Liminal legality and vulnerability of women under immigration law

While most people think of immigration status as being one or the other – documented or undocumented – millions of people are legally cleared to live in the U.S. with a temporary approval, often through the temporary protected status (TPS) program. “Temporary” doesn’t reflect the reality, though, as TPS status for designated countries is eligible for renewal every 18 months, and in the case of some countries, has extended for decades. Sociologist Cecilia Menjívar shared some of the shifting realities of “liminal legality,” a concept she developed after years of work with Central American migrants, as well as the particular roles of women in navigating immigration status. 

Menjívar is a distinguished professor of sociology and holds the Dorothy L. Meier Social Equities Chair at UCLA, where she directs the UCLA Center for the Study of International Migration. She appeared as part of the Clayman Institute's Feminism in Theory and Practice series, hosted by Writer in Residence Moira Donegan.

Liminal legality is a condition of being in between two different statuses. In the case of TPS, an entire country is designated as part of the program, and a migrant from that country who arrives in the United States can apply, the idea being that conditions do not permit safe return to their home country. The first country in the TPS program was El Salvador in September 1990, when a mass migration occurred because of civil war in that country (a conflict in which the U.S. provided financial support as part of a proxy war with the USSR). 

A country's TPS status must be renewed every 18 months. El Salvador was approved again in 2001 because of earthquakes, and has been renewed continuously since. Honduras also was renewed for more than two decades, following TPS designation in 2000 after a hurricane. An entire generation of Hondurans has grown up under a “temporary” designation. The current TPS list includes 15 countries, but the Trump administration has announced cancellation for nine of those countries, including Honduras. Those cancellations are stayed while legal challenges are pending.

The time of TPS’s creation, in 1990, so happened to be the time when Menjívar was conducting interviews for her dissertation work, an ethnographic project focused on the Salvadoran community in San Francisco, so she has studied TPS since its inception. She observes that while TPS can offer security and work opportunities for a time, it makes long-term personal security impossible. “It does have an effect on people’s lives, plans for the future, also how they think about themselves as members of society,” she said. Those in the U.S. under TPS are not allowed to apply for permanent residency as individuals. Temporary status programs have proliferated in the U.S. and Europe as well. Since she first published on liminal legality 20 years ago, many more populations are experiencing the ongoing uncertainties of temporary status.

I started to think of laws as a form of violence that’s not physical…but comes from structures, from institutions, from perceptions, stereotypes, attitudes, that combined have an equally powerful, harmful effect on the lives of immigrants.

Menjívar illuminated the ways in which liminal legality affects women and families. Many Central American women have migrated on their own, leaving parents or children behind. Some also form families in the U.S., meaning they have multiple households to support, often as heads of household. Throughout her work, she has noted that women commonly work two to three jobs at the same time because of the need for family support. While this situation also affects men, she notes that remittances, or money sent home, is different for men and women. Women send less money on average but a larger proportion of their income than men, and for longer periods of time. Menjívar sees these challenges as “under this umbrella of living temporarily.”

Another area disproportionately affecting women migrants is the scramble to address health care for themselves and their families. Legal status is required to obtain different services and resources including health care; the American Care Act (ACA) specifically mentions undocumented immigrants as ineligible by law. Multiple studies have found that, in absence of access to care, women are expected to be in charge of seeking informal health resources for their children, spouses, and themselves. They network with neighbors, friends, and co-workers to exchange information and sometimes medicine, or go to privately owned clinics and pay out of pocket. Women are expected to be the caring members of the families. Menjívar notes that these informal networks can be romanticized. While migrants do rely on each other, it’s not real care. 

Two other examples point to the particular vulnerability of women under current immigration policies. First, until 2022, under the H4 visa system for highly skilled workers, spouses of visa holders could not work but were issued a dependent visa. Men more commonly held the H4, and their wives the dependent visa. Research has found these spouses are more constrained in their ability to seek resources in situations of domestic violence, for fear of affecting the family’s immigration status. A second example concerns women who seek asylum because of gender-based violence (GBV), a claim that surged among Central American women and children arriving at the border during the Obama administration. To reduce those numbers, the first Trump administration eliminated GBV as a basis for asylum, a policy later reversed under Biden. Now, under the second Trump administration, there is no asylum or refuge granted for GBV. “Without saying women in the opinion, it was directed to women,” Menjívar said. 

Regarding immigration enforcement under the current administration, Menjívar said the existing web of policies represents an accumulation of choices over the last several decades. These include family detention and deportations under Obama, and expansive laws to criminalize offenses under Clinton. What is new now, based on this already large architecture, is the expansion of governance to involve more agencies such as the IRS, sharing more databases, and including multiple levels of government. Under the highly visible aspects of enforcement now, there exists a “context of increased fear.” 

This adds to a long-existing administrative structure that also causes significant harm. “I started to think of laws as a form of violence that’s not physical…but comes from structures, from institutions, from perceptions, stereotypes, attitudes, that combined have an equally powerful, harmful effect on the lives of immigrants,” she said. Such harm is embedded in institutions, laws, requirements, and policies that change continuously, including TPS and DACA, and keep people waiting for decades. “That, to me, becomes a form of violence,” she said, and curtails human potential. Recent increased enforcement only amplifies the fear and uncertainty of life already present through the legal violence of prolonged temporary status.