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Abstract

  1. Top of page
  2. Abstract
  3. Data
  4. The Effects of Past Immigration Reforms
  5. Immigration Policies Under Clinton, Bush, and Obama
  6. The Proposed “Three-Legged Stool” Policies
  7. Likely Effects on Legalization
  8. Conclusion
  9. References
  10. Biography

In this paper, I will first discuss the historical development of the Mexican migrant as “illegal.” Second, I will discuss current border control and legalization policies and their effects on the undocumented population in the United States. Finally, reflecting on the effects of previous policies, I will discuss Homeland Security Secretary Janet Napolitano's proposed “three-legged stool” and its likely effects on the undocumented population in the United States. I will argue that the current immigration system, and any future proposals that include border enforcement as the primary mechanism to stop undocumented migrants from entering the United States will likely result in the continual perpetuation of an undocumented population of Mexican migrants in the United States. This paper is informed by the ethnographic data collected from July 2009 to August 2010 in the border city of Mexicali, Baja California, Mexico. During this time at the border, I talked to migrants deported from the United States.

What do the U.S.–Mexico border, an airport, and the Statue of Liberty have in common? Albeit in different ways, these are symbols, ideologies, and structures intended to manage, control, and discipline people on the move, more specifically, people crossing international boundaries. Thus, these symbols have both ideological and material consequences for the flow of both documented and undocumented migrants into the United States. Today, a major concern for politicians, citizens, and scholars alike is the flow of undocumented migrants into the United States, as well as the social, political, and economic consequences of having a large population of people living undocumented in the United States, a population estimated at 11.9 million people (Passel & Cohn, 2009). Thus, immigration reform has become a key phrase that signals the desires and commitments of politicians to address the issue of undocumented migrants. But what exactly does “immigration reform” entail?

In her remarks to the Center for American Progress in November 2009, Secretary of the Department of Homeland Security (DHS) Janet Napolitano explained her vision for immigration reform by using the metaphor of a “three-legged stool,” which includes “[1] a commitment to serious and effective enforcement, [2] improved legal flows for families and workers, and [3] a firm but fair way to deal with those who are already here” (Napolitano, 2009). But what is the relationship between these three, seemingly separate, yet related policies? What have been the results of past immigration reforms and policies, and the likely effects of future efforts if the “three-legged stool” focus predominates?

In this paper, I will first discuss the historical development of the Mexican migrant as “illegal.” Second, I will discuss current border control and legalization policies and their effects on the undocumented population of Mexican migrants in the United States. Finally, reflecting on the effects of previous policies, I will discuss Napolitano's proposed “three-legged stool” and its likely effects on the undocumented population in the United States. I will argue that the current immigration system, and any future proposals that include border enforcement as the primary mechanism to stop undocumented migrants from entering the United States, coupled with the new focus on deporting “criminal aliens,” will likely result in the perpetuation of an undocumented population of Mexican migrants in the United States.

Data

  1. Top of page
  2. Abstract
  3. Data
  4. The Effects of Past Immigration Reforms
  5. Immigration Policies Under Clinton, Bush, and Obama
  6. The Proposed “Three-Legged Stool” Policies
  7. Likely Effects on Legalization
  8. Conclusion
  9. References
  10. Biography

This paper is informed by the data gathered from July 2009 to August 2010 in the border town of Mexicali, Baja California, Mexico, where I talked to recently deported migrants from the United States. I conducted participant observation at a migrant center, Modulo Fronterizo Juntos en el Camino (Together on the Journey Border Center), which provided these migrants with services such as a phone call, food, clothing, and references to migrant shelters. I talked to individuals informally and also conducted structured surveys (that the center collected for funding purposes). My interactions with these recently deported migrants lasted anywhere from 5 minutes in 1 day to 24 hours in the span of 3 days, depending on the services required and the particular circumstances of each person. In my conversations with these migrants, I learned about their lives in the United States as undocumented (for those who had lived in the United States previously), their experiences going to prison (for those who had done jail time), their reflections about their new “deported” status, and their hopes and plans for the future. All the names used in this paper are pseudonyms to protect the identities of the subjects.

The migrant center reports serving, on average, 600 migrants per month. The number of people served on a particular day depends on how many migrants are deported from the United States. In the time I volunteered at the center, some days we would see as few as 10 migrants, while on other days we would serve upwards of 150 migrants in the period of 5 hours. It is difficult to estimate exactly how many migrants I encountered during my fieldwork. For example, from July 2009 to December 2009, the Instituto Nacional de Migración (INM) reported 24,764 deportations to Mexicali (INM, 2009). During the same period, the migrant center reported having assisted 3,749 migrants. Given that I usually went to the center from 9 a.m. to 2 p.m., I would estimate that I interacted with at least half of those who passed through the center, that is, more than 1,500 migrants during just the first half of my ethnographic fieldwork.1

The Effects of Past Immigration Reforms

  1. Top of page
  2. Abstract
  3. Data
  4. The Effects of Past Immigration Reforms
  5. Immigration Policies Under Clinton, Bush, and Obama
  6. The Proposed “Three-Legged Stool” Policies
  7. Likely Effects on Legalization
  8. Conclusion
  9. References
  10. Biography

My argument rests on the premise that past immigration acts enacted by Congress, as well as immigration policies enforced by presidents in the last 45 years, have not only produced the illegal immigrant, but have also effectively closed the doors for illegalized migrants to adjust their status. Thus, in this first section I show how the state has actively produced the illegal immigrant. In the past 45 years, the U.S. Congress has passed three major legislative acts concerning immigration, in 1965, 1986, and 1996. These pieces of legislation have had, for the most part, particularly negative consequences for the overall population of Mexican migrants in the United States by casting them as “illegals,” reifying their “illegality,” and finally by intensifying the meanings and consequences of such “illegality” through the criminalization of their undocumented status.

The Immigration and Nationality Act of 1965

The Immigration and Nationality Act of 1965 eliminated national origin quotas for immigrants. However, the Act also established a cap on the admission of migrants from the Western Hemisphere, which initiated the process of casting Mexican migrants as “illegals” by curtailing the legal means by which these migrants might move to the United States (Ngai, 2005). In fact, while the 1965 Immigration and Nationality Act, which eliminated national origin quotas, is seen as a liberal reform, “with respect to Mexico, the outcome was distinctly and unequivocally restrictive” (De Genova, 2004, p. 169). Thus, the imposition of an annual quota on Mexico effectively initiates the process of casting Mexican migration as “illegal” (Ngai, 2005, p. 261). In fact, the 1965 immigration act had such everlasting effects that it not only “reproduced—at ever higher levels—illegal immigration,” it also transformed this issue into “the central problem [that] preoccupied American immigration policy throughout the late twentieth century and into the twenty-first” (Ngai, 2005, p. 14).

The Immigration Reform and Control Act of 1986

The Immigration Reform and Control Act (IRCA), passed in 1986, had three major components: employer sanctions, the legalization of undocumented migrants already living in the United States, and a workers' program that allowed undocumented workers in the agricultural sector to apply for legalization, and provided for additional workers to be admitted, should a shortage of farm labor develop (Calavita, 1989, p. 23). This trifocal view, however, became mostly about border enforcement. While employer sanctions were not adequately enforced, and only a portion of the undocumented migrants were able to adjust their status, the most significant piece of IRCA became border enforcement. IRCA established a 50% increase in the funding of Border Patrol staffing (MPI, 2005), and thus solidified the status of Mexican migrants as “illegals” because it “foreclosed almost all options of legalization for those who did not qualify, and for all who would arrive thereafter [1982]” (De Genova, 2004, p. 174). In other words, while the legal means for Mexican migrants to adjust their legal status in the United States was available to only a few but was effectively foreclosed to most, border enforcement became key in showcasing a “controlled border” (Andreas, 2000, p. 39). Because IRCA foreclosed most possibilities for Mexican migrants to adjust their status thereafter, the undocumented population increased significantly in the following decades. Consequently, IRCA acted to reify the “illegality” of undocumented migrants.

When the Immigration Control and Reform Act of 1986 (IRCA) was approved by Congress, it was the last program to allow Mexican undocumented migrants to adjust their status en masse. In 1986, it was estimated that 3 to 5 million undocumented migrants lived in the United States, and about 3 million people adjusted their legal status (Lowell & Suro, 2002). Since then, Mexican migrants have had no available mechanism for adjusting their legal status once they arrive in the United States. The current population of undocumented migrants is estimated to be 11.9 people (Passel & Cohn, 2009), and they are very likely to arrive without documents because most are not eligible to obtain tourist or work permits due to their levels of education and socioeconomic backgrounds. Visa requirements to enter the United States include proof that “the purpose of their trip is to enter the U.S. for business, pleasure, or medical treatment.” Applicants must also show “evidence of funds to cover expenses in the United States,” and “evidence of compelling social and economic ties abroad” (USDS, 2010). Thus, as a group, Mexican migrants have few prospects for legalized/documented entry into the United States.

The Illegal Immigration Reform and Immigration Responsibility Act of 1996

In 1996, the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) further criminalized undocumented border crossers by specifying new removal proceedings for deportations, establishing new grounds for inadmissibility into the United States, setting a new basis for denying admission to migrants, and excluding judicial review from certain removal proceedings (Fragomen, 1997). These measures served to intensify the “illegality” of undocumented migrants and helped to establish the context for the increased criminalization of these migrants.

IIRIRA was basically anti-immigrant legislation with very tough measures against undocumented migrants (Fregomen, 1997). Some of the more penalizing measures include, for example, section INA 242, which states that final deportation orders against “criminal aliens” are final and may not be reviewed by a judge, and section INA 212(h)(2), which eliminates the waiver of inadmissibility2 for migrants who have been convicted of an aggravated felony (Fragomen, 1997). Thus, migrants deported from prison face no chance of returning to the United States legally; the courts cannot review their cases, and they are not eligible for waivers to reenter the United States.

Arturo, for example, came to the migrant center to drink some coffee, as he was waiting for his wife in the United States to deliver some clothes and money. He told me his story of how he found himself deported and ineligible for a hearing:

Arturo, a 44-year-old man from Sinaloa, had not been to Mexico in 13 years. He had tried to adjust his status in the US, since he has five U.S.-born children. However, he was detained and deported in 1997 after being caught in the same car with his cousin who sold drugs. Given that he had U.S.-born children, he asked to see a judge this time, but he was told that he “did not have the right to talk to a judge or lawyer” because he had already been deported previously. He was also told that if he was caught again in the US, he could get “2 to 20 years of prison and a fine up to $250,000.” He was not sure if this information was accurate, but was fearful nonetheless (Fieldnotes June 20, 2010).

Arturo's wife and children are in the United States, but he has no way to get back to them through legal means. In fact, the moment he steps in the United States, he will automatically be criminalized. If he does manage to return to the United States, he will live in perpetual illegality—unable to adjust his status and will never fully be part of U.S. society. Whereas U.S. citizens who commit violations—like running a red light, selling marijuana, or robbing a car—are punished according to their crimes, immigrants are punished for the same crimes in disproportionate ways; not only do they face time in prison, but are also deported and banned from adjusting their legal status in the United States.

Today, the undocumented population living in the United States has longer settling patterns than before. Migrants tend to remain in the United States for longer periods for two important reasons. First, leaving the United States decreases their opportunities for adjusting their legal status, and second, the intensification of border enforcement has made it more difficult and expensive to return to the United States. Thus, while many undocumented migrants are cultural citizens (Rosaldo, 1994) because they have strong ties to the U.S. social fabric (they have families, jobs, and cultural understanding of U.S. society), they are unable to adjust their status and thus remain in a precarious situation, subject to deportability. De Genova describes such deportability not as the actual deportation but “the possibility of deportation, which is to say, the possibility of being removed from the space of the U.S. nation-state” (2004, p. 161). Yet, actual deportations, and the dramatic increase in border enforcement in the interior, highlight the fact that the threat is not empty. Thus, the socially precarious standing of the deported migrants in my research have few or no options to legalize their status in the society where they live (the United States) and they must constantly live with uncertainty. This precarious standing, their illegality, becomes perpetual because these migrants, through their criminalization, have no way of adjusting their status and changing their precarious standing.

Thus, my argument rests on the premise that although illegality has been constructed historically since the 1965 immigration act, and while people have been illegal for a long time before the 1986 amnesty, today's illegality is different. Today, people live in perpetual illegality because the lack of means to regularize their status, the heightened criminalization, and increased deportability make the situation of current illegalized migrants significantly more acute and problematic.

Immigration Policies Under Clinton, Bush, and Obama

  1. Top of page
  2. Abstract
  3. Data
  4. The Effects of Past Immigration Reforms
  5. Immigration Policies Under Clinton, Bush, and Obama
  6. The Proposed “Three-Legged Stool” Policies
  7. Likely Effects on Legalization
  8. Conclusion
  9. References
  10. Biography

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.

Perpetual Illegality

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.

The Proposed “Three-Legged Stool” Policies

  1. Top of page
  2. Abstract
  3. Data
  4. The Effects of Past Immigration Reforms
  5. Immigration Policies Under Clinton, Bush, and Obama
  6. The Proposed “Three-Legged Stool” Policies
  7. Likely Effects on Legalization
  8. Conclusion
  9. References
  10. Biography

Today's large undocumented population in the United States has prompted a national discussion about border enforcement, border policies, and legalization strategies—a discussion with similar proposals from the right and the left. On the political right, calls to “increase border enforcement,” “complete the border fence,” and “intensify enforcement at the workplace” are common (GOP, 2008). Meanwhile on the political left, proposals to “secure the border,” “enforce employer sanctions,” and “provide a path to citizenship” are likely to emerge (DNC, 2010). Janet Napolitano, the Secretary of the Department of Homeland Security under the Obama administration, has proposed a “three-legged stool” that combines policies focused on more border enforcement in the interior and at the border, an improved flow of legal migrants, and a path to legalization for undocumented migrants living in the United States. In light of the previous “three-legged stool” (IRCA, 1986) that resulted in minimum enforcement of employer sanctions, a partial legalization of the undocumented population already living in the United States, and the intensification of border policing, what are the likely effects of Napolitano's proposal?

Internal and External Enforcement of the Border

Border enforcement and controlled entry into the United States are based on two efforts (1) internal border enforcement through employer sanctions and (2) external border enforcement at the U.S.–Mexico boundary.

The logic behind employer sanctions rests on the premise that migrants’ most important motivation to come to the United States is to find a job, and if employers did not give jobs to undocumented migrants, they would not come. Thus, if employers face sanctions for hiring undocumented migrants, employers will be less likely to hire undocumented migrants and more likely to hire citizens or documented migrants. Consequently, this reasoning maintains that employer sanctions will serve to decrease the population of undocumented migrants in the United States.

However, there are many problems with this logic. Employer sanctions—established in 1986 in the United States through IRCA—did not work because of the low levels of enforcement activity (Calavita, 1990). In fact, the consequences of employer sanctions have been shown to be negative, leading to a decline in the wages (Bansak & Raphael, 2001) and discrimination against workers, particularly Latinos (Lowell, Teachman & Jin, 1995). Internal enforcement, in the form of employer sanctions, has actually burdened migrants more than employers, because while employers are not systematically targeted or fined, migrants are increasingly forced to show proof of legal status in the United States. The no-match letter,3 for example, places the burden on migrants to prove their status and thus drives undocumented migrants further into the underground economy, making them more vulnerable to exploitation. A study of the Center for Urban Economic Development at the University of Illinois at Chicago found that no-match letters resulted in employers taking advantage of or firing workers with unmatched Social Security numbers (Mehta, Theodore & Hincapie, 2003). Increasingly, the E-Verify4 system is used to detect undocumented workers, even though an evaluation of the system has shown that “the inaccuracy rate for unauthorized workers is approximately 54 percent” (Westat, 2009).

The ineffectiveness of employer sanctions might be explained by the fact that initial economic factors might drive migration, but as networks develop and mature, migration becomes self-sustained (Massey 1986). Thus, many undocumented migrants living in the United States have established families, networks, and social relations that pull them to live in the United States; for such migrants, employer sanctions will not discourage them from living extra-legally in the United States.

In terms of the external enforcement at the U.S.–Mexico border, politicians have claimed that sealing the border will deter people from coming to the United States extra-legally, a logic materialized in the prevention-through-deterrence policies that emerged in the mid-1990s. However, studies now show that these policies have resulted in an increased cost and danger associated with crossing the border extra-legally, higher rates of permanent settlement in the United States by undocumented migrants, and a sharp increase in the number of migrants dying while trying to enter the United States (Cornelious, 2001). The current and any future efforts to seal the border will fail because people will move (across borders), regardless of physical and legal structures. This focus on sealing the border only makes migrants more vulnerable and has resulted, most tragically, in the death of more than 5,000 migrants trying to cross into the United States since 1994 (Jimenez, 2009).

Ismael is a clear example of the persistence migrants demonstrate, not only through his desire to provide for his family economically, but also to be reunited with his family:

Ismael, a 41-year-old man from Michoacán, was used to crossing on a regular basis to work in the fields of California. But then, he was caught by Border Patrol trying to cross through Arizona, and was given a 5-year ban from entering the US. But he went back to the US, got more settled, and lived for 10 years in California with his wife, picking lemons. All his children lived in the US, already married and with children of their own. Then, Ismael was deported last year and was given a 20-year ban from entering the US. But he returned to the US and got deported again 3 months before our conversation. The immigration officer that caught him this last time trying to cross even told him, “I understand you want to get back to your family and work, but the more you cross, the more difficult your case will be.” Yet, Ismael is determined to go back to his wife and family in the US (Fieldnotes June 13, 2010).

In conclusion, current efforts to enforce the border internally (at job sites) and externally (at the U.S.–Mexico border) have resulted in undocumented migrants experiencing more hurdles to crossing the U.S.–Mexico border and/or settling in the United States. Thus, future efforts that focus on the enforcement of either internal or external borders will likely perpetuate the illegality of undocumented migrants in the United States, unable to legalize their status.

Likely Effects on Legalization

  1. Top of page
  2. Abstract
  3. Data
  4. The Effects of Past Immigration Reforms
  5. Immigration Policies Under Clinton, Bush, and Obama
  6. The Proposed “Three-Legged Stool” Policies
  7. Likely Effects on Legalization
  8. Conclusion
  9. References
  10. Biography

DeGenova (2002) argues that immigration law defines illegality; therefore we can only understand illegality in relation to the state. Purposely designating some subjects as illegal serves various purposes. On one hand, it helps to discipline one segment of the labor force (by making “illegal” workers vulnerable). On the other hand, illegality creates monolithic notions of national identity (by delineating who legitimately belongs and who does not). Illegality, more than a legal category, is a social construction generated by the state, which shapes the everyday experiences of migrants through the expectation and experience of deportability. Thus, the state regulates belonging not only by shaping legitimate forms of belonging but also through the creation of illegitimate or illegal forms of belonging.5

For those who do not belong legally to the nation-state, there are severe consequences. Coutin (2000; cited in De Genova, 2002) argues that while undocumented immigrants are present and take part in society, they are nonetheless rendered “nonexistent” politically, thus becoming “legally nonexistent.” In other words, the legal status of being illegal permeates everyday life—from access to basic needs like education and healthcare, to one's relationship to the workplace and public institutions, relegating these undocumented subjects to a state of perpetual illegality. According to Sassen (1999), immigrants remain outsiders because of their experience of difference rather than their race, religion, or cultural characteristics.

Given the results of the 1986 Immigration Act, in which only 3 million undocumented migrants were able to adjust their status, it is clear that some individuals will always be left out of the process if there are time frames that limit eligibility. IRCA beneficiaries were migrants who had resided in the United States continually from 1982 to 1987; therefore, people who arrived in-between or after the cut-off date were ineligible to adjust their status. This situation created mixed-status families, in which some individuals were able to adjust their status while others remained undocumented (MPI, 2005). These mixed-status families are one of the most important elements that pull migrants to return to the United States, regardless of the physical and legal barriers intended to prevent their return.

Today, any legalization program or immigration reform proposal that does not address the particular circumstances of those who have already been processed by the government, deported, and banned from entering the United States will likely repeat the same IRCA process of creating mixed-status families—rendering some migrants legal and others illegal.

Immigration laws will continue to create undocumented migrants as long as they focus on the undocumented migrants already living in the United States and on border enforcement. First, the flow of workers into the United States is unlikely to cease, due to major economic disparities between the United States and Mexico. Second, border enforcement has shown to be an ineffective deterrent for migrants seeking to cross into the United States. Thus, the ongoing criminalization of those who are not able to obtain the documents to cross the U.S.–Mexico international boundary with state approval will only continue to create illegalized subjects who are unable to fully belong in the United States.

Conclusion

  1. Top of page
  2. Abstract
  3. Data
  4. The Effects of Past Immigration Reforms
  5. Immigration Policies Under Clinton, Bush, and Obama
  6. The Proposed “Three-Legged Stool” Policies
  7. Likely Effects on Legalization
  8. Conclusion
  9. References
  10. Biography

Today's globalized world has resulted in the opening of borders for capital, corporations, and tourism. Yet, there has been an unprecedented level of building border walls, intensifying border policing, and criminalizing undocumented border-crossers. The problem of undocumented migration and migrants' precarious situation is not unique to the United States, as illegality transcends ethnic and national boundaries, becoming a global phenomenon (see e.g.: Calavita, 1998; Goldring, Berinstein & Bernhard, 2009). Nevertheless, the closing of the U.S.–Mexico boundary in particular has been ineffective and has led to an environment in which more than 5,000 people have died trying to cross the border in the last 16 years (Jimenez, 2009).

Legalization Programs (like IRCA in 1986) do not eliminate “the field of ‘illegality’… [these programs] simply refines and reconstitutes that field for the ineligible who will remain undocumented along with all subsequent ‘illegal’ arrivals…[these programs] are themselves disciplinary and serve as instruments of labor subordination” (De Genova, 2002, p. 429). In addition, the criminalization of undocumented migration has meant that these migrants will very likely become perpetually illegal, undocumented migrants unable to fully become part of U.S. society. This will be the case any time there is a segment of the population labeled as “illegal,” without any possibilities to legally adjust its status.

Immigration reform is a difficult task because competing interests of different actors makes coalitions and concessions difficult (Tichenor, 2009). Although there are various factions within the right and the left, which Tichenor labels cosmopolitans, national egalitarians, free-market expansionists, and classic exclusionists (2002), there is seemingly similar emphasis and support for border policing on all parts. This convergence, focusing on policing the border, has been shaped in large part by the anti-immigration backlash that emerged in the mid-1990s, and which has sustained considerable momentum. A major component of the anti-immigration backlash is based on “ethno-cultural fears centered on the maintenance of a national social order tied to particular notions of American ethnic and cultural identity” (Purcell & Nevins, 2005, p. 222). Thus, politicians and bureaucrats have opportunistically focused on the border as the source of the problem and site for a solution of nativist fears about undocumented migration. Moreover, positioning border enforcement as the only solution to end undocumented migration has “helped define the nature of the problem and helped limit the range of acceptable policy solutions” (Andreas, 2000, p. 88). This became evident in 2007, when most Americans opposed immigration reform “because they had little faith that it would provide genuine border security” (Tichenor, 2009, p. 18.

In addition, even though deterrence has shown to be ineffective, the current immigration system focusing on border enforcement, and particularly on the conviction of immigrants for reentry and criminalizing them for these immigration-related infractions, has been shaped in large part by the lobbying efforts of private corporations dedicated to the management of correction facilities and transportation of prisoners, such as Corrections Corporation of America6 and the GEO Group7 (Sullivan, 2010). Thus, corporate interests have also fueled the quest to “control the border” (Andreas, 2000).

The focus of this paper is to highlight the consequences of immigration policy, as De Genova points out, “Without engaging in the unwitting apologetics of presumptively characterizing the laws’ consequences as ‘unintended’ or ‘anticipated,’ and without busying ourselves with conspiratorial guessing games about good or bad ‘intentions,’ the challenge of critical inquiry, and meaningful social analysis commands that one ask: What indeed do these produce?” (2004, p.179). Thus, I have shown that the current immigration system has resulted in the makings of migrants who become perpetually illegal—migrants without the options or possibilities to adjust their status in the United States. While historical legislation created the “illegal” migrants, recent policies have intensified the criminalization of these undocumented migrants—from Clinton's development and funding of Operation Gatekeeper in 1994, to Bush's merge of the INS with the Department of Homeland Security in 2003, to today's focus on deporting “criminal aliens.” These policies have resulted in stretching the boundaries of this illegality through time and space—through time by banning people from returning to the United States for 10 years, 20 years, or for life, and through space by including even those who return to Mexico.

Future immigration policies will have to address not only undocumented migrants, but must also address this population of migrants who might not be eligible to adjust their status (due to previous crime convictions) but who nonetheless wish to belong to U.S. society—due to their close family connections in U.S. society. To leave them out of the equation will only perpetuate their illegality.

  1. 1

    I can only estimate the numbers for the first half of my fieldwork (from July to December 2009), because the center has not released the data on the number of migrants attended during the second half of my fieldwork (from January to August 2010).

  2. 2

    A waiver of inadmissibility is a special waiver that allows someone previously deemed inadmissible to be lawfully admitted to the United States.

  3. 3

    The no-match letter is a letter sent to employers on a yearly basis that identifies the employees whose Social Security Number (SNN) does not match names of numbers in the Social Security Administration's records.

  4. 4

    The E-Verify is an Internet-based Employment Eligibility Verification system used to determine whether a worker is eligible to work in the United States. The use of the E-Verify system is voluntary for employers.

  5. 5

    Illegal forms of belonging refers to the strategies undocumented migrants resort to in order to survive in a society that does not recognize them legally. Thus, illegal forms of belonging are the various mechanisms used by undocumented migrants that allow them to have access to resources (like schools, jobs, and even healthcare). For example, undocumented migrants must purchase false documents to obtain a job; they must drive without a license; and they might even have to pretend to be U.S. citizens to attend school (as in the case of undocumented children and youth). These illegal forms of belonging are shaped by the U.S. government because these strategies arise from governmental laws and regulations.

  6. 6

    Corrections Corporation of America “specializes in the design, construction, expansion and management of prisons, jails, and detention facilities, as well as inmate transportation services, through its subsidiary company TransCorAmerica” (CCA, 2008). In 2009, CCA reported total revenues of $1.7 billion, with a net income of $155 million (CCA, 2009).

  7. 7

    The GEO Group, formerly Wackenhut Corrections, is the “largest provider of correctional services to the United States Federal Government—and one of the world's largest public companies managing privatized correctional and detention facilities” (GEO, 2011). In 2009, the company reported total revenues of $1.1 billion, with a net income of $65 million (GEO, 2009).

References

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  2. Abstract
  3. Data
  4. The Effects of Past Immigration Reforms
  5. Immigration Policies Under Clinton, Bush, and Obama
  6. The Proposed “Three-Legged Stool” Policies
  7. Likely Effects on Legalization
  8. Conclusion
  9. References
  10. Biography
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Biography

  1. Top of page
  2. Abstract
  3. Data
  4. The Effects of Past Immigration Reforms
  5. Immigration Policies Under Clinton, Bush, and Obama
  6. The Proposed “Three-Legged Stool” Policies
  7. Likely Effects on Legalization
  8. Conclusion
  9. References
  10. Biography
  • HEIDY SARABAI is a graduate student at the University of California Berkeley, currently working on her dissertation thesis titled “Border Subjects in Transnational Spaces: A Study on the Practices of Documented and Undocumented Border Crossers and the Cultural, Social and Political Consequences of the US-Mexico Border.” Her general interests include globalization, transnationalism, migration flows, and border-crossings practices, with a focus on issues of political and civic participation, citizenship and human rights claims to the nation-state, and counter hegemonic resistance.