity for non-status (im)migrants to apply for legal immigration status. Rivka Augenfeld, a long-time community activist and worker with the Jewish Immigrant Aid Services (JIAS) in Montreal, Quebec, notes that government officials are highly averse to using what she calls "the 'A' word"-amnesty. (5) Instead, government officials are far more likely to use the term "review" or "regularization" to describe programs that provide full legal immigration status to those without living without it in Canada. Other immigrant rights' activists, such as Jaggi Singh, point to the politically biased connotations of the term "amnesty" as a form of forgiveness for the supposed wrongdoing of illegal immigration status. (6) The term regularization, however, has its own connotations similar to that of normalization as understood within a Foucauldian framework--whereby "regular" status means those with legal immigration status, while 'those without legal status must be "irregular" within this governmental logic.

The Chinese Adjustment Statement Program (1960-1972) is likely the first formal regularization program in Canada. This program allowed for Chinese migrants who came to Canada without status documents, or with the documents of a relative of a Canadian citizen (commonly referred to as "Paper Sons" (7)), to apply for permanent residency. (8) Applicants needed to demonstrate that they were of "good moral character" and were not involved in the "industry" of "illegal immigration." (9) Chinese communities in Canada were active in pressuring the federal government to change racist immigration laws that had for decades excluded Chinese immigrants, such as the Chinese Head Tax and the Chinese Exclusion Act. (10) It is estimated that around 12,000 people were regularized through this program. (11)

Following the Chinese Adjustment Statement Program, the Adjustment of Status Program (in French, Operation Mons Pays; in English, also known as "Project 97" (12))--the largest regularization in Canada to date--was implemented in 1973. (13) In the early 1970s, an increasing number of migrants became non-status. This was due, in part, to the 1972 changes in federal immigration policy when Section 34 of the 1967 Immigration Act was repealed. This barred potential applicants from applying for permanent residency from within Canada. (14) Many community groups and political organizations advocated for a regularization program, and garnered much public support. Despite the narrow time frame--August to October of 1973--tens of thousands applied. (15) Information about the program was widely disseminated, largely through community organizations. (16) Although it is unknown how many were excluded or rejected, an estimated 39,000 people were successful. (17)

In 1981, eight years after the Adjustment of Status Program, Haitians living in Quebec fought for and secured a regularization program. By 1980, more and more...

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