Undocumented : How Immigration Became Illegal (9780807001684)

by Chomsky, Aviva

  In 2009, DREAMers founded the organization United We Dream to coordinate nationally and use the tactic of coming out or telling their own stories as a political weapon. “Leaders realized that encouraging young people to recount the stories of their lives in hiding and of their thwarted aspirations could be liberating for them, and also compelling for skeptical Americans.”49 Taking inspiration from the gay rights movement, many have themselves and encouraged others to come out and hold public coming-out ceremonies. Jose Antonio Vargas suggested, in his defiantly titled essay “Not Legal, Not Leaving,” that “we are living in the golden age of coming out.”50 Coming out can be a personal liberation, but it is also part of a larger project to insist on social and legal acceptance, which means fundamentally changing the legal structures of belonging in the country and challenging the beliefs that underlie and justify anti-immigrant sentiment.

  DREAM activist Gaby Pacheco accompanied much of this process. Pacheco, like Jose Antonio Vargas and so many others, learned that she was undocumented when she went to apply for her learner’s permit. She had come from Ecuador to Miami with her parents when she was about to start third grade. She began to organize for the rights of undocumented students in 2004, founding Students for Immigrant Rights in Florida and working with the Florida Immigrant Coalition and Presente.org. “From four of us that used to meet to try to pass the DREAM Act, we now have 16 chapters throughout Florida. Students Working for Equal Rights is part of the United We Dream network, which is led by students and represents 26 states,” she explained.51

  In January 2010, Pacheco joined three other immigrant Florida students for a fifteen-hundred-mile march to Washington, DC, part of the ongoing and increasingly public campaign to press for the rights of the undocumented. “They said they had concluded that the exposure to immigration agents on the walk was not much greater than what they faced in their daily lives. ‘We are aware of the risk,’ [one participant] said . . . ‘We are risking our future because our present is unbearable.’” ICE declined to comment on the issue.52

  “Coming out didn’t endanger me; it had protected me,” wrote Vargas. “A Philippine-born, college-educated, outspoken mainstream journalist is not the face the government wants to put on its deportation program.” He also wanted to use his case to publicize the arbitrary nature of immigration enforcement. “Who flies under the radar, and who becomes one of those unfortunate 396,906 [who are deported]? Who stays, who goes, and who decides?”53

  A year after coming out, he recounted his attempt to find out what ICE planned to do about him.

  After months of waiting for something to happen, I decided that I would confront immigration officials myself. Since I live in New York City, I called the local ICE office. The phone operators I first reached were taken aback when I explained the reason for my call. Finally I was connected to an ICE officer.

  “Are you planning on deporting me?” I asked.

  I quickly found out that even though I publicly came out about my undocumented status, I still do not exist in the eyes of ICE. Like most undocumented immigrants, I’ve never been arrested. Therefore, I’ve never been in contact with ICE.

  “After checking the appropriate ICE databases, the agency has no records of ever encountering Mr. Vargas,” Luis Martinez, a spokesman for the ICE office in New York, wrote me in an e-mail.

  I then contacted the ICE headquarters in Washington. I hoped to get some insight into my status and that of all the others who are coming out. How does ICE view these cases? Can publicly revealing undocumented status trigger deportation proceedings, and if so, how is that decided? Is ICE planning to seek my deportation?

  “We do not comment on specific cases,” is all I was told.54

  Amid increasingly visible activism and sympathetic media coverage, Congress took up the DREAM Act again at the end of 2010. Although it passed the House of Representatives, advocates could not muster enough votes to overcome a Senate filibuster.

  Most Republicans opposed the DREAM Act in the 2010 vote, even some who had supported previous attempts. The House was about to be turned over to a Republican majority. For some DREAMers, it was time to shift away from a legislative strategy. “In a meeting after the vote with Senator Harry Reid of Nevada, the majority leader, Ms. [Gaby] Pacheco said she grabbed him and whispered in his ear. ‘You know the president has the power to stop deporting us,’ she said. ‘You know you could tell him to do this.’ Startled, Mr. Reid gave her a hug and walked away.” In early 2011, United We Dream decided to change its focus to the president. At the National Council of La Raza meeting in Washington in July, when Obama tried to explain that he could not bypass Congress to push for immigrants’ rights, DREAMers “erupted in shouts: ‘Yes you can! Yes you can!’”55

  Meanwhile, Obama’s June 2011 Morton Memo specifically included DREAMers as a category meriting “prosecutorial discretion,” essentially advising that ICE refrain from prosecuting them for immigration violations. (See chapter 8 for a more detailed discussion of prosecutorial discretion.) DREAMers saw this as a concession and an opening for further action.

  In March 2012, Florida Republican—and potential vice presidential candidate—Marco Rubio announced that he was preparing to propose his own version of the DREAM Act. While reluctant to address specifics, Rubio emphasized that unlike previous versions of the act, his would not open a path to citizenship for undocumented youth. “I think that one of the debates that we need to begin to have is a difference between citizenship and legalization . . . You can legalize someone’s status in this country with a significant amount of certainty about their future without placing them on a path toward citizenship, and I think that is something that we can find consensus on,” Rubio explained. DREAM Act supporter and Democratic senator Harry Reid declared scornfully that this was a “watered-down version” that he would do “everything in his power” to oppose.56

  Still, Democrats worried about ceding momentum—and possibly Latino votes—to the Republicans during an election year. DREAMers praised Rubio’s step, and they continued to challenge Obama to take presidential action. In May, they presented the administration with a letter signed by over ninety law professors outlining legal precedents and steps that the president could take to halt deportations of undocumented youth.57

  “[Rubio’s] plan puts Obama in a box,” the Washington Post reported. “Democrats are reluctant to see Rubio’s efforts as anything other than a political gambit to repair his party’s tarnished image with Hispanics and boost his own profile as a potential vice-presidential pick or future White House contender. But if Obama does not at least try to work with Rubio, he could risk losing a centerpiece of his appeal to Hispanic voters—that he is their fiercest ally in Washington and that the GOP is to blame for lack of action on fixing the country’s immigration ills.”58

  In June, Obama regained the initiative for the Democrats when he announced his DACA program.

  DACA

  Much smaller than a comprehensive immigration reform, smaller even than the DREAM Act, DACA offered a two-year respite to young people who, Obama said, were American “in every single way but one: on paper.” “We’re a better nation than one that expels innocent young kids,” he explained.59 While his announcement was celebrated by many young undocumented immigrants and organizations that advocate for immigrant rights, it did not make those young people “American,” and like the DREAM Act, it implicitly raised questions about the very nature of status and illegality that were uncomfortable for both DREAMers and their opponents.

  DACA followed the DREAM Act in addressing people thirty and under who had arrived in the United States before age sixteen and had lived here continuously since 2007 and were in school, high school graduates, or veterans. (Vargas, who had just turned thirty-one, was thus excluded.) Unlike the DREAM Act, however, DACA did not open up a path to citizenship. It was limited to relief from deportation for two years and, during those two years, permission to work.

  The Pew Hispanic Center estimate
d that up to 1.4 million youth would be eligible for DACA, half of them under eighteen and half eighteen to thirty and either enrolled in school or high school graduates. Seventy percent of these were from Mexico. Together, DACA candidates represented just over 10 percent of undocumented immigrants in the United States.60

  During the first month (August 16 to September 15), US Citizen and Immigration Services (USCIS) received 82,361 applications.61 A month later, the agency announced that 179,794 DACA applications had been received, and 4,591 approved.62 By April 2013, the USCIS reported a total 488,782 received, and 472,004 approved. The vast majority of applicants were from Mexico (354,002), followed by El Salvador (18,949), Honduras (12,603), and Guatemala (11,817).63

  Grace Meng from Human Rights Watch pointed out that DACA was aimed at only a certain sector of immigrant youth. “The program’s idea of ‘American’ is unlikely to include the children who picked the oranges for your juice or the tomatoes on your hamburgers,” she explained. The children of migrant farm workers, she points out, are more likely to be out of school—they drop out at four times the national average—and less likely to have the documentation of continuous presence required to qualify for DACA. It is clear, Meng writes, that

  the program of deferred action was not designed for child farmworkers who, like many immigrants throughout U.S. history, live very different lives than middle-class, suburban kids. . . . It’s not surprising that the Obama administration designed a program for the best and the brightest immigrant children. But the fact that deferred action will probably exclude many farmworker children underscores how much immigration law is out of sync with the reality of an economy that depends on unauthorized immigrants.64

  By proposing an immigration reform—whether one as far-reaching as the DREAM Act or one as limited as DACA—for this restricted group of people, policymakers and advocates suggested that this group—and, implicitly but inevitably, not other groups—deserved access to some sort of legal status. By recognizing these young people as American, the implication was that other undocumented people were not American, but rather irredeemably foreign. If these young people were defined as innocent—because they were brought to the United States by their parents before they were old enough to make an independent decision—then their parents, who made the decision and brought them, were by implication guilty.

  When Senators Robert Menendez (D-New Jersey), Dick Durbin (D-Illinois), and Harry Reid (D-Nevada) introduced a recent version of the DREAM Act in May 2011, they presented it in precisely those terms. The act, Reid claimed, was for “children brought to this nation by their parents through no fault of their own.” “We should not punish children for their parents’ past decisions,” Menendez added. Senator Ben Cardin (D-Maryland) agreed that “we should not hold innocent children responsible for the sins of their parents.”65

  Many children found it difficult to accept the logic that counterpoised their own innocence with their parents’ guilt. As one DREAMer protested, “I was brought to this country by a very courageous woman. She’s my hero. She’s my mother. She left everyone and everything she knew behind in order for her to give me a better life. . . . I’m not going to blame her. . . . I thank her for bringing me here.”66

  Referring to the internal border that separates the undocumented from the rest of US society, another DREAMer wrote,

  Is it possible that DACA is also perpetuating this internal border? DACA passed largely due to the pressure that was being put on politicians and President Obama by DREAMers. But, I began to question, what else could have influenced the passing of DACA? The strong movement of DREAMers started getting exposure to the general public of the country and the movement made many people question why these students . . . were being punished. DREAMers began to make this internal border visible to the country. . . . In order for the United States to keep perpetuating undocumentedness as an unwanted and illegal “thing,” they chose to help us in a way that keeps us in the same state of second-class citizenship with a nicer title and stops the general public from continuing to ponder this question. . . . Undocumentedness allows the country to keep its cheap labor and discriminate against non-whites. And, with undocumented students out of the immediate picture of undocumentedness, the continual perpetuation of undocumented people as outsiders can continue to thrive.67

  Many argued that DACA was a first step rather than a solution. “‘By having this relief and having access to greater resources we can begin to push harder for relief for the entire community,’ said Lorella Praeli, advocacy director of the group United We Dream. ‘This fight for DREAMers in our community has never been about ourselves. . . . It’s been about our families.’”68 Just a month after the 2012 election, United We Dream agreed upon a new platform demanding “an inclusive pathway to citizenship.” A New York Times reporter described the meeting:

  Their decision to push for legal status for their families was intensely emotional. When they were asked at a plenary session how many had been separated by deportation from a parent or other close family member, hundreds of hands went up. They were critical of Mr. Obama for deporting more than 1.4 million people during his first term.

  “When Obama is deporting all these people, separating all of our families, I’m sick and tired of that,” said Regem Corpuz, a 19-year-old student at the University of California, Los Angeles, who was born in the Philippines.

  “Our families’ dreams were to get a better future,” said Ulises Vasquez of Sonoma County, Calif., “but our future is with our families together.”

  At the meeting, several parents followed their children’s lead and held a coming-out ceremony to tell their stories publicly for the first time.69

  Other contradictions plagued DACA as well. Presidential candidate Mitt Romney announced that, if elected, he would immediately halt the program upon taking office, though he said he would not revoke the status of those who had already been approved. With Obama’s election, the program seemed secure at least for the two years initially announced. But many of those who it was designed to help found themselves caught in the multiple contradictions of the immigration system, which DACA could not transcend.

  For many young immigrants, the very documents they needed to supply to prove that they fulfilled the program’s requirements were precisely those that they lacked. As the New York Times asked, “How do you document an undocumented life?” Particularly difficult were work records. For those who worked off the books and were paid in cash, no records documented the transactions. For those who used false Social Security numbers, submitting the evidence incriminated them in another crime. Moreover, employers were reluctant to unearth or provide records that could implicate them, too, in legal problems.70

  Furthermore, DACA did not affect the actions of ICE, which was pursuing deportation cases against a significant number of potential recipients. Instead, it placed two branches of the Department of Homeland Security against each other: while USCIS administered DACA, ICE attorneys were still charged with pursuing deportation cases. With 325,000 cases pending in its backlogged system, ICE found itself prosecuting—and even deporting—young people, even as USCIS was reviewing or approving their applications for deferred action.71

  Obama also disappointed many DREAMers when he announced that DACA recipients would be excluded from federal health-care programs under the Affordable Care Act (including Medicaid and federal subsidies for purchasing private insurance), even though immigrants deemed “lawfully present” were eligible. The New York Times noted ironically that “immigrants granted such relief [i.e., Deferred Action] would ordinarily meet the definition of ‘lawfully present’ residents. . . . But the administration issued a rule in late August that specifically excluded the young immigrants from the definition of ‘lawfully present.’”72

  The Department of Homeland Security left it up to individual states to decide whether people with DACA status could obtain a driver’s license or receive state-level benefits like in-state tuition at state colleges and
universities. Arizona’s governor declared that DACA youth were not eligible for driver’s licenses, while Massachusetts became the first state to make them eligible for in-state tuition. In Michigan, the Secretary of State’s office announced that DACA youth would not be able to obtain a driver’s license. “We rely on the federal government to tell us who is here legally; we don’t determine that,” the office explained. “So far, the federal government has not provided information to the states indicating that DACA grants that legal status.” As one Michigan DACA recipient put it wryly, “I’m caught in this situation where I can go to work, I can go to school, I’m legal here, but I can’t go to work and can’t go to school.”73

  As President Obama celebrated his victory in the 2012 election, he highlighted immigrant youth. “We believe in a generous America, in a compassionate America, in a tolerant America open to the dreams of an immigrant’s daughter who studies in our schools and pledges to our flag, to the young boy on the south side of Chicago who sees a life beyond the nearest street corner, to the furniture worker’s child in North Carolina who wants to become a doctor or a scientist, an engineer or an entrepreneur, a diplomat or even a president,” the president proclaimed stirringly.

  “Obama was very clearly referencing the immigrant youth who he’s supported with his backing of the DREAM Act and deferred action,” said Julianne Hing, Colorlines immigration reporter. “But it should be noted that his support came largely because immigrant youth have put his feet to the fire and relentlessly demanded more humane treatment of undocumented youth and their families.”74 The Senate’s comprehensive immigration reform bill (S. 744) passed in June 2013 included the most generous version yet of the DREAM Act, but as the bill subsequently stalled in the House, the future for immigrant youth remained as uncertain as ever.