Undocumented : How Immigration Became Illegal (9780807001684) (16 page)

In rural Irwin County in Georgia, the privately run Irwin Detention Center was the county’s top employer. As the prison population dwindled in 2009, the county teamed up with the company that ran the prison to seek a contract with ICE. Paradoxically, said a report in the
Nation
, “even as Georgia and Alabama passed harsh new immigration laws last year designed to keep out undocumented immigrants . . . politicians from both states were lobbying hard to bring immigrant detainees in. ICE succumbed to the pressure, sending hundreds of detainees to the financially unstable facility in Georgia that promised to detain immigrants cheaply.”
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CONCLUSION

Undocumented people face a veneer of ordinary life undergirded by permanent uncertainty. In the film
El Norte
, Nacha, a more seasoned undocumented Mexican woman, tries to convince Rosa, a newly arrived Guatemalan, to sign up for English classes, free and offered by the government. Rosa worries that the school will turn her in to immigration, and Nacha reassures her that it won’t. “Don’t try to understand the gringos,” she laughs. “It will drive you crazy.” Since the situation and the policies are essentially incomprehensible, the best an undocumented person can do is try to survive day by day and hope for the best.

CHAPTER 5

As we have seen, work has been central to the Mexican experience in the United States since the nineteenth century, and Mexican workers have been critical to the growth of the US economy. Prior to 1965, racism and the law—including government-run guest-worker programs like the Bracero Program—enabled and justified unequal treatment for Mexican workers.

After 1965, when the Bracero Program ended and numerical restrictions were placed on Mexican immigration, new systems and rationales were needed to maintain the supply of cheap Mexican labor. Undocumentedness took on a new importance in the labor market, replacing earlier methods of legally compartmentalizing Mexican labor. The undocumented were channeled into the same types of jobs that Mexicans had long occupied. Reflecting the new significance of undocumentedness, the 1986 Immigration Reform and Control Act (IRCA) was both the first legislative attempt in the country’s history to address this issue and the first immigration legislation to specifically address the issue of work, making it illegal for employers to hire workers who lacked documents.

At first glance, this may seem paradoxical. If undocumented Mexican labor was so necessary, why make it illegal? But IRCA made it illegal with a large wink. Employers were required to obtain proof of eligibility to work from new hires, but they were not required to evaluate the documents they were shown. They could be punished for knowingly hiring undocumented workers, but usually only received a small fine. IRCA, it turned out, was more for show than for changing the country’s labor structure. It was a bumbling intervention that succeeded in making migrant workers more vulnerable, while actually contributing to increasing the numbers of the undocumented.

Though they comprise a small proportion of the overall workforce (about 5 percent), workers without documents continue to occupy crucial niches in the economy.
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This chapter and the next will look at how undocumentedness became an important factor in the labor market and what kinds of jobs undocumented people fill.

MAKING WORK ILLEGAL

Although the 1965 immigration law made it illegal for many Mexicans to enter or remain in the United States, it did not specifically prohibit undocumented people from working, nor did it forbid employers to hire them. The 1952 immigration law known as the McCarran-Walter Act had made it illegal to “conceal” or “harbor” a person who was undocumented, but not to employ them. The law included the so-called “Texas Proviso”—to satisfy Texas business interests that depended on undocumented Mexican workers—stipulating that employment “shall not be deemed to constitute harboring.” Thus, in the words of the Immigration and Naturalization Service general counsel, “there was no prohibition at all on employment of illegal aliens.”
³

The idea of criminalizing employment gained ground toward the end of the century. Senator Peter Rodino introduced the first national employer sanctions bill in 1973, but it failed to pass in the Senate. In 1986, though, employer sanctions were a key element of the new IRCA. Many progressive organizations including the AFL-CIO, the NAACP, and the Leadership Council on Civil Rights, a national coalition of 185 civil rights organizations and the country’s “premier coordinating mechanism for civil rights advocacy before Congress and the executive branch,” all supported the idea, although the Leadership Council was “sharply divided.”
⁴
A century earlier, the AFL had openly excluded nonwhites from membership. Now it joined civil rights organizations in advocating for discrimination based on citizenship.

In 1990, the NAACP reversed its position after an acrimonious debate. The AFL-CIO did the same in 2000. Those favoring the sanctions argued that citizenship should determine rights. The presence and the hiring of undocumented people, they claimed, lowered the floor and made it harder for blacks or for American workers to obtain decent employment. If it became more difficult for the undocumented to work, they reasoned, employers would have to improve conditions and employ citizen workers. “If you withdraw those sanctions, then you open the door and you flood this state with a multitude of undocumented aliens who will take the jobs of blacks and other minorities,” one NAACP branch president explained.
⁵

For Latino organizations, though, employer sanctions are a civil rights issue, and discrimination based on status is both harmful to workers in general and conducive to racial discrimination. (It is notable that to be heard in the public sphere, immigrant rights advocates must often frame their arguments in terms of racial discrimination—showing, for example, that anti-immigrant policies contribute to racial profiling—since the idea that humans deserve equal rights regardless of citizenship status is practically untenable in today’s climate.) Armed with a March 1990 GAO report that found a “widespread pattern of discrimination,” especially against Latinos and Asians who were thought to look “foreign,” Latino organizations launched a campaign to press the Leadership Council and the NAACP to withdraw their support for the sanctions. Both organizations eventually did so.
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Opponents reversed the argument about the sanctions protecting citizen workers from a feared flood of the undocumented. Instead, they insisted that the sanctions themselves lowered the floor for everyone. By making a large group of workers more vulnerable to exploitation—because they have little recourse under the law—sanctions enable employers to lower wages and working conditions, with little fear that workers will protest or organize. Thus, the sanctions paradoxically make undocumented immigrants a
more
desirable workforce, because the sanctions make them more desperate and more willing to accept substandard working conditions.

Nicholas De Genova argues that, while billed as “employer” sanctions, the system actually targeted the workers, not the employers. Potential workers had to purchase false documents, and a new industry emerged to produce them. Employers still hired them, but now they were triply vulnerable: to the document industry, to the employer, and to the possibility of arrest and deportation. Rather than punishing employers—who were routinely given warnings prior to inspections of their hiring records or subject to token fines, at most—the law instead placed new burdens and new penalties on the workers.
⁷

During the Bush administration, workplace raids became the major public face of immigration enforcement. These were high-profile operations that let government authorities bask in the public impression they created that they were getting tough on immigration. The Michael Bianco, Inc., factory in New Bedford, Massachusetts, in March 2007; the Agriprocessors plant in Postville, Iowa, in May 2008; Swift (at multiple sites) and Smithfield (North Carolina) meatpacking plants in December 2006 and January 2007; and Howard Industries electronics plant in Laurel, Mississippi (August 2008), were the sites of just a few of the many raids. Immigration authorities would descend upon the workplace and round up workers, arresting hundreds. The largest were the Swift raids, where over twelve hundred workers were arrested in a sweep of six plants.

Barack Obama publicly criticized the raids when he was a candidate for president, proclaiming during his convention speech that “I don’t know anyone who benefits when a mother is separated from her infant child.” But he also defended enforcement of sanctions, continuing to decry the effects when “an employer undercuts American wages by hiring illegal workers.”
⁸
As a senator, he pressed for E-Verify, a federal program designed to electronically detect fraudulent documents and prevent the hiring of the undocumented.

As president, Obama pursued a policy during his first term that some have termed “silent raids.” Instead of descending on the workplace and making arrests, the new policy used audits. ICE would require a business to turn over employment eligibility forms for all of its workers. “Since January 2009,” the
Wall Street Journal
reported in May 2012, “the Obama administration has audited at least 7,533 employers suspected of hiring illegal labor and imposed about $100 million in administrative and criminal fines—more audits and penalties than were imposed during the entire George W. Bush administration.”
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With the audits, workers are not deported. But they do lose their jobs.

UNDOCUMENTED JOBS

Most undocumented people work in three specific types of jobs, all of which tend to be low wage and low status, offer few if any benefits, have difficult or unstable schedules, and offer little job security. They may be seasonal or involve night shifts. The work is generally heavy, unpleasant, dirty, and even dangerous.

Agricultural jobs, especially in plantation and other large-scale enterprises, have always occupied a special low status and employed many legally excluded workers. As large-scale agriculture spread through the Southwest in the twentieth century, migrant Mexican workers became the primary labor force. Today, 42 percent of agricultural workers work as migrants—that is, they follow the crops. Seventy-five percent of farm workers were born in Mexico, with 2 percent born in Central America and 23 percent in the United States.
¹⁰
Only about 4 percent of undocumented immigrants work in agriculture, but they make up somewhere between 25 percent and 90 percent of all agricultural workers.
¹¹
The National Agricultural Worker Survey conducted by the US Department of Labor has consistently found approximately 50 percent of agricultural workers as undocumented over the past twenty years.
¹²
Some analysts, such as Rob Williams of the Migrant Farmworker Justice Project, believe that the percentage is even higher, up to 90 percent or more, since many people when interviewed will not admit to being undocumented.
¹³
The seasonal and back-breaking nature of farm work, along with dangerous, often unregulated conditions and low pay, make these jobs unattractive to potential workers who have the advantage of citizenship. Most farm workers only find work for about thirty weeks of the year and earn $12,500 to $15,000 annually.
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Second, undocumented people work at jobs that have been in-sourced or relocated within the United States, as companies attempt to resurrect the kinds of conditions they enjoyed before unionization and government regulation began to cut into their profits. A major example is the meatpacking industry, which closed down unionized plants in major urban areas to relocate in the rural Midwest. As these jobs became more unattractive—because they were relocated to areas where workers did not want to move and because they downgraded working conditions and pay—the plants too began to recruit heavily among undocumented immigrants.

Many of these in-sourced jobs differ from agricultural work because they are year-round instead of seasonal. Their rise coincides with a growing long-term, not seasonal migration of undocumented workers and a growing shift from the historic seasonal migration areas of California and the Southwest into the Midwest and especially the South. Despite poor wages and working conditions, many immigrants consider these jobs a step up from agriculture.
¹⁵

Another type of in-sourcing has occurred in the construction industry, which employs almost one in five undocumented immigrants—about a million in the first decade of the twenty-first century.
¹⁶
During the long construction boom between 1970 and 2006, total employment more than doubled to 7.7 million before declining sharply in the housing-led recession.
¹⁷
The thriving construction industry in urban centers like Nevada and post-Katrina New Orleans attracted large numbers of undocumented immigrants.

Third, new job categories in the service sector have emerged in recent decades. Fast-food service, newspaper delivery, and landscaping are three areas with exploding demand for low-paid, contingent workers. Changing lifestyles including increased pressure on the middle class, rising expectations for consumption, and the entry of women into the workforce have created whole new sectors of the economy that have relied heavily on undocumented workers.

Steve Striffler notes, “Latinos are becoming virtually synonymous with food preparation and cleanup in our nation’s restaurants. To find a meal that has not at some point passed through the hands of Mexican immigrants is a difficult task.”
¹⁸
Chicken, for example, boomed in popularity in the 1980s and ’90s, as it was transformed from a low-profit farm product that was generally sold whole or in parts to a highly processed—and highly profitable—manufactured commodity in forms like nuggets and fingers. And who does the processing in the new plants that have created our contemporary incarnation of chicken? In large numbers, and across the country, it is Mexican and Central American workers, many of them undocumented.