Undocumented : How Immigration Became Illegal (9780807001684)

by Chomsky, Aviva

  For most of the twentieth century, voluntary departures—mostly by people apprehended by the Border Patrol and returned (usually to Mexico) without an official deportation order—were far more numerous than removals. Since 2006, the number of voluntary departures has plummeted, from over a million a year down to only 323,000 in 2011, while the number of removals (mostly people apprehended in the interior) has risen steadily, surpassing 50,000 a year for the first time in 1995 and then rising quickly to almost 400,000 a year since President Obama was elected in 2008.25

  Some attribute the decline in border apprehensions to increased enforcement. The Border Patrol, they point out, grew from nine thousand agents in 2001 to twenty thousand by the end of 2009, and twenty-one thousand by 2012, while the Customs and Border Protection budget rose from about $6 billion in 2004 to about $11 billion in 2009. (The Border Patrol accounted for about $1.4 billion of that.) The border wall grew and employed increasingly sophisticated technology. The purpose of all this so-called “enforcement” was to discourage potential border crossers from even trying. Maybe it was working, some argued. Others, though, attribute the decline to the economic downturn in the United States, arguing that fewer people are trying to cross the border, as demand for their labor has declined.26

  Meanwhile, the number apprehended by ICE Enforcement and Removal Operations inside the country skyrocketed, principally as the result of the Obama administration’s emphasis on programs for interior enforcement.27 This meant that many more people with jobs, lives, and community ties in the United States were being uprooted and deported. Through 2005, only about 5 percent of Mexicans deported had been in the United States for over a year. In 2010, two years into President Obama’s first term, over a quarter of those deported had been in the United States for over a year; in 2011, it was almost half.28 Meanwhile, in 2010, ICE requested $5.5 billion in discretionary funds for the following year, the majority of which was designated for detention and deportation.29 Enforcing illegality was an expensive operation.

  WHO BENEFITS FROM ILLEGALITY?

  Although illegality resides inherently in the realm of law, it has significant economic implications, as discussed in the next two chapters. Employers of low-wage labor benefit from the illegal status of some workers, as do consumers of low-cost goods and services. State and local budgets face costs that result from the economic marginalization of the undocumented, while federal programs like Social Security benefit handsomely from payments into the system by undocumented workers who will never be eligible for benefits.

  Illegality also has significant benefits for the prison system, in particular, the new and mushrooming private prison system. Immigration enforcement creates jobs in the prison industry, which in 2011 employed eight hundred thousand people and cost some $74 billion a year.30

  But beyond the economic costs and benefits to different sectors of society, there are other, intangible benefits. Politicians and talk-show hosts have zeroed in on the issue to whip up audiences and support. Anti-immigrant sentiment and, especially, the demonization of the undocumented can bring votes and attention.

  What Leo Chavez calls the “Latino threat narrative” overlaps with anti-undocumented sentiment, as “Mexican immigration, the Mexican-origin population, and Latin American immigration in general [came] to be perceived as a national security threat” in the 1990s.31 The threat narrative, Chavez explains, has been expressed so repeatedly that its components have become culturally accepted. Mexican immigrants are “illegal aliens” or criminals, the narrative suggests. They want to create a “Quebec” (i.e., a culturally and linguistically distinct region), invade the country, or reconquer the Southwest. They refuse to learn English or assimilate, procreate too rapidly, and threaten national security.32

  In addition to attracting votes or increasing ratings, the Latino threat narrative serves the more subtle purpose of channeling national anxieties about social inequality; environmental crisis; economic downturn; lack of access to jobs, housing, health care, and education; deteriorating social services; and other real issues facing the US population away from their real causes. Those who benefit from the status quo would rather have people blame immigrants than fight for real social and economic change.

  DETENTION

  According to the American Civil Liberties Union, the detention of immigrants has reached “crisis proportions.” “Over the last 15 years, the detention system more than quintupled in size, growing from less than 6,300 beds in 1996 to the current capacity of 33,400 beds. In 2010, the Department of Homeland Security (DHS) held 363,000 immigrants in detention in over 250 facilities across the country.”33 Meanwhile, ICE’s detention operations budget jumped from $864 million in 2005 to over $2 billion in 2012.34 According to Amnesty International, the use of detention for immigration violations contradicts international rights law against arbitrary detention. “Everyone has the right to liberty, freedom of movement, and the right not to be arbitrarily detained,” Amnesty explained.35

  Immigrant detention sends people into a Kafkaesque netherworld. Immigration court is a separate entity from the criminal justice system; it is an administrative court. This means that the whole body of law designed to protect those accused of crimes and guarantee them a fair trial does not apply. (An immigrant accused of a crime does receive those rights in criminal court, however.) In the immigration detention system, prisoners have few rights and often lack the means to find out what rights they do have or make use of these rights. For example, immigrants have the right to be represented by an attorney, but not at public expense. Many detainees don’t know that they have the right to representation, don’t know how to obtain representation, and/or can’t afford it. For those who do go through deportation hearings, 84 percent lack representation.36

  Some detained migrants will choose voluntary departure because it leaves their names clear for a legal entry sometime in the future. Many are unaware of legal provisions that might authorize them to remain in the country and have no way to find out about them, since they have no way to obtain legal counsel. Some choose voluntary departure to escape lengthy detention, even if they are convinced that their case to stay could be won if they were to finally obtain a hearing. Unlike those detained on criminal charges, immigrants have generally been ineligible to be released on bail.37

  If they do not choose (or are not offered) voluntary departure, detainees have the right to a hearing before an immigration judge to determine whether they can obtain legal permission to remain in the country. Some detainees may be eligible for political asylum; others, for parole or prosecutorial discretion based on the lack of a criminal record, family relationships to citizens or permanent residents, hardship that would be caused to citizens or permanent residents (e.g., to their children who are citizens) by their removal, or other reasons. But without a lawyer to argue their case, immigrant detainees may have no idea what kinds of arguments could work in their favor.

  Moreover, the deportation procedures for those who reject voluntary departure are often quite lengthy. While the proceedings crawl along, the petitioner remains in detention. A study by Amnesty International found that “immigrants and asylum seekers may be detained for months or even years as they go through deportation procedures that will determine whether or not they are eligible to remain in the United States.” The average was ten months, but some individuals remained in detention for up to four years before a decision was reached.38 If the judge who hears the case rules against them, they will be deported and barred from legal reentry, usually for ten years.

  A new twist in this system emerged at the border in 2005 with Operation Streamline, described in the introduction, which takes migrants caught at the border out of the civil immigration system and lodges criminal border-crossing charges against them. After a criminal conviction, they are generally sentenced to time served and returned to ICE for civil removal procedures. The program has been expanded along the border, so that by 2012 every border sector participated, with some referring al
l of those apprehended for criminal prosecution. Tens of thousands of migrants who would have been returned to Mexico are now instead detained, tried, and incarcerated at government expense. While Streamline aims to rush dozens of cases through each court every day, the size of the program—some fifty-five thousand prosecutions a year—still means that the government requires a large amount of short-term space for incarceration.39

  Since 2005, the federal government has spent $5.5 billion on private prison contracts for criminal immigration cases, over $1.4 billion in 2011 alone.40 At the end of 2011 there were sixty-three thousand Streamline cases in pretrial detention and twenty-five thousand convicted and incarcerated.41 District Court Judge Sam Sparks of the Western District of Texas protested that “[t]he expenses of prosecuting illegal entry and reentry cases (rather than deportation) on aliens without any significant criminal record is simply mind boggling. The US Attorney’s policy of prosecuting all aliens presents a cost to the American taxpayer that is neither meritorious nor reasonable.”42

  Streamline and the overall increase of federal prosecution of immigration violations turned immigration cases into the top federal crime by 2011.43 Immigration is a highly racialized crime: as immigration charges began to take up more and more of the federal criminal caseload, it meant the courts were prosecuting and convicting more and more Latinos. Hispanics made up more than half of those arrested on federal charges in 2011.44

  Streamline and other criminal prosecutions account for only a fraction of immigration arrests. Most of the 391,953 immigrants removed were apprehended in the interior through ICE enforcement and apprehension operations, and their removal was ordered by immigration judges without any involvement of the criminal justice system. Some of those arrested by ICE enforcement operations inside the country, though, come into ICE custody with current or prior criminal charges.

  The intersection of criminal law with civil immigration law creates a web of complexity in which many immigrants and their attorneys become entangled. Increasingly, criminal charges are resolved through plea bargains rather than contested in court. In a plea bargain, the accused agrees to plead guilty to a lesser but still criminal charge in exchange for receiving a lighter sentence, frequently a suspended sentence or probation rather than jail time. Strikingly, more than 96 percent of those arrested on federal charges pled guilty in 2011.45

  For an immigrant, though, a criminal conviction on even a minor charge can render him or her deportable. Legal permanent residents (green card holders) may also find themselves in immigration detention if they are convicted of a crime. Or if they are discovered by immigration authorities to have previously been convicted of a crime that is a deportable offense. Or even if they are discovered to have been convicted of a crime that was not a deportable offense at the time, but later became one. Even decades-old minor drug-possession convictions have become grounds for deportation.

  The public defenders that most poor immigrants rely on in criminal cases generally have little knowledge of immigration law or the possible implications of a guilty plea. One attorney told the American Immigration Lawyers Association (AILA): “On the one hand . . . the immigration matter should not affect the criminal case, and, from an intellectual purity standpoint, that makes a lot of sense. But [for the client], that makes no sense at all. It’s part of their circumstances. . . . I have to be aware of that, and I need to give advice based upon what their circumstances are.” Public defenders, AILA explained, rarely have the time or resources to research the immigration implications of their advice to their clients. Most are juggling twice as many cases as are allowed by the American Bar Association. Less than a third worked with immigration attorneys in their cases involving immigrants, even though their decisions could directly affect their clients’ immigration status.46

  RAMPING UP THE NUMBERS

  In early 2010, James Chaparro, director of ICE Detention and Removal Operations (DRO), wrote an internal memo—later obtained by the Washington Post—noting that while the number of removals of criminals so far that year had been satisfactory, the agency’s numbers in removing “non-criminal aliens” were too low. “As of February 15, 2010, DRO removed or returned 60,397 non-criminal aliens which is an average of 437 removals/returns per day. The current non-criminal removal rate projections will result in 159,740 removals at the close of the fiscal year. Coupling this with the projections in criminal removals only gives us a total of just over 310,000 overall removals—well under the Agency’s goal of 400,000.” For the first time, the agency had explicitly acknowledged having an established target.47

  Chaparro insisted that field agents increase the average daily population in ICE detention facilities to 32,600 and “[i]ncrease the number of Tier One Non-Criminal Fugitive alien arrests along with Tier Two arrests (Re-Entry/Reinstatement) in every field office.” He recommended that each office process thirty to sixty noncriminal cases per day in a “surge” aimed at meeting deportation quotas.48 Basically, the memo instructed ICE officers to increase the detention and deportation of noncriminals and of “criminals” whose only offense was reentry into the country, in the interest of meeting the annual deportation goal.49

  Another program that helped ICE increase its numbers in the Obama years was Secure Communities. Introduced by the Bush administration and piloted in a number of cities around the country in late 2008, Secure Communities requires law enforcement agencies in participating jurisdictions to automatically share with ICE the fingerprints of anybody arrested. If ICE flags the individual as potentially deportable, the agency issues a detainer. When the person is released, he or she is turned over to ICE. The Obama administration initially stated that participation was voluntary, but later announced that the program would be required nationwide by 2013. Eighty-three percent of those who come into ICE custody through Secure Communities are sent to ICE detention centers. Ninety-three percent are Latino.

  Promoters touted the program as a way to “remove dangerous criminals from your community.”50 However, only about half of those deported through Secure Communities fit the profile of a criminal—that is, had been convicted of a crime other than a traffic or immigration violation. The only violation for 45 percent of those deported was being “present without admission”—that is, being undocumented. Only half of those deported received a hearing before an immigration judge to determine their deportability. The other half were simply deported under ICE administrative procedures or pressured into taking voluntary departure. By late 2011, 226,694 immigrants had come into ICE custody through Secure Communities.51

  DETENTION, INC.

  In addition to ICE itself, there are powerful interests supporting the detention industry, ranging from private prison companies to elected officials who see prisons as a boost to local economies. The Immigration and Naturalization Service (precursor to today’s ICE) started to contract out its detainees to private prisons in the early 1980s when the detention system started to exceed its capacity of beds. By 1989, the agency was holding about two thousand people a day, with five hundred in private facilities.52 Over the past three decades, immigration violations served as a reliably increasing source of revenue for private prisons.53 As ICE detention rates doubled to the current rate of four hundred thousand a year in the first decade of the twenty-first century, the proportion of immigration detainees held in privately run detention facilities also rose, from one-quarter to one-half.54 Private prisons specialize disproportionately in detaining immigrants, who tend to be young, healthy, and nonviolent, and therefore among the cheapest and the most profitable inmates to house.55

  The first private prison company, the Corrections Corporation of America (CCA, founded in 1983), was poised to benefit from and promote the increases in criminal sentencing and immigrant detention in the 1990s. According to Travis Pratt, professor of criminology at Arizona State University, who studied the private prison industry’s lobbying campaigns, “The private prisons industry has a very, very heavy lobby in most states and the federal
government to increase sanctions for a number of offenses. They’ve been doing this for a very long time. It’s a multi-million-dollar lobbying effort. . . . And they’ve been exceptionally successful—longer sentences for more types of offenses means more inmates, more inmates means they have to be housed somewhere, which translates to greater profits for that industry. They have a very clear agenda there, and they’ve been unapologetic about it. They haven’t hidden that at all.”56 Between 2002 and 2012, private prison companies had spent over $45 million in campaign contributions and lobbying.57

  The GEO Group (founded in 1984) currently runs 109 facilities in the United States, the United Kingdom, Australia, and South Africa, with 75,000 beds in the United States; CCA has 60 in the United States that can hold 90,000 inmates, and Management and Training Corporation (MTC), founded in 1987, runs 22 prisons in the United States with 29,500 beds.58 CCA is the fifth-largest corrections system in the country, following the federal government and three states.59 In 2010, GEO and CCA together earned revenues of over $2.9 billion.60 They have spent millions of dollars lobbying over the past decade.61

  The private prison industry has a vested interest in increasing both the criminalization of immigrants and the drug wars that criminalize African Americans. “Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities,” CCA explained to its shareholders. “The demand for our facilities and services could be adversely affected by . . . the decriminalization of certain activities that are currently proscribed by our criminal laws.” In particular, CCA warned, “any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.”62 Company officials were optimistic, though, that ICE would continue to supply “a significant portion of our revenues.” 63