Undocumented : How Immigration Became Illegal (9780807001684) (26 page)

In the 1980s, growing numbers of Central American refugees joined the ranks of what had previously been primarily a Mexican phenomenon. The sanctuary movement, growing primarily out of Central American refugee organizations and Anglo religious congregations, sought to aid Salvadoran and Guatemalan refugees in the United States without legal status. Some organizations were made up of refugees themselves, like the Central American Refugee Center (CARECEN, later changed to Central American Resource Center), founded in 1983. These and other organizations concerned with the rights of Salvadoran (and to a lesser extent, Guatemalan) refugees were the first to bring the question of the rights of the undocumented into the public sphere. They also emphasized how US intervention was behind much of the violence that was causing people to flee Central America.

A series of lawsuits focused specifically on the right to asylum, reflecting these organizations’ concern with the situation of Central American refugees.
Orantes-Hernandez v. Meese
and
Perez-Funes v. District Director
both required the INS to strengthen Central Americans’ right to seek and obtain asylum in the mid-1980s. Finally, in 1990,
American Baptist Church v. Thornburgh
required the INS to reopen asylum cases that had been unfairly denied. The organizations pushing the lawsuits also worked to end US military aid to El Salvador. Their focus was on the Central American crisis and its victims, more than on the issue of undocumentedness per se.

THE FIRST COMPREHENSIVE REFORM

The 1986 Immigration Reform and Control Act (IRCA) was comprehensive in the same way that twenty-first-century proposals for comprehensive reform were. It combined enforcement—in the form of employer sanctions and increased border security—with legalization or amnesty. The rationale was that by legalizing some of the undocumented population, encouraging others to leave (through employer sanctions that would make it more difficult for them to work), and making it more difficult for further undocumented people to enter the country, the numbers of the undocumented should be significantly reduced.

IRCA had complicated implications for the undocumented. For those who could document presence since 1982 or eligibility for Special Agricultural Worker Status, the chance to obtain legal status was priceless. (As discussed earlier, the law also created a black market of falsified papers trying to document eligibility.) The employer sanctions provisions of the law, however, created a new system for marginalizing and discriminating against the undocumented. By offering legal status to some, but not all of the undocumented, IRCA (like the DREAM Act and DACA) invited even more pernicious racism against those it left out.

The National Network for Immigrant and Refugee Rights was established in 1986, growing out of a coalition that coalesced in 1985 to organize a National Day of Justice for Immigrants and Refugees in opposition to legislative proposals for employer sanctions for the hiring of undocumented workers, which was incorporated in the 1986 IRCA. Following the passage of the law, new organizations like the New York Immigrant Coalition and the Massachusetts Immigrant and Refugee Advocacy Coalition formed both to help undocumented immigrants gain legal status and to challenge discriminatory aspects of the enforcement of employer sanctions (and sometimes the notion of employer sanctions itself).

Despite its supposed comprehensiveness, IRCA did not live up to its claims. Around 1.7 million immigrants became legalized through IRCA provisions, which succeeded in reducing the total undocumented population by that number. However, the gradual net inflow of undocumented people did not seem to change much. As Karen Woodrow and Jeffrey Passel explain, “The entire decrease in the undocumented population from 3.1 million in 1986 to 1.9 million in 1988 is attributable to . . . formerly undocumented immigrants changing their status to legal residents under the provisions of the IRCA.”
²⁰
In other words, the law led to neither an increased outflow nor a reduced inflow of undocumented immigrants. In fact, “after this group [those who legalized] is taken into account, our research suggests that the remaining undocumented population may actually have increased between June 1986 and June 1988. . . . Thus
IRCA has not cut off the flow of new undocumented immigrants to the United States
.”
²¹

The AFL-CIO supported employer sanctions in 1986. But as Jeff Stansbury wrote a few years later, “The IRCA is not a border-control law,” rather, it is “a worker-control law.” In the words of Asian Law Caucus staff attorney Bill Tamayo, “The new law has codified the existence of a cheap and highly exploitable class of labor, largely non-white and non-English-speaking, with little rights, if any.” And employers lost no time in using the law as a weapon against workers who tried to organize unions.
²²
In 2000, the AFL-CIO reversed its stance and called for a repeal of employer sanctions.
²³
AFL-CIO executive vice president Linda Chavez-Thompson explained, “Employers often knowingly hire workers who are undocumented, and then when workers seek to improve working conditions employers use the law to fire or intimidate workers.”
²⁴

Proponents of employer sanctions argued that by making it more difficult for undocumented immigrants to find work, the law would discourage them from migrating to begin with. For Mexicans contemplating migration, though, employer sanctions did not appear to loom very large. In one important study of Mexican sending communities in 1990, “Interviewees made it clear that having a job in the United States is far more important to them than any law the US Congress might pass: If they have a solid job prospect, they will migrate, with or without papers. Our field studies suggest that the robust growth in employment opportunities in the United States in the second half of the 1980s has been at least as important in fueling the current wave of emigration as the effects of Mexico’s lingering economic crisis.”
²⁵

THE ANTI-IMMIGRANT 1990S

In the 1990s, explicitly anti-undocumented or anti-illegal mobilization took off, especially in California, where Proposition 13 in 1978 had decimated state finances. Under Governor Pete Wilson, “illegal” immigrants became a convenient scapegoat.
²⁶
Proposition 187 in 1994 was the first of many state- and nationwide efforts to impose austerity on the backs of the most vulnerable. Nicknamed “Save Our State,” it sought primarily to bar the undocumented from receiving public services. The text of the proposed law began by stating: “The People of California find and declare as follows: That they have suffered and are suffering economic hardship caused by the presence of illegal aliens in this state. That they have suffered and are suffering personal injury and damage caused by the criminal conduct of illegal aliens in this state. That they have a right to the protection of their government from any person or persons entering this country unlawfully.”
²⁷
Wilson “made undocumented immigration the cornerstone of his 1994 re-election campaign.”
²⁸
Proposition 187’s language and rationale became widespread in the anti-undocumented movement in subsequent years.

Many of Proposition 187’s provisions were never enacted, being tied up or rejected in the courts. However, as California goes, so goes the nation. After the Democrat Bill Clinton became president in 1993, Wilson connected anti-immigrant with anti-Washington bombast, claiming that the federal government had failed to protect the country’s borders. Wilson’s attacks helped to push Clinton to the right on border enforcement, as Clinton sought to woo California’s apparently increasingly anti-immigrant electorate.
²⁹

Anti-“illegal” rhetoric mirrored and intertwined with a growing anti-black, anti–civil rights backlash in multiple ways. It replaced explicitly racialized language with a two-pronged attack against people of color. First, starting with the 1980 election, conservatives “repeatedly raised the issue of welfare, subtly framing it as a context between hardworking blue-collar whites and poor blacks who refused to work.”
³⁰
Second was rhetoric about law and order.
³¹
“The shift to a general attitude of ‘toughness’ toward problems associated with communities of color began in the 1960s. . . . By the late 1980s, however, not only conservatives played leading roles in the get-tough movement, spouting the rhetoric once associated only with segregationists. Democratic politicians and policy makers were now attempting to wrest control of the crime and drug issues from Republicans by advocating stricter anti-crime and anti-drug laws—all in an effort to win back the so-called ‘swing voters’ who were defecting to the Republican Party.”
³²

By the end of 1993, “politicians began tripping over one another to take a tough stance on boundary enforcement and unauthorized migration.”
³³
In 1994, President Clinton implemented Operation Gatekeeper to bring the border “under control” and undercut Pete Wilson’s protagonism by taking the lead on border enforcement as the elections approached.
³⁴
In 1996, Clinton pressed for punitive Welfare Reform and Immigration Reform laws that enacted federally much of what California had tried to do at the state level. With these laws, Clinton made both welfare reform and law and order centerpieces of the Democratic Party program, and linked the anti-black and the anti-immigrant aspects of these policies. In the panic following the 9/11 attacks, the USA-PATRIOT Act of 2001 and the subsequent creation of the Department of Homeland Security in 2003 strengthened both institutional controls against potential and current immigrants, as well as the ideological climate of anti-immigrant sentiment.

Joseph Nevins argues that the government’s increasing attention to border enforcement in the 1990s actually served to
create
the supposed immigration crisis. Through its sensationalist rhetoric and justifications, as well as its ostentatious enforcement policies, the state helped to convince the population that such a crisis indeed existed.
³⁵

Republicans were torn between their traditional allies in the business community—who had little incentive to join the anti-“illegal” hysteria—and the new right-wing populism. Texas went the opposite direction from California in the 1990s. “In Texas, the economy was booming; the suburbs of Dallas, Houston, Austin, and San Antonio were exploding; and thousands of illegal immigrants sat astride two-by-fours, nail guns in hand, building those neighborhoods. So, then-governor Bush and his man Karl Rove crafted a different strategy from their California colleagues: Hispanic-friendly. The result? In 1998, George W. Bush crushed his Democratic opponent, getting nearly half the Hispanic vote—a triumph that placed him on the path to the presidency one year later.”
³⁶
In 2001, Texas Republican governor Rick Perry’s decision to sign the nation’s first in-state tuition law in 2001 represented the crest of the pro-immigrant wave.

A decade later Texas Republicans had gone the way of their California colleagues. Texas Republicans promoted a redistricting plan and voter identification law that federal courts struck down as discriminatory. As late as 2010, Perry declared that a law like Arizona’s S.B. 1070 “would not be the right direction for Texas.”
³⁷
By 2012, however, he was defending Arizona. “No state should be held hostage to a federal government that refuses to enforce the laws of the land. . . . The people of Arizona took action consistent with federal law and in direct response to the failure of this administration to secure our nation’s borders. The absence of federal action on immigration enforcement directly spoils the integrity of our nation’s laws.”
³⁸
Moreover, Perry was pushing for a Texas version of this legislation, banning sanctuary cities that would prevent local law enforcement agencies from enforcing federal immigration law.
³⁹

“COMPREHENSIVE” VERSUS “ENFORCEMENT ONLY”
IN THE NEW CENTURY

In January 2004, president and candidate George W. Bush had lauded the country’s immigrant history in a speech whose audience included representatives of LULAC and other Hispanic organizations. Bush acknowledged the country’s need for migrant workers and expressed great sympathy for the undocumented:

Thus, Bush proposed offering temporary legal status to all undocumented workers in the country. Although he emphasized that the status would be temporary—initially for three years, but renewable—he also emphasized that those who wanted to apply for citizenship should also be allowed to do so.
⁴⁰

Several congressional proposals for so-called comprehensive immigration reform were launched in the first decade of the new century: John McCain and Ted Kennedy’s Secure America and Orderly Immigration Act (S. 1033) in 2005; John Cornyn and Jon Kyl’s Comprehensive Enforcement and Immigration Reform Act (S. 1438), also in 2005; Arlen Specter’s Comprehensive Immigration Reform Act (S. 2611), which passed the Senate in 2006; and finally the Comprehensive Immigration Reform Act or Secure Borders, Economic Opportunity and Immigration Reform Act of 2007 (S. 1348), which drew on the earlier three and was promoted by Senators McCain, Kennedy, and Kyl, as well as then-president Bush. The right-wing reaction against the concept they termed amnesty gained political traction and contributed to the failure of these measures, even though all of them incorporated strong anti-immigrant measures euphemistically called enforcement components. Rarely was it pointed out that the combination of legalization and enforcement pioneered in 1986 had been followed by a huge increase in the size of the undocumented population. The proposals were generally critiqued from the right rather than from the left. Comprehensive reform, willy-nilly, had become the rallying cry of political liberals and supporters of immigrant rights.