Undocumented : How Immigration Became Illegal (9780807001684)

by Chomsky, Aviva

  Two recent films, one a feature film and one a documentary, demonstrate this effect. A Day without a Mexican imagines that California awakens one morning to a strange fog, which has caused everyone of Mexican origin to vanish. Non-Mexicans stumble through their lives trying to fill in the gaps and realizing along the way how utterly dependent their economy and daily lives are on Mexican immigrants. In a moving scene at the end, after the fog lifts and the Mexicans reappear, the Border Patrol comes across a group in the wilderness at night. Flashing their lights, a patrolman asks, “Are you guys Mexican?” When the migrants confirm, the patrollers break into welcoming applause.

  The film 9500 Liberty looks at a case in which the fantasy of A Day without a Mexican became a reality. In Prince William County, Virginia, a local ordinance in 2007 required police to stop and question anyone they suspected of being undocumented. Although the ordinance was eventually repealed, the acrimonious anti-immigrant mobilization surrounding it as well as fear of its implementation caused many immigrants to leave. As businesses closed, schools and neighborhoods emptied, and the housing market collapsed, the white citizen majority in the county became more dubious about the supposed benefits of expelling the undocumented.

  Although the current system benefits many people in the United States, we must also recognize its fundamental injustice and think seriously about how it works and what steps could make it more just. If immigrants are being exploited by the current system, and if undocumentedness is one of the concepts that sustains inequality and unjust treatment, then we need to question undocumentedness itself.

  The system benefits most Americans materially, given that Americans—even poor Americans—consume an extraordinary proportion of the planet’s resources. Only 4 percent of the world’s children are American, but they consume 40 percent of the world’s toys.63 Despite the fact that many Americans are unemployed, in debt, and struggle to pay for health care and put food on their plates, they still consume more than their share. They do so because of the economic chain that links them to workers who are legally marginalized, either because they work in other countries or because they work illegally inside the United States.

  Undocumentedness has everything to do with work and the economy. It is a key component of the late-twentieth-century global system. Every so-called industrialized country—or more accurately, deindustrializing country—relies on the labor of workers who are legally excluded to maintain its high levels of consumption. Like the United States, these countries rely on the legal conveniences of borders, countries, and citizenship to impose different rules for different people and maintain a legally excluded working class.

  This system also creates fantastic profits for the few. But a fairer economic system would distribute the planet’s resources more equally. If we can understand undocumentedness as a mechanism for creating and perpetuating economic inequality, it will be easier for us to reject it outright.

  CHAPTER 7

  Children and Families

  Although the need to work—and the availability of work—has played a central role in the rise of both immigration and undocumentedness in the past half-century, every worker is also a human being. Like everyone else, undocumented workers have children and families. The undocumented population and those personally affected through family relations by undocumentedness include much more than the single, working-age male. As border enforcement has increased over the past two decades and the circular, seasonal migration of workers has shifted to long-term family settlement, more and more children have been affected by issues of status.

  Some children are undocumented themselves, while others live in mixed-status families, with one or both parents, siblings, or other relatives who are undocumented. Still others have temporary and unstable statuses. Some children, whether citizens or undocumented themselves, lose parents or other family members to deportation, while others cross the border illegally to reunite with parents they had lost to migration. Virtually all parents who come to the United States do so because they want better lives for their children; the US law claims to protect the best interests of children. But immigration law makes these children’s lives tenuous and unpredictable.

  About 17 percent of all Hispanics and 22 percent of all Hispanic youth ages sixteen to twenty-five are unauthorized immigrants, according to Pew Hispanic Center estimates in 2009. These percentages refer to all Hispanics, whether native-born or immigrant. Among immigrants, the numbers are, of course, much higher. Some 41 percent of all foreign-born Hispanics and 58 percent of foreign-born Hispanic youths are estimated to be unauthorized immigrants.1

  Other youth fall into in-between categories, like asylum applicants or those who have received Temporary Protected Status, wherein their presence is currently legal, but in an unstable status that could easily be revoked—what Cecilia Menjívar termed “liminal legality.”2 President Obama’s DACA program of 2012 created another temporary status, allowing certain undocumented youth a two-year respite from illegality, but with no guarantee of what would occur at the end of the two years. While immensely popular among Latinos (Romney called it a “big gift” to Hispanic voters), DACA did little to address the underlying problem of undocumentedness.3

  The immigration system in general is designed to deprive undocumented adults of most rights, but, in some cases, laws designed to protect children transcend status and are applied equally to all children. Laws and policies thus struggle between two contradictory aims: to punish violations of immigration status or to protect the rights of children and their need to be with their parents. In the case of US citizen children of undocumented parents, the goal of keeping children together with their parents can contradict the goal of removing the parent, and the goal of promoting the best interests of the children conflicts with the laws that punish their parents for their status. In some cases, judges have ruled that a child’s best interest requires that he or she remain in the United States and have terminated parental rights of parents who are deported. In other cases, immigration laws prevent children from entering the United States to reunite with their parents. Undocumented youth can also be deported and face legal discrimination that prevents them from working, going to college, and receiving public benefits.

  From being virtually invisible in the public sphere only a decade ago, undocumented youth, especially those who have grown up in the United States, have stepped to the forefront in organizing for immigrant rights. Their activism openly challenges the anti-immigrant propaganda and may be changing the way the citizen public views the undocumented.

  YOUNG AND ALONE

  The past two decades have witnessed a dramatic surge of young people fleeing their homes in Mexico and Central America and attempting the treacherous border crossing alone. They may be seeking to escape violence, gangs, or abuse at home, or they may be making a desperate attempt to reunite with parents who left them to journey to the United States. They face all of the hazards that adults face, and more.

  Undocumented youth, especially Central Americans fleeing civil wars, began crossing the border alone in the 1980s. At the time, the immigrant detention system had no provisions or capacity to deal specifically with detained youth: they were simply imprisoned with and treated as adults. During 1990, the INS reported that eighty-five hundred minors had been apprehended crossing the border without documents, 70 percent of them unaccompanied. Most were Mexican and were quickly returned to Mexico under an agreement with that government. Non-Mexicans, though, were detained in immigration facilities, some for lengthy periods, awaiting immigration hearings.4

  A series of lawsuits and court decisions starting in 1985 led finally, in 1997, the then-INS to develop special policies for detained minors. Under the Flores v. Meese settlement of that year, the INS developed separate standards for children that took their age and needs into account. Children would be released, if possible, to a sponsor; they would be placed in the least restrictive setting possible, and the agency would implement appropriate standards fo
r their treatment.

  A US government study in 2001 explained that most juveniles the INS encountered were still of Mexican origin and generally held for only a few hours before being returned voluntarily to Mexico. The study emphasized that the Border Patrol worked to ensure that juveniles were returned to family members or to Mexican government officials rather than being “simply dropped off across the border.”5 Most of the children who ended up in US custody, therefore, were Central American. The numbers taken into custody (rather than returned) increased rapidly over the first decade of the new century, from the low thousands to up to ten thousand a year.6 The system scrambled to keep up with the influx.

  After 2002, when the INS was replaced by ICE under the new Department of Homeland Security, responsibility for detained children was transferred to the Department of Health and Human Services and the Office of Refugee Resettlement.7 And in 2003, the ORR created the Division of Unaccompanied Children’s Services (DUCS) to handle the placement of undocumented minors.8

  The treatment of children in detention improved with the involvement of the social service agencies. Rather than being housed indefinitely with adult criminals, children were sent to special facilities where they had access to educational and social services, and most were released within weeks to family members in the United States (many of them undocumented themselves). Facilities must provide “classroom education, health care, socializing/recreation activities, vocational training, mental health services, case management, and, when possible, assist with family reunion.”9 According to the New York Times, “It is not unusual for youths to recall the detention shelters . . . as some of the best times in their battered lives.”10

  Still, in 2006, a study found that detained minors “fall into the bewildering inner workings of the immigration and asylum system.” Despite the changes in detention provisions, immigration law did not distinguish between children and adults, and until 2004, the courts simply treated any child, no matter how young, as an adult.11 In 2012, yet another study found that children who are detained for immigration violations “enter a disjointed, labyrinthine system in which they may interact with numerous agencies within several federal government departments, as well as with a host of government contractors.”12

  The automatic repatriation of Mexican children was challenged in 2008 when Congress passed the William Wilberforce Trafficking Victims Protection and Reauthorization Act. The act responded to concerns that US deportation policies were contributing to the exploitation and abuse of children. It stated that a child could not be repatriated if he or she was victim of human trafficking or had a viable asylum claim and did not voluntarily agree to be repatriated. This meant that rather than immediately returning Mexican children, ICE was supposed to evaluate each case individually.13 Still, in 2009, 70 percent of children in ORR custody came from Central America, primarily El Salvador, Guatemala, and Honduras, as most Mexican children were still simply deported.14

  The number of Mexican children crossing the border alone has remained steady or fallen over the past few years, along with crossings by Mexican adults. The number of young unaccompanied minors from Central America, in contrast, has risen dramatically, doubling from 2011 to 2012. “The rush of young illegal border crossers began last fall but picked up speed this year” reported the New York Times in August 2012.15 During 2012, more than fourteen thousand youth, most of them Central American, had been taken into ORR custody. In just the first three months of 2013, seven thousand more crossed, suggesting that the record increases were continuing.16

  Central America’s political and economic crises—exacerbated by US military involvement and trade policies—virtually guarantee that children will continue to try to escape. “Almost all of the children’s migration arose out of longstanding, complex problems in their home countries—problems that have no easy or short-term solutions.”17 According to the Women’s Refugee Commission, which interviewed 150 young unaccompanied border-crossers, most are fleeing gangs, drug traffickers, and violence at home. “They are willing to risk the uncertain dangers of the trip north to escape certain dangers they face at home.”18

  “The conditions in Central America have deteriorated to such a point that, when the Women’s Refugee Commission asked the children if they would risk the dangerous journey north through Mexico all over again now that they had direct knowledge of its risks, most replied that they would. They said that staying in their country would guarantee death, and that making the dangerous journey would at least give them a chance to survive. Many of them expressed a longing for their homelands, stating that they would not have left but for fear for their lives.”19

  The government was unprepared for the influx and was initially unable to abide by the 1997 standards. “Children were held for up to two weeks in CBP short-term hold facilities. These facilities are not designed for long-term detention or to hold children. The lights stay on 24 hours a day, and there are no showers or recreation spaces. During the influx, they were sometimes so overcrowded that children had to take turns just to lie down on the concrete floor.” The ORR began to open “emergency surge centers” where it could hold detained youth.20

  The numbers arriving at the US border reveal only part of the magnitude of the problem, since the Mexican government also reported a doubling in the numbers of detentions of Central American children traveling through that country in 2012.21 Perhaps only half of the children who leave Central America even make it to the US border. Along the way, they face the same hazards that older migrants face: injury or death on the train, kidnapping, rape, torture, coercion.

  It is clear that conditions for children detained crossing the border have greatly improved in the past decade. It’s also clear, though, that a situation in which tens of thousands of children flee their homelands in Mexico and Central America each year is a desperate one. It’s not enough to suggest that those countries need to solve their own problems. The United States has a long history of military, political, and economic involvement in the region, including overthrowing and establishing governments. It continues to provide economic and military support for policies and programs that is has designed and approved. These policies and programs provide enormous profits and cheap products for US citizens and corporations, while exacerbating the very social crises that underlie the out-migration. Those of us in the United States need to seek deeper solutions that go beyond offering humane treatment and social services to these children after they cross the border.

  LOSING THEIR PARENTS

  Even children who are American citizens are at risk of losing undocumented parents to deportation. Although the Obama administration announced early on that immigration detention and deportation would focus on individuals who had committed crimes or were a threat to national security, deportations increased dramatically under his watch, to four hundred thousand a year. Almost all of those deported were, like most undocumented immigrants, members of communities with jobs, homes, and families. Their lives intersected every day with those of US citizens. In many cases, they were the parents of US citizens.

  As with the number of children crossing the border, the number of children losing their parents to deportation has also been rising. From 1998 to 2007, some 8 percent of those removed from the country were parents of US citizens; in 2011, it was 22 percent of a much larger number of removals. During the first half of 2011, over forty-six thousand parents of US-citizen children were deported. The Applied Research Center estimated that as of 2011, there were over five thousand US citizen children living in foster care because their parents were either in immigration detention or had been deported. Some were put up for adoption as incarcerated or deported parents lacked the resources to enforce their parental rights.22

  The term “anchor baby” is frequently thrown around in these discussions, with the implication that giving birth to a child in the United States gives the parent some special rights or privileges. It doesn’t. The child, as a US citizen, has the right to all of t
he benefits that citizenship offers, including a US passport, freedom to remain in or leave the country, and access to work and social services. The undocumented status of the parent, however, is not ameliorated in any way by the existence of the so-called anchor baby. Parents of citizens can be, and are, deported on a regular basis.

  The Obama administration’s 2010 and 2011 Morton Memos on prosecutorial discretion, issued by ICE director John Morton to revise agency policy, acknowledged the hardships caused for children when their parents were detained or deported. The first memo suggested that ICE “should not expend detention resources on aliens who are known to be suffering from serious physical or mental illness, or who are disabled, elderly, pregnant, or nursing, or demonstrate that they are primary caretakers of children or an infirm person.” Unfortunately, the new guidelines did not significantly reduce the numbers of parents separated from their children by ICE.23 The 2011 memo went somewhat further, specifically mentioning that one factor that ICE should take into consideration when deciding whether to prosecute a case was the immigrant’s relationship to US citizens. Still, this was one on a list of suggestions rather than a specific mandate.24

  Behind the statistics are the stories: a crying baby taken from her mother’s arms and handed to social workers as the mother is handcuffed and taken away, her parental rights terminated by a U.S. judge; teenage children watching as parents are dragged from the family home; immigrant parents disappearing into a maze-like detention system where they are routinely locked up hundreds of miles from their homes, separated from their families for months and denied contact with the welfare agencies deciding their children’s fate.25

  Consider the case of Sandra Molina, an undocumented immigrant from Guatemala. She married an immigrant with legal status, who became a citizen in 2009. They had two children, both US citizens. When her husband became a citizen, they decided that Sandra should return to Guatemala so that he could sponsor her to come legally to the United States. Even in the case of the spouse of a US citizen, however, there is no guarantee that legal permission will be granted. In Sandra’s case, it was denied, even though she had no criminal record or other apparent obstacle to legal entry.