How Discussions of Latinos in the Legal System Omit Racism within Latino Communities

by Miguel Medina
Associate Editor, Vol. 25

The Trump Administration has weaponized immigration policy in an attempt to appeal to its voter base. In the process, immigration has been thrust to the forefront of American political discourse. For some, seeing immigrant children in U.S. concentration camps is new and jarring.[i] For others in certain communities, the use of such tactics is the status quo experienced by many, well before Trump was sworn in.[ii] The heightened number of asylum seekers from Central America has continued to center conversations on immigration around the impact Trump’s policies have on Latino communities.[iii]

There is no doubt that in most circumstances the impact has been harmful. So much so that, to the average American, there is an accepted narrative that Latinos, as a collective group, have experienced a constant adversarial relationship with the U.S. government. I contend that such generalizations are dangerous. I begin with the obvious: to be Latino merely points to some ancestral connection to countries in Latin America. Massive Black, Arab, Asian, Jewish, and white populations in Latin America attest to the waves of both forced and willful migrations to the region. There is no one Latino identity and certainly no one way a person will experience being Latino. Concluding otherwise runs the danger of erasing Black and Indigenous experiences from Latino discourses while at the same time downplaying the power white Latinos carry when they navigate society.[iv]

The essentialization[v] of Latinos has come up several times in my Race and Law class at the University of Michigan Law School. The class is taught by Professor Michelle Crockett, a lecturer at the Law School and a partner at a major law firm in Michigan. It’s a worthwhile class. Professor Crockett encourages in-class discussion. She also welcomes (and provides) criticism of the assigned text. Much of our reading comes from our casebook Race and Races.[vi] Although the casebook authors make a valiant attempt to outlay legal histories for various groups in the U.S., they ultimately present a reductionist narrative of “Latinos” and their “history.”[vii] They don’t give enough attention to the fact that within these histories, Latinos are both victims and aggressors.

The text reproduces an often-recounted tragedy: after the Mexican-American War ended in a U.S. victory, the Treaty of Guadalupe Hidalgo was ratified by both governments. Mexico ceded over a huge swath of land that makes up part or all of present-day Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming. Mexico also gave up its claims to Texas. In exchange, Mexico was compensated with 15 million dollars.

No one can argue in good faith that the agreement was an equitable one. Silent from the text, however, is the most basic of ideas constantly brought up when discussing Anglo-Americans and their claims to the Western Frontier: this wasn’t the Mexican government’s land to cede in the first place. Mexico, like the United States, is a country founded upon stolen Indigenous land wrought through brutal colonization.[viii] Both nations’ economic and political institutions continue to derive their power from the post-colonial ramifications of racism[ix] and slavery.[x] Discussion of the inequitable trade ignores the real tragedy: the persecution endured by Indigenous and mixed-race Mexicans, while white (or those recognized as white) Mexicans were given U.S. Citizenship.[xi] The narrative should not center on U.S.-Mexico relations (or even on Mexicans generally), but rather on people of color navigating and resisting white supremacy.

Another of the casebook’s many shortcomings is its discussion of Operation Wetback.[xii] The authors rightly point out that this program was a military-styled campaign designed to stop undocumented immigrants from crossing into the border, removing those already here, and making life so unbearable that people chose to leave of their own accord.[xiii] Between 1954-1959, 3.7 million people were systematically deported from the United States.[xiv]

As class was ending on the day that we discussed Operation Wetback, a classmate raised his hand. He added the importance of recognizing that many people feel they have no choice but to immigrate without authorization to the United States because of U.S. policies that have destabilized their home countries. This is unquestionably true. In fact, the campaigns of terror that the U.S. government unleashed onto immigrant communities back then continue to this day. Yet, the conversation cannot stop there. What the casebook leaves out is that the Mexican Government was one of the main architects of Operation Wetback. Mexican elites,[xv] frustrated by the lack of domestic agricultural labor, demanded that their workforce be returned to them.[xvi] The Mexican government complied, and the rest was relegated to a history few are aware of. (Again, why this class is worthwhile, especially for those who did not take critical history courses in undergrad.)

This blog post focuses on how conversations regarding Latinos and the law often fail to incorporate race and overall power relations within Latino communities. I use my casebook’s discussion on Mexican cessation and Operation Wetback to illustrate how complicated it is to grapple with Latinos and our histories. While on one hand we are often the victims of brutal measures taken against us, we also share a colonial, muddied past. History shows us that Latinos have also contributed to white supremacy and its oppressive structures. These examples also highlight the immense struggles that Indigenous and Black Latinos experience, whether in an Anglo or Latino space. Images of immigrants in cages resonate with us and it’s easy to reduce those experiences by faulting only Anglo Americans. Working with LGBT asylum seekers[xvii] from Central America this summer, I was told stories of immense xenophobia, transphobia, and other forms of bigotry against my clients as they migrated through Mexico.

I focus on Mexico only because the casebook did. I am the first to acknowledge that my birthplace of Colombia continues to be marred by the lingering effects of a devastating regime of slavery. The point of this blog post is to stress the importance of not dismissing race when studying how Latinos navigate the U.S. legal system. Doing otherwise erases the anti-blackness and colorism within our communities.

After George Zimmerman killed Trayvon Martin he was often portrayed in the media as a “White Hispanic.” An absurd situation subsequently arose where progressive Latino groups criticized the media’s emphasis on his Hispanic heritage and conservative groups criticized the media for the use of the term “white.”[xviii] For many it is difficult to accept that a Latino, armed with his own whiteness and white supremacist views, could kill an unarmed Black teenager with impunity. Both in the classroom and on the streets, if we contend to have serious conversations regarding Latinos and the law, we must be ready to address the complexities of race within Latino communities.

[i] Is such shock warranted? See generally Korematsu v. United States, 323 U.S. 214 (1944).

[ii] Why Are Families Being Separated at the Border?, Bipartisan Policy Center (Jun. 19, 2018), https://bipartisanpolicy.org/blog/why-are-families-being-separated-at-the-border-an-explainer/

(“Previous administrations used family detention facilities. . . .  Some children may have been separated from the adults they entered with. . . .  Both the Obama and Trump administrations have tried to establish more capacity to detain families and children, rather than releasing them until their hearing date”).

[iii] This diminishes the impact the government’s immigration policies have on non-Latino communities. See generally Jack Herrera, Most Undocumented Immigrants Are Not Mexican, Pacific Stand. (Jun. 19, 2018), https://psmag.com/news/most-undocumented-immigrants-are-not-mexican.

[iv] Which is particularly jarring given the fact that Latin America received more slaves than the United States did. Spain & Portugal transported more slaves than any other country. Brazil received the most slaves, followed by the Spanish colonies.

[v] Essentializing means to assume that individual differences of certain groups can be explained by inherent or biological characteristics shared by members of a group. Essentializing groups results in thinking, speaking and acting in ways that allow for stereotypical and inaccurate interpretations of individual differences.

[vi] Juan F. Perea, Richard Delgado, Angela P. Harris, Jean Stefancic & Stephanie M. Wildman, Race & Races: Cases and Resources For A Diverse America (3d ed. 2015).

[vii] Although we were on notice the authors were not intentional enough with their aims given that Chapter 4 of the casebook is unapologetically entitled: “Latinos/as.” Id. at 279. The chapter mostly focuses on Mexicans and Puerto Ricans and did not cover all “Latinos.”

[viii] The casebook authors, on the other hand, characterize Mexico’s independence from Spain as a “peaceful revolution” without pointing out how nation building is an inherently racist, violent process.  Id. at 282.

[ix] Race relations in Latin America are incredibly complex owing, in part, to the higher rates of miscegenation. The one drop rule does not apply like it does in the United States. An intricate caste system in Spanish (and Portuguese) colonial America impacted how much political and economic power any given person would have. Such dynamics continue to this day.

[x] Both Black and Indigenous slavery.

[xi] Id. at 294-295. Technically all Mexican citizens who chose to remain in the ceded territory would at some point determined by Congress receive U.S. Citizenship. In reality White Mexicans were the ones that enjoyed most of the benefits that came with being a citizen. For a history of lynching against those of Mexican descent in the United States: See generally William D. Carrigan & Clive Webb, The Lynching of Persons of Mexican Origin or Descent in the United States, 1848 to 1928, Journal of Social History, Vol. 37 No. 2 411-38 (2003).

[xii] Growing up, I was told that Wetback was a slur given to undocumented immigrants since some had to cross the Rio Grande to enter the United States.

[xiii] Race & Races: Cases and Resources For A Diverse America at 337.

[xiv] Id.

[xv] Mexican elites, on average, are lighter skinned or white. There is a common saying that money “whitens.”

[xvi] For a detailed account on how the Mexican Government helped to implement Operation Wetback: See generally Kelly Lytle Hernández, The Crimes and Consequences of Illegal Immigration: A Cross-Border Examination of Operation Wetback, 1943 to 1954 The Crimes and Consequences of Illegal Immigration: A Cross-Border Examination of Operation Wetback, 1943 to 1954, Western Historical Quarterly Vol. 37, No. 4 421, 421-44 (2006).

[xvii] Many asylum seekers are of Indigenous descent and they often face discrimination and hardship. In many cases, Spanish is not their primary language adding to their difficulties as they migrate up to the United States.

[xviii]Julianne Hing, The Curious Case of George Zimmerman’s Race, Color Lines (Jul. 22, 2013), https://www.colorlines.com/articles/curious-case-george-zimmermans-race..