Once in the United States, understandings and worldviews shaped by their history in Guatemala continue to inform immigrants’ understanding of their current realities. One Mayan in Providence explained to Foxen that “the migra here, it is like, as they said, the guerrillas over there. . . . If la migra is looking for one of us, we all run, run escaping, it is like the guerrilla.” Likewise in Guatemala, one campesino (peasant farmer) told her that “he had heard that the INS had not yet arrived in Providence, though they were said to be close (thus likening them to the army or guerrillas).”97
Foxen also notes a “total confusion surrounding understandings about the legality and illegality of different types of documentation” that stems from the population’s long history of the law being used against them.98 Some of her informants had paid hundreds of dollars to a notario for a temporary work permit. These notarios often had no legal credentials, but played on a semantic confusion, since in Latin America the term often refers to a lawyer. The notarios would file a fraudulent asylum application, which would nonetheless entitle the migrant to a temporary, legal work permit, until their asylum hearing, which would generally result in deportation. Foxen encountered frequent references to people obtaining “papeles legalmente falsificados”—legally falsified documents—a further example of the impenetrable character of the law from the perspective of the immigrants.99
Describing his experience as a court interpreter for Guatemalan migrants after an immigration raid at a meatpacking plant in Postville, Iowa, Erik Camayd-Freixas explained that workers there had simply followed recruiters’ and employers’ instructions, and had not knowingly chosen to break any law.
“Do you know what this number is?” asked the lawyer, pointing to the social security number on his I-9 employment form. “I don’t know,” said the man. “Who put it there?” “At the plant, they helped me fill out the papers ’cause I can’t read or write Spanish, much less English.” “Do you know what a social security number is?” the lawyer insisted. “No,” said the man. “Do you know what a social security card is?” “No.” “Do you know what it’s used for?” “I don’t know any of that. I’m new in this country,” said the man, visibly embarrassed.100
Like their ancestors and their contemporaries, these migrants had simply gone where the recruiters had taken them to work.
A New York Times reporter interviewed Guatemalan and other Central American migrants on Mexico’s southern border in early 2013. “Few had even heard about the debate to overhaul immigration laws and possibly open a pathway to citizenship for immigrants living illegally in the United States,” he commented. “Instead, the prevailing force seems to be deteriorating conditions at home.”101
For at least five hundred years, Guatemala’s highland Mayan populations have been buffeted, or coerced, by the winds of the global economy. They have been slaughtered, displaced, massacred, and enslaved. They have had to leave their homes and their families to do the hardest, dirtiest, and lowest work for the benefit of others. They have been discriminated against socially and legally. For centuries, they have been forced to migrate and suffered poor working conditions and legalized discrimination. Their migration to the United States is only the latest phase of this long history. Their technical illegality in the United States is but a small part of a system that has worked to control their movement and their labor for hundreds of years.
CHAPTER 3
Becoming Illegal
There are two main ways to become undocumented in the United States. About half of the undocumented population enters without inspection. They may have attempted to obtain a visa and been denied. More likely, they either knew that such an attempt was hopeless or did not even know that such a process existed and didn’t try at all. So they crossed somehow, usually by land but sometimes by sea, through a border that may have been unmarked, invisible, or at least unpatrolled. Thus, they were not inspected by any official from Immigration and Customs Enforcement (ICE) when they entered. This means that while they may have many kinds of identification documents, they have none that specifically authorizes their entry into the United States.
The other portion of the undocumented population entered with inspection, usually with a visa of some sort or with a Border Crossing Card. One US government estimate calculates that between 30 percent and 60 percent of the undocumented became so through visa overstays, meaning that though they were initially authorized entry, they neglected to leave in the designated time frame.1
Millions of Mexicans obtain tourist visas every year, and the number has been rising steadily, from about 4 million a year at the beginning of the 2000s to almost 13 million in 2010.2 However, the vast majority of Mexicans who obtain tourist visas do not overstay their visas and become “illegal.” Most Mexicans who are undocumented became so by crossing the border without inspection, and most people who become undocumented through visa overstays are not Mexican.
Under today’s immigration laws, citizens of most countries must request a visa in their home country before traveling to the United States. Europeans, as always, are privileged: the Visa Waiver Program allows most of them to enter as tourists (but not to work) without a visa. Some Mexicans are eligible for Border Crossing Cards that allow them to travel for a specified period of time in the border region. Border Crossing Cards are like tourist or visitors’ visas: they authorize entry into the United States, but they don’t authorize the holder to work. People who enter with these kinds of permission can become undocumented if they either overstay their visa or violate its terms in some other way, including, for Border Card holders, leaving the twenty-five-mile border zone. Because nonimmigrant visas are temporary permits with specific conditions attached to them, ordinary activities that are not in themselves illegal can still constitute visa violations. In some cases, there are lies or questionable and illegal activities involved in obtaining the visa itself.
In 2011, 159 million nonimmigrant visitors entered the United States with some kind of legal permission. Thirty-three percent or 53.1 million of them were I-94 card holders, meaning that they either had obtained a nonimmigrant (temporary) visa or were admitted under the Visa Waiver Program. The largest source of I-94 admissions was Mexico, with 33 percent of the total. (The next largest source was United Kingdom, with only 8.6 percent.) Eighty-seven percent of these visa holders had visitors’ or tourist visas that allowed them to travel for business or pleasure. The others held student, temporary worker, or other kinds of visas.3 Some one hundred thousand were H-2 guest workers, some 80 percent of them Mexican. Most of the other two-thirds of inspected entries were Mexicans and Canadians with Border Crossing Cards.4
For all categories of nonimmigrant travel, then—as visitors or temporary workers with a visa, with a Border Crossing Card, or as undocumented entries—Mexicans constitute the largest numbers. Of the 11.5 million or so undocumented immigrants in 2006, some 4–5.5 million had entered with visitor or tourist visas, and another 250,000–500,000 entered with Border Crossing Cards. The other 6–7 million entered without inspection.5
ILLEGAL VISAS
Although evading ICE inspection points and the Border Patrol is a common method of illegal entry, it’s not the only one. The head of Customs and Border Protection (CBP) explained to researcher Lynnaire Sheridan that before resorting to a dangerous crossing through the desert, migrants could attempt to borrow, purchase, or steal an authentic US passport or permanent resident card. Absent that possibility, they might obtain a false document or alter a document themselves by inserting their own photograph. If they could not access any documents, they might hide in a vehicle and cross at night.6 The professional cross-border smugglers Sheridan interviewed offered a rather similar assessment. They told her that the safest way to cross was to obtain a tourist visa or, if that was not possible, to use a valid visa belonging to a family member. A bit riskier was the use of false or altered documents. The most dangerous method was to attempt to cross without being seen, generally in isolated areas with l
ittle Border Patrol presence.7
Sheridan interviewed many families that had crossed illegally multiple times. They corroborated this assessment. They listed their preferred options as, first, crossing with a tourist visa and overstaying it; second, using someone else’s documents; third, using false documents; and last, attempting to cross without being discovered. If the latter was the only option, they emphasized that the more isolated the area, the more dangerous the crossing.
Cost was also a factor. The safest options were the most expensive. Sometimes families would pay more to have their young children, for example, cross with false papers (perhaps accompanying adults with valid documents), while the adults would opt for a dangerous clandestine crossing.8
Another method of crossing the border is with a temporary work visa, generally through the H-2A (agricultural) or H-2B (nonagricultural) programs. (There are other categories of temporary work visas, but most require specific types and levels of skills and don’t apply in most situations.) But with the H-2 program, as with the Bracero Program before it, paperwork and requirements are so bureaucratic and onerous that many employers and potential workers find the program not worth the effort.9 There is also a lot of room for illegal and unfair maneuvering within the H-2 system.
US employers begin by requesting authorization to recruit H-2 workers from the Department of Labor. Once an employer receives authorization, they generally turn to a US contracting agency, which in turn contracts with a Mexican recruiting agency to find available workers. Opportunities for abuse within the system abound.
The complexity of the H-2 program and the gap between the overwhelming demand on both sides and the small number of visas actually available make the program ripe for fraud and exploitation. “Illegality” enters the system in numerous ways, as uncovered by a 2010 United States Government Accountability Office (GAO) report. In six cases that the GAO reviewed, “employers charged their H-2B workers fees that were for the benefit of the employer or charged excessive fees that brought employees’ wages below the hourly federal minimum wage. These charges included visa processing fees far above actual costs, rent in overcrowded apartments that drastically exceeded market value, and transportation charges subject to arbitrary ‘late fees.’ Workers left the United States in greater debt than when they arrived. In one case, these fees reduced employees’ paychecks to as little as $48 for a 2-week period.” In eight cases, “employers were alleged to have submitted fraudulent documentation to Labor, USCIS, and State to either exploit their H-2B employees or hire more employees than needed. Employers and recruiters misclassified employee duties on Labor certification applications to pay lower prevailing wages; used shell companies to file fraudulent labor certification applications for unneeded employees, then leased the additional employees to businesses not on the visa petitions; and preferentially hired H-2B employees over American workers in violation of federal law.”10
Eighty percent of H-2A and H-2B visa requests in Mexico are processed at the US consulate in Monterrey. The director of the Mexican Oficina de Atención al Migrante in that city has filed complaints about “hundreds of cases of fraud” in which unscrupulous agents charge would-be migrants illicit fees in exchange for promises of access to the coveted visa.11 “In practice, nobody can hope to obtain one of these visas if they don’t use the intermediaries. Otherwise how will they find out about the opportunities that exist?”12 From the perspective of the Mexican worker, working through the H-2 program might be almost indistinguishable from crossing without inspection to work. Both involve relying on shady networks for information, paying exorbitant fees, and working under poor conditions and at wage rates that are frequently “illegal” as well as exploitative.
In 2004, the Farm Labor Organizing Committee or FLOC, a farm-workers’ union in the United States, negotiated an agreement with North Carolina growers that allowed the workers to bypass the contractors. The organization opened an office in Monterrey to monitor the recruitment process there. On September 9, 2007, the director of the FLOC office, Santiago Rafael Cruz, was found tied up, tortured, and murdered. The union suspected that local labor contractors were behind the murder. As FLOC president Baldemar Velázquez explained, “FLOC’s agreement eliminated the extortion of illegal fees from workers by criminal elements. They have been unhappy with the union taking away their goldmine. We disrupted not only the recruiters working for growers in North Carolina, but all the recruiters who recruit workers for all the other states: from Florida and Georgia, through South Carolina and Virginia, all the way up to Pennsylvania and New York.” Labor journalist Dan LaBotz added that “FLOC’s presence in Mexico meant that the racketeers were losing hundreds of thousands of dollars in exorbitant fees and bribes.”13
The chains reach deep into Guatemala. Some twelve hundred workers recruited by Mexican agency Job Consultoría paid from $1,000 to $3,000 for supposed access to a visa. In Amatitlán, Guatemala, 370 men and their families attacked local resident Pablo Roberto Valencia in late 2011 when they learned that the money they had given him to pay for their visas had disappeared.14 According to the Southern Poverty Law Center, workers generally arrive in the United States with debts between $500 and $10,000 owed—illegally—to recruiters.15
While these workers do enter with visas that authorize their presence and permit them to work in the United States, the process that connects them with these visas violates US, Mexican, and sometimes other countries’ laws. It frequently involves threats, violence, extortion, and debt peonage. These violations are generally met with impunity, however. In fact, the violations are built into the system itself; they are integral to its functioning and to the arrival of officially legal H-2 workers to the United States.
GETTING TO THE BORDER
Although the majority of uninspected border crossers are Mexican, others are Central and South Americans. Today, Central Americans often travel a perilous land journey from their homes across one or more countries and through Mexico. A century ago, excluded people like the Chinese entered through Mexico, because of the openness of that border.
While the number of Mexicans crossing illegally has declined in recent years, the number of Central Americans has been steadily increasing. The economic crisis in the United States meant that some sectors, like construction, that had traditionally attracted Mexican migrants, were not hiring. Some experts have also suggested that increased deportation rates, violence along the border, and a declining birthrate in Mexico have contributed to a slowing of Mexican crossings.16
In Central America, though, economic stagnation and horrific levels of violence, especially in Guatemala, El Salvador, and Honduras, have meant that the numbers crossing into the United States continue to increase. Somewhere between 150,000 (according to the Mexican government) and 400,000 (according to advocacy organizations) undocumented migrants were entering Mexico each year as of 2010, mostly from Central America.17 In 2011, 46,997 non-Mexicans, mostly Central Americans, were detained at the border; in 2012, the figure more than doubled, to 94,532.18 While still much fewer than the 188,467 Mexicans detained during the 2011–2012 fiscal year, the trend was clear: the number of Mexicans was decreasing, while that of Central Americans was increasing.19
Although in even smaller numbers, South Americans also cross the border by land, first traveling by plane to Mexico. In Montevideo, one travel agency offered a choice of a tourist visa and a ticket to New York or a ticket to Mexico and a connection to a coyote who would arrange an illegal land crossing, depending on how much the traveler was willing to pay.20 Similarly in Brazil, travel agents sell package deals that include airfare to Mexico City, a guide to Tijuana, and a coyote for crossing the border. In New York, Maxine Margolis found that only 3 percent of Brazilians in her sample had crossed the Mexican border, but in Framingham, Massachusetts, another study found that 43 percent had. Wealthier Brazilians were more likely to be able to obtain the tourist visa, while those who were poorer and less educated were more likely to have to resort to the
Mexican route.21
When US consulates in the Dominican Republic began to reduce the number of tourist visas they granted, informal visa brokers began to offer their clients other, more expensive routes. Migrants were sent to Puerto Rico by boat or to Mexico to cross the land border. A market sprang up in forged or false papers. Samuel Martinez noted that while Dominicans saw some modes of entry as preferable to others, the relative illegality was not their prime concern. It was just how the system worked: rich people got preferred access to visas; poor people had to pay huge sums for the same privilege. “‘Legal’ and ‘illegal’ modes of entry are viewed by Caribbean people more as bureaucratic obstacles to circumvent than as immutable law,” he concluded.22
Eugenia Georges’ research on emigration from the Dominican Republic noted the same pattern of poorer immigrants having to take more costly and dangerous routes. In the town she studied, richer residents—those who owned land or businesses—could usually get tourist visas and fly directly to the United States, since, as property owners, they could convince US consular officials that they would return home after their tourist excursions. Poorer, landless Dominicans had to resort to the more expensive, riskier, indirect route via Mexico.23
In the case of Central Americans, almost all of those trying to migrate are poor, and their journey through Mexico is a perilous one. In 2001, Mexico—under pressure from the Bush administration—began to implement what it called “Plan Sur” to secure its southern border, while Guatemala countered with “Venceremos 2001” to control exit traffic from its own country. The militarization of this border mirrored what had begun a decade earlier on the US-Mexico border, and the results were also similar. Official statistics showed migration numbers slowing. But migrants and human rights organizations pointed out that these statistics were deceptive. Many migrants shifted away from the newly enforced and militarized checkpoints into more remote areas. As crossing became more difficult and more dangerous, it also became more criminalized, as gangs, drug traffickers, and professional smugglers became involved.24 Deportations also rose, but much more slowly than the migrant stream. Between January and November 2010, the Mexican National Institute of Migration (INAMI) deported 49,143 Central Americans: 19,876 Hondurans, 8,263 Salvadorans, 20,354 Guatemalans, and 646 Nicaraguans.25 Another 40,971 Central Americans were detained in Mexico in 2012.26
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