In January 2004, president and candidate George W. Bush had lauded the country’s immigrant history in a speech whose audience included representatives of LULAC and other Hispanic organizations. Bush acknowledged the country’s need for migrant workers and expressed great sympathy for the undocumented:
Reform must begin by confronting a basic fact of life and economics: Some of the jobs being generated in America’s growing economy are jobs American citizens are not filling. Yet these jobs represent a tremendous opportunity for workers from abroad who want to work and to fulfill their duties as a husband or a wife, a son or a daughter. Their search for a better life is one of the most basic desires of human beings. Many undocumented workers have walked mile after mile, through the heat of the day and the cold of the night. Some have risked their lives in dangerous desert border crossings or entrusted their lives to the brutal rings of heartless human smugglers. Workers who seek only to earn a living end up in the shadows of American life, fearful, often abused and exploited. When they’re victimized by crimes they’re afraid to call the police or seek recourse in the legal system. They are cut off from their families far away, fearing if they leave our country to visit relatives back home they might never be able to return to their jobs.
Thus, Bush proposed offering temporary legal status to all undocumented workers in the country. Although he emphasized that the status would be temporary—initially for three years, but renewable—he also emphasized that those who wanted to apply for citizenship should also be allowed to do so.
Several congressional proposals for so-called comprehensive immigration reform were launched in the first decade of the new century: John McCain and Ted Kennedy’s Secure America and Orderly Immigration Act (S. 1033) in 2005; John Cornyn and Jon Kyl’s Comprehensive Enforcement and Immigration Reform Act (S. 1438), also in 2005; Arlen Specter’s Comprehensive Immigration Reform Act (S. 2611), which passed the Senate in 2006; and finally the Comprehensive Immigration Reform Act or Secure Borders, Economic Opportunity and Immigration Reform Act of 2007 (S. 1348), which drew on the earlier three and was promoted by Senators McCain, Kennedy, and Kyl, as well as then-president Bush. The right-wing reaction against the concept they termed amnesty gained political traction and contributed to the failure of these measures, even though all of them incorporated strong anti-immigrant measures euphemistically called enforcement components. Rarely was it pointed out that the combination of legalization and enforcement pioneered in 1986 had been followed by a huge increase in the size of the undocumented population. The proposals were generally critiqued from the right rather than from the left. Comprehensive reform, willy-nilly, had become the rallying cry of political liberals and supporters of immigrant rights.
While these comprehensive approaches stalled, the House passed an extraordinarily punitive piece of legislation that epitomized what came to be called the enforcement-only approach, H.R. 4437, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005. This vote became a catalyst for a new level of immigrant rights mobilization, the huge demonstrations in the spring and especially on May 1, 2006.
NEW PROTESTS IN THE NEW CENTURY
The major academic study of the 2006 demonstrations points out that they dwarfed even the largest protest movements in the country’s history, which only occasionally reached a half-million protesters. “In a short span of twelve weeks between mid-February and early May 2006, an estimated 3.7 million to 5 million people took to the streets in over 160 cities across the United States to rally for immigrant rights.” The protests were also unique in being carried out within the political system but primarily by people legally excluded from the polity—the undocumented.
Local activist organizations, hometown associations, and unions as well as Spanish media and the Catholic Church played important roles in disseminating publicity and motivating participants. “Radio show hosts and DJs on popular Spanish-language radio stations across the country endorsed the marches and encouraged listeners to attend. In addition, the two main Spanish-language networks, Univisión and Telemundo, promoted it through public service announcements broadcast during popular evening newscasts, regular reporting on the preparations for the marches and interviews with march organizers during newscasts, and frequent informal banter during talk-show and variety show formats, even incorporating the subject into the plotlines of their telenovelas, or soap operas.” National-level organizations took a backseat as different coalitions mobilized in different cities. The culmination of these many protests was on May 1, when a coordinated day-without-an-immigrant protest brought walkouts and business closings throughout the country to illustrate the importance of immigrants to the economy and their role in citizens’ daily lives.
Another thing the immigrant and undocumented communities had in their favor were the reformers in the labor movement who pushed for more pro-immigrant, and pro-undocumented positions. In the fall of 2003, the AFL-CIO, UNITE-HERE, and the SEIU sponsored the first Immigrant Workers Freedom Ride. Undocumented immigrant workers took off from 101 cities around the United States, headed for Washington, D.C., where they lobbied and demanded legislative change, and to New York, where they held public rallies. One study suggests that the Immigrant Workers Freedom Ride three years earlier helped bring groups together and lay the groundwork for the 2006 mobilizations.
To the extent that the protests aimed to prevent H.R. 4437 from becoming law, they succeeded: the Senate declined to consider the proposal and, in fact, passed its own, comprehensive reform bill later in May 2006 (which was then rejected by the House).
Some analysts believe that it was Bush’s immigration agenda and the battles over comprehensive immigration reform that led to the Republican losses in Congress in 2006. After Obama’s victory in 2008, backlash came in the form of the Tea Party movement, outflanking the Republicans to the libertarian and anti-immigrant right. The Republicans are currently torn between appealing to the fast-growing population of Hispanic voters—who have traditionally voted Democratic—and playing to the far right anti-immigrant sentiment fanned by talk radio and the Tea Party. Thirty-five percent of Hispanics voted for Bush in 2000, and over 40 percent did so in 2004, when Hispanic Republican support peaked. In 2008, with Barack Obama running against John McCain and Sarah Palin, the Hispanic Republican vote sank to 31 percent. In 2012, as candidate Mitt Romney took an outspokenly anti-immigrant position, this went still lower to 27 percent. Meanwhile, the Hispanic vote rose to 10 percent of the total, up from 9 percent in 2008 and 8 percent in 2004.
CONSULTING FIRMS AND THE CULTURAL BATTLE
Rinku Sen argues that despite the successes of 2006, a cultural battle for the rights of the undocumented was lost in the rise of xenophobia after 9/11. Fox News, talk radio, reality TV, and other media and entertainment sources offer the public epic battles between “criminal aliens” and beleaguered law enforcement in what Sen calls a “racialized cultural fight over the nation’s identity.” Sen especially critiques the immigrants’ rights organizations that have sought and followed the advice of consultants and “mainstreamed” their messages so as to tacitly accept, rather than challenge, common anti-immigrant sentiments. Many large organizations have relied on consulting firms like Westen Strategies that use surveys and focus groups to determine what messages will resonate with different sectors of the American public.
The firm’s founder, psychologist Drew Westen, urged advocates to concede to the public’s antipathy for immigrants considered illegal, rather than to challenge that stance. Advocates should aim for the center, he argued, by avoiding talk of immigrants’ rights and instead relying on some key phrases that would resonate with those less sympathetic. His surveys found that the phrases “comprehensive immigration reform” and “fixing a broken immigration system” went over especially well with these centrist voters. An effective message, Westen discovered, begins with “taking tough measures to secure our borders,” continues with “cracking down on illegal employers,” and finally ends with “requiring those who came here without our permission to get in line, work hard, obey our laws, and learn our language.” His firm works with and has been commissioned by major immigrants’ rights organizations like the Migration Policy Institute, the Center for American Progress, and Reform Immigration for America. Indeed, Westen’s key phrases began to enter every politician’s immigration proposals.
The Democratic Party also constructed its twenty-first-century agenda based on survey and focus group research about what messages would resonate with the American public. A study the party commissioned by Democracy Corps and Greenberg Quinlan Rosner Research as the 2008 election approached argued that immigration is “especially important in Congressional battleground districts and states where views on illegal immigration are more negative. Failing to show real determination to get this problem under control costs incumbent Democrats votes.”
Like Westen, the authors recommended “acknowledgment of the problem, pragmatic and tough ideas to stem the flow of illegal immigration with a path to citizenship laden with the kinds of requirements that anyone should meet if they are to attain the honor of being an American citizen.” Their bullet points included the following:
Attack [then-president] Bush for losing control of the problem; enforcement at both the border and with employers [sic]; opposition to non-essential benefits; and responsibility and a path to citizenship.
A large majority of voters support a path to citizenship if we are serious about having to qualify for citizenship: expelling anyone who has committed a crime, others pay a fine and taxes, learn English, and get in the back of the queue. But if voters hear only the part about a path to citizenship without the responsibilities, they do not support this—and punish incumbent Democrats. But if Democrats “get it” and are very serious about getting the problem under control, including benefits, their leaders can get support for solving this problem.
As a candidate, Obama echoed this position when he outlined what he believed comprehensive immigration reform should look like and vowed to press for its passage. “I can guarantee . . . that we will have in the first year an immigration bill that I strongly support and that I’m promoting. And I want to move that forward as quickly as possible,” he stated in May 2008. “We need immigration reform that will secure our borders, and punish employers who exploit immigrant labor; reform that finally brings the 12 million people who are here illegally out of the shadows by requiring them to take steps to become legal citizens,” he told the National Association of Latino Elected Officials in June. A large coalition of immigrant rights organizations favored this idea of a comprehensive reform, despite its punitive aspects, and supported the Obama candidacy and presidency.
Obama continued to reiterate this refrain once in office. “The way to fix our broken immigration system is through common-sense, comprehensive immigration reform,” he declared at a Cinco de Mayo celebration in 2010, seeming to take his cue directly from Westen. “That means responsibility from government to secure our borders, something we have done and will continue to do. It means responsibility from businesses that break the law by undermining American workers and exploiting undocumented workers—they’ve got to be held accountable. It means responsibility from people who are living here illegally. They’ve got to admit that they broke the law and pay taxes and pay a penalty, and learn English, and get right before the law—and then get in line and earn their citizenship.’”
He continued to sound the same themes after winning the 2012 election:
When I say comprehensive immigration reform . . . I think it should include a continuation of the strong border security measures that we’ve taken, because we have to secure our borders. I think it should contain serious penalties for companies that are purposely hiring undocumented workers and taking advantage of them. And I do think that there should be a pathway for legal status for those who are living in this country, are not engaged in criminal activity, are here simply to work. It’s important for them to pay back taxes, it’s important for them to learn English, it’s important for them to potentially pay a fine, but to give them the avenue whereby they can resolve their legal status here in this country, I think is very important.”
A core of mainstream immigrant rights organizations linked to the Democratic Party continues to push for this kind of a comprehensive reform. Organizations like the New Democrat Network, the National Council of La Raza, National Association of Latino Elected and Appointed Officials, We Are America Alliance, Mi Familia Vota Educational Fund, and Democracia USA are sometimes identified as the inside-the-beltway organizations. They emphasize the potential of the growing Latino vote, the need to incorporate new voters into the Democratic Party, and the need of the party to reach out to its new constituency through the project of comprehensive reform.
A few advocates and organizations opposed the focus-group approach. Oscar Chacón, executive director of the National Alliance of Latin American and Caribbean Communities, or NALAAC, rejected the “comprehensive” consensus arguing that “this is oppressive language—punitive and restrictive.” The 2008 Democracy Corps report was “nothing but an effort by D.C. groups to justify their views with a public opinion survey.” The Democrats were “accept[ing] more and more of the premises of the anti-immigrant lobby.” “We should be trying to change the way people think about the situation . . . instead of finding a way to make anti-immigrant sentiments tolerable,” Chacón urged.
Once Obama took office, the idea of a comprehensive reform died a quiet death. The Obama administration moved instead on the enforcement side, promoting and imposing the Secure Communities and E-Verify programs. Secure Communities, a Bush-era program that empowered local police forces to share data on arrests with ICE, grew from a small, voluntary pilot program to one Obama insisted would be imposed nationwide by 2013. E-Verify likewise grew from a small-scale, voluntary program to one required for companies holding government contracts—about 170,000 of them, employing some 4 million workers—and encouraged for all.
The immigrant rights organizations that had worked for Obama were disappointed when the first years of his presidency seemed to pander to the anti-immigrant right rather than pay them back for their support of his candidacy. Finally, in 2010, a crumb was thrown to immigrant rights supporters: prosecutorial discretion.
Memoranda by Immigration Commissioner John Morton, in 2010 and 2011, instructed agents of ICE to exercise “prosecutorial discretion” with regard to immigration violations. The term refers to law enforcement agencies’ right to choose which cases to pursue and when to allow violators relief from prosecution. Acknowledging that ICE could not possibly deport all of the millions of people in the United States without authorization, Morton instructed ICE to prioritize national security, border security, and public safety in selecting its targets. Immigrants who had committed no crimes beyond immigration violations, had US citizens who were dependent upon them, and posed no risk to national security or public should, in general, be eligible for such discretion.
One complicating factor in this new set of priorities was that while entry without inspection is a civil immigration violation, “re-entry after removal” is defined as a felony. The new rules defined entry without inspection as a low-priority violation, but a second attempt to enter without inspection made a person a felon and thus a high priority for removal. In fact, of 391,953 aliens removed by ICE in 2011, over half (203,571) had no criminal violations. Of the 188,382 who did have a criminal conviction, about 60 percent were guilty of either minor drug offenses, driving offenses, or immigration offenses. For fiscal year 2012, ICE proudly announced that it had hit a new record with 409,849 removals. Slightly over half of those removed (225,000) had been convicted of felonies or misdemeanors, though the vast majority of these, as usual, were for immigration or traffic offenses. Only about 7,000 were guilty of violent crimes.
Toward the end of 2011, ICE began a case-by-case review of over three hundred thousand pending removal cases in order to determine which ones merited dismissal under the new guidelines. As 2012 progressed, however, immigrant advocates became concerned at the small and diminishing numbers of cases that were determined to be eligible for dismissal. By the middle of 2012, only a few thousand of the tens of thousands of cases reviewed had been approved for dismissal. Prosecutorial discretion seemed to be delivering much less than it had promised.
With the 2012 campaign in full swing, Obama finally offered his signature DACA program. DACA opened some important doors, and may have contributed to the return of comprehensive immigration reform to the 2013 Congressional agenda. The reforms being debated in 2013, though, continued to follow the consulting firms’ emphasis on enforcement followed by a punitive path to citizenship or perhaps even something less than citizenship.
Excerpted from "Undocumented: How Immigration Became Illegal," by Aviva Chomsky. © Beacon Press 2014. Reprinted with permission of the publisher. All rights reserved.