Read the first part of this series here.
Immigration law also restricts the rights of American citizens
Whatever starts out as restricting the human rights of the most vulnerable among us — including undocumented immigrants, because the sword of deportation is always hanging above their heads — eventually gets extended to legal immigrants and finally to citizens. The disciplinary state chooses immigrants as the first arena for implementation of human rights restrictions, knowing that the hue and cry will be limited, and will provide a sense of normalization about illegalities that would be more difficult if directly imposed on citizens.
It is not coincidental that when neoliberalism was consolidated in the mid-1990s, welfare, terrorism and immigration legislation were passed in the same year, and in fact bore close resemblance to each other and even overlapped.
The anti-immigrant legislation of 1996 provided precedents for the Bush regime’s implementation of such unconstitutional measures as registration of Arabs and Muslims, which netted tens of thousands of immigrants who were deported for minor “crimes,” as terrorism became completely intertwined with immigration, just as communist subversion had in earlier times.
Bush’s attorney general, John Ashcroft, threw out the widest possible net for immigrants from Muslim countries in order to deport them for “chargeable” (if not actual) crimes, because there was no basis to prosecute them for terrorism; the administration relied on the implied backing of the plenary power doctrine, as usual, to provide broad leeway in matters of national security. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) had already provided for sharply reduced judicial review for defendants charged with terrorism, so the defining authority was already there.
When civil liberties are abrogated for one group, this ends up being so for all groups. When due process and equal protection are constrained for immigrants, this eventually affects citizens as well. The farther the gap between immigrant and citizen, the more pressure it puts on citizenship to be downgraded to the status of the lowly immigrant, because citizenship becomes something so hyperlegal, so liberated from ordinary human rights discourse, that its traditional foundations, in ordinary notions of community and membership, become unsustainable.
To make sure that excessive law enforcement does not erode the rights of citizens, the gap between immigrant and citizen must be closed, not broadened.
On our historically abusive relationship with Mexico
NAFTA, the notorious trade agreement between Canada, Mexico and the United States, was passed in 1994, and the contemporary immigration problem, in all its specific dimensions, first began to manifest at precisely the same time.
At the heart of NAFTA’s contradiction was the removal of barriers on capital and the simultaneous installation of new barriers on immigration. At the same time as dramatic new push-and-pull factors were exerted on Mexico, leading to escalated immigration, the avenues for immigrants to gain citizenship were curtailed or ended. Mexico had pursued a protectionist, import-substitution regime, like most developing countries, well into the 1970s, which led to opportunities for internal migration, from agriculture to industries. But NAFTA gave unfair subsidies to big American agriculture while putting unprecedented pressure on Mexican small farmers, and also weighted the scales against Mexican small industry.
All of this left no outlet valve for newly unemployed Mexicans other than to migrate northward. In the past, this had not necessarily led to huge increases in the proportion of Mexicans compared to the overall immigrant population, but throughout the 1990s the border became less porous, the price of leaving the country and being unable to reenter more ominous, and the cycle of seasonal migration -- a staple of Mexican migration since the 1920s -- was severely curtailed. It became much more attractive for Mexican immigrants, instead of returning to Mexico from time to time, or even permanently, to put down roots in he U.S., to start families and become part of communities and sever their connections with Mexico.
So “illegal immigration” was a self-created bureaucratic outcome. There was nothing inevitable about it, and the increase in “illegality” that came about had clear historical precedents.
The Bracero program had imported large numbers of Mexicans at mid-century. Operation Wetback (which Trump and his lieutenants fondly recite) was designed, in the 1950s, to satisfy xenophobic sentiment -- the INS claimed to have repatriated 1.4 million Mexicans -- while continuing to meet the American appetite for cheap labor. Deportees were often imported right back at the border, in a process called “drying out.”
During these mass deportation efforts, both in the 1930s and in the 1950s, untold numbers of American citizens of Mexican heritage were also sent back to Mexico. This process has exact echoes in the deportations of the last two decades. Circularity was a sort of functionality, and it didn’t lead to illegality, because while 28 million Mexicans entered the U.S. between the end of the Bracero program and the passage of the Immigration Reform and Control Act (IRCA) in 1986, 23.4 million left as well.
So the net result of NAFTA was to end the traditional circular flow of Mexican labor, and to advantage high-skilled over low-skilled labor while continuing to import large quantities of the latter. It also allowed corporate America to countenance the lack of authorization while taking advantage of a newly exploitable labor force — it was almost slave labor, with the same lack of human rights.
To top it off, Mexican immigrants, after several decades of propaganda, have been firmly established in the popular imagination as excessively reliant on public assistance or beholden to their native language or prone to more crime than natives. All of these propositions are patently untrue, but exert pressure on all immigrants and all minorities, even native-born.
Our immigration policy is designed in such a way that Mexicans, particularly over the last two decades, have become concentrated in lower-skilled professions. This is very much a policy choice, but is it a policy we should countenance from a human rights point of view?
In effect, we have a growing stateless population buffering the native population from the worst effects of economic downturns, even as national policy prevents the full utilization of immigrants worldwide for economic growth. The objective is to keep labor dynamics within a narrow spectrum that benefits employers at a known level of certainty, and this requires a level of repression that disallows full dynamism.
“Comprehensive Immigration Reform” (CIR) as a neoliberal boondoggle
Ever since, and including, the 1986 IRCA, all attempts at comprehensive immigration reform (CIR) have sought to limit legal immigration, restrict the rights of existing immigrants and make family unification and refugee and asylum claims more difficult. This is true of every piece of CIR legislation under various presidents, including George W. Bush’s proposed 2006 and 2007 legislation, and Barack Obama’s proposed 2013 legislation.
Republican senators have recently proposed new legislation to decrease legal immigration by half, among other things by eliminating the preference for siblings of U.S. citizens and permanent residents (a standard tactic). This is nothing new. Sen. Alan Simpson (who co-sponsored IRCA) and others who followed in his wake have proposed cutting legal immigration by one-third or one-half or even ending it altogether -- taking a "timeout," as they put it, precisely as America did from 1925 to 1965. The argument is precisely the same as in earlier instances: We need time to assimilate the immigrants already here.
There is a permanent executive context for such CIR proposals to gain traction. In the first four years of the Obama administration, deportations rose to 400,000 per year. While there is much hue and cry over Trump’s executive orders giving license to local officials to go on fishing expeditions to discover illegal status, the peak of the cooperative agreements between ICE and state and local police, under the 287(g) section of the 1952 INA, was reached under the Obama administration, when 35 law enforcement agencies in 18 states willingly participated.
All CIR consists of a three-pronged strategy: Increase enforcement, move to a guest worker program and offer some limited legalization under extremely harsh conditions.
The increase in Border Patrol numbers and resources, over a period of 30 years, is mind-boggling. Yet during the 1990s and 2000s, despite such radical Clinton-era innovations as Operation Gatekeeper and Operation Hold the Line, which forever altered the nature of the Mexican border, and despite the harsh post-9/11 detention regime imposed by George W. Bush (the number of federal detentions went up to 40,000 at any given time, where it stays today), immigration from Mexico did not decline. In fact, there was a sharp escalation in the 1990s and well into the 2000s, until the economic collapse of 2007-8. The pressure exerted on Mexico by neoliberal globalization was too great, and immigrants simply found more difficult terrain through which to enter, which caused more deaths in the desert but did nothing to stem the numbers. So the first inclination of any CIR proposal is always to punish immigrants, even while realizing that making entry impossible is not realistic.
Before 9/11, President Bush was considering a vast expansion of the guest worker program, in talks with Mexican President Vicente Fox. That was supposed to be the vaunted CIR initiative that got forestalled. In 2004, again, Bush’s intention was to convert the entire undocumented population into guest workers, with legal status but without full human rights. Likewise, the 2006 and 2007 CIR bills (both defeated in large part by the efforts of current Attorney General Jeff Sessions, then an Alabama senator, because ending immigration, rather than just curtailing it, has long been his goal) had guest workers as a key element, causing serious division between labor and immigrant advocates. The return that is promised, to compensate for the first two prongs of CIR, is always some form of legalization. But in reality under the 2006, 2007 and 2013 Obama versions, very few immigrants would have qualified because of all the preconditions.
For the past 30 years CIR has always relied on a neoliberal discourse of crime, punishment, personal responsibility and separation of the good from the bad. It's a no-win situation for anyone interested in human rights.
To engage in the discourse of immigrants as worthy of welcome because they are economic contributors, or because we are a nation that rewards personal responsibility despite all odds, or because we should reward good behavior as opposed to bad, only leads to such dreadful outcomes as cleaving off a tiny slice of immigrants, the so-called Dreamers, who are said to have come here due to “no fault of their own,” and to represent everything (getting through college despite every obstacle put in their path by the state, preserving unblemished police records despite being forced to grow up in high-crime neighborhoods) that we consider desirable about immigrants.
It all feeds into a neoliberal fantasy that we should reject, even if all the claims about immigrants’ contribution to the economy, not to mention sustaining the viability of retirement programs due to the otherwise aging population, are all true and then some. That is not what immigration discourse should be about.
Donald Trump is shrewd enough to deploy the Dreamers as a wedge issue in the immigration debate. He will hold on to canceling DACA (Deferred Action for Childhood Arrivals) until the last possible moment, in order to neutralize opposition from young, “law-abiding” immigrants who expect to maintain some right to be allowed to live in this country. Of course, they have no other country “to go back to.” But that is not any less true of someone else who may not have arrived, “through no fault of his or her own,” into the country at a young age, but may have lived here for decades, and perhaps be an even greater contributor than the average so-called “Dreamer.” This myth doesn’t make any moral sense except under complete sway of the neoliberal discourse.
Trump’s emphasis on criminalizing all immigrants is causing much consternation today, while CIR bills like the one in 2006 still get praise. But Peter Schey of the Center for Human Rights and Constitutional Law noted at the time that the 2006 bill would have converted the majority of the undocumented population into fugitives, since evading inspection would be made a “continuous” crime that would not end until the immigrant was “discovered.” Moreover, the 2006 Senate bill sought to overturn the Supreme Court’s tentative grants of constitutional rights, such as limits on indefinite detention. It would have doubled down on the 1996 law by expanding aggravated felonies even further, stripped the courts of even more of their reviewing role pertaining to errors of enforcement, and forced asylum seekers to return to countries where they might face torture and imprisonment.
In all the years since the liberalization of immigration in 1965 we have not had a single piece of legislation that fully respects human rights, including the various concessions to refugees in the 1970s and 1980s. So nostalgia toward any recent administration or its proposed legislation is foolish.
On the nexus of neoliberal economics and the current immigration problem
Trump has somewhat extended, in his initial executive orders, the definition of “criminal alien”: Essentially, every immigrant is potentially a criminal alien, since there are so many roadblocks on the pathway from temporary to permanent, or from illegal to legal.
This is nothing new, however, as we’ve seen in the explanation of the 1996 law. The dreaded 2005 Sensenbrenner bill, HR 4437, which caused the largest-ever immigration protests in our country, sought to criminalize illegal presence as a felony. Even Trump is not yet calling that a felony, but simply assuming that it’s a crime to be illegally present in the country, even if one hasn’t been issued with a deportation order.
The logic of neoliberal accountability inevitably leads to the criminalization of all immigrants — except some of those who enter as non-immigrants with a predetermined path to citizenship, namely the skilled H-1B workers so popular with corporate America since about 1990.
When Trump said during the campaign that he would deport all “criminal aliens,” those who understand immigration knew that he wasn’t talking about hardened criminals, but everyone unlucky enough to be present without legal status, and potentially even those with such status. Being present without documentation is of course a civil issue, but it has effectively been turned into a criminal matter by decades of restrictionist talk.
The LPC clause, as we have seen, has always been present in immigration law. But it was not federalized at the onset of the republic, and was not weaponized as a racist instrument to the extent that it is now. The 1996 law required U.S. citizen sponsors of parents or other relatives to sign affidavits of financial support, which made the sponsors accountable in courts of law should the sponsored falter and require public assistance. So if there were, for example, a health crisis for an elderly parent, the sponsor could be held responsible and face financial ruin. Such is our commitment to family unification, although that rhetoric has never faded away in recent immigration debates.
These neoliberal measures are rooted in three decades of panic at the state and federal level, with everyone desiring immigrants’ economic and cultural contributions without expecting to offer them anything in return. Mandatory detention, in unprecedented numbers, creates incentives for private prisons to push for the criminalization of immigration. In fact, the entire security complex is geared to lobby government for more criminalization, including the criminalization of asylum seekers and refugees.
If enough visas were made available for family unification or for work, there would be no “illegal” immigrants. But one shouldn’t even have to have family in the United States or an employment offer as prerequisites to migrate. Ideally, immigration should be as self-regulating a function as taxation. Everyone who has a need to be in this country should be able to enter and file a self-declaration, and then periodically file status updates. If one desires to stay in this country permanently, there should be as many pathways as possible so that one can fulfill one’s potential, rather than changing one’s life according to the technicalities of immigration law.
Next time: Amid the abundant contradictions of immigration law, an unanswered question: Do undocumented immigrants have constitutional rights?