Narrative Reform Dilemmas.

Author:Olivares, Mariela
  1. INTRODUCTION

    The way in which we tell our stories and describe our characters sets the foundation for how our audience perceives the story. Depending on the narrator's choices, our protagonist may be a hero against the wrongs of an unjust authoritarian system--or a terrorist working against a legitimate government. Nelson Mandela, even as a former President of South Africa, was on a U.S. government terror watch list until as late as 2008 and could not enter the country without a dispensation of U.S. immigration policies. (1) The U.S. government prohibited his entry as a communist sympathizer who fought against the once-recognized South African leadership. (2) Only with the wisdom of time and political awakening did the world fully recognize that Mandela fought for freedom against the apartheid regime and that his resistance against the government was just. Prior to this realization, however, Mandela was characterized in many popular media outlets of the time as a communist and terrorist leader of the revolutionary African National Congress ("ANC") South African party. (3)

    Though the passage of time may influence narrative choices, changes in rhetoric can have concomitant influence on political movements. For example, as this Article explores, the popular vilification of immigrants in the United States has negatively influenced the societal and political environment against immigrants. I discuss the power of narrative and outline ways in which advocates use this power to influence social and political opinion to effectuate legal reform. Importantly, however, I caution that advocates must be wary about reifying one community of people to the demonization of another.

    To juxtapose this approach using another contemporary example, I discuss the advocacy that eventually secured marriage equality rights for gay people in the United States as a case study for the power of narrative to achieve civil rights gains. When the U.S. Supreme Court decided the landmark case of Obergefell v. Hodges (4) in June 2015, a broad coalition of gay rights advocates and supporters celebrated the decision that provided same-sex couples with the same rights to marry as heterosexual people. (5) Yet, upon reflection on the language and tenor of the opinion, I wondered to what extent the opinion's exultation of the marriage institution would eventually harm the rights of other communities and families who did not seek marriage. This case study explores how the narrative of the Obergefell opinion builds upon and solidifies the primacy of the American marriage to the ongoing detriment of a non-traditional family structure and of an individual's choice to eschew the government-sponsored marriage institution. Although this fealty to marriage is not surprising in the context of civil rights advancement of marriage equality, the marriage narrative also demeans those who do not fit within its traditional purview.

    Consequently, I challenge the advocacy strategy that builds support for equality movements by using a traditional normative context--like the heteronormative narrative that sought to normalize gay marriage by drawing comparisons to traditional family structures but which ultimately results in the denigration of those residing outside these contextual boundaries. Analogously, then, advocates cannot simply replace one narrative with another in the fight for immigrant rights and equality. Instead, reforming the narrative must be strategic and informed.

    This Article proceeds in the following way. Part II lays an important foundation in understanding the historical context of public and political perceptions in immigration law and policy. Although there have been periods of relative acceptance of immigrants--including through legislative reforms in the 1980s that provided legalization to millions of undocumented agricultural workers--more contemporary rhetoric has returned to an environment overwhelmed by vitriol and scapegoating against immigrant communities. (6) Moreover, animosity against immigrants has historically and contemporarily included discriminatory and racist policies and laws that consistently target or implicitly affect immigrants of color. Thus, Part II frames the historical discussion as one of racial and ethnic subordination, particularly against Black and Latino/a immigrants, and comments on how the negative narrative against such communities has emerged.

    To consider how to turn this tide of harmful rhetoric, Part III provides an analogous illustration. As an example of how civil rights equality movements have successfully reframed a contentious debate, I discuss the marriage equality movement. The same-sex marriage debate and the fight for equality for gay people represent a useful example of how advocates created a tidal shift in the ways in which the larger society perceived gay people and their demands for equality. Through this brief historical discussion, Part III describes the gayrights movement, from a time in which the U.S. Supreme Court upheld criminalization of same-sex sodomy in 1986 (7) to the 2015 Obergefell decision in which the U.S. Supreme Court lauded the gay community and upheld same-sex marriage as a fundamental right. (8) Within this success, however, Part III introduces the concomitant effects that the advocacy strategy that sought to normalize gay people and their quest for marriage equality could have upon others who do not fit this normative rhetorical ideal. This is an important foundational discussion for Parts IV and V.

    Part IV comments on this advocacy strategy of normalizing narrative in the immigrants' rights movement. Using legislative and political movements that have garnered relative widespread support (even if not ultimately or yet successful), one can glean lessons from the DREAM Act, (9) the Deferred Action for Childhood Arrivals ("DACA") program, (10) and the advocacy efforts on behalf of unaccompanied immigrant minors. Using a framework of the vulnerable or helpless "good" immigrant has been a common and somewhat successful tool in reframing the debate in immigration reform. For example, although there was and is still considerable vehement opposition against undocumented immigrant children and families remaining and gaining lawful status in the United States, (11) there was a marked shift in rhetoric when high numbers of Central American unaccompanied children and mothers with their children arrived in the United States fleeing violence in their home countries in 2014. (12) It seemed as if the arrival of perhaps the most vulnerable of immigrants sparked a measure of compassion and humanitarianism that had not previously been the norm. Part IV discusses the power of narrative in immigration equality strategies but notes that past efforts have resulted in incomplete successes.

    Part V warns that strategies relying upon the normalization of immigrants will result in the same effects as in the same-sex marriage debate. Just as prioritizing the marriage institution has effects on those who eschew the traditional marriage norm, touting the worthiness of seemingly vulnerable immigrants will have effects on other immigrants who do not fit the archetype. In this sense, the role of the advocate for immigrant equality must be cognizant of the resulting dilemma in achieving results for one group, only to increase the burden on another. Indeed, the immigration law and policy consequences of demonizing one community to uplift another will lead to serious and irreversible consequences for the ostracized group. Finally, critical legal scholars teach that meaningful gains towards civil rights equality must pay heed to the dominant political majority, who condones reform only when it is in its own interests. This Article concludes by acknowledging these conflicts and realities, while encouraging advocates to create a politically viable narrative that capitalizes on the invigorated public consciousness about immigrant inequality. Although I am unsure of the ultimate successful narrative strategies, the aim of this Article is to engage advocates and political communities in strategic and productive conversations that will advance the immigrant justice movement.

  2. SETTING THE STAGE FOR THE IMMIGRATION RHETORIC

    The societal and political perception of immigrants' presence in the United States has gone through permutations spanning the spectrum of early inclusiveness to vehement opposition. Indeed, in our country's earliest history, there was no formalized immigration law but instead a largely unregulated regime of open borders. (13) In the late eighteenth century, states began to legislate about topics surrounding migration, which prompted the nascent federal government to recognize the problematic system of allowing each state to make its own rules regarding the migration of people. (14) What resulted were the federal government's efforts to regularize immigration law and policy through common law decisions and eventual legislation. These earliest years of federal immigration power represent the seeds of congressional plenary power, the broad, all-encompassing power of the federal government to regulate immigration law. (15)

    Within the establishment of these broad powers, the law was explicitly and pointedly discriminatory against immigrants of color, reflecting the general racist political and societal climate of the time. (16) As one of the most notorious examples, the U.S. Supreme Court, in Chae Chan Ping v. United States, upheld the Chinese Exclusion Act of 1882, which restricted the immigration of Chinese immigrants to the United States. (17) In the early 1800s, there was relatively minimal immigration from China, but the number of Chinese immigrants surged towards the end of the 1800s as labor shortages hindered the growing American industrial economy, prompting efforts to bring Chinese laborers. (18) As the numbers of Chinese immigrants increased in the United States, and as they...

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