Even though there has not been any major immigration reform since 1986, the policies of the past three presidents have greatly shaped border enforcement and the standing of undocumented migrants today. Under the Clinton administration, operations throughout the border (especially Operation Gatekeeper) turned the focus on policing the border—concentrating on preventing people from crossing undocumented. Under the Bush administration, the Immigration and Naturalization Service (INS) became United States Immigration and Customs Enforcement (ICE) under the Department of Homeland Security—which initiated the criminalization of undocumented migration. Finally, under the Obama administration, the focus on apprehending “criminal aliens” has intensified the criminalization of undocumented migrants.
The Clinton Administration
Scholars have referred to the U.S.–Mexico border as “porous” (Andreas, 2000), given that it has been extremely difficult for the U.S. government to seal it and prevent the flow of undocumented migrants and illicit substances into the United States. It is estimated that from 2007 to 2009, 300,000 undocumented migrants crossed into the United States extra-legally (Passel & Cohn, 2010). Nevertheless, border enforcement changed dramatically in 1994, under the Clinton administration. Before 1994, border enforcement was based on the logic known as catch-and-release, which meant that undocumented migrants were apprehended once they crossed, and were immediately released. This strategy, however, resulted in a revolving door effect, where migrants would try to cross, would get apprehended, and be returned to Mexico, where they would likely try to cross again immediately (sometimes even the same day). In response to this pattern, in 1994 a new strategy began to be implemented through local operations, first in Texas, then in California, and, finally, in Arizona. The new strategy—eventually known as prevention-through-deterrence—was first implemented in El Paso, Texas, by Border Patrol Chief Silvestre Reyes. Reyes decided to change the focus from detaining people once they had entered the United States to trying to prevent migrants from crossing in the first place. Thus border enforcement transitioned from catching undocumented migrants already in the United States to patrolling the actual U.S.–Mexico border (Dunn, 2010).
The results of this new prevention-through-deterrence strategy have been two-fold. On one hand, the new strategy has led to an increase in the number of border patrol agents hired to fortify and patrol the border. In 1990, there were about 3,700 border agents nationally. By 2000, the number had tripled, to about 9,200 (Nevins, 2002). Today, there are more than 20,000 border agents (CBP, 2009). On the other hand, for undocumented migrants trying to cross into the United States, this shift has resulted in an increased cost and danger associated with crossing the border extra-legally. There has been a sharp increase in the number of migrants who die trying to enter the United States, and the dangers associated with multiple crossings have led undocumented migrants to permanently settle in the United States at higher rates than before (Cornelious, 2001). In fact, the intensification of border enforcement since 1993 has resulted in a sharp increase in migrants dying from hyperthermia, hypothermia, and dehydration as they attempt to cross the border (Eschbach et al., 1999).
The Bush Administration
Under the Bush administration, the INS became US Immigration and Customs Enforcement (ICE), under the Department of Homeland Security (DHS), which shifted the focus to the criminalization of undocumented migrants. In 2005, Operation Streamline was launched, which ordered a “federal criminal charged for every person who crosses the border illegally” (ACLU & NIF, 2009). Today, due to this added focus on the conviction of immigration violations, Latinos now make up the percentage of people in federal prisons (40%), a plurality of whom are serving immigration-related convictions (48%) (Lopez & Light, 2009). Thus, given that migrants are being criminalized and serving sentences for crossing, many are being deported as “criminal aliens” when their only “crime” is an immigration offense—a victimless crime. Immigration and Customs Enforcement (ICE) has reported that of all the “criminal aliens” deported from October 2009 to August 2010, only 16.47% had committed “level 1” offenses (ICE, 2010a), such as “aggravated felonies” (Morton, 2010). Thus, more undocumented migrants are being labeled as “criminals” when their only offense has been to violate immigration laws. In fact, most crimes committed by “criminal aliens” are immigration-related (attempting to cross undocumented or presenting false documents). Yet the label “criminal alien” implies that these deported immigrants, undocumented or legal residents, are hard-core criminals, when most of these “criminal aliens” are not dangerous criminals.
Sebastian, for example, has lived all of his life in the United States, has all of his family there, but will never be able to become a “legal resident”:
Sebastian, a 42-year-old man, had been living in the U.S. since he was 14 years old. He was a legal permanent resident and was eligible to become a citizen but he never thought he had to. He sold drugs for a while and was arrested and jailed in 1999. In 2002, he lost his legal residency in the United States and was deported to Mexico. He went back to the US immediately, but in 2006 he was arrested for possession of a firearm, spent 45 days in prison and was deported once again. But he went back once again. In 2008, he was going to pick up his daughter from a party, but drove on a bus-only lane and was stopped by a police officer. He was given 3 years in prison, for violation of parole, and after serving his sentence, he was deported once again. Sebastian did not really want to go back to the United States, saying that he felt he carried a “burden” with him in the US—due to his undocumented status. Still, his wife and 3 children are there, and he knows they will not want to move to Mexico to live with him. He will most likely go back, even though he has little or no chance of gaining legal status in the US (Fieldnotes, June 23, 2010).
Sebastian has lost his legal standing in the United States, but has lived all of his life there. His family ties pull him to return to the United States, but his legal standing will always be that of an outlaw. To live undocumented, as Leo Chavez puts it, is to live in the “shadows” (1998). Sebastian feels a “burden” when he is in the United States because he has to live as an undocumented migrant, and because he knows he is no longer eligible to adjust his status. In addition, if he gets caught in the United States, the fact that he was in the United States is itself grounds for him to spend more time in prison. Sebastian's burden rests on his precarious standing.
The focus on border enforcement and increased convictions means that people are more likely to pass through the U.S. legal system, and therefore, less likely to be eligible to adjust their status in the future. The focus on criminalizing undocumented migrants has significantly shifted the dynamics of undocumented migration. An “illegal” immigrant, considered to be outside the legal parameters of the law, would only require a change in the law to be included. That is, if the government provides a legalization program or grants amnesty (like IRCA in 1986), “illegal” immigrants can become legal residents. On the other hand, by labeling migrants “criminal aliens,” it implies that the person has committed a crime, an act that cannot be undone. In the case of undocumented migrants who are convicted of immigration-related “crimes” their case for adjusting their status becomes much more difficult because they have been prosecuted and convicted of a felony, namely, undocumented reentry—a victimless crime, which nonetheless prevents them from adjusting their status.
The Obama Administration
The Obama administration has shown an emphasis on apprehending and deporting “criminal aliens,” that is, immigrants who have previously committed offenses in the United States. Thus, the U.S. government tries to both “control” undocumented migration and the border, while at the same time enforcing immigration laws in the interior. Thus, some undocumented migrants are being sent to prison convicted for reentry to the United States undocumented.
For example, in January 2011, U.S. ICE reported the conviction of four Mexican immigrants for reentry (ICE, 2011). While they had all committed offenses in the past, and had served prison terms, they will serve jail time for undocumented reentry, thus further criminalizing their undocumented status in the United States. In Florida, a man was sentenced to serve more than 5 years in a federal prison for illegal reentry. Susan McCormick, special agent in charge of ICE Homeland Security Investigations in Tampa, Florida, stated, “Criminal aliens who have been previously deported and then flagrantly disregard our laws by illegally re-entering the United States and continuing to commit crimes here should not be surprised to find themselves facing stiff federal prison sentences” (ICE, 2010b). Yet, his conviction was not for a current crime committed, but for reentering undocumented into the United States. As a “criminal alien” with a past conviction, undocumented presence in the United States is enough to serve jail time.
Important scholarly work has shown the production of illegality through immigration legislation in the United States (De Genova, 2004; Ngai, 2005), as well as the role of illegality as a mechanism to establish national identity (Coutin, 2003; Nevins, 2002), as well as its use in controlling and oppressing labor (Bacon, 2008; Chang, 2000). Furthermore, scholars have shown how illegality is part of the growth of the industrial prison complex (Parenti, 2000), which has come to benefit political and bureaucratic entrepreneurs (Andreas, 2000).
Today, the lack of laws to allow Mexican undocumented migrants to adjust their status, the criminalization of extra-legal crossing, and the increased judicial processing of undocumented migrants have all resulted in what I call the perpetual illegalization of migrants. I use this term illegalization to highlight the difference between undocumented, extra-legal, and illegal. Undocumented migrant refers to people who cross into the United States without government-issued documents or permits (such as visas, residency permits, or a passport). Thus, given that they do not have the documents necessary to cross through an official port of entry, undocumented migrants cross into the United States extra-legally, that is, through places not sanctioned by the U.S. government. However, once apprehended and banned from entering into the United States by the government, migrants become illegalized, that is, outlaws and criminals subject to jail time and deportation.
In sum, living undocumented in the United States means that people are not eligible to adjust their status, thus making them perpetual illegals, maintaining people in the shadows, on the periphery of society. Today, living as an undocumented migrant in the United States means that more than ever before the “deportability” of everyday life has intensified (De Genova, 2002). In 2009, the United States deported 613,003 people, and 86.16% of those migrants were deported to Mexico (DHS, 2010).
These high deportation levels and the increased focus on deporting “criminal aliens” (which include nonviolent crimes and immigration violations) have meant an increase in the number of people processed and deported by the U.S. government. Consequently, all of those people who have been processed and deported are now less likely (if at all) to be eligible to adjust their legal status if they attempt to return to the United States at some point in their lives.
Sandra, for example, has never actually lived in the United States, but has already been convicted of an immigration offense:
Sandra, a 24-year-old woman was trying to make a documented cross by getting a visa to visit her sick sister, but since she was unable to attain the document, is now trying to cross undocumented. In the past, she once tried to cross through Arizona, and was caught. At that time, she had to go in front of a judge, and was sentenced to serve 15 days in prison, and was banned from returning to the US for 5 years. She had come to the border with her husband and two children, and all except her managed to cross. Now her husband, two daughters, an aging mother and a sick sister await her in the United States, so she continues to try. She has attempted the crossing 17 times, and is now banned from returning to the US for 20 years (Fieldnotes August 12, 2010).
Sandra's only violation was to cross undocumented, and when she faced the judge, she told him about her sick sister. The judge responded that unless her sister was a U.S. citizen and was dying, Sandra would be ineligible for a humanitarian visa. If Sandra does manage to reach the United States, she will be unable to adjust her status due to the 20-year ban—thus living illegally.
The more times one is processed in this way, the more likely it is that one will be banned from returning to the United States and adjusting one's legal status. While these illegalized migrants have big incentives to go back to the United States (that is, family reunification, work, safety), their deportation and processing by the U.S. government diminishes their likelihood of adjusting their status diminished to the point of nullifying any process for legalization. Thus, border enforcement and increased deportations have stretched the boundaries of illegality.
Current immigration laws stretch the boundaries of illegality and criminality, not only because these laws include and label more people as illegal and “criminal aliens,” but also because they stretch the time and spatial applicability of these labels. That is, more people are labeled as “criminal aliens” by the mere fact of increasing convictions for undocumented reentry, while at the same time, even people who live in Mexico are illegalized. That is, from the U.S. standpoint, even people living outside its territory are illegalized because many have 10, 20, or for-life bans from returning to the United States. Their illegal status does not only apply within the United States but also follows these migrants living outside the United States.