The United States has debated policy options for its eleven million unauthorized residents that range from large-scale removals and “attrition through enforcement,” to an earned legalization program as part of an even broader package of immigration reforms. To date, the rule of law has been a constant, if not decisive, reference point in this debate. Rule-of-law proponents typically equate this ancient concept with law and order and the imperative to obey and enforce the law, whatever its content. The unauthorized, they argue, broke the law and should receive the prescribed penalty: they should be forced to “self-deport,” be formally deported, be criminally prosecuted, and never be allowed to legalize their status.

Yet the rule of law requires more than adherence to the law: it speaks to the law’s source, its content and its operation. The U.S. immigration system honors this ideal in many ways. However, as this chapter will argue, the rule of law offers scant support for “enforcement-only” reforms or attrition-through-enforcement policies that would criminalize the exercise of fundamental rights. Instead, it supports the reform of U.S. legal immigration policies and the extension of rights and legal protections to all residents. It argues against strategies that would create or perpetuate a class of “illegal” people.

The Rule of Law in the Immigration Debate

Progressives tend to dismiss rule-of-law arguments as a subterfuge for racism, a diversion from the broader causes of illegal migration, and a tool to exploit necessary workers. They locate rule-of-law concerns within the historical ebb and flow of nativist rhetoric, scapegoating, and restrictionist laws that, by accident or design, marginalize immigrants.

Yet the rule of law cannot be so easily dismissed in the U.S. immigration debate. The United States is home to seventy-three million foreign-born persons and their children, admits more than one million permanent residents each year (most from the Americas and Asia), and sponsors the world’s largest refugee resettlement program. It has never been – and history has rarely seen – a more diverse or welcoming nation. Moreover, the rule of law plays a central role in U.S. political culture in part because the United States is not a racially, ethnically, or religiously homogeneous nation. At its best, it is a nation connected by a shared commitment to civic values that find expression in the law. Thus many worry that persons who enter without documentation or overstay their prescribed periods of admission evidence scorn for the national enterprise as a whole and threaten a core feature of the nation’s identity and culture.

The distinction between legal and illegal immigration resonates powerfully in the United States, as well as in Europe. A 2011 survey of U.S., U.K., French, German, Italian, and Spanish nationals (roughly 1,000 each) found that 67 percent of Europeans and 58 percent of Americans “worry” about illegal immigration, while 72 percent of Europeans and 82 percent of Americans do not worry about legal immigration (German Marshall Fund of the United States et al. 2011). A 2013 survey of 4,465 U.S. residents affirmed that Americans hold diverse and internally consistent opinions on how to address illegal migration and the unauthorized. When given the option, 68 percent said that the best way to solve the “illegal immigration problem” was to secure the borders and provide an earned path to citizenship for those without status, while 29 percent favored arresting and deporting all of the unauthorized (Jones et al. Reference Jones, Cox, Navarro-Rivera, Dionne and Galston2013: 29). In response to a standalone question, 43 percent supported deporting all “illegal immigrants” (Jones et al. Reference Jones, Cox, Navarro-Rivera, Dionne and Galston2013: 31).

The Meaning of the Rule of Law

The World Justice Project (WJP) has identified four principles and set forth a detailed index of factors that characterize legal systems that respect the rule of law. First, the rule of law requires accountability to the law by government officials (Agrast et al. Reference Agrast, Botero, Martinez, Ponce and Pratt2012–13: 11). This was, in fact, the original sense of the term, reaching back to the ancient Greeks (Kerwin Reference Kerwin2008). Officials cannot violate or circumvent the law at their convenience or whim. Moreover, the rule of law limits the power of government institutions and officials through “fundamental laws” (like the U.S. Constitution), the separation of powers, and other means (Agrast et al. Reference Agrast, Botero, Martinez, Ponce and Pratt2012–13: 11).

Second, laws must be “clear, publicized, stable, and fair, and protect fundamental rights” (Agrast et al. Reference Agrast, Botero, Martinez, Ponce and Pratt2012–13: 3). The WJP adopts a “thicker” vision of the rule of law than one satisfied by mere obedience to positive law.¹ According to the WJP, a legal system that fails to respect human rights rules by law, but “does not deserve to be called a rule of law system” (Agrast, Botero, and Ponce 2011: 9). If the opposite were true, repressive regimes would be the exemplars of this concept. Rights do not derive their legitimacy from laws: legal systems exist to safeguard rights. This insight, in turn, implies that legal systems should not discriminate against any residents, deny them legal protection, or criminalize the exercise of rights.

Third, laws must be “enacted, administered and enforced” through “accessible, fair and efficient” processes (Agrast et al. Reference Agrast, Botero, Martinez, Ponce and Pratt2012–13: 3). This principle requires “fair participation” in making the laws and administering them. By implication, it would be an affront to the rule of law to pass a law, but then to violate its spirit by taking measures that negated its intended effect or precluded its effective implementation.

Fourth, the rule of law requires “access to justice” through “competent, ethical, and independent” adjudicators and judicial officers that enjoy sufficient resources and reflect the composition of the communities they serve (Agrast et al. Reference Agrast, Botero, Martinez, Ponce and Pratt2012–13: 3). Fundamental fairness and due process characterize rule-of-law legal systems.

The rule of law should be viewed in aspirational terms. Every legal system falls short of this standard in different ways and degrees. By definition, then, this concept challenges the status quo. It serves as a measure by which legal systems can be evaluated and reformed, which begs the question: In what ways does the U.S. immigration system respect and fall short of this ideal?

Attrition through Enforcement and Creation of a Two-Tiered Society

The rule of law speaks to protection under the law. Yet in recent years expanded federal enforcement and state “attrition-through-enforcement” strategies have put more and more persons outside the law’s protections and have violated core rights.

The evidence belies the claim by politicians and commentators that the federal government “still” fails to enforce immigration law. The U.S. immigration enforcement system has grown exponentially in recent decades. Between 1990 and 2002, the Immigration and Naturalization Service’s (INS’s) budget rose from $1.2 to $6.2 billion (U.S. Department of Justice 2002: 106–7). By 2012, combined funding for the Department of Homeland Security’s (DHS’s) two immigration enforcement agencies, Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), had reached $17.6 billion (U.S. Department of Homeland Security 2012a: 85, 99). Immigration enforcement spending has increased even more dramatically than this comparison would suggest because CBP and ICE do not administer all DHS enforcement programs and do not process applications for immigration benefits, as INS did. In addition, the $17.6 billion figure excludes the substantial immigration enforcement expenditures by other federal agencies, by the federal court system, or by states.

Perhaps a more telling comparison is that CBP and ICE together receive more funding and enjoy more staff than the four major U.S. Department of Justice (DOJ) law enforcement agencies combined (U.S. Department of Justice 2011). Expanded enforcement, layered on top of existing legal frameworks, has led to “enforcement-only” reform in recent years. In border communities, immigration officers have broad discretion to conduct warrantless interrogations of persons they believe to be unauthorized; board and search vehicles within “a reasonable distance” of the border; access private lands within twenty-five miles of the border; and arrest those they have “reason to believe” are guilty of immigration violations (8 USC §1357(a)). As stated, the “fundamental” law of the land represents a cornerstone of the rule of law. If so, the presence of “lawless” or less than fully “lawful” border spaces undermines this concept (see Heyman, Chapter 5).

The United States removes (deports) more than four hundred thousand persons per year. The Obama administration removed nearly 1.6 million persons throughout its first four years, compared to the 2.3 million removed during the twenty years of the Reagan, George H. W. Bush, and George W. Bush administrations (U.S. Department of Homeland Security 2012b: 102; 2012c). Ordinary immigration violations have traditionally been treated as civil (not criminal) offenses. Yet in FY 2011, the United States criminally prosecuted nearly eighty-seven thousand persons for immigration-related violations (Transactional Records Access Clearinghouse 2012). Immigration-related offenses account for more than 50 percent of federal criminal prosecutions; that is, more than all drug-related, firearm, tax, environmental, and other federal prosecutions combined.

The ICE detention system holds thirty-four thousand persons per night and 430,000 per year. Between 2009 and 2011, ICE audited, fined, and debarred record numbers of employers for failing to meet federal work eligibility verification rules (U.S. Department of Homeland Security 2010). Its “silent audits” increase the vulnerability of these workers to labor abuses and unregulated work (see Hing, Chapter 15).

The federal government’s electronic employee verification program, E-Verify, has expanded dramatically in recent years, with several states requiring various combinations of public and private employers to participate. However, a study of Arizona’s mandatory E-Verify program found that it led to an 8 percent increase in “self-employment” (to which E-Verify does not apply) by likely unauthorized workers from 2007 to 2009, far higher than in comparison states (Lofstrom, Bohn, and Raphael Reference Lofstrom, Bohn and Raphael2011). The study suggests that the program does not lead unauthorized workers to abandon the workforce or to self-deport, but to the reclassification of their positions and to less regulated work.

Under the Secure Communities program, DHS screens for immigration violations persons who are arrested in virtually every jurisdiction in the United States. This program, like other federal and state partnerships, has been criticized for leading to pretextual arrests by local police in some jurisdictions. More broadly, state and local enforcement of federal immigration laws deters immigrants from coming forward to report crimes (including domestic violence) and, thus, emboldens criminals and diminishes the ability of police to “protect and serve” the public. As a DHS-appointed Task Force on Secure Communities put it:

In addition, large-scale and pervasive enforcement initiatives – sweeps, work-site raids, arrests for traffic offenses, roadblocks, and actions outside of churches, community centers, or health clinics – lead immigrants to avoid places where their well-being and their children’s well-being requires them to be.

Children often bear the brunt of harsh enforcement strategies (see Dreby, Chapter 8). A 2010 study found that the arrest, detention, and removal of parents resulted in significant emotional trauma for children (Chaudry et al. Reference Chaudry, Capps, Pedroza, Castañeda, Santos and Scott2010). Substantial percentages of the 190 children studied had difficulties eating and sleeping. Many cried excessively. Some showed signs of withdrawal, others of aggression. Speech patterns changed. Absenteeism from school increased. Academic performance declined. Their families struggled to pay their bills, afford basic necessities (like food), and maintain stable living arrangements. Many families moved frequently and were forced to live in crowded housing.

Traditional immigration enforcement tactics – removal, detention, and border enforcement – have harsh consequences for immigrants, their families, and wider circles of association. The detention and deportation of parents, for example, can lead to the legal termination of parent-child relationships. Border blockade policies push migrants to perilous crossing routes and have significantly strengthened organized criminal smuggling rings.

Nonetheless, these tactics are more narrowly tailored to stop illegal entries and to remove people who have violated the law than sweeping state and local attrition-through-enforcement strategies. The latter, which seek to pressure unauthorized persons to self-deport by denying them housing, work, education, transportation, police protection, contractual rights, and public utilities, have at best an attenuated connection to the nation’s authority to determine who can enter, who can stay, and who must leave. They strongly discriminate between rights-bearing citizens and other residents. Under the logic of these measures, states could criminalize even the exercise of conscience by denying the unauthorized the right to practice their faith or to express their political opinions as a way to force them to leave. Yet constitutional rights apply to “persons,” not just to citizens.

In its 2012 decision in Arizona v. United States, the U.S. Supreme Court held three provisions of the Arizona omnibus immigration law preempted by federal law (567 U.S. __ (2012). In a 5 to 3 ruling, the Court invalidated provisions that would have criminalized the failure to comply with alien registration requirements, made it a state crime for unauthorized persons to work, and allowed police to conduct warrantless arrests of persons that they had probable cause to believe had committed “removable” offenses. The Court upheld the so-called show-me-your-papers section of the Arizona law that allows police to verify the status of persons that they stop, detain, or arrest based on “reasonable suspicion” that such persons lack immigration status. However, it left open the possibility that if this provision led to racial profiling or prolonged detention, it too would be found unconstitutional. Subsequently, the 11th Circuit Court of Appeals enjoined several sections of Alabama’s HB 56, perhaps the most egregious of the six state “omnibus” or attrition-through-enforcement laws passed at the end of 2012.

The judicial repudiation of many provisions of these laws belies the rule-of-law rationale offered for them. HB 56’s catalogue of antiimmigrant restrictions – in a state without a significant unauthorized population – would have greatly increased illegality and put unauthorized immigrants and their families further outside the law’s protections, a result at odds with the rule of law. It would also have made it impossible for unauthorized immigrants and their families to integrate in their new communities. HB 56 would have:

1. Criminalized the failure to carry federal registration documents;

2. Criminalized work;

3. Criminalized the transport and harboring of unauthorized immigrants;

4. Criminalized entering rental agreements with unauthorized immigrants;

5. Criminalized encouraging or inducing unauthorized immigrants to reside in the state;

6. Precluded business transactions (later limited to “public records”) between unauthorized immigrants and the state or its political subdivisions, including payment of utility bills;

7. Required state and local police to screen and verify the status of those they lawfully stopped, detained, or arrested;

8. Prohibited employers from deducting wages or compensation paid to unauthorized immigrants as a business expense;

9. Prevented the enforcement of contracts with unauthorized immigrants;

10. Barred courts from considering evidence of lawful immigration status by persons who were alleged by immigration officials to be out of status [emphasis added];

11. Prevented unauthorized immigrants from enrolling in or attending any public postsecondary educational institution.

12. Required public schools to determine whether an enrolling student was born outside the United States or had an unauthorized parent; and,

13. Required public schools to identify and report on the unauthorized children in their schools and to track the costs of educating them.

As the latter measures suggest, the law attempted to lay the groundwork for a legal challenge to two well-established constitutional protections: birthright citizenship and public education (through secondary school) for all residents (see Chavez, Chapter 4).

The Fourteenth Amendment to the U.S. Constitution provides that “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens of the United States and the states in which they reside. The amendment overturned the infamous Dred Scott cases, which held that persons of African descent could never be U.S. citizens. Its sponsors sought to constitutionalize citizenship by birth so that future Congresses would not be able to deny citizenship to disfavored groups, whether the children of freed slaves or others. In United States v. Wong Kim Ark, the U.S. Supreme Court affirmed that the Fourteenth Amendment applied to the children of immigrant parents, holding that “[e]very citizen or subject of another country, while domiciled here, is within the allegiance and protection, and consequently subject to the jurisdiction, of the United States” (169 US 649, 692 (1898)).

Federal and state antibirthright citizenship bills attempt to circumvent the difficult process of amending the U.S. Constitution by defining “subject to the jurisdiction” to exclude the children of (two) unauthorized parents. As the Fourteenth Amendment’s language indicates and its legislative history affirms, “subject to the jurisdiction” means subject to the law or required to obey the law. Persons cannot immunize themselves from the law by illegally entering the United States or overstaying a temporary visa. Instead, the amendment’s “subject to the jurisdiction” language attempted to exclude the children of those who were thought to be immune from U.S. laws at the time of its adoption, that is, the children of diplomats, enemy soldiers, and sovereign Indian tribes (Ho Reference Ho2006).

The Fourteenth Amendment also provides that a state cannot deny equal protection of the law “to any person within its jurisdiction.” In Plyler v. Doe, the U.S. Supreme Court held it unconstitutional under the equal protection clause for states to deny secondary schooling to unauthorized children (457 US 202 (1982)). The court considered a Texas state law that sought to deny funding to school districts with unauthorized students and to permit these districts to deny admission to such children. It held that this law did not reasonably further a substantial state goal, reasoning:

Proponents of these measures take an instrumental view of the law. They do not treat the U.S. Constitution as the “fundamental” law of the land, but as an immigration loophole. Even if they somehow succeeded in amending or reinterpreting the Constitution, the unauthorized population would not disappear. Proposals to end birthright citizenship would undoubtedly increase this population (Van Hook and Fix Reference Van Hook and Fix2010). Moreover, these initiatives would create an uneducated, permanent subclass of U.S.-born residents, with little security, fewer rights, and no prospects, a situation inimical to the rule of law.

Labor Rights

Protection of labor rights is a core feature of the rule of law (Agrast et al. Reference Agrast, Botero, Martinez, Ponce and Pratt2012–13: 11). Yet bad-faith employers violate the rights of low-wage immigrant laborers at alarming rates and the principal labor standards enforcement agencies – the Wage and Hour division of the U.S. Department of Labor, the National Labor Relations Board, and the Occupational Safety and Health Administration – together receive about one-sixteenth ($1.1 billion in total) of the amount appropriated to CBP and ICE (Kerwin and McCabe 2011: 18–23, 47).

In 2002, the U.S. Supreme Court in Hoffman Plastics Compound, Inc. v. NLRB eroded the nation’s long-standing commitment to status-blind labor protection, holding that unauthorized persons fired for exercising labor rights were not entitled to back pay (535 US 137 (2002)). Yet back pay and reinstatement (for which the unauthorized likewise do not qualify) are two of the primary remedies for violations of the National Labor Relations Act. In dissent, Justice Breyer wrote that the decision incentivized the hiring and exploitation of unauthorized workers to the detriment of all workers (535 US at 154–5, Breyer, J., dissenting). Similarly, according to Human Rights Watch, the decision will encourage unscrupulous employers to hire exploitable, unauthorized workers over qualified authorized workers (Human Rights Watch 2004).

Two months into his first term, President Obama took up this theme in a speech on immigration reform, arguing that unauthorized immigrants “are oftentimes pitted against American workers. Since they can’t join a union, they can’t complain about minimum wages … they end up being abused, and that depresses the wages of everybody, all Americans” (New York Times2009). In a subsequent address, the president repeated that low-wage, unauthorized workers who “live in the shadows” are “vulnerable to unscrupulous businesses who pay them less than the minimum wage or violate worker safety rules – thereby putting companies who follow those rules, and Americans who rightly demand the minimum wage or overtime, at an unfair [dis]advantage” (White House 2010). In other words, the president argued that the status quo works at cross purposes to the rule of law.

The Right to Family Unity

U.S. immigration law prioritizes family unity: the United States reserves roughly two-thirds of its permanent visas for persons with close family relationships to U.S. citizens and lawful permanent residents (LPRs). At the same time, the United States unnecessarily destabilizes and divides families through laws and practices that are at odds with the rule of law. These problems arose, in part, from deficiencies in the Immigration Reform and Control Act of 1986 (IRCA), the nation’s last large-scale legalization bill (Public Law 99–603, US Statutes at Large 100 (1986): 3359). IRCA failed to reform the system of legal admission to the United States or to provide derivative legal status to the family members of program beneficiaries. As a result, IRCA beneficiaries were required to wait until they became LPRs in order to petition for visas for their close family members, thus laying the groundwork for substantial backlogs in family-based immigration categories. In 2012, the U.S. Department of State estimated that 4.4 million persons had passed the first step to qualify for a visa (97 percent based on a qualifying family relationship), but had not yet received their visas (Bergeron 2013).

Most persons in visa backlogs opt to live in the United States until their “priority dates” becomes current. Backlogs can span years and, in some cases, decades depending on the category of family relationship and country of origin, with persons from nations with large immigrant populations, like Mexico and the Philippines, at a particular disadvantage. When a visa becomes available, a qualified family member must typically leave the United States to undergo consular processing. Departure, however, triggers multiyear bars to readmission (typically ten years) for those who have been in unauthorized status, an often long and uncertain waiver process, and no guarantee that they will be allowed to return. As a result, many persons in this situation choose to forego the possibility of legal status and remain in the United States (Kerwin, Meissner, and McHugh 2011: 9–14).

Other antifamily policies are rooted in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (Public Law 104–208, US Statutes at Large 110 (1996): 3009). IIRIRA expanded the crimes leading to removal and the categories of noncitizens subject to mandatory detention, while limiting the discretion of Immigration Judges (IJs) to allow noncitizens to remain based on their family ties. As a result, large numbers of long-term residents, including legal immigrants with U.S. families, have been detained and removed based on misdemeanors and other relatively minor crimes that they committed years in the past (American Bar Association Commission on Immigration 2004; Catholic Legal Immigration Network 2000).

Fidelity to the Spirit of the Law

The rule of law requires government leaders to implement and enforce democratically enacted, rights-respecting laws. Yet the United States has been criticized for making “justice inaccessible” and for lack of “fidelity” to its treaty obligations (Legomsky Reference Legomsky and Kneebone2009: 170). The refugee protection system is premised on the ability of endangered persons to reach protection. Yet the United States blocks territorial access and subverts what the UN High Commissioner for Refugees (UNHCR) has called the “right to run for one’s life” in four primary ways.

First, the U.S. Coast Guard interdicts thousands of Haitians, Dominicans, and other foreign nationals each year (Kerwin Reference Kerwin2011). In its 1993 decision in Sale v. Haitian Centers Council, the U.S. Supreme Court held that the legal prohibition on returning persons to a country where their life or freedom would be threatened – contained in Article 33 of the UN Convention relating to the Status of Refugees and the Immigration and Nationality Act – did not apply to foreign nationals interdicted on the high seas (509 US 155 (1993)). The UNHCR’s Executive Committee countered that this practice would eviscerate the principle of nonreturn (UN High Commissioner for Refugees 2000).

Haitian asylum seekers have been particularly hard hit by this policy. Since 1992, interdicted Haitians have been required to communicate to government officials at sea that they fear return before they can receive “protection screening.” If protection officers deem this fear “credible” in a particular case, the Haitian is transferred to Guantánamo Naval Base for a refugee interview and possible resettlement to a third country. Very few Haitian refugees have been resettled in third countries under this policy, and none have been admitted to the United States as refugees or to seek political asylum.

Second, the “expedited removal” process allows immigration officials to summarily remove the migrants that they encounter without proper documents at ports of entry or near land and sea borders. According to one comprehensive study, officials violate U.S. and international law by returning a substantial percentage of migrants who express a fear of return (US Commission on International Religious Freedom Reference Freedom2005).

Third, following the 9/11 terrorist attacks, the United States significantly expanded the grounds of inadmissibility to the nation based on “terrorist activity.” As it stands, an individual is inadmissible if she committed an act that she “knows, or reasonably should know, affords material support” to a terrorist organization or terrorist activity (Immigration and Nationality Act § 212(a)(3)(B)). To meet the standard for “terrorist activity,” an act must be “unlawful under the laws of the place where it is committed” or under federal or state law; must involve violence, including the use of an “explosive, firearm, or other weapon or dangerous device”; and must be intended to endanger “one or more individuals or to cause substantial damage to property” (Immigration and Nationality Act § 212(a)(3)(B)(iii)).

According to Human Rights First, this language has been interpreted to cover “virtually any use of armed force by a non-state actor, directed at anyone or anything, for any purpose other than personal enrichment” (Human Rights First 2009: 19–20). In a striking irony, the antiterror provisions of U.S. law have barred entry and legal status to tens of thousands of refugees, asylum seekers, and asylees, including victims of terror.

Fourth, the United States has adopted immigration-related security measures since 9/11 that have made it far more difficult for bona fide asylum seekers to reach its territory. These measures have increased national security, but deny entry to persons who would formerly have reached protection by using false travel documents, a necessity in many cases of state persecution (Ginsburg Reference Ginsburg2010). Among other measures, the United States has required most applicants for nonimmigrant (temporary) visas to submit to in-person consular interviews, and has required persons from countries who can travel to the United States without a visa to obtain pretravel authorization from CBP. It has also expanded the U.S. Visitor and Immigrant Status Indicator Technology program, which collects digital photographs and ten fingerprint scans from foreign travelers, and screens visa applicants, temporary visitors, and LPRs against criminal and terrorist databases. Finally, it has increased the security of its passports and invested significantly in border infrastructure and security.

As a result of these measures, asylum claims in the immigration court system declined from 74,634 in FY 2002, to 41,000 in FY 2011 (U.S. Department of Justice Executive Office for Immigration Review 2006; 2012). Asylum grants fell over the same period, from 36,938 to 24,988 (Department of Homeland Security 2012b: 43). It does not serve the rule of law to create strong legal norms and procedures on paper, but then deny access to them by potential beneficiaries. The rule of law requires that refugee protections keep pace with national security and immigration enforcement controls.

The United States has also erected legal and procedural barriers to political asylum. Among the most prominent, asylum seekers must file their claims within one year of entry. A 2010 study found that nearly one-third of asylum seekers over an eleven-year period failed to meet this deadline (Schrag et al. Reference Schrag, Schoenholtz, Ramji-Nogales and Dombach2010). In addition, asylum applicants must establish that race, religion, nationality, social group membership, or political opinion “was and will be at least one central reason” for their persecution (Immigration and Nationality Act § 208(b)(1)(B)(i)). They must also produce corroborating evidence of “otherwise credible testimony,” unless they do not have or cannot reasonably obtain such evidence (Immigration and Nationality Act § 208(b)(1)(B)(ii)). Yet persecutors often do not leave a documentary trail or publicize the “central reasons” for their acts. As a result, this standard creates a particularly difficult path to political asylum for many survivors of persecution.

A 2007 decision by the Board of Immigration Appeals (BIA) constitutes a further barrier in many cases. The decision held that asylum seekers claiming a well-founded fear of persecution based on their membership in a social group must demonstrate that the “shared” characteristics defining the group have a sufficient degree of “social visibility” (In re A-M-E & J-G-U-, Respondents, 24 I & N Dec. 69, 74). Persons at risk of persecution, however, often seek to hide the characteristics that endanger them (Gatimi v. Holder, 578 F.3d 611, 615 (7th Cir. 2009)). The BIA had previously defined a “social group” more expansively, as one whose members “share a common, immutable characteristic” that they “either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences” (Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985)).

Due Process, Fair and Independent Adjudicators, and Judicial Review

More than 210 years ago, James Madison recognized that “banishment of an alien from a country into which he has been invited … where he may have formed the most tender of connections, where he may have vested his entire property and acquired property … and where he may have nearly completed his probationary title to citizenship … [was] among the severest of punishments” (Madison Reference Madison1800). Deportees can also face significant hardship on return, including persecution, arrest, torture, and death.

Because of their immense consequences, removal proceedings offer due process protections like the right to present evidence and call witnesses. However, noncitizens cannot effectively represent themselves in these complex adversarial proceedings; most cannot afford legal counsel; there is no system of government-appointed counsel; and legal representation represents “the single most important factor” affecting case outcomes (Ramji-Nogales, Schoenholtz, and Schrag Reference Ramji-Nogales, Schoenholtz and Schrag2007: 340). Asylum seekers with representation have been found to be three to eleven times more likely to prevail in their claims than those without counsel (Kerwin Reference Kerwin2005; Ramji-Nogales et al. Reference Ramji-Nogales, Schoenholtz and Schrag2007). Approval rates are also “very seriously influenced by a spin of the wheel of chance: that is, by a clerk’s random assignment of an applicant’s case to … one immigration judge rather than another” (Ramji-Nogales et al. 2007: 378).

Independent, impartial adjudicators and freedom from unreasonable delays are hallmarks of access to justice and, by extension, the rule of law (Agrast et al. 2011: 1, 13). Yet the American Bar Association (ABA) and the National Association of Immigration Judges (NAIJ) have questioned the independence of IJs and criticized extensive delays in the immigration court system. IJs are employees of the Executive Office for Immigration Review, a branch of the DOJ. Although expected to exercise “independent judgment and discretion,” they serve as “delegates” of the attorney general, the nation’s chief law enforcement officer. In addition, the attorney general oversees DOJ’s Office of Immigration Litigation, which defends immigration cases before federal courts of appeal (8 CFR § 1003.10 (a) and (b)).

According to NAIJ, these circumstances create a “conflict of interest between the judicial and prosecutorial function”; constitute “a significant (and perhaps even fatal) flaw to the immigration court structure”; and raise “understandable concerns that the decisions rendered by Immigration Judges are not independent and free from pressure or manipulation” (Marks Reference Marks2008). For many of the same reasons, the ABA has proposed that Congress create an Article I specialized immigration court in order to promote its independence from the executive branch (American Bar Association 2010).

The Immigration Court system has also been notoriously underresourced, leading to multiyear delays in the adjudication of cases, particularly those subject to the slower nondetainee court dockets (Kerwin et al. 2011; Ramji-Nogales et al. Reference Ramji-Nogales, Schoenholtz and Schrag2007). As of April 2013, roughly 260 IJs labored under a caseload of 330,533 cases, which had been pending an average of 553 days (Transactional Records Access Clearinghouse 2013a, 2013b).

Commentators and immigrant rights agencies have paid significant attention to the due process rights of persons facing removal in Immigration Court. Exhaustive studies have highlighted disparities in case outcomes based on lack of legal counsel, restrictive individual IJs, detention, and poor translation services. Less attention has been paid, however, to the growing number of removals – now more than one-half – that occur without a hearing, with little process, and with no transparency.

U.S. immigration law provides for accelerated removal in four main circumstances. First, noncitizens who illegally reenter the United States after being ordered removed can be immediately removed under their prior order of removal (Immigration and Nationality Act § 241(a)(5)). Second, the expedited removal process applies to noncitizens who attempt to enter the United States without travel documents or by using improper documents; who have been present in the United States for less than two years; and who fail to demonstrate a “credible fear” of persecution in their home countries. In FY 2011, 31.4 percent of all removals (123,189 in total) occurred through this process (Simanski and Sapp Reference Simanski and Sapp2012). Moreover, the rate of expedited removals to total removals has increased in recent years. Third, immigration officials can administratively remove non-LPR “criminal aliens” who have been convicted of “aggravated felonies,” a broad category that encompasses serious felonies and minor crimes. DHS and ICE do not release statistics on the number of individuals to whom they issue administrative orders of removal.

Fourth, noncitizens can waive their right to a removal hearing by stipulating (agreeing in writing) to their own removal. Human Rights Watch has estimated that between 2004 and 2008, one hundred thousand noncitizens signed stipulated orders of removal. Detainees who seek to avoid prolonged periods in custody or who are told by immigration officials that they have no possibility of successfully contesting their removal often agree to forego further proceedings. According to one report, noncitizens signed 31,554 stipulated orders in FY 2007, and nearly 95 percent of those subject to stipulated removal between FY 2005 and FY 2007 were not represented by counsel (Stanford Law School Immigrants’ Rights Project 2011).

The separation of powers represents an indispensable check against the concentration of power in the political branches of government. Yet over the last fifteen years, judicial review of removal orders has been substantially curtailed. As the law stands, persons ordered removed must file a petition to the relevant court of appeals within thirty days of the final order of removal, an exceedingly short period of time. Courts of appeals can review constitutional claims and questions of law, but not issues of fact (no matter how underdeveloped the administrative record) and not discretionary decisions like IJ denials of relief from removal. A comprehensive ABA report on the U.S. immigration adjudication system described a “convoluted labyrinth of case law construing exceptions (and constitutionally required carve-outs to these exceptions) to judicial review” and pointed to the widespread view that restrictions on judicial review “insulate dysfunctional administrative processes and questionable exercises of discretion” (American Bar Association 2010: 4–3).

Lawmakers Operating Outside the Law

In its earliest and most fundamental form, the rule of law spoke to the need for government leaders to be accountable to the law (Plato 1970). In Marbury v. Madison, Chief Justice John Marshall referred to the United States as a “government of laws, and not of men” (5 US 137, 163 (1803)). Yet members of Congress, even those who favor stricter immigration laws, regularly urge federal officials not to enforce the law in particular situations. Members do not typically advocate for the principled exercise of discretion in individual cases based on criteria like age, health, family ties, or likelihood of removal. Rather, they seek to prevent or delay enforcement against favored constituents, while still appearing “tough” on immigration. James Ziglar found a “breathtaking” level of “hypocrisy” in Congress in his tenure as INS commissioner:

At best, these lawmakers deserve criticism for tacitly recognizing the need for legal reforms, but lacking the leadership and political courage to make the case for them. However, Ziglar also points to the cynicism and sense of entitlement of members who privately urge that the law not be enforced, and yet criticize immigration officials for allegedly failing to enforce the law. Such interventions might best be seen as attempts by lawmakers to circumvent the law when it serves their interests; that is, as violations of the rule of law in its most fundamental sense.

In other cases, members have publicly attacked immigration officials for failing to exercise discretion in particular cases, but have opposed standards that would rationalize discretionary decisions. In 1999, for example, Congressman Lamar Smith, the Chairman of the House Judiciary Committee, signed a letter urging Clinton administration officials to exercise discretion in immigration cases that resulted from IIRIRA, legislation that he had championed. Twelve years later, Smith characterized the Obama administration’s prosecutorial discretion policies as a “perversion” of the law and sponsored legislation to strip the executive branch of discretion in this area until President Obama’s first term in office ended. It is squarely within the executive branch’s power and responsibilities to decide how to enforce the law, and it dishonors the rule of law for Congress to attempt to divest the executive branch of this authority.

Finally, Congress has never demanded accountability by border enforcement officials to performance standards or metrics. Instead, it has been content to define border security in symbolic terms; that is, the “prevention of all unlawful entries” (Secure Fence Act of 2006, Public Law 109–367, US Statutes at Large 120 (2006): 2638). The Border Patrol, in turn, has publicly reported on only one metric of success, apprehensions of migrants. Yet arrests are an output, not an outcome, and the Border Patrol has used both low and high levels of arrests to tout its success. Moreover, arrests do not speak to the number of migrants that illegally enter at or between ports-of-entry or that overstay their temporary visas, or the percentage of unauthorized migrants that ultimately succeed in entering (Roberts, Alden, and Whitley 2013: 39–45). Nor do they speak to the effectiveness of border enforcement in deterring illegal entries.

In addition, academic and human rights reports have documented high rates of physical and verbal abuse against migrants by U.S. officials, as well as the lack of a transparent, accountable, DHS complaint and investigative process. In one study, for example, 20 percent of three hundred Salvadoran deportees reported having been shoved, thrown to the ground, hit, kicked, slapped, or otherwise abused during their arrests (Phillips, Hagan, and Rodriguez 2006: 102). Twenty-five percent said that agents directed racial slurs at them during their arrest and 26 percent during their detention (Phillips et al. 2006: 101). In a more recent survey, 11 percent of 1,113 deportees reported physical abuse by U.S. authorities, 23 percent reported verbal abuse, and 39 percent said their valuables had been confiscated and not returned to them (Slack et al. 2013: 24–6). The abuses and lack of recourse documented in these and other studies raise significant, rule-of-law concerns.

The Laws Can and Should Change

No legal regime is perfect. The challenges, conditions, and social norms giving rise to particular laws change. Some laws prove to be effective and rights respecting, and others do not. As a result, a rule-of-law legal system should regularly evaluate the effect of its laws; be open to revisiting them in light of their underlying purposes and performance; and be willing (if necessary) to reform them. In short, the rule of law does not mean that the law cannot change, and the United States has frequently reformed laws that wrongfully excluded certain groups from membership.

The infamous Chinese Exclusion laws, for example, initially suspended the admission of Chinese laborers for ten years and prohibited their naturalization (Act of May 6, 1882, 22 Stat. 58; Act of October 19, 1888, 25 Stat. 565; Act of May 5, 1892, 27 Stat. 25; Act of April 29, 1902, 32 Stat. 176). Later laws barred the entry of Chinese nationals even if they possessed a reentry certificate, suspended their immigration for another ten years, and required the deportation of those who could not obtain a U.S. certificate of residence within a year. Congress did not repeal these laws until 1943 (Act of May 6, 1882, 22 Stat. 58; Act of October 19, 1888, 25 Stat. 565; Act of May 5, 1892, 27 Stat. 25; Act of April 29, 1902, 32 Stat. 176).

The nation’s first legalization program arose in response to its first systemic restrictions on immigrant admissions, the national origins legislation of the 1920s (Kerwin Reference Kerwin2010). In 1929, Congress passed legislation that allowed aliens to register for permanent status with the government if they had arrived prior to June 3, 1921, had resided in the United States since that time, possessed good moral character, and were not subject to deportation or ineligible for citizenship (Act of March 2, 1929, ch. 536; 45 Stat. 1512–13). Since 1929, Congress has advanced the qualifying date for registration several times. The U.S. national origins system favored the admission of immigrants from northern and western Europe (Boswell Reference Boswell2010). In 1965, Congress replaced this system with one that prioritized family-based immigration, leading to large-scale legal admissions from Mexico, Central and South America, and Asia (Public Law 89–236, US Statutes at Large 79 (1965): 911).

Since 1940, the United States has legalized thousands of persons in deportation proceedings based on their equitable ties to the United States (Alien Registration Act of 1940, ch. 439, § 20, 54 Stat. 670, 672; Kerwin Reference Kerwin2010). The criteria for this relief have evolved over time. Under current law, “cancellation of removal” can be granted to unauthorized residents who have been continuously present for at least ten years, have demonstrated good moral character, and whose removal would “result in exceptional and extremely unusual hardship” to a U.S. citizen or LPR spouse, parent, or child (Immigration and Nationality Act §240A(b)). IRCA legalized persons who had resided in the United States without authorization from January 1, 1982, to the date of the bill’s enactment. It also advanced the operative date of entry for registry to January 1, 1972, and provided legal status to agricultural workers and to Cuban-Haitian entrants. Congress has acted sixteen times since 1952 to extend LPR status to persons in temporary legal status (Wasem Reference Wasem2010). Several bills – most prominently the Cuban Adjustment Act of 1966 – have legalized refugee-like populations (U.S. Department of Justice 2002: 108; Public Law 89–732, U.S. Statutes at Large 80 (1966): 1161). In the 1990s, Congress passed legislation that extended status to nationals from the former Soviet Union, Vietnam, Laos, and Cambodia; the People’s Republic of China following the repression at Tiananmen Square; Poland and Hungary; El Salvador, Guatemala, and Soviet bloc countries; Nicaragua and Cuba; and Haitians who had been paroled into the United States from Guantánamo Naval Base (Kerwin Reference Kerwin2010). In short, legalization programs have been a regular feature of U.S. immigration law and policy since the 1920s.

The current unauthorized population has been cast as an undifferentiated group of lawbreakers. However, several overlapping groups of U.S. unauthorized residents enjoy the same kind of equitable and humanitarian claims to membership as previously legalized groups. Populations with particularly strong equities include the:

1. 5.9 million U.S. unauthorized residents that arrived in the 1990s and the 1.4 million that arrived in the 1980s;

2. Parents of 4.5 million U.S.-citizen children;

3. More than one million family members of U.S. citizens and LPRs whose visa petitions have been approved based on a qualifying family relationship;

4. 2.1 million persons who were brought to the United States as children, have resided continuously in the United States, and who would qualify for legal status under the Development, Relief, and Education for Alien Minors Act;

5. Agricultural laborers and other workers in short supply, despite the worst economy since the Great Depression; and,

6. Salvadoran and other refugee-like populations in the United States who have received temporary protected status and lived in the United States for years, sometimes decades. (Batalova and McHugh Reference Batalova and McHugh2010; Kerwin Reference Kerwin2011; Passel and Cohn Reference Passel and Cohn2010; Passel and Cohn Reference Passel and Cohn2011; Rosenblum, Capps, and Lin Reference Rosenblum, Capps and Lin2011)

Conclusion

In liberal democracies, the rule of law speaks to the form that laws take, their substance, and the legitimacy of the political processes out of which they arise (Tamanaha Reference Tamanaha2004). The U.S. immigration system honors the rule of law in many respects. It is the product of democratically enacted laws. Its legal immigration policies prioritize family unity, protection of at-risk persons, and admission of necessary workers. Removal proceedings offer significant procedural protections. Many of its enforcement strategies are narrowly tailored to prevent illegal immigration and to remove noncitizens who are not entitled to remain.

However, the rule of law does not support measures that compromise fundamental rights, put increasing numbers of people outside the law’s protections, make integration impossible, and limit due process and judicial review. In its thick sense, the rule of law argues for due process reforms, judicial review, an asylum system with greater integrity, expanded opportunities to legalize, expedited family reunification, and laws that extend fundamental rights to all residents, not just to U.S. citizens. It speaks both to enforcing the law and protecting people within the law. It offers a standard for immigration reform, not justification for enforcement-only policies or laws that deny rights as a means to an end.

Further Research

This chapter has applied “rule of law” principles to the U.S. immigration system. The international dialogue on migration and development has been a productive source of research and discussion on rights-respecting immigration policies that further the legitimate goals of migrant-sending and -receiving states. There remains a pressing need, however, for research that systematically evaluates national immigration policies against “rule of law” principles, including adherence to international legal norms.

A modest but growing body of research has emerged on the spiraling budgets of U.S. immigration enforcement agencies, as well as on the projected cost of “successfully” removing – either through massive deportations or attrition-through-enforcement policies – the eleven million U.S. unauthorized residents. There has been less analysis on the economic, social, and human costs of these strategies on families and communities. There has been virtually no research on the opportunity costs of U.S. immigration enforcement in terms of immigrant integration, other public investments, or the ability to respond to national security or criminal justice priorities.

There remains a glaring need for additional research on the impact of discrete enforcement policies on particular populations (like families and children) and on other national priorities. More research is needed, for example, on the intersection of citizenship policies, immigrant integration, and social cohesion; the effect on public safety of local police enforcement of immigration law; refugee populations that can no longer reach territorial protection and the need for alternative protection mechanisms; and the relationship between border blockade policies, migrant protection, and the growth of organized smuggling rings.

On the morning of July 13, 2006, Dr. Agapito López opened the door to the office that he shares with the Migrant Education Program in Hazleton, Pennsylvania. A packet containing a pamphlet had been slipped under his door, with an attached note to the doctor exclaiming: “Read this! You may learn something!”¹ The first page of the pamphlet began: “European Americans are being dispossessed of their own nation. We are under invasion by millions of unskilled Mexicans who threaten to bankrupt us.” The pamphlet continued:

That day, the city of Hazelton passed the Illegal Immigration Relief Act Ordinance. The ordinance barred landlords from renting to undocumented immigrants through a provision that defines “harboring” of an “illegal alien” as the leasing or renting of a unit to someone who is in the United States in violation of the law.³ Another section barred private employers from hiring “unlawful workers.”⁴ An English-only provision barred city employees from using or distributing any translated forms or notices.⁵

We are a nation of immigrants, but we also are a nation that loves to debate immigration policy, and that debate reflects the battle over how we define who is an American. The antiimmigrant movement in the United States is as strong as ever. Immigrant bashing is popular among politicians, talk radio hosts, private militiamen, and xenophobic grassroots organizations. They take full advantage of the high-tech, social media era in which we live, as they complain about the “illegal alien invasion.” Their common thread is the rhetoric of fear. This hysteria leads to tragic policies that challenge us as a moral society. Immigration and Customs Enforcement (ICE) raids, the Secure Communities program, enormous funding for border enforcement, antiimmigrant ordinances and state laws, and record levels of detention are manifestations of the venom, while immigrants and citizen relatives are forced to suffer.

Arizona’s SB 1070 is an example of the hysteria-driven results.⁶ The Supreme Court struck down three of four key provisions. Arizona acted improperly by trying to enact its own immigration laws by making it a crime to be an unregistered immigrant and to solicit work in the state. Arizona also could not authorize its police to arrest immigrants whom they believe are deportable – the state cannot help ICE enforce federal immigration laws unless asked to do so by federal officials. However, pending more information, under § 2(B) of SB 1070, if Arizona police validly stop a person for violation of a state law, in the process they can ask for immigration papers if there is “reasonable suspicion” that the person is unlawfully present in the United States. This “show-me-your-papers” section also requires state and local authorities to determine the immigration status of any person placed under arrest, regardless of whether the person is suspected of being in the country unlawfully.

The intent of SB 1070 was to make life miserable for undocumented immigrants in Arizona in hopes of achieving “attrition through enforcement.”⁷ Critics charge that the law invites racial profiling and exceeds state authority (American Civil Liberties Union 2010; Arizona Daily Star2010). As Donald Kerwin points out in his contribution to this volume (Chapter 14), the deportation-by-attrition strategies are based on criminalizing the exercise of core rights – to housing, work, education, police protection, and even to public utilities like water. By this logic, there is little reason that states should not also try to criminalize the exercise of conscience by, for example, denying unauthorized immigrants the right to practice their faith or to express their political opinions.

This chapter examines local and state laws that attempt to regulate immigration; how much of the racist attitudes toward immigrants have come to be institutionalized within the current immigration system; and current enforcement strategies that prey heavily on immigrant workers who are victims of trade policies and globalization. Given an understanding of how our nation’s immigration laws have evolved in the context of globalization, the antiimmigrant rhetoric may not be appropriate. A better response might be to gather ourselves and use our collective wisdom to address immigration policy and the need for reform in a thoughtful, reasoned manner.

Historical Background on State Regulation of Immigrants

Antiimmigrant ordinances and laws at the state and local levels are nothing new. The original thirteen colonies attempted to define their new America by promoting immigration only to select groups. As early as 1751, no less an icon of the New World than Benjamin Franklin opposed the influx of German immigrants, warning that “Pennsylvania will in a few years become a German colony; instead of their learning our language, we must learn theirs, or live as in a foreign country” (Hing Reference Hing2004). After independence, a number of states instituted legislation targeting the poor from abroad as well as those from other states; in Massachusetts, the 1794 poor laws imposed a penalty on any person who knowingly brought a pauper or indigent person into any town in the Commonwealth and left the person there. Religious belief often limited one’s choice of domicile in the New World. In the spirit of the time, colonial charters frequently denied admission to Catholics. Virginia passed laws ordering that Quakers be detained and deported; death was the punishment for a third unlawful entry. Prior to the Civil War, Southern slave states adopted legislation prohibiting the migration of free blacks and urged free Northern states to do the same. Because many residents of the North were prejudiced against blacks, several free states obliged, either blocking the movement of blacks into the state or requiring good behavior and assurances that blacks would not become public charges (Hing Reference Hing2004: 13–18).

In the nineteenth and twentieth centuries, enactment of antiimmigrant state laws and local ordinances continued. The racist laws directed at Chinese in the West have been well documented. San Francisco’s infamous no-wooden-laundry law aimed at Chinese laundries ended up before the Supreme Court in Yick Wo v. Hopkins.⁸ The preclusion of Chinese witnesses testifying against whites in California courtrooms was upheld by the California Supreme Court.⁹ A Tucson petition sought to require all Chinese to live in a “Chinatown” (Wunder Reference Wunder1989). Throughout the West, alien land laws prohibited Asian immigrants from owning or leasing land (see, generally, Aoki Reference Aoki1998). And across the country, many states’ antimiscegenation laws were enforced against immigrants of color as well as blacks who attempted to marry whites (see, generally, Sohoni Reference Sohoni2007).

Eventually, all of these laws and ordinances were struck down either as violations of the Fourteenth Amendment or preempted by federal law. Because Congress was deemed to have plenary power to determine who should enter or be deported, local and state laws found to be attempts to regulate immigration were ruled unconstitutional. For example, in Graham v. Richardson,¹⁰ the Supreme Court struck down a bar to state welfare benefits for lawful resident aliens. In Sugarman v. Dougall,¹¹ the Court invalidated a citizenship requirement for state civil service positions. In In re Griffiths,¹² the exclusion of lawful resident aliens from the practice of law in Connecticut was invalidated. Similarly, in Bernal v. Fainter,¹³ the Court ruled unconstitutional a state citizenship requirement for notary publics. In all of these cases, the Court applied “strict scrutiny” to the alienage classification.

One of the high points in this line of cases is Plyler v. Doe,¹⁴ striking down a Texas law that denied undocumented children access to elementary and secondary public schools. The proimmigrant decision was significant because discrimination against undocumented immigrants was not regarded as a suspect classification, and the Court did not treat the right to education as fundamental. However, the Court noted:

Plyler was relied upon by a federal district court in repudiating California Proposition 187’s educational ban on undocumented students in the 1990s.¹⁶

In spite of the case law striking down these antiimmigrant state laws primarily on equal protection grounds, the Supreme Court carved out a huge exception. States could limit certain “public functions” jobs to U.S. citizens even when well-qualified lawful resident aliens applied. Beginning with Folie v. Connelie,¹⁷ the Court deferred to a state’s requirement of U.S. citizenship when the position entails a public function, or involves the “formulation, execution, or review of broad public policy.” In Folie, the Court held that New York could bar aliens from holding state law enforcement positions. In Ambach v. Norwick,¹⁸ the Court ruled that public school teaching fell within the public functions exception as well. Thus after this case, a French immigrant can be prevented from applying to teach high school French. Similarly, in Cabell v. Chavez-Salido,¹⁹ the Supreme Court held that probation officer positions in California could be limited to U.S. citizens.

Economic Costs as a Pretext

Racism appears to be the true motivation behind ordinances such as those enacted in Hazelton, because the law makes no economic sense. After losing the trial, the city was ordered to pay $2.4 million in attorneys’ fees. By June 2009, the city had already spent more than $2.5 million on its own legal fees (American Civil Liberties Union Immigrant Rights Project 2009).²⁰ Aside from the fees, the purported economic premise of the ordinance was shaky. Ordinance supporters argued that undocumented immigrants strained and burdened Hazelton’s coffers.²¹ However, at trial, the plaintiffs were able to establish that immigrants actually bolstered the local economy:

The positive economic findings in Hazleton are consistent with recent history in Arizona. Arizona stands to see the negative economic effects of massive exclusion of an undocumented workforce. Before the state’s enactment of its Legal Workers Arizona Act in 2007, the state experienced decades’ worth of growth, boosted by its estimated 12 percent undocumented labor force. That law caused many headaches and loss of production for Arizona employers who need workers (Bowers Reference Bowers2006). When you add in SB 1070, the economic effects of Arizona’s laws have devastated small business owners and the agricultural industry in the state (Nowrasteh Reference Nowrasteh2011). A year after SB 1070 was enacted, sixty Arizona business leaders signed a letter blaming the bill for boycotts, canceled contracts, declining sales, and other economic setbacks. As a result, the state senate rejected five subsequent antiimmigrant proposals, including one that would have required hospitals to inform law enforcement officials when treating patients suspected of being undocumented (Oppel Reference Oppel2011). Also, we should not lose sight of the fact that immigrants are consumers as well, so if they are run out, the state loses consumers. Consumption creates demand for certain goods and services, which in turn creates jobs (Hing Reference Hing1997).

Furthermore, although Hazleton’s mayor began blaming problems on undocumented immigrants in May 2006, including emphasizing a local shooting,²⁴ crime declined when more Latinos began to arrive. Data revealed that crime went down steadily beginning in 2000. The total arrests had declined largely because the number of serious crimes was down.²⁵

Discrimination issues have been raised in the current litigation over Arizona’s “show-me-your-papers” provision because the prospect of racial profiling that will likely occur if state police are to target undocumented immigrants is high. As noted, the primary argument that the Department of Justice and others have advanced is that the various antiimmigrant state laws are preempted by federal law. However, in May 2011, the Supreme Court ruled that an earlier Arizona law creating potentially harsh employer sanctions was not impliedly preempted.²⁶ States like Alabama, Georgia, and Utah, along with the Hazleton ordinance, have included antiimmigrant provisions that differ from those struck down by the Supreme Court in its SB 1070 decision. Thus scholars and litigators are hard-pressed to say with certainty that all aspects of local or state antiimmigrant laws will be ruled unconstitutional (see, generally, Gulasekaram and Cuison Villazor Reference Gulasekaram and Cuison Villazor2009; Hing Reference Hing2012).

Employer Sanctions

The goal behind the Immigration Reform and Control Act of 1986 (IRCA), as well as many of the local antiimmigrant ordinances, is to make it tough on employers to hire undocumented workers. The idea is that if employers do not hire such workers, the workers will stop entering the United States. However, the North American Free Trade Agreement (NAFTA) and globalization have actually combined to produce major job loss in Mexico, and Mexican workers are entering the United States because of the effects of many U.S. economic policies (see, generally, Hing Reference Hing2010). Can we really justify punishing undocumented Mexican workers displaced by the effects of NAFTA?

A fundamental problem with the employer sanctions provisions of IRCA is the discrimination that results. Long before the findings of discriminatory effects of the E-Verify program that is used by many employers to check the immigration status of job applicants (Immigration Policy Center 2008), discrimination was rampant. In its final report to Congress on employer sanctions in 1990, the Government Accounting Office estimated that of 4.6 million employers in the United States, 346,000 admitted applying IRCA’s verification requirements only to job applicants who had a “foreign” accent or appearance. Another 430,000 employers admitted violating the law by only hiring applicants born in the United States or not hiring applicants with temporary work documents in order to be cautious (Oliveira 2002).

Direct and indirect recruitment of Mexican workers has continued in spite of the implementation of employer sanctions legislation in 1986. In 2001, researchers continued to identify organized groups of farm labor contractors who travel to Mexican cities and towns, where they offer loans and work guarantees to convince potential farmworkers to cross the border into the United States. The process involves well-organized networks of contractors and contractor agents representing major U.S. agricultural companies. The headhunters are often Mexicans who recruit in their own hometowns and farming communities where earning the trust of eager farm hands is not difficult. One of the contractors’ favorite tactics to attract workers is to offer loans to help pay off debts, coupled with a pledge to find work for the person north of the border. Many U.S. companies rely on these networks of recruiters (Bauer and Reynolds Reference Bauer and Reynolds2013).

Even a cursory review of the ICE raids in the past few years reveals an obvious disparity in the targeting of undocumented workers over the employers who hire them. Employers are subject to labor law standards that are often ignored. Demanding the enforcement of labor laws (e.g., health, safety, and minimum wage requirements) against unscrupulous employers who take advantage of low-income workers – documented or undocumented – is in order. All too often, the undocumented workforce that has been paid less than minimum wage from work conditions that violate health and safety standards is hauled away, and the employer receives no punishment. Instead of deporting the workers, their supporters contend that we should remove the barriers that stand in the way of their efforts to place pressure on the employers to improve wage and work conditions. In the process, the jobs may become more attractive to native workers – something that, ironically, antiimmigrant forces want. Thus, in 2009, Ken Georgetti, president of the Canadian Labour Congress, and John Sweeney, president of the AFL-CIO, wrote to President Obama and Canadian Prime Minister Harper, reminding them:

While employer sanctions have little effect on migration, they have made workers more vulnerable to employer pressure. Because working is illegal for them, undocumented workers are afraid to protest low wages and bad conditions. Employer sanctions bar them from receiving unemployment and disability benefits, although they make payments toward these benefits (Johnson et al. Reference Johnson2009). If they get fired for complaining or organizing, finding another job is more difficult. Despite these obstacles, immigrant workers, including the undocumented, have asserted their labor rights, organized unions, and won better conditions (Chacón Reference Chacón2006). But employer sanctions have made this harder and riskier.

Using Social Security numbers to verify immigration status has led to firing and blacklisting many union activists. Even citizens and lawful permanent residents feel this impact (Immigration Policy Center 2011), because in our diverse U.S. workplaces, immigrant and native-born workers work side by side. Driving one group into the shadows and discouraging them from asserting their labor rights have simply created obstacles for everyone else. Unions now have greater difficulty defending the rights of their own members or organizing new ones. The exploitation of the undocumented workforce will only end if workers are free to make complaints and to organize.

Eliminating the undocumented workforce without providing an avenue for their labor to be utilized in the United States also would have devastating economic consequences. Data reveal many U.S. job categories that rely on the undocumented workforce (Hing Reference Hing2006). Gordon Hanson’s findings for the Council on Foreign Relations support these arguments. He notes that between 1960 and 2000 the number of U.S. residents with less than twelve years of schooling fell from 50 percent to 12 percent (Hanson Reference Hanson2007).

To some, employer sanctions enforcement is a means of creating a case for a massive guest-worker program. Remarks by President George W. Bush’s Department of Homeland Security (DHS) Secretary Michael Chertoff in 2008 were revealing: “There’s an obvious solution to the problem of illegal work, which is you open the front door and you shut the back door” (Chertoff Reference Chertoff2008). “Opening the front door” allows employers to recruit workers to come to the United States, giving them visas that tie their ability to stay to their employment. And to force workers to come through this system, “closing the back door” criminalizes migrants who work without “work authorization.” As the Arizona governor, President Obama’s first DHS Secretary, Janet Napolitano, supported this arrangement, signing the state’s own employer sanctions bill,²⁷ while supporting guest-worker programs (Benson Reference Benson2007).

Efforts by the Obama administration to engage in a “softer, gentler” approach to employer sanction enforcements also are controversial.²⁸ Instead of gun-wielding ICE agents raiding factories, the Obama approach is to conduct employee record audits, with orders to employers to fire workers with inadequate documents. Workers still lose the jobs, while a long-range solution to job loss in Mexico remains unaddressed.

Institutionalized Racism

Anyone who is opposed to racial profiling and racially discriminatory enforcement of laws should be concerned about the Obama employer sanctions enforcement strategy. As in the case of the Bush-style ICE raids, the Obama audit-style approach that results in layoffs of thousands of workers has preyed almost exclusively on Latino workers. The racial effects are hard to ignore.

Racism against Latinos has been institutionalized in the enforcement of U.S. immigration laws (see, generally, Hing Reference Hing2009a). In contemporary terms and within the black-white paradigm in the United States, institutional racism is understood to have resulted from the social caste system that sustained, and was sustained by, slavery and racial segregation. Although the laws that enforced this caste system are no longer in place, one can argue that its basic structure stands to this day. So today, one might claim that institutionalized racism deprives a racially identified group, usually defined as generally inferior to the defining dominant group, equal access to education, medical care, law, politics, housing, and the like (Hing Reference Hing2009a: 323).

By understanding the fundamental principles of institutionalized racism we begin to see the application of the concept beyond the conventional black-white paradigm. Institutional racism embodies discriminating against certain groups of people through the use of biased laws or practices. Structures and social arrangements become accepted, and they operate and are manipulated in such a way as to support or acquiesce in acts of racism. Institutional racism can be subtle and less visible, but is no less destructive to human life and human dignity than individual acts of racism (Hing Reference Hing2009a: 323).

The forces of racism have become embodied in U.S. immigration laws (Johnson Reference Johnson2009).²⁹ As these laws are enforced, they are accepted as common practice, in spite of their racial effects. We may not like particular laws or enforcement policies because of their harsh effects or their violations of human dignity or civil rights, but many of us do not sense the inherent racism because we are not cognizant of the dominant racial framework. Understanding the evolution of U.S. immigration laws and enforcement provides us with a better awareness of what is happening and the institutional racism that controls those policies (Hing Reference Hing2009a: 324).

Rightly or wrongly, today the so-called illegal immigration problem has become synonymous with alleged lack of control of the Southwest border. As such, the “problem” is synonymous with Mexican migration, and Mexican immigrants have come to be regarded by many antiimmigrant voices as the enemy. The antiimmigrant activists do not regard themselves as racist; they view themselves as the voice of law and order. The history of the border, labor recruitment, and border enforcement explain how the institutionalization of anti-Mexican immigration policies has created the structure to allow these voices to claim racial and ethnic neutrality, and for many Americans to accept that claim (Hing 2009a: 325–6). As Nicholas De Genova points out (Chapter 2), major changes in U.S. immigration law over the past several decades have generated the conditions of possibility for a dramatic expansion of migrant “illegality.” And Josiah Heyman (Chapter 5) reminds us of the inhumane manifestation of anti-Mexican immigration in the form of Operation Gatekeeper that takes the lives of at least four hundred migrants attempting to pass the border each year.

The current numerical limitation system, while not explicitly racist, operates in a manner that severely restricts immigration from Mexico and the high-visa-demand countries of Asia. Amendments to the nation’s immigration laws in 1965 represented a welcome change, but the new regime was no panacea. President John F. Kennedy originally proposed a large pool of immigration visas to be doled out on a first-come, first-serve system without country quotas. If implemented, the system immediately would have facilitated the entry of large numbers of Asian immigrants, because a first-come, first-serve system would benefit countries with the biggest demand. After President Kennedy’s assassination, his brother, Ted Kennedy, and President Lyndon Johnson continued to promote the legislation. However, President Kennedy’s egalitarian vision did not survive the political process. Instead, a system that included per country caps of approximately twenty thousand visas for each country outside the Western Hemisphere was established in the 1965 Immigration Act. An overall Eastern Hemisphere numerical limitation of 170,000 visas also was established (Hing Reference Hing2004: 93–8).

Between 1965 and 1976, while the rest of the world enjoyed an expansion of numerical limitations and a definite preference system, Mexico and other countries of the Western Hemisphere were suddenly faced with numerical limitations for the first time. These countries had to share a quota of 120,000. The system was a first-come, first-serve system, with Mexico taking a big share of the 120,000 – more than forty thousand – each year because of its high visa demands. Applicants had to meet strict labor certification requirements, but waivers were available to certain applicants like parents of U.S.-citizen children. Many Mexicans qualified for that waiver. As one might expect, given the new numerical limitations but large visa demands, by 1976 the Western Hemisphere system resulted in a severe backlog of approximately three years and a waiting list with nearly three hundred thousand names (Hing Reference Hing2004: 97–100).

As the framework resulted in growing visa backlogs for Western Hemisphere countries, things got worse in 1977. Congress altered the Western Hemisphere system yet again, imposing the same preference system and a twenty thousand visa per country numerical limitation that the rest of the world first confronted in 1965. Thus Mexico’s annual visa usage rate from 1965 to 1976 (more than forty thousand) was virtually sliced in half overnight, and thousands were left stranded on the old system’s waiting list. As De Genova (Chapter 2, page 44) points out, “all of the repercussions of the uniform numerical restrictions introduced by these legislative revisions have weighed disproportionately upon Mexican migration in particular.”

Today’s selection system simply does not have room for many relatives because of numerical limitations and no category for those who are simply displaced workers. They do not qualify for special visas set aside for professionals and management employees of multinational corporations or for those visas that require substantial funds for investment. Similarly, the system has no slot for anyone whose livelihood is controlled by trade agreements and globalization that cause job loss in low-income regions, as multinational corporations, the beneficiaries of free trade, relocate to other sites where their production costs are cheaper.

The system results in severe backlogs in certain family immigration categories – particularly for spouses, unmarried sons and daughters of lawful permanent residents, and siblings of U.S. citizens. For some countries, such as the Philippines and Mexico, the waiting periods for certain categories are ten to twenty years long.³⁰ Given the severe backlogs and the continuing allure of the United States (not simply in terms of economic opportunities, but because relatives are already here due to recruitment efforts or political stability), many would-be immigrants are left with little choice. Inevitably they explore other ways of entering the United States without waiting. By doing so, they are caught in the jaws of the immigration exclusion laws that provide civil and criminal penalties for circumventing the proper immigration procedures.

The basic civil sanction of removal (deportation) applies to individuals who fall into the immigration trap by following their instincts to reunify with families or to seek economic opportunities. The categories of such “deportable aliens” include the following persons: those who are in the United States in violation of the immigration laws (e.g., entry without inspection or false claim to citizenship), those nonimmigrants who overstay their visas or work without authorization, those who have helped others enter (smuggled) without inspection, and those who are parties to sham marriages (Johnson et al. Reference Johnson2009: 314–20). Additional civil penalties, including fines, can be imposed for forging or counterfeiting an immigration document, failing to depart pursuant to a removal order, entering without inspection, and entering into a sham marriage (Johnson et al. Reference Johnson2009: 231–3, 407–12).

Congress also has enacted criminal provisions that go far beyond the civil sanction of removal and monetary fines for many of these actions. For example, the following acts are criminalized (subject to imprisonment and/or monetary fines): falsifying registration information about the family; any bringing in (smuggling), transporting, or harboring (within the United States) of an undocumented alien (including family members); entry without inspection or through misrepresentation; the reentry of an alien (without permission) who previously has been removed or denied admission; and making a false claim of U.S. citizenship.³¹ The punishment for smuggling and transportation of even family members is particularly noteworthy. As Heyman (Chapter 5) points out, the intensification of enforcement from the early 1990s onward increased both the proportion of migrants using smugglers and their price.

So, given the insufficient supply of immigrant visas to satisfy the demands for family reunification, and no supply for simple, displaced working-class workers, the action of traveling to the United States by circumventing the current structure can easily result in civil and, at times, criminal liability. The migrants who fall into those groups are from the countries whose family immigration quotas are oversubscribed or whose economy has been damaged by globalization and free trade. And those countries are primarily Asian and Latin American.

It does not take long to realize that while immigration laws and enforcement policies have evolved in a manner that continues to prey on Asians, Mexicans, and other Latin migrants, the relationship of those laws and policies with other racialized institutions underscores the structural challenges that immigrants of color face. Consider NAFTA and the World Trade Organization. NAFTA has placed Mexico at such a competitive disadvantage with the United States in the production of corn that Mexico now imports most of its corn from the United States, and Mexican corn farmworkers have lost their jobs (Hing Reference Hing2009b; Hing Reference Hing2010). The U.S.-embraced World Trade Organization, which advocates global free trade, favors lowest-bid manufacturing nations like China and India, so that manufacturers in a country like Mexico cannot compete and must lay off workers (Hing Reference Hing2009b; Hing Reference Hing2010). Shouldn’t there be little wonder that so many Mexican workers look to the United States for jobs, especially when so many of the multinational corporations and companies that benefit from free trade are headquartered here?

Think also of refugee resettlement programs as an institution. When Southeast Asian refugees are resettled in public housing or poor neighborhoods, their children find themselves in an environment that can lead to bad behavior or crime (Hing Reference Hing2005; Ta Reference Ta2005). Refugee parents, like other working-class immigrant parents, often work long hours and their children are left unsupervised (Hing Reference Hing2005; Ta Reference Ta2005). And consider U.S. involvement in wars and civil conflict abroad. The institution of war produces refugees. U.S. participation in civil conflict in countries like Guatemala and El Salvador produced refugees in the 1980s. But think also of U.S. involvement in places like Southeast Asia, and now Afghanistan and Iraq, that has produced involuntary migrants of color to our shores.

Other racialized institutions that interact with immigration laws and enforcement come to mind: think of the criminal justice system, poor neighborhoods, and inner-city schools. Even coming back full circle to the enslavement of people (Magee Reference Magee2009), for example, today’s human trafficking institutions, we begin to see an interaction with immigration laws that require greater attention. These institutions all can lead to situations that spell trouble within the immigration enforcement framework.

Thus the immigration admission and enforcement regimes may appear neutral on the surface, but (1) they have evolved in a racialized manner and (2) when the immigration framework interacts with other institutions such as the criminal justice system, NAFTA, globalization, poor neighborhoods, and schools in which many immigrants and refugees are situated, one can see that the structure generates racial group disparities as well. NAFTA and globalization provide a major reason why many migrants of color cannot remain in the native countries if they are to provide for their families. The criminal justice system and poverty prey heavily on poor communities of color, leading to deportable offenses if defendants are not U.S. citizens.

The construction of the U.S. immigration policy and enforcement regime has resulted in a framework that victimizes Latin and Asian immigrants. These immigrants of color were the subject of ICE raids during the Bush administration. They are the ones who comprise the immigration visa backlogs. They are the ones who attempt to traverse the hostile Southwest border. Today, Latino and Latina workers are the primary victims of the Obama audit strategy.

The victimization of immigrants of color has been institutionalized. Thus any complaint about immigrants – fiscal or social – can be voiced in nonracial, rule-of-law terms because the institution has masked the racialization with laws and operations that are couched in nonracial terms. Antiimmigrant pundits are shielded from charges of racism by labeling their targets “lawbreakers” or “unassimilable.” ICE can target so-called criminal aliens, but the racist immigration selection and refugee resettlement programs place noncitizen youth in environments that are inextricably linked to the criminal justice system. Deportation, detention, and exclusion at the border can be declared race-neutral by the DHS because the system already has been molded by decades of racialized refinement. Officials are simply “enforcing the laws.” The victimization of Latinos and Southeast Asians by immigration laws and enforcement policies has been normalized, allowing Americans to accept statistics about disproportionality (just as they have with respect to racial inequities in, e.g., the educational or criminal justice systems) as “just the way things are” (Kubisch Reference Kubisch2006). Like white privilege, institutionalized racism generally goes unrecognized by those who are not negatively impacted (Law Reference Law1999).³²

The cards are stacked against Latin migrants – especially Mexicans. The immigration law and enforcement traps are set through a militarized border practice and an anachronistic visa system. That Mexican immigrants are the victims of those traps is not a surprise. They have been set up by the vestiges of a border history of labor recruitment like the bracero program, Supreme Court deference to enforcement, and border militarization that laid the groundwork for current laws and enforcement policies. The resulting practice can be implemented through seemingly nonracial provisions and operations that actually result in severe racial outcomes.

Laws like SB 1070 invite an analysis through the racialized lens of immigration laws – federal and local. The evolution of immigration policy, beginning with the forced migration of African workers, the infamous Asian exclusionary period, and then the Southwest border regime, must be kept in mind as today’s policies and enforcement approaches are contemplated. Racism has been institutionalized in federal and state immigration laws although they may be drafted in nonracial terms.

Putting faith in the well-meaning intentions of ICE officials can be problematic. Mistakes are made very easily, and innocent individuals and families can be damaged. Consider U.S. citizens who have been detained in ICE raids. Michael Graves was working at a Swift meat packing plant in Marshalltown, Iowa, when ICE raided the facility. Graves, a black U.S. citizen, was held for eight hours and “treated as a criminal” (United Food and Commercial Workers 2009: 5). ICE agents raided the Crider Poultry plant in Stillmore, Georgia, but for some reason expanded their operation to a mobile home park, storming into the home of seventeen-year-old Justeen Mancha who was getting ready for school. As ICE agents, one with a hand on his gun, confronted Justine, her “heart just about burst out” of her chest. Justeen was a U.S. citizen, as was her mother (United Food and Commercial Workers 2009: 8–9).

Fidencio Sandoval, a U.S. citizen at a plant raided in Grand Island, Nebraska, was also singled out. His Caucasian boss simply showed his driver’s license to ICE agents, and he was free to go. Sandoval showed his driver’s license plus a voter registration card, but those documents were not enough for the ICE agents. He was detained for hours, until his sister was able to break into his house to retrieve his certificate of citizenship. Manuel Verdinez went through similar profiling and was taken to a military base that was miles from his home and held for twelve hours. By then, ICE was able to verify his citizenship and released him later in the evening, but Verdinez had to pay a $90 cab fare to get home (United Food and Commercial Workers 2009: 18–19).

Even when ICE correctly identifies someone who is undocumented, its treatment of detainees can be cruel. Juana Garcia, a worker at a raided factory in New Bedford, Massachusetts, went to work on the day of the raid even though her young son was a little sick. After she was arrested, ICE officials refused to let her go see her son. Before she was taken hundreds of miles away to be detained in Texas, she saw other women:

Obama Enforcement Strategy

In the wake of a federal judge’s ruling that Arizona’s antiimmigration law was unconstitutional, Arizona governor Jan Brewer declared that SB 1070 was needed “to address a crisis [Arizona] did not create and the federal government has actively refused to fix.” She is right that Congress needs to address immigration reform. But many would disagree that the SB 1070 route is the answer. To proponents of Arizona’s law, SB 1070 embodies an “attrition through enforcement” approach. To me, the law symbolizes “attrition through profiling.”³³ The mass deportation of the estimated ten to twelve million undocumented residents of the country is not likely a feasible answer either.

Workplace ICE raids by gun-wielding agents resulting in the mass arrests of dozens and sometimes hundreds of employees that were common under the George W. Bush administration appear to have ceased under the Obama administration (see, generally, Hing Reference Hing2009a). Legally questionably mass arrests in neighborhoods continue to occur under the pretext of serving warrants on criminal aliens.³⁴ However, disruptive, high-profile worksite raids have subsided for now. When a Bush administration–style ICE raid took place in Washington State in February 2009 soon after Janet Napolitano took the helm as Secretary of the DHS, she expressed surprise and ordered an investigation. These types of raids were not in her strategic plan she noted; instead, enforcement in her regime would focus on employers who hire undocumented workers, not on the workers (New York Times 2009).

Make no mistake. Although deportations related to worksite operations may have decreased under the Obama approach in contrast with that under George W. Bush, actual deportation numbers are not down. The Obama administration is deporting record numbers of undocumented immigrants, with ICE removing about four hundred thousand individuals annually (Slevin Reference Slevin2010). Obama’s removal rate far outpaces that of President Bush (Mataconis Reference Mataconis2011). According to ICE, the increase has been partly a result of deporting those persons picked up for other crimes and expanding the search through prisons and jails for deportable immigrants already in custody (Slevin Reference Slevin2010). Under the ICE Secure Communities program, which Obama’s DHS has expanded, deportations have been greatly facilitated. As part of normal enforcement practices, state law enforcement agencies who fingerprint individuals submit those fingerprints to a state identification bureau. The prints are then routed to the Federal Bureau of Investigation (FBI) to ascertain whether there are any outstanding warrants for the individual. But under Secure Communities, the fingerprints are automatically sent by the FBI to ICE’s immigration database to initiate an immigration status background check; if there is a “hit” or there is a question as to someone’s legal status, the FBI sends a message to various departments within ICE, and the law enforcement agency also is informed. ICE then determines whether to order the local police to hold the person for pick up by ICE. All too often, victims of crimes, minor offenders, and even crime witnesses have been swept up by Secure Communities. Reports that domestic violence victims have been rounded up because of Secure Communities are common. More than one-third of individuals arrested under Secure Communities have a U.S. citizen spouse or child; Latinos comprise 93 percent of individuals arrested through Secure Communities, even though they are only about 75 percent of the undocumented population (Kohli, Mankowitz, and Chavez Reference Kohli2011).

Unlike the former worksite raids that led to arrests and deportation, the “silent raids,” or audits of companies’ records by federal agents, simply result in firings. Just 765 undocumented workers were arrested at their jobs in 2010 through early summer, compared with 5,100 in 2008, according to DHS figures (Mauer Reference Mauer2010).

However, the Obama administration’s focus-on-employers-rather-than-workers strategy falls squarely on the shoulders of the workers. Immigration raids at factories and farms have been replaced with a quieter enforcement strategy: sending federal agents to scour companies’ records for undocumented immigrant workers. While the sweeps of the past commonly led to the deportation of such workers, the “silent raids,” as employers call the audits, usually result in the workers being fired, although in many cases they are not deported (Preston Reference Preston2010). The idea is that if the workers cannot work, they will self-deport, leaving on their own. However, they actually do not leave because they need to work. They become more desperate and take jobs at lower wages. Given the increasing scale of enforcement, this can lead to an overall reduction in the average wage level for millions of workers, which is, in effect, a subsidy to employers. Over a twelve-month period, ICE conducted audits of employee files at more than 2,900 companies. The agency levied a record $3 million in civil fines in the first six months of 2010 on businesses that hired unauthorized immigrants. Thousands of workers were fired (Preston Reference Preston2010).

Unsatisfied, some on the political right complain that the Obama employer sanctions “silent raid” approach is too soft, because although the workers get fired, they do not get deported (Preston Reference Preston2010).³⁵ They claim that “there is no drama, no trauma, no families being torn apart, no handcuffs” (Preston Reference Preston2010).³⁶ However, consider the plight of fired undocumented workers who face an agonizing dilemma. Should they turn themselves in to DHS, which might charge them with providing a bad Social Security number to their employer, hold them for deportation, and even send them to prison, as was done with workers in Iowa and Howard Industries in Mississippi (see, e.g., Waddington Reference Waddington2009)? For workers with families, homes, and deep roots in a community, it simply is not possible to just walk away and disappear. As Service Employees International Union Local 87 president Olga Miranda points out: “I have a lot of members who are single mothers whose children were born here. I have a member whose child has leukemia. What are they supposed to do? Leave their children here and go back to Mexico and wait? And wait for what?”³⁷

Union leaders like Miranda see a conflict between the rhetoric used by the president and other Washington, D.C., politicians and lobbyists in condemning the Arizona law and the immigration proposals they make in Congress. “There’s a huge contradiction here,” she says. “You can’t tell one state that what they’re doing is criminalizing people, and at the same time go after employers paying more than a living wage and the workers who have fought for that wage.”³⁸

Renee Saucedo, attorney for La Raza Centro Legal and former director of the San Francisco Day Labor Program, is even more critical. “Those bills in Congress, which are presented as ones that will help some people get legal status, will actually make things much worse. We’ll see many more firings like the janitors here, and more punishments for people who are just working and trying to support their families.”³⁹

Nevertheless, whether or not they are motivated by economic gain or antiunion animus, the current firings highlight larger questions of immigration enforcement policy. Nativo López, director of the Hermandad Mexicana Latinoamericana, a grassroots organizer who organized protests against the firings at several worksites, puts it this way:

Whatever President Obama or Secretary Napolitano may claim about punishing exploitative employers, employers who cooperate with the audit initiative seem to evade sanctions. ICE threatened to fine Dov Charney, American Apparel’s owner, but then withdrew the threat. As a result, the fired workers were punished by being fired, but their employers escaped fines in exchange for cooperation.⁴¹

The justification for targeting workers is implicit in the policy announced on the White House website: “remove incentives to enter the country illegally.” This was the original justification for employer sanctions in 1986 – if migrants cannot work, they will not come. People did come, because at the same time Congress passed IRCA, it also began debate on NAFTA. That virtually guaranteed future migration. Since NAFTA went into effect in 1994, millions of Mexicans have been driven by poverty across the border (see, generally, Hing Reference Hing2010).

Increased ICE raids, stepped up border enforcement, and employer sanctions have not reduced undocumented immigration to the United States. The failure of these harsh efforts must teach us something. The enforcement-only approach has resulted in human tragedy, increased poverty, and family separation, while undocumented workers continue to flow into the United States. This is a challenge that requires us to understand why workers come here and to address the challenge in a more sensible manner.

Closing

The antiimmigrant lobby has used the politics of fear to generate much of the hysteria over immigration today. It advances the image of hordes of immigrants coming from Asia and Latin America to take our jobs and commit crimes, all the while not wanting to speak English or assimilate. Through fear and intimidation, true comprehensive immigration reform that values families and due process, while remaining cognizant of the global economy, has been stalled. Fear makes us lose our conscience; fear paralyzes us; we lose our sense of analysis and reflection (Satrapi Reference Satrapi2003).

We should know better.⁴² Shaped by racism that has been institutionalized in the nation’s immigration laws, the enforcement of immigration laws essentially has criminalized the undocumented community. Yet, the evidence on the effects of NAFTA and other factors of globalization is clear. As long as the economic imbalance between Mexico and the United States persists, Mexican migration will persist. The market forces are simply too strong to be overcome by standard enforcement-only responses through more border fencing, ICE raids, or employer sanction efforts.

The insightful contributions of this entire volume help us understand why any solutions to the so-called undocumented immigration challenge should be grounded in a clearer perspective of the undocumented community. The humanity of the community emerges from the work of Pierrette Hondagneu-Sotelo and Jose Miguel Ruiz on urban community gardens. Nestor Rodriguez points out that even as aggressive immigration enforcement removes hundreds of thousands of unauthorized migrants annually from the country, millions of other unauthorized migrants continue to supply the labor power for new labor demands that supports the workforces of core institutional sectors of society. The illogic of depriving U.S.-born children of U.S. citizenship is demonstrated in the chapter by Leo Chavez, while Joanna Dreby underscores the trauma to those children visited upon them by the threat of deportation to their families. The contributions of Walter J. Nicholls on the Development, Relief, and Education for Alien Minors (DREAM) Act movement, Heyman on undocumented immigrants generally, and the faith-based struggle against Alabama’s HB 56 outlined by Marie Friedmann Marquardt, Susanna J. Snyder, and Manuel A. Vásquez highlight the resistance efforts of these communities and their allies and their centrality in political discourse. Roberto G. Gonzales, Luisa Laura Heredia, and Genevieve Negrón-Gonzales focus on the lives the 1.5 generation, essentially DREAMers, and note how they are altering the conception of what it means to be undocumented. After getting a sense of inclusion during their K–12 schooling, they realize that they are excluded from society because they are not documented. But today their lives and activism are challenging traditional notions of illegality and Americanness on their own behalf as well as for their parents. Doris Marie Provine and Paul G. Lewis point out that the issue of legality in the enforcement of federal immigration law must be confronted, not just at the local level, where legality is well-known to play a role subordinate to other important values, but also at the federal level. De Genova points out that undocumented migration is perennially produced as a “problem”: as an invasive and incorrigibly “foreign” menace to national sovereignty, a racialized contagion that undermines the presumed national “culture,” and a recalcitrant “criminal” affront to national security. Leisy J. Abrego argues that criminalization and exclusion affect the lives not only of those immigrants who can be unequivocally categorized as “undocumented” in this country, but also the lives of undocumented immigrants’ relatives, neighbors, coworkers, and friends. And Tanya Golash-Boza points out that this corrosive atmosphere even leads to the deportation of lawful permanent residents who have been criminalized. As Donald Kerwin astutely notes, the rule of law does not support measures that deny fundamental rights, placing increasing numbers of people outside the law’s protections, and limiting due process and judicial review.

In spite of the mountains of information and insight available to policy makers to think outside the box in developing new policies, there is always room for more meaningful research. The economic costs and benefits of immigrants – documented and undocumented – must be constantly updated, especially in times of economic turmoil as we have recently experienced. Immigrants’ effects on wages and jobs are constantly debated. So we must honestly address those effects regionally, as well as by job classification, to have salient information available to answer the concerns of skeptics. Related to the employment impact is the question of the efficacy of employer sanctions and the discriminatory effects of E-Verify. Only through careful and studious qualitative conversations with migrants will we be able to verify our instincts that individuals who must feed their families will take great risks to do so in spite of border militarization or employer sanctions. Listening to migrants and incorporating their voices in the research we conduct can only make our immigration scholarship – whatever the discipline – all the better.

The time has come to think beyond enforcement-only approaches – to think creatively. We need to rethink employer sanctions and the harsh consequences of ICE raids and the attrition through profiling approach of SB 1070 and local laws that are conducted under the auspices of such laws. We need to think about expanding visa categories that reflect the needs of the regional and global economies in which we are engaged. NAFTA and our current family categories have been riddled with oversights and mistakes. We might learn from examples such as the European Union, which allows a liberal flow of labor migration (in spite of serious problems there as well), or come up with our own creative solutions. Antiimmigration legislation costs us dearly, not simply socially, but economically as well. Alabama’s HB 56 could shrink the state’s gross domestic product by up to $10.8 billion. Mississippi could experience a major blow to tourism, gambling, and conventions, a $2.5 billion industry responsible for 10 percent (110,615) of the state’s nonfarm jobs. Georgia’s agriculture industry has experienced severe labor shortages; the estimated economic losses for the 2011 growing season were between $300 million and $1 billion (Immigration Policy Center 2012). Colorado’s immigration law costs the state at least $13 million each year (Ramirez Reference Ramirez2012). The smart thing to do – and the right thing to do – is to recognize that a brighter economic and social future will come with an open-minded approach that recognizes the need to begin helping build the economy and infrastructure of our neighbors to the south. The smart thing to do is to use reason over hysteria and approach immigration policy reform with a new mind-set.