451888

inistration & Society XX(X)Pope and Garrett

© 2012 SAGE Publications
AAS45210.1177/0095399712451888Adm

Article
Administration & Society

America’s Homo 45(2) 167­–186

© 2012 SAGE Publications
DOI: 10.1177/0095399712451888
Sacer:  Examining U.S. aas.sagepub.com

Deportation Hearings and

the Criminalization of
Illegal Immigration

Paul James Pope1 and Terence M. Garrett1

Abstract
Border politics became a high priority for the U.S. government following the
terrorist attacks of 9/11, and illegal immigration became the “problem” of
the southern border dominating the news. The perceived loss of Americans’
safety, jobs, and health care was pinned to the “problem” of illegal immigra-
tion. The new border/security policies, with the onset of the War on Terror,
further criminalized immigration law and heightened enforcement of illegal
immigration.The authors examine the administration of “illegal” immigration
policies to test Agamben’s State of Exception and Homo Sacer theories—
used here to describe and explain U.S. immigration and deportation policy.

Keywords
Giorgio Agamben, homo sacer, state of exception, illegal immigration,
deportation

Introduction
In the wake of September 11, 2001, public discourse swirled with intense and
palpable fear of continued terrorist attacks by an inassimilable other. The
1
University of Texas at Brownsville, USA

Corresponding Author:
Paul James Pope, Department of Sociology, Political Science, Native American Studies, and
American Studies. Montana State University Billings, Billings, MT 59101, USA.
Email: paul.pope@msubillings.edu
168 Administration & Society 45(2)

government immediately leveraged this considerable anxiety to develop

domestic security policy that would manage and prevent further incursion of
these others. In particular, the perceived emergency threat propagated by
9/11 intensified scrutiny of American border policy and further problema-
tized the issue of illegal immigration (Coleman, 2007a, 2007b). The govern-
ment’s crackdown on illegal immigration became a paramount policy issue
that resulted in sweeping changes of federal and state laws prioritizing immi-
gration as national security (Orrenius & Zavodny, 2009). The effect was a
tenuously created connection between undocumented workers and the War
on Terror that only served to enhance the distinction between the sovereign
and the “invading” immigrant.
Post-9/11, it is of interest to note the dichotomy in border security poli-
cies between those of the U.S.–Canada border and the U.S.–Mexico border.
This variation in border policy, with primary attention given to the southern
border, may be attributed in part to racial prejudice of non-Whites, as argued
by Purcell and Nevins (2005). For instance, in 2002, the Social Security
Administration (SSA) began sending out letters notifying employers of non-
matches and nonissued social security numbers to employers. As a result,
many Latino interest groups claimed these government letters unfairly tar-
geted Hispanics (Orrenius & Zavodny, 2009; Waslin, 2003). “Othering”
becomes a mechanism that secures the identity of the citizen while stigma-
tizing the other (Grove & Zwi, 2006; Jamieson & McEvoy, 2005; Said,
1978). Othering facilitates the transition from the normal legal space to an
extralegal space.
Policing actions on the U.S.–Mexico borderlands are treated by U.S. pol-
icy makers as akin to low-intensity warfare (Coleman, 2007a; Dunn, 1996).
Like any war, low intensity or otherwise, entry of undocumented border
crossers can be construed as an emergency condition. Such hyperbolic dis-
tinction facilitates the transition from undocumented worker to the invading
other. Linkages between the War on Terror and border security policy
through the application of various apparatuses (Agamben, 2009) include
border fences and aerial drones, and increased number of boots on the
ground to control the border under a now-perceived heightened state of
siege. This transitive linkage process attaches the emergency of a terrorist
attack condition to the concerns over illegal immigration. Because the emer-
gency is merely perceived and not literal, no actual threat is necessary for
policy implementation. Contrary to this perceived “emergency,” according
to Passel and Cohn (2010) of the Pew Hispanic Research Center reports that
unauthorized immigration flows have actually sharply declined over the past
decade–a point that seems to be lost in public discourse.
Pope and Garrett 169

When the problem of illegal immigration of others evolved into an

emergency, it justified moving the matter outside the normal legal (civil)
circumstances. Even the suggestion that something is a threat can lend jus-
tification for an extraordinary policy response (Ackleson, 2005)—otherwise
known as the “state of exception” (Agamben, 2005). The State of Emergency
theory posits that in periods of political crisis (perceived or real) a state of
emergency exists (Schmitt, 1922/1985). Emergency conditions in the polity
result in the divergence from the normal practice of law, and the govern-
ment transitions into a condition outside of the normal rule of law. Agamben
(2005) takes Schmitt’s theory a step further to argue that there is a near
continual state of exception that exists in the government as an almost
purely political condition rather than being legally or constitutionally
grounded. The result is a constant state of anomie with regard to immigra-
tion and border security. The events surrounding 9/11—the attack on the
World Trade Center and the Pentagon—provided the Bush administration
with the rationale for the state of exception conditions to change immigra-
tion and border security policy. The oft-pronounced fear of another terrorist
attack and the desire for increased security made it very easy to justify the
now constant state of emergency.
However, Agamben’s State of Exception theory alone cannot completely
explain U.S. immigration policy, particularly U.S. policy regarding deporta-
tion hearings of those who enter the United States illegally. Agamben’s State
of Exception concept and his theory on homo sacer have a symbiotic rela-
tionship that makes the two theories applicable in the present analysis. While
the State of Exception theory explains the extra space carved out to justify
legal exceptions, homo sacer helps to explain the purpose of the policy of
the “illegally” created space.
In this article, we examine U.S. immigration policy, deportation policy,
and to a degree, border security, using the dual lens of Agamben’s State of
Exception theory and Homo Sacer theory as a means to test its application
for public policy. We analyze the State of Exception theory to explain the
development, administration, and discontinuity of American immigration
and border policy. The state of exception is specifically explored as it sets
aside a unique space in which to manage the removal of undocumented
workers (now defined as illegal immigrants) in the custody of government
agencies. In addition, we examine the loss of liberty within the deportation
hearing process rendering “illegal immigrant” as America’s homo sacer.
Finally, we conclude with an assessment of the problems occurring in
Arizona and the potential loss of human rights and liberties based on recent
laws passed by the border state. Although Arizona is by no means the only
170 Administration & Society 45(2)

state taking action against undocumented border crossers, it aptly serves to

illustrate the ongoing phenomenon of lawmakers becoming more aggressive
in designing policies ostensibly for increased national security. As the U.S.
federal government moves toward reassessing immigration policy, states—
as political actors in the U.S. federal system—have attempted to make an
impact on national policies by promoting more stringent laws against undoc-
umented border crossers and impacting American citizens who may appear
to look like them. We conclude the essay with a discussion of the implica-
tions of Agamben’s theories for American immigration policy as well as the
newly established practice of criminalizing undocumented border crossers.

The State of Exception and Government

In Political Theology, Schmitt (1922/1985)1 discusses the concept of the
“state of emergency,” or the suspension of law under certain perceived
emergency conditions. According to Schmitt, the state of emergency is sub-
ject to the authority of the sovereign because it is the right of the sovereign
to proclaim the state of emergency (Agamben, 2005; Scheppele, 2004).
Agamben (2005) further develops this in his discussion of the “state of
exception.” Such is the case with Agamben’s state of exception, however,
with a much lower threshold than Schmitt’s theory. Because the zone of
exception is narrow, the condition or the process to establish its creation is
equally small, perhaps even as simple as bureaucratic necessity. Rather than
an absence of law, it is merely an exception to it that creates a zone of indis-
tinction between law and nature (Agamben, 1995). This concept has impli-
cations for U.S. border and security policy.
The result of the ability to suspend and dispense with the law has been a
continual topic in the United States since 1887. It is unlikely that the Framers
of the U.S. Constitution would disagree with Schmitt’s interpretation of the
power of the sovereign. In the American system of government, in theory at
least, it is the people who are the sovereign. The preamble to the Constitution
is regularly pointed to as the resting place of sovereign authority. In
McCulloch v. Maryland (1819), Justice Marshall’s opinion points to the
Constitution’s ratification by the people and not the states.
Given the fact that the sovereign, in the case of the United States, is the
mass body of people—it was considered to be unreasonable for the Framers
to functionally leave such arbitrary power in the hands of the masses. The
power of the sovereign was delegated to the federal government and, to a
somewhat lesser degree, each state of the union through the constitutional
notion of representative democracy in a federal republic. The arbitrariness of
Pope and Garrett 171

suspending and dispensing with the law was to be removed by the adoption
and ratification of the Constitution with sufficient built-in safeguards. The
unilateral authority of such a power was replaced by the legislative (lawmak-
ing) process with checks and balances and separation of powers. Arbitrariness
of adopted laws and policies was to be overridden by a deliberative and sys-
tematic process by policy makers for such a circumstance creating conditions
necessary to institute marshal law—following the basic law of the land.
Schmitt’s interpretation of the power of the sovereign and his state of
emergency, for which he elucidates, has at times accurately described the
American system. Examples of it may well be seen in history (e.g., the U.S.
Civil War). When an emergency condition presents itself, the people have
delegated, as understood in Article I, §8 and the Habeas Corpus clause in §9,
of the Constitution, the power to suspend the law while in the state of emer-
gency to Congress or the President when Congress is not in session. The
Framers of the Constitution have permitted, in essence, the possibility of a
normalized state of emergency. Unlike the power under the control of a
monarch, or some other form of governmental leadership, the democrati-
cally elected leaders are the sole judge of emergency conditions—as is the
right of the sovereign. The constitutionally alleged sovereign American peo-
ple have established conditions that must first be met to allow their represen-
tatives to suspend the law.
On occasion then, the desire may exist for executives and legislatures to
aggrandize power or to deal with an emergency by unilaterally countervail-
ing the law—an action stopped by the existing structural process established
in the U.S. Constitution. At that point, at least in theory, the suspension and
dispensing of the law has a legitimate process. Such a process completely
countermands such arbitrariness of other systems when following the U.S.
Constitution. However, this assumes that the duly elected representative
government adheres to the said process. Foucault (1980) notes that

One impoverishes the question of power if one poses it solely in terms

of legislation and constitution, in terms solely of the state and the state
apparatus. Power is quite different from and more complicated, dense
and pervasive than a set of laws or a state apparatus. (p. 158)

Following Foucault, Agamben (2009) compares Foucault’s dispositif

with apparatus as “governmentality” or the “government of men” (p. 1).
Based on the structure of the U.S. representative democracy, a “government
of men” based on laws was the goal. If the requirement to suspend the law
for an emergency is a legal process, then an emergency condition must exist
172 Administration & Society 45(2)

to permit the process to go forward. To follow the process is to follow the

legitimate power structure that is not arbitrary. However, unless real “emer-
gency” conditions exist, there is a significant challenge to suspend and dis-
pense with the law. Under Agamben’s version of the theory, small exceptions
to the law are used to carve small zones of unilateral opportunity. Instead of
suspending or dispensing with all laws or even a significant portion, a little
niche of exceptions is created. The narrower the exception, the easier it is to
establish. The low threshold of “perception” is all that is necessary.
Agamben (2005) points to his State of Exception theory where the force of
law is separated from the law and, at almost a constant state, normlessness
becomes the norm. This is where Agamben’s theory diverges from Schmitt’s
theory. The management of security, particularly regarding border security,
has shifted away from the traditional measures of public administration to
that of political legitimation (Agamben, 2001). A good example for the
United States would be the previous condition of the constant state of emer-
gency embodied in the Cold War. Under the continual barrage of perceived
and real threats to its very existence, the United States was in a constant state
of emergency. The somewhat permanent condition of the Cold War emer-
gency was the normative state. Agamben suggests that the administration of
security becomes extensively a politicized process of maintaining “security.”
With security as an end, rather than a means of democracy, the two become
inconsistent and even antagonistic. The antagonism of this dichotomous rela-
tionship between security and democracy has led to the view of the others as
the enemy. This new state of exception that emerges replaces the legal-
constitutional state, which restricts civil liberties under the auspices of pro-
tecting them. The rights of the non-other are imperiled to limit the invasion
or influence of the others that put us at risk (Coleman, 2007a).
Agamben argues that as political life in a state of exception becomes more
politicized, the authoritarian or totalitarian state moves to the forefront as the
main political element in a given society. In the state of emergency, the emer-
gency changes the legal condition. In the state of exception, the exception is
created before the emergency is established. Ek (2006), following Agamben,
proposes that, through the power of the sovereign, Agamben was connecting
democratic and totalitarian states. Furthermore, when the state of exception
becomes the main political element, democracy and totalitarianism converge
(Ek, 2006). The sovereign, whether it is the people or the state (or individual),
has the power to establish the state of exception. In a democratic republic,
like the United States, people are frequently demographically categorized
and that category often has legal and experiential consequences. Prior to the
U.S. Civil War, there were Whites, slaves, and everyone else. Women had
Pope and Garrett 173

different legal conditions than men. At one point in American history, women
could not own property or vote. Each of these categories at different times
was the exception. The United States has a history of passing xenophobic
laws to exclude those who were perceived to be inconsistent with what was
thought to be prototypically “American” (Hines, 2006). In modernity, the
United States has continued its border security and immigration policy to
further divide the category of the citizen from the category of the noncitizen
(Hines, 2006; Thacher, 2005).
Johns (2005) argues that Agamben takes a very narrow read of Schmitt.
Johns’ critique of Agamben’s analysis of detainee policy in Guantanamo
Bay, Cuba, is based on the premise that absolutely no law exists in this
juridical or extrajuridical zone (Johns, 2005). Johns presumes that if there is
any order, in this case military order, then the state of exception does not
exist. It is our reading of both Schmitt and Agamben that having a unique
juridical space carved out for less than unique individuals exemplifies the
state of exception. The U.S. prison in Guantanamo Bay, Cuba, exists, in this
circumstance, to separate state-less individuals from the normal civilian
criminal justice system. Agamben is not suggesting a space of anarchy as
Johns seems to imply. The United States has regularly and effectively tried
and convicted a variety of international and domestic terrorists in civilian
criminal courts. So why are these prisoners in Guantanamo Bay divided
from the normal process? Johns defeats his own argument when he suggests
that the U.S. Congress took steps (following an already lengthy detention) to
restore detainees’ constitutional guarantees of equal protection and due pro-
cess (Johns, 2005). If a state of exception did not exist, then why would the
legal order need to be restored. Nowhere in Agamben’s presentation of his
theory did he promote the permanence of the exception, only that it is an
occurring (or reoccurring) phenomenon.
The focus for this article, however, is the category of the illegal immi-
grant, which we argue is not all that dissimilar to a Guantanamo Bay detainee
when considering their lack of basic human rights. Even terming this cate-
gory of person as “illegal” signifies and suggests they are outside of the
norm—unconnected to the sovereign—or the legal citizen. The noncitizen
becomes legally corralled as an exception and is a perpetual outsider.

Exception as the Norm of Immigration

James Ingram (2008) argues that human rights are somewhat ambiguous and
are part of the normative realm. Human rights, however, are anything but
normative, though there are several human rights that the majority of the
174 Administration & Society 45(2)

world may agree. The complication arrives when exceptions, as Agamben

has explained, become part of the force of law. Exceptions often exist as a
common part of the processes of the law. If you were to commit a serious
enough crime, you may be put to death. The penalty for a particular crime
may be the exception. Contrary to the language offered by those seeking to
execute such a prisoner, that prisoner never lost their right to life. The legal
authorities simply acquired proper justification to breach that particular per-
son’s right. From nation to nation the exception varies. In some countries,
only a single type of crime is penalized with the forfeiture of the life of the
convicted. Other countries may have a plethora of laws that their violation
results in this level of punishment. However, to legitimize the process, the
state must establish their justification. This phenomenon is what Agamben
(2005) calls the state of exception and Mathew Coleman (2007a) calls the
“juridical void” (p. 62). Both are presenting the definition of a normative
construct where the rule of law is discriminatingly applied.
The noncitizen is removed from the normative legal system and placed
into a “no-man’s-land” (Agamben, 2005) or extrajuridical space of punish-
ment (Coleman, 2007a). Coleman (2007a) indicates here that U.S. immigra-
tion policy and border security is an extra space that has been created as an
exception for alleged illegal immigrants. An immigrant, especially an immi-
grant entering the country illegally, is the ultimate definition of the other. The
lawmaker’s desire to alternatively deal with the perceived problem is ratio-
nalized here.
Illegal immigrants are by definition noncitizens. Citizens and noncitizens
are regularly portrayed as polar opposites on the continuum of citizenship.
Those who migrate into America illegally have violated the legal norms and
mechanisms by crossing the political boundary improperly. By entering the
country this way, and by the nature of their citizenship status, migrants are in
an extra zone or “space” as Coleman (2007a) describes. Because the sovereign
is designated as a legal citizen (born or naturalized), a noncitizen is not the
sovereign. Agamben (1995) describes this individual who is outside of the
normal juridical space as homo sacer. Homo sacer is the sacred or accused
man who is, based on Roman law, banned and may be killed by anyone but not
sacrificed (Agamben, 1995). This person is excluded from all rights and privi-
leges as a citizen. Excluding the murder element, the concept is that the desig-
nated (or categorized) homo sacer is outside the normal juridical space and is
treated as such currently in the United States. The exception created within the
legal mechanisms of the state power causes homo sacer to be both controlled
and excluded simultaneously within the process of government. The illegal
immigrant within the American system of both entry and citizenship equally
fits this definition as the banned individual under Roman law.
Pope and Garrett 175

Laws are in place as instruments of securing and maintaining power for

the sovereign (Orrenius & Zavodny, 2009; Rajaram & Grundy-Warr, 2004).
It is almost irrelevant for this discussion as to whom the role of sovereign is
assigned. The legal structure, either in a democracy or a totalitarian state, is
shaped around the authority of the sovereign. In the United States, the legal
power of the people as sovereign is derived from their legal status as citizens.
Hines (2006) points out that laws like the USA Patriot Act and the Real ID
Act further erode immigrants’ rights. These laws and other pieces of legisla-
tion further differentiate the legal immigrant from the illegal immigrant, and
from the citizen. The illegal immigrant is more than marginalized—They are
effectively and legally neutralized. By closing the corral ever tighter, the sov-
ereign increases its authority over the other, as the homo sacer is relegated to
ineffectual status—deprived of many basic human rights, such as emergency
room care, and rights of the accused in criminal courts are retained by the
illegal immigrant; however, the desire to afford them these rights by the polit-
ical system is persistently challenged by antimigrant opponents and lawmak-
ers. The subsequent antimigrant laws are intended to secure the power of the
sovereign from the threat of the other. Immigration policy becomes a security
policy to protect the citizen from the invasion of the noncitizen. Rajaram and
Grundy-Warr (2004) point out that it is the move from homogeneity to het-
erogeneity that creates the sense of “unruliness” the sovereign is unwilling to
tolerate (p. 36). The law then becomes the line between the sovereign and the
space occupied by the other—the homo sacer. An example of just such a law
was the passage of the Real ID Act in 2005—ostensibly designed by its con-
gressional advocates to better differentiate between the citizen and the non-
citizen. The new ID system was idealized by some in the Congress to be the
epitome of identification. However, the United States has yet to adopt a uni-
form identification system (Ni & Ho, 2008).
The rhetoric surrounding the Real ID Act is financial in nature. The Act
was intended to reduce problems surrounding immigration that are perceived,
or perhaps misperceived, to affect the overall economy. Considering that
immigration is geographically concentrated, the rhetoric is associated directly
with expenditures in these areas of concentration, mainly the border region
(Butcher & Piehl, 1998). Butcher and Piehl (1998) further suggest that the
language used for the illegal immigration problem is focused on who bears
the cost, and this has been extended to the American criminal justice system.
The primary costs amount to increased expenditures for detaining, process-
ing, and deporting illegal immigrants. This financial exigency suggests the
problem is nation-inclusive. However, insofar as a noncitizen is concerned,
the criminal justice system has been altered specifically to deal with them just
as Agamben suggests—as homo sacer.
176 Administration & Society 45(2)

Homo Sacer, or the Deported Man

The core of America’s values and culture was once articulated as the opening
salvo of the American Revolution via the Declaration of Independence. This
now-sacred American revolutionary statement from the Continental Congress
outlines the principles and philosophy of the new country apart from England.
It was influenced by ideas created from the philosophy of the Enlightenment
and set forth as a founding document. The second paragraph declares that
“[we] hold these truths to be self-evident, that all men are created equal, that
they are endowed by their Creator with certain unalienable Rights, that among
these are Life, Liberty and the pursuit of Happiness.” It is clear by this quota-
tion that the members of the Continental Congress advocated for the philoso-
phy of human rights rather than citizen rights. Even within the Bill of Rights
of the U.S. Constitution confers the most basic element of equal legal protec-
tion to the person or accused, not the citizen. The idea of individual liberties
is specifically a juridical concept that lends itself to the status of the citizen
(Flynn, 2003). Although a critical philosophical document of the American
founding, it is not a legal document. The document’s ideals, central to
American identity, are trumped by the U.S. Constitution and the subsequent
statutory laws of the sovereign.
The Fifth and Sixth Amendments to the U.S. Constitution establish many
rights individuals accused of crimes enjoy. It is easy to make a claim that
these rights are retained by all citizens. However, can such rights as written
in these two Amendments extend to the noncitizen? We believe they do.
Amendment Five never refers to the rights of a Grand Jury, double jeopardy,
self incrimination, and due process of law as belonging exclusively to the
citizen. The Amendment’s language is much more open-ended. The Fifth
Amendment merely confers rights to “persons” accused. It does not take an
overly broad read to see its application beyond the citizen.
The Sixth Amendment specifically refers to “the accused” as one who
enjoys the right to a speedy and public trial by an impartial jury, confronts
witnesses against her or him, obtains witnesses in her or his favor, and obtains
the assistance of counsel. These rights are not exclusively assigned to the
sovereign citizen. The open-ended language that the accused, any accused,
retains these rights is part of the American criminal justice process.
The grouping of the noncitizen as a separate category from the citizen is
nothing new. This category finds no foundation with regard to the criminal
justice system. By associating the individual to a special category, they can
now be classified as the other. Because of this reclassification, the individual
is now subjected to exceptions from the normal juridical space. Suspension
of the law becomes the force of law (Agamben, 2005). The suspension of the
Pope and Garrett 177

law, as described by Agamben, can be most ideally seen in the current U.S.
immigration policy, though it may appear that Agamben is arguing for a total
absence of law. However, it may be more practical to view a narrow juridical
space that is outside of the normal law that would govern such circumstances
through the state of exception.
Because the source of authority for the U.S. Constitution is derived from
citizens, they are capable of utilizing legal mechanisms to overcome an over-
zealous government. James Zink (2009) argues that the U.S. Constitution is
written and spells out citizen rights gives them the security to enforce those
rights. No such security is available to a noncitizen. The problems of illegal
immigration illustrate Agamben’s theory quite accurately. Being in this state
of exception adds a greater possibility of other rights and liberties being sub-
dued by this exception. The exclusive nature of the undocumented worker
becomes the norm as “the relation of ban has [now] constituted the essential
structure of sovereign power” (Agamben, 1995, p. 111). So, unlike the citi-
zen, the noncitizen does not have the full legal mechanisms to defend their
rights. This assumes, however, that there is a right to defend. The inability to
legally defend oneself exemplifies the circumstance of Agamben’s homo
sacer under this exception.
In the American legal system, the rule of law is applied and therefore a
consistent process must be maintained to justify the appropriate application
of power. Rights, according to the U.S. Constitution, are inalienable, mean-
ing, they do not go away under any condition. However, such rights are
often unenforceable with regard to people not of the sovereign state (Ingram,
2008).
The prospect of separating an individual from their rights and liberty
requires justification. The government, or at least the “authorities,” must
present their justification for the breach. The most effective method in a
nation organized around the due process of law is to establish a law. This
assumes of course the law in question is a just law, consistent with the pri-
mary guiding principle of the Constitution. The justification must be reason-
able, but an unjust law does not require reasonable justification. If the law
cannot be applied equally, then the likelihood of the law being unjust is high.
For instance, in the landmark case of Gideon v. Wainwright 372 U.S. 335
(1963), Justice Hugo Black delivered the opinion that in any criminal case
with serious penalties, such as loss of liberty by incarceration, the accused
would require the assistance of counsel. Such protections, as specified by
Gideon, however, are not made available in some capacity to many “non-
criminal” judicial processes in civil, administrative, or military courts. What
we are confronted with is the bare life of homo sacer that would have them
excluded with no rights to be redressed (Agamben, 1995).
178 Administration & Society 45(2)

In the next section of this article, we will focus attention to one particular
administrative court, immigration deportation hearings, which is an adminis-
trative law court system that is classified as an Article I civil court. Essentially,
it is a court where most rights, especially those of the “accused,” are filtered
out. The justification for altered treatment or rights within the context of
deportation hearings is that they are civil and not criminal. However, the loss
of liberty belies this process as being “civil” or even administrative.

Deportation of the Homo Sacer

The State of Exception is an apt analytical description of immigration depor-
tation hearings as a means of circumventing the Fifth Amendment.
Immigration courts were created specifically as administrative courts to
conduct hearings as an Article I court rather than an Article III court.
Immigration law is a plenary power of the federal government, deportation
trials are employed through administrative hearings that have significant
effects on the noncitizen’s liberty (Capitaine, 2001). Establishing deporta-
tion trials for illegal immigrants as “civil” rather than “criminal” allows the
federal government to completely bypass the majority of protections offered
by the Fifth Amendment. This policy poses three main legal challenges, or
hurdles, the potential deportee must combat.
The first and most obvious problem that occurs with a civil/administrative
hearing is the deportee has no right to counsel (United States Department of
Justice, 2008). Although this is certainly the case for any citizen in a civil trial or
hearing, no citizen has the impact of detention or ejection from the country that
is ultimately prescribed for the noncitizen. Civil trials are typically considered to
be elective trials rather than compulsory as contrasted with a criminal trial. The
loss a defendant may experience from a conviction, or in pretrial detention,
demands the protections outlined in the Fifth Amendment. No such right to
counsel exists for the illegal immigrant subjected to deportation hearings.
Second, unlike the noncitizen, a citizen of the United States never has to
face the possibility of detention in a jail cell within the context of a civil trial.
Combined with the lack of right to counsel, the American Bar Association
(ABA; 2009) announced that it opposed such pretrial detentions. Prior to
deportation hearings, following the conclusion of the hearings, and before the
actual deportation, the illegal immigrant is detained in a cell typically used
for criminal detention with virtually no chance for bail. In some cases, the
pretrial detention may last several months. In spite of the “civil” label, the
detention crosses the line into criminal proceedings, which under Gideon
should normally trigger the right to counsel.
Pope and Garrett 179

Third, because the right to counsel does not exist here, the U.S. immi-
gration courts allow the use of nonattorney representation to be made
available under certain circumstances. For those who are unable to acquire
counsel, the accused may have access to recognized and accredited repre-
sentatives. The accredited representative is a person who appears at trial
with the deportee in a similar capacity as an attorney. This person is not
required to be a licensed attorney but can be from a list of recognized non-
profit organizations (United States Department of Justice, 2008). The ABA
(2009) suggests that these representatives amount to ineffective counsel,
and combined with the detention and deportation elements, the Immigration
Court substitution practice violates the Fifth Amendment. If the defen-
dant’s representative is not a licensed attorney, no “right to attorney/client
privilege” exists.
The issue of detention combined with no right to counsel for the accused
illegal immigrant meets Agamben’s definition of homo sacer. The illegal
immigrant has been moved into what Coleman (2007a) describes as an
extrajuridical space—a space specifically designed for the noncitizen to be
excluded from the normal juridical space of the sovereign citizen. An illegal
immigrant as a defendant in a deportation hearing has all of the punishment
of a criminal defendant and none of the constitutional protections. The
deportation hearing itself is certainly within the normal juridical space. The
circumstance of the treatment and punishment of this specific category of
person exemplifies both the state of exception and homo sacer.
In the next section, the state of Arizona unilaterally attempts to circum-
vent and directly challenge some aspects of federal law intended by its lead-
ers to bring forward more severe sanctions against illegal immigrants
crossing into the state. Arizona is by no means the only U.S. state attempting
to preempt federal law to take immigration policy powers into its own
sphere. The state, however, has been a leader in attacking the perceived
problem of undocumented border crossers into its territory and is analyzed
here for its policy consequences intended for others outside of the citizenry.
The category of what constitutes a person without rights has been expanded
by the state of Arizona to include possibly citizens who resemble the homo
sacer coming across the border from Mexico.

The State of the State of Exception: Arizona

As of April 2010, Arizona’s governor, Jan Brewer, signed one of the most
stringent anti-immigration laws in the United States.2 Despite significant
attempts by the U.S. federal government to “secure” the southern border
180 Administration & Society 45(2)

through the REAL ID Act of 2005 and the Secure Fence Act of 2006,3
opponents of immigration in some border states, including Arizona, have
pushed for further restrictions beyond current federal immigration law. The
idea of forcing illegals into the state of exception, effectively rendering
them as homo sacer, is potentially being extended to the Arizona (and
American) Latino citizens of the state. A former Republican Arizona attor-
ney general (and current cochairman of the governor’s reelection cam-
paign) attempted to dissuade Governor Brewer from signing the more
rights-restrictive and expansive Senate Bill 1070:

The governor listened patiently, Mr. Woods recalled, as he laid out his
arguments against the bill: that it would give too much power to the
local police to stop people merely suspected of being illegal immi-
grants and would lead to racial profiling; that some local police offi-
cers have been abusive toward immigrants; and that the law could lead
to costly legal battles for the state.

When he hung up, Mr. Woods knew he had lost the case. “She really
felt that the majority of Arizonans fall on the side of, Let’s solve the
problem and not worry about the Constitution,” he said. (Archibold,
2010b, para. 2-3, italics added for emphasis)

The political pressure of the antimigrant interest groups in Arizona and

factions within the state Republican Party were too much for the governor to
bear politically as she signed the law effectively and potentially relegating a
portion of the state’s citizenry, Latinos, into Agamben’s category of the state
of exception.
The action taken by the Arizona governor and state legislature goes well
beyond federal law to the point that President Barack Obama described the
action as irresponsible (Archibold, 2010a). Furthermore, the President
stated in response to the law, that it served “to undermine basic notions of
fairness that we cherish as Americans, as well as the trust between police
and our communities that is so crucial to keeping us safe” (para. 5). Latino
groups in Arizona characterize the law as discriminatory and laying the
groundwork for law-enforcement harassment with the Mexican American
Legal and Educational Fund stating, “‘Governor Brewer caved to the radi-
cal fringe’ [and] predicting that the law would create ‘a spiral of pervasive
fear, community distrust, increased crime and costly litigation, with nation-
wide repercussions’” (para. 11). Civil rights activists in Arizona marched
on the Arizona state capital in Phoenix declaring intentions to fight the new
Pope and Garrett 181

law “saying it will lead to racial profiling of Hispanics despite the gover-
nor’s assurance abuses won’t be tolerated” (Davenport & Cooper, 2010,
para. 1). Arizona has become more of a “‘state’ of exception” in the ongo-
ing process of the denial of basic human rights to Latinos in Agamben’s
state of exception.

Whither Arizona, Wither the United States?

Illegal immigration could be greatly reduced by barricading the bor-

ders of Texas, New Mexico, Arizona, and California (a reverse Berlin
Wall staffed by special forces with orders to shoot to kill), and by
incarcerating captured violators in concentration camps, thus discour-
aging prospective violators by making failure too costly. Public policy
appears to be moving in these directions, but not dramatically—only in
successive, small increments. (Adams & Balfour, 2004, p. 124)

As Arizona trends toward increasing surveillance and disruption of the

lives of Hispanics living in its boundaries, whether citizen, guest worker, or
undocumented border crosser, the United States continues to build fences
passed by congressional acts to keep and maintain order—from San Diego,
California, to Brownsville, Texas. Beyond the border, 10 other U.S. states
are now considering passing laws restricting undocumented border cross-
ers, which may have an effect similar to those passed in Arizona (Wood,
2010). Federal and state laws have been designed to keep out the homo
sacer, the sacred without rights, intended primarily for the “illegal” aliens
determined by imposition of the state of exception. Arizona, through its
governmental leaders, has made a decision to further imperil some of its
citizens’ rights by expanding the state of exception to people of color under
a predetermined category used for discrimination. Despite President
Obama’s protestations and pronouncements to the contrary, strong antimi-
grant sentiments continue to hold sway in areas along the United States/
Mexico border.
We have found that Agamben’s twin concepts of the state of exception
and homo sacer are appropriate as analytical tools used to engage the cur-
rent state of affairs regarding immigration and deportation policy. The laws
passed to place under surveillance Latinos living in the United States—
whether citizen or not—mean a continuation of the violation of legal rights
for citizens, guest workers, and undocumented border crossers. The expan-
sion of the homo sacer continues apace. For the foreseeable future,
182 Administration & Society 45(2)

Americans will continue to live in a state of exception. Further research in

this vital area is warranted. Public awareness of the effects of the state of
exception and homo sacer by policy makers and citizens may lead to a bet-
ter immigration policy that befits a modern democratic state. The immigra-
tion and border security policies—and those who are directly affected—are
better served with a higher quality public discourse based on democratic
and human rights principles.

Notes
1. English translation of title from the original German title, Politische Theologie
(1922).
2. The text of Arizona Senate Bill 1070 signed by Governor Brewer “addresses a
range of issues relating to illegal immigration.” It would

•• Prohibit state, city, or county officials from limiting or restricting

“the enforcement of federal immigration laws to less than the full
extent permitted by federal law” and allow an Arizona resident to
sue an official or agency that adopts or implements a policy or prac-
tice that does so. The bill contains a “loser pays” provision that may
deter frivolous lawsuits.
•• Require law enforcement to make a reasonable attempt “when prac-
ticable” to determine the immigration status of a person if reason-
able suspicion exists that the person is in the United States illegally.
Officers do not have to do so “if the determination may hinder or
obstruct an investigation.”
•• Make it a state crime to be an illegal immigrant, by creating a state
charge of “willful failure to complete or carry an alien registration
document.”
•• Allow law enforcement to stop a driver if there is reasonable suspi-
cion that the driver is in violation of human smuggling and any civil
traffic law.
•• Make it a crime for illegal immigrants to work or solicit work in
Arizona.
•• Make it a crime to pick up a day laborer for work if the vehicle
impedes traffic while doing so. Make it a crime to be picked up as a
day laborer if the vehicle they get into is impeding traffic.
•• Make it a crime to conceal, harbor, or shield an illegal immigrant
if the person knows or recklessly disregards the immigrant’s legal
Pope and Garrett 183

status or does create a legal defense for someone providing emer-

gency, public-safety, or public-health services to illegal immigrants.
•• Allow law-enforcement officials to arrest a person without a warrant
if they have probable cause to believe the person has committed a
public offense that makes him or her removable from the United
States.
•• Require employers to keep E-Verify records of employees’ eligibility.
•• Reiterate Arizona’s intent to not comply with the Real ID Act of
2005, including the use of a radio-frequency ID chip (Rau & Rough,
2010).
3. See links in the references Real ID Act of 2005 and Secure Fence Act of 2006
(HR 214 and HR 6061, respectively) to follow the text of those laws.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research,
authorship, and/or publication of this article.

Funding
The author(s) received no financial support for the research, authorship, and/or pub-
lication of this article.

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Author Biographies
Paul James Pope, DA, received his DA in Political Science from Idaho State
University and is currently an assistant professor of public administration at Montana
State University Billings where he is the Director of the Master of Public Administration
program. His current research is concerned with social constructionism in public
administration, administrative law, and civil rights and liberties in public policy.
186 Administration & Society 45(2)

Terence M. Garrett, PhD, received his PhD from the University of Oklahoma and
is currently an associate professor of government at The University of Texas at
Brownsville and serves as the chair of the Government Department. He has published
works previously in journals such as Administration & Society, The American Review
of Public Administration, and Administrative Theory & Praxis. His current research
is concerned with phenomenology and organizational theory, homeland security, and
the postmodern turn in public administration.