Undocumented : How Immigration Became Illegal (9780807001684) (2 page)

The services available to migrants are paltry compared to their needs. “My wife, my grown daughters, and our two adopted grandchildren are in California,” one man in his fifties told me despairingly. He showed me the adoption papers. His daughter’s children, aged two and three and both US citizens, were taken by Child Protective Services when the daughter became a drug user. He and his wife became their foster parents and then adopted them. “I had to promise that I’d support them and care for them. How can I do that if I can’t get back to them?” He asked to use my cell phone to call his wife and then thrust the phone into my hand. “Talk to her,” he urged me. “Tell her I’m here. Tell her I’m trying to get back.”

A young man spent three days waiting outside the exit port. He and his wife were separated during the deportation process. “Her name is Brenda. She was wearing gray sweatpants and a green T-shirt,” he told everyone who would listen. As each bus arrived, he stood waiting with a desperate hopelessness, watching the deportees slowly trickle out, searching for her familiar face.

As part of No More Deaths, I could offer these people only a few tokens of aid: a phone to call their relatives, donated clothes and socks, a granola bar or rehydration drink. I could beg them to share their stories with us, so that we could tell them back in the United States and try to change our immigration policies. At the end of the day, we’d walk back to Nogales, Arizona, stepping lightly across the border that had destroyed and divided their lives.

THE COURTS PLAY THEIR ROLE

In Tucson, Arizona, the Federal Court processes seventy migrants a day through the Operation Streamline program. About 4 percent of migrants who are captured are sent to Streamline, which began functioning in Tucson in 2008 after beginning in Texas as a pilot program in 2005. Between Tucson and Yuma, the other Arizona district using the program, some thirty thousand migrants are “Streamlined” every year.

Unlike most deportees, Streamlined migrants are charged with a criminal offense and imprisoned. The daily hearings fall somewhere between a kangaroo court and a slave auction. The migrants are shackled hand, foot, and waist, and sit in rows taking up about half of the courtroom. The judge calls them up in groups of ten or so, and their harassed lawyers, who represent four or five defendants a day, scramble to accompany them.
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Almost all of these migrants were captured in the desert, and are blistered, exhausted, disoriented, and dehydrated when they are placed in cells. They describe being stripped of their belongings and their jackets and left to shiver in T-shirts under the air conditioning, being placed seventy or eighty people deep in cells designed for four or five. There is no room even to sit, much less lie down; they receive only a small juice box and a packet of cheese crackers in two days.

Ten migrants stand before the judge in their shackles, while dozens of others look on. The lawyers hover beside their clients. The judge asks: “Mr. ___, do you understand the charge against you and the maximum penalty? Do you understand your right to a trial? Are you willing to give up that right and plead guilty? Of what country are you a citizen? On or about March 18 of this year, did you enter into Southern Arizona from Mexico? Did you come to a port of entry?”

Most answer that they are citizens of Mexico, though on the day I attended the hearing, there were several Hondurans and Ecuadorians. A court interpreter repeats the questions in Spanish simultaneously, and the defendants listen through headphones that they can’t touch because their hands are shackled to their waists. Their lawyers prompt them if they falter in their responses. Mostly, they answer
sí
to everything, which the interpreter dutifully translates as yes, except to the port-of-entry question, to which they are supposed to answer no. Some answer dully, staring at the ground; some respond in strong voices, looking up at the judge. A few are dismissed because they don’t speak Spanish, and the court has no interpreters for the indigenous languages of Mexico. A few scorn the headphones and answer in English.

Occasionally, a defendant breaks the pattern. One answered yes when asked if he came to a port of entry. The judge was visibly unnerved. “You came to a port of entry?” she asked. “Let me ask the question again. Did you come to a port of entry?” Again, the defendant answered yes. She asked several more times before the lawyer convinced his client to answer no. Another defendant became agitated when the judge began to question him. “I’m guilty! I’m guilty!” he exclaimed. “I know you’re guilty,” responded the judge impatiently. “But I still have to ask you these questions, and you have to answer them.”

“How do you plead to illegal entry, guilty or not guilty?” was the judge’s last question. Every prisoner answered dutifully,
culpable
—guilty. Most were sentenced to time served and prepared to be deported to Nogales, Mexico. They will leave the country that they sacrificed so much to get to with a criminal record and the threat of up to twenty years in jail if they enter again. They will be among those arriving in Nogales, penniless, lost, and bewildered.

What we saw was only part of the picture. The trip to the border can be as dangerous as the crossing and passage through the US side. Every year, many thousands of migrants are kidnapped as they travel through Mexico. Gangs and drug smugglers see migrants as easy targets and count on the fact that the friends or relatives in the United States who raised the thousands of dollars to fund their trip will be able to generate more to pay for their ransom. As violence in the border region increased, migrants made up many of the victims. If a ransom was not paid, or if migrants refused to work for the gang, they might be killed, sometimes in massacres that claimed the lives of dozens.

SOME BACKGROUND

The many competing interests at stake in the development of law, policy, and ideology surrounding undocumentedness have led to a perplexing and constantly shifting landscape. To understand the changes of the late twentieth century, we need to understand how the system worked before that. From the eighteenth and, especially, the nineteenth centuries on, the United States benefited from its place in the global industrial economy, and white people in the United States benefited from their place in the racial order. A
dual labor market
developed in which some workers began to become upwardly mobile and enjoy the benefits of industrial society, while others were legally and structurally stuck at the bottom.

This dual system was reproduced both domestically and internationally, and race played a big role in it. Legal systems were created to justify and sustain it. Globally, the system was expressed through colonialism. Europeans colonized people of color around the world and benefited from their forced labor and their resources. In the United States, slavery played a big role in sustaining a dual labor system, where whites could move up, but blacks could not.

The United States took some colonies, too, at the end of the nineteenth century, like the Philippines, Cuba, and Puerto Rico. But US companies and citizens also benefited from the dual labor system when American companies like United Fruit established plantations in Central America and produced bananas using cheap labor there. They benefited when Brazilian slaveholders or German coffee planters in Guatemala used forced labor in those countries to supply cheap coffee for US markets.

Mexico played a big role in the dual labor market in the United States, both domestically and internationally. US mining companies operated in both countries from the late 1800s, and in both, they employed an explicit dual wage system. Mexicans received a lower, “Mexican” wage, while white US citizens received a so-called gold or US wage.
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Inside the United States, Mexicans were welcomed as migrant workers as American investment in the southwest grew after the territory was taken from Mexico in 1848 and 1853. A reliance on Mexican workers who contribute their labor to US economic enterprises—but are denied access to the benefits that US law affords its citizens—has underpinned the economy for over a century. Over the course of time, different legal and structural mechanisms have been used to maintain this system. Early on, it was done by legally distinguishing immigrants from workers. Immigrants were the Europeans who came to Ellis Island; workers were the Mexicans and Chinese who built the railroads and planted the food that sustained white settlement in the newly conquered west of the country. They were not expected to settle, stay, or become citizens. Citizenship, after all, was reserved for people defined as white until after the Civil War.

US immigration law thus treated Mexicans not as potential immigrants but as sojourners, temporary migrants who entered the country to work, rather than as immigrants who intended to stay. Anti-immigrant sentiment was directed against newly arrived Europeans, not against Mexicans. Anti-Mexican racism was also common, but it was directed against the supposed racial category of Mexicans rather than their status or citizenship.

Until 1924, the new border between the United States and Mexico was virtually unpoliced, and migration flowed openly. Mexicans were exempted from the immigration restrictions passed into law before 1965. Because they were not considered immigrants, Mexicans were also permanently deportable and were, in fact, singled out for mass deportations in the 1930s and 1950s. The nonimmigrant status of Mexican workers over time underlies the apparent paradox between the United States as a so-called country of immigrants and its xenophobia and restrictive immigration policies.

The creation of citizenship by birth through the Fourteenth Amendment was aimed at remedying the historic exclusion of African Americans. But it also created the apparent paradox that other nonwhites—like the Chinese—could become citizens through birth. Congress quickly moved to remedy this by restricting the entry of Chinese women in 1873 and all Chinese with the Chinese Exclusion Act in 1882. California’s farms then became even more dependent on Mexicans who, unlike the Chinese, could still be counted on to leave after the harvest rather than remain in the country and eventually become citizens.

In 1928, the
Saturday Evening Post
reported that there were some 136,000 farmers in California, 100,000 with farms of under 100 acres, and 83,000 farming fewer than 40 acres. These small farmers did not use hired labor during most of the year, but during the harvest, required some 10 to 50 additional workers. “Fluid, casual labor is for them a factor determining profits or ruin,” the
Post
explained.

“Mexican labor fits the requirements of the California farm as no other labor has done in the past. The Mexican can withstand the high temperatures of the Imperial and San Joaquin valleys. He is adapted to field conditions. He moves from one locality to another as the rotation of the seasonal crops progresses. He does heavy field work—particularly in the so-called ‘stoop crops’ and ‘knee crops’ of vegetable and cantaloupe production—which white labor refuses to do and is constitutionally unsuited to perform.” Mexican labor, the author estimated, comprised from 70 to 80 percent of “casual” or seasonal farm labor.
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This informal system of rotating labor prevailed until the 1940s, when it was supplemented by a government-run system that continued until the mid-1960s, the Bracero Program. The Bracero Program, which brought in over 4 million workers between 1942 and 1964, was terminated in the context of civil rights organizing that highlighted the discriminatory treatment of these guest workers. But the economic structures that relied on these workers didn’t disappear, and neither did the workers; they just returned to the old, informal system.

But, suddenly, the old system became illegal. The 1965 immigration law, which coincided with the termination of the Bracero Program, responded to the domestic and international movements for racial equality by getting rid of the racial and national quota system that had prevailed until then. It gave every country an equal quota. And it included the countries of the Western Hemisphere for the first time, considering Mexicans as potential immigrants rather than just exploitable workers.

Given the structural realities of Mexican migrant labor, treating Mexicans equally under the new law was actually a way to keep exploiting them, but now, by calling them “illegal.” From 1965 on, new laws made them more and more illegal and took more and more rights away from them.

Although it may seem contradictory, restrictive immigration laws actually contributed to a rise in both legal and “illegal” immigration. Two immigration scholars point to a synergy between the way the 1965 law privileged family members of US citizens and legal residents—in many cases, exempting them from the new quotas—and the barrage of laws after 1965 that progressively restricted the rights of noncitizens. It wasn’t the new quota that led to increased Mexican legal immigration after 1965, since the quota drastically reduced the number of Mexicans allowed to immigrate. Instead, it was the punitive aspects of that and subsequent laws that increased the numbers of those who decided to become immigrants, rather than sojourners.
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In other words, workers decided to stay, bring their families, and become immigrants because the earlier, seasonal pattern was becoming increasingly criminalized.

Some of the very organizations that were pushing to expand legal and social rights in the United States in the 1960s continued to draw a line at the border. The United Farm Workers union campaigned against “illegal” workers in the 1970s.
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California Rural Legal Assistance and the UFW supported the nation’s first employer sanctions law—making it illegal for employers to hire undocumented workers—in 1971.
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The first attempt to implement such sanctions at the national level was in 1973, at the initiative of the AFL-CIO and the NAACP.
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(By the 1990s, all of these organizations had changed their positions and opposed the employer sanctions that were created by the 1986 Immigration Reform and Control Act.) But employer sanctions turned out to be just one more way to maintain a large, exploitable pool of workers to fill agriculture’s most backbreaking jobs. The sanctions could be suspended, as they were after Hurricane Katrina, when federal contractors desperately needed migrant laborers to clean up and rebuild the city of New Orleans.