Battleground: Immigration (2 Volume Set)

BATTLEGROUND IMMIGRATION

This page intentionally left blank

BATTLEGROUND I M M I G R AT I O N VOLUME 1 (A–L)

Edited by Judith Ann Warner

GREENWOOD PRESS Westport, Connecticut • London

Library of Congress Cataloging-in-Publication Data Battleground immigration / edited by Judith Ann Warner. p. cm. Includes bibliographical references and index. ISBN 978–0–313–34413–8 (set : alk. paper) — ISBN 978–0–313–34415–2 (vol. 1 : alk. paper) — ISBN 978–0–313–34417–6 (vol. 2 : alk. paper) 1. United States—Emigration and immigration—Encyclopedias. JV6465.B38 2009 325.7303—dc22 2008038758 British Library Cataloguing in Publication Data is available. Copyright © 2009 by Judith Ann Warner All rights reserved. No portion of this book may be reproduced, by any process or technique, without the express written consent of the publisher. Library of Congress Catalog Card Number: 2008038758 ISBN: 978–0–313–34413–8 (set) 978–0–313–34415–2 (vol. 1) 978–0–313–34417–6 (vol. 2) First published in 2009 Greenwood Press, 88 Post Road West, Westport, CT 06881 An imprint of Greenwood Publishing Group, Inc. www.greenwood.com Printed in the United States of America

The paper used in this book complies with the Permanent Paper Standard issued by the National Information Standards Organization (Z39.48–1984). 10 9 8 7 6 5 4 3 2 1

I. Warner, Judith.

CONTENTS Guide to Related Topics Series Foreword Introduction

ix xiii xv

Entries: Anti-Terrorism Policy and Immigrant Communities

1

Asylum and Human Rights

6

Attitudes toward Undocumented Immigrants

21

Bilingual Education

25

Bilingualism

37

Birthright Citizenship

49

Border Deterrence Strategy

57

Border Fence

63

Border Patrol and Human Rights Violations

69

Border Patrol, Bureaucracy, and Expansion

74

Brain Drain and Immigrant Professionals

81

Canadian Border

87

Civic Incorporation

94

v

vi

|

Contents

Coercion and Migration

104

Congressional Reform Legislation

118

Contact and Immigrant Attitude Formation

126

Counterterrorism and Immigrant Profiling

131

Crime and Youth Gangs

142

Cultural Assimilation

155

Department of Homeland Security (DHS) and Immigration Enforcement

169

Detention Conditions

175

Diversity, Racism, and Xenophobia

186

Domestic Violence and Victim Rights

199

Domestic Workers in the Private Household Economy

211

Drug Trafficking

218

Dual Citizenship

229

Economy

239

Education

254

Education Costs

267

Electronic Eavesdropping

274

Employer Sanctions

277

Enslavement

287

Ethnic Identity across Generations

298

Expedited Removal

301

Female Genital Mutilation and Asylum

309

Financial Costs and Contributions

314

Gender and Family Formation

323

Global Economy and Migrant Control

338

Guest Worker Programs

352

Hate Crimes

365

Health and Fiscal Costs

375

Health and Residential Segregation

386

Hispanic Migrants in Children’s Literature

394

Human Trafficking

404

Contents | vii

Identification Cards

417

Identity Theft

423

Immigration Law and Exclusion

430

Indefinite Detention

441

International Students in Higher Education

452

Iraq War and Population Displacement

459

Legal Immigration System

469

Legalization Programs

483

Media Representation

495

Mental Health Needs and Services

504

Migrant Deaths on U.S.-Mexico Border

516

Militarization of the U.S.-Mexico Border

531

Minimum Wage

541

National Guard and Border Control

549

National Origin and Religion Profiling

554

National Security and Community Policing

565

Nativism and Terrorism

567

Naturalization and Immigrant Loyalty

574

Neighborhood Social Control, Culture, and Crime Prevention

582

New Asian Immigration

589

9/11 Commission

594

Official English Movement

609

Open Border Initiative

620

Organized Crime

624

Police Relations

637

Political Perspectives

653

Population Trends

665

Port Security

674

Public Health

679

Racial and Ethnic Population Trends

691

Raids

701

viii

| Contents

Refugees

710

Remittances

722

Residential Segregation

725

Rights of the Undocumented

731

Sanctuary Policy

739

Scapegoating of Arab and Muslim Americans

750

September 11: Policies of Immigrant Exclusion

757

Social Mobility

771

Social Security and Baby Boomers

782

State Laws and Immigration

785

Statelessness

797

Substance Abuse

805

Sweatshop Labor

812

Symbolic Security

819

Taxation

835

Temporary Workers

840

Terrorism and National Security

846

Underground Economy

865

Undocumented Children and the Schools

871

Undocumented Immigration Policy

878

U.S.-Mexico Border Violence

898

US-VISIT

909

USA PATRIOT Act

917

Vigilante Groups

927

Voting and Political Activism

940

Welfare Costs

953

Bibliography

963

About the Editor and Contributors

971

Index

979

GUIDE TO RELATED TOPICS advocacy Asylum and Human Rights Domestic Violence and Victim Rights Female Genital Mutilation and Asylum Political Perspectives Voting and Political Activism Rights of the Undocumented

citizenship rights Birthright Citizenship Civic Incorporation Dual Citizenship Naturalization and Immigrant Loyalty Voting and Political Activism

culture Cultural Assimilation Ethnicity Across Three Generations Neighborhood Social Control, Culture, and Crime Prevention

deportation and detention Expedited Removal Detention Conditions Indefinite Detention

ix

x

| Guide to Related Topics

discrimination and exploitation Coercion and Migration Enslavement Human Trafficking Sweatshop Labor Underground Economy

health Public Health Health and Residential Segregation Mental Health Needs and Services Substance Abuse

interior enforcement Department of Homeland Security (DHS) and Immigration Enforcement Employer Sanctions Identification Cards Identity Theft Raids

international aspects Brain Drain and Immigrant Professionals Canadian Border Dual Citizenship Global Economy and Migrant Control International Students in Higher Education New Asian Immigration Remittances

labor and employment Economy Domestic Workers in the Private Household Economy Guest Worker Programs Minimum Wage Social Mobility Sweatshops Temporary Workers Underground Economy

language and schooling Bilingualism Bilingual Education Education Official English Movement Undocumented Immigrants and the Schools

Guide to Related Topics |

policing Police Relations National Origin and Religion Profiling Anti-Terrorism Policy and Immigrant Communities Counterterrorism and Immigrant Profiling

population displacement and resettlement Asylum and Human Rights Expedited Removal Female Genital Mutilation and Asylum Iraq War and Population Displacement Refugees Statelessness

reforms and laws Congressional Reform Legislation Immigration Law and Exclusion Guest Worker Programs Legalization Programs Political Perspectives Open Border Initiative September 11: Policies of Immigrant Exclusion State Laws and Immigration Sanctuary Policy

social costs and benefits Financial Costs and Contributions Education Costs Health and Fiscal Costs Social Security and Baby Boomers Taxation Welfare Costs

social demography Population Trends New Asian Immigration Gender and Family Formation Ethnicity Across Three Generations Race and Ethnic Population Trends Residential Segregation Undocumented Immigration Policy and Trends

social issues Crime Domestic Violence and Victim Rights Drug Trafficking

xi

xii

| Guide to Related Topics

Gender and Family Formation Organized Crime Residential Segregation Neighborhood Social Control, Culture, and Crime Prevention Social Mobility

stereotyping Attitudes Toward Undocumented Immigration Contact and Immigrant Attitude Formation Diversity, Racism, and Xenophobia Hate Crimes Hispanic Migrants in Children’s Literature Media Representation Nativism and Terrorism Scapegoating of Arab and Muslim Americans Vigilante Groups

terrorism Anti-Terrorism Policy and Immigrant Communities Electronic Eavesdropping Nativism and Terrorism 9/11 Commission Recommendations Port Security Symbolic Security Terrorism and National Security USA PATRIOT Act U.S.-VISIT

u.s.-mexico border Border Patrol, Bureaucracy, and Expansion Border Deterrence Strategy Border Fence Border Patrol and Human Rights Violations Migrant Deaths Militarization of the U.S.-Mexico Border National Guard and Border Control U.S.-Mexico Border Violence Vigilante Groups

visas Identification Card Immigration System International Students in Higher Education Temporary Workers U.S.-VISIT

SERIES FOREWORD Students, teachers, and librarians frequently need resources for researching the hot-button issues of contemporary society. Whether for term papers, debates, current-events classes, or to just keep informed, library users need balanced, in-depth tools to serve as a launching pad for obtaining a thorough understanding of all sides of those debates that continue to provoke, anger, challenge, and divide us all. The sets in Greenwood’s Battleground series are just such a resource. Each Battleground set focuses on one broad area of culture in which the debates and conflicts continue to be fast and furious—for example, religion, sports, popular culture, sexuality and gender, science and technology. Each volume comprises dozens of entries on the most timely and far-reaching controversial topics, such as abortion, capital punishment, drugs, ecology, the economy, immigration, and politics. The entries—all written by scholars with a deep understanding of the issues—provide readers with a nonbiased assessment of these topics. What are the main points of contention? Who holds each position? What are the underlying, unspoken concerns of each side of the debate? What might the future hold? The result is a balanced, thoughtful reference resource that will not only provide students with a solid foundation for understanding the issues, but will challenge them to think more deeply about their own beliefs. In addition to an in-depth analysis of these issues, sets include sidebars on important events or people that help enliven the discussion, and each entry includes a list of “Further Reading” that help readers find the next step in their research. At the end of volume 2, the readers will find a comprehensive Bibliography and Index.

xiii

This page intentionally left blank

INTRODUCTION Walking down the streets of the nation’s largest cities is visually stimulating. You may see people wearing ethnic clothing, such as a Sikh wearing a turban, or listen to people speaking many languages. New York City is at the cutting edge of new immigration and has one of the nation’s largest new immigrant populations, which includes enclaves that range from Mexican New York to Chinatown. While New York celebrates its diversity, it is simultaneously a center of the global economy and the site of the former World Trade Center, which was destroyed on September 11, 2001, in part because it was a symbol of American power. September 11 is the tragedy that marks the first defining moment for the United States in the twenty first century, just as the Japanese attack on Pearl Harbor was a defining moment for the United States in the mid-twentieth century. We will never be the same. New York is one site in America that is a source of contradiction. As one of the nation’s most popular destinations for new immigrants, it is more ethnically diverse and has defended its newcomer population with a sanctuary policy. Because of this sanctuary policy, the New York City police and social service professionals do not ask about a person’s legal status upon employment. New York City has been a refuge for both legal and undocumented immigrants. Undocumented immigrants are the people you have heard about in the news. They are mis-identified as “illegals,” a very nonspecific term (which will be discussed in detail later in this chapter), or referred to as “illegal immigrants.” New York City protects them and has continued to do so after September 11. At the same time, on the U.S.-Mexico border, civilian militias hunt and try to capture them. On this border between the United States and Mexico, the federal government is building a wall at great expense. I live on the U.S.-Mexico border in a city on the

xv

xvi

| Introduction

Rio Grande, and I have seen men, women, and children crossing the river to try to enter the United States without paperwork. After the wall is built, I will no longer be able to see the river and its natural beauty. I am also aware that people will continue efforts to enter using more dangerous methods, such as taking a route through the desert where they may die of dehydration and or heat exposure. In referring to the entries in Battleground: Immigration, I encourage you to view them all as social conflicts, some of which have led to actual wars. Since September 11, the battlegrounds that engage the issue of the new immigration have been changed by the War on Terror. Although there have been no new attacks in the United States, there is a ferocity and a desperation in the debate about immigration that has divided a nation. Some of the debates, such as whether undocumented people who are established residents should be given a path to legalization, have been a source of dispute since the late twentieth century. Another debate surrounds the displaced populations of potential refugees from Afghanistan and Iraq, who are waiting in camps to see if other nations will accept them as immigrants., In addition, asylum seekers from these war zones and many other nations travel on their own and present themselves at a U.S. port of entry, where they must establish a “credible fear of persecution” to be given entry on humanitarian grounds. Even small, rural communities have become battlegrounds in the controversy over the legality of some of the new immigrants. Immigration and Customs Enforcement has conducted raids on meat processing plants, and arrested immigrant workers who presented fraudulent or stolen documents to get jobs. You may have seen pictures of these immigrants in the media. They are dressed in orange prison suits, and their hands and feet are shackled together as they are marched into an immigration court or taken to detention to serve time while awaiting deportation. As a part of media coverage, you may have viewed, listened to, or read about frightened children whose parents were taken away in those raids and never came to pick them up from school or daycare. Do you speak a language other than English? Did you learn it at home or in school? If you do, you have entered another battleground. Many Americans speak only English and react strangely when they hear people speaking another language. I live in a community where many people are bilingual and some people speak only Spanish. I know of English speakers who believe that everyone should speak English and fear that anyone who is speaking Spanish may be talking about them in a rude manner. What is your degree of personal contact with new immigrants? Have you gone to high school or college with them, or is your contact filtered through the media? If the way you have learned about immigrants is through the media,— especially through tiny one or two sentence statements called “sound bites,”— this may have impacted your thoughts on the issue unfairly because you haven’t gotten enough information to make an accurate or fair assessment of the situation. After all, if you were explaining yourself in relation to a controversial issue, would you want to limit yourself to two sentences—or would you rather have the opportunity to explain your views at length? Do you think that you could communicate complex meaning in a sound bite?

Introduction

IMMIGRANT STATUS AND TERMINOLOGY Examining an issue is a process that engages you in critical thinking. Regarding immigration, there are more than two sides to an argument. One cannot be “for” or “against” immigrants. First, you have to define what type of immigrant you are talking about. Legal? Naturalized? Undocumented? You may not be aware of this, but if you are speaking about undocumented immigrants, the term you use to describe them may imply that you support one side of the argument or the other. To many, the terms “illegals” and “illegal alien” are considered to be dehumanizing. Historically, “alien” has been a term used by the government to describe noncitizens. Later, this word came to refer to people from outer space. When the Supreme Court decided in the case of Plyler v. Doe that so-called “alien” children who had entered the United States without paperwork were entitled to a public education, a political cartoonist drew E.T. the Extra-Terrestrial receiving the right to attend school from the judges. Afterward, the federal government began to remove the word “alien” from its legal vocabulary. Currently, the federal government uses the term “unauthorized immigrant” to refer to someone who entered without inspection, and calls immigrants with processed paperwork “legal permanent residents.” In these volumes, I have chosen to refer to people who enter the United States without inspection as undocumented as opposed to “illegal.” This is a term commonly chosen in academia by those who want to remain neutral on the subject, or by those who choose to advocate on behalf of immigrants. Many people feel that the term “illegal immigrant” shows a bias against immigrants because those in favor of deporting unauthorized people and increasing enforcement at the nation’s borders consistently use this term. For example, Lou Dobbs on CNN and Bill O’Reilly on Fox News consistently use the terms “illegals” and “illegal immigrants,” and it is understood that they are outspoken advocates of restricting immigration to the United States. Thus, although the term “illegal immigrant” is technically accurate, it’s a term that many choose to avoid because it has been adopted so heavily by some of the nation’s most vocal (and sometimes outright racist) opponents of the rights of undocumented workers and their families). On the other hand, the term “undocumented immigrant” is consistently used by both scholars and proimmigrant advocates. However, even among people who reject the term “illegals,” terminological choices are controversial. In taking a neutral position while considering opposing viewpoints, you can choose between “undocumented immigrant” or “unauthorized immigrant,” terms that carry the baggage of having been invented by the federal bureaucracy. If one simply refers to “immigrants,” this implies neutrality, but fails to offer a useful way of distinguishing between immigrants who are documented and those who are not. On a battleground, you are typically labeled as being on one side or the other unless you find a neutral symbol, like the Red Cross, a symbol during a war. In summary, it’s difficult to choose a purely neutral term to discuss immigrants who have entered the United States in violation of immigration law—but the most neutral way to refer to this group of people is probably by using the term “undocumented immigrants.”

| xvii

xviii

|

Introduction

BATTLEGROUND DEBATES The topics in these battleground volumes all have a history that has carried into and shaped the present while presenting options for the future. My choice of topics that were selected, written, and edited were based on current controversies. To understand why there is conflict over how to deal with immigration, it is necessary to look at the entire picture, including the central ideas and the courses of action in dispute, and the full range of federal, state, and local conflicts and accommodations that are in progress. Certain people and their ideas are central in these battles, and if these battles are ever to be resolved, it is important to understand what the positive and negative consequences may be for the “winning” or “losing” strategy. Many of the entries present opposing viewpoints on the impact of new immigration on the United States. The news media often quickly present one side of an issue, or quick snippets of a debate, and this is insufficient. As a result, unless you seek out more sophisticated debates on television, the Internet, or elsewhere, you may not have access to enough information and arguments for you make up your own mind accurately. Many of the entries in this book separate “pro” and “con” arguments. These are not intended to lead you to think first one way and then the other; rather, these have been created with the hopes that you will compare and contrast reasons and evidence. Other entries do not separate opposing viewpoints, and consider both sides of the issue at the same time. This method may appear to be less neutral, but I have tried to edit this volume so that there ia a balanced presentation of points and the central issue remains foremost and you can always compare and contrast viewpoints regardless of the style in which they are presented. Finally, you should understand that certain entries offer information on a single perspective in order to broaden your knowledge of the argument. Therefore, information needs to be compared and contrasted across a range of entries in the book in order for you to reach a comparison of opposing viewpoints through the examination of related topics. Throughout these volumes, you should recognize that the opposing viewpoints all connect to particular types of solutions regarding issues such as legalization, forcible removal, increasing the number of legal immigrants to decrease undocumented immigration, and intensified border enforcement. These solutions all have global implications and will impact on the degree of respect that the United States receives from the international community. There is a desperate need to alleviate human suffering, and the debates represent different opinions and choices that may lead to both victories and devastating losses. At the start of the twenty first century, the global population is increasing, and all nations are becoming economically interconnected by the process of globalization. The United States cannot achieve a “solution” to immigration that does not take into account its ties to other nations. In the battles that are being fought or debated, we need to think more broadly than in terms of winners and losers. If the United States were to isolate itself and end immigration—the most drastic solution—the price would be more than just the lost hopes and opportunities of

Introduction

people from other nations. By doing so, the United States would lose out on the social dynamic that created its own mainstream culture. Whether we’re talking about an Iraqi child who dies of malnutrition related disease in an unheated apartment in Jordan as he awaits the opportunity to come to the United States, or an undocumented parent who is separated from her children and deported, it is clear that the battle has devolved to the point where some choices produce only losers. To “win” certain battles can bring a degree of harm that denies common humanity. The Battleground: Immigration authors who were invited to contribute to this project include academicians of high repute, colleagues, and graduate students working on their doctorate or who have completed their masters. They were asked to write about topics in a manner that students and general readers could relate to while avoiding “academic speak”—a jargon that is not widely shared. Simultaneously, the other authors and I have introduced the social ideas and terminology necessary for understanding an issue, even if it involves defining governmental or media terms. Each entry is a door that you can open to explore a social issue, and we hope that you will not stop there. The library is one stopping point on a world that is connected by the Internet. Many college libraries have access to online databases, which you can use to search both social science journals and popular media sources for information on a topic you are exploring. Many state and community colleges will allow you access to this world of information on computers in their libraries, and many are developing online access to these databases from home Internet connections. We hope you will use this opportunity to conduct your own investigation and resolve your thoughts about these issues. Because there are so many controversies that relate to the topic of immigration, it is necessary to consider how topic choices were made. This two-volume set is limited to 101 topics, and there are yet others we could have included. The topics we chose to cover primarily are debates that have been introduced in Congress but that remain unresolved. We also chose to focus on debates where there are opposing positions and concerns among members of immigration restriction groups, members of proimmigration advocacy groups and ethnic advocacy organizations, and the international community as a whole. UNEXPECTED CONSEQUENCES OF IMMIGRATION POLICY Almost every decision that the Congress has made since the new immigration began in 1965 has had unintended social consequences. For example, the 1965 Immigration and Nationality Act (INA) removed restrictions on the national origins of immigrants and raised the number of people who could enter legally. Politicians expected a resurgence of European immigration, which had been the case historically. Instead, the new immigration is largely from Mexico, Latin American and the Caribbean, Asia, and is starting to come from Africa. The size, cultural diversity, and racial-ethnic backgrounds of the sending nations has revolutionized a society that thinks of itself as being primarily of European descent with American Indian, African American, Mexican American,

|

xix

xx

|

Introduction

Chinese, and Japanese minorities. This diversification of the population, which has reduced the degree of social homogeneity (similarity) of the population, has resulted in challenges for schools and other institutions previously unaccustomed to working with a high degree of language diversity. Cultural sensitivity training, multiple language voting ballots, and other initiatives have expanded immigrant access to education, social services,and the constitutional right of naturalized citizens to vote—at least to some degree. However, the nation’s institutions have not been able to fully cope with the size and multiple cultural backgrounds of America’s newest immigrants. Historically, hostile attitudes towards immigrants have been common in the United States, which has led to attempts to expel or restrict certain immigrant groups. This includes the Alien Exclusion Act of 1882, which limited Chinese immigration, and the Johnson Reed Act of 1924, which attempted to exclude Southern and Eastern European groups, such as Italians. Thus, it is not surprising that a wide range of immigrant restriction organizations such as the Federation for Immigration Reform (FAIR) have developed now, along with new immigration think tanks, such as the Center for Immigration Studies (CIS). While ethnic associations have in the past been very helpful to immigrants, immigrant ethnic groups have formed proimmigration advocacy groups today. Their efforts are often in conjunction with groups such as the National Immigration Forum, an association with a board of directors comprised of lawyers who take legal action on behalf of immigrants. The Migration Policy Institute represents university scholars’ research, which is relevant to forming viewpoints on the debates. The dispute between immigration restriction organizations and pro-immigration advocacy groups is hot and heavy, tempered by the contributing statements of nativistic White Supremacist groups and such ethnic organizations as the National Council of La Raza and the Mexican American Legal Defense Fund. The United States had already become an ethnically complex nation with a racial color line before the Civil Rights movement of the 1960s, and the INA of 1965 opened the nation to further cultural and racial-ethnic diversification. Complicating the matter, many corporations entered a process of economic restructuring in which manufacturing assembly work was outsourced to cheaper labor overseas—which meant more competition for manufacturing jobs, and growing hostility towards undocumented workers and other immigrants taking these jobs. Industries that remained situated in the United States, such as agriculture and its affiliated vegetable and meat processing plants, began to hire undocumented workers. Some of these workers remained as immigrants, while others engaged in a cyclical process of working in the U.S. and then returning home to countries like Mexico to visit their families. This legally and temporally differentiated immigrant and migrant population grew in size and generated controversy, resulting in the Immigration Reform and Control Act of 1986 (IRCA). IRCA provided amnesty for undocumented immigrants who could prove residency in the country prior to January 1, 1982—a procedure that was difficult because these workers had tried to fade into the background because they had no legal status. Simultaneously, employers were involuntarily recruited into the process of immigration enforcement because they were required to verify that their

Introduction

workers were legal, and they were subject to criminal and civil sanctions if the workers were not. A major loophole in IRCA was that employers did not have to verify worker documentation. Although some corporations and businesses were given civil fines under IRCA provisions, employer sanctions were enforced with relative infrequency. Businesses continued the practice of hiring undocumented workers, who were often cyclical migrants, based on a weak and compromised process of identification verification. This was an unexpected consequence of IRCA. As undocumented immigration increased, the process of legal immigration and visitation grew more complex. The Immigration and Naturalization Service, now the Bureau of Immigration and Citizenship Services in the Department of Homeland Security, has developed 24 major categories of visas and 70 subcategories for visitation, temporary, or permanent entry. Certain of these categories are available for refugees coming from camps abroad, or for asylum seekers who present themselves at a port of entry and seek to establish a “credible fear of persecution.” After the Vietnam War, the United States permitted the entry of hundreds of thousands of Vietnamese and other Southeast Asian refugees, such as the Hmong from Laos, and this greatly increased immigrant diversity. Simultaneously, U.S. foreign policy used refugee status as a tool for admitting individuals from Communist countries, permitting the entrance of Cubans after the Cuban Revolution in 1961 and the Mariel Boatlift in the early 1980s. Once again, cultural diversity was on the increase, and the U.S. offered generous resettlement assistance to these populations. Under pressure, the bureaucracy of the immigration system proved unable to process the volume of immigrants seeking entrance under the quota systems. As a result, many awaiting admission from countries like Mexico, China, and India became subject to backlogs extending up to 16 years, while asylum seekers were released into the general population pending court dates—for which many did not appear. The problem of economically motivated immigrants claiming asylum fraudulently and becoming undocumented immigrants was resolved by 1990s legislation, but some legitimate entrants may be denied by the decisionmaking process that was set up and one result is that many asylum applicants spend months to years in detention appealing their cases. The problems of asylum seekers waiting in detention, a backlog of legal applications for entrance, and undocumented immigrants using fraudulent documents convinced much of the public that the immigration system was “broken.” After September 11, U.S. immigration policy began a series of sudden, relatively unplanned changes that were aligned with the War on Terror. Although all 19 of the September 11 hijackers appear to have entered with either valid or fraudulent visas on a temporary basis, the catastrophe directed attention both abroad and towards the immigration system. The reaction of the United States occurred on a massive scale, in which the United States, along with its North Atlantic Treaty Organization (NATO) allies, went to war in Afghanistan against both the Taliban and the group it was harboring, al Qaeda. Later, operating under the false assumption that Iraq had weapons of mass destruction, the United States and Great Britain, with extremely limited international support, went to war against Iraq.

|

xxi

xxii

|

Introduction

Back in the “homeland,” the 9/11 Commission investigation found problems in intelligence sharing between federal agencies, and recommended that the Department of Homeland Security be created, uniting the FBI, CIA and, among other groups, the Immigration and Naturalization Service (INS). The INS was divided into Citizenship and Immigration Services (CIS), Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). CIS is responsible for the processing of applications for the legal immigration system. ICE investigates immigration and customs violations, directing individuals into detention or the criminal justice system, and handling deportation. Created in 2002, the new system is still on trial, and it has inherited the legacy of legal entry backlogs and an increasing undocumented population. Because of periodic increases in the undocumented population, certain politicians, immigration restriction organizations, and the public have emphasized U.S.-Mexico border enforcement as a strategy for controlling undocumented immigration. The Border Patrol has experienced repeated increases in the number of personnel employed and has been given access to high technology. A relatively recent development was the building of a fence in San Diego, which has led to the controversial idea of fencing in the entire length of the U.S.-Mexico border. As a result of upgrades in the Border Patrol, undocumented migrants have been forced to take greater risks in entering. Unable to use crossings near urban areas that are subject to intense enforcement, they have chosen to cross in remote regions of the Southwest, including the Arizona desert, where high temperatures cause dehydration, heat exposure, and an increased migrant death rate. Some would-be entrants pay ever higher fees to smugglers to try to cross during the current period of intensified enforcement, and tragically, smugglers have at times left people to die. As a result, humanitarian concerns have been raised by proimmigration advocacy and church groups, who have sought to aid these entrants by, for example, positioning water stations in the desert. Simultaneously, citizen militias such as the Minutemen have developed in order, in their own words, to “assist the Border Patrol” in deterring unauthorized migrants. Intensified U.S.-Mexico border enforcement has placed such strain on the pattern of cyclical migration that once across, migrants who might have chosen to return are choosing to stay as undocumented immigrants. The unintended social consequence of policing the border has been a dramatic increase in these kinds of decisions. The War on Terror is the first action related to immigration issues to impact U.S. citizens dramatically. The 2002 PATRIOT Act created a series of surveillance initiatives that reduced the privacy of both citizens and noncitizens, including electronic eavesdropping and review of financial transactions. While American citizens have been reluctant to accept the idea of a national identification card (unlike members of the European Union), the REAL ID Act of 2005 imposed an obligation on the states to make driver’s licenses into identification cards. Many states have refused, contending that it is a federal initiative and that they should not have to pay for it. An expected consequence is that citizens and noncitizens from states that do not comply will be unable to board an airplane without a passport. An unexpected consequence is that the proimmigrant advocacy

Introduction

organizations are now taking steps on behalf of both immigrants and citizens, as constitutional rights have been undermined. The September 11 terrorist catastrophe produced many quickly realized and relatively un-debated actions that have had a variety of consequences for immigrants of legal and undocumented status and citizens. You are entering an era in which many of the battlegrounds have been shaped by the unintended consequences of September 11 and trends toward globalization that began in the 1970s. Clearly, the U.S. economy has been struggling in recent years. The United States has gone from having an economic surplus prior to 2000 to, as of 2008, a nine trillion dollar debt. The economy has become bifurcated between highpaying elite employment and low-paying service work, while the middle class has shrunken in size with each decade. A housing bubble was followed by a credit crisis that has required federal and international intervention. The economic strain is likely to increase focus on the role of immigrants in U.S. society. As you make educational and employment choices, it should be with the knowledge of how various types of immigration benefit or hurt different and fragile economic sectors. Simultaneously, you should be aware that corporations have taken a major interest in maintaining low cost, less educated, and unskilled immigrant labor, while at the same time using the student visa and temporary work visa system to recruit highly skilled labor from U.S. universities in mathematics and technological subjects that native born students avoid. Many immigration battlegrounds concern the economics of what legal and undocumented immigrants will contribute to our society and what they might cost citizen taxpayers. Many Americans fear that their wages will be undercut, or that they will lose their jobs in a manner similar to the working class manufacturing laborers in the 1960s and 1970s. The debate is more complicated than that because certain higher paid factory jobs were moved outside the country, such as many types of auto assembly operations, while other factory work, such as the garment industry, survived, utilizing inexpensive immigrant workers. Understanding this battleground involves understanding the perspectives of employers, native-born citizens, and immigrants. Employers are not constrained to think only in terms of the national interest: they think globally. At the same time, the degree of global inequality intensifies the economic complexity of what Alan Greenspan called the “age of turbulence.” In understanding the major points of the various perspectives taken in these debates, you will be contrasting a battleground in which nationalism and national sovereignty are concerns that are in competition with economic globalization and transnational corporations. While we have a Constitution and a system of law in the United States, the world’s nations have not yet evolved a fully accepted international system of law to give direction for solving global problems. The United Nations and similar organizations do have protocols and human rights conventions, but the United States, as a powerful nation, has chosen not to sign some of them. The United States has also violated certain international rulings, such as the convention against torture in dealing with prisoners that they have labeled “enemy combatants” in the War on Terror.

| xxiii

xxiv

|

Introduction

We may expect our politicians to solve these issues, such as whether undocumented immigrants should be legalized, but part of the problem is that the immigration battleground has so many related and unresolved issues. For example, is it fair to legalize immigrants who entered without documents while there are backlogs of legal admissions applicants from their own country, such as in the case of Mexico? Perhaps that it why recent failed legislative proposals are called “comprehensive” immigration reform. Simultaneously, stepping into this battleground will bring the realization that certain participants in this debate play by their own rules. There would not be an undocumented immigrant population if employers made a serious attempt to validate the identification of their employees. At the same time, the federal government has not made a significant attempt to ensure that this validation happens. This is demonstrated by the amount of money collected for Social Security under invalid numbers and deposited into a special government account. In 2007, intense public criticism has resulted in ICE undertaking highly publicized workplace raids—resulting in humanitarian concern about separating parents from their children. These are the kinds of issues that cross the dividing line of the battleground, uniting employers and immigrant advocacy groups with concerned citizens. This reference set does not and cannot cover every significant immigration topic, particularly as issues change, in some instances, as often as weekly. The choice of topics reflects the topical controversies, issues, problems and proposed solutions that the press is talking about in the media and on the Internet. I do not claim that this volume is completely neutral. The English language has become so full of “buzz” that the phenomenon has been labeled “spin,” and much of the sound bites coming from all sides betray the flaws and irrationality implicit in the language we use. I think that critical immigration battlegrounds, and their constituent ideas, concepts, perspectives and proposed solutions are elaborated in this reference set. These are the controversies that will change our society for better or for worse. Hopefully, you will compare and contrast viewpoints and options and come up with ideas about solutions that are better than ideas proposed in the past. I hope you can help to transform a social problem into a human opportunity. If there is something that people from all sides of this debate agree on, it is that the interests of a nation often conflict with lofty humanitarian ideals. The immigration battleground has, historically, seen foreigners go down in defeat, but the War on Terror is the first occasion in which citizens lost certain constitutional rights. Many perceive this to be a result of September 11, but the entries in this book will show that the trend towards the reduction in rights for immigrants preceded September 11, and that only the negative impact on citizens is new. These volumes are a guide to critical thought in the arena of immigration policy and human rights, and the entries demonstrate the rights that people can gain or lose—simply based on where they were born and on historical events. References: Barkan, Elliot R., Hasia Diner and Alan M. Kraut. From Arrival to Incorporation: Migrants to the U.S. in a Global Era. New York: New York University Press, 2008;

Introduction Brotherton, David C. and Philip Kretsedemas. Keeping Out the Other: A Critical Introduction to Immigration Enforcement Today. New York: New York University Press, 2008; Chiswick, Barry R., ed., Immigration: Trends, Prospects and Consequences for the United States. San Diego, CA: Elsevier JAI Press, 2007; Daniels, Roger. Coming to America: A History of Immigration and Ethnicity in American Life. 2nd edition. New York: Harper Collins, 2002; Delaet, Debra L. U.S. Immigration Policy in an Age of Rights. Westport, CT: Praeger, 2002; Hanes, David W. and Karen E. Roseblum, eds. Illegal Immigration in America: A Reference Handbook. Westport, CT: Greenwood Press, 1999; Johnson, Kevin. Opening the Floodgates: Why America Needs to Rethink its Borders and Immigration Law. New York: New York University Press, 2007; Payan, Tony. The Three U.S.-Mexico Border Wars: Drugs, Immigration and Homeland Security. Westport, CT: Praeger Security International, 2006; Portes, Alejandro and Ruben Rumbaut. Immigrant America: A Portrait. Third Edition. Berkeley, CA: University of California Press, 2006; Rumbaut, Ruben and Alejandro Portes. Ethnicities: Children of Immigrants in America. Berkeley: University of California Press, 2006; Ueda, Reed. A Companion to American Immigration. New York: Blackwell, 2006.

Judith Ann Warner

| xxv

This page intentionally left blank

A ANTI-TERRORISM POLICY AND IMMIGRANT COMMUNITIES Some policy analysts have called for federal law enforcement to work in collaboration with immigrant communities on a range of issues, including counterterrorism. Among other things, this means building trust with these communities, linking counterterrorism to projects that also benefit immigrant communities, and urging community leaders to issue statements condemning terrorism. From this perspective, it is important to work collaboratively with immigrant organizations because they have the ability to influence public opinion in immigrant communities, including those segments that might sympathize with the rhetoric of terrorist organizations. According to other analysts, however, some immigrant organizations are suspicious precisely because of their social proximity to extremist elements; these analysts claim that cooperation with these organizations is tantamount to aiding and abetting terrorist sympathizers. This debate raises a number of questions about the role immigrant communities should play in counterterrorism investigations. COUNTERTERRORISM BACKGROUND: THE ROLE OF COOPERATION There is an established body of thought in counterterrorism literature that views cooperation with immigrant communities as an integral feature of a long-term, counterterrorism strategy. The main goal of cooperation is to dismantle the practices that allow terrorist organizations to gain new recruits. The U.S. State Department has described these recruiting practices as the “terrorist

1

2

| Anti-Terrorism Policy and Immigrant Communities

conveyer belt” whereby “terrorists seek to manipulate grievances . . . of aggrieved populations, convert them to extremist viewpoints, and turn them, by stages, into sympathizers, supporters, and ultimately, members of terrorist networks.” To counter this process, State Department analysts have recommended strategies that treat immigrant populations, and especially immigrant youths, “not as a source of threat to be defended against, but as a target of enemy subversion to be protected and supported” (U.S. Department of State 2006). A similar approach has been endorsed by some independent analysts who have argued that counterterrorism operations would be better served by building relations of trust with immigrant communities instead of treating these communities with blanket suspicion. For example, individuals who come forward should not be made to feel that they will be prosecuted and possibly even imprisoned because they have information that is relevant to a counterterrorism investigation. The government should also demonstrate that it is concerned about protecting immigrant rights and should prosecute individuals and organizations that victimize immigrants. It bears noting that these techniques are a standard feature of law enforcement practice and have been used, on occasion, by the immigration system. One example is the 1957 Chinese Confession program that was used by the Immigration and Naturalization Service to gather information about Chinese nationals who had entered the United States with false documents. The confession program gave Chinese nationals (some of whom were undocumented themselves) immunity from prosecution in exchange for information about other unauthorized immigrants. It also proved to be much more successful than earlier efforts that aggressively prosecuted Chinese-owned business and community organizations suspected of harboring unauthorized immigrants. POST9/11 SURVEILLANCE STRATEGIES In contrast to these calls for cooperation, many counterterrorism operations have taken a more aggressive approach. Post-9/11 surveillance strategies such as the Special Registration program and the Voluntary Interview program explicitly targeted Arab-Muslim nationals living in the United States. Instead of working collaboratively with Arab-Muslim organizations to encourage individuals to share information, these programs implemented mandatory reporting procedures for all Arab-Muslim males and made unilateral decisions about which individuals should be singled out for intensive interviewing. These efforts were accompanied by legal developments that allowed federal agents to arraign terrorist suspects in closed-door hearings and on the basis of evidence that was not required to be disclosed to the suspect or public at large. The investigation of Iyad Abuhajjaj provides a recent example of the controversies surrounding these practices. In October 2007 Abuhajjaj was released from federal custody after undergoing over seven months of interrogation. The specific reasons for his detainment were never disclosed, but his attorneys believe that it was largely due to information collected about his life prior to coming to the United States. Most of the suspicion appeared to stem from

Anti-Terrorism Policy and Immigrant Communities | 3

Abuhajjaj’s run-ins with Israeli authorities while growing up in Palestine and the fact that Palestinian terrorist organizations had attempted to kidnap his siblings. These incidents do not provide proof that Abuhajjaj is a terrorist operative, but they do indicate that Abuhajjaj—and close family members—have likely had contact with individuals that the U.S. government deems to be members of terrorist organizations. For the federal prosecutors trying the case, this information was enough to judge Abuhajjaj deportable in the interest of national security. For counterterrorist experts that favor a “cooperative” approach, however, Abuhajjaj appears to be precisely the sort of individual that should be given incentives to work with federal agents instead of being threatened with deportation. THE COUNCIL ON AMERICANISLAMIC RELATIONS The controversies surrounding the Council on American-Islamic Relations (CAIR) provide another window into the ongoing debate over the role of immigrant communities in counterterrorism investigations. With active chapters in almost every state and major urban area, CAIR is the largest Arab-Muslim civil rights and advocacy organization in the United States. It has received commendations for its outreach work from a number of prominent politicians, including former President George W. Bush (whose candidacy CAIR supported in 2000). CAIR has also produced several official statements condemning terrorism as well as helping to coordinate a fatwa (an Islamic religious ruling) by Muslim clerics in the United States that denounced terrorism as an act not in keeping with traditional Muslim teachings. However, CAIR has also come under criticism for the public statements and political backgrounds of some of its more prominent members. Critics claim that the founders of CAIR were also members of the terrorist organization Hamas and that CAIR has not been firm enough in its condemnations of terrorist acts committed by radical Islamic organizations. These criticisms were given more weight by a federal case that listed CAIR as an unindicted co-conspirator, along with 300 other Muslim organizations, in a case against a foundation accused of fundraising for Hamas. CAIR refutes these allegations and notes that it has not been charged with terrorism or with aiding a terrorist organization. A New York Times article also noted that government officials in Washington were unaware of any criminal investigations against CAIR and quoted a former FBI official and counterterrorism director as saying, “Of all the groups, there is probably more suspicion about CAIR, but when you ask people for cold hard facts, you get blank stares” (MacFarquhar March 14, 2007). Nevertheless, criticism of CAIR has continued to mount. Even groups, like the Anti-Defamation League, that have favored a cooperative approach toward criminal and immigration enforcement, have expressed criticism of CAIR. The case against CAIR would also appear, however, to question the founding premise of a cooperative approach toward counterterrorism—which is that immigrant organizations should be treated as partners in counterrorism operations not as “likely suspects.” In this regard, it is ironic that the qualities that make

4

| Anti-Terrorism Policy and Immigrant Communities

CAIR suspicious to its critics are the same qualities that would make CAIR a valuable partner for those who favor a cooperative approach. The disparate views of supporters and critics of CAIR represent very different approaches to counterterrorism in general. Two common perspectives are summarized below. ARGUMENTS AGAINST INVOLVING IMMIGRANT COMMUNITIES IN COUNTERTERRORISM OPERATIONS Those opposed to involving immigrant communities in counterterrorism operations believe it is best to use a so-called wide-net approach in identifying terrorist suspects. Any individual or organization that appears to have had any kind of interaction with a terrorist operative or a terrorist sympathizer should be treated as a suspect. The primary goal of this approach is to achieve maximum security by blocking all possible means by which a terrorist organization might seek to gain a foothold in the United States, whether it involves the creation of sleeper cells, fundraising, or propagating an ideology or political perspective that directly or indirectly supports terrorist objectives. Based on this philosophy, the government’s interactions with immigrant communities should be of a strictly unilateral nature. Counterterrorism investigators should interview and screen immigrants as needed. Federal agents should not worry about gaining trust or fostering good community relations, as this places the balance of power in the hands of immigrant communities. Subscribers to this philosophy believe that federal enforcement agencies that worry about catering to immigrants to gain their cooperation are sending the wrong signals and that a cooperative approach will only make extremist elements more brazen in their objectives. They believe cooperation makes it possible for moderate immigrant organizations to shield extremist segments from public scrutiny under the guise of maintaining good community relations. They argue that immigrant communities should feel obligated to assist counterterrorism investigations and that immigrant organizations should be put on notice that they will be closely scrutinized, especially if they move in circles that may contain radical or extremist elements. Proponents of this zero-tolerance approach argue that while it may make waves in the short term, in the long term it will be more effective in discouraging terrorist activity on U.S. soil. ARGUMENTS FOR INVOLVING IMMIGRANT COMMUNITIES IN COUNTERTERRORISM OPERATIONS Those who support incorporating immigrant communities as partners in counterterrorism operations take a very different approach. Although they acknowledge that there is a need for aggressive pursuit of terrorist organizations, they disagree with the wide-net approach described above. They believe that instead of discouraging terrorist operatives, this approach only alienates moderate immigrant organizations from the mainstream and creates a climate that actually works in favor of extremist elements. For example, some analysts have

Anti-Terrorism Policy and Immigrant Communities | 5

argued that the alienation of the London Muslim community from mainstream English life created a climate that fostered the home-grown terrorist attacks by Muslim youths that occurred in 2005. This alienation was dangerous, not only because it may have made frustrated youths more receptive to terrorist tactics but also because it inhibited other Muslims from coming forward with information that could have helped the government prevent the attacks. In contrast, the United States has not experienced these sorts of homegrown attacks because the Muslim community is more evenly integrated into all facets of U.S. life and because, over the long-run rather than in the immediate period after September 11, federal enforcement agencies have been very good at building trusting, long-term relationships with American Muslim community leaders and organizations. In the cooperative school of thought, the most effective counterterrorism strategies use alliances with moderate groups to encourage social integration while simultaneously weakening the influence of extremist elements. It is understood that moderate groups that are popular with immigrant communities may also have some extremists in their membership base (in a similar vein, the political bases of some conservative politicians probably contain a small minority of individuals who sympathize with the agenda of far-right militias and separatist groups that have been officially designated as domestic terrorist organizations by the federal government). Proponents of a cooperative approach argue that this is precisely what makes these organizations valuable as conduits of information about terrorist suspects and also acknowledge that it is important to be able to distinguish between moderate groups that operate in social and political networks that contain extremist elements and groups that actively support an extremist agenda. CONCLUSION If the recent criticism of the Council on American-Islamic Relations (CAIR) is any indication, the controversies surrounding immigrant organizations and counterterrorism operations are likely to become more intense in the coming years. For example, it appears that criticism of CAIR and other immigrant advocacy groups has been mounting steadily since the 9/11 terrorist attacks. Meanwhile, concerns about terrorism are being defined in increasingly broad terms. CAIR’s leadership has been criticized, not only for allegedly supporting terrorist organizations, but for participating in a conspiracy to turn the United States into a Muslim nation. It bears noting, however, that proselytizing for converts to Islam is not the same thing as terrorist violence, and the conflation of these two issues raises new questions about the meaning of national security. If the religion and culture of immigrant populations were to be defined as threats to national security, then a wide cross-section of immigrant organizations could be regarded as dangerous. Advocates of a more cooperative approach argue that this definition of dangerousness is one that treats moderates and extremists with the same measure of suspicion. As a result, it runs the risk of creating a selffulfilling prophecy by radicalizing moderates who have been labeled terrorist

6

| Asylum and Human Rights

sympathizers and producing forms of immigrant solidarity that are defined by their opposition to mainstream society. See also National Origin and Religion Profiling; Police Relations; Sanctuary Policy; Scapegoating of Arabs and Muslims; State Laws and Immigration; Terrorism and National Security References: Anti-Defamation League. “Council on American-Islamic Relations.” AntiDefamation League. August 10, 2007. http://www.adl.org/Israel/cair.asp; Catalanello, Rebecca, and Abbie Vansickle. “After seven Months, Man Has Freedom But Not Answers. Immigration Authorities Will Not Comment on His Case.” St. Petersburg Times, October 10, 2007; Chance, Matthew. “Britain’s Home-Grown Terrorists.” CNN. July 14, 2005. http://www.cnn.com/2005/WORLD/europe/07/14/homegrown.terror/; Chishti, Muzzafar, Doris Meissner, Demetrious Papademetriou, Jay Peterzell, Michael Wishnie, and Stephen Yale-Loehr. America’s Challenge: Domestic Security, Civil Liberties and National Unity after September 11. Migration Policy Institute. 2003. http://www.migrationpolicy. org/pubs/Americas_Challenges.pdf; Council on American-Islamic Relations (CAIR). “Persistent and Consistent Condemnation of Terrorism.” Council on American-Islamic Relations (CAIR). 2006. http://www.cair.com/Portals/0/CAIR%20on%20Terrorism.pdf; Freedland, Jonathan. “The Identity Vacuum: Britain Should Follow the US Approach to Citizenship, Which Emphasizes Not Only Diversity but the Ties That Bind.” The Guardian, August 3, 2005; Hudson, Audrey. “CAIR Concedes Membership Down.” Washington Times, August 22, 2007; Kaufman, Joe. “The CAIR-Terror Connection.” FrontPageMagazine.com. April 29, 2004. http://www.frontpagemag.com/Articles/Read. aspx?GUID={152579F0-B82B-4746–90A9-C34792AEC15F}; Leiken, Robert. Europe’s Mujahideen: Where Mass Immigration Meets Global Terrorism. Center for Immigration Studies. 2005. http://www.cis.org/articles/2005/back405.html; MacFarquhar, Neil. “Scrutiny Increases for a Group Advocating for Muslims in U.S.” New York Times, March 14, 2007; MacFarquhar, Neil. “Muslim Groups Oppose a List of ‘Co-Conspirators’. ” New York Times, August 16, 2007; Pipes, Daniel. “CAIR Backs Down from Anti-CAIR.” FrontPageMagazine.com. April 21, 2006. http://www.frontpagemag.com/Articles/Read. aspx?GUID={E10573A8–988C-44E4-A600-C650E59E2B14}; Rose, Alexander. “How Did Muslims Vote in 2000?” Middle East Quarterly 3, no. 3; U.S. Department of State. 2006. “Chapter 1: Strategic Assessment, Country Reports on Terrorism 2006.” http:// www.state.gov/s/ct/rls/crt/2006/82727.htm.

Philip A. Kretsedemas

ASYLUM AND HUMAN RIGHTS Concerns about national security and the integrity of U.S. borders have made it increasingly hard for asylum seekers to receive permanent admission to the United States. Currently, U.S. officials are asked to place asylum applicants arriving at air, land, or sea ports of entry into mandatory detention until their cases can be investigated. Case investigation is done by an overworked legal staff and applicants face long waiting periods. Rejected asylum seekers can choose to voluntarily return to their country of origin or remain in detention and apply for a new hearing of their case. For some asylum applicants this means anywhere from months to years before they decide to go home or receive temporary status and

Asylum and Human Rights | 7

the ability to live and, following an additional wait, work in the United States. This does not follow the UN’s asylum policy but despite negative international reaction, many countries are pursuing what is now called the “securitization of immigration.” Important questions about current U.S. asylum decisions include whether they are objective. These questions are based on statistics showing a wide discrepancy between asylum outcomes and whether the U.S. is no longer pursuing a politically defined agenda, as when Cubans were standardly admitted to discredit the Communist government of the island nation. Because securitization involves special procedures for individuals from terrorist-harboring nations, the United States appears to still retain political motivation for asylum decisions.

BACKGROUND Defining Asylum The term asylee is relatively new. Asylees are individuals who travel to the United States or other nation states on their own and apply for and receive a grant of asylum. In other words, these individuals do not enter the United States as refugees, members of a large, socially displaced group approved abroad for entry. Once they are in the United States, asylum seekers apply to the Bureau of Citizenship and Immigration Services (BCIS), formerly the Immigration and Naturalization Service (INS), for asylum. Asylee status acknowledges that an individual meets the definition of having a “credible fear of persecution” and allows him or her to remain in the United States. The difference between refugees and asylees is defined by where the application is filed: refugees file before entering the United States, but asylees file after they arrive. History of Asylum Asylum has a long history. In fact, the word asylum can be traced back to ancient Greece, where it described physical locations where criminals could not be beaten or abused. The problem recognized in ancient Greece has global significance today. The idea behind asylum is that when governments fail to protect people from persecution, individuals have the right to move to a country that will provide safety. People who seek to exercise the right to asylum are called asylum seekers. In 1951, the formal basis for exercising the right to asylum was established by an international treaty, the Geneva Convention Relating to the Status of Refugees. This treaty requires countries to grant refugee status to individuals who establish “a well-founded fear of persecution on grounds of race, religion, nationality, political opinions or membership of a particular social group.” Countries signing that Convention have an obligation to provide asylum to people fleeing persecution. However, in order to gain asylum, U.S. asylum seekers must

8

| Asylum and Human Rights

establish their case to an immigration officer prior to proving their case to immigration judges, or they will be subject to expedited removal. U.S. Asylum Law The Displaced Persons Act of 1948 created 220,000 extra spaces above the immigration quotas for European victims of war. Additional numbers of nonquota immigrants were permitted under the Refugee Relief Act of 1953. From 1951 to 1980, most refugees and asylees who came to the United States were from communist countries. During the Cold War, U.S. foreign policymakers took advantage of the vagueness of the terms “well-founded fear” in international law to define persecuted populations as those fleeing communist governments. The United States passed the Refugee Act in 1980 introducing national legal standards for refugee and asylum claims based on the definition of a refugee found in the Immigration and Nationality Act (INA). According to the INA Section 101a, p. 42, a refugee is defined as: “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country on which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, or membership in a particular social group, or political opinion.” More than 500,000 people seek protection each year. Changes in U.S. immigration laws have often been cited as the principal reason for the new immigration of recent years. However, while U.S. immigration law does influence migration decisions and the reception of newcomers, it cannot control historical forces or determine the size or source of migration. Human rights law provides the basis for asylum standards, but the exceptional or emergency nature of many population migrations often inhibits the application and observance of rules. Expansion of Asylum Claims The 1980 Refugee Act defined an asylum seeker as someone who is unwilling to return to his or her country due to a well-founded fear of persecution on account of his or her race, religion, nationality, membership in a particular social group, or political opinion. The courts have changed the reading of this law to clarify that persecution refers to persecution of the state and is not to include generalized violence. In addition, the courts have expanded the definition of the categories specifically protected by a grant of asylum in the United States. Under these conditions, individuals who claim to be fleeing China’s one-child policy qualify for asylum. The legal category identifying a “particular social group” as eligible for asylum has proven to be particularly useful. Court rulings have extended membership in the protected legal category “particular social group” to include battered women, homosexuals, children of abusive parents, women fleeing female genital mutilation, and persons with certain disabilities. One might argue, however, that battered women and children are not persecuted by

Asylum and Human Rights | 9

a nation-state. Still, many nation-states do not protect these battered women and children from the abuse they suffer in their home countries as the government does in the United States. Affirmative and Defensive Asylum Procedures There are two legal procedures for U.S. asylum applicants. Affirmative asylum procedures can be implemented by an individual who has lawfully entered the United States. To pursue this type of asylum, an asylum seeker must provide immigration form I-589, the asylum application, documentation of a credible fear of persecution, and an asylum interview. The Asylum Corps does not provide an interpreter, but an applicant may bring one. This process is nonadversarial, and the asylum seeker can present evidence of country conditions, affidavits, testimony, etc. The asylum officer then decides in favor of or rejects the case. If rejected, the case can be re-opened before an immigration judge. Applying for asylum before an immigration judge is a defensive process that is implemented when an applicant has his or her case referred by the asylum officer, is remanded by immigration officials after she or he is apprehended as undocumented or out-of-status due to visa expiration, or if an immigration officer accepts his or her case at a port of entry and does not subject them to expedited removal (immediate deportation). Seeking asylum before an immigration judge is an adversarial situation in which the Department of Homeland Security (DHS) acts to remove the individual unless his or her asylum claim is validated. DHS provides an attorney to act as prosecutor and makes interpreters available; an immigration judge from the Executive Office of Immigration Review (EOIR) hears the case. Asylum seekers have traditionally not been provided an attorney, which becomes a cultural and financial factor associated with losing cases. Lack of access to bilingual helpers and inability to afford a lawyer make navigating the U.S. asylum system difficult. Efforts are being made to establish pro bono attorney assistance. Expert witness testimony can be helpful in these cases but is seldom available. If a case is denied in immigration court, it can be taken to the Bureau of Immigration Appeals (BIA). Following a BIA rejection, a case can be appealed to the federal circuit court in the state where the immigration court was located. Political Asylees Historically, Cuban asylum seekers have been eligible for Office of Refugee Resettlement (ORR) assistance and services after satisfying certain conditions, which were not difficult to meet. The nearly automatic acceptance of Cubans into the United States as political refugees and asylees for 35 years clearly represented a contradiction between championing political goals and the internationally accepted humanitarian basis for admission. Political concerns have been predominant in U.S. refugee policy. Between 1959 and 1995, U.S. refugee/asylee policy toward Cubans was not based on humanitarian motives but instead defined by an anti-Communist political agenda. From the passage of the 1962 Migration

10

| Asylum and Human Rights

and Refugee Assistance Act until August 19, 1994, over one million Cubans received preference over refugees from other nations and were allowed into the United States through a so-called open door. Cuban asylees (recipients of asylum) were eligible for federal assistance, job training, and education. This highly inconsistent element within U.S. foreign policy provides insight into the tension between the national interest in combating Communism and international norms emphasizing help for persecuted individuals. Under the Refugee Act of 1980, the United States placed a yearly quota of 19,500 refugees from Cuba. The policy was intended to require a case-by-case review of Cuban refugee applications. Legally, only Cubans who could meet the standard of the Refugee Act would be granted refugee status after 1980. The consequences for Cuba of the U.S. refugee policy and economic sanctions were harsh. Prior to the 1959 Communist Revolution, the Cuban economy was highly dependent on U.S. markets, sending over 60 percent of its exports to the United States and receiving about 80 percent of its imports from the United States. Historically, Cuba had relied on the United States for technological development and financial credit for economic stability. The U.S. open-door policy for refugees/asylees and the economic blockade devastated the Cuban economy and initiated the Cuban alliance with the Soviet Union. A World in Turmoil A dilemma was created when Congress passed the 1980 Refugee Act; they apparently believed that no more than 5,000 aliens per year would enter the United States with potentially valid asylum claims. An aggressive approach was taken by the Reagan administration to discourage the flow of refugees seeking asylum. In addition to stopping Haitian vessels at sea with the Coast Guard, remote and harsh detention camps for asylum applicants were established to discourage entry and encourage voluntary deportation. Measures taken to delay asylum seekers will not stop efforts to flee persecution. As long as there is turmoil related to war or economic recessions or hardships in countries around the world, refugees and asylum seekers will continue to risk their lives to enter the United States or other countries and escape life-threatening social conditions. Social pressures to limit the entry of refugees or asylum seekers compete with, and sometimes are outweighed by, international policy and concern. Such pressures are frequently intensified by strongly voiced domestic sentiment supporting the admission of particular groups of refugees who appeal to the humanitarian or ethnic sensibilities of certain segments of the U.S. population. Asylum and Refugee Policy Change The diminished significance of Cuba as a political and security threat and rising social and political opposition within the United States to the 35-year contradiction in U.S. refugee and asylum admissions led to the closing of the open door. For many Cubans, the policy change eliminated the possibility of migration to the United States as an option if the economic or political conditions

Asylum and Human Rights | 11

became unbearable in Cuba. The policy change also eliminated the provision by which thousands of undocumented Cubans had traditionally entered the United States. The political bias in U.S. refugee policy is illustrated by the poor treatment of Haitian refugees. Haiti, the poorest country in the southern Hemisphere, was impoverished to an even greater degree by Hurricane Allen when it hit in the summer of 1980. Furthermore, the government’s crackdown on the press and the imprisonment of human-rights activists in late 1980 demonstrated again how deep the disregard for human rights was in Haiti. The government’s unwillingness to repatriate any of its nationals illegally residing in the Bahamas left some thirty thousand unwanted Haitians with no place to go—a condition called statelessness. The fact that Haitians are black may be one reason they were not granted refugee status despite the devastating conditions in Haiti. Confronting Political Bias in Asylum Policy During the 1980s, Civil War prevailed and military death squads were active in El Salvador and other Central American nations. The United States was involved in covert warfare against Nicaragua, which had adopted a socialist government. The United States sent advisors who were experts in internal guerilla warfare to Central American nations in an effort to halt the spread of Communism and political analysts and human rights groups believe that they had a connection to the death squads. Despite Central American governments’ persecution of groups believed to be involved with the rebels and U.S. involvement in this destabilized region, the United States refused to recognize that refugees and asylum seekers were fleeing the region. Central Americans applying for political asylum were routinely denied and classified as economic migrants. Prior to 1990, regulations for dealing with asylum claims, as detailed above, had not been established. Immigration officers and judges adjudicated cases without human-rights training, information on country conditions, or knowledge of the impact of psychological trauma. This situation, coupled with lawsuits such as Thornberg v. American Baptist Church prompted re-examination of the use of refugee and asylee status as a foreign policy tool. Validation of claims of national-origin discrimination resulted in the Nicaraguan Adjustment and Central American Relief Act (NACARA), the formation of the Asylum Officer Corps, and the development of contemporary features of the asylum process. Denying Asylum Asylum for specific groups or categories of individuals has been denied by the Supreme Court a number of times and for very different reasons. The controversial nature of asylum policy is illustrated by the number of cases the Supreme Court has accepted. Nonpolitical Criminal Acts. In 1999, in Immigration and Naturalization Service (INS) v. Aguirre-Aguirre the Supreme Court reversed a decision made by the Ninth Circuit Court of Appeals and revoked a Guatemalan citizen’s asylum. The

12

| Asylum and Human Rights

Supreme Court argued that Juan Anibal Aguirre-Aguirre, a Guatemalan citizen, was not eligible for asylum because of “nonpolitical criminal acts” he committed; Aguirre-Aguirre claimed the acts were political. Aguirre testified that, while protesting bus fares, he had thrown stones at passenger windows, tied up civilians, and beat them with sticks to force the passengers to leave the bus so he could vandalize it. The case dealt with the issue of when violence is necessary to achieve the aim of political protest. It concluded that Aguirre’s violent acts of protest went beyond what was necessary to achieve political change in Guatemala. Asylum was also denied to Emmanuel J. Foroglou, a Greek citizen who opposed the involuntary draft due to his philosophical beliefs. In the 1999 case Immigration and Naturalization Service (INS) v. Foroglou, the Supreme Court denied asylum based on the fact there was no evidence that the Greek government targeted those sharing Foroglou’s philosophical beliefs. In Greece, draftees are allowed to serve in noncombatant positions if they oppose the draft for twice the time commitment or it permits civilian service over a longer duration for conscientious objectors. It is not considered persecution for a government to require military service of its citizens. Major Sending Countries and Reasons for Past Asylum Acceptance A sending country is the nation of origin of an asylum seeker. Generally, the term refers to the country from which a refugee, asylee, immigrant, or temporary migrant originated. A global refugee crisis affects many world regions and their constituent countries. Despite the pervasive nature of forced migration, streams of refugees often flee to neighboring countries, which may set up refugee camps, rather than attempting to claim asylum in the United States, Europe, or other high-income nations. Often, refugees are too poor to undertake a journey to the United States to claim asylum. Those who do have the means or live in close enough proximity the United States to make the trip feasible (such as poor individuals from the Caribbean and Latin America) may become U.S. asylum seekers; however, a positive legal response is far from guaranteed. TRAC Reports Inc. analysis of U.S. immigration court records from 2000– 2005 indicates that there were high numbers of asylum seekers from the following countries in order of frequency: (1) China (35,036); (2) Haiti (14,607); (3) Columbia (14,323); (4) Albania (6,351); (5) India (6,082); (6) Guatemala (5,387); (7) Indonesia (4,721); (8) El Salvador (3,750); (9) Armenia (3,306); (10) Russia (3,120); (11) Mexico (2,957); (12) Somalia (2,679); (13) Ethiopia (2,548); (14) Pakistan (2,388); (15) Yugoslavia (2,184); (16) Mauritania (2,014); (17) Iran (1,999); (18) Peru (1,876); (19) Cameroon (1,833); (20) Bangladesh (1,628); (21) Iraq (1,596); (22) Guinea (1,458); (23) Sierra Leone (1,266); (24) Congo (1,236); (25) Nigeria (1,195); (26) Egypt (1,185); (27) Sri Lanka (1,176); (27) Liberia (1,132); (28) Ukraine (1,084); (29) Honduras (1,059); and (30) Cuba (1,008). The U.S. asylum system is in a state of flux. This is because of the unanticipated number of asylum seekers, the potential for bias in the process, the difficulty of

Asylum and Human Rights | 13

establishing asylum claims, problems in identifying fraudulent claims and numerous legal difficulties. CURRENT ASYLUM DEBATES Is the United States Asylum Process Vulnerable to Fraud? Asylum and Illegal Entry. The 1980 Refugee Act provided asylum for individuals who had legally entered the United States and faced persecution due to a change in government in their country of citizenship if they returned. Later, asylum processes were opened to persons presenting themselves at a port of entry without prior authorization. This has been labeled as a way to enter the United States illegally and to try and adjust status to that of a permanent resident. Although individuals were set free on their own recognizance in the past, today the United States detains many asylum applicants. Special Interest Cases. The Federation for American Immigration Reform (FAIR) argues that the difficulty in proving legitimate cases of asylum opens the door for misjudgment and fraudulent admission. One of their operational objectives is to end admission of special interest asylum cases. FAIR interprets U.S. refugee law offering political asylum negatively and believes that offering sanctuary due to any form of social persecution (referred to as special interest cases) promotes fraud, erodes national security, and increases immigration. Changes in U.S. asylum law have permitted certain special interest cases to be presented: (1) spousal or child abuse; (2) homosexuality; (3) a 1996 provision for accepting Chinese subject to coerced family planning under China’s onechild policy; and (4) women seeking protection from genital mutilation, among others. It has been suggested that special interest claims are difficult to prove and reintroduce fraud. After 9/11, suggested reforms to asylum law included: (1) limiting asylum to individuals who entered the United States legally; (2) redefining asylum as a temporary rather than a permanent status; (3) providing work permits but not permanent residence, as is now granted to asylees; and (4) prohibiting asylum to individuals who passed through safe haven countries before arriving in the United States. Adopting these reforms would contradict UN guidelines for handling asylum seekers. Although there will always be individuals trying to take advantage of asylum procedures, the current emphasis on national security and the adversarial nature of the immigration court process make it unlikely that high numbers of fraudulent applications will be passed. If anything, the current process has many flaws, elaborated below, that make it difficult for legitimate asylum seekers to receive protection. Since 9/11, asylum seekers have been subject to both expedited removal and detention during the progression of their cases. The human rights of the world’s asylum seekers are not taking precedence, although legitimate efforts are being made to improve bureaucratic procedures and develop asylum law. Special interest cases do increase the number of potential applicants, but these individuals

14

| Asylum and Human Rights

face the same barriers as other asylum seekers and are confronting a difficult legal process that must be navigated to achieve asylum. Are U.S. Asylum Decisions Objective? A Neutral Asylum Process. The United States has a positive record of asylee acceptance for human-rights violations. In the Department of Justice, asylum cases are processed by over 200 special judges in the immigration court division. This division is allocated $200 million and handles between 25,000 and 35,000 asylum requests per year. Asylum seekers are of many national origins but since FY 2000, Chinese applicants have constituted one out of every five cases (22.3%). Haiti (9.3%) and Columbia (9.1%) are other major sending countries for asylum applicants. These applicants are all accorded legal rights, and each case is examined on its own merits. The Asylum Officer Corps. The Asylum Officer Corps is a professional group trained in refugee and human-rights law. They conduct intensive interviews with asylum seekers. In 1990, the Asylum Officer Corps was created in a revision of Refugee Act regulations. Previously, the District Offices of the Immigration and Naturalization Service (INS) handled these applications. Eight asylum offices were opened in Arlington (VA), Chicago, Houston, Los Angeles, Miami, New York City, Newark (NJ), and San Francisco. In addition, a Resource Information Center was created to keep asylum officers apprised of human-rights conditions worldwide. In 2003, the Asylum Officer Corps became a part of the Department of Homeland Security (DHS). The goal was to obtain facts, conduct interviews, and to make informed decisions. The Asylum Officer Corps’ training improved the education of INS examiners who had not received any training in this difficult area of administrative law. Legal Representation and Judicial Integrity. Many asylum seekers are unable to afford a lawyer. In 2008, the Executive Office for Immigration Review (EOIR) staff created a Legal Orientation Program (LOP) to increase applicant’s knowledge of their rights in immigration court. In addition, a Bureau of Immigration Appeals (BIA) Pro Bono Project will pair private pro bono attorneys with individuals who have no representation during the appellate part of their case. EOIR has stated that its immigration judges and administrative-law judges will provide a fair judgment based on the right of due process under the law. Fraud and National Security. Upon its establishment, the Asylum Officer Corps was able to make better asylum decisions, but the level of staffing was inadequate to handle the number of cases; a long-term case backlog occurred. Individuals who had the objective of immigrating to the United States were able to abuse the system, taking advantage of the lengthened stay with work authorization while their asylum claim waited for adjudication. Lack of bureaucratic capacity resulted in many fraudulent cases being filed. It was not in the interest of counterterrorism to let the asylum system falter. In 1993, Mir Aimal Kansi (who killed two CIA agents at their headquarters) and Ramzi Yousef (a plotter in the first World Trade Center bombing) were in the United States with freedom of movement because of pending asylum claims. Afterward, in order to protect national interest, funding was increased, the number

Asylum and Human Rights | 15

of Asylum Officer Corps professionals was doubled, and more immigration judges were put in place. To decrease fraudulent applications, a limit of 180 days for processing was established and, by and large, met. During the waiting period, work permits were no longer issued. The asylum process was made faster by allowing asylum officers to make a decision about eligibility for admission whereupon the case was sent immediately to an immigration judge. The backlog declined and applications declined from 147,000 in FY 1995 to approximately 46,000 in FY 2003. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 implemented computerized database checks. Those accessed include: the Central Index System (CIS), Deportable Alien Control System (DACS), National Automated Immigration Lookout System (NAILS), Interagency Border Inspection System (IBIS), Automated Biometric Identification System (IDENT), and FBIQuery. This immigration act also introduced the expedited removal of asylum seekers by allowing immigration officers at ports of entry with asylum training to make immediate decisions about whether the individual has a credible fear of persecution. The USA PATRIOT Act expanded definitions of terrorist activity used to deny asylum. It is considered that the system is more efficient because of information sharing and coordination in the Department of Homeland Security (DHS) between the Department of State, FBI, and CIA. Background checks are thought to be greatly improved. During the application process, asylum seekers are: (1) given numerous security checks and (2) detailed interviews. Many claims are not found to be credible. Both asylum officers and immigration judges deny many cases. Are U.S. Asylum Decisions Objective? National Preferences’ Impact on Asylum Claims. The United States has a history of using refugee status and asylum as a tool of foreign policy. Immigration advocates argue that national preferences should not be a part of the asylum process. Instead, the United States, as a major immigrant-receiving nation, should admit any individual who can prove they have a credible fear of persecution. Ethical and humanitarian objectives should be stressed. 9/11 has posed a major challenge for asylum seekers because of tightened U.S. national security. In 2003, Operation Liberty Shield began continuous detainment of all asylum seekers from 23 countries considered to be terrorist harboring nations. These countries, including the nation of Iraq, have long-standing records of human-rights abuses. Under this policy, an individual automatically becomes a suspect because of national origin—an example of the muchcriticized practice referred to as profiling in law enforcement. The 180-day time limit for adjudication of claims is suspended in cases falling under this policy, and asylum seekers can be held for months and even years. Bureaucratic Problems Insufficient Staffing. In order to function effectively, the Asylum Officer Corps needs full staffing and funding relative to current case load. Currently,

16

| Asylum and Human Rights

asylum officers conduct 18 interviews over a two-week period. It has been estimated that, subtracting time allotted for other duties, only 3.5 hours are available per case. A breakdown of the task includes: (1) examining the asylum application; (2) asking for and evaluating information about humanrights conditions in the applicant’s country; (3) the asylum seeker’s interview; (4) developing insight into the applicant’s credibility; (5) running security checks; and (6) preparation of a report on the final decision. In 2004, the American Federation of Government Employees (AFGE) surveyed a sample of asylum officers and found that 93% had constant, unpaid overtime in violation of government regulations. The reasons given for this unpaid work were: (1) quality was compromised by case load in a forty hour work week; (2) to complete the weekly caseload, unpaid overtime was necessary; and (3) unpaid overtime averted a case backlog. This time pressure reduced asylum officer’s confidence in their decisions. They faced a double bind of possibly rejecting legitimate asylum claims or accepting fraudulent ones from a person who just wanted a work permit. In short, if the application rate jumps and there is insufficient time to handle cases, legitimate cases may be denied. If there is no asylum officer available to handle a case, a backlog develops unless they volunteer their time. Lack of Translators. Asylum seekers originate from linguistically diverse regions and countries. Often, there are limited translators available for the asylum interview, further compromising the timeliness of the process. After passage of the REAL ID Act of 2005, the standards of proof for asylum cases were heightened. Asylum seekers are under stress, and inconsistencies can occur in their testimony. Immigration judges have to decide if the applicant was confused when answering a question, impaired by lack of a translator or poor translation, or was attempting to pursue a fraudulent case. Inadequate Training of Immigration Officers. Under the conditions of expedited removal (deportation), an immigration officer makes the initial decision as to whether to consider an asylum seeker’s claim or to send them back. The U.S. Commission on International Religious Freedom found that immigration officer’s records have problems of incompleteness, incorrect information, and were often not shared with or verified by the asylum seeker. The sharing of the report is required by law. In a classic catch-22, the Inspector Field Manual instructs the inspectors to limit detail, but immigration judges will deny claims because of details that were added after the initial interview, which can appear to indicate the applicant is manipulating his or her case. Immigration Judges’ Asylum Acceptance Rates Former Attorney General Alberto Gonzalez criticized certain immigration judges for being intemperate and abusive. Judge Richard Posner of the Seventh Circuit Court of Appeals ordered the decision denying asylum to Zhen Li Iao be vacated and reconsidered. Judge Posner identified systemic trends in the asylum appeals sent to his court amounting to what he considered “unreasoned decisions” (7th Circuit 2005, 400 F.3d 530), although he conceded that cases sent to

Asylum and Human Rights | 17

his court might not be representative. It is likely that judges’ personalities and history influence their decisions in asylum cases. Court Issues Impacting Asylum Decisions In the Department of Justice, the Executive Office for Immigration Review (EOIR) keeps a record of asylum cases. TRAC Reports Inc. examined 297,240 cases between Fiscal Year 1994 and early 2005 to understand judges’ asylum decision making. A sample of cases from 208 immigration judges who had each decided over 100 asylum cases indicated that there was substantial variation in the rate at which judges denied asylum. Judges denied from 98 percent to 10 percent of asylum claims. Ten percent of judges denied asylum in 86 percent or more of their decisions while another ten percent denied asylum only 34 percent of the time. This indicates a high degree of variability in judges’ decision making about asylum. The types of cases sent to a judge or the judge’s belief system could be factors causing this variation. Legal Representation. If all asylees were treated fairly, then the assistance of a lawyer would not be a factor in judging claims. However, TRAC Reports Inc. found that 93 percent (51,208 cases) of claims by asylum seekers without lawyers are denied while only 64 percent (245,982 cases) of asylum requests sought with lawyers’ assistance are denied. Overall, 69 percent (297,240 cases) of asylum requests are denied. Nationality. It is difficult to judge whether certain nations are more likely to be represented by individuals making false asylum claims. In order to come to any conclusion, it would be necessary to examine sending-country conditions. Nevertheless, 80 percent of post FY 2000 applicants from El Salvador, Mexico, and Haiti have been denied. In comparison, less than 30 percent of cases from Afghanistan and Burma are denied. Judges’ Decisions for Similarly Situated Asylum Seekers. To see if nonobjective factors influenced judges’ decision-making, TRAC Reports Inc. compared Chinese asylum seekers with legal representation in New York City. About 60 percent of Chinese asylum seekers apply in New York City and 34 judges have tried at least 100 cases, which are assigned on a random basis. Despite similarity among the cases, there was a wide rate of variation between judges in number of cases accepted. Judge F. Jankum (now retired) rejected 94.5 percent of 421 cases while Judge Margaret McManus denied 6.9 percent of 929 cases. Five additional judges denied 80 percent or more asylum claims while only six judges declined 25 percent or fewer asylum seekers. Certain judges may be predisposed to deny or accept asylum applicants. Immigration judges with high rates of denial for Chinese applicants also had high rates of denial for asylum seekers of other nationalities. This trend held for judges with lower denial rates for Chinese as they had more limited denial rates for other nationalities. The TRAC Reports Inc. analysis indicates that judges may have political orientations, such as liberal or conservative views, that impact their asylum decisions. If legal representation is held constant, then objective judgment should

18

| Asylum and Human Rights

result in rates of decision-making that are somewhat similar rather than so widely dispersed. The implication is that judges have pro or anti-asylee biases. One possibility is that some judges consider humanitarian concerns more than others in their cases; other judges may still be impacted by U.S. foreign policy regarding acceptance based on national origin. Another factor in the rate discrepancy may be that some judges are stricter than others. Legal researchers examining 2004–2005 data from asylum offices, immigration courts, and federal appeal courts have found that personal opinions, rather than a consensus, impact the rate at which asylum cases are granted or denied. It was found that asylum offices are very likely to favor proceeding with Chinese applicants, but internal variation ranged in one office from less than 5 percent of cases to more than 90 percent. In Columbian asylum cases, primarily handled in Miami, the acceptance rate ranged from 5 percent to 88 percent. Based on limited data, asylum denial rates even appear to fluctuate when appeals are examined in a federal court.

Court Resources The REAL ID Act of 2005, which requires pre-screening and biometric identification, was promoted as a tool to combat the entrance of terrorists by making it more difficult to prove asylum claims. Countering those who argue the need for further restrictions, the case has been made that the real problem is the reduced capacity of an under-staffed asylum bureaucracy with a large case backlog. U.S. asylum law already denies asylum to individuals who: (1) have a record of terrorist activity; (2) a serious criminal record; or (3) pose a national security risk. Asylees undergo extensive security checks. The asylum officers who handle cases lack the time and resources to determine who is a legitimate refugee.

Should Asylees De Detained? Since 9/11, the issue of admitting asylum seekers from nations designated as harboring terrorists has arisen. This signifies the return of political motivation for accepting or denying asylum seekers. In this case, rather than fighting Communism by permitting asylum seekers, asylum seekers are detained and discouraged although they are fleeing war and persecution. The word detention is used to signify confinement in prison, a closed camp, or a restricted area. While the overall competence of nation-states to detain, within limitations, cannot be doubted, the body of legal principles that govern the practice remain to be determined and clarified. Detention is not illegal, that is not the issue here. It is, however, in violation of international asylum accords. Asylum seekers have been detained for indefinite periods deliberately or simply as a result of lack of personnel to adjudicate cases. Internationally, detention is viewed as both a basic human-rights issue and a basic protection

Asylum and Human Rights | 19

issue. The detention of asylum seekers must be separate from the detention of criminals, but this is often violated in practice. Detention is internationally perceived as abuse of the asylum process and although the United States maintains it is justified by threats to the security of the state and the welfare of the community. It is frequently symptomatic of restrictive tendencies toward admitting asylum seekers, tendencies that reflect shades of xenophobia and self-reservation. The United Kingdom and the European Union are backing away, like the United States, from the UN accords against detention, demonstrating a trend among the developed nations toward the securitization of immigration. Detention itself is no solution to the problems associated with granting asylum, in either the remedial or the preventive sense. It is, however, indicative of real problems affecting a broad range of people, and it illustrates the necessity of finding appropriate, durable solutions to these problems. Refugees and asylum seekers are commonly subject to the same laws applied to aliens and nationals. In the United States, they may thus be exposed to prosecution, punishment, and/or detention, on account of illegal entry, entry without documents, or entry with falsified documents. Different considerations apply to individual asylum seekers. Human-rights advocates argue that detention should only be permissible if there are good grounds to believe the applicant is likely to try to escape, has a criminal background, or is a threat to national security. Since 9/11, the national security argument is used to justify policies with the objective of deterring terrorist entry. Currently, there is no reason to believe that detention protects asylum seekers from hate crimes or other acts of discrimination by the public. CONCLUSION The new and rapidly accelerating immigration to the United States is unprecedented in its diversity of color, class, and national origins. It is fundamentally changing the racial and ethnic composition and stratification of the American population and the social meaning of race and ethnicity. This degree of change in population composition has alarmed those who are content with the status quo. The only effective way of reducing the flow of asylum seekers and refugees from developing countries to the United States is to address concretely the conditions that create asylum seekers. To do so, the United States will have to maintain a foreign policy that raises the issue of persecution abroad, provides the means to at least partially reduce the political and economic tensions that lead to such persecution, and takes concrete, nonmilitary action against those nations that persist in persecuting their own citizens. Development assistance directed toward poor regions can therefore serve a significant, although indirect, role in eventually reducing refugee flow. Because the effect of such aid is indirect, and thus may take a number of years to unfold fully, programs developed with the objective of reducing the flow of refugees

20

| Asylum and Human Rights

should be given ample opportunity to work before being terminated. A key element of an effective asylum policy is the recognition that there is no magical international solution to the problem of uncontrolled refugee flow. It is important to realize that, although it may be perceived that way, the state of asylees and refugees is not a natural state of existence. Asylees and refugees are the result of political and economic strife. The state of asylum seekers is human-made; therefore, Americans have the power to address the situation and possibly reduce the number of people seeking asylum. Refusing to allow refugees into the United States or only allowing a limited number to enter will not effectively reduce the number of asylum seekers. The issue must be dealt with within the major sending countries first. Improving the status of the world’s poor as a means of preventing conflict is a start. See also Detention Conditions; Expedited Removal; Female Genital Mutilation and Asylum; Iraq War and Population Displacement; Refugees; Statelessness References: Abrams, F. “American Immigration Policy: How Strait the Gate?” In U.S. Immigration Policy, edited by Richard R. Hofstetter. Durham, NC: Duke University Press, 1984; Bernard, W. S. “Immigration: History of U.S. Policy.” In Harvard Encyclopedia of American Ethnic Groups, edited by Stephan Thernstrom, Ann Orlov, and Oscar Handlin, 486–495. Cambridge, MA: The Belknap Press, 1980; Black, R. “Fifty Years of Refugee Studies: From Theory to Policy.” International Migration Review 35, no. 1 (2001): 57–78 [Special Issue: UNHCR at 50: Past, Present and Future of Refugee Assistance]; Cohen, R. “Refugees? What Refugees?” The New York Times (Op-Ed Columnist). nytimes.com (Accessed September 27, 2007); Ewing, Walter A., and Benjamin Johnson. “Asylum Essentials: The U.S. Asylum Program Needs More Resources, Not Restrictions.” 2005. www.ilw.com/articles/2005,0907-ewing.shtm; Goodwin-Gill, G. S. “International Law and the Detention of Refugees and Asylum Seekers.” International Migration Review 20, no. 2 (1986): 193–219 [Special Issue: Refugees: Issues and Directions]; Goodwin-Gill, G. S. “Refugees: Challenges to Protection.” International Migration Review 35, no. 1 (2001): 130–142; Human Rights Watch. “U.S. Operation Liberty Shield Undermines Asylum Seeker’s Rights.” http://hrw.org/english/docs/2003/03/26/ usdom5436.htm; Isgro, F. “Recent Asylum Decisions.” Migration World Magazine 27, no. 4 (1999):33–36; Nackerud, L., et. al. “The End of the Cuban Contradiction in U.S. Refugee Policy.” International Migration Review 33, no. 1 (1999):176–192; Oxford, C. G. “Protectors and Victims in the Gender Regime of Asylum.” NWSA Journal 17, no. 3 (2005):18–38; Ramji-Nogales, Jaya, Andrew I. Schoenholtz, and Phillip G. Schrag. “Refugee Roulette: Disparities in Asylum Adjudication.” Stanford Law Review 60 (2007): 295–412; Reuters. “U.S. Appoints Officials for Iraq Refugees.” The New York Times. nytimes.com (Accessed September 20, 2007); Rumbaut, R. G. “Origins and Destinies: Immigration to the United States since World War II.” Sociological Forum 9, no. 4 (1994):583–621 [Special Issue: Multiculturalism and Diversity]; Tavernise, S., and D. Rohde. “Few Iraqis Reach Safe U.S. Havens Despite Program.” The New York Times. nytimes.com (Accessed August 29, 2007); TRAC Reports Inc. 2006. “Immigration Judges.” http://trac.syr.edu/immigration/reports/160; U.S. Commission on International Religious Freedom. 2005. Report on Asylum Seekers in Expedited Removal—Volume 1: Findings and Recommendation; U.S. Citizenship and Immigration Services. 2003. “History of the United States Asylum Officer Corp.” http:// uscis.gov/graphics/services/asylum/history.htm; U.S. Immigration and Naturalization

Attitudes toward Undocumented Immigrants Service. 2000. “Asylum Reform: 5 Years Later.” http://uscis.gov/graphics/services/asy lum/asylum_brochure.pdf.

Erin Nieto-Salinas and Judith Ann Warner ATTITUDES TOWARD UNDOCUMENTED IMMIGRANTS During the 2006 election campaign, immigration was made the cornerstone of many politician’s campaigns because the public was thought to be concerned about undocumented entry, in particular, and the volume of legal immigration, in general. The failure of Tom Tancredo’s 2008 presidential bid and the mixed success of candidates who made immigration their major issue suggests that Americans’ attitudes toward immigration are complex. RECENT IMMIGRATION AND PUBLIC OPINION In the last century, the number of immigrants who entered the United States yearly without papers or who overstayed their visas increased substantially, from around 100,000 in 1965 to almost two million by 2000. The data on undocumented or so-called illegal immigrants often come from the Immigration and Naturalization Service’s yearly calculations of apprehensions. Although these apprehensions only refer to persons who were caught, they offer an idea of the flow of illegal migration. Based on these numbers, census data, and data from other surveys (such as the Current Population Survey) researchers were able to put forward an estimate of the size of the current undocumented population of immigrants. Recent estimates suggest that, at any given time, there are approximately 12 million unauthorized immigrants living in the United States. The majority of these immigrants come from Latin American countries, Mexico in particular. Since a large proportion of undocumented immigrants are over-stayers, who entered the United States with legal visas and then stayed after the visas expire, many unauthorized individuals come from nonborder countries, such as the Philippines. To a certain extent, Americans may express conflicting opinions regarding legal immigrants and immigration, some favoring more immigration and many favoring less immigration, but most hold strong, negative opinions regarding illegal immigrants and immigration. According to one nationally representative survey, both before and after 9/11 approximately 70 percent of Americans thought the U.S. government should do more to restrict undocumented immigration. Interestingly, after 2001 slightly more Americans, around 18 percent compared to 13 percent prior to 2001, neither agree nor disagree with taking stronger measures to curb undocumented immigration. This may be due to recent media discussions highlighting the complexity of immigration issues, especially ones regarding solutions for unauthorized migration, leaving many Americans unsure about the topic. Typically, however, undocumented immigration is considered a serious social problem. Consequently, most Americans are against extending social and financial support, such as education and welfare, to undocumented immigrants and are in favor of strictly patrolling U.S. borders to discourage unauthorized

| 21

22

| Attitudes toward Undocumented Immigrants

migration. According to the 1994 General Social Survey, over 80 percent of Americans disagree with giving work permits to undocumented immigrants and over 60 percent do not think undocumented immigrants should be able to attend public universities at the same costs as other students. The vast majority of Americans believe that undocumented immigrants are very poor, poorer than legal immigrants. They are somewhat divided, however, on their opinions of the work ethic of these immigrants. Many Americans consider the work ethic of undocumented immigrants to be strong and comparable to or better than the work ethic of legal immigrants. Yet, other Americans believe that undocumented immigrants are lazy and take jobs away from native-born workers. Americans are even more divided on their opinions regarding the children of undocumented immigrants. Generally, the public opinion concerning immigrant children is less harsh compared to attitudes toward adult immigrants. In the same social survey, approximately half of Americans believed that children of undocumented immigrants should be entitled to become U.S. citizens if they were born in the United States while the other half of Americans disagreed. Research indicates that older and conservative individuals are more likely to view so-called illegal immigration negatively while persons with higher levels of education and who share some cultural affinity or similarity, such as race or ethnicity, with undocumented immigrants tend to be more open to the positive effects of undocumented immigration. Sociologists Thomas Espenshade and Charles Calhoun found in their study of public opinion on undocumented immigration that people’s perceptions of the costs of immigration, both financial and symbolic, influence their attitudes. SOLVING THE UNDOCUMENTED IMMIGRATION ISSUE Due to these different perceptions, Americans hotly contest potential solutions for unauthorized immigration. Certain solutions are popular, such as border patrols and erecting a fence across parts of the United States-Mexico border. Politicians and citizens are insistent and aggressive about constructing this fence. Duncan Hunter, a Republican Representative from California, argues that border enforcement and a border fence are the primary answers to illegal immigration. Small groups of Americans, especially certain ones who live in border states, feel so strongly about curbing unauthorized migration into the United States that they personally patrol the borders with advanced communication technology and weaponry. Other Americans, however, see a border fence as comparatively expensive and ineffective. Bill Richardson, the Democratic governor of New Mexico, said, “Securing the border must come first—but we must understand that building a fence will not in any way accomplish that objective” (Richardson 2006). In general, when Americans are reminded that the various solutions are likely to raise taxes, they reduce their support for particular policies and debate the most cost-effective measures. In the political realm, Hillary Clinton, a Democratic senator from New York, argues for policies that will assist undocumented immigrants in gaining citizenship,

Attitudes toward Undocumented Immigrants

such as learning English and paying fines while opposing guest-worker programs and calling for stronger penalties against employers who knowingly hire unauthorized immigrants. John McCain, the Republican senator from Arizona, also favors policies that will lead to the legalization of undocumented immigrants, yet places greater priority on securing U.S. borders and creating workable guest-worker programs. Political ideology, therefore, may influence opinions of certain solutions, yet does not always divide people into clearly opposing groups. Both Democrats and Republicans are open to helping unauthorized immigrants gain legal status, yet they differ in their order of priorities. Numerous solutions for undocumented immigration—from border fences and guest-worker programs to employer sanctions and tamper-proof identification cards—are proposed and debated because there is a limited amount of time and financial funding to allocate to the issue of so-called illegal immigration. Another contested solution is offering amnesty to certain undocumented immigrants. The 1986 Immigration Reform and Control Act allowed certain illegal immigrants to apply for amnesty if they met particular conditions, such as living in the United States for five years with at least some understanding of English and U.S. history. This helped unauthorized immigrants gain legal resident status over a set period of time. Even though over three million undocumented immigrants applied for amnesty, a majority of Mexican descent, and numerous industries, particularly in the agricultural sector, gained a legitimate workforce, such a solution is rarely popular with politicians and citizens. For example, Rudy Giuliani, the former mayor of New York, said of undocumented immigrants: “They should have to pay a penalty because there should not be amnesty” (Schneider 2007). Many Americans fear that giving amnesty to persons who disregard the law sends a signal to other immigrants that the United States does not have control over its borders, does not construct strong or enforceable immigration policies, and will be lenient in the end. Some favor legalization of unauthorized immigrants, yet avoid any association with the notion of amnesty. Barack Obama, the Democratic senator from Illinois, has been quoted as saying: “We’ve got 12 million undocumented workers who are already here. Many of them living their lives alongside other Americans. Their kids are going to school. Many of the kids, in fact, were born in this country and are citizens. And so, it’s absolutely vital that we bring those families out of the shadows and that we give them the opportunity to travel a pathway to citizenship. It’s not automatic citizenship. It’s not amnesty” (Carter 2008). Many Americans of different political parties are in favor of helping undocumented immigrants become citizens. John McCain said of unauthorized immigrants: “Make them earn citizenship because they have broken our laws. My friends, that’s not amnesty. Amnesty is forgiveness. We’re not forgiving anything” (Atlanta Journal-Constitution 2008). In reality, therefore, part of the debate may be over finding the right wording. Nathan Thornburgh suggested in a recent Time magazine article, the term “amnesty” may have a negative connotation to it, even though its meaning is acceptable and agreeable to many Americans. Consequently, politicians and citizens

| 23

24

| Attitudes toward Undocumented Immigrants

use different words to convey a notion similar to amnesty and word choice impacts public opinion. CONCLUSION As popular political figures and media correspondents highlight and debate the issues of undocumented immigration, it is likely that Americans’ attitudes toward illegal immigrants will change. The hope is that after the 2008 election solutions that benefit both the nation and individual immigrants may be found and made into public policy. The theme of that election was “change,” and immigration policy is a good place to start. References: Bean, Frank D., and B. Lindsay Lowell. “Unauthorized Migration.” In The New Americans: A Guide to Immigration Since 1965, edited by Mary C. Waters and Reed Ueda. Cambridge, MA: Harvard University Press, 2007; Carter, Shan. “On The Issues: Immigration.” September 7, 2008. elections.nytimes.com/2008/president/issues/immi gration.html; Espenshade, Thomas J. “Unauthorized Immigration to the United States.” Annual Review of Sociology 21 (1995):195–216; Espenshade, Thomas J. “Public Opinion and Immigration,” in Encyclopedia of American Immigration, edited by James Ciment, 560–568. Armonk, NY: M.E. Sharpe, Inc., 2001; Espenshade, Thomas J., and Charles A. Calhoun. “An Analysis of Public Opinion toward Undocumented Immigration.” Population Research and Policy Review 12(1993):189–224; Lee, Jennifer, and Frank D. Bean. “America’s Changing Color Lines: Immigration, Race/Ethnicity, and Multiracial Identification.” Annual Review of Sociology 30 (2004):221–242; “Politics: On the Issues.” New York Times. http://politics.nytimes.com/election-guide/2008/issues/immigration/ index.html#/context=index/issue=immigration; “Position Paper: A Path to Citizenship.” Atlanta-Journal Constitution, August 4, 2008. ajc.com/services/content/opinion/ stories/2008/08/04/ . . . &cxcat=17; Richardson, Bill. “Text of Bill Richardson’s Speech on Immigration Reform at Georgetown Today at 11:45 am Dec-7-06 10:50 pm.” blogs. georgetown.edu/?id=21260; Schneider, Bill. “Schneider: The Political Calculations of Immigration.” May 1, 2007. cnn.com/2007/POLITICS/05/01/schneider.immigration/ index.html?; Thornburgh, Nathan. “Immigration: The Case for Amnesty.” Time Magazine, June 18, 2007.

Justin Allen Berg

B BILINGUAL EDUCATION For non-English-speaking students, negotiating language barriers in the classroom can be a difficult process. Without adequate resources, language-minority students easily fall behind their peers and are often classified as learning disabled, although it is an inappropriate use of the classification. To address this issue, schools have adopted a variety of language-assistance programs. How these programs are implemented has a profound effect on the scholastic achievement, language-acquisition, and identity of immigrant students. Unfortunately, many bilingual education programs suffer from a lack of funding and are often mismanaged. Socially, deficiency programs perpetuate negative images that cover up the encouraging results frequently achieved by bilingual education. Moreover, the services provided to immigrant students are intimately linked to broader social policies designed to shape language use in society toward monolingual English. At best, the social worth of bilingualism is treated as secondary. The public debate surrounding bilingual education has many facets. From a pedagogical perspective, researchers and educators work vigorously to determine the most efficient teaching methodologies, including the use of English as a Second Language (ESL) instruction. In addition to the multiple other challenges educators experience in the public school system, teachers are faced with a lack of resources and necessary support for educating language-minority students. With over 425 first languages spoken by immigrant students in the United States, teachers and administrators cannot always provide native-language instruction. Often, even when language services are provided, many people still blame bilingual education programs for low achievement and high dropout rates. Frustrated taxpayers express concerns that their money is being misappropriated in

25

26

|

Bilingual Education

defunct bilingual programs. Using foreign languages in the classroom is commonly seen as a threat to the prominence of English in society. While the vast majority of immigrant parents want their children to learn English, they are not aware that most language education programs are designed to supplant the students’ native language through transition to English. Public resistance to fluent bilingualism has led to a situation in which current immigrant children’s education programs are weakened, turning what should be a social asset, bilingualism, into a problem. BACKGROUND Bilingual Education Teaching Methodologies To understand the larger issues surrounding language policies and schooling, it is necessary to explain some basic characteristics of bilingual education. While all language programs offered to immigrant students are frequently lumped under the blanket term bilingual education, there is a range of different approaches and teaching methodologies. Among the most prevalent programs are: transitional bilingual education, English as a Second Language (ESL), dual language, immersion, and submersion. While each methodology is distinct in its approach, exact pedagogical applications vary within each program according to the resources and philosophies of different school districts. Bilingual Education In a true bilingual education program, the students’ native language typically is used during the first year for instruction in the core subjects (e.g., math, reading, history, and science) and English instruction is provided for other, less linguistically demanding subjects (e.g., physical education and art). In a transitional bilingual education program, students are transitioned into the core subject classes over a period of three years (early exit programs) to seven years (late exit programs). During this time period, students learn English while keeping up with their peers in the other subjects. This allows students to maintain a grade-appropriate education until the time they are ready to transition into the mainstream classroom. In a developmental bilingual education program, students receive English classes while concurrently developing literacy skills in their native language. The end result is a completely fluent and literate bilingual student. Besides perpetuating a positive cultural identity, this approach permits students to maintain a grade-appropriate education instead of falling behind due to language barriers. English as a Second Language (ESL) English as a Second Language programs are usually applied in schools that have multiple minority languages and/or do not have the necessary resources to offer bilingual education. Students are involved in so-called pull-out programs where they receive English classes daily or weekly. When they are not in the

Bilingual Education | 27

pull-out sessions, they are forced to participate in their regular classes through their limited grasp of English. While this type of instruction can benefit the students’ communicative abilities, they can easily fall behind their peers academically without other services. Dual Language Programs Dual language programs offer classes taught in two different languages. There are various ways to integrate the different languages within the curriculum. In one version of a Spanish-English model, students receive instruction in Spanish for half of the day and then in English for the other half. Another version might alternate languages during the day according to subject. Since subjects are taught in both languages, overt language instruction is minimal. Depending on the design of the program, language and literacy instruction takes place as it does in regular schools; though, in a dual language school, students are taught reading and writing skills in two languages. The objective of these schools is to place English and Spanish-speaking students together from the very beginning so that the result is simultaneous second-language acquisition by both groups. These programs are highly effective when initiated at an early age. Immersion Immersion education places students in all-English classes, but instruction is delivered at an acquisition-appropriate level while emphasizing contextual clues. Advocates of this system often refer to its success in Canada. In some Canadian schools, students are immersed in French-speaking contexts during their elementary education years. What proponents of this method fail to mention is that the French-immersion instruction takes place within an Englishdominant society. The immediacy of acquiring a language in order to progress academically and economically is attenuated due to the outside support of the students’ (dominant) native language and other sociopolitical factors. Additionally, the outside linguistic environment provides the students with a de facto L1 (first language) literacy education. Unlike the Canadian model, the main focus of immersion programs in the United States is on-target English language competence. In an English-dominant society, literacy skills in the students’ native languages—and often times their various talents altogether—are ignored. Thus, language acquisition becomes the focus of instruction and the content material becomes a secondary goal. Submersion (Sink or Swim) Submersion approaches are often referred to as sink or swim methods. Here, students are placed in regular mainstream classes without any assistance. Even though this is technically illegal, many students throughout the United States are still placed in these contexts. In states like California, Arizona, and Massachusetts, referenda have been passed that approve submersion techniques.

28

|

Bilingual Education

Moreover, simple misapplications of bilingual education methodologies can result in a submersion-like environment for language-minority students. While blatant implementations of the submersion method are easily identified, it most often occurs under the guise of bilingual education services due to poorly trained instructors and/or a lack of proper funding. ADDITIVE VERSUS SUBTRACTIVE BILINGUALISM Methods that stress the acquisition of both languages (e.g., developmental bilingual education and dual language programs) promote additive bilingualism. These programs endow students with a sense of cultural identity and provide them with valuable social and economic skills. Programs that strive for quick acquisition of English without nurturing native language skills (e.g., immersion and submersion) develop subtractive bilingualism). Thus, the students’ native language is subtracted and replaced with English. Students in subtractive programs are torn between the dominant language and their mother tongue. This can be conceptualized as bicultural ambivalence, whereby language-minority students may feel hostility towards the dominant culture while feeling shame toward their own. As another consequence of these mixed feelings, many immigrant children often suffer from poor mental health outcomes. Immigrant Children’s Language Programs’ Uniformity Problems Each of the methodologies described above has various applications. This occurs to such an extent that one program might be labeled as bilingual education when, in reality, it is immersion or ESL. Often, a good bilingual education program includes components from all of the mentioned methodologies. Despite the loose applications of each methodology, there have been many successful language programs. The problem with the last thirty years of language-minority education stems from a lack of uniformity in the implementation of these various programs. In educational contexts that stress immediate results and measurable progress, immigrant students are required to produce correct answers within a short period of time. Unfortunately, the reality of acquiring a second language is lost in this race to perform. Whereas all humans are innately endowed with a language faculty to flawlessly acquire a first language, attaining a high level of secondlanguage competency depends on numerous factors. Regardless of how hard language-minority students are pushed to learn English, time is the most central factor. Even if students are given proper training within a nurturing context, it can take anywhere from three to seven years to fully acquire a language. Contrary to the popular (mis)belief that many immigrants do not want to learn English, most strive to learn English and know the value of speaking the language of the majority group. Many students go through a silent period when they just absorb language through experience. Educators can easily mistake this as apathy or lack of motivation. Other students might start to produce spoken English in a short period of time. Many people often mistake this as meaning that

Bilingual Education | 29

the student has mastered English. Children in this situation are often removed from bilingual education programs and mainstreamed into regular classes. In reality, these students might still lack basic literacy skills and quickly begin to flounder in the classroom. This usually results in low academic achievement. It is common for students in this situation to be incorrectly classified as having a learning disability. Because of the national emphasis on school achievement tests by age level, teachers and administrators may pressure school diagnosticians to misclassify these students to increase their overall class achievement by removing them. This trend helps account for the disproportionate number of language-minority students in special education programs. IMMIGRANT EDUCATION AND LANGUAGE Bilingual Education Act of 1968 The sociopolitical context in which immigrant education programs are embedded shapes their characteristics. One of the results of the civil rights movement was the Bilingual Education Act of 1968 (also known as Title VII of the Elementary and Secondary Education Act). School districts were legally required to accommodate the needs of language-minority students. While this legislation was a giant step for language-minority education, it did not specify how language programs should be implemented, nor did it define what bilingual education actually meant. Even though the success of sound bilingual education programs has been scientifically proven, many poorly designed programs have been permitted to operate without intervention. Although most language programs are administered in good faith and with benevolent intentions, their misapplication can have profound consequences. Cultivating or limiting native-language use directly affects the on-going cultural formation of language-minority communities. Due to a desire to linguistically assimilate future generations of language users, the main target of English-only groups has been the education system. A historical glance at language policy in American education underscores the importance of controlling the medium of instruction to achieve mono-cultural English or bilingual outcomes. Lau v. Nichols In spite of the fact that the Bilingual Education Act of 1968 was initiated to address the needs of the language-minority population, it did not specifically require schools to use a language other than English for instruction in order to receive federal funding. Without direct federal guidance, language issues were further disputed in state courts. The 1974 U.S. Supreme Court’s decision on Lau v. Nichols is the defining court case for language-minority children. This decision provided guidelines for school districts on how to evaluate language-minority students and offered instructional options for them. The Office of Civil Rights used the Lau v. Nichols decision to police school districts around the country and make sure that they were providing adequate services.

30

|

Bilingual Education

Cultural Misperception and Attacks on Bilingual Education Due to misapplication or disorganization of bilingual education pedagogies, there were many disputes over the services offered to immigrant students during the decades subsequent to Lau v. Nichols. Intolerant sentiment toward immigrants began to surface as bilingual education programs were described as impeding English acquisition by cultivating native languages instead. On the national scene, President Reagan declared that “it is absolutely wrong and against American concepts to have a bilingual education program that is now openly, admittedly dedicated to preserving their native language and never getting them adequate in English so they can go out into the job market and participate” (Crawford 1999, 53). Siphoning the negativity from debates over these misdiagnosed programs, proponents of the English-only movement (e.g., U.S. English and English First) were able to gain support for their culturally assimilatory language policies. Essentially, the most effective means of eradicating other languages is to halt future speakers from learning them. The New Era: No Child Left Behind Current federal education policies impacting bilingual education reflect indifference toward nurturing the native language skills of non-English speakers. In 2002, the Bilingual Education Act (Title VII) was eliminated by the Bush administration as part of the new No Child Left Behind education reform. Under No Child Left Behind, Title III outlines the federal language policy for immigrant students (U.S. Department of Education 2006). While Title III will continue to support the education of language-minority students, it places more emphasis on rapid English acquisition, accountability of schools on standardized assessment, stronger state control of resources, less focus on the development of native-language skills, and funding for program development based on scientifically based research. What is considered scientific research can easily be misconstrued to justify allocation of funds for culturally insensitive programs and assimilationist-based language policies. ENGLISH FOR THE CHILDREN CAMPAIGN Recently, the groups that are most active in the language debates have expended a great amount of time, money, and energy on the education system. Nowhere has this been more evident than in California, a major immigrantreceiving state. During the 1990s, California had approximately one-third of the United States’ bilingual education programs. While anti-bilingual education sentiments surged to an all-time high, Ron Unz started the English for the Children campaign to dismantle bilingual programs in California’s public schools. Educated as a theoretical physicist, Unz had previously run (and lost) as a Republican candidate for governor in California in 1994. In November 1997, Unz began the English for the Children initiative campaign in California after learning of boycotts by Latino parents against Spanish-language programs in the Los Angeles area. With the support of many anti-bilingual activists, Unz’s group

Bilingual Education | 31

collected more than 510,000 signed petitions from registered voters agreeing to support an end to bilingual education in the public school system. Unz, a multimillionaire software developer, vowed to dig deep into his own pockets and spend whatever it took to get the measure passed. California Proposition 227 and Sheltered English Immersion Benefiting from the swell of xenophobia (fear of foreigners) that dominated the state’s politics during that time period, Unz and the English for the Children campaign constructed an effective platform from which to promote California’s Proposition 227. According to Proposition 227, the bilingual education services being offered in California inhibited students’ English acquisition and overall educational progress. In spite of the other social factors that influence second language acquisition and education in general, Proposition 227 was promoted as an elixir for the language-minority students’ ailments. As an alternative to bilingual education, Proposition 227 promoted a one-year English immersion course to prepare non-English-speaking students for mainstream classes. According to Unz’s initiative, language minority students were to be placed in Sheltered English Immersion (a term coined by the English for the Children movement) for a period usually not to exceed one year before being mainstreamed into the regular education classroom. Local schools were encouraged to put English learners of different native-language groups and different ages with a similar degree of English language proficiency in the same classrooms. While forceful, there was a waiver option available for parents to exclude their children from the sheltered English programs and place them into bilingual programs if the child: (1) already possessed good English skills; (2) was over 10 years old and the school staff thought it would benefit her or him to be in a bilingual education program; or (3) was in a special needs program. According to the guidelines of this program, students could be mixed by age, grade, and native language. Within one school year, students were expected to attain a good working knowledge of English so that they could be transferred to a mainstream classroom with native-English-speaking children. In this context, the minority language-students were expected to comprehend the subject matter without any further language instruction. In addition, teachers or other school faculty could be sued to ensure that instruction was delivered in English. Not only does this methodology contradict the research on the most effective bilingual education methodologies and language acquisition models, it is culturally insensitive and its subtractive nature disregards the inherent value of bilingualism. ENGLISHONLY AND ANTILATINO BIAS From this platform, Unz’s English-only campaign targeted California’s Latino communities. He capitalized on discontent with the public schools and sought to make bilingual education the scapegoat. Expensive ads promoting the initiative appeared in Spanish-language media. Some alleged advocates for immigrant rights—along with a hand full of Asian and Latino politicians—signed on as well.

32

|

Bilingual Education

While Unz adamantly denied having any anti-immigrant motivations for promoting Proposition 227, he could not repudiate his ties to more overtly biased organizations. Unz’s co-chairperson of the initiative was Gloria Matta Tuchman, a 1st-grade teacher from Santa Ana who finished 5th in the 1994 race for state superintendent of public instruction. While happy to announce her Mexican American roots, Tuchman was less vocal about her ties to the pro-assimilation, English-only movement. She joined U.S. English and served as a member of the board of directors between 1989 and 1992. She left shortly after the founder of U.S. English (Dr. John Tanton) produced the derogatory “Gobernar es poblar” memo about Latinos—essentially claiming that Latinos would overtake the country due to their high fertility rate. Linda Chávez was another outspoken supporter of Unz and English for the Children. Chávez served as the executive director of U.S. English until Tanton’s memo was released to the public. She later founded the Center for Equal Opportunity, which outwardly opposes bilingual education and affirmative action programs. Unz has served on the board of directors at the Center for Equal Opportunity and has worked closely with Chávez for years. Post Proposition 227 Testing Scores In 1998, California voters expressed their frustration with language education issues by passing Proposition 227, the original English for the Children referendum. While initially, this law prohibited language minority students from receiving bilingual education services, the waiver option allowed many parents to place their children back into bilingual programs. Touting seemingly higher testing scores after the first year of Proposition 227’s implementation (even though children in waiver bilingual programs performed just as well) the English for the Children campaign moved on to Arizona. Arizona Proposition 203 The English for the Children organization was able to get Proposition 203 on the 2000 ballot in Arizona by using paid circulators (50¢ per signature) to gain a sufficient number of signatures (101,000). In spite of the imploring cries of educators, researchers, and community organizations around Arizona denouncing Proposition 203, the pro-203 community was able to reinforce its position through a well-funded and well-organized media campaign. Unz and his followers were able to accumulate enough political and social support to once again overshadow the opposition and convince the public of the initiative’s ostensible integrity. Additionally, due to the large amount of students that were able to opt out of the sheltered English-immersion programs in California, Unz redrafted the Arizona referendum to restrict options for students and parents. Also, he carefully crafted Prop 203 to be more legally punitive for educators who might stray from the guidelines. Basing their claims on the success of students in California, the Arizona branch of English for the Children was able to avoid most accusations of cultural

Bilingual Education | 33

insensitivity. Caught in a landslide of confusing test scores, patriotic messages, and ethnocentric mis-information, the majority of the public—including many Latinos—saw it as a step toward a better education for non-English-speaking students. Arizona’s voting public voted with a 64 percent majority to limit the educational services that language minority students receive. At best, voters may not have realized that they were doing away with all of Arizona’s bilingual education and ESL programs in favor of the proposed monolithic methodology. Nor did they realize the underlying goal of eradicating Spanish from the public realm. Unz did a good job convincing the public that all language-minority children were in failing bilingual education programs. In reality, only 30 percent of students eligible for language services in Arizona were involved in true bilingual education programs. While it seems absurd to blame Arizona’s low achievement on a program in which the majority of students were not even involved, advocates of Proposition 203 successfully persuaded the voting public to see it that way. Massachusetts’ Question 2 After passing the law in Arizona in 2000, Unz mounted an attack on Massachusetts. On November 5, 2002, 70 percent of voters approved Massachusetts’ Question 2. Aligned with Arizona’s Prop 203, this version of the English for the Children program dismantled Massachusetts’ bilingual education programs and placed firm regulations on educators. Shifting from the original name of the instructional program as Sheltered English Immersion, Unz’s group modified the name to Structured English Immersion to appear more rigid in their approach. Opposition to Colorado Amendment 31 During the same year as the Massachusetts’ campaign, Unz also attempted to plant his views in Colorado. While English for the Children had succeeded in California, Arizona, and Massachusetts, Colorado voters shot down Unz in 2002. The English for the Children campaign in Colorado proved unsuccessful for many reasons. During the initial attempt to get the law on the ballot in 2000, the Colorado Supreme Court declared the bill unconstitutional due to deceptive and misleading wording (mostly about the waiver process). Not to be outdone, proponents of English for the Children regrouped and promised to return. In 2002, Unz was triumphant in getting his initiative placed on the ballot as Amendment 31 (formally titled English Language Education for Children in Public Schools). During those two years, pro-bilingual education groups (e.g., English Plus and Colorado Common Sense) were able to rally support across the state and promote their No-on-31 campaign. Instead of focusing on the benefits of bilingual education programs and promoting scientific research, opponents of English for the Children attacked the actual initiative. Ultimately, the focus of No-on-31 was narrowed down to three basic tenets summarized as PPC: (1) P—Parental involvement and choice would be eliminated; (2) P—Punitive measures in the

34

|

Bilingual Education

amendment (e.g., suing educators) are too extreme; and (3) C—Cost to the taxpayers will skyrocket if the amendment passes. Support for anti-Unz movement came in many forms. In September 2002, the board of education of Denver Public Schools voted unanimously to oppose Amendment 31. Democratic supporter Pat Stryker openly donated $3.3 million to the No-on-31 cause. Parents and educators organized to raise money and distribute literature. In all, it was a successful grassroots effort that enabled the voters of Colorado to understand the misguided nature of Unz’s approach. Five flaws underlying Amendment 31 were widely publicized: (1) it would limit the options currently available to educators; (2) such a law would create segregated classrooms; (3) parental choice was essentially eliminated due to the restrictive waiver process; (4) educators could be fired or banned for five years as a form of punishment; and (5) the amendment would require even more funding than schools were currently receiving. While Unz was able to fund attorneys to write and defend the initiative, pay workers to gather enough signatures to get the measure on the ballot, and financially support the Colorado staff of English for the Children, he was not able to buy public opinion. Eventually, Amendment 31 was shot down by a margin of 56 to 44 percent. Critical Thinking about English for the Children Unz and his supporters have managed to construct an image of themselves as defenders of kids who want to learn English but are being cheated by bilingual education. Unz ingeniously calls his campaign English for the Children. Without acknowledging the reality of bilingual education’s woes (e.g., lack of resources, disparate methodologies, and national standardization efforts), Unz is able to gloss over his true intentions of extricating languages other than English from public schools by promoting giving children the gift of English. In this light, who would not want their children to receive such a skill? With such an approach, Unz and his allies have been able to play off of surging racist and xenophobic sentiments while ironically distancing themselves from them. Sadly, the English for the Children campaign has been able to use this smoke screen strategy to garner the support of many well-meaning individuals concerned with equality and opportunity. Even though Unz was victorious in California, Arizona, and Massachusetts, we can learn from the demise of Amendment 31 in Colorado. Until bilingual education and multilingualism are truly understood and appreciated, the inherent flaws of initiatives like Unz’s need to be exposed on a grand scale, or he (and other likeminded groups) will continue to promote subtractive language policies around the country. EVALUATING SOCIAL CONSTRAINTS ON BILINGUAL EDUCATION The enrollment of students in bilingual education programs rose from 2.1 million in the 1990–1991 academic year to more than five million in 2003.

Bilingual Education | 35

A congressionally mandated study found that these students receive lower grades, are judged by their teachers to have lower academic abilities, and score below their classmates on standardized tests of reading and math. Furthermore, the dropout rate for foreign-born Latino students between the ages of 16–24 is an astonishing 44.2 percent (U.S. Department of Education 2000). In response to these types of educational trends, many people have pointed the finger at bilingual education programs as the cause of such widespread failure. Before pigeonholing bilingual education programs as determining underachievement, social views towards immigrants and broader educational practices must be addressed. First, public schools emphasize English as an indispensable skill for achievement. That is fine, but it is frequently addressed in such a way that immigrant languages are discredited, devalued, and highly stigmatized. Advocates of English-only programs declare language conformity as essential to success and promote linguistic diversity as social degradation and deviation. In programs where English is used as the sole medium of instruction, native speakers are automatically accorded higher levels of power and influence. This relegates minority languages to an inferior position and perpetuates an already existing marginalized role. As a result, bilingual education programs are defamed as inhibiting the acquisition of English and denying access to the American dream. Hidden behind this imposed negative facade is the true goal of bilingual education—to cultivate multilingualism and multiliteracy. Whereas supporting the students’ right to learn English is honorable, discrediting heritage languages and promoting subtractive language policies are outright demonstrations of bias. Maria Mendoza, chairwoman of Arizona’s branch of English for the Children, clearly articulated the vision of her organization, “Why do they want to keep them as prisoners in their culture and their heritage” (The Arizona Republic 2000, B1). Without realizing the fundamentally derogatory connotations of her statement, Mendoza expressed her group’s underlying ideological orientation: languages other than English are inferior and their spread threatens national unity. Asserting that English unites our nation implies that other languages are a threat. In this context, it can be argued that filtering out the threat and prominence of other languages can be accomplished by prohibiting their cultivation in public schools. Regardless of the true objective(s) of the English for the Children movement, whether it was to teach children English or to preserve the dominance of English in society, such laws strive to overturn heritage-language development in public schools. In Arizona’s case, opponents of bilingual education admittedly aimed to place academic progress aside in favor of acquiring English first, “Kids may have initial failures, but they get over it” (de Issai 2000, A1). The effects of this process are twofold. From a young age, immigrant children learn that their native language and culture are not valued in American society. They are involved in an educational context that does not permit them to use their native language to learn. Meanwhile, their natural academic progress is stymied during the time it takes them to acquire a sufficient level of English to be successful in the classroom. Within this context, education becomes a distressing game of constant catch-up. Simultaneously, students feel frustrated with the academic

36

|

Bilingual Education

world of English and discomfited with the low status of their native language. These conflicting messages ultimately produce low self-esteem that can result in depression and other psychological conditions. CONCLUSION In spite of the myopic view that many Americans have concerning the threat of minority languages, the predominance of English is not being eroded by growth of minority languages in the United States. Regardless of this fact, immigrant children continue to be the targets of ethnolinguistic cleansing. In 1975, the U.S. Commission on Civil Rights clearly stated, “it is not necessary for language minority children to be taught explicitly that their group is less valued” (quoted in Schmidt 2000, 132). Contrary to this position, at the heart of the English-only debate is the message that using any other language besides English is wrong. If we sincerely want language-minority children to achieve and successfully integrate into society, there needs to be a fundamental shift in the way policymakers and voters view immigrant communities. Instead of limiting educational resources and denying access to broader social networks, it is imperative that we build on the strengths that language-minority children have and demonstrate a deeper appreciation for their heritage and language skills. In a globalizing economy, fluent bilingualism is a positive professional trait. See also Bilingualism; Cultural Assimilation; Education; Education Costs; Official English Movement; Undocumented Children and the Schools References: Atkinson, Dwight. “Toward a Sociocognitive Approach to Second Language Acquisition.” Modern Language Journal 86, no. 4 (2002): 525–545; Bialystok, Ellen, and Kenji Hakuta. In Other Words: The Science and Psychology of Second-Language Acquisition. New York: Basic Books, 1994; Birdsong, David. Second Language Acquisition and the Critical Period Hypothesis. Mahwah, NJ: Lawrence Erlbaum Associates, 1999; Brandt, Elizabeth A. “The Official English Movement and the Role of First Languages,” in Perspectives on Official English: The Campaign for English as the Official Language of the USA, edited by Karen L. Adams and Daniel T. Brink. New York: Mouton de Gruyter, 1990; Chomsky, Noam. Knowledge of Language: Its Nature, Origin, and Use. New York: Praeger, 1986; Crawford, James. Hold Your Tongue: Bilingualism and the Politics of “English Only.” New York: Addison-Wesley, 1992; Crawford, James. Bilingual Education: History, Politics, Theory, and Practice. Los Angeles: Bilingual Educational Services, INC, 1999; Crawford, James. At War with Diversity: US Language Policy in an Age of Anxiety. Buffalo: Multilingual Matters, 2000; Crawford, James. “No Child Left Behind: Misguided Approach to School Accountability for English Language Learners.” Forum on Ideas to Improve the NCLB Accountability Provisions for Students with Disabilities and English Language Learners. Center on Education Policy: National Association for Bilingual Education, 2004; Cummins, Jim. “The Empowerment of Indian Students,” in Teaching American Indian Students, edited by J. Reyhner, 3–12. Norman, OK: University of Oklahoma Press, 2004; de Issai, C. “Bilingual Education is a Hot Issue.” East Valley Tribune, May 20, 2000, p. A1; Dulay, Heidi, Marina Burt, and Stephen Krashen. Language Two. Oxford: Oxford University Press, 1982; Escamilla, Kathy, Sheila Shannon, Silvana Carlos, and Jorge Garcia. “Breaking the Code: Colorado’s Defeat of the Anti-Bilingual Education Initiative (Amendment 31).” Bilingual Research Journal 27, no. 3 (2003): 357–382; Flannery, Mary Ellen. “Language Can’t Be a

Bilingualism Barrier.” NEA Today 24 (2006); Hosp, John L., and Daniel J. Reschly. “Disproportionate Representations of Minority Students in Special Education: Academic, Demographic and Economic Predictors.” Exceptional Children 70 (2004): 185–199; Johnson, Eric “Proposition 203: A Critical Metaphor Analysis.” Bilingual Research Journal 29, no. 1 (2005): 69–84; Johnson, Eric. “Dreams of (Under)Achievement: A Critical Metaphor Analysis of the American Dream and the Formation of Language Policy in Arizona.” Journal of Borderland Education 1, no. 1 (2006): 11–28; Kaltenbacher, Martin. Universal Grammar and Parameter Resetting in Second Language Acquisition. New York: Peter Lang, 2001; Krashen, Stephen. Under Attack: The Case Against Bilingual Education. Culver City, CA: Language Education Associates, 1998; Krashen, Stephen. “Bilingual Ed Foe Unz Used Distorted Facts.” The East Valley Tribune (Mesa, AZ), October 13, 2000, p. A19; McCarty, Teresa L. “Between Possibility and Constraint: Indigenous Language Education, Planning, and Policy in the United States,” in Language Policies in Education: Critical Readings, edited by J. W. Tollefson, 285–307. Mahwah, NJ: Lawrence Erlbaum Associates, 2002; McCarty, Teresa L. “Dangerous Difference: A Critical-Historical Analysis of Language Education Policies in the United States,” in Medium of Instruction Policies: Which Agenda? Whose Agenda?, edited by James W. Tollefson and Amy B.M. Tsui, 71–96. Mahwah, NJ: Lawrence Erlbaum Associates, 2004; MacSwan, Jeff. “Facts Elude Politician’s Perspective: My Turn.” The Arizona Republic, November 13, 2000 [Chandler Community Section]; Pease-Alvarez, Lucinda. “Transforming Perspectives on Bilingual Language Socialization,” in Language Socialization in Bilingual and Multilingual Societies, edited by Robert Bayley and Sandra R. Schecter, 9–24. Buffalo, NY: Multilingual Matters, 2003; Ricento, Thomas. “National Language Policy in the United States,” in Language and Politics in the United States and Canada: Myths and Realities, edited by T. Ricento and Barbara Burnaby, 85–113. Mahwah, NJ: Lawrence Erlbaum Associates, 1998; Schmidt, Ronald Sr. Language Policy and Identity Politics in the United States. Philadelphia: Temple University Press, 2000; Spolsky, Bernard. Language Policy. Cambridge: Cambridge University Press, 2004; U.S. Department of Education. National Center for Education Statistics. http://nces.ed.gov; United States Department of Education. No Child Left Behind. http://www.ed.gov/nclb/landing.jhtml?src=ln; Zentella, Ana Celia. “Who Supports Official English, and Why?: The Influence of Social Variables and Questionnaire Methodology,” in Perspectives on Official English, edited by K. L. Adams and D. T. Brink. New York: Mouton de Gruyter, 1990.

Eric J. Johnson and Valerie A. Ramos

BILINGUALISM Americans are embroiled in a controversy over language and maintaining bilingual ability. Many believe that English should be the official language of the United States and that immigrants should assimilate by making English the language spoken in their homes and by their children. Immigrants are stereotyped as wanting to preserve their homeland languages. Other languages, including Spanish, are viewed as inferior to English, which is perceived as the world language. This public view is maintained during an era of intensive globalization in which speaking a second language is a marketable skill and encouraged among high school and college students. Many Americans are unaware that bilingualism, speaking two languages fluently, and multilingualism, speaking three or more languages fluently, are highly

| 37

38

|

Bilingualism

desirable skills. Educators have traditionally been encouraged to facilitate a transition to speaking English among immigrant children. Because of this, the United States has been viewed as a language graveyard. Bilingualism has been viewed negatively and blamed for problems learning English, when it could be a step towards solidifying America’s position in the global economy. SOCIALPSYCHOLOGICAL DEFINITION OF BILINGUALISM Bilingualism is a learned and socialized skill that is defined by both objective proficiency and social competency in two languages. Definitions of bilingualism fall within a continuum in which one end is based on objective measures, such as how well a person writes and speaks two languages. Subjective measures fall at the other end of this continuum, where the meaning of intonation, gestures, gazes, gesticulation, body movement, and even how an individual is physically situated in space relative to another person make a difference. Consequently, the definition of bilingualism is currently contested because it would require social consensus and validation if one is to understand how objective or subjective measures are interpreted and used in a social context to estimate a person’s degree of bilingual fluency. EARLY HISTORY OF LANGUAGE PLURALISM AMONG VOLUNTARY IMMIGRANTS The founders of the United States did not see a need to designate English as the official language of government and commerce. Bilingualism among Americans and immigrants was valued and non-English languages were protected and even subject to social and political encouragement. Northwestern European immigrants, who came voluntarily and spoke other languages, were tolerated. Before the late nineteenth century, many states had constitutional or legal statutes recognizing other languages; California and New Mexico recognized English and Spanish. Pennsylvania recognized English and German. Louisiana recognized English and French. During the earlier history of the nation, bilingual education or homeland language instruction was somewhat common. The Germans maintained German-speaking schools and cultural pluralism. LANGUAGE CONFLICT AND INVOLUNTARILY INCORPORATED IMMIGRANTS Language diversity was only challenged in the case of groups that were incorporated by conquest, such as the American Indians (Native Americans), Mexicans impacted by the redrawing of boundaries after the U.S.-Mexico War of 1848, and brought to the United States involuntarily, and African slaves. These groups became the first racial-ethnic minorities in the United States. Because the American Indians and Mexicans had been involuntarily incorporated as minorities and subsequently were subject to prejudice and discrimination, they protected their language and culture.

Bilingualism

By the late 1800s, the social context of non-English language acceptance among voluntary Northwestern European immigrants had changed in response to a high volume of immigration and increased language diversity. In the 1880s, when the source of immigration switched to Southern and Eastern European nations, the size of the incoming population and degree of language diversity became a social issue. At this time, support for immigrants’ use of their language of origin declined and English-only laws emerged. Laws were passed prohibiting teaching in any language but English, especially prohibiting the use of German. World War I and xenophobic (fear of strangers) attitudes toward Germans ended the tradition of German-language instruction. Theodore Roosevelt considered language to be important in forming national identity. He thought that immigrants speaking foreign languages would be divided in their political loyalties between the United States and their homelands. In the early twentieth century, 30 states passed laws mandating that immigrants had to receive evening English-language instruction and by 1923, 34 states had Englishlanguage instruction laws banning immigrants’ use of their language of origin. The 1924 Supreme Court case, Meyers v. Nebraska overturned state English-language instruction laws as violating due-process rights of the U.S. Constitution. Fear of cultural and language difference between the Northwestern Europeans and Southern and Eastern Europeans generated anti-immigrant and restrictivelanguage policies. This backlash was so intense that the Johnson-Reed Act of 1924 established quotas favoring Northwestern Europeans and effectively reducing immigration. Similarly, the American Indian tribes, Mexicans, Puerto Ricans, and African-origin peoples were viewed as so-called ‘others,’ members of out-groups who did not match the socially valued traits of Americans. In the early twentieth century, the homeland languages of immigrants and bilingualism came to be devalued. Non-English languages became the subject of anti-immigrant policies meant to disenfranchise racial, ethnic, and cultural minorities considered non-American. Being non-English speaking came to be regarded as a threat to the cohesiveness and stability of the nation. The Nationality Act of 1906 made English language learning a condition of naturalization for citizenship. This provision enabled social control of who was admitted into the dominant white group. Language was substituted for race and ethnicity as a basis for excluding groups from social opportunity because of their national origin. The precedent of making citizenship for immigrants contingent on speaking English was of major symbolic importance because it made being English speaking equivalent to being American. Ideas about the social pathology of non-English speakers proliferated. Speaking a foreign language was thought to promote separatism, maintain allegiance to the homeland, and diminish American patriotism. The ultimate rejection came when speaking a non-English language was equated with low intelligence. The hereditarian view was that culture was based in biology, and immigrants and non-English speaking minorities, including bilinguals, were viewed as culturally inferior. From a sociological perspective, the hereditarian view and its theoretical descendents is labeled as the deficit model. Bilingualism was viewed as both a cause and effect of low intelligence.

| 39

40

|

Bilingualism

From 1910 to 1950, the anti-immigrant backlash resulted in over 1,000 convictions for subversive speech. Thousands of cases were tried in which individuals who were speakers of a non-English languages were brought to trial for representing what some referred to as a “clear and present danger.” Immigrant and minority culture, race/ethnicity, and language were used to disenfranchise and exclude individuals from joining the mainstream. Language was used as a covert way of implementing cultural and racial/ethnic discrimination.

THE CIVIL RIGHTS MOVEMENT AND LANGUAGE The Civil Rights Movement legally changed the status of racial/ethnic and cultural minorities in the United States. The Civil Rights Act of 1964 explicitly outlawed discrimination. A major change occurred with the passage of the 1965 Immigration and Nationality Act (INA). The INA repealed the racist quota system enacted in 1924. They were replaced with legal immigration quotas based on family reunification and professional skills. This law permitted the massive demographic changes of the new immigration that would lead to new pressures for language and cultural assimilation. During this period, racial and ethnic minorities in the United States gained language rights. The Bilingual Education Act of 1968, which was allowed to expire in 2002, provided federal support for bilingual learning although it was primarily focused on a transition to English and not on fostering bilingual fluency among adults. The 1965 Voting Rights Act required that voter ballots be made available in all locally used languages. Progress toward language rights continues. In Hernandez v. New York, monolingual Spanish speakers were given the right to be seated on a jury. In 2000, President William Clinton signed Executive Order 13166, which required organizations receiving federal funding to improve access to services for individuals with limited English proficiency.

POST1965 IMMIGRATION In 2004, the Current Population Survey indicated that 34.2 million legal immigrants, and an estimated 11.5 to 12 million undocumented immigrants, were living in the United States. When those numbers are combined, the foreignborn population of the United States is approaching its pre-1924 historical peak of 14 percent. The new immigration has greatly increased language diversity in the United States. Prior to 1924, immigrants primarily came from Southern, Eastern, and Northwestern Europe. Today, many of the languages spoken in Asia, Africa, and Latin America are represented in the national population. Three hundred and thirty six languages, of which 176 are indigenous languages, are spoken in the United States. In reality, despite the monolingual English ideal, the United States is a multilingual country. Latin American immigrants predominate because of the proximity of Mexico and Central America to the United States. In addition, social and economic ties

Bilingualism

| 41

between the Northern and Southern hemispheres of the Americas have fostered the growth of international networks of immigrants and temporary migrants (sojourners). Fifty-three percent of legal immigrants to the United States are from Latin America. Fifty-six percent (6.2 million) of undocumented immigrants are estimated to be from Mexico. More than three-quarters of new Latino immigrants speak Spanish and many are monolingual. This has created a massive Spanish-speaking population in the United States. The 2000 U.S. Census counted 28.1 million Spanish speakers. Among Latinos, about 51 percent are bilingual and speak English very well, but 40.6 percent indicate that they speak English less than very well. Based on this, it is probable that there will be a trend towards bilingualism in the Latino population well into the future. This group makes the United States the fifth largest Spanish-speaking nation in the world. SPANISH SPEAKING IMMIGRANTS IN THE TWENTYFIRST CENTURY The presence of a large population of Spanish-speaking Latinos in the United States has created a debate about bilingualism. Policymakers who take a Latino perspective question whether assimilationist language policy can help to incorporate such a large group of monolingual Spanish speakers. Spanish speakers and bilinguals are concentrated in the Southwest and along the U.S.-Mexico border and Spanish has become a normative language of use. Spanish speakers in the Southwest are under intense pressure to assimilate. Spanish became a minority language simply because a political border was drawn, and it is not unreasonable to expect that many would continue to speak Spanish.

SPANISH IS THE OFFICIAL LANGUAGE OF GOVERNMENT IN EL CENIZO, TEXAS El Cenizo, Texas is located on the U.S. side of the Rio Grande River and has a population of 7,800. Ninety percent of El Cenizo residents speak Spanish as their primary language, although some have knowledge of English. To facilitate civic participation in government and reduce apathy, El Cenizo’s city commissioners passed an ordinance in August, 1999 making Spanish the official language at town meetings and for governmental communication with the community. Official El Cenizo documents and meeting agendas are in English, but the meeting is conducted in Spanish. In the United States, where the Official English movement has many supporters in the European American population, many native-born speakers reacted to the El Cenizo Spanish ordinance as if national sovereignty was threatened. In El Cenizo, speaking Spanish and bilingual ability are valued as useful to maintaining community political participation. El Cenizo has made a successful adaptation that enables all of its residents to participate in government.

42

|

Bilingualism

THE DEBATE ABOUT IMMIGRANT SPANISH SPEAKERS AND ASSIMILATION The mainstream American population is primarily comprised of monolingual English speakers. This population has a bilingual or multilingual component only to the degree that college preparatory programs in high school and colleges have emphasized learning a second language in degree requirements. At preschool age and in early childhood, there is a window in which language is more rapidly and easily acquired. Unfortunately for the American school system, both public and private, learning a second language has often been delayed until after this presumably biological window has closed. Many monolingual, English-speaking students do not value speaking a second language and dutifully struggle to get through this requirement. Nevertheless, the most educated group in the mainstream population has been exposed to a second language. Monolingual, English-speaking Americans, regardless of whether they have taken foreign language courses, have reacted negatively to the presence of a large Spanish-speaking population and question whether they will be able to assimilate. Learning to speak English is an essential aspect to buying into the American dream. Yet this does not mean that Spanish cannot be bilingually retained. Being a monolingual English speaker is not what is required to be successful, but being a bilingual who is fluent in English is required. There are many reasons why Spanish has persisted among Latinos. The first reason is that historically, Mexicans were involuntarily incorporated by conquest and then subject to prejudice and discrimination. A second reason is that the U.S.Mexico border has been and remains relatively permeable to Mexicans and other Latinos who continue to enter the United States speaking Spanish and infusing new life into the Spanish-speaking community in the United States. The U.S.Mexico War of 1848 and the Gadsden Purchase created a physical boundary with Mexico that was crossed relatively freely despite immigration laws that began to be enacted in 1917. Border-crossing enforcement for Mexicans was stepped up in the 1950s, and limitations on Mexican immigration were made a part of the hemispheric quotas in the 1965 Immigration and Nationality Act. This act had the positive consequence of permitting a degree of legal Latino immigration, but demand created by Latinos migrating to seek work and U.S. employers seeking workers. This created a parallel and long-lasting undocumented, Latino migrant stream, which resulted in many decisions to permanently settle. The Latino component of the new immigration has meant that the language has survived in Spanish-speaking ethnic communities. Along the U.S.-Mexico border and in certain Latino communities in the Southwest, it may not be necessary to learn English for economic survival, although a concentration of limited-English, proficient-Spanish speakers usually predicts wages lower than the national norm. While a residential concentration of Spanish speakers is not a problem in and of itself, these lower wages raise questions about complex social inequalities. The forces impacting long-term Spanish speakers and new Latino immigrants may include prejudice and discrimination, marginalization due to social exclusion and a failure to invest in Latino communities and public schools because of de facto segregation related to housing discrimination. Public school

Bilingualism

funding is dependent on property taxes and economically marginalized Latino communities have limited monies. Despite extant social inequalities, Spanish-speaking immigrants are learning English as fast as earlier European immigrants. Following a pattern of language shift, members of the first generation are monolingual Spanish speakers, members of the second generation are bilingual, and if the third generation is bilingual, English is the preferred language. Nevertheless, sociologists found that generational language shift can result in tension between first-generation parents and second-generation children. They suggest that the best practice in making a transition to English is for both parents and children to pursue bilingualism. Nevertheless, both bilingualism and monolingual Spanish is stigmatized in the United States because of its association with less-educated, low-skilled, possibly undocumented immigrants. Many native-born Americans regard bilingualism as a transitional phase in learning to become an English speaker. Bilinguals are regarded as handicapped, not gifted. One of the results of the marginalization of Spanish-speaking bilinguals is that a deficit model of bilingualism persists to this day. Opposition to bilingual education is often argued on the premise that low school achievement is due to learning in two languages, or it is suggested that students want to rely on Spanish or other devalued languages. A major result of negative attitudes towards bilingualism and Spanish language is an anti-immigrant backlash, partly focused on undocumented residents. Anti-immigrant organizations promote the idea that bilingualism fosters ethnic separatism, threatens national unity, and discourages cultural and language assimilation. At the present time, nativists have popularized the idea the there is a language threat and that English will be displaced. ASSIMILATION PRESSURE AND THE SOCIAL VALUE OF BILINGUALISM The United States values monolingual speakers, and standard-English speakers have a higher social status. Social psychologists indicate that there are norms driven by social consensus about how a language should be spoken. A simple example of one of these norms is the rejection of the use of the word ain’t in English, and its labeling as inappropriate or lower class speech. Social psychologists who study the development of bilingualism indicate that whether a language is valued or devalued shapes the social context of bilingual speakers. When bilingualism is valued, the process is referred to as valorization. In the United States and many world nations, bilingualism is devalued, which means it is de-valorized. The United States’ history, geographic location, and social values impact how bilingualism and the various foreign languages an individual can speak are valued. INTERGROUP RELATIONS AND THE VALUATION OF BILINGUALISM Social psychologists differentiate between the groups an individual belongs to and socially identifies with, the in-group, and those groups in which the individual is subject to prejudice, social distancing, and discrimination, the out-group.

| 43

44

|

Bilingualism

Language is an important aspect of social identity, and if bilingualism is a characteristic of an out-group (such as an immigrant minority) prejudicial attitudes, disdain, and discrimination can result. People socially categorize themselves using an us versus them dynamic, and this subjective evaluation impacts how bilingual speakers are viewed in a monolingual society like the United States. At present, the Official English (English-only) movement is promoting the idea that Spanish will displace English or compete with English as a national language, shattering unity. The term Hispanophobia refers to the native-born population’s fears that Latino culture and language will divide the United States. Unfortunately, devaluation of Spanish and bilingualism is associated with stereotypes about poverty, urban social problems, and being an undocumented immigrant. The fear that English is competing with Spanish is misplaced, but anti-immigration proponents refer to Mexifornia or the Latinization of the Southwest—or even the United States. It is clear that immigration restrictionists have made the language controversy into an us (native-born citizens who speak English) versus them (foreign or native born Spanish speakers and bilinguals) conflict. Stereotypes Stereotypes are over-generalizations about a group and its status. Positive or negative stereotypes impact how the bilingualism of immigrant groups is valued. Mexicans are viewed as a less educated, lower socio-economic status group and are impacted by negative news coverage of high percentages of undocumented border crossers. Because Mexicans are negatively stereotyped as being lower status, speaking Spanish is de-valorized. Mexican Spanish speakers are devalued while Spanish nationals who speak Spanish are highly regarded. European Spanish is considered a romance language and positively stereotyped. The social context, in this case national origin, impacts how a second language will be viewed by Americans. If an immigrant group, typically an out-group, speaks a second language, the attitude of language superiority of a high-status in-group will create social pressure for bilingualism. Spanish speakers in the United States are under pressure to learn English and, historically, have been viewed as having a language deficit. Being Spanish speaking, developing bilingual ability in Spanish and English, and even the teaching model known as bilingual education have been negatively regarded. Bilingual education is actually viewed by native-born English speakers as slowing or reducing academic achievement, although nontransitional bilingual education can actually speed learning. Assimilation or Acculturation Since the founding of the United States, immigrants have faced pressure for monocultural assimilation to speaking English. Although the idea of the melting pot suggests multiple cultural contributions, despite some linguistic borrowing, English has been the dominant language. Assimilation by substitution, a process in which the language and culture of the homeland is abandoned, has been a

Bilingualism

part of Americanization policy. The other possibility, assimilation by addition, in which an individual becomes bilingual in English and the immigrant homeland language, has not been favored. Both early (1776–1879) and later (1880–1924) immigrants of various nationalities ranging from Germans to Italians have become solely English speakers, blending into what has become a European American majority population. Non-European groups, such as Mexicans and Asian groups have also not been as readily accepted because of devaluation of physical (phenotypic) difference. For example, Mexicans, despite varying phenotype, were originally labeled as brown, not white because of their indigenous heritage. Prejudice and discrimination encourage in-group bonding and maintenance of traditional language and culture as a means of social support. Bilingualism becomes a strategy for immigrants to make contact with mainsteam social groups. Mexican immigrants have been subject to two social markers of out-group membership: Spanish language and phenotype. Unlike language, changing one’s appearance is out of the question, so bilingualism became a group pattern. Among Mexican immigrants and Mexican Americans, bilingualism is valorized for creating a bridge between the ethnic group and European Americans. Bilingualism and the Shift from an Immigrant Language to English Persisting ethnic identity among immigrant groups, civil rights laws and greater societal acceptance of cultural difference is creating a society in which bilingualism is more accepted. The trend towards support of assimilation through language substitution, however, continues to produce an intergenerational shift towards becoming English speakers among immigrant groups. Research indicates that at local, state, and national levels, Mexican Americans make an increasing transition from Spanish to English over three generations, but they maintain receptive bilingualism. Receptive bilingualism refers to an ability to still understand the original homeland language even if proficiency is not readily apparent. This enables Spanish speaking grandparents to communicate with English speaking grandchildren with mutual understanding. Despite receptive bilingualism, a shift towards becoming monolingual English speakers occurs by the third generation. ATTITUDES TOWARD BILINGUALISM Negative Attitudes When a person is subject to prejudice and discrimination on the basis of phenotype, it is an overt action. In the post–civil-rights era, having a negative attitudes towards a language is a more subtle way of establishing social distance and making it difficult for immigrants to become socially mobile. The Official English (English-only) movement discourages the speaking of immigrant homeland languages and bilingualism.

| 45

46

|

Bilingualism

The European American group has a negative attitude towards bilingualism and has used legal means to try and suppress it. Originally, efforts were directed towards a constitutional amendment but failure has resulted in a focus on legislating state and federal statutes. Many states have passed laws making English the official language of government, but the fate of these laws will be established in the courts. Alaska and Arizona have had their laws overturned by State Supreme Courts. Throughout the world, despite bilingualism’s usefulness, negative attitudes towards it predominate. Although being a fluent bilingual brings an advantage in a globalizing world, negative attitudes towards bilingualism can literally cause bilingual individuals to feel ashamed. The negative reactions of some European Americans to hearing another language can motivate them to act with hostility and create an escalating sequence of negative majority-minority interaction. Positive Attitudes French, like Spanish, is a romance language. In the United States and Mexico, a French or Italian accent is socially valued and seen as a sign of an educated and sophisticated person. When a member of the majority group hears a Spanish, Asian, or Arabic accent, the reverse may be true. Far from valuing all languages as a sign of human invention, some languages are valued and some are not. In the United States, social psychological research demonstrates that the social ranking of a group in a stratification hierarchy will determine whether there is a positive or a negative reaction. The Mexican origin population is lower ranked and seen negatively while the French are high status and viewed positively. INTERGROUP RELATIONS AND BILINGUALISM ATTITUDES When groups are of equal status, they are more receptive to bilingualism. When a group is dominant, although not necessarily a numerical majority, they are likely to encourage monolingualism and discourage bilingualism. Negative social categorization of groups can lead to conflict. The development of in-group and out-group status is sufficient to create animosity and conflict. Because language and bilingualism separate groups, bilingualism is likely to call into question national allegiance and create friction between higher status and lower status groups. Historical relations, socio-economic hierarchies, and political power shapes intergroup relations and attitudes towards bilingualism. Once a dominant social group develops an opinion about bilingualism, it often becomes a normative rule. The dominant group’s ability to categorize speakers of other languages and bilingualism as an out-group trait is a major contributor to norms regarding language and bilingualism. Social psychologists indicate that if people with prejudice are the first to speak out about another group, they will set a norm based on negative attitudes and discriminate against immigrants. On the other hand, equal status group contact could foster more positive views and egalitarian treatment. The social psychology of bilingualism implies that changing

Bilingualism

attitudes, new laws, and application of civil-rights laws can make a more positive environment for bilingualism. Intergroup social conflict can result in changes that favor the preservation of bilingualism. Vega (2008, 192) states that, “Views on bilingualism do not have to be oppressive.” Multicultural societies can negotiate a more positive environment for bilingualism and multilingualism. Practicality is a source of support for bilingualism because it is a job-related skill that brings a higher salary. BILINGUALISM AS A SOCIAL REALITY The groups, native-born and immigrant, interacting in a society shape the social reality in which bilingualism is viewed. It is very contradictory that our society places value on the learning of a second language in the college preparatory high school track and in college. Knowledge of a second language is the trait of a highly educated person. At the same time, whether or not immigrant knowledge of a homeland language or bilingualism is accepted is very impacted by the negative social valuation that is placed on it in intergroup reaction. Cognitive categorization of members of in-groups as more valued than out-group members shapes how bilingualism is perceived. In a more subtle manner, individual expectations, group stereotypes and attitudes that develop internally impact whether bilingualism is valued or devalued. Bilingualism is a group marker in American society. The higher status European American group is no longer bilingual. Bilingual immigrant groups can use English to access resources, but conflict can arise due to competition for resources. This intergroup analysis implies that attitudes towards bilingualism are unchanging and norm-driven. Nevertheless, social factors such as ethnic pride, the spending power of immigrant groups, and the development of affluent immigrant enclaves (such as the Cubans in Miami) indicate that bilingualism can persist. The growing Spanish-speaking population in the United States is of interest to businesses that may cater to this niche market. Although language shift from a homeland language and bilingualism to speaking English occurs over three generations, the third generation may regret the loss of the original homeland language and culture. There is social pressure to make English a norm in American society, but Spanish remains meaningful for group identity and is refreshed by the entrance of new immigrants who are Spanish speakers. The United States is again entering a period of high ethnic heterogeneity and Americans are being exposed to Spanish. President George W. Bush used Spanish in some of his addresses, which gives the language legitimacy. Although assimilation by speaking English is a U.S. norm, bilingualism is likely to persist. Globalization creates a need for bilingual personnel and this is reflected in the salary increments and bonuses paid to attract such workers. Politicians are eager to attract Latino voters and to use Spanish in their campaigns. As a world power, the United States has become a focus of terrorists and bilinguals who are fluent in Arabic are needed. Many terrorist messages taken from the internet remain to be translated because of lack of personnel.

| 47

48

|

Bilingualism

CONCLUSION English has become the world language for the Internet and global commerce. This creates a major incentive for new immigrants, including Spanish-speaking Latinos, to learn English. Nevertheless, the United States is not likely to remain a global superpower if bilingualism and the learning of a second language are not pursued. Bilingualism is a professional asset and monolingual, English-speaking Americans need to realize this. Despite the economic value of bilingualism, language conflict is likely to persist during this period of extensive new immigration. See also Bilingual Education; Cultural Assimilation; Education; Education Costs; Official English Movement; Undocumented Children and the Schools References: Castillo, Mariano. “El Cenizo is Booming on the Border.” Express-News Border Business. September 6, 2005. www.mysanantonio.com/news/mexico/stories/MYSA090605. 01B.EL_CENIZO.d4716bc.html; Contereras, Raoul Lowery. “A Little Town in Texas Roars in Spanish. (Commentary).” La Prensa San Diego. www.laprensa-sandiego.org / archieve/sept10/texas.htm; Diaz, Madeline Baro. “Border City Goes All Spanish.” English First. www.englishfirst.org /elcenezo/elcenizoap81999.htm; Fitzgerald, Jill. “Views on Bilingualism in the United States: A Selective Historical Review.” Bilingual Research Journal 2, nos. 1 and 2 (1999):35–56.; Frieden, Terry. “FBI Getting Lost in Translations: Half Million Hours of Intelligence Materials Not Yet in English.” CNN. www.cnn. com/2004/LAW/09/27/fbi.translation/; Garcia, Eugene E. “Bilingual Education in the United States,” in An Introduction to Bilingualism: Principles and Processes, edited by Jeanette Altarriba and Roberto R. Heredia, 321–344. New York: Lawrence Erlbaum, 2008; Garcia Coll, Cynthia, Keith Crnic, Gontran Lamberty, and Barbara H. Wasik. “An Integrative Model for the Study of Developmental Competencies in Minority Children.” Child Development 67 (1996): 1891–1914; Giles, Howard, and Nikolas Copeland. Language Contexts and Consequences. Pacific Grove, CA: Brooks/Cole, 1991; Grimes, Barbara F., and Joseph E. Grimes. Ethnologue: Languages of the World, 14th ed. Dallas, TX: Sil International, 2000; Hurtado, Aida, and Luis A. Vega. “Shift Happens: Spanish and English Transmission Between Parents and Their Children.” Journal of Social Issues 60 (2004):137–155; Perea, Flavia, and Cynthia Garcia Coll. “The Social and Cultural Contexts of Bilingualism,” in An Introduction to Bilingualism: Principles and Processes, edited by Jeanette Altarriba and Roberto R. Heredia, 199–244. New York: Lawrence Erlbaum, 2008; Portes, Alejandro, and Ruben Rumbaut. Legacies: The Story of the Immigrant Second Generation. Berkeley, CA: University of California Press, 2001; Reveron, Derek. “Miami: The Capital of Latin American E-Commerce.” Hispanic Business. www.hispan icbusiness.com/news/newsbyid.asp?id=3014; Rodriguez, Cristina M. “Accommodating Linguistic Difference: Towards a Comprehensive Theory of Language Rights in the U.S.” Harvard Civil Rights-Civil Liberties Law Review 36 (2001): 133–223; Romaine, Suzanne. “The Bilingual and Multilingual Community,” in The Handbook of Bilingualism, edited by Tej K. Bharia and William C. Ritchie. Malden, MA: Blackwell Publishing, 2004; Schildkraut, Deborah J. Press One for English: Language Policy, Public Opinion, and American Identity. Princeton, NJ: Princeton University Press, 2005; Spolsky, Bernard. Language Policy. Cambridge, UK: Cambridge University Press, 2004; Tapia, Sarah Tully. “English Isn’t the Goal in Miami: The Goal is Fluency in Languages.” The Online Service of the Arizona Daily Star. www.astarnet.com/bilingual/day3–3.html; Tjafel, Henry. “Social Stereotypes and Social Groups,” in Intergroup Behavior, edited by John C. Turner and Howard Giles, 144–167. Oxford, UK: Blackwell, 1981; Tjafel, Henry, and John C. Turner. “An

Birthright Citizenship | 49 Integrative Theory of Intergroup Conflict,” in The Social Psychology of Intergroup Relations, edited by William G. Austin and Stephen Worchel. Monterey, CA: Brooks/Cole, 1979; Vega, Luis A. “Social-Psychological Approaches to Bilingualism,” in An Introduction to Bilingualism: Principles and Processes, edited by Jeanette Altarriba and Roberto R. Heredia, 185–198. New York: Lawrence Erlbaum, 2008.

Judith Ann Warner and Luis A. Vega

BIRTHRIGHT CITIZENSHIP Although birthright citizenship is standard practice, there is a concern that it is being used to sidestep the legal immigration admittance system due to immigration preferences extended to undocumented parents. This is viewed as unfair to those with long waits to legally enter the United States. Birthright citizenship does mean that every child born in the United States is automatically a citizen. It benefits the unauthorized population by giving them more of a legal stake in the society for which they provide their labor. The federal government has been seeking to take away this status because they think it rewards unauthorized entrants. The states have a volatile reaction to this issue because they are bearing the cost of hospital births, education, and other social services for these children. The fiscal concerns surrounding birthright citizenship are at odds with concerns about keeping families together, helping children to grow up in the country whose culture they are familiar with, and the bureaucratic nightmare of requiring all undocumented parents to establish citizenship before receiving their child’s birth certificate and citizenship. This is a debate that is not likely to be easily settled because it would involve over-turning interpretations of the 14th Amendment of the U.S. Constitution and examining who we are as a nation with a proud immigrant tradition. WHAT IS BIRTHRIGHT CITIZENSHIP? Citizenship law regulates formal, legal membership in a nation. Citizens have social, economic, and legal rights and obligations to their country. Citizenship is acquired under two types of rights: jus soli (citizenship due to being born in a particular country) or jus sanguinis (citizenship due to being born to parents of a particular country). Jus soli citizenship is often referred to as birthright citizenship while jus sanguinis is known as heritage citizenship. Birthright citizenship refers to the automatic right to citizenship of a child born to a mother in the United States. It is a form of jus soli citizenship; the United States also grants citizenship to children born to U.S. citizens on foreign soil, which is jus sanguinis citizenship. Currently, pregnant women who are visitors on visas or unauthorized entrants to the United States can give birth to children whose birth certificate registry makes them automatic citizens. At age 21, these offspring can sponsor parents or relatives for citizenship. This does not mean that parents or relatives will receive automatic entry status as they become a part of the legal

50

|

Birthright Citizenship

immigration quota system. It may take months for parents to be admitted with visas. If the parents are undocumented and apprehended, however, they can be sent to their country of citizenship for up to ten years before being legally admitted. Due to immigration bureaucracy inaction, however, undocumented parents may achieve de facto residency status. These parents have residency in fact (de facto) rather than de jure (legal). Because of issues about the length of time it takes to achieve legal residency, many do not consider birthright citizenship as a major incentive for people to attempt unauthorized entrance, yet it remains a political hot potato. BACKGROUND Since 1965, an increasing legal immigrant population has led the government to examine all of the ways in which immigrants legally enter the population. Any noncitizen woman who gives birth to a child in the United States can receive a birth certificate which carries the right of U.S. citizenship for her baby. The birthright citizenship issue is particularly acute in the border states of California and Texas as well as other areas in which an unauthorized-immigrant population has developed. There is no official tally of the number of children born to undocumented immigrants; unofficial estimates range from 100,000 to 350,000 a year. Smith and other critics of current immigration law say that one in 10 U.S. births—and one in five births in California—are to women who have entered the country illegally. U.S. Census and Current Population Survey data indicate that because of birthright citizenship, many mixed-status families live in the United States. A mixed status family is one in which one or both parents are undocumented and at least one child is a birthright citizen. The United States is complicit in the development of mixed-status families because of immigration policy, civil rights, and family law. The primary reason for mixed-status family creation is birthright citizenship. Fix and Zimmerman found that 75 percent of children in families with at least one immigrant parent are birthright citizens. In mixed-status families with a noncitizen parent and a citizen child, 89 percent of children are citizens. A second feature of immigration law that leads to mixed-status families is the family reunification principle of the 1965 Immigration and Nationality Act. Immediate family members are given an immigration preference. Spouses, minor children, and parents of citizens with this unrestricted right are the most frequent type of immigrant to enter the United States as legal permanent residents. Another aspect of immigration policy which promotes mixed status family formation is the increase in types of immigration statuses which occupy a zone between legal permanent resident and undocumented resident. For example, immigrants may be given a temporary permanent resident status if they are refugees or fleeing disaster. Immigrants paroled into the country for humanitarian reasons may not be expected to leave. There is a set of in-between, ad hoc statuses in which many potential immigrants may be classified.

Birthright Citizenship | 51

UNDOCUMENTED BIRTH COSTS Many undocumented Mexican and Central American immigrants are coming to Texas to give birth, which strains hospital resources and costs hundreds of millions of dollars. In Houston, it is estimated that from 70 to 80 percent of births at Ben Taub General Hospital and Lyndon B. Johnson General Hospital are what is derogatorily referred to as anchor babies. Star County, Texas on the U.S.-Mexico border has a taxpayer-supported hospital which is patronized by many entrants without residency status. The emergency room does not collect money in advance and the delivery and the baby’s citizenship rights are often free. Many pregnant women along the border arrive as walk-ins—women in labor who go to an emergency room. These mothers are more difficult to deport once they have a U.S.-born child. Star County Memorial Hospital’s unpaid medical bills increased from $1.5 million in 2002 to $3.6 million in 2005. Over five years, unpaid bills, not all of which are attributable to immigrants, will reach almost $13 million, and Star County is proposing a 25 percent tax increase. The federal government is setting aside $1 billion in Medicaid funds for emergency care for undocumented immigrants over a four-year period. Hospitals are likely to have to process paperwork and then only receive 20 cents on the dollar. It is almost impossible to calculate what bills are owed by migrants because most hospitals do not ask if a patient has papers. Hospital staff resist acting in a policing role because it can alienate people in need of care.

SUPPORTERS OF MAINTAINING BIRTHRIGHT CITIZENSHIP Advocates of maintaining the birthright citizenship privilege contend that the unauthorized population is composed primarily of moral, hard-working individuals who should be supported in attaining legalization and naturalization. The U.S. Catholic Bishops’ Committee on Migration and Refugee Services has stressed that citizenship is important to showing humans respect and giving immigrants dignity. The United States is the world’s most open nation for immigrants; their successful adaptation and assimilation is dependent on offering them a stake in the nation through citizenship for themselves, through naturalization, or birthright citizenship for their children. Ending this form of citizenship would marginalize these immigrants and make the United States less successful as an immigrant-receiving nation. Children who are adapting and growing up accustomed to American culture could be yanked away from their homeland if this form of citizenship were ended. The stereotype of a woman with a birthright citizen child is that of a border crosser who has a motive to use an American hospital to have her baby. Yet a majority of undocumented parents born in Mexico or Central American have been living and working in the United States over a period of time. A politically strategic constituency that is opposed to ending birthright citizenship is Latinos.

52

|

Birthright Citizenship

They are the group with the highest birthrate in the United States, and both the stereotype of the pregnant Latino woman and the idea of taking away citizenship from babies is offensive to them. Politicians are wary of politically alienating this important group. Undocumented immigrants maintain that they came to the United States to find a livelihood, not to have children. They believe that the attack on birthright citizenship is unfair and that all children should be born equal. Parents in families separated by immigration status have a hard time explaining to children why their father or mother is not present. The Pew Hispanic Center estimates that 14.6 million people are part of a mixed-status family in which at least one parent is undocumented. Sixty-four percent of the mixed-status-family children, 3.1 million, are birthright citizens. Birthright citizenship is not a way of avoiding the immigration bureaucracy indefinitely, and unauthorized immigrants pay a price in fear and waiting. Although the United States has a principle of family reunification in its legal immigration policy, it can take years or decades before the quota on admittance ends family separation. Visa petitions are processed slowly and some immigrants wind up as visa overstayers or try to enter unauthorized in order to be with their families. U.S. immigration law literally creates partially fugitive families that mix legal and unauthorized members. Undocumented individuals need to make serious decisions about where their families will live and work to try to avoid detection and family separation. Families of mixed nationality are deeply impacted by the debate on immigration. Parents are worried that they will not be able to stay with their citizen children or that their family will have to return to Mexico. It is undeniable that birthright, child citizens are the ones who are harmed when parents are deported. The older birthright children of undocumented parents have a history of having lived in and adapted to the American culture. Benjamin Cabreras, from Mexico, and Londy Cabreras, from Guatemala, brought a lawsuit asking that they be able to stay with their two teenage daughters. In 2002, a Los Angeles immigration judge made a rare decision in ruling that the parents could maintain residency. The basis of the legal decision was that one daughter was academically gifted and that parental deportation would “savagely” and permanently interrupt her schooling. This case is now under appeal. At present, in the Department of Homeland Security, the Immigration and Customs Enforcement branch can deport the undocumented parents of children who are citizens by birth. In practice, immigration judges can rule in favor of the parents and grant them legal status. Many immigration processors simply choose not to undertake deportation of parents with birthright children and they remain as unauthorized residents. Nevertheless, cases are coming to immigration court and the parents do not always win. In Los Angeles, parents with a child who has hemophilia won the right to stay while the undocumented parents of a child with a mild learning disability were deported. When parents are deported, some leave their children with relatives, others depart with the child, and yet others seek to remain illegally by disappearing underground. Family fragmentation is a common result of deporting parents of birthright citizen children.

Birthright Citizenship | 53

Breaking up families is a dubious venture. Removing parents of birthright children could result in a massive number of children needing foster care at a tremendous cost to the states. At present, although birthright children receive a public education at taxpayer cost, those with an undocumented parent(s) often are less likely to receive health and other benefits. Despite being U.S. citizens, children born to undocumented immigrants are more likely to live in poverty and crowded housing and are less likely to have health coverage than children born to citizens, experts say. Citizen children in mixed-status families are eligible for public assistance, but their parents often fear that seeking government help could lead to deportation or hurt their chances for future legalization. Michael Fix, vice president of the Migration Policy Institute, a think tank, indicated that undocumented parents do not want to apply for benefits because they fear discovery and deportation as a public charge. Although immigrants are stereotyped as coming to the United States to receive public benefits, many believe in independence for themselves and their children. Supporters of birthright citizenship feel that eliminating it creates another social barrier between those who are socially included and those who are socially excluded. Social divisions that exclude a part of the population from full participation in this country are a violation of democratic principles. Ending birthright citizenship would result in the first generation of native-born noncitizens in this society. These individuals would become part of a stateless class and subject to prejudice, discrimination, and the resultant feelings of alienation. In France, a nation which practices heritage or jus sanguinis citizenship, extensive rioting occurred among the second generation of immigrants because they were treated as a lesser class. If the United States disenfranchises children born in the United States to non-native parents, it could create an alienated group that will engage in destructive forms of social struggle, as occurred in France. Peter Nyers contends that 9/11 greatly impacted immigrants because of the idea that some individuals become so-called citizens by accident. Yaser Esam Hamdi, designated an enemy combatant during the war in Afghanistan, received U.S. Constitutional protections because he was born to Saudi parents on a threeyear temporary work permit. He only resided in the United States as a toddler. Despite a debate over whether Hamdi was an essential citizen or an accidental citizen, it becomes evident that territorial birthright is a transparent and reliable way to establish citizenship. It is a legal concept that permits an international system of citizenship rights, as well as inequalities and exclusions based on place of birth. Ending the use of birthright citizenship as a legal concept would have severe administrative repercussions for children born to undocumented parents. Stateless children would have a compromised citizenship status because of their parent’s unauthorized entrance or illegal stay. Citizenship might be established by the parent’s country of origin, but some parents come from different countries of origin. Many children might be required to petition to another country to establish legal status. In addition, not having birthright citizenship would create massive bureaucratic problems as the citizenship of each baby’s parents would need to be verified. The present rule makes it easy to administer the system of

54

|

Birthright Citizenship

birth certificate processing. If all parents had to provide papers to prove their children’s citizenship, it would overburden immigration enforcement. OPPONENTS OF BIRTHRIGHT CITIZENSHIP Opponents of birthright citizenship refer to children born to undocumented immigrants as anchor babies. These children increase U.S. population growth and are eligible at maturity to anchor or pull extended family members within the legal immigration quotas. It is purported that thousands of pregnant women from Mexico and other countries come to give birth in the United States. They can enter as temporary visitors or without authorization. After birth, they receive a U.S. birth certificate and passport for the child and gain a permanent link to this country. Birthright citizenship is considered unfair because it allows noncitizens and their American children to bypass the naturalization process of legal immigrants. Spouses and children who have applied for entrance to the United States face quotas that often result in a long wait for legal entrance. It is unfair for unauthorized women to use a loophole to gain entrance for their child, and through that child, legal residency for themselves. Those opposed to birthright citizenship believe that unauthorized immigrants try to have children quickly after their arrival because it complicates their removal. Legal action taken to prevent deportation of undocumented parents with birthright-citizen children rarely succeeds. Under a legal change 10 years ago, parents were required to prove that their deportation would cause “exceptional and extremely unusual hardship” to the children. Birthright citizenship becomes an issue at the outset because of hospital costs. The medical cost of labor and delivery are estimated at from $1,500 to $1,800 per child. Legally, the government has to cover these costs. The baby receives the right to a public school education, federal welfare benefits, and the right to vote in adulthood. Birthright citizenship carries many taxpayer costs in the high-immigration states of California, Texas, and Florida, and it disproportionately impacts U.S.Mexico border communities. Along the U.S.-Mexico border, Mexican women may cross to give birth in U.S. hospitals in order for their children to be U.S. citizens. Later, these children may attend school in U.S. border cities in neighborhoods in which the family maintains an address. In effect, the child leads a bi-national life, spending the preschool years in a Mexican border city and then crossing the border to attend a U.S. public school, which is considered to be better. Certain issues connected to birthright citizenship concern how the medical and other costs of these children born to noncitizens are to be covered. At present, states have to pay for natal hospitalization, education, and other social services to which these children are entitled. One result is a conflict between the states, whose taxpaying citizens may be reluctant to fund this and the federal government, which regulates immigration and is viewed as rightfully owing the cost for permitting the situation. States are suing the federal government and

Birthright Citizenship | 55

pressuring for reimbursement for these additional costs since the federal government regulates immigration and states are not given that right. Critics of birthright citizenship point out that few nations confer automatic citizenship by birth, jus soli citizenship. For example, a child born in France to a noncitizen can apply for citizenship at age 18, but only if they resided in France continuously for five years. Indeed, birthright citizenship is a feature of some North, Central, and South American nations, the new world, but not nations of other continents, the old world, unless there has been upheaval or an effort to recruit external population. The countries that grant birthright citizenship include Argentina, Brazil, Cameroon, Canada, India, Jamaica, Mexico, New Zealand, Pakistan, Spain, United States and Venezuela. Almost all industrialized countries and all European nations require at least one parent to be a citizen or legal resident before conferring citizenship at birth. European countries have used jus sanguinis legal principles, requiring parents to be citizens before conferring citizenship. In Europe, immigrant parents and their children have been excluded from citizenship. Children of immigrants must apply for citizenship after fulfilling residency and age requirements. Over time, as the immigrant population in Europe has increased in size, some countries are liberalizing citizenship requirements. In 1999, Germany changed from a jus sanguinis policy to a more liberal jus soli policy. Great Britain and Ireland, which had maintained liberal jus soli policies, have reversed and passed more exclusive jus sanguinis laws. The United States is divided on the issue of birthright citizenship. A 2005 Rasmussen poll indicated that, a majority (47%) support ending birthright citizenship while 41 percent are against it. A resolution to end birthright citizenship was attached to House of Representatives Bill 678, The Citizenship Reform Act of 2005, which has not been ratified by the Senate. Margaret Lee, author of a House Congressional Research Service Report, indicates that there are many legal issues related to the wording of the various congressional amendments, including which parents are included or excluded and the constitutionality of a Congressional vote to end birthright citizenship. It is uncertain if the Supreme Court will allow a legal end to birthright citizenship. The 14th Amendment grants citizenship to those born in the United States under the “complete and exclusive jurisdiction” of the United States. After an 1898 Supreme Court ruling in United States v. Kim Ark, it was argued that being born on U.S. soil was made more important than whether the parents were under the jurisdiction of the U.S. or had allegiance. It was thought that subordinating birthplace to jurisdiction would end the practice of coming to the United States to establish birthright children as an anchor. Terminating birthright citizenship might yield a small advantage in the war on terror. The U.S. birthright citizenship of Yasser Hamdi, was an issue taken to the U.S. Supreme Court because he was classified an enemy combatant fighting for the Taliban in Afghanistan. Yasser Hamdi, born to Saudi parents in Louisiana, had birthright citizenship but spent little of his lifetime in the United States, living instead in Saudi Arabia. As a citizen, he received rights and benefits

56

|

Birthright Citizenship

a noncitizen combatant did not receive. Ending birthright citizenship would remove constitutional protections in the case of enemy fighters such as Hamdi. Those opposed to birthright citizenship make three points: (1) individuals who enter without documents should not be allowed to use children born on U.S. soil as an anchor to move ahead of legal applicants for immigration; (2) individuals who do not have primary or full allegiance to the United States should not be allowed to have children born to them in the United States gain instant citizenship, and (3) individuals who were born in the United States but develop enemy allegiance should not be able to use the fact of birth on U.S. soil to gain constitutional citizenship legal protections. HISTORY Before the post–Civil War Civil Rights Act of 1866 and the Fourteenth Amendment were passed, African Americans did not have the right of U.S. citizenship. In Dred Scott v. Sandford (60 U.S. 393 (1856)), the U.S. Supreme Court ruled that individuals of African ancestry could not be U.S. citizens even if free. As they were descended from African slaves, and slaves were considered noncitizens by the constitution, so too these people were an ascribed class denied citizenship. The 14th Amendment of the U.S. Constitution is cited as a basis for birthright citizenship of babies born to citizens, legal permanent residents, and unauthorized entrants. In 1866, the Civil Rights Act declared that: “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” The Fourteenth Amendment states: “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The Supreme Court decided in United States v. Wong Kim Ark (169 U.S. 649 (1898)) that all babies born in the United States and under its jurisdiction are citizens. Only children of diplomats or hostile occupants during warfare were excluded because their parents would not fall under U.S. jurisdiction. Children of undocumented entrants, which was not a type of activity subject to extensive legal control at the time, were not excluded, and the rights extended by this decision have never been reversed. Recent legislative proposals to restrict birthright citizenship to jus sanguinus have not been passed. Proposals have included an amendment to the Citizenship Clause of the Fourteenth Amendment or to birthright provisions of the Immigration and Nationality Act (INA) of 1965. Some have interpreted Article 1, Section 8 of the U.S. Constitution and the Fourteenth Amendment as giving authority to Congress over citizenship and naturalization, not the judiciary. Proposals that do not necessitate a new constitutional amendment include statutorily defining by an act of Congress who is under the jurisdiction of the United States, which goes beyond the decision in United States v. Wong Kim Ark supra. Any legislation passed by Congress is likely to be subject to the federal system of checks and balances and to challenged and taken through the federal court system and on to the Supreme Court.

Border Deterrence Strategy

CONCLUSION Birthright citizenship is a central issue in the immigration-restriction debate. Ending the practice would add another layer of cost to government bureaucracy as citizens would have to file to prove the authenticity of their own citizenship. The debate is not, however, centered on this type of cost. Instead the focus is on the cost of the unauthorized and new immigrant population and how and if the unauthorized population will be able to use children as anchors to enter U.S. society. Birthright citizenship does create a loophole for bypassing the long wait to enter the United States as a legal immigrant, but the United States has permitted the growth of an unauthorized population and any measure that further excludes this population is unlikely to address the issue in any positive manner. It is likely that states will pressure the federal government, which has the right to regulate immigration, to extend support for the costs of birthright-citizenship children. The political and fiscal tug of war between the federal government and the states will catch children in the middle and influence whether or not they feel at home in our society. References: Fix, Michael, and Wendy Zimmerman. “All Under One Roof: Mixed Status Families in an Era of Reform.” International Migration Review 35, no. 2 (2001): 397–419; Lee, Margaret Mikyung. U.S. Citizenship of Children Born to Alien Parents in the United States. Washington, DC: Congressional Research Service Reports to Congress, 2006; Nyers, Peter. “The Accidental Citizen: Acts of Soveriegnty and (Un)making Citizenship.” Economy and Society 35, no. 1 (2006): 22–41; Pinkerton, James. “‘Border Baby’ Boom Strains S. Texas: More Illegal Immigrants Are Pouring into the State to Give Birth.” Knight Rider Tribune Busness News, September 24, 2006, p. 1; Weil, Patrick. “Access to Citizenship: A Comparison of Twenty-Five Nationality Laws,” in Citizenship Today: Global Perspectives and Practices, edited by Aleinikoff, Alexander and Douglas Klusmeyer. Carnegie Endowment for International Peace, 2001.

Judith Ann Warner BORDER DETERRENCE STRATEGY The U.S. Border Patrol relies on a strategy of prevention through deterrence in urban regions. Having officers deployed along the border, in view, is thought to make temporary economic migrants and potential permanent immigrants stop and think twice. In this high-stakes border game, the migrants have taken their business elsewhere—on their own or with the help of organized smugglers who help them travel through remote desert and mountainous regions, sometimes making transporting drugs a part of the price. As a result, more than 3,000 migrants have died of heat or cold related problems. Unauthorized entrants have been funneled into ever more dangerous and violent spaces in an attempt at evasion. Death is a sad outcome for would-be workers and family members who do not survive this crossing. The number of U.S. Border Patrol apprehensions continues at a high level—a possible indicator of enforcement success, but unauthorized entrance and drug smuggling continues unabated. The U.S. Border Patrol is on the line and taking the heat.

| 57

58

|

Border Deterrence Strategy

BACKGROUND The U.S. Border Patrol is a part of Immigration and Customs Enforcement (ICE, formerly the Immigration and Naturalization Service [INS]) in the Department of Homeland Security. This organization has a history dating back to the 1920s and has received constant budget upgrades since the early 1970s. The organization is primarily active along the U.S.-Mexico Border. The U.S. Border Patrol is the enforcement arm of the southern border enforcement strategy. It uses active patrols, checkpoints and high technology to detect individuals trying to enter without inspection and visas or other documents. Traditionally, U.S. Border Patrol enforcement has been spread out along the entire border, with various sectors targeted to be strengthened. This resulted in fluctuation in the ability to apprehend undocumented crossers. In 1994–1995, Attorney General Janet Reno and Immigration and Naturalization Service (INS) Commissioner Doris Meissner introduced the Southwest Border Strategy. They proposed targeting the areas of the southwest border most often successfully penetrated and increased personel and high technology infrastructure. The Southwest Border Strategy relies on prevention through deterrence. Deterrence is a concept used in criminal justice to denote a condition in which the negative consequences of illegal behavior outweigh the rewards and induce individuals to obey the law, thus, preventing illegal behavior. For the U.S. Border Patrol, deterrence is theoretically accomplished by raising the risk of apprehension to a level so high that individuals attempting to enter without authorization will give up the idea. This strategy is meant to make legal entry the preferred and only choice for border crossers.

THE ARIZONA BORDER CONTROL INITIATIVE PHASE II The Arizona border has become a major human smuggling corridor for individuals diverted from the urban ports of entry along the southern border. The prevention through deterrence strategy used at urban ports of entry has diverted human smuggling to remote and inaccessible rural desert regions. In 2004, 384,942 individuals were apprehended. This represents an increase of 42 percent over the previous year. The operation increased U.S. Border Patrol agents, including the addition of 125 experienced agents and 379 trainees. Since 9/11 the language used to describe operational goals has been linked to counterterrorism by specifying that all cross-border illicit activity is controlled. In Arizona, there has been publicity about the passage of smugglers and their escorted unauthorized entrants on private property, criminal activity linked to drugs and human smuggling, and exposure deaths among unauthorized entrants in the west desert corridor. The west desert corridor effort is connected to the creation of the Minutemen, a civilian group that patrols the border and alerts the U.S. Border Patrol to the presence of undocumented border crossers. The Minutemen are one of several vigilante organizations active in the southwest border region.

Border Deterrence Strategy

HISTORY In 1994, Operation Gatekeeper in San Diego, California initiated the prevention through deterrence strategy. A five-mile zone along Imperial Beach was estimated to account for 25 percent of all unauthorized crossings nationwide. After enforcement was tightened at Imperial Beach, a 66-mile area in the San Diego sector was included and apprehensions in 2001 dropped dramatically for a corridor that had accounted for an estimated 45 percent of all illegal entries. Operation Gatekeeper was then extended into the Imperial Valley and El Centro, California as human smugglers attempted to find ways around the U.S. Border Patrol. In 1998, the additional staffing of 140 agents in El Centro resulted in 226,580 apprehensions, a 55-percent increase over the prior year, in part due to the fact that the checkpoints were manned at all hours. In 1999, 78 more agents were deployed, and apprehension dropped to a very low level as individuals were deterred from trying to cross there. In 1993, Operation Hold the Line was initiated in El Paso, Texas, located across from Ciudad Juarez, Mexico. In the 1990s, the Rio Grande River in El Paso was contained in concrete conduits and surrounded with fencing and U.S. Border Patrol agents. After 1993, intensified enforcement reduced apprehensions by 50 percent. As a result of that success, Operation Rio Grande was begun in McAllen, Texas, located across from the city of Reynosa, Mexico. Two hundred and sixty new U.S. Border Patrol officers were added in McAllen and 205 positions were added in the Laredo, Texas sector. Laredo is located across from Nuevo Laredo, Mexico. In this region, infra-red scopes, night-vision goggles, underground sensors, and the IDENT biometric fingerprint system were introduced. Because the border in this area is identified as the U.S. side of the Rio Grande River, all weather roads were built. This involved bulldozing and destroying much of the natural ecosystem vegetation on the American side and creating an eyesore view. In some areas, the scenery was further impacted by the construction of fences. Currently, Operation Rio Grande is centered in Brownsville, McAllen, and Laredo, Texas, the three major border ports of entry along the southeastern Texas border. In FY 1998 apprehensions decreased by 35 percent in Brownsville and 27 percent in Laredo but the smuggling traffic shifted to other areas of South Texas. The small town of Falfurrias experienced a 40 percent increase in apprehensions in 1998. In 1995, Operation Safeguard was directed at undocumented entry between Nogales, Mexico and its sister city, Nogales, Arizona. The U.S. Border Patrol presented this strategy as directing potential unauthorized entrants to more open regions where they could be more easily detected. In each of these cases, deterrence was directed at decreasing unauthorized entrance into cities and local communities where it was thought individuals could gain cover to enter U.S. territory. In 2002, Arizona had 1,000 agents as compared to less than 300 in 1994. In the Arizona border communities of Nogales and Douglas, 19 low-light surveillance cameras were installed to enable surveillance by one person, enabling more officers to be on duty. In 1999, 145 more agents were sent to Nogales and 350 to Tucson, Arizona. Border-access roads were widened and four

| 59

60

|

Border Deterrence Strategy

miles of border lighting was added to Nogales (three miles was added to an existing 1.3 miles in Douglas). The deterrence strategy has resulted in a concentration of personnel and high technology in the traditional corridors of greatest activity. At present, Operation Gatekeeper (San Diego, California), Operation Hold the Line (El Paso, Texas), Operation Rio Grande (McAllen and Laredo, Texas), and Operation Safeguard (Tucson, Arizona) are sectors of greatly increased personnel concentration. The impact of increased enforcement is first seen in an increased number of apprehensions but, as a deterrence effect occurs, a drop in apprehensions begins as individuals realize there is poor possibility of getting through. After tightening enforcement in urban areas, the southern border’s three major operational corridors: South Texas, West Texas/New Mexico, and California/ Arizona were not considered to be under operational control in remote areas. Individuals were deterred from entering through settled areas, but began to risk their lives crossing in remote areas. The impact of the new strategy is lauded by some for making the migrants suffer, although individuals primarily cross for temporary work or to be reunited with their families. Others think that there is a concern that terrorists could use developing human and/or drug smuggling infrastructure to enter the United States. In the new strategy, the U.S. border is treated as a seamless line in which ports of entry are interspersed with large areas of open desert. Heightened securitization of ports of entry is matched by increased surveillance of open regions. Ports of entry along the U.S.-Mexico land border became even more important to the nation’s economy after the passage of the North American Free Trade Agreement between the United States, Canada, and Mexico. Nevertheless, besides being corridors for passage of goods, these ports and attached routes to the interior are used by human smugglers, drug traffickers, and others who would illegally transfer contraband. The INS was able to greatly reduce waiting times for individuals, cars, and trucks crossing legally, but it is suspected that most of the nation’s illegal drug supply passes undetected through these ports of entry due to problems in detection and even corruption among ICE personnel. After 9/11 the U.S. Border Patrol became a part of the U.S. Customs and Border Protection in the Department of Homeland Security and added counterterrorism to its objectives. Their goal is to establish a substantial probability of apprehending terrorists and weapons trying to enter between ports of entry. The prevention through deterrence strategy is being applied to prevent both unauthorized entry of immigrants and terrorists. One enhancement is the capacity to quickly deploy both temporary and permanent units. Prior to 9/11 the southern border received much more focus than the northern border. In the relatively unguarded North, most attempts at unauthorized entry occur through urban ports using fraudulent documents, false claim to citizenship, or misrepresentation of reasons for entry. There is much less U.S. Border Patrol activity in rural regions along the shared Canadian border. This is changing in response to new security concerns.

Border Deterrence Strategy

| 61

There are three components of the U.S. Border Patrol’s post-9/11 national strategy. First, to prevent entry of terrorists and weapons of mass destruction. Second, to strengthen national security between the ports of entry to combat terrorism, unauthorized entry, and drug or other contraband smuggling. Third is to protect U.S. citizens from drugs and potentially harmful devices, materials, or organisms. The U.S. Border Patrol has arrested over one million unauthorized entrants annually. In the past, this figure has included individuals who have been arrested on more than one occasion and deported to the home country through the catchand-release program that ended in 2007. In addition, the U.S. Border Patrol seizes over one million pounds of marijuana and 15–20 tons of cocaine annually. The U.S.-Canada border covers 4,000–5,000 miles of land and water, some of which freezes in the winter and can be crossed on foot or by snowmobile. Ninety percent of Canada’s population lives near this border and the U.S. Border Patrol has expressed concern that some individuals and groups present a threat to U.S. national security and that smuggling operations could support movement of terrorists and weapons. Since 9/11, the number of agents assigned to the Canadian border has increased from 350 to 1,000, but this border is not as monitored as the southern one and more sensors and monitoring platforms will be put in place. The U.S. Border Patrol is forming international policing ties with Canadian law enforcement. To maintain operational control over U.S. Borders, the U.S. Border Patrol (2006) has established the following objectives: (1) “Establish substantial probability of apprehending terrorists and their weapons as they attempt to illegally enter the United States between the ports of entry;” (2) “Deter illegal entries through improved enforcement;” (3) Apprehend and deter smugglers of humans, drugs, and other contraband; (4) “Leverage ‘Smart Border’ technology to multiply the efforts of enforcement personnel;” and (5) “Reduce crime in border communities and consequently improve the quality of life and economic vitality of regions.” In 2006, Operation Jump Start deployed 6,000 National Guard troops to the major southern border corridors. This effort was meant to supplement the U.S. Border Patrol while 6,000 additional U.S. Border Patrol agents were trained. The

OPERATION ICE STORM In Arizona, it has been alleged that there are violent human smuggling groups. Operation ICE (Immigration and Customs Enforcement) Storm targeted human smugglers connected to violent crime. It netted 343 defendants whose arrest resulted in the release of 655 migrants being held against their will. Seizure of 288 weapons and 7.4 million in currency occurred. Suspects in custody are being held on charges of money laundering, weapons possession, homicide, and hostage-taking. This operation is an example of a tactic called disruption in which immigration (ICE) and Customs (CBP) authorities cooperate to identify criminal and terrorist organizations.

62

|

Border Deterrence Strategy

National Guard provided support by relieving U.S. Border Patrol officers from administrative duties and providing logistical support and intelligence. All of the changes in U.S. Border Patrol strategy, however, are disputed because of both human-rights and international issues. The United States remains firmly behind its deterrence strategies and its use of increasingly paramilitary tactics. SUPPORTERS OF U.S. BORDER PATROL SECURITY STRATEGY The role of the U.S. Border Patrol in maintaining security on the line has been repeatedly emphasized and consistently funded at very high levels. Apprehension statistics were originally emphasized as the measure of its effectiveness, but with the new prevention through deterrence strategy, declining apprehensions are lauded as a sign of success in the areas of urban operations. All of the intensified surveillance efforts, Operation Gatekeeper, Operation Hold the Line and Operation Rio Grande are focused on reducing unauthorized entry in urban areas and communities, the locations of smugglers’ safe houses. One reaction to this controversy is to promote ever-increasing border securitization. Colorado Congressional representative Tom Tancredo, and a majority of members of the House of Representatives, passed legislation in 2005 to strengthen deterrence along the remainder of the southwest border, states with coastlines, Puerto Rico, and the border with Canada. OPPONENTS OF DETERRENCE BORDER SECURITY STRATEGY The major human-rights issue connected to the U.S. Border Patrol’s prevention by deterrence strategy is the stopping of undocumented immigrants from attempting to cross in urban areas. They are detoured to crossing desert and mountain regions in which they risk death from heat or cold exposure. President Bush walked a tightrope in dealing with the issue of undocumented migration. The American public has repeatedly opposed unauthorized entrance, now with greater fervor than ever. In 2004, Bush advocated against unauthorized entrance by promoting legal means to obtain work. He described the risk of loss of life in “dangerous desert crossings” and the problem of trusting one’s life to “brutal rings of heartless smugglers.” While Bush has appeared contradictory in both promoting legal entrance and increased enforcement, it is apparent that he leans towards controlling migration by allowing temporary guest workers, which would reduce the death rate. The southern border deterrence strategy resulted in decreased apprehensions in areas of intensified enforcement, presenting the image of successful deterrence. An image of reduced apprehension statistics is not the same as preventing human smugglers and undocumented entrants from finding other methods to cross. One major consequence of the southern border strategy has been an increase in the sophistication of human trafficking. In the past, individual smugglers would accept a small payment to transit people across the border and

Border Fence

into the interior. Today, smuggling is carried out by organized criminal organizations that charge much higher prices and even extort funds or labor from individuals after a successful crossing. A major response has been for migrants to find riskier ways of entering, even at the cost of their lives, and to become permanent “undocumented immigrants.” Opponents of this strategy believe this is not success but, rather, failure. Undocumented migration across the U.S.-Mexico border has often become permanent immigration to avoid risk in crossing. Another issue related to apprehensions is how the statistics are calculated. The number only reflects people arrested, detained, and sent back to their home countries. As a result, the number of apprehensions can include multiple arrests of the same person trying more than one time. Since giving out one’s real identity makes it harder for a person to enter legally, only biometrics such as finger-printing make it possible to successfully identify a repeatedly unsuccessful crosser. As a result, it has been hard to know with any accuracy how successful the U.S. Border Patrol was in apprehending unauthorized crossers. For Mexicans, catch and release was a policy that resulted in deportation to just across the border, where they could try again. The end of catch and release and the establishment of a period of detention for all crossers does not solve the problem of people who reattempt the crossing after being held. Only a system that can determine any crosser’s identity and number of tries will produce an accurate statistical count. References: Dunn, Timothy. The Militarization of the U.S.-Mexico Border. Austin, TX: Center for Mexican American Studies, 1996; Nevins, Joseph. Operation Gatekeeper: Office of Border Patrol, 2006. National Border Patrol Strategy. Washington, DC: U.S. Customs and Border Protection; Office of the Border Patrol. National Border Patrol Strategy. U.S. Customs and Border Protection, U.S. Department of Homeland Security; U.S. Border Patrol. The National Border Patrol Strategy. Bureau of Citizenship and Immigration Services, U.S. Department of Homeland Security. www.bcis.gov.

Judith Ann Warner

BORDER FENCE To prevent unauthorized entrants from crossing the U.S.-Mexico border, the construction of partial or complete fencing has been passed in Congress. Since 9/11 this project has been referred to as a border fence. Does the United States have the sovereign right to block off a border with a neighboring country, or does it insult Mexico and violate the rights of people to freely move about the globe? Both Americans and Mexicans residing on the border view it as offensive and no similar action has been proposed for Canada. Economic migrants from Mexico, Central, and South America have been forced to cross in ever-more remote and hazardous regions, this change has in turn raised the death toll. The solution for preventing these deaths could be legalizing increased immigration rather than fencing the border. While fencing could prevent some criminal activity along the border, it might promote more human smuggling. Border fencing was first installed in urban locations along the CaliforniaMexico border and in Arizona, New Mexico, and southeast Texas. In 2008, 670

| 63

64

|

Border Fence

additional miles in south Texas is under construction. The degree of security offered by the fence varies. Often rural fencing is no more than a railing to deter vehicles. Other sections of the border fence located near cities and communities are comprised of a steel plate wall or two fences that are 15 feet high and run parallel to each other with a track for motor vehicles in between. Individuals or groups crossing the border without authorization trigger motion sensors and alert the U.S. Border Patrol. On one side of each of the two parallel fences is eight feet of coiled barbed wire and before the barbed wire, are ditches to prevent SUVs and trucks used by human and drug smugglers from crossing. In more remote areas, rail fences have been installed to prevent vehicle crossing. BACKGROUND The U.S.-Mexico border is 1,951 miles long and crosses urban areas, desert, and mountainous regions. Historically, the highest rates of unauthorized entrance have been through the San Diego, California and El Paso, Texas urban areas, which suffered increased crime due to the unlawful measures taken to cross migrants and attempts to assault and rob them during their passage. These are the sites at which the first border fences have been built. Fencing began with the installation of 14 miles of steel wall as a part of Operation Gatekeeper in the Tijuana-San Diego undocumented immigration corridor. It was made with steel plates that served as makeshift aircraft runways during the first Iraq War. They are covered with rust and are ugly. In the San Diego region, its 40 miles of primary 10-foot-high fence with horizontal steel corrugation is easy to climb. After the first wall, a 10 foot secondary wall that is 15 feet high and more difficult to climb has steel mesh wall that is sunk in concrete. This appears effective but these walls have been tunneled under. At Otay Mesa, San Diego, a half mile, seventy-fivefoot-deep tunnel with electricity and ventilation was discovered with ground penetrating radar. It connected to a Tijuana industrial park and contained bales of marijuana. It is plausible that this tunnel was also used for human smuggling. U.S. Border Patrol officials indicate that the San Diego wall was never meant to stop unauthorized entrance, but to slow people down. A fence that caused injury would render the United States subject to liability lawsuits. Tunnels are a narcotrafficker escalation in the effort to maintain smuggling routes. In Arizona between the U.S. city of Nogales and Ambos Nogales, Mexico, border walls were built in conjunction with Operation Safeguard. Many additional fences have been constructed in Arizona, but are not as high or secure in remote rural areas where the U.S. Border Patrol considers it easier to apprehend people. In rocky and mountainous areas, a simple rail barrier which impedes cars or trucks but not foot travelers exists. Although Operation Gatekeeper and Operation Safeguard were intended to be temporary, they became permanent. The result was diversion of unauthorized entrants and human smugglers to more remote areas and an almost complete drop in apprehensions in the urban areas that were fenced. Tony Payan (2006) refers to what occurred as a “balloon effect.” Fences did not stop unauthorized immigration over the long run. Instead, unauthorized crossers choose different

Border Fence

and more difficult rural desert areas that are hazardous. Fences encouraged traffickers to use ever more sophisticated methods. Since 2001, 21 cross-border tunnels have been discovered in California and Arizona. The Senate confirmed the U.S. House of Representatives Secure Border Fence Bill of 2006 to authorize and partially fund construction of 700 miles of doublewalled fencing along the U.S.-Mexico border. The sites include two spots in California, most of the Arizona border and heavily populated areas of Texas and New Mexico. Fourteen known drug smuggling corridors are included. Department of Homeland Security Secretary Michael Chertoff does not favor a physical fence and wanted to deploy a virtual electronic fence instead. One result of this controversy is that the fence may never be fully extended. The fence does not seal off the entire border and leaves open the question of whether another balloon effect will occur in unauthorized immigration that will become more costly and more dangerous. Protests and lawsuits over proposed border walls in south Texas occurred, but in 2008 the Supreme Court turned down hearing a case against border fencing. SUPPORTERS OF BORDER FENCING Proponents of an extended border fence argue that a border fence is needed for three reasons: (1) to reduce unauthorized immigration; (2) to block drug and other smugglers; and (3) to prevent terrorists from entering through the so-called back door. A border fence is seen as a tool that with accompanying technology that will allow the U.S. Border Patrol to improve enforcement. A Rasmussen phone survey indicated that 60 percent of a random sample of 1,500 Americans supported a border fence to control immigration. Only a minority of voters were in opposition: 26 percent. Patrick Buchanan advocates building a fence along the entire 2,000-mile U.S.Mexico border. He believes it would show the exact border location, separate the two nations, and permanently enhance security. Although the limited border fences already in place have been likened to the Berlin Wall, he does not agree. After World War II, the Berlin Wall was constructed between the North American Treaty Alliance occupied zone and the Soviet Union zone in Berlin, Germany to prevent Eastern Europeans and Soviet citizens from crossing into a non-Communist zone and permanently immigrating. Supporters of a U.S.Mexico border wall feel that the Berlin Wall locked a population in and made them captive. In contrast, the proposed wall would keep unauthorized entrants out. Is the glass half empty or is the glass half full? Complete fencing of the border would leave two hundred openings or ports of entry for vehicles, trucks and railroads that allow trade, travel and border tourism. Viewing the border fence would be a major deterrent to individuals and small groups trying to cross. It has been suggested that a two dollar crossing fee, would help finance the construction of the fence, paying back the cost over time. Patrick Buchanan suggests that the fence might be perceived positively by Mexican border residents because of the increased risk of crime in bordercrossing zones such as the Tijuana-San Diego corridor. Prior to the construction

| 65

66

|

Border Fence

of a 14-mile fence in this area, there were individuals and gangs that committed rape, robbery, and even homicide. This gang activity was separate from drug smuggling, an additional concern. Border homicides occurred at a rate of ten per year and decreased to zero after the fence was installed. Drug busts of SUVs and trucks dropped from three hundred a month to zero along the fence. Mexico experiences a high level of corruption because of the low salary of government employees. The Mexican police and military stationed on the U.S.Mexico border and at ports of entry have been accused of rape, robbery, and physical assault on unauthorized individuals crossing through Mexico from Central and South America. Both the Mexican police and military seek them out to take their money and/or deport them throughout Mexico, and particularly at Mexico’s southern border. Women have been sexually assaulted, and unauthorized migrants are alleged to have been beaten to death. One positive impact of the Tijuana-San Diego fence was that land values rose on the U.S. side of the border within fourteen miles of the fence. Supporters of fence construction indicate that it would make national parks like the Organ Pipe Monument, Indian reservations such as that of the Papago in Southern Arizona, and ranches safer places. One of many key human-rights issues is that fencing in remote desert or mountainous border regions would prevent the deaths of hundreds of unauthorized crossers from dehydration, heat exhaustion, cold exposure, starvation and/or injury. It would also stop the accumulation of areas of trash left by unauthorized crossers in fragile desert and mountain ecological zones. The more the border is fenced, the more unauthorized entrants are funneled into specific areas making enforcement more efficient. The American public is chiefly concerned about unauthorized immigration and terrorism. The chief motivation, however, may not originate from the war on terror. Border security has been a part of the war on drugs since the tight control of the Florida coastal drug smuggling corridor resulted in a balloon effect displacing drug trafficking to the U.S.-Mexico border. Ultimately, the government views fence placement as a national security issue primarily connected to drugs, although it is represented as an effort to control immigration and terrorism. There are areas along the U.S.-Mexico border in which even the U.S. Border Patrol is threatened by heavily armed smugglers. The U.S.-Mexico border is a major drug and human smuggling platform and transnational organized criminal groups employ high technology to counter each step in the escalation of border control. There is concern that the profit motive would cause such groups to accept payment from terrorists attempting to cross and/or to assist them in crossing weapons of mass destruction such as dirty bombs or hazardous, active biological organisms such as anthrax. Repeatedly, the issues of the war on terror have been linked to U.S.-Mexico border security, although the 9/11 incident did not involve U.S.-Mexico border crossers. OPPONENTS OF BORDER FENCING The president of Mexico, Vincente Fox (2000–2006), ministers of several Latin American countries, and Mexican intellectuals consider the construction

Border Fence

of a border wall to be “shameful.” The Mexican press condemned the wall project as a xenophobic and racist act. Many Mexican papers ran political cartoons showing Uncle Sam putting up a fence covered with insults to Mexicans. The construction of a border fence is viewed as a major slap on the face by the nation of Mexico. It implies that the United States is superior to Mexico and it implies social problems originate on the Mexican side, not the American side. The United States is protected from Mexico, not vice versa. President Fox vowed to start an international campaign to stop the fence. Opponents in Mexico, Central America, and Latin America argue that an approach that respects labor rights and human dignity is needed. Mexicans regard the fence as a negative response to individuals who work hard and contribute to the North American economy, and are concerned that it will impact ties between Mexicans and family members located in the United States. Mexicans liken fence extension to the Berlin Wall and view it as a hostile act. Liberal opponents view a fence as a way to keep Mexican citizens out and think that preventing freedom of human movement is a human-rights issue. The fencing of San Diego, California; El Paso, Texas; and Nogales, Arizona was undertaken as an effort to deter individuals from crossing. Controversy has ensued because border crossers have been diverted to the Sonora Desert and Baboquivari Mountains in Arizona. Between 1998 and 2004, 1,954 people have been officially declared dead as a result of trying to cross in this region. The fencing of limited areas of the border channeled migrants to different areas that are hazardous to human life in crossing. When the movement of people across the border is squeezed, they will try other areas or methods. Tension between the United States and Mexico has increased due to these deaths. Tony Payson contends that the border-wall mindset has weakened the ties between the United States and Mexico. There is a sense of separation that undermines cross-border social ties and makes it difficult to negotiate bi-national solutions to problems like unauthorized immigration. Today, border residents are less likely to visit together and twin cities on the U.S. and Mexico side are more socially, if not geographically, distant. Texas governor Rick Perry (2000–present) opposes the fence, because it undermines trade; he suggests that technology should be used to promote safe and legal migration and cross-border contact. A major unintended consequence of border fencing and other types of escalation of control has been that human smuggling networks have become more organized and profitable. Unauthorized entrants pay large sums in advance to be smuggled in or pay off huge debts afterwards. Unwittingly, escalation in law enforcement on the border has increased the profitability of human smuggling and created a new transnational organizational structure that people must rely on. In the past, individuals tried to cross on their own or employed small-scale smugglers. Each time border control is escalated, criminal organizations realize greater opportunity. Environmentalists are also opposed to border fencing. The ecology of desert regions and riverine systems will be disrupted. The San Diego border fence constructed as a part of Operation Gatekeeper is in a 3.5 mile area of marsh. In 2005, a federal judge ruled against a lawsuit brought by the Sierra Club and other

| 67

68

|

Border Fence

environmental groups to protect the sensitive ecological balance of the Tijuana River marshes. It is one of the few intact estuaries and coastal lagoon systems in Southern California. A more general objection to fencing at most rural points of the border is that it hampers wild animal migration. In south Texas, many lawsuits were brought against the border fence. The fence disrupts the use of private property, placing a barrier between animals and water or ranchers and their own land. It has had social consequences such as dividing the campus of the University of Texas at Brownsville into U.S. and Mexican areas. A coalition of Texas Mayors and other public officials sought to stop the fence, but their effort to bring the issue before the Supreme Court was unsuccessful. To facilitate fencing, the secretary of the Department of Homeland Security issued 30 waivers of laws protecting endangered species, migratory birds, deserts or forests, antiquities, Native American graves, and rancher’s property rights. Opponents of extended border fencing argue that the tactic is insufficient and that better intelligence and innovative solutions are needed. They point out that the cost estimate is $70 billion. Some conservative opponents of fencing, including The Border Fence Project, are against federal attempts to fence the border and found the present legislation, The Secure Border Fence Act of 2006 very flawed. Their reasoning is that only 700 miles will be fenced, a great deal of coverage will be electronic and they worry that personnel to respond will be under-funded. They argue that a delay in fence building will result in surges of crossing in unbuilt areas. Finally, they point out that, in their opinion, the federal government does not do a good job of repairing, maintaining, or guarding current fencing. Existing areas of 15-foot-high steel and concrete fencing have been successfully overcome for temporary periods with hacksaws and acetylene or plasma torches, huge ladders, and even bungee jumping cords. Fencing the border to prevent entry was immediately linked to 9/11 and preventing terrorist incursion despite the fact that all of the 9/11 terrorists entered through non–U.S.-Mexico border ports of entry and overstayed visas that were, in some cases, fraudulent. Opponents think it is an error to connect 9/11 with southern border security. The real issues at the U.S.-Mexico border are much more varied. Drug smuggling of cocaine, heroin, marijuana, and methamphetamine is a multi-billion dollar business connected to illegal money-laundering. Because of border fencing and other forms of escalation of border control, individuals from Mexico, Central America and South America now pay considerable sums to sophisticated transnational smuggling organizations to cross them in ever more remote and hazardous areas. If a debt is owed after crossing, migrants may be coerced or enslaved to pay off their debt. Ultimately, U.S. border security needs to consider the reasons that migrants are so desperate and to better deal with the demand for drug consumption in the United States. Constructing a border fence completely overlooks the relationship of the United States, a high income country, to Mexico and other Central and South American middle or low-income countries. Issues in economic development are associated with unauthorized immigration for economic motives. Border

Border Patrol and Human Rights Violations | 69

fencing is unilateral, not a bilateral or multilateral effort that addresses the economic development of the sending countries. Peter Skerry maintains that the primary reason for building a border fence was never about undocumented immigration. Politicians want to stop narcotraffickers. It is easy for politicians to merge and blur the issues of unauthorized immigration, drug trafficking and, now, counterterrorism. The Director of Homeland Security has the authority to waive all laws that prevent national security measures, which makes the process of opposing the wall and developing binational and global solutions to major issues problematic. Globalization has made us one world, and the use of national sovereignty to build a wall can easily be perceived as national arrogance and disregard for the concerns of other nations. CONCLUSION Prior border fences did not stop unauthorized immigration. The Secure Border Fence Act of 2006 does not seal off the entire border. As a result, it has the potential to channel unauthorized entrants to rural regions of New Mexico and Texas or to direct human smugglers to turn towards air and coastal routes. Many observers think that only a guest-worker program in combination with a fence would deal with the issue of unauthorized immigration from Mexico. This solution, however, does not take into account Central and South Americans who travel north to make an unauthorized crossing or people who are legally admitted and overstay visas. The United States has unauthorized immigrants from many areas of the world who did not cross a land border to enter. Meanwhile, the government’s central concerns for building a wall include transnational drug smuggling and counterterrorism. Controversy will continue as the government and the public consider whether or not it is possible for a nation to seal itself off in a rapidly globalizing world. References: Buchanan, Patrick. State of Emergency: The Third World Invasion and Conquest of America. New York: Thomas Dunn Books/St. Martin’s Press, 2006; Downies, Lawrence. “The Not-So-Great-Wall of Mexico.” New York Times, April 20, 2008. http://www. nytimes.com/2008/04/20/opinion/20sun4.html; Liptak, Adam. “Power to Build U.S. Border Fence is Above U.S. Law.” New York Times, April 8, 2008. http://www.nytimes. com/2008/04/08/us/08bar.html; Payan, Tony. The Three U.S.-Mexico Border Wars: Drugs, Immigration and Homeland Security. Westport, CT: Praeger Security International/ Greenwood Publishing Group, 2006; Skerry, Peter. “How Not to Build a Fence.” Foreign Policy, September/October 2006, p. 64–67.

Judith Ann Warner BORDER PATROL AND HUMAN RIGHTS VIOLATIONS A critical human rights issue is whether undocumented Latino migrants from Mexico and Central America are deliberately mistreated by the U.S. Border Patrol (USBP). In the 1990s, arrangements such as the North American

70

|

Border Patrol and Human Rights Violations

Free Trade Agreement increased the transfer of goods across borders and aided in the softening of political boundaries. In turn, levels of undocumented immigration increased and created intense conflict along the U.S.-Mexico border. Increasingly hazardous and remote crossing locations, drug traffickers, the Mexican police and military, bandits, and U.S.-citizen vigilante groups all increase the potential for violence and complicate the job of U.S. Border Patrol officers. The tension in the U.S.-Mexico border region makes it difficult to determine when the use of force or deadly force is justified. What is clear is that changes in U.S. border security policy could reduce the potential for human rights abuses.

BACKGROUND Mexican immigration was of little concern in the early history of the USBP. In fact, it was encouraged by the Bracero program from World War II (1942) to 1964 due to labor shortages. Following the war, attitudes altered. From the late 1940s to the 1970s, the USBP was focused on stopping illegal Mexican immigrants from crossing the border. In the 1980s, the U.S. government’s war on drugs added another element to border security. Agents were no longer only concerned with people crossing the border, but with illegal substances as well. Today’s USBP exists under the Department of Homeland Security. Agents apprehend around one million people attempting to enter the United States without paperwork and inspection every year. Increased border enforcement has directed migrants toward hazardous desert and river crossings. Until recently, when agents gained custody of undocumented immigrants, they typically questioned them, took them to processing stations to collect fingerprints and personal information, and transported them back across the border. Now the stakes are higher. In 2006, the Department of Homeland Security secretary, Michael Chertoff, ordered an end to the catch and release of foreign nationals who were other than Mexican (OTM). OTMs were released into the United States and ordered to attend a hearing before an immigration judge, but they seldom did and often became part of the undocumented population. This release policy was due to lack of jail space. In 2007 and 2008, President Bush mandated an end to the catch and release of Mexican nationals, who had previously been immediately deported back to Mexico, and took steps to expand detention facilities. The detention of Mexican nationals is being expanded by Operation Streamline to many border-enforcement sectors. A first-time attempted entry can result in mandatory detention from 15 to 180 days. Attempting to enter more than once without inspection is a felony carrying a federal term of up to two years. At the same time, U.S.-Mexico border violence is being augmented by heightened drug cartel activity, which may be abetted by the Mexican police and military. The region is riskier for both migrants and border patrol officers, who have experienced multiple forms of violence.

Border Patrol and Human Rights Violations | 71

THE U.S. BORDER PATROL DOES NOT VIOLATE HUMAN RIGHTS Let Them Do Their Job Arguments exist that the USBP does not violate human rights. Some immigration-control advocates argue that human rights-debates undermine the USBP’s effectiveness. An example involves agents Ignacio Ramos and Jose Compean. They shot a fleeing Mexican national who was smuggling drugs. Convicted on multiple charges, both went to prison. The man they shot received immunity for testifying against them. Supporters believe agents, such as Ramos and Compean, are just trying to do their job in a time when smugglers and drug traffickers are acting more violently. In Arizona, assaults on agents increased by 10 percent in 2006. In June of 2007, a Mexican national even attacked an agent with a firebomb. Migrant’s Risky Decisions Immigration-control advocates also believe many undocumented immigrants’ problems are due to their own border-crossing patterns. Because of intensified enforcement at urban crossings, more undocumented migrants are attempting to cross the border at isolated points in the desert where extreme heat exposure puts them at risk, or they attempt to cross over dangerous irrigation canals and rivers and end up drowning. Overall, immigration-control advocates believe the human-rights-violation argument does not make sense. Agents are not to be blamed for immigrant injuries and deaths. They are often acting to protect themselves from injury, or immigrants create their own problems by attempting risky crossings, agreeing to carry limited amounts of drugs, or paying human smugglers who can’t be trusted. Situational Crime Prevention It could be argued that the U.S. Border Patrol tries to prevent both migrant abuse and deaths while performing its basic job of trying to keep unauthorized persons out. Situational crime-prevention techniques attempt to deter undocumented crossers from hazardous situations. The U.S. Border Patrol has undertaken initiatives to warn migrants of risks in Spanish and English so that they will be aware of hazards prior to crossing. The U.S. Border Patrol’s Search Trauma and Rescue team (BORSTAR) attempts to find and locate victims before they succumb to such problems as dehydration, heat stroke, or extreme cold. Humanitarian groups have been active in assisting migrants in life-threatening situations as well. THE U.S. BORDER PATROL DOES VIOLATE HUMAN RIGHTS Abuse Documentation Human-rights advocates argue that international law and the U.S. Constitution protect people regardless of citizenship. They believe human-rights

72

|

Border Patrol and Human Rights Violations

violations frequently occur on the U.S.-Mexico border. People and their property are illegally searched. Verbal, psychological, and physical abuse is committed against adults and children. There are documented instances involving the deprivation of food and water, withholding of medical attention, torture, and excessive force including assault, battery, and murder. Human-rights advocates argue that interrogations regularly involve shouting and threats. At processing centers, Mexicans and other foreign nationals are humiliated and intimidated. Culture of Abuse One immigrant-advocate study finds that psychological human-rights violations occur in 24 percent of encounters with agents. Physical abuse occurs in 13 percent, sexual assault in 13 percent, and general violations of due process in 9 percent of encounters. Agents also engage in property violations, such as the destruction or theft of property, in 9 percent of cases. The study also points out that 24 percent of the time, agents base detainment on ethnic appearance alone. Human-rights advocates believe these estimated numbers are low. Much abuse goes unreported. They argue many undocumented immigrants do not know their rights and fear retaliation if they question inappropriate actions. Humanrights advocates argue cases such as the Ramos and Compean shooting are not isolated. A culture of abuse and violence exists in the USBP. Forced Migrant Risk In terms of immigrants choosing to cross the border in dangerous locations, little choice exists. Due to military buildup and increased use of force at traditional crossing points, Mexican and Central American nationals have little option but to cross in dangerous areas. More and more often, they have to pay human smugglers increasingly high prices while taking the chance that they may be abandoned and die in over-heated trucks, deserts, and irrigation canals.

VIGILANTEGROUP AND POLICING ACTIONS The threat of non-USBP abuse has increased as private citizens have banned together to form vigilante-type groups to deal with migrating Mexican and Central American nationals. Bandits also position themselves along the border to rob, rape, and kidnap vulnerable migrants. State and local law enforcement may also mistreat migrants. In early 2007, two migrants who entered without paperwork or inspection filed a civil suit against an Edwards County deputy sheriff in Texas, accusing him of humanrights violations. The Mexican nationals sought reimbursement for medical expenses and damages for pain and suffering. The deputy shot the tire of a van that fled after he pulled it over and noticed eight people lying down in it. Fragments from the bullets hit the suing migrants.

Border Patrol and Human Rights Violations | 73

CONCLUSION Police organizations, whether local or state, experience incidents of racial profiling, abusive handling of suspects, needless use of deadly force, rape, and corruption. In this respect, the USBP treatment of Latino immigrants is subject to the same situational constraints that lead to civil or human-rights violation among other policing groups. As with police crime fighters, USBP officers may enter into situations where their lives are in jeopardy and, in the heat of the moment, make unwarranted decisions about the use of force when suspects are not defending themselves or trying to escape. Because of this element of tension, the U.S.-Mexico crossing zones are dangerous and potentially violent places. There are, however, ways to avoid harm to migrants through U.S. Border Patrol training and safety initiatives. Yet, as recent measures to enhance the safety of migrants show, it is almost impossible to do it with current policies. Stories of mistreatment will continue to accrue as Mexican, Central American, and other foreign nationals keep migrating to the United States. As they do, lawmakers will face the large task of finding solutions to human-rights issues and situational crime-prevention techniques, and humanitarian rescue may become important. See also Border Deterrence Strategy; Border Fence; Border Patrol, Bureaucracy, and Expansion; Department of Homeland Security (DHS) and Immigration Enforcement; Drug Trafficking; Human Trafficking; Migrant Deaths; Militarization of the U.S.-Mexico Border; National Guard and Border Patrol; Vigilante Groups References: Eschbach, Karl, Jacqueline Hagan, Nestor Rodriguez, Ruben Hernandez-Leon, and Stanley Bailey. “Death at the Border.” International Migration Review 33, no. 2 (1999): 430–454; Guerette, Rob T. Migrant Death: Border Safety and Situational Crime Prevention on the U.S.-Mexico Divide. New York: LFB Scholarly Publishing, 2007a; Guerette, Rob T. “Immigration Policy, Border Security, and Migrant Deaths: An Impact Evaluation of Life-Saving Efforts Under the Border Safety Initiative.” Criminology and Public Policy 6, no. 2 (2007b): 245–266; Huspek, Michael, Roberto Martinez, and Leticia Jimenez. “Violations of Human and Civil Rights on the U.S.-Mexico Border, 1995–1997: A Report.” Social Justice 25, no. 2 (1998): 110–130; Maril, Robert. Patrolling Chaos: The U.S. Border Patrol in Deep South Texas. Lubbock, TX: Texas Tech University Press, 2004; Riccardi, Nicholas. “Border Death Points to Peril for Both Sides.” Los Angeles Times, July 2, 2007, p. A11; Seltzer, Nate, and George Kourous. “Persistent Impunity, Growing Problems: Immigration Law Enforcement and Human Rights Abuses.” Borderlines 6, no. 9 (1998): 1–4; Seper, Jerry. “Man Shot by Agents Stashed Drugs After He Got Immunity.” Washington Times, March 1, 2007, p. A1; Seper, Jerry. “Smuggled Aliens to Sue Texas Deputy.” Washington Times, April 2, 2007, p. A1; Ulsperger, Jason S. “U.S. Border Patrol.” In The Encyclopedia of Police Science, edited by Jack R. Greene, 1315–1318. New York: Routledge.

Jason S. Ulsperger

74

|

Border Patrol, Bureaucracy, and Expansion

BORDER PATROL, BUREAUCRACY, AND EXPANSION The U.S. Border Patrol (USBP) is a rapidly growing organization subject to all the problems connected to bureaucracies, including high cost, inefficiency, and personnel who treat those they serve as objects. Is the goal of preventing migrants from crossing the border and potentially settling as immigrants after finding work or relatives worth what the United States spends? expressly prohibiting freedom of movement across borders by denying visas to people who cannot show economic means creates the clandestine movement that the USBP tries to control. Meanwhile, the American public supports paying the price even as the federal government descends into debt. BACKGROUND Definition of Bureaucracy Early twentieth-century sociological theorist Max Weber believed that organizations would eventually dominate society. Complex organizations, known as bureaucracies, would have separate offices with unique areas of competence. They would have a hierarchy of power and intricate rules and regulations. Bureaucracies such as the United States Border Patrol (USBP) would be necessary to process large numbers of people. Weber also believed bureaucracies would be problematic. He argued impersonal, bureaucratic relationships turn people into objects of labor. He believed specialized departments would develop their own goals and have conflict with other departments. Finally, he contended that bureaucracies would monopolize information under a veil of secrecy. Post-9/11 Government Bureaucracy After 9/11, the U.S. government displayed many of the unintended problems of bureaucracy. Consider Hurricane Katrina. The city of New Orleans and other areas along the Gulf Coast experienced the effects of a natural disaster. Those effects multiplied when the Department of Homeland Security (DHS), which supervises the Federal Emergency Management Agency (FEMA), bungled its duties. Mismanagement occurred. No one seemed to know who was in charge. Rules and regulations prevented people in need from securing items necessary for survival. It was a classic example of bureaucracy gone wrong. DHS also manages the USBP. Since 9/11, calls to expand the USBP have increased. Though the government’s own analysis indicates complex bureaucratic inadequacies contributed to the occurrence of 9/11, pro-expansion advocates continue to argue that more bureaucracy is necessary for border security. Antiexpansion advocates believe enlarging the USBP hurts more than it helps. THE BUREAUCRATIC HISTORY OF THE U.S. BORDER PATROL Congress founded the USBP on May 28, 1924. Its roots run much deeper. In the late 1800s, anti-Chinese attitudes grew in the West, particularly California.

Border Patrol, Bureaucracy, and Expansion

Chinese immigrants in the United States were willing to work for low wages. Economic competition created a situation in which they were perceived as taking jobs away from Americans. In 1882, in the face of anger from an outraged citizenry, the Chinese Exclusion Act was passed. It essentially outlawed Chinese immigration. Excluded Chinese nationals still wanting to enter the country paid Mexican smugglers to bring them across the border. The U.S. government created mounted guards to patrol the borders. The bureaucracy of immigration control did not yet exist. Immigration units never had over 75 people in them. By 1915, a separate group known as the Mounted Inspectors formed. More formal in nature, they rode horses along the border and had inspection stations. In the early 1920s, U.S. citizens became concerned with European and Mexican immigrants as well. The Mounted Inspectors were not enough. Congress signed the Labor Appropriation Act making the Mounted Inspectors into the United States Border Patrol. The bureaucratic growth of border protection then occurred quickly. The government placed the USBP under the Bureau of Immigration and employed over 400 agents. They gave agents a badge, revolver, and a yearly salary of $1,680. In order to develop bureaucratic specialization, in 1925 the agency hired people with maritime experience to patrol seacoasts. In the 1930s, more responsibility was given to USBP with the dawning of prohibition. They located a majority of workers along the Canadian border to deter an influx of liquor. Following a bureaucratic shakeup, the agency fell under the Bureau of Immigration and Naturalization Service (INS) in 1933. In the early 1940s, the U.S. government actually encouraged Mexican nationals to come to America due to labor shortages created by World War II. This need changed after soldiers returned from the war. Agents on the southern border shifted their responsibility to undocumented Mexican migrants in the 1940s and 1950s who skipped applying for guest worker status. In the 1960s, the government added Cuban defectors to the list of closely monitored immigrants, but undocumented Mexican migrants and their subsequent permanent immigration remained a primary concern. From the 1970s through the 1980s, Mexican nationals continued to come to America for economic reasons, but the market for illegal drugs exploded. Agents became concerned with prohibited substances. In turn, the agency hired more workers to handle the increased responsibilities. As the war on drugs gained momentum, the expansion of the USBP did as well. USBP bureaucratic expansion increased a great deal following 1994— ironically around the same time the North American Free Trade Agreement (NAFTA) came into effect and encouraged the dissolution of political borders if not the conjoining of U.S. and Mexican labor markets. During that year, the agency adopted a program known as Prevention Through Deterrence. This strategy is based on the idea that as the certainty of punishment increases, people who act illegally will be less likely to do so. For the USBP, certainty of punishment meant putting more resources into technology and increasing agent numbers. This expansion trend continued after 9/11, with deterring the entrance of terrorists as an added goal.

| 75

76

|

Border Patrol, Bureaucracy, and Expansion

Post-9/11 U.S. Border Patrol Bureaucratic Incorporation and Expansion Following 9/11, the federal government reorganized several departments. The Homeland Security Act of 2002 created the Department of Homeland Security (DHS) and integrated the Bureau of Immigration and Naturalization Service. The idea was to streamline agencies that carried out tasks related to border security and terrorist response. The act placed groups such as the U.S. Secret Service, the U.S. Coast Guard, Immigration and Customs Enforcement, FEMA, and many others under DHS supervision. The government placed the USBP under DHS guidance. It is now part of the DHS Bureau of Customs and Border Protection (CBP) with headquarters in Washington D.C. Currently, it has 20 district offices throughout the country. Border agents focus on immigration issues between official points of entry. Customs agents typically deal with immigration issues at official points of entry. Strategies and funding for the USBP changed greatly following 9/11. In March of 2005, the agency released a list of new goals focusing on terrorism. In terms of funding, the agency’s budget tripled from 1995 to 2003. During 2004, increased funding allowed the agency to possess 8,856 vehicles, including trucks, automobiles, aircraft, watercraft, and all-terrain vehicles. Moreover, post-9/11 funding greatly increased the number of sensors, light towers, infrared sensors, thermal detectors, night vision scopes, directional listening devices, and remote videosurveillance systems in the agency’s possession. Between 1996 and 2002, the number of agents tripled, and the hours spent on patrolling grew by a factor of around eight. By 2004, the agency had 10,752 agents in its workforce. When examining USBP expansion, geography is relevant. The borders at the north and southwest are different in many ways. For better or worse, agency policy reflects those differences. The agency divides the Mexican border into nine operational sectors. Two exist in California, two in Arizona, and five in Texas. This border is 1,952 miles long. Agents make approximately 97 percent of illegal-alien apprehensions at this border. The Canadian border stretches 4,000 miles across 12 states. Only 3 percent of illegal-alien apprehensions occur here. Interestingly, before 9/11, only 340 agents worked this border, which is two times as large as the border in the southwest. During that time, the southwest border had one agent for every quarter mile. The northern border had one for every 13 miles. By July 2004, the number of border agents in the north increased to 983. However, that still only represents less than 10 percent of agents. This increased bureaucratization and expansion leaves us with important questions. Has the USBP expansion been beneficial or detrimental through the years? Moreover, should we continue to place tax dollars and human resources into it and build an even larger, more expensive agency?

FOR CONTINUED U.S. BORDER PATROL EXPANSION There is a belief that an expanded USBP keeps undocumented immigrants, drug smugglers, and terrorists under control. In 1993, the year before Prevention

Border Patrol, Bureaucracy, and Expansion

Through Deterrence took effect as a policy, a study by the Office of National Drug Control Policy implied that the agency needed to be larger because illegal activity was overrunning the U.S. border. The report noted that 6,000 immigrants were attempting to cross the border every night at San Diego along a stretch of land approximately eight miles wide. The next year more agents were hired and placed in high-crossing areas, and the USBP purchased a large amount of high-tech equipment needed to curb entry without paperwork and inspection. Enhancing the bureaucratic nature of the USBP, the agency reconfigured its structure placing a greater emphasis on a direct chain of command from its headquarters to the field. The USBP budget increased from $4.8 billion in 2001 to $12.3 billion in 2008. It is estimated that there will soon be over 18,000 U.S. Border Patrol officers. During this new build-up, the DHS saw a reduction in apprehensions of 20 percent at the U.S.-Mexico border. This has been interpreted as evidence that strengthening border enforcement deters undocumented migration. Pro-expansion advocates believe all previous buildups were necessary, but inadequate. Without more agents, the current situation still stretches agents too thin. When the so-called catch and release policy was in effect, apprehended migrants were simply returned across the border to Mexico, where they continued to try to enter. Those caught who were Other Than Mexican (OTM) were released inside the United States with a Notice to Appear for a hearing before an immigration judge. OTMs frequently did not appear for a hearing and joined the undocumented population. Not able to keep up with the number of migrants attempting entry or reentry, USBP officers apprehended Mexican individual migrants up to seven times before they even charged them with misdemeanor entry. Director of Homeland Security Michael Chertoff announced the end of catch and release on August 23, 2006 in favor of the Catch and Detain policy that excepted Mexicans, those most frequently attempting reentry. In 2007, President George W. Bush put in place a policy of Catch and Return, detaining all removable OTM aliens until they could be sent back. The reason for releasing migrants who were not Mexican nationals has been lack of detention space. Border enforcement initiatives are increasing the number of beds in detention facilities, and legal processing for deportation is being speeded up in a process called expedited removal. Although Mexican nationals were originally exempted and deported across the border, Operation Streamline seeks to detain Mexican migrants and is being expanded to end all instances of deportation without detention. For example, a zero-tolerance crackdown requiring prosecution of all undocumented foreign nationals and detaining them for up to six months, although expensive, was initiated in Eagle Pass, Texas and Yuma, Texas and is being extended to Laredo, Texas and other U.S. Border Patrol sectors. First-time misdemeanor entry without inspection (EWI) requires a jail sentence of 15 to 180 days. Repeat EWI entrants are classified as having committed a felony and can be federally imprisoned for up to two years. After serving time, individuals are processed for deportation. Migrants are being detained for 21 days on average.

| 77

78

|

Border Patrol, Bureaucracy, and Expansion

Pro-expansion advocates believe USBP expansion is important because illegal behavior at the border decreases following agency growth. One study shows the crime rate along the southwest border was 30 percent over the national average in the early 1990s. After a decade of agency expansion, it was only 12 percent higher. Property crimes in border areas dropped 40 percent following agency expansion. Moreover, the rise in USBP agents cannot keep pace with apprehension rates. Even through the 1990s when a lot of buildup occurred, apprehensions peaked at 1.7 million per year. Pro-expansion advocates do not see the current agent levels solving this problem. In fact, they argue that amnesty plans for now-settled undocumented immigrants being discussed openly by politicians encourage even more illegal immigration. Advocates also argue the USBP needs more agents for programs that reduce repetitive undocumented entries. For example, the U.S. government put the Interior Repatriation Program into effect post 9/11; it operates in conjunction with the end of the catch and release policy for foreign nationals who are OTMs. The program returns apprehended undocumented immigrants to the interiors of their home nations instead of having agents drop them off at the border, where they soon try to come back across. Programs like this need additional agents to make them function and additional funds to cover extra expenses such as travel. In addition, the 9/11 Commission believes the level of agents along the northern border is unacceptable; the USBP needs more people. Finally, consider the Border Patrol’s Search Trauma and Rescue (BORSTAR) team. In one situation, BORSTAR agents located two Mexican nationals entering the United States without paperwork. The migrants were in rough shape. Lost in a mountain range, they ended up caught in hazardous rain and snow. They thought they were going to die until BORSTAR members found them. With more agents, more BORSTAR teams can exist to save more lives. AGAINST CONTINUED U.S. BORDER PATROL EXPANSION Anti-expansion advocates believe that the bureaucratic expansion of the USBP is problematic. It does not deter migrants, drug smugglers, and terrorists from engaging in illegal activity. It does, unfortunately, facilitate organizational incompetence, agency secrecy, abuse, low quality agents, the loss of lives, and unnecessarily heightened costs. One product of the over-sized USBP bureaucracy is the Automated Biometrics Identification System (IDENT). First used after the agency put Prevention Through Deterrence in action and used at all border sites post 9/11, IDENT uses photographs, fingerprints, and biographical data to track people who illegally attempt to enter the United States. Indeed, a system should be in place to track migrants; however IDENT has typical bureaucratic issues. The system is incompatible with the Federal Bureau of Investigation’s tracking system. Policymakers should insist information sharing be integrated, but in typical bureaucratic fashion, both agencies demand to keep their information to themselves while dangerous people go untracked. You would think such a problem would not

Border Patrol, Bureaucracy, and Expansion

exist after 9/11. After all, bureaucratic secrecy and a lack of shared information helped the 9/11 terrorists to enter the United States. Anti-expansion advocates believe that putting more agents at typical crossing points does little to reduce illegal behavior. The crime rate dipped in border areas throughout the 1990s as agent numbers increased, but overall U.S. crime rates dropped at the same time. The expansion of the USBP had little to do with that. Antiexpansion advocates also point out that proexpansion arguments that more agents lead to more apprehensions are wrong as well. It is easy to assume that more agents caused the apprehension of more undocumented migrants. It is also possible that there are simply just more migrants attempting to make it across the border than ever before. Agency size has little to do with that. When undocumented immigration rates do slow slightly, as they did for a few years post 9/11, the reason is economic conditions. When the economy is good, migrants want to come and take advantage of it. When it is bad, they are less likely to come. It is likely that the 2008 economic slowdown will discourage migrants from seeking work in the United States, leading to a false impression that the latest border build-up deterred them. An agent increase does not mean USBP quality increases. Anti-expansion advocates argue that rapid agent increases actually lower the professional rigor of the USBP. Kent Lundgren, the coordinator of the 800-member National Association of Former Border Patrol Officers believes that a recent goal of hiring 6,000 more agents by the end of 2008 is ridiculous. Considering the dysfunction of bureaucracy, he states that the expansion “can’t be done and still turn out functional.” He also states, “It may be possible to run trainees in one door and out the other . . . but train them well? No” (Seper 2007). Furthermore, many of the new recruits, thrust into a highly bureaucratic environment, end up viewing the migrants they deal with as objects of labor and not human beings. During one interrogation, a Mexican national protested the search of his personal belongings. He asked the agent about his privacy rights and the agent replied, “In the U.S., Mexicans don’t have privacy.” The detainee asked, “What are we then?” The agent responded, “Things, and nothing more” (Seltzer and Kourous 1998). With agents having that bureaucratic attitude, no wonder so many migrants report incidents of abuse. Furthermore, the real need of the USBP is for special groups such as BORSTAR because USBP numerical and bureaucratic expansion has inadvertently led to a multitude of migrant deaths. With agents stacked up at typical crossing points, migrants attempt entry at dangerous, remote locations. Many unnecessarily get lost and die of dehydration and heat exposure, or they end up drowning while trying to enter the United States by navigating jeopardous rivers and irrigation canals. As for the Canadian border, anti-expansion advocates believe it is not a big factor. The increase of agents at the northern border has done little to alter apprehension rates. Even after the USBP hired more agents for that area post-9/11, the intake rate for migrants entering without inspection remained close to what it was pre-9/11. The argument exists that USBP expansion has created enhanced economic benefits for human smugglers, also known as coyotes. There is a belief that

| 79

80

|

Border Patrol, Bureaucracy, and Expansion

dangerous crossing patterns produced by a beefed-up USBP presence at traditional crossing points expanded organized smuggling rings because profits increased. For example, a pre-expansion coyote would charge a few hundred dollars to bring someone across the border. They now charge on average more than $1,000 and justify the increase due to the more challenging nature of a crossing. Interestingly, bureaucratic expansion caused an explosion in apprehension costs too. In 1992, the cost for an agent arrest was around $300. It was $1,700 in 2005, and that does not reflect current increases in enforcement costs. In a post-9/11 world, the price of bureaucratic expansion is not cheap. If nothing else, USBP expansion is an example of taxpayer dollars used simply to create the impression the government is getting something done, when in actuality, they are failing to deal with the complexity of undocumented immigration at both the borders and in the interior. CONCLUSION By 2002, the bureaucratic expansion of the post-9/11 USBP was in full effect. Ironically, during that same year, the probability of apprehension reached an all time low. The USBP only caught 5 percent of illegal immigrants crossing the border. Pro-expansionists propose that such a number is the reason we need a bigger, better-funded USBP. Anti-expansionists insist such a number is another example of how the USBP continues to breed bureaucratic dysfunction. One thing few people debate is whether migrants will continue to cross the U.S. border without inspection if there is work. Likewise, the problems of bureaucracy Max Weber warned of nearly a century ago will continue to plague many immigration organizations in the future, not just the USBP. See also Border Deterrence Strategy; Border Patrol and Human Rights Violations; Department of Homeland Security (DHS) and Immigration Enforcement; Drug Trafficking; Human Trafficking; Migrant Deaths; Militarization of the U.S.Mexico Border; Undocumented Immigration Policy References: Alonso-Zaldivar, Ricardo. “U.S., Mexico OK Deportation by Air.” Los Angeles Times, June 9, 2004, p. A11; Brinkley, Douglas. The Great Deluge: Hurricane Katrina, New Orleans, and the Mississippi Gulf Coast. New York: Harper Perennial, 2007; Cornelius, Wayne. “Death at the Border: Efficacy and Unintended Consequences of U.S. Immigration Control Policy.” Population and Development Review 27, no. 4 (2001): 661–685; Dinan, Stephen. “Bush Amnesty Blamed for Rise in Illegals.” Washington Times, April 16, 2004, p. A1; Guerette, Rob T. Migrant Death: Border Safety and Situational Crime Prevention on the U.S.-Mexico Divide. New York: LFB Scholarly Publishing, 2007; Kean, Thomas, and Lee Hamilton. The 9/11 Commission Report—Final Report of the National Commission on Terrorist Attacks upon the United States. Washington, DC: National Commission on Terrorist Attacks Upon the United States, 2004; Krauss, Erich, and Alex Pacheco. On the Line: Inside the U.S. Border Patrol. New York: Citadel Press, 2004; Maril, Robert. Patrolling Chaos: The U.S. Border Patrol in Deep South Texas. Lubbock, TX: Texas Tech University Press, 2004; Massey, Douglas. “Beyond the Border Buildup: Towards a New Approach to Mexico-U.S. Migration.” Immigration Policy in Focus 4, no. 7 (2005):1–11; Nunez-Neto, Blas. Border Security: The Role of the U.S. Border Patrol. Washington, DC: Congressional

Brain Drain and Immigrant Professionals Research Service, 2006; Orrenius, Pia, and Roberto Coronado. “Falling Crime and Rising Border Enforcement: Is There a Connection.” Southwest Economy 14, no. 3 (2003):9–10; Seltzer, Nate, and George Kourous. “Persistent Impunity, Growing Problems: Immigration Law Enforcement and Human Rights Abuses.” Borderlines 6, no. 9 (1998):1–4; Seper, Jerry. “Border Patrol Filling Its Ranks; Former Agents Double Quality.” Washington Times, August 10, 2007, p. A1; Ulsperger, Jason S. “U.S. Border Patrol,” in The Encyclopedia of Police Science, edited by Jack R. Greene, 1315–1318. New York: Routledge, 2006; United States. IDENT/IAFIS The Batres Case and the Status of the Integration Project. Washington, DC: U.S. Department of Justice, Office of the Inspector General, 2004; Weber, Max. Economy and Society. Totowa, NJ: Bedminster Press, 1921/1968.

Jason S. Ulsperger BRAIN DRAIN AND IMMIGRANT PROFESSIONALS Controversy comes in many forms and it comes as somewhat of a surprise that skilled, immigrant-worker immigration is an international issue in which the United States could be viewed unfavorably. From the U.S. perspective, giving immigration preference to skilled workers and foreign students graduating from top universities is a positive. Yet from the perspective of the foreign-sending countries they left, the contention is that they have lost their best and brightest and gained nothing. Are these extreme positions on the brain drain accurate? WHAT IS BRAIN DRAIN? Brain drain refers to the emigration of highly skilled, trained, or educated individuals from one country to another. Emigration is the movement of individuals over territorial borders for temporary or permanent residence. While brain drain is not a new phenomenon and has occurred throughout recent history, definitions of what it means to be highly skilled have changed over time and vary from place to place. During earlier periods, the highly skilled included scribes, doctors, and scientists. The current definition of highly skilled has expanded to include professionals such as nurses, lawyers, judges, teachers, researchers, professors, technicians, management positions, engineers, businessmen, and therapists, among others. The highly skilled are recognized as having higher levels of education, advanced training, special skills, and membership in a recognized profession. Brain drain is a term used by countries of emigration to reflect the losses felt when the best and brightest leave the country for better opportunities. Other terms that are used to refer to brain drain include migration of professionals, migration of talent and skills, and migration of the highly skilled. Terms such as brain gain and brain flow have also been introduced. Brain gain refers to those countries that gain by receiving trained skilled workers. Brain flow is a term preferred by Lucie Cheng and Philip Yang to describe both the gains and losses of countries with a neutral view. Early immigration policy of the United States did not deal with skilled immigration. Provisions were later added allowing immigrants with special skills

| 81

82

|

Brain Drain and Immigrant Professionals

to be exempt from exclusion. The Immigration Act of 1952 implemented a fourcategory preference system incorporating quotas, setting aside half of all firstpreference visas for highly skilled immigrants. The Immigration and Nationality Act of 1965 moved immigrant professions to the third-preference category, decreasing the visas to 20 percent of the quota allowed. Even though the provisions have changed, the influx of skilled professionals has continued to increase. The need for advancements in technology, science, and medicine has propelled industries to recruit the most skilled individuals. Increases in production forced a rise in skilled immigration. Due to educational opportunities, prior to 9/11, the United States was the most sought-out destination. Other sources of U.S. brain gain include foreign students from Asia, the Middle East, Latin America and Africa that apply for visas to study in the United States and who tend to stay after graduation and secure employment.

HISTORY OF BRAIN DRAIN Brain drain can be dated back to 300 B.C. when scholars and teachers moved to areas where institutions of higher learning existed. In Alexandria, a city in ancient Egypt, the first great library was created to house the most important documents of science, philosophy, and medicine. The ability of scribes to document procedures using hieroglyphics allowed for the preservation of information and drew skilled and educated individuals from all areas to the institution. Over time there were shifts in where intellectual and training centers were located. During the Middle Ages, European institutions became areas of migration for the highly skilled. We can see examples of this in migration patterns to France, Germany, and Italy, where institutions of higher learning were located.

THEORIES OF WHY BRAIN DRAIN OCCURS There are many theories of international migration that provide different explanations as to why individuals with high-skill training and education emigrate to other countries. International competition for human capital such as education is increasing, leaving less developed countries (LDCs) at risk for intellectual flight of their most talented. Immigrants are willing to incur the costs of migration to obtain the benefits of more secure opportunities. They migrate to more developed countries (MDCs) in search of better possibilities for their future and if they locate opportunity, they often become immigrants. Classic theories of international migration look at both push factors from the country of origin and pull factors in the receiving countries to explain international migration trends. Push factors are the conditions in the country of origin that persuade people to want to leave the country. Push factors motivating individuals to leave can include economic, political, or religious instability; low pay; or high unemployment. In contrast, pull factors are the conditions in the receiving country that provide incentives for individuals to want to go there.

Brain Drain and Immigrant Professionals

Pull factors include higher paying salaries, more job opportunities, and higher standards of living. Push factors in the country of origin must be combined with adequate pull factors in the country of destination. Specific factors in the decision to migrate include push factors from the area of origin and pull factors from the country of destination while other factors include personal factors and intervening obstacles, such as whether one can acquire a visa for entry. Migration takes place in streams and counter-streams by pathways that allow migrants to overcome intervening obstacles. Expected-income differentials are a strong motivator that encourages people to move. Critics of classic push-pull theories argue that they are too simple to explain migration They argue that push-pull theories do not take unique historical events and factors into account to explain international migration. Everything is lumped together without considering which factors have more importance or more weight in the decision to migrate or remain. They do not give adequate attention to the role of policy in migration. Other criticism of these views is that they do not consider preferences in immigration policy in determining who is allowed to enter the United States and other immigrant-receiving countries. We must consider the selectiveness of policies that provide preferences to family members of immigrating individuals already living in the United States because they accompanied them and individuals who have skills needed in certain professional capacities. Human-capital theorists perceive professional migration as an effect of the global economy allowing individuals to compete to obtain the best opportunities. This view focuses on human capital investments in education and seeking the most returns on these investments. In examining the costs and returns of migration for LDCs and MDCs, it can be viewed as an equalizing mechanism in changing economies, promoting economic development of LDCs. In this era of economic globalization, not all MDCs lose skilled professionals. For example, South Korea is retaining its foreign trained students and economic advancement has made its graduate education competitive with the United States. Market structure, resource mobility, and revenue policies of governments at both the state and local level also influence both private and social costs of migration. Supporters of immigration restriction view immigrants as taking jobs from Americans but there is little consideration of what type of work is effected. Segmented-labor market theories point out that there are two distinct labor segments in American society—primary and secondary markets. In the primary labor market, salaries tend to be higher, fixed, and more stable. The primary labor market provides higher wages to attract skilled workers and was, historically, more likely to be unionized to protect the workers. This is the sector that attracts skilled immigrants. In the secondary market, pay is lower and jobs are more labor intensive compared to those in the primary market. Jobs in the secondary market are also not as stable and are less likely to be unionized. Women and minorities are more likely to be employed in the secondary labor market. White men have historically dominated the primary labor market. The secondary market has high labor turnover and is subject to economic downturn, which generates unemployment. In the twentieth and twenty-first centuries, documented skilled immigrants

| 83

84

|

Brain Drain and Immigrant Professionals

have entered the primary market while undocumented migrants, who later seek permanent status, have worked in the secondary labor market. The American public typically focuses on the impact of unskilled labor unless an atypical situation, such as the recruitment of foreign computer programmers, is perceived to be in competition with the native-born workers. A world-system approach describes a hierarchical system of production in the global division of labor. With this world-scale division of labor, a network of cross-national migration for both skilled and unskilled jobs occurs. As capital moves across geographical areas, migration and commodities also participate in the global exchange network. Saskia Sassen focuses on how skilled labor flow is impacted by globalization and internationalization via direct foreign investment, the development of nodes or major hub cities for immigration, and lastly, the United States as a recipient of direct foreign investment. Poverty is not always the major push factor to explain skilled immigration. Increasing capital and investment fosters migration and cultural ties. Economic linkages facilitate other connections including increased migration or movement between the countries. When the United States has established a military presence in a country, such as the Philippines, it creates the linkages that allow students to study abroad. If their skilled labor is needed, as with Filipino nurses, the United States can recruit them directly from its own educational programs. OPPONENTS OF THE BRAIN DRAIN The United States benefits in many ways from the increase in highly skilled professional immigrants. Some argue that the country receiving the influx of highly skilled workers gets more profit economically than the country losing its best and brightest. Others believe that migration can benefit both countries by providing education and experience for those working in a developed country and sending remittances (money) to their relatives in the sending country. Developed countries actively recruit from less-developed countries to fill jobs that have shortages or that natives do not want. Recruitment explains the migration streams that have occurred and the areas of concentration that have received migrants. When shortages in medical areas became drastic, the United States looked to other countries to fill the gaps. For example, the United States and Canada have seen a recent increase in physicians from South Africa. Many of these physicians leave their country for more advanced educational and occupational opportunities. Another benefit for receiving countries is that bilingual professionals can provide services to immigrants living in the United States. Immigrants can outperform the native born in their search for professional education and advancement, especially in the fields of science and technology, which have trouble in recruiting native-born students. They are also more likely to rely on kinship networks and pooled ethnic capital to gain entrance into the economic sector of their destination country. It seems the advantages to sending countries are minimal in comparison to the disadvantages. Some of the consequences include shortages of skilled talent and losses in costs paid to advance migrants’ education. Many countries provide government scholarships in order to foster advances in education and

Brain Drain and Immigrant Professionals

technology. These countries provide and pay for education, but do not receive the benefits when the individuals obtaining the skills leave. The Dependency perspective indicates this may place the developing countries further at risk by depleting the skilled individuals needed to advance their economic and political development. It also provides an example of exploitation whereby rich countries exploit poorer countries for skilled human labor. There are both advantages and disadvantages to the ability to import and export labor—one disadvantage is increased global inequality. The nation-state has the ability to create regulations both permitting and restricting migration. Because no agreed-upon mode of regulation exists, each nation has the ability to define how permeable their borders are and to create policies to govern legal codes and national policy. The nation-state does not serve the interests of all involved nor does it treat all workers equally, giving a major preference to highly educated professionals, which deprives LDCs of human capital. SUPPORTERS OF BRAIN FLOW One positive economic benefit of skilled professional migration for LDCs is the remittances or monies sent to family members who stay behind in the country of origin. These remittances are used to increase the standard of living for those who receive them. Remittances are an important factor for members in the family to consider in determining the migration of another family member. Another positive benefit for LDCs is that many companies and organizations prefer bilingual individuals who have had experience working in another country over those who only speak one language. If immigrant professionals have experience working in other countries, they have better job prospects upon their return. Immigration to the United States has changed over history and has essentially become more restricted, especially after the 9/11 attacks. Historically, both skilled and nonskilled immigrants have come to the United States for better opportunities. The sources of immigration have changed over time, and in response, so has immigration policy outlining restrictions as to who can enter. Since the 9/11 attacks, restrictions have been placed on many international students requesting visas to enter the United States who originate from countries that have been designated as harboring terrorists. Due to these restrictions and increased opportunities in other nations, international students were opting to go elsewhere but this trend appears to be reversing. Brain drain itself may be reversing, as highly skilled workers are returning to their countries of origin. As a result, new policies for keeping people in their countries of birth are being implemented (such as providing incentives to skilled or talented workers to return). These incentives include pay increases and benefits in their home countries. CONCLUSION If brain drain stops and the sending countries retains the skilled professionals they need to economically develop, the United States may lose out. The 1965 Immigration and Nationality Act (INA) gave preference to skilled workers.

| 85

86

|

Brain Drain and Immigrant Professionals

Restrictionists have attacked the family reunification principle of the 1965 INA because it encourages unskilled migration, but they advocate an increased emphasis on the skilled-worker preference. In the post-9/11 environment will workers continue to come or will they opt to use their education in their home countries? The controversy will continue until brain drain becomes an equitable brain flow. References: Cheng, Lucie, and Philip Yang. “Global Interaction, Global Inequality, and Migration of the Highly Trained to the United States.” International Migration Review 32 (1998):626–53; Lee, Everett. “A Theory of Migration.” Demography 3 (1966):47–57; Petras, Elizabeth. “The Global Labor Market in the Modern World Economy,” in The Global Trends in Migration: Theory and Research on International Population Movements, edited by Mary Kritz, Charles Keeley, and Silvano Thomasi, 44–63. New York: Center for Migration Studies, 1981; Piore, Michael J. Birds of Passage. New York: Cambridge University Press, 1979; Sassen, Saska. The Mobility of Labor and Capital: A Study in International Investment and Labor Flow. Cambridge: Cambridge University Press, 1988; Sjaastad, Larry. “The Cost and Returns to Human Migration.” Journal of Political Economy, Supplement 70 (1962):80–93; Stark, Oded, and David Blume. “The New Economics of Labor Migration.” American Economic Review 75 (1985):173–178; Todaro, Michael. “A Model of Labor Migration and Urban Underdevelopment in Less Developed Countries.” American Economic Review 59 (1987):138–148; Yang, Philip. “Professionals and the Brain Drain,” in Encyclopedia of American Immigration, edited by James Ciment, 641–648. New York: Sharpe Reference, 2001.

Karen Hale

C CANADIAN BORDER The U.S.-Canada border is sometimes described as the longest undefended border in the world. In fact, it is the longest shared border in the world. The border is unmilitarized, but it is a misnomer to suggest that it is completely undefended. Nevertheless, it is true that the United States has put far less energy and fewer resources into securing its northern border with Canada than it has into the U.S.-Mexico border, which is only one-third the size. This disparity has led some analysts and citizens’ coalitions to call for massive increases in enforcement of the U.S.-Canada border. Since the 9/11 terrorist attacks, the U.S.-Canada border has also become more of a priority for the U.S. government. This has lead to a new focus on harmonizing and intensifying U.S. and Canadian border control efforts, but it has also fostered new debates about how best to go about securing the border. A BRIEF HISTORY OF THE U.S.CANADA BORDER The origins of the U.S.-Canada border can be traced to the 1783 Treaty of Paris that ended the war between Great Britain and the U.S. Colonies. In the decades following, the specific dimensions of the border were further refined by a series of hotly contested border disputes. These disputes were fomented, in part, by the expansionist interests of U.S. and Canadian authorities, including both local and national governments. Another important mitigating condition is the geographic complexity of the border, which extends over 5,000 miles across sparsely inhabited terrain, large stretches of water, and into the remote reaches of the Arctic. As a result, many features of the U.S.-Canada border were

87

88

|

Canadian Border

not clearly defined until they became politically, economically, or strategically important to populations on both sides of the border. Some examples include the 1842 Webster-Ashburton Treaty, which clarified the boundary between Maine and New Brunswick, Canada, and the 1903 joint tribunal, involving the United States, Canada, and the United Kingdom, which further clarified the water boundaries of the United States and Canada. U.S.-Canada border disputes continue to this day, but compared to the size of the border (and the intensity of border disputes in other parts of the world) they are relatively minor and few in number. For example, there is still a border dispute in the Maine/New Brunswick region involving Canadian and American lobster fishers who dispute the sovereignty of the lighthouse on Machias Seal Island. There are also sovereignty disputes over oil-rich territory in the Alaska/ Yukon region. In recent years, concerns about the U.S.-Canada border have become less focused on questions of sovereignty and more focused on improving the mutual security of both nations. Of course, the 9/11 terrorist attacks have been largely responsible for these security concerns. It bears noting, however, that terrorism is only one of the concerns behind the push for more rigorous border control. Just as important is the interest of both nations in integrating their bordercontrol strategies with their immigration policies. One goal of these integrated strategies is to control undocumented migration and the activities of international crime cartels (including trafficking in drugs, people, and weapons). Other goals include integrating border control with strategies for processing asylum seekers and temporary visitors of all varieties (tourists, international students, business investors, guest workers, etc). These priorities are discussed in greater detail in the next section. POST9/11 STRATEGIES FOR SECURING THE U.S.CANADA BORDER Just three months after the 9/11 attacks, the governments of Canada and the United States signed the Smart Border Declaration and Associated 30-Point Action Plan to Enhance the Security of Our Shared Border While Facilitating the Legitimate Flow of People and Goods. Since this time, the Smart Border Declaration has become the primary policy framework for integrating U.S. and Canadian border-control activities. As its lengthy title indicates, the declaration attempts to balance the priorities of national security and free trade. The title also provides an insight into the broad scope of the declaration, which provides a plan for improving security at all points of entry—for goods and people—along the U.S.-Canada border. This includes: introducing common biometric standards that can be used to verify the identification of legal migrants; improving information sharing and other strategies for handling refugee/asylee claims; coordinating the visa policies of the United States and Canada; improving and integrating security for major border highways, coastal waterways, and air traffic routes; integrating inspection strategies for commercial goods on land and at seaports; developing a compatible (and in some cases, fully integrated) database

Canadian Border

for customs, immigration, and counter-terrorism intelligence; implementing joint U.S.-Canada border-enforcement patrols; and improving the infrastructure at border check points. Many government officials agree that the United States and Canada have made great strides in joint planning on border security since the signing of the declaration. One notable example is the creation of Integrated Border Enforcement Teams (IBETs) that, as of fall 2003, began policing the entire length of the U.S.-Canada border. Some politicians, however, have insisted that the Smart Border Declaration is not sufficiently focused on conventional border control. In 2005, some members of the U.S. House of Representatives attempted to introduce a bill that would require the United States to build a fence across its northern border with Canada, similar to the U.S.-Mexico fence-building project that was authorized by the 2006 Secure Fence Act. This proposal never made its way out of the House, but it provided an insight into the priorities of bordercontrol advocates. One of the main concerns for supporters of this agenda, is the possibility that the U.S.-Canada border could be a much easier point of entry than the U.S-Mexico border for would-be terrorists. For example, it was rumored (but later disproved) that many of the 9/11 hijackers had originally entered the United States from Canada. On the other hand, the apprehension of Ahmed Ressam (a Montreal-based foreign national who was planning an attack on the Los Angeles airport) in 2000 indicates that these fears are not baseless. Border-control advocates also point out that, even after the signing of the Smart Border Declaration, the number of U.S. Border Patrol agents assigned to the northern Canadian border is almost one-tenth the number assigned to the U.S.-Mexico border, despite the fact that it is three times the size. In 2007, the U.S. Government Accountability Office (GAO) validated these concerns when it issued a report based on its own security test of the U.S.-Canada border. The GAO reported that its investigators made several successful unauthorized crossings, including one where they transported a bag made to look as if it contained radioactive material. Meanwhile, Canadian officials have complained that the U.S. government has been slow in funding some of the projects it agreed to support under the Smart Border Declaration. Despite these failings, there are still signs that there have been genuine improvements in U.S.-Canadian border control. One example is the 2006 apprehension of 17 suspects that were implicated in an Ontario terrorist plot as well as a general increase in apprehensions of people attempting to smuggle drugs, weapons, and unauthorized migrants across the border. Most significantly, there has been no evidence of any attempt to use Canada as a launching pad for a terrorist attack on U.S. soil since the arrest of Ahmed Ressam in 2000. In this regard, it can be argued that—despite their imperfections—recent improvements in U.S.-Canada border security are working well enough. Tourism officials also note that large segments of the U.S. and Canadian economy are reliant on the open flow of trade and people across the northern border. Canadian trade with the United States contributes $1.5 billion to the U.S. economy on a daily basis, and much of this is made possible by cross-border transactions. This is why some analysts argue that a rigid approach toward U.S.-Canada border control would

| 89

90

|

Canadian Border

be economically unsustainable, in addition to being unnecessarily disruptive to the way of life of communities located near the border. Some of these concerns are illustrated in the following section. BORDER CONTROL CONTROVERSIES Differences over border-control priorities came to a head at the Haskell Free Library and Opera House in 2007. The library literally straddles the U.S.-Canada border, with half of the structure sitting in Stanstead, Quebec and the other half in Derby Line, Vermont. The library was built intentionally, as a statement of transnational friendship and neighborhood residents pride themselves on the fact that library visitors do not have to show their passports when crossing from one national territory to the other. There are also no border guards stationed on any of the streets surrounding the library. Canadian and U.S. authorities are trying to change this, however, because immigration enforcement has noted that a growing number of smugglers are using these streets to traffic illegal contraband. Many local residents reject any effort to block the roads or to introduce a permanent U.S. Border Patrol presence. Some see these efforts as being no less objectionable than the short-lived efforts of the Minutemen movement to organize citizen patrols along the U.S.-Canada border. The residents’ main concern, however, is that these measures will create a fearful climate that threatens their way of life and, ultimately, will discourage public use of the library. From an immigration-control perspective, these concerns do not outweigh the overriding priority of border security. But they do draw attention to the impact that get-tough enforcement practices can have on communities whose social and economic life is constituted of cross-border relations that have become a deeply embedded part of their public identity and value system. Similar concerns have been voiced about the complexities of introducing get-tough immigration-control measures in cities like El Paso, Texas and Cuidad Juarez, Mexico that straddle the U.S.-Mexico border. In addition to these quality-of-life concerns, there are more familiar concerns about the impact that strict enforcement practices can have on civil liberties. In November 2007, for example, three Canadian women (one of whom was pregnant) were held for questioning for over five hours by border-control officers when they attempted to re-enter Canada after a day-trip to the United States. According to their testimony, the women were treated very harshly by the Canadian border patrol, even to the point of being lectured in a threatening way for choosing to spend their day shopping in the United States. Canadian border authorities later issued an apology for the treatment they received, but did not provide a full explanation for what they admitted was an excessive delay. The very same month, a Canadian fire truck, responding to an emergency call from firefighters on the U.S. side of the border, was held up at the border as immigration officers performed an I.D. and criminal check on all of the firemen in the truck (in addition to verifying the legality of the fire truck’s license number. U.S. Border Patrol agents later explained that the I.D. check took less than 10 minutes and ultimately had no effect on the outcome of the fire. In contrast,

Canadian Border

the New York state chief of the fire department that issued the call for help stated that the incident was an embarrassment. He explained that his department has a long-established cooperative relationship with fire stations on the Canadian side of the border. On the night in question, his firefighters were becoming exhausted fighting a large blaze, and they had already depleted all of their back-up support on their side of the border (ten fire departments, including Canadian departments, responded to the fire). In this situation, any delay in a call for help could have had disastrous consequences and, according to the chief, what is most worrisome is the implications the incident holds for future emergency-condition border crossings. Since this incident, border-control authorities have agreed to meet with local fire departments to develop a system that will do a better job of expediting security checks for emergency vehicles. Nevertheless, the incident illustrates how border-control priorities can clash with the public-safety mandate of other organizations. Local police have made similar complaints about how laws that require them to act like immigration agents interfere with their ability to solve crimes involving immigrant victims (or immigrant perpetrators). In a somewhat different vein, civil-liberties advocates have argued that aggressive immigrationenforcement practices intrude too far into the privacy and personal dignity of the people who are targeted by them—as illustrated by the case of the three Canadian shoppers. Arguments for Further Increasing U.S.-Canada Border-Control Efforts The current system is not working. The Smart Border Declaration simply hasn’t lived up to its promise. The fact that the U.S. and Canadian border patrol agencies failed the GAO’s security test is clear evidence of these inadequacies. Despite the fact that some improvements have been made, the governments of Canada and the United States have not come to terms with the size and complexity of their shared border. Even at the U.S.-Mexico border, which is patrolled more heavily than the U.S.-Canada border, the U.S. government is having problems preventing unauthorized crossings. Since the U.S.-Canada border is three times the size and has only one tenth the U.S. Border Patrol agents as the U.S.-Mexico border, it stands to reason that it is a much more vulnerable. If the government is serious about reaching a level of security at its northern border that is even close to that of its southern border, it will have to continue pouring resources and staffing into the U.S.-Canada border and make sure that the border is policed much more strictly than it is now. Immigration and national security are closely connected. One major flaw of the Smart Border that the U.S. and Canadian governments have tried to implement is their attempt to police the border (and police population flows) in a selective and targeted way. Basically, this means that most enforcement activities are focused on specific segments of the border and specific problem groups, leaving large segments of the border (and border crossers) relatively free from inspection. This rationale is premised on the idea that international crime, terrorism,

| 91

92

|

Canadian Border

unauthorized migration, and legal migration are all separate issues that require different policing and screening practices. This rationale ignores the possibility that terrorists and other security-risks can be hidden within both legal and unauthorized migration flows and that international crime and terrorist networks are often connected. The targeted approach may conserve resources but it is not effective. All of the people and goods that cross the border should be subject to the same degree of rigorous inspection, regardless of whether they appear (or do not appear) to fit a security risk profile. This is the only way to be sure that the border is thoroughly secured. Border control must be the number one priority. Border control officials should be open to working collaboratively with local police, private citizens, and others. These collaborations may require border-control officials to adapt their activities to minimize conflicts with the legacy mandates of local organizations. Nevertheless, the only way that real progress can be made in securing the border is if border control is treated as a priority issue by local, state, and federal actors. Even though other issues can be taken into consideration, border control must be given more weight. This is partly to compensate for the low-level of priority that has been historically accorded to border control at the U.S.-Canada border, but also because of the dire nature of the risks associated with border control (terrorist strikes, infiltration of international crime cartels, etc). Arguments against Further Increasing U.S.-Canada Border-Control Efforts Aggressive enforcement is impractical and unsustainable. It would be impossible to make significant increases to the already-heightened levels of U.S.-Canada border security without compromising civil liberties, trade relations, and other forms of collaboration that have been an integral feature of U.S.-Canada relations for the past century. Although the U.S.-Canada border is less heavily patrolled than the U.S.-Mexico border, this is not necessarily a bad thing. To be effective and sustainable, the U.S. and Canadian governments need to look toward a different model of border control than the one currently being implemented in the southwest. As some scholars have argued, get-tough border-control practices (especially the efforts to build a new border fence) have not been historically effective in controlling unauthorized migration at the U.S.-Mexico border. It also bears noting that Canada is even more vital to the U.S. economy than Mexico. Canada is the United States’ largest trading partner, and communities on the U.S.-Canada border are even more socially and economically intermeshed than communities on the U.S.-Mexico border. Get-tough border-control practices would rip these communities apart and would very likely stifle Canadian trade, which would have a direct impact on U.S. jobs. Immigration and national security are relatively distinct issues. Only an extremely small minority of noncitizens are deported for reasons of national security each year (a fraction of one percent of all deportees). In addition, for the past several years (since the 9/11 attacks) U.S. and Canadian authorities have been successful in preventing terrorist attacks. In any case, there is little

Canadian Border

reason to believe that U.S.-Canada border control would be more effective in apprehending terrorist suspects if they treated all people who cross the border with the same level of suspicion. Instead, it makes more sense to use a targeted approach where all goods and people crossing the border are subject to the same baseline security standards, but where the most intensive enforcement is directed at people, goods, and locations that are deemed to be high risk. This approach relies on collaborations between immigration authorities, border control, and counterterrorism intelligence, but it also makes better use of government resources and staff time and does a better job of minimizing civil-liberties violations than the build-a-fence approach to border control. Finally, this approach is already built into the Smart Border Declaration. It can always be fine tuned, but it does not require any new intensification of existing border-control activities. Border control has to be balanced against other priorities. Border control is important, but so are civil liberties, trade, public safety, and general quality of life. Get-tough border control practices have the capacity to infringe on all of these other priorities. If border control cuts too deep into these priorities it will secure the nation, but at the price of creating a very different kind of nation that many citizens won’t enjoy living in. On a more practical level, get-tough bordercontrol activities run the risk of instigating law suits (from angry citizens) and other forms of dissent that undercut the social and political legitimacy of the agencies that are charged with the task of border control. This is why, to be sustainable, border control has to learn to work with other priorities instead of over-riding them. CONCLUSION Despite the failings of current U.S.-Canada border control activities (whether they are viewed as being too lax or too strict) there is no sign that they will change dramatically in the near future. The Smart Border Declaration and Thirty Point Plan is still the guiding framework for U.S.-Canada border-control strategy. As has been the case over the last few years, it is likely that the U.S. and Canadian governments will continue to increase spending on border security, but in ways that do not significantly hinder trade or legal migration flows. This means that calls for building a fence across the entire U.S.-Canada border (and other hard-line border-control proposals) are likely to remain on the margins of mainstream policy discourse. In many respects, this debate is a microcosm of the broader debate over national security. Like this broader field of discourse, the debate over U.S.-Canada border security raises questions about the appropriate balance between security, public safety, and civil liberties and the relationship between immigration, terrorism, unauthorized migration, and international crime. It is also sensitive to turning-point incidents (border patrol violations of civil liberties, new terrorist strikes, etc.) that give some agendas more leverage over others or open the door for entirely new ways of thinking about border security. This is why there is no clear end point for this debate. Instead of achieving a final resolution, the debate

| 93

94

|

Civic Incorporation

over the U.S.-Canada border will continue to evolve alongside the twists and turns of the broader debate over security and civil liberties in the post-9/11 era. See also Border Fence; Militarization of the U.S.-Mexico Border; Symbolic Security; Terrorism and National Security; Undocumented Immigration Policy References: Bohn, Kevin. “Report: Security on U.S.-Canada Border Fails Terror Test.” CNN. http://www.cnn.com/2007/US/09/27/border.security/index.html; Boswell, Randy. “U.S. Considers Fence across Canadian Border: Motion Would See Construction of a Wall Similar to One in Place across Mexico.” Canwest News Service. December 17, 2005; Calavita, Kitty. Inside the State: The Bracero Program, Immigration and the INS (After the Law). New York: Routledge, 1992; CBC News. “Delayed, Rebuked for Cross-Border Shopping Trip, say Canadians.” November 6, 2007. http://www.cbc.ca/Canada/story/ 2007/11/05bus-shoppers.html; CBS News. “In Depth: It’s a Fine Line, Disputing Boundaries.” October 11, 2007. http://www.cbc,ca./news/background/boundary_disputes; Center for American Progress. 2003. Strengthening America by Defending Our Liberties: an Agenda for Reform. http://www.americanprogress.org/kf/strengthening_america. pdf; Crary, David. “More Vigilance Seen on U.S.—Canada Border.” Washington Post, June 5, 2006. http://www.washingtonpost.com/wp-dyn/content/article/2006/06/05/ AR2006060501008.html; Department of Homeland Security. 2005 Immigration Yearbook. Table: Distribution of Individuals Charged by Type of Charge 2005; Department of Justice. “Integrated Border Control Teams Now Cover Canada-U.S. Border from Coast to Coast.” http://www.usdoj.gov; Meserve, Jeanne, and Mike Ahlers. “Canadian Fire Truck Responding to U.S. Call Held Up at Border.” CNN. http://edition.cnn.com/2007/ US/11/14/border.firetruck/index.html; Ngai, Mae. Impossible Subjects: Illegal Aliens and the Making of Modern America. Princeton, NJ: Princeton University Press, 2005; Porter, Bill. “Lack of Funding Blurs Border Between U.S., Canada: Washington Is Urged to Pay Share of Upkeep.” Boston Globe. April 1, 2007; Russell, Jenna. “A Quiet Imperiled on Vermont—Canada Line: Library at Center of Border Battle.” Boston Globe, June 24, 2007; Tellez, Lesley. “Police Seek to Ease Crime Victims’ Fear of Being Deported.” Dallas Morning News, December 11, 2003; White House “U.S.—Canada Smart Border/30 Point Action Plan Update.” http://www.whitehouse.gov/news/releases/2002/12/20021206– 1.html.

Philip A. Kretsedemas

CIVIC INCORPORATION In the United States, becoming civically incorporated has generally been thought of as an essential process for immigrants, since large numbers of unincorporated and disenfranchised individuals are considered detrimental and destabilizing to democratic societies. This civic incorporation has historically been measured through the process of citizenship acquisition or naturalizing, the route by which a foreign-born individual becomes an American citizen, gaining virtually all of the guarantees, protections, and political and economic benefits of those born on American soil. The civic integration of immigrants has become somewhat controversial, in terms of its importance, inevitability, and determinants, as patterns of immigration have changed. During much of the nineteenth and early twentieth centuries,

Civic Incorporation

immigrants arrived in the United States from Europe, with only a small percentage ever planning to return to the country of origin. Fleeing famines and religious persecution and seeking a dearth of economic opportunities, the great majority of those who arrived viewed the United States as their permanent home, doing all they could to become American. Changing immigration laws, changing migration flows, and changing technologies have all led to a decline in the long-term settlement intentions among many of today’s international migrants. The United States has seen the rise of shorter-term immigrants, those who come to the United States with the intention of returning to the home society after a certain economic goal has been met. These target migrants who emigrate from their countries of origin with a specific economic target in mind and with every expectation of returning to their home societies once that financial goal has been met, have little interest in or need to become civically incorporated in the American system. Technological advances have further deteriorated the desire and need for civic incorporation among immigrants in the United States. The development of new technologies, ranging from the advent of (low cost) air travel to inexpensive calling plans to cellular phones to e-mail, has led to an increasing rate of transnationalism, the experience of immigrants moving between the home and host societies repeatedly over the course of a lifetime. As a result of the ability to remain connected to the country of origin, many immigrants become less civically incorporated in the United States as civic involvement in the home society remains strong. The growth of binational identities, immigrants identifying with both the country of origin and the host society (as both Brazilian and American, for example), may limit the need and desire for the traditional manner of civic incorporation within the United States, namely through citizenship acquisition. A rise in undocumented immigrants, those who have arrived in the United States through illegal means or overstayed their oncelegal visas, has also meant that a significant portion of immigrants are unable to become civically incorporated in the traditional sense. Is it still necessary to both the immigrant and larger-scale American society for immigrants to become civically incorporated? If so, is citizenship acquisition the only way possible for this civic integration to occur? Does becoming an American citizen even secure civic incorporation? Perhaps citizenship acquisition has become a necessary, but not sufficient, condition for becoming civically incorporated in the United States. Or perhaps immigrants who have not acquired American citizenship through the naturalization process may be able to become integrated into civil society in other ways. BACKGROUND Defining Civic Incorporation What exactly is meant by civic integration is in itself a debate; scholars fight among themselves over what should be included as part of this process. It is generally agreed that civic incorporation is the manner by which immigrants become a part of the host society’s civic realm. It is also generally agreed that

| 95

96

|

Civic Incorporation

civic incorporation includes formal political engagement, such as acquiring citizenship and voting. The extension of citizenship in societies around the world falls into one of two categories: jus sanguinis and jus solis. The jus sanguinis form of citizenship extends citizenship to anyone who is viewed as having the blood of the respective society, regardless of place of birth or residence. Countries such as Germany and Israel have tended to grant citizenship through this framework. In contrast, countries that practice the principle of jus solis citizenship grant it to anyone born on the soil of that society, regardless of the status of the child’s parents. Some societies allow the extension of citizenship, and all of the rights and obligations that often accompany this membership, to those who are neither born on the soil nor are of the blood. When citizenship is gained through this latter path, it is known as a process of naturalization. Naturalization is the form of citizenship extension that has garnered the most attention from immigration scholars, public policy officials, and the general public, as it is viewed as a sign of active civic engagement on the part of immigrants—a status an individual must actively acquire rather than gain through osmosis. Yet, civic engagement is not solely through formal political participation, participation. Civic activity is viewed as any behavior that attempts to influence government policies, the distribution of resources, and the formation and reformation of public institutions. Informal methods of palpably political acts, such as protesting, participating in marches, and signing petitions are also viewed as signs of civic integration on the part of immigrants. Increasingly, less obvious political acts are understood as forms of civic integration, as well. For example, participation in parent-teacher associations, community groups, and church organizations are viewed as other ways of becoming civically engaged in society. Although these forms of participation may not always or immediately translate into civic integration, they are often backdoor approaches to influencing public policies and institutions and the distribution of resources, all goals that we know to be political in nature. Civic Integration throughout American History The United States grants citizenship based upon both the principles of jus sanguinis and jus solis. Children born abroad to American citizens are legally viewed as American citizens, as a result of their blood. Children born in the United States to noncitizens, whether by choice or exclusion, are also considered to be American citizens. Individuals, neither born on American soil nor born to American parents, may also become American citizens through the naturalization process if certain criteria are met. These criteria include legal residency in the United States (generally for at least five years), proficiency in English, the ability to pass tests in American history and civics, and being judged to be of good moral character in an interview with a representative of the U.S. government. The first piece of federal legislation to deal with formal civic integration of immigrants was passed by Congress in 1790. Under this legislation, the residency requirement was set at two years, for any free white adult alien, male or

Civic Incorporation

female. Individuals who met these demographic requirements had to prove they were of good moral character. If one’s character was deemed acceptable, he or she was required to take an oath of allegiance to the U.S. Constitution and thus was granted citizenship by either a state or federal court judge. Large-scale immigration to the United States began in the 1840s, when millions from Ireland and Germany came to seek economic opportunities. This first large-scale wave of migration was followed in the 1880s by the migration of millions of Italian, Greek, Polish, and Jewish immigrants also seeking economic advancement, as well as religious and political freedom. This second large wave lasted until the early part of the twentieth century. Academic and popular interest in the civic incorporation of immigrants began in earnest during the early twentieth century, as questions about the ability of immigrants to assimilate arose. The Naturalization Act of 1906 formalized naturalization requirements and procedures and added English-language ability as a requirement for citizenship, suggesting the unifying nature that U.S. citizenship was intended to have for society. Americanization programs, both of a required and voluntary nature, developed in the early twentieth century to teach immigrants, often viewed as unable to assimilate, how to become American. Such programs taught English, history, and civics to ensure the common body of knowledge that was viewed as essential for a unified society. Over the course of the twentieth century, adjustments continued to be made around requirements and procedures. For example, the Act of May 9, 1918, following World War I, allowed noncitizen soldiers to become naturalized at various military installations. Perhaps more importantly, citizenship laws over the course of the twentieth century also changed to extend U.S. citizenship to groups that had previously been formally excluded from the U.S. civic sphere. Women, historically viewed as appendages of their fathers and husbands, were granted the right under the Married Women’s Act of 1922 to become U.S. citizens, independent of the status of the males in their lives. Individuals of Chinese descent, a national group barred from entering the United States and barred from acquiring U.S. citizenship under the Chinese Exclusion Act of 1882, were permitted to become citizens in 1943. The Immigration and Nationality Act of 1952 officially removed race as a criteria in the naturalization process, making citizenship acquisition possible for anyone who had met the outlined requirements of residency, English-language ability, and knowledge of American history and civics provided they had been deemed to be a person of good moral character. Civic Integration as Essential Component of Society Civic integration is viewed as an essential component of full-fledged membership of virtually any society. Citizenship acquisition places an individual on theoretically equal footing with individuals who were born in that society or received citizenship automatically upon birth. This membership may be even more important in democratic societies, where the hallmark of belonging has historically been the ability to participate in the electoral system, via the ballot box. An inability to participate politically

| 97

98

|

Civic Incorporation

in a democratic society may lead to feelings of frustration and alienation at the individual level. Lacking full membership may also retard integration in other critical areas, such as the social or economic spheres of a society (“California Must Prioritize Citizenship” 2007). In 1970, the rate of naturalization among all legally documented immigrants stood at 64 percent; it dropped to 39 percent in 1995 but then increased to 49 percent in 2002. It should be noted that these are the rates of naturalization among all legally documented immigrants in the United States, rather than all immigrants eligible for naturalization. As of 2005, naturalization rates among all eligible immigrants stood at approximately 59 percent (Passel, 2007). Civic incorporation at the group level is viewed by academicians as critical to the health of the host society, particularly in a democracy such as the United States. A lack of political integration may lead to mistrust and disunity at the group level. Large numbers of disenfranchised residents are viewed as destabilizing to the society as a whole. There is more to democracy than the ability of individuals to go to the voting booth—working together on a regular basis to improve overall societal conditions. In order for this concerted action to take place, a sense of group identity and belonging must exist. The rules and regulations around citizenship acquisition, particularly as they relate to length of residency in the United States, the ability to speak English, and knowledge of U.S. civics and history speak precisely to the U.S. government’s belief in citizenship as a mark of belonging to a national community. When feelings of alienation and inefficacy become widespread in society, the fabric of that society begins to fray. Civic Integration as No Longer an Essential Component of Society The passage of the Hart-Celler Immigration Act, often known as the Immigration Act of 1965, hailed a new period of immigration to the United States. This major change in immigration law placed family reunification and the labor needs of American society as primary in the determination of who could gain access to the United States and removed country-of-origin criteria. Many of these new immigrants chose to migrate solely for economic reasons and held longer-term intentions of returning to their countries of origin. Immigrants may come to the United States for the sole purpose of sending money home to the country of origin in the form of remittances. Similarly, target migrants may come to the United States with the express purpose of saving up a particular sum of money in the host society to return home to start a business or to retire. These shorter-term settlement intentions are quite different from those of immigrants arriving in the nineteenth and early twentieth centuries, many of whom immigrated for a combination of economic, political, and/or religious motivation with the intention of permanent settlement. Beyond immigrating to the United States for somewhat different reasons and with different intentions around settlement, earlier waves of immigrants simply did not have the options

Civic Incorporation

for return migration in the way that today’s immigrants do. Changes in technology and transportation, particularly in the form of low-cost air travel, have made return a possibility in a way that it was not in previous generations. The U.S. Census Bureau estimated that between the years 1995 and 1997, 220,000 foreign-born residents of the United States emigrated. The agency projected that by 2005, the United States would see the departure of over 300,000 foreign-born residents each year. Out of an estimated 1.2 million documented and undocumented immigrants entering the United States annually, this outmigration is significant. Further, Mexico, the country of origin viewed as sending immigrants who are the least likely to become civically integrated, is the leading destination for foreign-born émigrés (U.S. Citizenship and Immigration Services, 2004). Should American society be concerned about incorporating individuals into the civic realm when the individuals have little intention of staying over the longer term? If many immigrants are entering the United States with more limited settlement plans, civic integration may be less important than was once the case. For these foreign-born émigrés, civic integration may simply be irrelevant both to them as individuals and to larger scale American society from which they depart. What is sometimes viewed as more essential than civic integration for immigrants is their economic, educational, and linguistic integration into American society, particularly for those who plan on remaining long term. Immigrants, in general, hold high school degrees at one-third the rate of the native born, with poverty rates among immigrants about 50 percent higher (Lowell and Kemper, 2004). Immigrants who are eligible to naturalize, but do not, are very different on a variety of characteristics from their counterparts who have made the decision to acquire U.S. citizenship (Buecker 2006). Approximately 60 percent of those who have not naturalized, but are eligible, report having limited English proficiency. Of this same group, over 25 percent have less than a ninth-grade education, as compared with 9 percent of the naturalized population (Margon 2004). Among recently naturalized immigrants, there are higher levels of income and higher levels of college degrees, as compared with those who are eligible but have not naturalized (Fix, Passel, and Sucher 2003). The findings that recently minted citizens have higher levels of education, income, and Englishlanguage proficiency strongly suggest that other forms of integration often come prior to civic integration. Given the implications in American society of failing to speak English, possess a high-school degree, or participate in the workforce, these forms of immigrant integration may be more important, to both the individual and to the United States as a whole, than civic incorporation. Civic Integration as Inevitable Result Immigration scholars have historically thought that civic integration of the foreign-born and their offspring was both essential and inevitable. Immigration scholar Milton Gordon developed an argument know as the straight-line theory of assimilation. This theory predicted that the offspring of immigrants

| 99

100

|

Civic Incorporation

would within three generations assimilate to the White Anglo-Saxon Protestant (WASP) population that dominated the United States. The grandchildren of immigrants would be entirely incorporated into the various spheres of American society and would be indistinguishable from the great-great-great grandchildren of those who had migrated from England in the seventeenth and eighteenth centuries and settled in what came to be known as the United States. As defined by Gordon, the straight-line theory of assimilation is comprised of seven steps. The first step towards assimilation is cultural, defined as the acquisition of the dominant group’s language, customs of dress, food, and the like. This is followed by structural assimilation, the penetration of the core society’s primary groups and organizations, such as clubs and neighborhoods. Marital assimilation, i.e. intermarrying with the dominant group at significant rates, is the third step. Identificational assimilation follows and is the process by which the self-identity of individuals is linked to the dominant culture. Phases five and six relate to how the dominate group perceives the once immigrant, now ethnic group. According to Gordon, phase five is attitude-receptional assimilation, meaning the absence of prejudice and stereotyping on the part of the dominant group. Step six is known as behavior-receptional assimilation, the absence of discrimination. This seven-step process of incorporation ends when the descendents of immigrants become civically incorporated, participating in the democratic process in ways and at rates comparable to longer-settled Americans. Democratic values and practices are internalized. Political power struggles along immigrant or ethnic lines cease to exist, and the descendents of immigrants simply become Americans involved in the mainstream democratic process. The inclusion and placement of civic assimilation in this seven-step process speaks to its critical role in the making of Americans. According to this theory, one is not completely assimilated until he or she has gone through this final step of becoming incorporated into the civic realm. Assimilation in every other sphere, from cultural to structural to identificational, can take place, but without becoming part of the civic life of the United States, one remains to some degree an outsider. According to Gordon, inclusion in all spheres is inevitable, given enough time. Although this seven-step process of assimilation is argued to take multiple generations, naturalization rates suggest movement towards civic integration even within a single generation. Among immigrants who have been in the United States since 1969, approximately 81 percent have naturalized. The naturalization rate for those who entered the United States between 1970 and 1979 is 70 percent, and for those who entered between 1980 and 1989, the rate is nearly 50 percent (Larsen 2004). Although the process of civic integration is far from immediate, Gordon argues that becoming American is inevitable. Civic Integration as No Longer an Inevitable Result With the removal of country-of origin-criteria and the placement of family reunification and labor needs at the center of American immigration policy,

Civic Incorporation | 101

The Immigration Act of 1965 allowed, for the first time, large numbers of individuals from Asia and Latin America. The new racial and ethnic diversity of migration flows in the post-1965 period, combined with shorter-term settlement intentions and greater ongoing contact with the country of origin, raises questions about the likelihood of integration for this new type of immigrant. A theory of segmented assimilation has arisen as a competing theory to Gordon’s straight-line assimilation, which was developed with nineteenth-century European immigrants in mind. Segmented assimilation theory posits three possible paths for immigrants to take: full assimilation along the lines of what Gordon argued was inevitable, partial acculturation in which individuals become integrated in some but not all segments of American society, and downward assimilation whereby immigrants assimilate to an excluded and isolated nativeborn underclass. Under this line of thinking, civic incorporation is not an inevitable outcome, as argued by Gordon, but an end point experienced by only a subset of the immigrant population. The debate that takes place around the ability of the new immigrants from Asia and Latin America to become integrated versus the previous waves of immigrants from Europe is somewhat misleading. Segmented-assimilation theory examines immigrants within a single generation, or at most, across the lifespan of immigrants and their native-born children, rather than across multiple generations as straight-line assimilation theory does. However, the debate about the level and type of incorporation of today’s immigrants vis-à-vis earlier waves is one that has dominated public policy conversations and is an important one to have. By some standards of civic integration, the children of immigrants, regardless of country of origin, skin tone, level of education, household income, legal status of parents, or any of the other factors that are thought to encourage or discourage civic integration, are automatically integrated into the civic sphere of American society, given the jus solis aspect of American citizenship. Children born in the United States, regardless of anything else, are American citizens. As such, anyone other than the actual immigrant him or herself, is civically incorporated if citizenship status means civic incorporation. If the active pursuit of citizenship among immigrants, via the process of naturalization, is the measure used to determine civic integration, then the inevitability of civic integration among the immigrant population is more debatable. Although over 80 percent of all immigrants who entered the United States prior to 1970 have naturalized and rates remain high in later cohorts, the rate of naturalization drops off significantly among immigrants who entered in 1990 or later, with less than 15 percent having naturalized as of 2003 (Larsen 2004). The significant differences in rates of naturalization by region and country of origin also suggest that the presumption of civic integration must be rethought. Seventy-one percent of eligible immigrants from Asia had naturalized as of 2005, as compared with 46 percent from Latin America. Naturalization rates vary to an even greater extent when citizenship acquisition is studied by country of origin. Among Filipino-origin immigrants, 76 percent of those eligible to naturalize did so as of 2005 while among Mexican-origin immigrants, the rate stood at 35 percent (Passel 2007).

102

|

Civic Incorporation

Naturalization as Essential to the Civic Integration Process Many view the acquisition of citizenship as the key sign of integration in a society, since it is a status that must be actively achieved rather than passively received. Citizenship is of specific importance to civic integrations because it is essential for electoral participation. Voting remains the most formal, and arguably, most important political act in a democratic society. Without U.S. citizenship, one is without a formal political voice. Naturalizing is also viewed as an essential step to becoming incorporated in other ways. Citizenship provides immigrants with a sense of membership and encourages greater involvement in schools, neighborhoods, and community organizations. Although involvement in such organizations does not require citizenship, being a citizen encourages these and other types of civic activity. The lack of citizenship, even among legal residents, may give individuals the feeling that they have no right to ask for government services or to attempt to influence the larger political structure in any way. Noncitizens are less likely to contact a public official, less likely to pay attention to politics, and less likely to have a sense of political efficacy. For example, only 12.6 percent of non-naturalized citizens report contacting a public official versus 25 percent of naturalized immigrants (Segura, Pachon, and Woods 2001). Contacting a public official does not necessitate citizenship, at least theoretically. Further, communities with large numbers of formally unincorporated immigrants are far less likely to gain the attention and ear of politicians and lobbying groups. Citizenship is clearly essential at both the individual and group level for formal political activity, namely voting, but it also may be critical for informal acts of civic participation as well.

Other Options for Civic Integration Citizenship has historically been viewed as the primary measure of civic integration, as it guarantees access to the most formal method of democratic political activity, namely voting. It is not clear, however, if naturalization is always sought for the purposes of civic integration. U.S. citizenship may be acquired for a range of reasons including, but not limited to, a greater ability to help relatives enter the United States, greater access to social welfare benefits, and greater upward mobility in the economic realm. Naturalization does, of course, also allow electoral participation, but it does not equal civic integration. Studies of voter participation among the naturalized population show significant variation in turnout by country of origin. For some immigrant groups, such as Canadians and Cubans, naturalizing translates into very high rates of electoral participation. For other groups, such as Chinese and former Soviets, who experience a difficult language transition, only a minority of those naturalized actually vote. In the latter cases, naturalizing does not suggest civic integration. Further, naturalization may not be an option for all immigrants. The U.S. Department of Homeland Security estimated that as of January 2006, approximately 11.6 million undocumented immigrants were residing in the United States (Hoefer, Rytina, and Campbell 2007). For these nearly 12 million immigrants,

Civic Incorporation | 103

becoming civically integrated in the United States via naturalizing is not an option. Does that mean that these millions of residents remain outside the civic realm? Scholars argue that civic integration may be occurring for them via other, more informal channels. Even when individuals cannot formally attain civic membership due to their legal status, children born to them in the United States are citizens and may be a gateway to civic integration. For example, 64 percent of minor children living in the United States with undocumented parents are themselves native-born U.S. citizens. This citizenship by proxy may lead to some level of civic integration on the part of those who do not have naturalization as an option. More active forms of civic integration are also evident. The large-scale immigration marches of spring of 2006 suggest that informal political activity, that is civic engagement that does not require being an U.S. citizen, exists as another mechanism by which some immigrants may become civically integrated. Participation estimates for the May Day protest marches to demand immigration reform range between one and two million immigrants (MSNBC 2006). Research has shown that although naturalized citizens are more likely to participate in informal political acts, noncitizens also participate in such behaviors. One study found, for example, that nearly 13 percent of non-naturalized citizens have contacted a public official, 44 percent have donated money to local organizations, and 41 percent feel a sense of political efficacy (Segura, Pachon, and Woods 2001). Although all of these numbers are lower than among the citizen population, the results strongly suggests some level of civic integration on the part of those who cannot or will not naturalize.

CONCLUSION The concern over the civic integration of immigrants has existed virtually since immigrants began to enter the United States in large numbers in the mid– nineteenth century. The perceived threat of immigrants taking over American society and culture has been a driving force behind the push for assimilation. As at the turn of the twentieth century, the public, policy makers, and politicians of today debate the willingness and ability of immigrants to become what they label American. Questions of whether civic integration is still necessary for increasingly transient immigrants, whether it is still inevitable for those who stay, and whether naturalization is really the best sign of civic integration are all up for debate. See also Birthright Citizenship; Dual Citizenship; Naturalization and Immigrant Loyalty References: Abalos, David. Latinos in the United States: The Sacred and the Political. Chicago: University of Notre Dame, 1986; Alba, Richard, and Victor Nee. “Rethinking Assimilation Theory for a New Era of Immigration,” in The Handbook of International Migration: The American Experience, edited by C. Hirschman, P. Kasinitz and J. DeWind, 37–160. New York: Russell Sage Foundation, 1999; Batalova, J. “Spotlight on Naturalization Trends.” US

104

|

Coercion and Migration in Focus. Washington, DC: Migration Policy Institute, 2006; Bloemraad, I., and Bueker, Catherine. From Immigrant to Naturalized Citizen. New York: LFB Scholarly Publishing, 2006; California Immigrant Policy Center. “California Must Prioritize Citizenship.” 2007; Cruickshank, B. The Will to Empower: Democratic Citizens and Other Subjects. Ithaca, NY: Cornell University Press, 1999; Fix, Michael, J. Passel, and K. Sucher. “Trends in Naturalization.” Immigrant Families and Workers, Brief No. 3. Washington, DC: The Urban Institute, 2003; Gordon, Milton. Assimilation in American Life: The Role of Race, Religion, and National Origins. New York: Oxford University Press, 1964; Hoefer, M., N. Rytina, and C. Campbell. “Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2006.” Population Estimates. U.S. Department of Homeland Security, Office of Immigration Statistics, 2007; Jimenez, T. “From Newcomers to Americans: An Integration Policy for a Nation of Immigrants.” Immigration Policy in Focus 5, no. 11 (2007); Jones-Correa, M. “Different Paths: Gender, Immigration, and Political Incorporation.” International Migration Review 32, no. 2 (1998); Larsen, J. “The Foreign-Born Population in the United States: 2003,” in Current Population Reports, 20– 551. Washington, DC: U.S. Census Bureau, 2004; Lowell, L., and Y. Kemper. “Transatlantic Roundtable on Low-Skilled Migration in the 21st Century: Prospect and Policies.” International Migration 42, no. 1; MSNBC. “1 Million March for Immigrants Across U.S.” May 1, 2006; Margon, S. “Naturalization in the United States.” US in Focus. Washington, DC: Migration Policy Institute, 2004; Office of Immigration Statistics. Yearbook of Immigration Statistics 2006. Washington, DC: U.S. Department of Homeland Security, 2007; Passel, J. “Growing Share of Immigrants Choosing Naturalization.” Pew Hispanic Center, 2007; Portes, A., and M. Zhou. “The New Second Generation: Segmented Assimilation and its Variants.” The Annals of the American Academy of Political and Social Science 530, no. 1 (1993); Putnam, R. Bowling Alone: The Collapse and Revival of American Community. New York: Simon and Schuster, 2000; Reich, Richard. “How Capitalism is Killing Democracy.” Foreign Policy (September/October 2007); Segura, G., H. Pachon, and N. Woods. “Hispanics, Social Capital, and Civic Engagement.” National Civic Review 90, no. 1 (2001); Singerman. D. Avenues of Participation. Princeton, NJ: Princeton University Press, 1996; U.S. Citizenship and Immigration Services. Citizenship in the United States. Washington, DC: U.S. Department of Homeland Security, 2007; Waters, Mary. “The Challenges of Studying Political and Civic Incorporation.” MacArthur Network on Transitions to Adulthood. September 2007. http://www.transad.pop.upenn.edu.

Catherine Simpson Bueker

COERCION AND MIGRATION The concern expressed in popular media such as radio talk shows and television news programs like Lou Dobbs about illegal immigration can be misleading. It often overlooks the jeopardy that migrants face dealing with smugglers or traffickers who may enslave them. Despite the danger, many undocumented migrants come to look for work or to join their families hoping to become permanent immigrants. The necessity for migrants who would be denied a visa to enter without legal authorization propagates a host of criminal industries. Human smugglers and traffickers are international criminals, and it is not surprising that as intensified border enforcement increases the stakes for both migrants and smugglers, incidences of coercion and predation have increased.

Coercion and Migration

Women and children are trafficked both into the United States and internationally for the purpose of forced prostitution and enslavement. Of necessity, this is a process involving trickery and coercion. The United States has responded by passing legislation and directing efforts toward international cooperation. This legislation may work on paper, but efforts to stop this massive problem are only showing limited results. BACKGROUND A History of Race, Gender, and Global Inequality in Migration The process of globalization has minimized the impact of the distance between communities across the world. While global migration is not new, the speed at which it is occurring and the shifting dynamics are. Why do people migrate? Their reasons may include finding a job, reunifying family, marriage, and the fulfillment of demand for labor by migrants. Nevertheless, in some cases, migrants lose control and are maneuvered into criminal activities or enslavement under conditions of coercion by smugglers or traffickers. Those who are categorized as undocumented immigrants are welcomed as cheap and dispensable labor, but refused permanent legal resident status. This relegation to a marginalized status makes modern migrants from countries considered the global South (developing nations), particularly women and children, vulnerable to criminals. In the twentieth and twenty-first centuries, the gender dynamics of global migration have shifted. Since 1970, the migration of women has increased on a global scale in a phenomenon referred to as the feminization of migration. While women have yet to earn equal hourly wages in most countries, including the United States, women now constitute 50 percent of the world’s migrants. Women migrants are impacted by the creation of binary categories that have developed to label migration as either coerced (trafficked) or voluntary (smuggled). Such simple polarizations of migration are insufficient to describe the effect gender experience has on the migration process and the vulnerability of women to human trafficking aimed at producing modern-day slaves. The U.S. West Coast has a deeply embedded migratory relationship with Latin America that generates racialized (raced) perceptions of human trafficking and smuggling. Americans stereotype Mexico and Latin America as regions involved in smuggling and assume the United States has no criminal involvement. Gendered and raced experiences, however, present a complex picture of interlinkage between countries of the Global North (industrialized nations) and the Global South. HUMAN SMUGGLING AND THE U.S.MEXICO BORDER Undocumented migrants cross U.S. national borders without a border-crossing identification card. These cards are issued by U.S. consulates to visitors for tourism

| 105

106

|

Coercion and Migration

or business, temporary workers, and refugees. These cards are denied to individuals who cannot establish sufficient financial means or pass a security check required of entrants from countries designated as harboring terrorists. The United States has the largest and most diverse flow of undocumented workers amongst the developing nations. Undocumented Mexicans, Central Americans, and other Latin American workers are employed in agriculture, manufacturing, and the service sector, including jobs ranging from maids to waiters. This is a historical process that began as early as the 1940s when the United States implemented the Bracero program to legally bring migrant workers into the United States. Today, although many foreign born are admitted as legal immigrants, a substantial group enters as undocumented migrants, often assisted by smugglers, who may stay for a period of time and return to the country of origin or remain permanently as unauthorized immigrants. Although a person who is smuggled enters the United States illegally, they face an additional risk of human trafficking. A migrant who may want to enter voluntarily but is coerced for forced prostitution or enslaved labor has been trafficked by organized crime. Since 9/11, the protection of the U.S. border has been the focus of U.S. national security. In 2006, the U.S. government funded 12 million dollars for Operation Stonegarden, a continuation of a 2005 pilot program with the goal of increasing patrolling of U.S. borders along Arizona, California, New Mexico, and Texas. This initiative is reminiscent of those in the 1990s: Operation Holdthe-Line (El Paso, 1993), Operation Gatekeeper (California, 1994), and Operation Safeguard (Arizona, 1995). The goal of the U.S. Border Patrol is to combat human smuggling and human trafficking. However, even as U.S. borders are tightened, immigrants continue to enter the United States from Latin America looking for employment opportunities. In 2006, the number of legal immigrants entering the United States was 1.3 million. This number is estimated to be closer to 1.8 million if those who enter as undocumented are included. All estimates of undocumented entry are problematic as the undocumented have reasons not to cooperate with U.S. Census and Current Population Survey counts, although many do. U.S immigrants are racially and ethnically diverse, but the mass media focuses attention on anti-smuggling initiatives aimed towards Latin Americans at the southern U.S. border. In San Diego, California, major crackdowns on human smuggling rings have periodically occurred. San Diego is an important corridor or entry point for human-smuggling networks. The smuggling corridor stretches from Ota Mesa to east of Tessa. News stories on incidents like the San Diego crackdowns will become typical and delineate how the government handles immigrant workers arriving at U.S. borders. Employers in particular labor industries (such as the agriculture and service sectors) cautiously welcome immigrants, but the tightening of U.S. borders and the arrest of migrant laborers and smugglers effectively reject them. Human Smuggling It is often presumed that those who are smuggled across national boundaries do so freely; they are not coerced, forced, or deceived because they have entered

Coercion and Migration

into contracts or have paid for the service. Those who are smuggled are grouped with other voluntary migrants who may migrate to pursue economic opportunities (economic migration), for personal enrichment, or to be reunified with families. Human smuggling is the facilitation, transportation, attempted transportation, or illegal entry of a person(s) across an international border through deception, such as the use of fraudulent documents or simple passage without identification. Definitions of smuggling in U.S. policy suggest that the person being smuggled is cooperating with the smuggler. These definitions do not mention actual or implied coercion, and consider that the illegal entry of one person is being facilitated by another (or more than one). This use of the term cooperation in this definition, however, is highly contested when it comes to differentiating smuggling from human trafficking. Although the U.S. public focuses on the smuggling of Mexican and, to a lesser extent, Central American and Latin American undocumented immigrants, this is just a partial picture. Smuggling cannot be understood in a vacuum because it is a complex transnational phenomenon. It is not just a U.S. reality but rather, a global reality. Human smuggling is not limited to the United States in spite of the United States having the largest number of unauthorized people. Other countries that are major destinations include, Western Europe, Germany, Canada, and Australia—industrialized, capitalist nations, otherwise known as the First World or the Global North. Human smuggling is the process of bringing in unauthorized entrants and according to the U.S. Immigration and Nationalization Act, Section 274(a)(1), (2), it is a felony for the smuggler and a civil offense for a migrant’s first entry. The methods of smuggling include self smuggling, smuggling by professional organizations/networks, and smuggling by independent entrepreneurs known as Coyotes in the case of Latin American emigration or Snakeheads in the case of Asian emigration. This criminal activity is very profitable. In the first decade of the twenty-first century, a Chinese migrant might pay from $25,000 to $30,000 to attempt unauthorized entry to the United States. The smuggling fee itself places international migrants into a coercive situation because of the length of time it takes for a person and relatives from a developing country to pay off such a debt. If payment is delayed, relatives in the country of origin may be threatened. Human smuggling involves high risk for both smugglers and migrants. A Coyote—also known as a pollero—is a person paid to smuggle a migrant from Mexico, Central America (including the countries El Salavdor, Guatemala, and Honduras), or Latin America across the U.S.-Mexico border. Coyotes are despised by some on both sides of the border for profiting from migrants. As the borders become increasingly militarized, dependency on smugglers increases, and smugglers are able to coerce ever larger payments from undocumented immigrants. Coercion becomes intensified when smugglers connected to drug traffickers ask immigrants to carry in marijuana or other drugs as a part of their fee. Coercion has increased because urban border enforcement by fortification increasingly pushes migrants to cross in areas more remote and often times more dangerous. Environmental factors such as summer heat exposure in the Arizona desert can cause medical problems and even death. In some cases

| 107

108

|

Coercion and Migration

smugglers abandon medically incapacitated members of a group who can only hope that the U.S. Border Patrol will find them before dehydration, heat stroke, and starvation occur. Undocumented Asian smuggling has historically utilized maritime routes and has received less media attention. Maritime smuggling has been associated with rape of women migrants, malnourishment, and unhealthy conditions of concealment. Snakeheads smuggling Chinese into the United States are reported to have stopped using maritime routes through Seattle, Washington. The new route is by air. One positive, indirect consequence of this change is a reduction of exposure to harm due to the short duration of attempted entry. In 2004, the United Nations Convention signed the Smuggling of Migrants by Land, Air, and Sea Protocol at its Vienna meeting to control human smuggling, trafficking, and transnational organized crime. Global smuggling networks include a wide variety of source countries and routes, including the often-neglected Canadian border. Cases of human smuggling through Canada from Asia and Eastern Europe were highlighted during a 2006 indictment in Detroit, Michigan, which revealed the fact that undocumented migrants sometimes rode inside or held onto the sides of freight trains traveling through rail tunnels or were smuggled in ferries, car trunks, the cargo trailers of semi trucks, and in some cases, small boats. The acceptance of such risk is at least partially coerced by prohibiting the voluntary movement of people across borders. Regardless of how much is paid and where migrants are from, the end result is the same: migrants who are smuggled into a country only reach their destination if they survive the process. In 2000, more than one hundred Chinese were found hiding in several ships in U.S. and Canadian ports, including three who arrived dead in a cargo ship called Cape May; they died of malnutrition and dehydration. Migrants contracting with human smugglers must deal with fear, including the risk of death. Forced Migration Forced migration often involves a degree of coercion. Forced migration refers to refugees and displaced individuals fleeing ethnic cleansing, political conflict, famine, and other traumatic situations. Forced migration is most often a situation of political coercion, but it is sometimes due to traumatic necessity. Slavery and Forced Migration. Historic examples of forced migration include the transatlantic slave trade, the forced movement and confinement or death of Jews during the Holocaust, the exodus of Palestinians when the British divided their Arab territories, and the fleeing of Vietnamese refugees during the fall of Saigon. This population displacement is often characterized as the result of nation-state action, although forced movement can be caused by a failure to accept a change in nation-state government and/or territory. Displaced people around the globe are diverse, but share the characteristic that they have been impacted by economic and political turmoil in their home countries. A displaced person is often a refugee or asylum seeker.

Coercion and Migration

Refugees. Refugees are, by definition, coerced individuals who are most often forced by nation-state conflict to flee. This forced migration is especially severe when entire groups flee ethnic persecution. The legal concept of a refugee was created in 1951 when a Refugee Convention formulated by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons under the General Assembly resolution 429 (V) was adopted. Individuals protected under the category of refugee flee their countries because of persecution or conflict. Their primary international oversight organization is the United Nation’s High Commission on Refugees (UNHCR), which was developed in conjunction with the UN protocol to protect, assist, and provide monetary support for refugees. In 2005, UNHCR estimated that 8.7 million refugees exist, with the highest concentration of refugees in Asia (40%), followed by Africa (32%), Europe (20%), North America (6%), Oceania (1%), and Latin America and the Caribbean (0.4%). New source countries for mass refugee outflows during 2005 included Togo (39,000), Sudan (34,000), the Democratic Republic of Congo (16,000), Somalia (14,000), the Central African Republic (11,000), and Iraq (11,000). Central American Refugees. Mexican, Central American, and Latin American migration has been treated as freely motivated, in contrast to the Asian and African regions. This has created controversy because the United States was involved in covert warfare during Central American political conflicts of the 1980s and chose to treat displaced individuals and families as economic migrants rather than refugees. Immigrant advocates in the United States took up these migrants’ cause by documenting the existence of death squads and other political persecution during the Central American civil wars and the U.S. efforts to undermine the pro-Communist government of Nicaragua. As a result, there have been several periods of legalization of Central Americans in the United States after judicial decisions were reached. Currently, Latin America is not considered a major region producing forced migration. HUMAN SMUGGLING AND TRAFFICKING OF WOMEN Human rights advocates are concerned with human-smuggling networks that use trickery, physical coercion, and emotional degradation in order to exploit migrants economically or to force them into slavery. Research on women in coerced migration continues to gain strength and influence. Examining how coerced migration is experienced differently by men and women illustrates the complexity of global trafficking. Human trafficking is an example of gendered coercion because its chief victims are women and girls rather than men. In contrast to human smuggling, where an individual enters into a contract or pays, the trafficking exploits migrants by violating the terms of the travel and job agreement and placing the migrant under a long-term condition of coerced behavior and loss of freedom. One example is prostitution of migrant women, a common experience that spans communities and nations. There is a blurry line between human smuggling and human trafficking as delineated in the Jaime AguilarHernandez case described below.

| 109

110

|

Coercion and Migration

After being caught in Stockton, California, Jaime Aguilar-Hernandez, a coyote that smuggled people from Mexico the United States, was convicted of four counts of alien smuggling and sentenced in November 2006 to 36 months of prison time. The case was acquitted to make a more serious charge, after it was discovered that Aguilar-Hernandez forcibly prostituted a woman he smuggled from Guatemala. This particular case was prosecuted based on the collaborative efforts of two-dozen Sacramento organizations that formed the Rescue & Restore Victims of Human Trafficking Coalition with the help of the U.S. Department of Health and Human Services. HISTORY OF PEONAGE AND ENSLAVEMENT LAW Although U.S. slavery was abolished in 1865 with the ratification of the 13th Amendment, the U.S. Department of Justice has estimated that over 50,000 people, primarily women and children, are annually trafficked to the U.S. Historically, the U.S. Abolition movement acted against the enslavement of Africans brought across the Atlantic sea. Although slavery was abolished, the problem continued as debt peonage (a situation in which a person, often a freed African slave or a Mexican American or Mexican) worked for subsistence because they could never pay off debts related to crop-land leases or family survival. As a result, anti-peonage laws were put into place, and cases of enslavement in the United States can still be tried under these early twentiethcentury laws. In the early twentieth century, trafficking of white women into prostitution became an issue. In 1910, the Mann Act (also referred to as the White Slave Trade Act) was implemented in order to respond to the increase in trafficking of women from Europe by French procurers into prostitution. It prohibited the interstate and international transportation of women for “immoral purposes.” Ninety years later in 2000, another law was implemented: the Trafficking Victims Protection Act (TVPA). PROTECTING DOMESTIC VIOLENCE AND TRAFFICKING SURVIVORS Anti-human trafficking initiatives in the United States to protect women and girls are interconnected with the domestic violence movement. The first U.S. policy on domestic violence was developed at the state level during the temperance movement of the mid-nineteenth century. By 1850, nineteen states had passed laws allowing women to divorce their husbands on the grounds that they were abusive. These laws were embedded in the temperance movement, which connected alcohol with domestic violence as a dual social problem. Initially created to abolish alcohol use, women used the temperance movement to generate legislation for equal rights, economic independence, divorce, and protection against physical abuse. By the 1960s there was a shift in domestic violence initiatives with the formulation of groups such as the National Organization for Women. But it was not

Coercion and Migration

until 1994 that the United States would pass a comprehensive bill to address violence against women—the Violence Against Women Act. Perhaps because of its focus on the mistreatment of women, in 1999 the Trafficking Victims Protection Act (TVPA) was attached to the reauthorization of the 1994 VAWA. This policy is in line with U.S. initiatives to prosecute human traffickers, prevent human trafficking, and protect survivors. TRAFFICKING FOR PROSTITUTION AND ENSLAVEMENT The Trafficking Victims Protection Act (TVPA) defines human trafficking as follows: (1) movement of an individual across international boundaries after which a commercial sex act is induced by force, fraud, or coercion, including when the person induced to perform such an act is under 18 or (2) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion, for the purpose of subjecting that person to involuntary servitude, peonage, debt bondage, or slavery. The theme that exploitation occurs through force, fraud or coercion is central to the TVPA definition. U.S. policy automatically considers minors under eighteen years-old who are in the sex industry to be sex trafficked, but requires adults to establish a case for sex trafficking. The International Labour Organization (ILO) estimates that annually 1.2 million people are globally trafficked across and within national borders. The U.S. Department of State estimates that 600,000–800,000 women, men, and children are trafficked across international boundaries each year, and eighty percent of those trafficked are women and girls. In 2004, interviews with 191 U.S. agencies indicated that forced labor is prevalent in five sectors of the U.S. economy: prostitution and sex services (46%), domestic service (27%), agriculture (10%), sweatshop factories (5%) and restaurant and hotel work (4%). The U.S. Department of Justice estimates that 50,000 people are trafficked into the United States each year. Of those, one-third come from Latin America. What is important to note in these trends in order to understand the gendered dynamics of human trafficking is that the most trafficking occurs in the sex industry, especially prostitution. GENDER AND HUMAN TRAFFICKING To understand human trafficking, knowledge of the conditions that create it is needed. Human trafficking is not limited to women, but it is an experience that differs based on gender. The increasing numbers of women/girls who are sex trafficked reflect on the status of women, especially racial-ethnic women, and perceptions of rape and sex abuse in both source and destination countries. For example, both Mexico and the United States have traditionally been patriarchal societies controlled by men. The concept of borrowing patriarchies indicates that the gendered violence of one country is easily exported to a country with a similar tradition. Coerced prostitution is basically serial rape of nonconsenting

| 111

112

|

Coercion and Migration

and traumatized women and girls. Global interlinkages foster sex trafficking and patriarchal tradition ensures customers for a high-profit business in which the workers are enslaved and, if they become ill, discarded as disposable people. Worldwide, one in three females experience rape. In Mexico, a man that rapes a minor may avoid prosecution if he marries the victim. Furthermore, the Mexican Supreme Court had ruled that violently forcing a spouse to engage in sexual relations was not rape but the “undue exercise of a right.” It was not until 2005 that the Mexican Supreme Court outlawed marital rape and made it subject to punishment. In the United States, according to the U.S. Department of Justice, a woman is raped every two minutes. This does not include child sex abuse. 16 percent of rape victims report their rape to the police, which means an even smaller percentage lead to convictions. Because of the similarities between the two countries and because rape is predominately a crime against women that reflects their history of lower social status, it is a gendered violence that is transferable through patriarchal borrowing. National responses to human trafficking reflect the trend towards recognition of rights for women and girls, but a part of the problem is that law enforcement responses to these gendered crimes are still insufficient. Human smuggling and human trafficking are part of a larger global process of migration that is defined by national/local responses. In order to understand the increase in international crimes against women and girls, one must understand the interdependence that has developed between countries and the widening inequalities between these countries. Women and girls from poor countries are exploited in richer countries. Yet instead of looking at these coercive gendered transactions, the examination of human trafficking and smuggling has led only to a well-funded policy platform to achieve tightened border controls. The relation of smuggling and trafficking to crimes against women and girls remains a distant concern as compared to the outcry to end illegal immigration. TRAFFICKING AND THE SEX INDUSTRY Sex trafficking is a $32-billion enterprise. The global sex industry is housed in go-go bars, pick-up trucks, night clubs, massage parlors, saunas, truck stops, restaurants, coffee shops, barber shops, straight-forward brothels (which provide no other service), escort agencies, and on the street. Simply put, the commercial sex takes place whenever a person, most often female but sometimes a young boy or older male, sells their sex in exchange for monetary benefits. The Coalition Against the Traffic in Women (CATW) found that the rise in sex trafficking globally and in the United States is due to the following: (1) genderbased social and economic inequality in all areas of the world, (2) male demand for sex/prostitution, (3) macro-economic policies that lead to a push of certain countries to export laborers (an example given is the Philippines, but this is also inclusive of Latin America especially since the passage of the North American Free Trade Agreement, 1994, and (4) the expansion of transnational sex industries connected to the globalization of capital and information technology or armed conflict and military occupation.

Coercion and Migration

Transnational sex trafficking networks are controlled by supply and demand. They would not exist without the demand from countries of destination. Recruitment is easy; victims are falsely promised legal jobs. Sex trafficking requires the industry to already exist in the source country and for demand to exceed supply, necessitating coerced substitution of foreign women. The systemic operation of prostitution in the first-world service sector exists because of leniency as well as cultural normalization in both sending and receiving countries. To examine the idea of leniency, one need only refer to reports in the media of politicians and celebrities who patronize the elite prostitution services. Combating Sex Trafficking National Anti-Trafficking Legislation. In 1999, the Trafficking Victims Protection Act (TVPA) established the precedent to prosecute human traffickers and protect survivors. The term survivor is gender neutral and the legislation covers involuntary servitude, peonage, and slavery. This act demonstrates an international commitment by the United States to end the exploitation of individuals subject to human trafficking. This act has led to the collection of statistics on trafficking and provides a framework for attacking the problem. International Cooperation. The Office to Control and Monitor Trafficking in Persons is an international unit located within the State Department. The effort to end trafficking is supported in the sending countries, often through public education programs that target at-risk women. International raids within receiving countries have identified traffickers and released survivors. International sex trafficking victims are often repatriated to their home countries, and assistance is given for their reintegration. Global Law Enforcement Statistics. The 2003 Trafficking Victims Reauthorization Act (TVRA) requires foreign governments to provide the Department of State with the following data: (1) trafficking investigations conducted, (2) number of prosecutions and convictions, and (3) sentences imposed on traffickers. Collection of this data qualifies a country as in compliance with minimum standards for stopping trafficking. This data indicated that in 2003: (1) 24 countries passed new or amended legislation on trafficking; (2) 7,992 prosecutions were undertaken; and (3) 2,815 convictions occurred. In 2004, data indicated: (1) 39 new or amended legislative acts were passed (2) 6,885 prosecutions were undertaken; and (3) 3,025 convictions occurred. In 2005, there were: (1) 41 new or amended legislative acts, (2) 6,618 prosecutions, and (3) 4,766 convictions. The data indicate a trend towards an increased international conviction rate. International Cooperation with Mexico. This middle-level developing country is a source, a transit zone, and a destination country for trafficking. Source regions include Central America, South America, The Caribbean, Eastern Europe, Africa, and Asia. Within Mexico, women and children from poor rural regions are brought to cities and tourist destinations to be exploited through job-offer fraud or physical violence. Along the U.S. border and in Mexican tourism areas, child sex tourism is a problem.

| 113

114

|

Coercion and Migration

Women are brought into Mexico or trafficked into the United States for prostitution by organized criminal networks. Yet U.S.-Mexico border enforcement officers often treat human smuggling and trafficking similarly and Mexican corruption impedes investigations. Although, in Mexico both prostitution and pimping are legal, forced prostitution is not. The Mexican government is on the Tier 2 Watch List because it does not comply with minimum standards for eliminating trafficking, including providing data on prosecution, protection, and prevention. The Mexico Senate passed anti-trafficking legislation, but the Chamber of Deputies has not yet voted. Lack of trafficking-specific legislation has prevented data collection. A Preventive Federal Police (PFP) unit with 140 agents investigates and collects data. In the first eight months of 2005, Mexico prosecuted 1,336 cases and levied 531 sentences. It is not clear how many of these cases were trafficking related, and only two convictions are known to be for this crime. The Mexican authorities have identified 126 trafficking gangs. Mexico has organized public awareness campaigns, prioritizing cities connected to trafficking. Mexico prohibits slavery, forced prostitution, corruption of minors, and trafficking related crimes. Mexico and the United States have cooperated in prosecution through both extradition to Mexico and surrender to the United States of trafficking suspects. Mexican law enforcement corruption is a major problem, and a journalist was arrested in Puebla in 2005 for investigating traffickers; she was promptly released. There is inadequate victim protection in Mexico, although nongovernmental organizations (NGOs) are cooperating in training and building new facilities. The Mexican government social welfare agencies operate shelters for domestic violence and trafficking victims. In 2005, 207 children were rescued and protected. In 2005, four trafficking victims were permitted to reside in Mexico in return for cooperating in trafficking investigations. Mexico illustrates the difficulties in combating trafficking of women to the United States, but it also demonstrates that progress has been made on initiatives connected to TVRA. Elimination of trafficking depends on establishing international cooperation. Bilateral Safety Corridor Coalition (BSCC). BSCC is an example of an international non-governmental organization (NGO) formed to combat smuggling and trafficking connected to coerced labor. Human trafficking and smuggling are interconnected because they depend on the same migration networks, The Bilateral Safety Corridor Coalition, was formed to address how the same routes used for human smuggling are used by human traffickers. The BSCC formed in 1993 when a case manager, Marisa Ugarte, noticed a trend towards trafficking young Mexican girls into Southern California prostitution managed by pimps in Tijuana, Mexico. The BSCC is a coalition of sixty organizations in the United States and Mexico. Victim Assistance in the United States. Individuals testifying against traffickers and associated criminal activities are eligible to apply for a visa, benefits, and services under any federal or state agency, similar to having the status of a refugee. The Department of Health and Human Services, the Department of Labor, the

Coercion and Migration

Legal Services Corporation, and other Federal agencies are required to provide benefits and services without regard to the immigration status of victims. Under current U.S. policy, any person who receives financial support from the U.S. government due to her or his standing as a trafficked survivor, is funded by Refugee Cash Assistance. Problems in Anti-Trafficking Enforcement and Prosecution Trafficking Networks Persist. Despite passage of legislation, ending trafficking is interconnected with ending smuggling. Both are targeted for control by border enforcement, but control of sex trafficking may require a differentiated law-enforcement strategy. For example, tightly organized associations based on a familial hierarchy, like Los Leones, in which the father is the head, have developed international trafficking routes from Mexico and other Latin American countries. Case scenarios for the trafficked survivor include being lured in with false promises by a trafficker and then being kidnapped and exploited. Coyotes are aware of the vulnerability of migrants, whose undocumented status will lead families not to report victimization ranging from rape to forced prostitution. This has led to a trend in which Coyotes and pimps form trafficking coalitions. For example, women and girls are trafficked from the Mexico/ California border to northern San Diego County, where they are placed in apartments controlled by women pimps hired by traffickers. Brothels have been identified in communities as far north as Canada. Trafficked girls are sold to migrant farm workers, U.S. tourists, and U.S. military personnel. Ending this exploitation of women and girls cannot rely only on border enforcement because the sex industry is active in the interior. Traditionally, the United States had devoted more funding to controlling the U.S.-Mexico border than enforcing labor-law violations in the interior. Special law enforcement task forces are needed to investigate the international connections and trafficking in women in the U.S. sex industry. Statistics are needed on the percentage of prostitution arrests that are connected to enslavement, and an effort is needed to encourage the survivors to testify under the Trafficking Victims Protection Act (TVPA). Invisibility of the Problem. The U.S. public’s awareness of human trafficking from Latin America and its networks is made virtually invisible by the media attention given to undocumented migration and U.S.-Mexico border enforcement efforts. The number of social services in California whose mission is to focus specifically on the trafficking of Latinas/os and who provide culturally specific services (Spanish language included), is limited to one agency: the Bilateral Safety Corridor Coalition. Most survivors continue to be routed through domestic-violence agencies such as the San Francisco La Casa De Las Madres, the first agency in the Bay Area of California to provide social services to combat domestic violence. Aid and Prosecution. The U.S. government passed legislation to counter human trafficking, however, states have found this policy limited in its outcomes; human trafficking continues to occur in large numbers. In spite of the 50,000 people that are annually trafficked into the United State, the United States only provides

| 115

116

|

Coercion and Migration

5,000 T visas for trafficked persons. Three years after the TVPA was passed, only twenty three visas were issued. To date 32 states have passed state policies to compensate for the limitations in the Trafficking Victims Protection Act. In 2005, California passed a bill, AB 22, that allows for victim restitution, victim-caseworker privilege, the establishment of a Task Force (California Alliance to Combat Trafficking and Slavery Task Force), and reimbursement for services provided in aiding trafficking survivors. However, similar to its predecessor, the TVPA, AB 22 lacks implementation; prosecutions for human trafficking in California through the recent policy was/are nonexistent. A coordinated federal, state, and community effort needs to be developed to aid survivors in return for their testimony. In general, aiding one case of human trafficking requires the collaboration or collective work between twenty different agencies for a successful human-trafficking prosecution. These services include, but are not limited to: victim advocacy and coordination of services; housing; group counseling; case management; investigation of the crime; gynecological care; medical treatment and lab tests; management of funds through the Office of Refugee Resettlement; Health and Human Services; legal work in the home country to assist family, provide them with shelter, and protect the them from traffickers; FBI investigations; INS provision of legal documents; legal advisors; case monitoring; psychological evaluation; criminal attorney; immigration attorney; U.S. Attorney; services for youth if the survivor is also a youth; and trauma counseling. Problems in International Law Enforcement Cooperation. In spite of current U.S. anti-rape policies that criminalize sex abuse/assault/rape/violence, international enforcement is another issue. A significant obstacle to stopping transnational organized crime is the lack of communication and cooperation between national law enforcement authorities. Other Issues. Survivors of human trafficking are often times assumed to be smuggled and therefore re-trafficked. Current suggestions on how to respond have included an increase in victim protection and services. The ongoing psychological trauma that survivors of human trafficking experience even after the experience ends, suggest the need for continued support even after a case closes. CONCLUSION Violence against individuals is often gendered. The abuse of a woman or girl by a smuggler who puts her into coerced prostitution is matched by the development of international sex trafficking organizations. Prostitution is essentially an industry based on primarily male demand for women and girls. Smuggling and trafficking of women and girls for prostitution are steps along a continuum of gendered violence. Integral to the debate surrounding human smuggling and trafficking is the question of whether or not these two processes are entirely separate. In reality, they cannot be completely separated. The debate surrounding human smuggling and human trafficking requires a conceptualization of whether or not the illicit and the licit (legal) can be easily

Coercion and Migration

disaggregated. Is migration, in general, always coerced? While the connection between forced migration of refugees and state action is clear, what about the economic factors that may lead to coerced migration? In part, such questions are central to understanding smuggling and trafficking. It is clear that global and internal nation-state inequalities fuel the political conflicts that create refugees and that the North-South division feeds the one-way smuggling and trafficking of women and girls coerced into prostitution or other forms of enslavement. These issues are further complicated by other intersecting issues of power dynamics due to race, gender, and class difference. Although the migrant who is smuggled is always vulnerable to exploitation due to their status as undocumented and illegal, the difference in gender exacerbates potential for exploitation in specific arenas in which there is a gender/age demand. Twenty-first century migrants face an experience defined by a continuum of force and consent. Even among consenting migrants, many compromises are made because their human right to cross borders is not recognized. When the United States socially constructs the illegality of foreign nationals, it increases the risk of coercion, which leads to such crimes as sex trafficking. Although the United States and other countries are beginning international cooperation to end such crimes as forced prostitution and trafficking, only the initial groundwork is in place. This international social problem has not been substantially addressed. See also Enslavement; Human Trafficking; Refugees; Undocumented Immigration Policy References: Adamson, Fiona. “Crossing Borders: International Migration and National Security.” International Security 31, no. 1 (2006):165–199; Anonymous. “Korean, Malaysian Airlines Are Accused of Human Smuggling.” Filipino Reporter 28, no. 35 (2000):16; Associated Press Worldstream. “U.S. and Canada Arrest 17 in Alleged Human Smuggling Ring.” February 15, 2006. http://thestra.com.my/news/story.asp?file=/2006/2/15/apworld/ 20060215075131%sec=apworld; Bales, Kevin. Disposable People: New Slavery in the Global Economy. Berkeley: University of California Press; Berestein, Leslie. “Crackdown on Smuggling Results in 5,000 Arrests.” San Diego Union-Tribune. Local B5. April 25, 2007; Bindman, Leslie. “An International Perspective on Slavery in the Sex Industry,” in Global Sex Workers: Rights, Resistance, and Redefinition, edited by Kamala Kempadoo and Jo Doezema. New York: Routledge, 1998; Chuang, Janie. “Beyond a Snapshot: Preventing Human Trafficking in the Global Economy.” Indiana Journal of Global Legal Studies 13, no. 1 (2006):137–163; Department of Justice. Fact Sheet: Accomplishments in the Fight to Prevent Trafficking In Persons.” www.usdoj.gov/opa/pr/2003/February103-crt-110; Gallagher, Anne. “Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis.” Human Rights Quarterly 23, no. 4 (2001):975–1004; George Mason University Sexual Assault Services. “Worldwide Sexual Assault.” http:// www.gmu.edu/facstaff/sexual/brochures/WorldStats2005.pdf; Haynes, Dina Francesca. “Used, Abused, Arrested and Deported: Extending Immigration Benefits to Protect the Victims of Trafficking and to Secure the Prosecution of Traffickers.” Human Rights Quarterly 26, no. 2 (2004): 221–272; Hughes, Donna M. “The Demand for Victims of Sex Trafficking.” University of Rhode Island. http://www.uri.edu/artsci/wms/hughes/ demand_for_victims.pdf; Kim, Myung Oak. “2 Held in Jeffco in Human Smuggling Case.” Rocky Mountain News, September 26, 2007; Kyle, David, and Rey Koslowski, eds. Global

| 117

118

|

Congressional Reform Legislation Human Smuggling: Comparative Perspectives. Baltimoren: The Johns Hopkins University Press, 2001; Leyva, Yolanda Chavez. “Militarized Borders Worsen Human Smuggling.” Philadelphia Tribune 120, no. 18: 7A; Magagnini, Steven. “Coalition Formed to Rescue Victims of Human Trafficking.” Daily News Transcript, June 2, 2007:A006; Martinez, Susana S. “Coyotes, Comadres, y Colegas: Theorizing the Personal in Ruth Behar’s Translated Woman: Crossing the Border with Esperanza’s Story.” Meridians: Feminism, Race, Transnationalism 5, no. 2 (2005):149–175; Moran, Greg. “Human Trafficking Laws Used Against Smugglers Escondido Incident Involved Extortion.” San Diego Union-Tribune (Local). June 26, 2007:B3; Ngai, Mai. Impossible Subjects: Illegal Aliens and the Making of Modern America. United Kingdom: Princeton University Press, 2004; Office to Control and Monitor Trafficking in Persons: U.S. Department of State. Trafficking in Persons Report 2006. Washington, DC: U.S. Government Printing Office, 2006. http://www. state.gov/g /tip/rls/tiprpt/2006/65994.htm; Pais, Arthur J. “Human Smugglers Come Up for Sentencing.” India Abroad (New York edition) 37, no. 21: A10; Polaris Project. “U.S. Policy Alert on Human Trafficking: Summary of U.S. Policy Activity.” Polaris Project. http://72.14.253.104/search?q=cache:padQKsd26v4J:216.128.14.181/polarisproject/ programs_p3/Policy_Alert_7_13_07.pdf+Polaris+Project+Policy+Alert&hl=en&ct=cln k&cd=1&gl=us; Raymond, Janice G., and Donna M. Hughes. “Sex Trafficking of Women in the United States: International and Domestic Trends.” Coalition Against Trafficking in Women. http://new.vawnet.org /category/Documents.php?docid=986&category_id= 83; Sassen, Saskia. Globalization and Its Discontents: Essays on the New Mobility of People and Money. New York: The New Press, 1998; Shigekane, Rachel. “Rehabilitation and Community Integration of Trafficking Survivors in the United States.” Human Rights Quarterly 29, no. 1 (2007):112–136; Ugarte, Marisa B., Laura Zarate, and Melissa Farley. “Prostitution and Trafficking of Women and Children from Mexico to the United States.” Journal of Trauma Practice 2, nos. 3/4 (2003):33–74; United Nations Information Service. “Landmark United Nations Protocol Against the Smuggling of Migrants Enters into Force.” United Nations Information Service. Vienna. http://www.unis.unvienna.org / unis/pressrels/2004/uniscp461.html; United Nations Population Fund. “Selling Hope and Stealing Dreams: Trafficking in Women and the Exploitation of Domestic Workers.” State of World Population 2006: A Passage to Hope: Women and International Migration. United Nations Population Fund, 2006; U.S. Department of Justice. “Fact Sheet: Distinctions Between Human Smuggling and Human Trafficking.” Human Smuggling and Trafficking Center. http://www.usdoj.gov/crt/crim/smuggling _trafficking _facts.pdf; Vedia, Eduardo Molinay. “Mexico: Supreme Court Legitimises Rape of Spouses, Critics Say.” InterPress Third World News Agency, June 16, 1997; Vu, Carol N. “INS Delegation Visits China to Begin Talks About Human Smuggling: ‘Snakeheads’ no Longer Using Maritime Routes.” Northwest Asian Weekly (Seattle) 19, no. 34 (2000):1.

Annie Fukushima

CONGRESSIONAL REFORM LEGISLATION President George W. Bush was not successful in promoting his comprehensive immigration reform policies in Congress. While the House rejected any attempt at reform before increased border security was achieved, the Senate was divided on the issues of legalization and temporary worker programs. This precluded immigration reform during Bush’s presidency, but the bill’s emphasis on changing

Congressional Reform Legislation

temporary worker programs and allowing legalization of undocumented workers continues to shape the immigration debate. COMPREHENSIVE IMMIGRATION REFORM ACT OF 2007 The Senate debated the 761-page Comprehensive Immigration Reform Act (CIRA) of 2007 (S1348) in May and early June of that year. CIRA was postponed when the senate voted 45–50 to end the debate. A plurality of 60 votes were needed. Under pressure from President George W. Bush, senators denied bringing the bill to debate with a 46–53 vote on June 28, 2007. President George W. Bush and Senators John McCain and Edward “Ted” Kennedy worked to revive the bill in June 2007, limiting consideration to 27 amendments. The central provisions of CIRA included a legalization program mandating payment of a fine, an expanded temporary worker program, increased funding to strengthen border security, permanent barring of foreignborn entrants who overstay visas, and an increase in workplace inspectors for interior enforcement to 10,000. CIRA was renumbered S1639 and incorporated amendments passed during the earlier debate. CIRA failed because both conservatives seeking to restrict immigration and civil libertarians seeking an open border preferred the legal status quo to the unpredictable impact of the various compromise approaches the bill had developed. The Senate voted to oppose legalization and had a concern that temporary unskilled workers would have a negative impact on the native-born minimum wage. Although CIRA sought to increase the number of inspectors at workplaces in the U.S. interior, some analysts noted that employers and workers in many low-wage industries have experienced a low risk of being subject to enforcement of legal immigration status. In retrospect, the bill divided Senate members into opposing camps unable to reach a compromise and President Bush’s immigration reform was rejected. The provisions of CIRA, however, have carried forward in time as a starting place for the next attempt at legislative reform of immigration. CIRA 2007 PROVISIONS CIRA 2007 was controversial because of how it structured a path to legal status for unauthorized immigrants in the United States, a position supported by most Democrats, while changing future legal immigration to a point system favoring foreigners with skills, supported by most Republicans. Senators Edward Kennedy (D-MA) and Jon Kyl (R-AZ) were the leaders of a group of 12 senators who sought support for it. CIRA’s mixed strategy sought to engage interest groups across the full spectrum. For hard-liners, increased border enforcement would slow undocumented immigration. In an attempt to appeal to conservatives and liberals, a legalization program sought to create a path to permanent status for an estimated

| 119

120

|

Congressional Reform Legislation

12 million people while enacting a financial penalty, payment of any back taxes and a fee, and exacting household heads to return to the homeland before entering the program. Business interests would have received increased access to both skilled and unskilled guest workers while an overhaul of permanent immigration would have created a point system creating an advantage for the skilled and educated while reducing the current importance of family reunification. In many respects, CIRA 2007 differed from previous legislation, CIRA 2006, which was approved on a 62–36 vote in May 2006. It used triggers, which are enforcement programs that need to be in place before the new initiatives to bring more temporary migrants and immigrants can be introduced. These triggers required that more U.S. Border Patrol agents be hired, border fencing extended, and a mandatory new employee verification system be working prior to implementing legalization and expanded temporary worker programs. CIRA 2007 is innovative because it required touchbacks (required return of undocumented individuals to their homeland) prior to applying for immigrant visas to return to the United States legally. Finally, CIRA 2007 would have changed the legal immigration system by implementing a point system designed to credit one-third of U.S. immigrants for U.S. work, such as that undertaken by skilled professionals, English-language proficiency, education, and other social characteristics associated with economic social mobility in the United States. ENFORCEMENT CIRA 2007 aimed to place more pressure on undocumented migration through increased enforcement at the border and in the interior. U.S. Border Patrol agents were to increase from 14,500 to 20,000 over18 months, eventually stabilizing at 28,000, 370 miles of new fencing was to be built on the U.S.-Mexico border, and detention space provided for 27,500 foreigners attempting first entry or multiple felony entries. CIRA would have permanently discouraged undocumented entry by permanently barring anyone apprehended without paperwork and inspection from receiving a work or tourist visa. In order to greatly increase the effectiveness of interior enforcement, the mandatory Employment Eligibility Verification System (EEVS) would have been strengthened to verify all new hire’s legal status within 18 months of the bill’s enactment and re-verify all U.S. employees within three years. Data provided by employees for the employer would be sent over the Internet to the Department of Homeland Security (DHS) for verification of Social Security data as a legal status check. Fraud-resistant cards would be developed for the Social Security Administration. In May 2007 very few (16,727) employers were participating in EEVS but CIRA sought to increase this to seven million in 18 months. This was a trigger for the start of the legalization and guest worker programs. EEVS Basic Pilot program is touted as being able to identify a worker as employment eligible in three seconds. Employer groups have noted that Swift meatpacking participated in EEVS but 1,282 workers were apprehended in an immigration raid on December 12, 2006.

Congressional Reform Legislation

Current employer sanction penalties would have been increased to $5,000 for first offenders and $75,000 for repeat offenders. Employers who subcontract business to other forms would be required to verify that subcontractors used only documented workers. LEGALIZATION On January 1, 2007, the U.S. Census and Current Population Survey projected that there are 12 million undocumented foreign-born residents in the United States. CIRA 2007 would have allowed them to begin registering in six months, submit to a background check, and pay a $1,000 fee for a renewable visa (Z-1). CIRA 2007 contained an amendment that would make legalization more difficult for undocumented residents who were convicted felons, including those who practiced identity theft (fraudulent use of identity documents to obtain work). This amendment was defeated by a 46–51 vote. Approved, on a 57–39 vote in early June 2007, was an amendment providing law enforcement agency access to information from denied Z-1 visa legalization applications. A June 2007 amendment requiring unauthorized foreigners to return to their country of origin before applying for a Z visa was not approved on a 45–53 vote. On a 41–56 vote, an amendment that would deny converting Z-1 visas to green cards was defeated. An attempt to limit Z visa applications to those in the United States before January 1, 2007, lost with an 18–79 vote. Z-1 visas would have enabled the former undocumented foreign-born to legally live and work in the United States indefinitely. Their spouses would have been eligible for Z-2 visas and minor children could have received Z-3 visas. One restriction was that low-income Z visa holders would not be eligible for an earned income tax credit or for prior payments to Social Security while holding the status of an unauthorized worker. Z-1 visas provided a full path to citizenship for unauthorized heads of unauthorized or mixed status families through naturalization of the holder if they: (1) passed an English test; (2) submitted to a background check; (3) paid a $4,000 fine; and (4) applied at a consulate in their home country. This is an example of a touch-back rule—a requirement to return to the country of origin. There was also a trigger factor: Z-1 visa holders were not eligible to apply for regular immigrant status until the current legal immigration backlog is dealt with. DHS estimates the backlog will be cleared in eight years. This lengthens the time period before Z-1 visa holders could apply for naturalization as they must be legal residents for a minimum of five years. A Spanish-language telephone poll of 1,600 undocumented foreign born conducted in June 2007 by New American Media suggested that over 80 percent of eligible individuals would apply for Z-1 visas. Forty percent of those polled had no dependents in the United States. Nevertheless, only two-thirds indicated a willingness to return home to acquire an immigrant visa, but 80 percent were agreeable if they were afforded permission to return to the United States. Similar to the Immigration Reform and Control Act of 1986, a special legalization program was proposed for up to 1.5 million unauthorized farm workers

| 121

122

|

Congressional Reform Legislation

who could demonstrate they had at least 150 days of paid labor in the two years ending December 31, 2006. If accepted, a payment of $100 would secure a Z-A visa and an additional $400 payment would make them a documented foreign resident, potentially an immigrant. Z and Z-A visa holders would have received points in applying for visas and legal immigrant status in a revamping of the immigration preference system of the 1965 Immigration and Nationality Act. These visa holders were not required to compete with other foreign applicants as such an amendment went down to defeat by a 31–62 vote. Opponents argued that denying a path to legalization for unauthorized farm workers who were not likely to receive sufficient points for visas would destroy the legislative compromise being worked out between those who favor expanding immigration and legalization and those who would further restrict it. GUEST WORKERS Agri-business and other employers have long lobbied for a guest worker program. CIRA 2007 offered a program to admit up to 200,000 Y-1 temporary workers per year. Originally, a cap of 400,000 was proposed if employers requested all available visas early in a year. This market-adjustment mechanism was deleted from the bill. During debate on CIRA, a proposal to sunset the Y-1 guest worker program after five years was rejected 49–48 and then passed 49–48. Another amendment that would have required employers to show an effort to recruit U.S. workers before being given permission to hire Y-1 workers was passed 71–22. The United States has many low-skill, less-educated unauthorized workers present in the population. Y-1 visas would have targeted low-skilled foreignborn workers for work year-round. Three types of Y visas would have been issued: (1) Y-1 for new temporary workers, (2) Y-2A 10 month visas for an unlimited number of seasonal farm workers, and (3) a maximum of 100,000 Y-2B 10 month visas for seasonal nonfarm workers. Y-1 visas would be issued when employers request individuals by name. A request for a Y-1 worker could be made after advertising a job vacancy for 90 days or longer, certifying the position, and agreeing not to lay off U.S. workers in favor of foreign temporary workers. To receive Y-1 workers, employers would pay a processing fee and a guest-worker impact fee of from $500 to $1,200 depending on firm size. This impact fee would be waived if the employer provided health insurance. Another condition was that employers would pat the local prevailing wage and the same benefits to Y-1 workers as to U.S. workers. If an employer was located in a county with a seven percent or higher unemployment rate, they would need a Department of Labor waiver. The foreign-born Y-1 worker would pay a processing fee and a $500 impact fee. They would be required to report to their employer in seven days. Y-1 visas issued for two years could be renewed twice, enabling six years of employment. The six years could not be continuous as a one-year return to the homeland would be required at the end of each visa work period. A 41–56 vote denied an amendment

Congressional Reform Legislation

to CIRA allowing an individual to work six continuous years. Further restrictions included that Y-1 workers could not be unemployed for more than 60 continuous days or 120 days in the span of a two-year visa or return to the homeland would be mandated. Y-1 workers, however, would be allowed to transfer from one employer to another U.S. employer certified to hire Y-1 workers. Family members of Y-1 workers could come to the United States if they earned at least 150 percent of a poverty line income (approximately $30,000 for a family of five in 2007) and had health insurance for dependents. To discourage Y-1 guest workers from bringing their families, those who brought family members with them to the United States would be allowed two rather than three U.S. work stints, and family members would be allowed to accompany them for only one of these two stints. On the other hand, Y-1 guest workers who worked in the United States without their families would have been entitled to three two-year work stints. The Y-2A program would change the H-2A program in three important ways: (1) attestation (vouching for a situation, such as by an employer) would replace certification (determination by the Department of Labor that workers were needed) to determine if foreign farm workers should be allowed in; (2) housing allowances could be provided to guest workers instead of free housing, as is currently required; and (3) the special minimum wage called the Adverse Effect Wage Rate (AEWR) would be frozen at 2002 levels and studied. The Y-2B program would operate like the current H-2B program, which admits landscaping, gardening, reforestry, and similar workers to fill seasonal farm jobs, but with a ceiling of 100,000 visas, up from the current 66,000. The current H-IB program for skilled foreign-born professionals to be admitted as temporary workers would have been doubled in size under CIRA 2007. The H-1B program, which admits 65,000 foreigners a year with at least a bachelor’s degree (BA) who are coming to the United States to fill a job requiring a BA, would have an increased yearly cap of 115,000 in FY08 and eventually a yearly cap of 180,000. All employers, rather than just H-1B-dependent employers (those with at least 15 percent H-1B workers), would have to certify that they did not lay off U.S. workers 180 days before and after hiring H-1Bs. Employers would not be allowed to advertise for H-1Bs only, and employers with 50 or more workers would have been allowed a maximum of 50 percent H-1B employees. LEGAL IMMIGRATION If CIRA had passed, it would have changed legal immigration for an estimated period of 14 years. In May 2005, four million foreign born awaited immigrant visas, including 1.5 million spouses and minor children of legal noncitizen residents. CIRA would have dealt with this backlog by adding 440,000 visas each year for family reunification. The legal immigration system’s emphasis on family reunification has been criticized for encouraging chain migration (migration of ever more extended family members). CIRA would have capped immigrant visas for parents at

| 123

124

|

Congressional Reform Legislation

40,000 a year and limited visas for spouses and children to 87,000 a year. Immigrant visas for married sons and daughters and brothers and sisters of U.S. citizens would have been eliminated. U.S. citizens would be able to receive an unlimited number of visas for immediate family members. The current preference system based on categories for family reunification and employment preferences would have been replaced by a point system. A potential entrant would need at least 55 of 100 maximum points to qualify for an immigrant visa. Employment could generate up to 47 points (criteria include type of work, worker’s age and experience and employer recommendation). Education could earn up to 28 points and English-speaking ability and knowledge of civics could add up to 15 points. If an applicant attained 55 points, 10 points are added for an affiliation with U.S. relatives. Regardless of skill, engineers or cleaning ladies, being willing and able to work in a high-demand job adds 16 to the 47 employment points. The way that the proposed point system would work in the abstract changes the emphasis from family reunification to skills but it has some unforeseen consequences. A 29-year-old Mexican guest worker who spoke English entered a high-demand occupation such as health care aid and had worked at it five years, with a U.S. relative, could receive 61 points. An English-speaking Italian IT worker with a PhD and a job offer but no U.S. work experience would receive only 49 points and fail to qualify. The point system, however it appears on the surface, would have some unintended consequences although it would not penalize unskilled workers in high demand occupations. CIRA 2007 would have increased legal entrance to 1.4 million a year, including 1.1 million family reunification and 247,000 employment-based immigrants. If it is estimated that after eight years, 627,000 family reunification and 380,000 employment-based immigrants would enter each year, a total of one million, CIRA 2007 would have increased legal immigration to levels not seen since the early 1900s. REACTIONS Although President Bush tried to rally the Republican Senators, they were split by CIRA 2007. Legalization’s opponents turned the word amnesty into a negative term, joined by radio talk show hosts and many House Republicans. June 26, 2007, The House Republican Conference voted 114–23 to voice disapproval of the Senate bill. According to Democrats in Congress, since CIRA needed 70 Republican congressmen’s votes to pass in the House, this was a sign that it would die. Congress is unlikely to take up the matter again until 2009. Despite President Bush’s efforts to pass CIRA 2007, one of immigration reforms key constituencies became progressively disillusioned with the bill. The Essential Worker Immigration Coalition, comprised of employers who wanted guest workers were disappointed at the limitations placed on the Y-1 visas and the short proposed life for the program: five years. They had hoped for 600,000 guest workers a year, not 200,000. H1-B employers were also unhappy that they could no longer sponsor foreign professionals for immigrant visas.

Congressional Reform Legislation

Many Democrats and unions were against the guest worker proposal. Most unions fear guest workers, believing that being beholden to a U.S. employer will make them docile in reaction to low wages or poor working conditions. The American Federation of Labor-Congress of Industrial Unions (AFL-CIO) officially announced its opposition to CIRA 2007 in mid-June, citing the likely depressant effect of Y-1 guest workers on U.S. wages. However, the Service Employees International Union and Unite Here continued to support CIRA 2007 because of legalization, despite its guest-worker provisions. They promised to seek amendments to give guest workers a path to permanent residence, such as the STRIVE Act pending in the House. They believe programs such as these will reduce wage-depressing effects. Many immigrant advocates are dubious of the revised point system emphasis on skills and education, preferring to keep the current family unification-based system. Several senators who oppose the point system recounted how their parents or grandparents would not have achieved the necessary 55 points. CONCLUSION The 2008 presidential campaign mostly avoided immigration issues after congressman Tom Tancredo (R-CO), who championed immigration enforcement, dropped out of the race. Senators John McCain (R-AZ) and Barack Obama (D-IL) support comprehensive immigration reform, which involves more enforcement and a path to legalization for unauthorized foreigners in the United States, but McCain changed his tone during the Republican primary debates. McCain thinks that after border enforcement has been heightened that temporary worker programs and legalization are important strategies. Obama pledged to bring unauthorized foreign workers out of the shadows and to put them on a path toward legalization while he opposes large-scale guest worker programs. Immigration will continue as an accompaniment to the debate about the arrival and integration of newcomers. The United States is a nation of immigrants, but remains unsure about how many more foreigners References: Feller, Ben. “Bush Attacks Immigration Deal Opponents.” Associated Press. May 29, 2007. www.breitbart.com/article.php?id=D8PE5LPO0&show_article=1; Gaouette, Nicole. “Senate Buries Immigration Bill.” Los Angeles Times, June 29, 2007, A1; GovTrack.US. S. 1348-110th Congress. “Comprehensive Immigration Reform Act of 2007,” GovTrack.us (database of federal legislation). http://www.govtrack.us/congress/ bill.xpd?bill=s110–1348&tab=summary (accessed June 30, 2008); “The Grand Collapse: Editorial.” New York Times, June 30, 2007:A16; Pear, Robert. “Employers Cite Problems With Immigration Bill After Crafting It.” May 20, 2007. nytimes.com/2007/05/20/ washington/21immigcnd.html?ex=1337313600&; Pear, Robert, and Carl Hulse. “Immigration Bill Dies in Senate: Defeat for Bush.” New York Times, June 29, 2007:A1. nytimes. com/2007/06/29/washington/29immig.html?ei=5089&; Weisman, Jonathan. “Immigration Bill Dies in Senate: Bipartisan Compromise Fails to Satisfy the Right or the Left.” Washington Post, June 29, 2007: A1.

Philip Martin

| 125

126

|

Contact and Immigrant Attitude Formation

CONTACT AND IMMIGRANT ATTITUDE FORMATION As early as the 1800s, Americans have publicly voiced their opinions on immigration. This phenomenon can be seen through numerous magazine and newspaper articles as well as more recent television and cinematic programs. Immigration is currently considered a hot topic, especially when the discussion concerns undocumented immigration. While the majority of Americans tend to favor less immigration, a portion believes that immigration has positive effects on the nation. The opinions vary from the belief that immigrants take jobs away from U.S. citizens to the viewpoint that immigrants bring new ideas and culture to America, which helps the United States to compete in a global economy. Certain individuals and groups are very supportive of new immigrants, helping them find employment and housing, while other individuals and groups express anti-immigrant sentiments by actively contesting legal immigration, immigrant rights, and public benefits for immigrants. Some feel so strongly about stopping immigration, and illegal immigration in particular, that they not only vote against proimmigrant politicians and public policies but also join citizen militias and patrol the borders with automatic weaponry. This variation in public opinion on immigration intrigues social scientists. They desire to understand the reason why some Americans believe immigrants are intelligent, hard-working people and a benefit to the United States while other Americans believe immigrants are poor, lazy individuals and a drain on society. Why do people hold such different opinions on immigration? How do they develop their attitudes toward immigrants and immigration policy? What causes them to believe one thing about immigrants and not something else? Discovering answers to these questions offers knowledge about human perception and gives insight into immigration policies that Americans will support. The implication is that, with public backing of certain policies on immigration, the United States may increase its homeland security, improve its economy, attempt to be civically and morally conscious of the needs of legal and undocumented immigrants, and potentially control or abate any social conflict between groups. BACKGROUND Americans gravitate to media coverage and, since the 1970s, there has been an on-going debate about whether the so-called new immigration, which primarily consists of both professional and unskilled people from the developing world, helps or harms U.S. society. Rita Simon and Susan Alexander point out that negative coverage is more common than a positive view point. This is amply illustrated by watching Lou Dobbs, Glenn Beck, and many television journalists who favor immigration restriction. In this media context, it is important to ask how people form attitudes towards the new immigrants and immigration reform. Are attitudes based on actual contact or formed within a preexisting, but changing, tradition of racial and ethnic prejudice that is impacted by group fear that the economic and political power of the native-born may be reduced?

Contact and Immigrant Attitude Formation

Theories about Formation of Attitudes toward Immigration Scholars strive to understand Americans’ various attitudes toward immigrants and immigration policy with scientific theories. In general, they consider theories to be sets of logical and interconnecting statements that explain social phenomena. In other words, theories clarify why humans behave a certain way and see a social situation from a certain point of view by identifying the relationships between important factors. One event may cause another event to occur. Interacting with immigrants may make native-born Americans friendly toward other immigrants and open to proimmigrant public policies. Being raised in a community that disfavors immigration may make a person prejudiced against immigrants and predispose them to hold anti-immigrant opinions on immigration policy as an adult. Interaction and socialization are important factors that affect a person’s attitudes. Theories outline the relationship between these factors and describe the social processes that lead from cause to effect. For example, when native-born citizens interact with immigrants, they communicate verbally and nonverbally. This social process of communication allows each person to learn the positive qualities about the other, leading to mutual respect and possibly friendship. Because some theories focus on certain relationships more than other relationships, not all theories are believed to explain a social situation equally well. One theory may explain part of the reason Americans favor or disfavor immigration while another theory may explain a different part. For instance, one theory may focus on interpersonal interaction, and another theory may focus on childhood socialization. It is debatable which has a greater effect on people’s immigration attitudes. Social scientists consequently argue about the theories they think are most explanatory. Some of the arguments revolve around the question of whether psychological or social factors are more important while others revolve around the question of whether racial and ethnic prejudice or nonprejudicial group interest is more significant in determining a person’s opinion of immigrants and immigration policy. Scholars gain an idea of which theory is most powerful or explanatory when they gather empirical evidence and test the propositions of the theories. One proposition, for example, may be that interaction leads to positive feelings between groups. Researchers then ask people how often they interact with foreign-born individuals and if they hold favorable opinions toward immigrants. If the results show that the people who interact more frequently with immigrants express a friendly attitude toward immigrants, there is some empirical support for that theory. Social scientists are currently testing the explanatory power of three main theories: intergroup contact, the new racism, and group threat. Each of these broad theories attempts to explain why some people are open to immigration and other people are not. Each also focuses on different aspects of a person’s attitude toward immigrants and immigration policy. Even though all three may contain some empirical truth, researchers dispute which theory will be most fruitful for understanding immigration attitudes.

| 127

128

|

Contact and Immigrant Attitude Formation

Intergroup Contact Theory Thomas F. Pettigrew, a social psychologist, wanted to learn if intergroup contact could lead to the formation of positive attitudes toward immigrants. The theory of intergroup contact argues that interaction or contact between members of different groups leads to shared feelings of acceptance and respect. This goodwill is especially likely when four conditions are met. First, the members of the different groups have equal status, such as all being of the upper-class or middle-class. Second, they have common goals, such as protecting the community from criminal activity. Third, they are willing to cooperate with each other, such as behavior often found in a business organization or military unit. Fourth, societal authorities support the interaction between the members of the different groups, such as laws enforcing the desegregation of schools. Even though these four conditions make contact between different groups likely to have a positive outcome, evidence indicates that various groups take on a friendly attitude toward each other when they interact, even in less than ideal situations, such as when one group has a lower status than another group. In the case of attitudes toward immigrants, political scientists M. V. Hood and Irwin Morris found that native-born Americans who live near and have contact with Latinos and Asians express fewer stereotypes of those groups and are more open to immigrant-friendly public policies, compared to native-born Americans who do not live near enough to the two groups to have any significant opportunity for intergroup contact. There are, however, limits to this positive impact, as Californians were more negative in their attitudes towards immigrants despite exposure to them. Hood and Morris speculate that negative media stories, elite politicians running on an anti-immigration platform, the relative size of the legal and undocumented immigrant population, the way that public social services are funded, and unknown factors make California different. In most states, the assumption would be that after native-born Americans meet immigrants, they discover that foreign-born individuals share many of the same values as they do, such as hard-work and independence. This discovery shapes development of a positive attitude toward immigrants and proimmigrant public policy.

The New Racism Theory Given that the theory of intergroup contact necessitates actual interaction between immigrants and native-born Americans, some scholars argue that there is a better explanation of immigration attitudes. Their reasoning is that many U.S. citizens do not experience much noteworthy contact with foreigners, yet they still develop either positive or negative attitudes toward immigrants. Further, the intergroup contact theory does not explain how native-born Americans may arrive at the setting of interaction with well-developed feelings of prejudice toward immigrants, especially if the immigrants are considered nonwhite. New racism theory accounts for these possibilities by focusing on certain psychological aspects of a person’s attitude, namely the presence of racial and ethnic prejudice.

Contact and Immigrant Attitude Formation

Scholars who use the theory of new racism argue that racial and ethnic prejudice still exists in the current period, but it has changed its form from previous decades. Traditional prejudice is founded on the notion that racial and ethnic minorities are biologically inferior to the white majority in a number of important characteristics, such as intelligence and longevity. This type of prejudice is not as wide-spread as in prior decades. Rather, most whites value the principle of racial and ethnic equality. Leonie Huddy and David Sears, are social psychologists who found that many whites currently believe that ethno-racial discrimination does not occur anymore, or at the very least, ethno-racial discrimination has much less of an effect on a person’s life chances than a person’s own willingness to work hard to achieve her or his goals. This attitude appears to be based on the idea of the so-called American work ethic. At the same time, many whites believe that racial and ethnic minorities, including many nonwhite immigrants, do not value the American work ethic. Consequently, they believe that racial and ethnic minorities do not deserve any special public assistance. New racism therefore entails a normative belief about the American work ethic and negative feelings often specifically directed toward nonwhite individuals who are seen as only desiring special treatment from the government without being willing to work hard enough to be self-reliant. This is a new type of racial and ethnic prejudice that is more subtle than the traditional one. The assumption is that Americans have been socialized from their childhood by their families, the education system, the media, and other important social institutions to view racial and ethnic minorities, including immigrants of color, in this way. Public opinion surveys are able to identify the extent to which whites convey this new racism by asking specific questions regarding their viewpoints on the American work ethic, individualism, the work ethic of racial and ethnic minorities, how close they feel to these other ethno-racial groups, and their degree of support for racially-targeted public policies. Research finds that as native-born citizens score higher on new racism survey scales, they are more likely to disfavor immigrants and immigrant-friendly public policy. These individuals support racial and ethnic equality, yet they are somewhat unsupportive of measures that would ameliorate the poor life circumstances of immigrants, especially if the measures require the re-allocation of funds away from native-born citizens. They do not desire more or less immigration, and they would send only certain immigrants home. They are, however, somewhat against measures that would improve native-immigrant relations. Consequently, they reject immigrants in a way that is subtle and effective. Group Threat Theory Herbert Blumer, a sociologist, first developed the idea that a perceived challenge to a group’s social standing would shape their attitudes towards other groups. Social scientists who favor group threat theories typically acknowledge the likelihood that many Americans may be prejudiced against immigrants in general and certain nonwhite immigrants in particular. However, they argue that the primary cause of Americans’ immigration attitudes is not due to racial

| 129

130

|

Contact and Immigrant Attitude Formation

or ethnic prejudice but rather to perceptions of group identity, group interests, and group fear. These perceptions are likely to lead to both prejudice against certain immigrant groups and specific anti-immigration attitudes. First, Americans perceive themselves as belonging to an in-group—native-born citizens—with certain others making up an out-group—foreign-born individuals. Next, they come to believe that the privileges that they enjoy rightfully belong to their own group. Lastly, when various out-groups increase in power and desire a share of those privileges, Americans feel threatened. They consequently create prejudicial stereotypes of immigrants and promote anti-immigrant policies to block access by immigrant groups to the limited resources. Thus, the development of their attitudes is ultimately due to group competition and fear of losing power. Numerous research studies find that Americans express an attitude of group threat when more immigrants enter their geographical area. They also develop a negative attitude toward immigrants and liberal immigration policy when they perceive, correctly or incorrectly, an increase in the actual levels of immigration. Richard Alba, Ruben G. Rumbaut, and Karen Marotz, all sociologists, studied how the demographic growth of new immigrant groups impacted the nativeborn. There has been much publicity given to the population projection that non-Hispanic whites will be a minority of the U.S. population by 2050. These sociologists found that although whites are still the largest composite ethnic group, as of 2000, many believed that whites have become a numerical minority relative to the new immigrants. Unfortunately, many Americans have lost skills in numeracy, and their perception of the size of the new immigrant population is distorted. The larger the new immigrant population was believed to be, the more negative a person’s attitude was toward immigration. This indicates an unjustified perception of group threat, which could be corrected. Allport, a race scholar active in the 1950s, advocated education as a corrective measure for prejudicial beliefs. In the twenty-first century, it would appear that positioning of the population as members of pan-ethnic groups, such as non-Hispanic white, and demographic projections have led to a sense of group threat and misconceptions about relative ethno-racial group size. Many scholars suggest that teaching people about the complexity of the ethnic and racial heritage of the American population is better than ethnically lumping people into large groups and misleading the public about the social change brought by the new immigration. CONCLUSION The opinions that Americans hold about immigrants and immigration policy vary greatly. Some people express proimmigration attitudes while other people are anti-immigration advocates. By testing particular theories, social scientists strive to understand why people have these various immigration attitudes. Yet, they debate which theory offers the best explanation. Group threat theorists argue that Americans’ attitudes toward immigrants are not a result of prior socialization and prejudice because Americans’ attitudes change when immigrant groups gain power. They argue that immigration attitudes are also not a result of contact with immigrants because people are affected by what they believe is

Counterterrorism and Immigrant Profiling | 131

happening to their groups more than what they feel toward individuals that they meet in their daily lives. In response to these claims, theorists of new racism argue that it is folly to believe that racism does not independently affect people’s immigration attitudes because racial and ethnic prejudice has been embedded in society’s social institutions for hundreds of years. Moreover, since the majority of immigrants currently originate from non-European countries, where skin tones are darker, it may be even more important now to consider the effect of racial and ethnic prejudice than in the early part of the twentieth century when the majority of immigrants came from southeastern European countries, such as Italy. Intergroup contact theorists argue that while Americans may feel a certain degree of group threat, they change their attitudes once they interact with immigrants, and it is the lack of contact that results in the fear of immigrants. In the end, it is a knowledge of the factors that lead Americans to develop certain immigration attitudes that sets an important foundation for discussions on the benefits and costs of further immigration. See also Attitudes Toward Undocumented Immigrants. References: Alba, Richard, Ruben G. Rumbaut, and Karen Marotz. “A Distorted Nation: Perceptions of Racial/Ethnic Group Sizes and Attitudes Toward Immigrants and Other Minorities.” Social Forces 84(2005):901–919; Allport, Gordon. The Nature of Prejudice. New York: Addison-Wesley, 1954; Blumer, Herbert. “Race Prejudice as a Sense of Group Position.” Pacific Sociological Review 1(1958):3–7; Hood III, M. V., and Irwin L. Morris. “Amigo o Enemigo?: Context, Attitudes, and Anglo Public Opinion toward Immigration.” Social Science Quarterly 78(1997):309–323; Huddy, Leonie, and David O. Sears. “Opposition to Blingual Education: Prejudice or Defense of Realistic Interests?” Social Psychology Quarterly 58(1995):133–143; Pettigrew, Thomas F. “Intergroup Contact Theory.” Annual Review of Psychology 49(1998):65-85; Pettigrew, Thomas F., and R. W. Meertens. “Subtle and Blatant Prejudice in Western Europe.” European Journal of Social Psychology 25(1995):57–75; Simon, Rita J., and Susan H. Alexander. The Ambivalent Welcome: Print Media, Public Opinion, and Immigration. London: Praeger, 1993.

Justin Allen Berg

COUNTERTERRORISM AND IMMIGRANT PROFILING Over the past two decades, counterterrorism has become one of the main domestic and international security priorities for the United States and many other industrialized nations. Although these concerns were reinforced by the terrorist attacks of 9/11, they can be traced to the early, post–Cold War era when the threat of a nuclear standoff between the United States and the former USSR was displaced by a new focus on terrorist networks and so-called rogue states. Since that time, counterterrorism has become virtually synonymous with the idea of homeland security. Furthermore, counterterrorist operations have increasingly targeted immigrant populations. According to some pundits and policy analysts, this wide-net approach is necessitated by the fluid nature of terrorist networks. However, questions have been raised about the effectiveness of this approach, and in particular, of the forms of immigrant profiling that these policies have

132

|

Counterterrorism and Immigrant Profiling

encouraged. As some critics have argued, counterterrorism operations that target immigrant communities run the risk of creating obstacles to effective information gathering as well causing undue stress and violating the civil liberties of immigrants. BACKGROUND As some scholars have noted, the framework for counterterrorism operations has widened considerably over the past decade. In the late 1980s and early 1990s, counterterrorism operations were focused on tracking the activities of specific domestic and international organizations. However, the 1996 bombing of the Oklahoma City federal building by Timothy McVeigh drew the FBI’s attention to the danger of lone-wolf operatives. The 2002 Baltimore-Washington Beltway sniper attacks provided another example of the danger of lone attackers. It is also significant that one of the Beltway snipers was a native born U.S. citizen who allegedly approved of the 9/11 terrorist attacks but had never belonged to a terrorist organization. These sorts of incidents led enforcement agencies to broaden the scope of their counterterrorism operations to include the surveillance of individuals and populations that may not have any prior connection with formally designated terrorist organizations. These developments, however, only reinforced trends that were already underway. The 2001 USA PATRIOT Act, for example, expanded the ability of government agencies to conduct warrant-less searches of private residences of citizens and to secretly keep track of electronic communication, consumer purchases, and library usage (among other things). The 1996 Immigration Reform and Antiterrorism Acts also established a closer link between immigration enforcement and counterterrorism. This connection was further entrenched by the 2001 Enhanced Border Security and Visa Entry Reform Act, the creation of the Department of Homeland Security in 2002, and subsequent legislation like the 2005 REAL ID Act. As a result, counterterrorism has begun to be used as a rationale for border-control activities, sting operations targeting unauthorized migrants, efforts at reducing the flow of asylum seekers into the United States, and efforts at increasing (and speeding up) the deportation of noncitizens with criminal convictions. It bears noting that only a small fraction of 1 percent of noncitizens who are removed from the United States each year are removed for reasons relating to terrorism or national security. In 2005, for example, this group accounted for less than 150 persons out of the over 800,000 individuals who were removed from the United States for immigration violations (Department of Homeland Security 2006). At the same time, the goal of improving homeland security has become more focused on improving the government’s ability to monitor all people who exit and leave the nations. These monitoring practices tend to place more emphasis on monitoring noncitizens than citizens. They also tend to use migrant legal status (or lack thereof ) and even physical appearance as the basis for initiating a search or interrogation. The following sections provide several examples of these practices from 2001 onwards.

Counterterrorism and Immigrant Profiling | 133

Arab-Muslim Profiling after 9/11 The counterterrorism operations that have received the most exposure in recent years are ones that have targeted Arab-Muslim populations. These have also been among the most controversial because they target individuals on the basis of their religion or national origin. This is best described as a form of ethno-religious profiling, but it also contains racial undertones—insofar as these profiles are guided by assumptions about what an Arab-Muslim looks like. Federal counterterrorism operations have not officially authorized the use of racial profiles ( based solely on appearance) but these profiles have definitely been a factor in the grassroots response to 9/11. Some of the most tragic examples are the hate crimes (including murder) committed against Sikhs in the aftermath of 9/11 because their appearance matched peoples’ stereotypical image of Muslims. These sorts of profiles have also been a factor in counterterrorism operations, like Operation TIPS, that rely on anonymous reports from private citizens about Muslim-looking people who they think are acting suspicious. Shortly after 9/11, the federal government initiated several counterterrorism initiatives that targeted Arab-Muslims. The Absconder Initiative focused exclusively on Arab-Muslim noncitizens who had not complied with prior orders of deportation. The Voluntary Interview Program identified thousands of ArabMuslim individuals who were asked to provide information about Arab-Muslim terrorist networks. However, the program that affected the largest number of Arab-Muslims in the United States was the National Security Entry Exit Registration System (NSEERS, also known as Special Registration) that required male nationals over the age of 14 from twenty-four predominantly Arab-Muslim nations to be registered with the federal government and finger printed. Although some of the more stringent measures (such as regular reports to local immigration offices), including NSEERS, were terminated in 2003, many of them still remain and have been incorporated under the umbrella of the 2004 US VISIT program. The information gathered by these programs provided the U.S. government with grounds for detaining and deporting hundreds of Arab-Muslim persons. But ironically, none of these deportees were charged with involvement in a terrorist conspiracy. It also bears noting that thousands of Arab-Muslims have been targeted by counterterrorist sweeps that operated independently of the aforementioned programs.

Counterterrorism and the Electronic Border As the goals of counterterrorism have merged with those of border control, they have also expanded the very idea of border control. Conventionally defined, border control (including maritime security) involves the policing of the U.S.-Canada and U.S.-Mexico border and all naval ports. The attacks of 9/11, however, directed attention to airport security—resulting in the formation of a new federal department, the Transportation Security Administration which was incorporated within the Department of Homeland Security. In addition to

134

|

Counterterrorism and Immigrant Profiling

this, the US VISIT program has promoted the idea of creating a so-called electronic border that would allow the government to track noncitizens at all stages of their stay in the United States. The electronic border is a database that would store biometric data (photographic images, finger prints, biographical information, legal status, and expected terms and length of stay). All border-entry workers would be able to enter data (collected from new entrants) into the system and cross-check this data against other databases (notably, the National Crime Information Center database) that contain information on known terrorist suspects, noncitizens with outstanding orders of deportation, and so forth. At present, this national database and tracking system is not as comprehensive as originally envisioned. Even so, the 2004 US VISIT program did push the federal government several steps in this direction, and subsequent legislation (including the 2006 Secure Fence Act and the 2007 Homeland Security Act) has increased funding for the development of border-control technologies that would make this system possible. According to many of its proponents, this system would allow the government to be more selective in targeting terrorist suspects—despite the fact that it would also require more invasive forms of surveillance. As a result, the crude national origin profiles that were used to identify terror suspects immediately after 9/11 could be replaced by more refined indicators of likely terrorist activity (i.e. purchases of explosives, unauthorized visits to high security areas, suspicious deviations from travel plans and destination points, etc). It is important, however, that this system—as envisaged under US VISIT—would primarily target noncitizens. Furthermore, it could still be used to track individuals by national-origin, even if this is not its primary focus. Unauthorized Migrants as Security Threats Since 9/11 new concerns have been raised about the possibility of terrorists entering the United States through the U.S.-Mexico border. The mere fact that a person is an unauthorized migrant does not render them a terrorist suspect, but the existence of unauthorized migration poses a problem for the seamless web of interior/exterior enforcement that has been proposed by some counterterrorism experts. Unauthorized migration is a gaping hole in the new U.S. electronic border, since it creates social spaces and networks that are difficult to monitor with existing border-control technology. Simply put, an individual has to already be recorded by the system in order to be tracked by the system. The unauthorized migrant population has doubled in size between the early 1990s and the present. Furthermore, anywhere between 25 and 40 percent of these persons entered the United States with some form of legal status (as a temporary worker, under a student visa, etc.) (Passel 2006). This latter category of people with expired or revoked legal status could possibly be identified by the electronic border system described in the prior section, but persons who enter the United States without authorization and with no documentation are almost impossible to identify without resorting to invasive screening and enforcement practices. These practices are controversial because

Counterterrorism and Immigrant Profiling | 135

they require enforcement agents to use immigrant profiles to determine who they should check for legal status. This could entail targeting individuals who are suspected of being undocumented immigrants because of where they work, where they are living, their appearance, or their accent. These aggressive strategies are a typical component of immigration raids that are carried out by federal agencies—most often by Immigration and Customs Enforcement (ICE). Many of these raids target organizations that are believed to employ unauthorized migrants, and some of them have been explicitly defined as counter-terrorism operations. One example is Operation Tarmac, which was carried out shortly after the 9/11 attacks. Under the auspices of Operation Tarmac, federal agents conducted a national sweep of airport workers with immigration violations on the grounds that such individuals were security risks. The vast majority of the individuals apprehended were unauthorized migrants, but none of the immigrants apprehended under Operation Tarmac were found to have any connection to terrorism. Immigrant-rights advocates have cited Operation Tarmac as an example of the inaccurate and unnecessarily punitive nature of the government’s counterterrorism sting operations. It is telling, however, that ICE still treats Operation Tarmac as a best-practices model for the integration of counterterrorism and immigration enforcement. State and local law enforcement has also become more involved in this nexus of immigration enforcement and counterterrorism. Many police departments are using routine traffic stops as an opportunity to screen individuals for legal status. Much like incidents involving black racial profiling, these encounters are initiated by a violation (or by an officer’s right to stop an individual for questioning), but they are also guided by racial-ethnic profiles that lead law enforcement officers to screen some individuals more closely than others. Some of these practices have been challenged by immigrant-rights and civil-liberties advocates, but court decisions have legitimized the practice of immigrant profiling. Most notably, the 2004 Supreme Court decision on Muehler et al. v. Mena affirmed the right of state and local police to use ethnic appearance as the basis for detaining and screening individuals for legal status if it occurs in the context of an ongoing investigation. Asylum Seekers as Security Threats The federal government has begun to take a similar approach toward asylum seekers as it has taken toward unauthorized immigrants. In 2002 for example, the Bush administration adopted a new policy developed specifically for interdicting Haitian asylum seekers. Under this policy all Haitian asylum seekers— including individuals who managed to touch ground on U.S. soil—were to be summarily returned to Haiti. This policy was even more prohibitive than the wet-foot-dry-foot policy adopted by the Clinton Administration, which was criticized for using a more lenient standard for Cuban asylum seekers than Haitian asylum seekers. The Bush administration justified their unprecedented move on the basis of national security concerns. Administration officials argued that by accepting

136

|

Counterterrorism and Immigrant Profiling

any Haitian asylum seekers, the United States might inadvertently trigger a new mass exodus from Haiti similar to the Haitian boatlift of the early 1980s. Since White House officials considered Haiti a haven for international terrorist networks, they also noted that a Haitian mass exodus could provide an entry point for terrorist operatives. Similar arguments have been used to justify the U.S. reluctance to admit Iraqi asylum seekers. The U.S. response to Iraqi asylum seekers is similar to the practices that the European Union (EU) is currently using to limit flows of African asylum seekers. This includes diverting asylum seekers to nations that are more proximate (geographically and culturally) to the asylum-seekers’ nation of origin, adopting more stringent criteria for deliberating on asylum claims, lowering annual quotas for persons who will be granted refugee status, and processing asylum seekers alongside regular immigration violators. This last measure is especially significant because it means that asylum seekers are increasingly being treated like unauthorized migrants and placed alongside them in detention. In addition to this, many of the arguments that have recast unauthorized migration as a security-matter have also been applied to asylum seekers. Like the unauthorized migrant, the asylum seeker represents a dangerous unknown. As a result, the imperative of minimizing risk ( by refusing admittance to someone without a well-documented past who could be a terrorist) takes precedence over the obligation to provide humanitarian assistance. These imperatives cast a shadow of suspicion over all asylum-seekers because of the unexpected, irregular conditions through which they attempt to enter the nation. As the Haitian example demonstrates, it is also possible for this general suspicion of asylum seekers to be reinforced by profiles based on national origin ( hence, U.S. policy on Haitian asylum seekers is more restrictive than for many other nations, including other African and Caribbean nations). What Is Domestic Terrorism? The threat of domestic terrorism provides an important counterpoint to the issues described above. As noted earlier, profiles based on national origin or legal status have been used, almost exclusively, to target noncitizens. But it is also important to consider how these profiles and counterterrorism practices impact native-born populations and intersect with domestic counterterrorism operations. As some scholars have noted, the government’s definition of domestic terrorism has always been controversial. Similar to the government’s immigrantfocused counterterrorism operations, critics have argued that the government’s list of domestic terrorist groups is overly-broad. It includes far-right groups that have either used violence or formally advocated the use of violence to achieve their goals (including approval for the killing of government workers). On the other hand, federal law enforcement has also targeted dissidents with no history of using or advocating violence. Civil-liberties advocates have noted that this practice continues today under the rationale of the war on terror (in this case, targeting environmentalist, antiglobalization, and present-day anti-war activists). There are also recent incidents

Counterterrorism and Immigrant Profiling | 137

where counterterrorism has been invoked by the government in its response to union strikes and organizing efforts. In 2002 for example, President Bush invoked the Taft-Hartley Act to force members of the International Longshore and Warehouse Union back to work on the grounds that their strike was compromising national security. In these cases, it has been argued that individuals have been targeted because of their political ideology rather than their propensity for engaging in terrorist violence. These examples also demonstrate how the expansion of counterterrorism operations, which have largely focused on noncitizen populations, also tend to bleed over into practices used to monitor native or foreign-born citizens. This is further complicated by the fact that some terrorist networks that appear to fit the immigrant profile may actually be composed of native-born persons. For example, the planners of the 2005 London subway bombings and Richard Reid, the infamous British shoe bomber, were all native born, English persons of Arab (or partial Arab) heritage. There is no compelling evidence that these sorts of homegrown terrorist networks have taken root among the children of first generation immigrants in the United States. However, the possibility that these networks could develop (or that international terrorist groups could work in tandem with known domestic terrorist organizations) raises questions about the effectiveness of counterterrorism strategies that are oriented toward monitoring vast cross-sections of the noncitizen population. USING IMMIGRANT PROFILING IN COUNTERTERRORISM OPERATIONS The prior discussion has introduced the general terms of the debate over counterterrorism and immigrant profiling as they has been applied to different kinds of noncitizens. The following sections provide a more focused summary of arguments that have been used on both sides of this debate. Using Religion and National-Origin as Terrorist Profiles Proponents of profiling based on religion and national origin have argued that this is a pragmatic response to the nature of international terrorism. It is generally acknowledged that radical Islamic fundamentalist groups are involved in a great many of the international terrorist networks that are active today. Since terrorist organizations have begun to adopt a more fluid, network form, that is hidden within regular immigrant communities, it is advisable to use ethnoreligious profiling as a means of targeting people from these communities for information gathering. National-origin profiles may also be valuable as temporary measures developed in response to specific threats. For example, if it is learned that there is a heightened risk of terrorist attacks by radical Islamic sects that are based in Sri Lanka, it would be advisable to screen Sri Lankan visitors to the United States more closely for a period of time. Critics of religious and national-origin profiling agree with the general assessment that terrorist organizations have adopted a more fluid, network form, requiring new kinds of counterterrorism practices. However, they also argue

138

|

Counterterrorism and Immigrant Profiling

that there is nothing especially new or innovative about national-origin profiling. National-origin profiles encourage federal agents to target individuals based on their appearance, manner of dress, surname or accent—all qualities that may only be superficially related to a person’s actual nation of origin and certainly have nothing to do with her or his proclivity toward terrorism. Since terrorist organizations tend to thrive on the fears of immigrant communities, it is important not to add to these fears by launching overly-broad counterterrorism operations that give these communities the impression that they are being held under suspicion simply because of their religion or ethnicity. Federal law enforcement is more likely to get tips about terrorist threats by developing trusting, working partnerships with these communities instead of, for example, demanding compulsory finger printing. Using Noncitizen Legal Status to Screen for Terrorist Suspects Proponents of immigration-focused counterterrorism operations see border control and national security as two sides of the same coin. By increasing the capacity to monitor who is entering and leaving the nation, the government is also restricting the mobility of terrorist operatives. Screening noncitizens (which may include the use of racial-ethnic profiles) is justifiable because these populations (especially student visitors, tourists, and temporary workers) enter and exit the United States more frequently than most U.S. citizens. Hence, it makes sense to track noncitizens according to their legal status and travel patterns. It also makes sense to focus surveillance on noncitizens because international, not domestic, terrorism is currently the most pressing security threat for the United States. Although critics charge that the goal of screening all noncitizens is excessive, those in favor of screening say it is a necessary step if the government is interested in becoming more proactive in improving national security. The goal of creating such a wide-ranging system is not simply to identify possible terrorist suspects at points of entry (although this is one goal) but to introduce a paradigm-shift in the way that United States regulates its borders and migration flows. This means that every facet of the border and transit system should become security oriented and more tightly integrated. It follows that immigration enforcement, border control, airport security, and maritime and port security should be seen as facets of an effective, proactive counterterrorism system. These objectives are consistent with recommendations of many counterterrorism experts to expand and integrate information gathering strategies across a wide range of government and nongovernment institutions. They also require more cooperation between the civilian population and the government. Hence, all of the preceding strategies can be combined to create a surveillance network with maximum possible reach. By involving U.S. residents in information gathering, the government is creating a climate of watchfulness that should permeate all facets of public life and keep people more aware of strange behavior on the subway, in airports, and even in public parks and local neighborhoods. Although

Counterterrorism and Immigrant Profiling | 139

this climate of watchfulness may generate a number of false leads, these costs also have an important deterrence benefit. They send signals to terrorist organizations that their operatives will be closely scrutinized if they are sent to live on U.S. soil, and this might prevent these organizations from developing strategies that require the formation of sleeper cells. This climate of watchfulness is also an effective way of discouraging lone-wolf operatives who may emerge from alienated segments of the native-born population, including the second generation offspring of immigrant communities. Counterterrorism priorities also carry over into the debate over unauthorized migration. Unauthorized migration is a security threat because it is creating a population that is almost entirely outside of the government’s oversight. Another worrisome population is immigrants who are involved in transnational gangs. These crime networks can also be considered security threats because they tend to take the same form as terrorist networks and are involved in moving contraband that can provide material support to terrorist organizations (not to mention the possibility that some transnational gangs may either be directly funding terrorist organizations or laundering money that either comes from or finds its way to these organizations). This is another reason why it is necessary for the government to cast a wider net in its efforts to catch and deport immigrants with criminal convictions and crack down on unauthorized migration. Critics argue that counterterrorism should be kept distinct from immigration enforcement and that immigrant profiling adds very little to effectiveness to counterterrorism operations. They argue that although the immigration system should collaborate with other federal enforcement agencies for counterterrorism purposes, it is a mistake to treat immigration enforcement en toto as a counterterrorism strategy. Doing so would ignore the possibility (as was the case with several of the 9/11 hijackers) that a terrorist operative could enter the United States legally and with no prior criminal record. Databases on known terrorists (of the sort that would be used by airport workers, border control agents and local police) are unable to identify operatives that have no prior history of being involved in terrorist activity—the sort of operative that would most likely be sent to live in the United States. It is also unwise to make unauthorized migration a counterterrorism priority. This will only increase the profiling of individuals who look undocumented while having virtually no effect on homeland security. There have been numerous efforts at cracking down on unauthorized migration in the past; the most aggressive being Operation Wetback that was used to deport over one million Mexican nationals in the 1950s. This only worked, however because the United States no longer had as much need for these migrant workers due to the mechanization of large portions of the southwest agricultural industry, among other factors. When the need for cheap labor remerges, one also sees a corresponding rise in unauthorized migration, as has occurred over the past 15 years. Until immigration control strategies start taking into consideration the economic push and pull factors driving unauthorized migration, immigration raids are only going to be ineffective, short-term band-aids. Counterterrorism may be used to justify these crackdowns, but the methods that are being proposed are not sufficient for

140

|

Counterterrorism and Immigrant Profiling

a long-term solution to unauthorized migration, and the issues that would have to be addressed are beyond the scope of counterterrorism concerns. Likewise, it is unfair to consider all immigrants with criminal convictions as security threats, especially since recent immigration laws have drastically expanded the list of offenses that count as deportable offenses to include offenses such as shoplifting and DWI convictions. These practices hold immigrants up to a much higher standard than citizens. As with national-origin profiles, these practices will only alienate immigrants in the long run, especially if it appears that the government is looking for new ways to expand the definition of criminality just so it can have an excuse to deport more immigrants. In contrast, counterterrorism operations should become leaner in their tactics and organizational form. These operations will still need to adopt a network form that relies on more innovative forms of information sharing between government agencies, but the government should be more precise about the indicators that it uses to identify terrorist suspects. Instead of basing terrorist profiles on immigrant legal status, enforcement agencies should focus on the actual activities that individuals undertake. Travel patterns are relevant here, but so are efforts made to acquire illegal weaponry, an interest in acquiring training and other information that could be used to plan an attack, or attempts to infiltrate sites that have been identified as likely terrorist targets. These are indicators that should be relevant to counterterrorist operations, regardless of legal status or national origin. Finally, it is important to note that some of the most important frontiers for counterterrorism operations lie outside U.S. borders. The more that is known about trends in international terrorism on the global stage, the easier it will be to know how to coordinate counterterrorism operations in the domestic sphere. This information is arguably more important than the information that can be gained from monitoring U.S. noncitizens and/or citizens, since it can provide insights on when terrorist strikes are likely to occur, how they may be carried out, and which groups are most likely to be involved. Once again, cooperation is the key to getting this information. Success will require working in tandem with foreign governments in tracking known terrorist organizations and of course, fostering a diplomatic environment that will encourage the cooperation of these governments. CONCLUSION The debate over immigrant profiling and counterterrorism operations will continue unabated and may even intensify for the foreseeable future. This is because people on both sides of the debate tend to justify their positions by appealing to similar strategies and principles. For example, there is a general consensus on the need to adopt a fluid, network form of organization that maximizes information sharing between government agencies and improves information gathering from a wide variety of sources. There is also general agreement that counterterrorism operations need to do a better job of identifying likely terrorist suspects. However, there is intense disagreement over how these goals should be

Counterterrorism and Immigrant Profiling | 141

achieved, and this disagreement is largely a matter of relative rather than absolute differences. For example, few critics of immigrant profiling argue that there is absolutely no role for immigration enforcement in counterterrorism. Instead, many argue that immigration enforcement should be involved on an as-needed basis. However, even in this context it is likely that immigrant legal status and even national-origin may be used as a basis for screening possible terrorist suspects. Hence, the debate is between advocates of more expansive counterterrorism measures (that would also expand the use of immigrant profiling) versus advocates of more targeted counterterrorism measures (that would minimize the use of immigrant profiling). The line that separates these two positions is not always as clear as it seems. It also bears noting that the opinions of federal courts on these matters (including those of the Supreme Court) have been rather mixed. Some Circuit and District Courts have struck down unauthorized entrant laws adopted by local governments on the basis that they employ screening practices (including the use of immigrant-ethnic profiles) that violate the civil liberties of immigrants. These local laws have not been explicitly framed as counterterrorism initiatives, but they appeal to arguments that are similar to those used by advocates of aggressive counterterrorism operations. However, as noted earlier in this review, the Supreme Court (in Muehler vs. Mena) upheld the validity of ethnic profiling by law enforcement in certain situations. These discrepancies illustrate how concerns about immigrant profiling and even definitions of immigrant profiling can vary on a case-by-case basis. This is not just true for the federal courts, but also for scholars, pundits, policy analysts, and policy makers who deliberate on these matters. It is also important to consider the importance of the broader social and political context. Revelations of abusive enforcement practices or a new wave of terrorist attacks on U.S. soil could make all the difference in how these issues are discussed and in the baseline assumptions that are used to distinguish reasonable from unreasonable screening practices. References: Center for American Progress. “Strengthening America by Defending Our Liberties: an Agenda for Reform.” 2003. http://www.americanprogress.org /kf/strengthen ing _america.pdf; Chishti, Muzzafar, Doris Meissner, Demetrious Papademetriou, Jay Peterzell, Michael Wishnie, and Stephen Yale-Loehr. “America’s Challenge: Domestic Security, Civil Liberties and National Unity after September 11.” Migration Policy Institute. http://www.migrationpolicy.org /pubs/Americas_Challenges.pdf; CNN.com. “Hate Crime Reports up in Wake of Terrorist Attacks.” September 17, 2001. http://archives. cnn.com/2001/US/09/16/gen.hate.crimes/; Davidson, Thomas. “Terrorism and Human Smuggling Rings in South and Central America.” Terrorism Monitor 3, no. 22 (2005). http://www.jamestown.org /terrorism/news/article.php?articleid=2369832; DeGenova, Nicholas. “Migrant ‘Illegality’ and the Metaphysics of Antiterrorism: ‘Immigrants’ Rights’ in the Aftermath of the Homeland Security State.” Social Science Research Council. Border Battles: The U.S. Immigration Debates. http://borderbattles.ssrc.org /De_Genova/; Department of Homeland Security. 2005 Immigration Yearbook. Table: Distribution of Individuals Charged by Type of Charge 2005; FBI Strategic Plan 2004–2009. http:// www.fbi.gov/publications/strategicplan/stategicplantext.htm; Government Accountability

142

|

Crime and Youth Gangs Office. Security Vulnerabilities at Unmanned and Unmonitored U.S. Border Locations. September 27, 2007; Government Accountability Office. Homeland Security: Overstay Tracking Is a Key Component of a Layered Defense. October 16, 2003; Human Rights Watch. “In the Name of Counter-Terrorism: Human Rights Abuses Worldwide.” Briefing Paper for the 59th Session of the United Nations Commission on Human Right, March 25, 2003; Human Rights Watch. “US ‘Operation Liberty Shield’ Undermines Asylum Seekers’ Rights.” Press Release. March 26, 2003; Human Rights Watch. An Unjust ‘Vision’ for Europe’s Refugees: Commentary on the UK’s ‘New Vision’ Proposal for the Establishment of Refugee Processing Centers Abroad. June 17, 2003. http://www.hrw.org /backgrounder/ refugees/uk/newvision.pdf; Ifitikhar, Arsalan. “The Status of Muslim Civil Rights in the United States 2005: Unequal Protection.” Washington, DC: Council on American Islamic Relations, 2005; Kephart, Janice. “Immigration and Terrorism Moving Beyond the 9/11 Staff report on Terrorist Travel.” Center for Immigration Studies. http://www. cis.org /articles/2005/kephart.html; Kerwin, Donald, and Margaret Stock. “National Security and Immigration Policy: Reclaiming Terms, Measuring Success, and Setting Priorities.” Catholic Legal Immigration Network, Inc., 2006; Koslowski, Rey. “Real Challenges for Virtual Borders: Implementing US VISIT.” Migration Policy Institute. http://www.migrationpolicy.org/pubs/Koslowski_Report.pdf; Leiken, Robert. “Europe’s Angry Muslims.” Foreign Affairs 84, no.4 (2006); National Committee Against Repressive Legislation (NCARL). “Political Dissent and Union Organizing Called Terrorism.” November 2002 Newsletter. http://www.ncarl.org/newsletter2002.html; Ngai, Mae. “Impossible Subjects: Illegal Aliens and the Making of Modern America.” Princeton, NJ: Princeton University Press, 2004; Passel, Jeffrey. “Size and Characteristics of the Unauthorized Migrant Population in the U.S. Estimates Based on the March 2005 Current Population Survey.” Pew Hispanic Center. http://pewhispanic.org /files/reports/61.pdf; Rubinkam, Michael. “Illegal Immigrant Laws Face Setbacks.” Associated Press. January 20, 2007; Sagarin, Raphael. “Adapt or Die.” Foreign Policy 138 (2003):68–69; Steinberg, James. “Statement to the National Commission on Terrorist Attacks Upon The United States.” Fourth Public Hearing of the National Commission on Terrorist Attacks upon the United States. http://www.9–11commission.gov/hearings/hearing4/witness_stein berg.htm; Street, Paul. “Background Check: Operation Tarmac And The Many Faces of Terror Paul Street.” Znet. http://www.zmag.org/Sustainers/content/2003–01/11street. cfm; Tirman, John. “Immigration and Insecurity: Post-9/11 Fear in the United States.” Social Science Research Council. Border Battles: The U.S. Immigration Debates. http:// borderbattles.ssrc.org/Tirman/; U.S. Department of State. Country Reports on Terrorism 2006. http://www.state.gov/s/ct/rls/crt/2006/; U.S. Supreme Court. Muehler et. al. v. Mena. Supreme Court Decision No. 03–1423, October term, 2004; Wasem, Ruth. “U.S. Immigration Policy on Immigrants.” Congressional Research Service. Library of Congress January 21, 2005. Report # RS21349.

Philip A. Kretsedemas

CRIME AND YOUTH GANGS BACKGROUND: A HISTORY OF CRIMINAL STEREOTYPES When immigration rates to the United States have been high, there has often been a concern that immigrants will commit crimes. This phenomenon occurred during the peak period of immigration in the early twentieth century

Crime and Youth Gangs | 143

and during the post-1965 wave of immigration. Historically, the public has considered immigration to be a major source of crime, despite a lack of statistical evidence. Law enforcement officials’ statements and shock-news stories have shaped the public mindset. In the 1880s, the New York Times published a series on criminal Italians and Irish. Chinese, Jews, and Southeastern European immigrants have been similarly stereotyped. Prior to the passage of immigration-exclusion legislation in the 1920s, newspaper coverage and public figures asserted that immigrants were both criminal and mentally defective. Historical research indicates that during the twentieth century, the Los Angeles Police Department repeatedly characterized Mexican-origin individuals as criminals. This contributed to the Zoot Suit Riots of the 1940s in which U.S. service men fought with young Mexican American males. The service men reacted to the sight of Mexican origin males under the age of conscription who were wearing zoot suits (a fashion involving coats that went below the knees, baggy pants, and long visible watch chains) by claiming that they were draft dodgers and starting fights that progressed to rioting (Escobar 1999). Throughout the third wave of immigration, Cuban Marielitos (Cubans who were transported in a boat lift to the United State by official agreement with Cuba in the early 1990s), Columbians, and Mexicans have been similarly stereotyped. The 2000 General Social Survey asked if “more immigrants cause higher crime rates.” Twenty-five percent thought this was “likely” and 48 percent answered “very likely,” indicating that traditional beliefs about immigrants and crime persist. On May 15, 2006, President Bush stated that immigration “brings crime to our communities.” One must differentiate between legal and undocumented immigration in order to better understand the issue. UNDOCUMENTED IMMIGRATION AS A CRIME A migrant who crosses the border without a visa or papers admitting them to temporary residence is automatically made a criminal, a legal process called criminalization. When the public thinks of crime, it is natural to be concerned about murder and property crime. These two types of criminal activity are very different. Undocumented migration is a violation of national sovereignty while murder and property crime are crimes against individuals, organizations, or groups. When one considers the estimate, in the millions, of the number of undocumented immigrants in the United States, it becomes clear that there are a large number of potentially law-abiding individuals who are referred to as criminals. Indeed, undocumented temporary migrants and those living as unauthorized (without legal paperwork) immigrants are motivated to avoid criminal acts in order to evade detection. When politicians and government administrators state that immigrants are increasing crime, one should consider which type of criminal activity is being referred to: the crime of unauthorized entry and residence or traditional crimes such as burglary or shoplifting.

144

|

Crime and Youth Gangs

In 2005, the Federal Bureau of Prisons reported that 27 percent of federal prisoners are foreign-born. General prison statistics are misleading because they do not explain why an individual was incarcerated or that individuals imprisoned for repeatedly entering the United States are put in federal institutions alongside rapists, murders, etc. Undocumented immigration leads to crime by association as when employers deliberately hire unauthorized workers: a civil and criminal offense established by the Immigration Reform and Control Act of 1986 (IRCA). Subsequent to IRCA’s passage, lawyers did not choose to prosecute on the basis of criminal penalties but civil actions, including fines were pursued. Currently, Immigration and Customs Enforcement is pursuing criminal sanctions against human resources administrators and employers. Undocumented immigrants are considered to be criminals, but small businesses and corporations who seek their labor were not treated as such until mid-decade in the twenty-first century. After 9/11, the number of employer-sanctioned prosecutions dropped to a very low level and by 2006, had begun a dramatic increase, including the first use of criminal penalties. EVOLVING LEGISLATION AND IMMIGRANT CRIMINAL PENALTIES Crimes against sovereignty (such as lacking documents) and crimes against persons (such as murder, burglary, etc) are two different issues. Undocumented immigrants who lack temporary or permanent resident status lose legal rights. Even temporary or permanent-resident-alien status does not carry the full rights of citizenship. The United States has evolved a three-tier system of rights differentiating undocumented immigrants, temporary or permanent-resident immigrants and naturalized immigrant citizens. In the late 1980s, the federal government began to prioritize criminal-alien removal and to increase the types of crimes for which immigrants could be deported. This legislation was applied retroactively to types of felony crime designated as aggravated felonies. Only naturalized immigrant citizens who commit crimes are not subject to deportation for commission of an aggravated felony. The 1988 Anti-Drug Abuse Act established the category of aggravated felony for the crimes of homicide, drug trafficking, and firearms smuggling. An Institutional Removal Program resulted in deportation after time was served. The Immigration Act of 1990 expanded the aggravated felonies classification to include any crime of violence. The Immigration and Technical Corrections Act of 1994 expanded aggravated felonies to include additional, but not all, offenses in the following categories: (1) firearms and explosives, (2) theft and burglary, (3) fraud and prostitution, and (4) other specified offenses. Next, The Oklahoma City bombing led to The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 that added: (1) gambling, (2) transport for purposes of prostitution, (3) alien smuggling, (4) passport fraud or other document fraud, (5) commercial bribery, (6) forgery, (7) counterfeiting, (8) vehicle trafficking if the conviction is more than five years, (9) previously

Crime and Youth Gangs | 145

reported offenses committed by an alien, and (10) offenses related to skipping bail subject to a sentence of two or more years. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) added rape and sexual abuse of a minor. IIRAIRA also lowered the length of sentence and monetary amount qualifying thresholds for many crimes previously defined as aggravated felonies. The chief impact of the creation of the aggravated felony categories was that non-U.S. citizens with criminal convictions were made retroactively subject to mandatory detention and deportation without consideration of extenuating conditions. Crimes currently subject to mandatory detention and deportation include misdemeanor convictions of at least one year (example: shoplifting) and criminal convictions prior to 1996 that were reclassified as aggravated felonies under AEDPA and IIRAIRA. All categories of non-U.S. citizens, including lawful permanent residents, are subject to the ruling. These major changes in deportation were made possible because the loss of the right to reside in the United States is a collateral civil penalty for noncitizens convicted of crimes. Reclassification of noncitizen crimes as deportable was viewed as regulatory, not punitive, so constitutional provisions for due process and other rights of criminals were not applied. Before 9/11 the incarceration rate of certain immigration offenders increased from 57 percent in 1985 to 91 percent in 2000. Sentencing policy changes and increased prosecution have resulted in this incapacitation of citizen and noncitizen criminals. Increased southwestern-border-control activity and stiffer sentencing for felony immigration offenses contributed to this increase. As a result, noncitizens accounted for two-thirds of the growth in the federal prison population from 1985 to 2000. Only one-third of individuals charged with unlawful entry and approximately 25 percent of those charged with visa offenses had any prior U.S. arrest history. The end of the catch and release policy by President Bush in 2006 has meant that any unauthorized entrant will spend time in detention while repeat unauthorized crossing results in federal imprisonment. It is undeniable that a certain proportion of noncitizens sent to federal prison are serious offenders who repeatedly cross the border without documents. Between 1985 and 2000, the number of individuals arrested for drug trafficking offenses increased from 1,799 to 7,803. Fifty-six percent of noncitizens charged with re-entry had prior violent or drug-related convictions. No information is available on whether those with drug-related convictions were being used as mules for drug transport to cross the border as opposed to being drug cartel members or convicted of having drugs in their possession. The REAL ID Act of 2005 established national standards for driver’s licenses and other types of ID cards that will make it harder for undocumented immigrants to obtain them. This act further defined acts of terrorism that would result incarceration followed by deportation. For example, providing funds or a safe house for terrorists would constitute an offense resulting in deportation. Critics of the act are concerned that guilt by association will result in the deportation of immigrants who are not guilty of terrorist activity.

146

|

Crime and Youth Gangs

ANGEL MATURINO RESENDEZ Angel Maturino Resendez is a media symbol of immigrant crime. From 1978 to 1996, the so-called railway killer was arrested 25 times for undocumented entry, entry with false documents, trespassing, destroying property, carrying a loaded firearm, burglary, theft, aggravated assault, and grand theft auto. Resendez received nine felony convictions and was voluntarily deported on numerous occasions. He is connected to nine murders by forensic evidence and was charged with seven murders. Resendez confessed to committing three additional murders and was convicted of murdering Claudia Benton. On June 27, 2006, Angel Maturino Resendez was executed in Texas despite the request by President Vincente Fox of Mexico to spare him because Mexico does not have the death penalty. Resendez, a railway drifter, was repeatedly detained by the U.S. Border Patrol and INS and sentenced to prison on three occasions. The INS has been blamed for not using its IDENT system to track data on his criminal record as requested by local and state law enforcement agencies. His incarceration could have prevented several homicides. Angel Maturino Resendez is the only immigrant known to have been a serial killer. His story is an exceptional media case not an example of an immigrant-crime link. His case is more valuable for highlighting the problem that the United States deports criminal aliens to their home country, as if citizenship decides sovereign responsibility instead of incarcerating high-risk offenders and rendering them incapable of further harm. Deportation to neighboring Mexico, which has limited criminal justice staff and agencies when dealing with a repeat criminals, is not a solution. The Resendez case was a social marker of INS’s (now, ICE) failure to use computer methods to track repeat offenders, and it indicates an area of vulnerability.

IMMIGRANTS AND CRIMINAL INVOLVEMENT Angel Maturino Resendez, who was undocumented, provides an example of immigration-related crime (See Sidebar). After a history of property crime, vehicle theft, and assault, he developed into a serial killer. The INS and U.S. Border Patrol repeatedly sent him back to Mexico. Resendez was a repeat offender who had been deported three times and was sent back to Mexico through voluntary departure nine times. Four murders were committed after his final deportation and before he surrendered to the authorities. Although Resendez surrendered after extensive publicity and the involvement of his sister, crimes committed by immigrants are not always evident in the news or statistical reports. One reason is that imposing undocumented status automatically marks unauthorized entrants as criminal and forces them to hide their activities whether they are legal forms of employment, participation in the underground off-the-books economy, or involvement with crime or criminal organizations. As a result of their need to hide, crime committed by undocumented immigrants (often against other immigrants) and immigrant victimization may not be reported to the police. The public becomes aware of these crimes as individual incidents anecdotally reported by politicians, political

Crime and Youth Gangs | 147

pundits, or journalists. Anecdotal or individual case evidence must be evaluated to determine how society can better estimate the range of immigrant crime. Tracking repeat immigrant offenders, particularly those who commit serious crimes, is a hard task. There are instances in which major criminals have fled back to their countries of birth to avoid prosecution. Whether discussing organized, gang, or individual crime, it is likely (but not proven) that many open cases involve individuals who fled to their home country to evade the law. Mexican criminals can easily return by crossing the land border and global transit provides a means by which suspected criminals can escape. Seeking protection by crossing borders is used by major immigrant organized-crime groups connected to drug and human trafficking. These include the Central American Salvas Truchas gang, the Russian Mafia, the Mexican Mafia, the Chinese Fuk Ching, and various international drug cartels, including the Mexican Arrellano-Felix and Carillo-Fuentes organizations. The connection between immigrants and crime is strongest in the arena of transnational organized crime because of global networks that connect sending countries with the United States. For example, Poland and Czech Republic gangs have ties to mobsters in New York and Chicago. Russian organized crime is centered in Moscow and has established underground network ties with Wall Street brokerages and the Bank of New York. For example, the Russian Mafia scammed the Medicare program by submitting repeated false billings for which they were compensated. U.S. banks serve as receptacles for laundered money. Russians have even set up shell companies to produce visas for Russian criminals to enter the United States. Similarly, Chinese and Vietnamese organized crime groups have recruited immigrants and local gangs. Criminal activities associated with transnational organized crime include prostitution, drug smuggling, and money-laundering. International rings recruit women as so-called hosts and smuggle children. These women and children are then enslaved as prostitutes; this scheme is made possible by the victims’ illegal status as immigrants and the organized ring’s ability to criminally operate in the underground economy. Needless to say because these nationality-based organizations are international and hidden, it is difficult to obtain statistics on the involvement, coerced or voluntary, of foreign nationals and immigrants. Although statistics indicate that legal immigrants have a lower crime rate than the native-born, government and academic researchers have found that crime is under-reported by both the native-born and immigrants. Immigrants are especially unlikely to report criminal victimization. The reasons include fear that acquaintances or family members will be deported; fear of personal deportation if a victim is undocumented; cultural traditions of keeping one’s problems known only to close family; fear of retaliation by the criminal or that individual’s friends, relatives or organization; and memories of bad experiences with police in the country of origin that carry over to fear of officers in the United States. As a result, crimes against immigrants are likely to become a part of the so-called dark figures of crime because they are not reported. Neighborhood ecology is associated with the under-reporting of crime. Low income immigrants tend to settle in marginal neighborhoods with cheap

148

|

Crime and Youth Gangs

housing that are more prone to crime. Robert J. Sampson, a sociologist, emphasizes that residents of neighborhoods characterized by social disorganization lack a sense of collective efficacy. Neighbors separated by linguistic and ethnic cultural barriers do not come to each other’s aid by making witness statements and assisting with crime prevention due to a lack of mutual trust. In addition, they don’t believe that the police will take effective action to resolve criminal complaints. The reputation of a neighborhood as a high-crime area may attract criminals and contribute to a lack of collective action. Carl Horowitz argues that immigrant crime costs the U.S. a great deal in funds for crime control and incarceration. California, New York, and other states with large immigrant populations expend large portions of their crimefighting budgets on arresting, trying, and incarcerating immigrants. Increasing criminal-alien deportations and incarceration costs have created a local and state fiscal issue. The federal State Criminal Alien Assistance Program (SCAAP) provides reimbursement to local and state jurisdictions for certain undocumented individuals who were incarcerated and met legal requirements for partial federal reimbursement. Individuals who qualify the local or state jurisdictions for reimbursement are those who have a felony conviction or two misdemeanors and were imprisoned for a minimum of four days, individuals entering without inspection (without documents), residents subject to immigration removal proceedings when taken into custody (retroactive deportation for prior criminal offenses), and individuals legally admitted who did not maintain nonimmigrant status (such as visa overstayers). The SCAAP does not necessarily cover all costs for incarceration incurred by local and state governments. This is a political issue because of the reimbursement problem, and the Federation for American Immigration Reform (F.A.I.R.) is making the number and cost of criminal aliens held a national issue. In the time period from 2001 to 2004 the cost for imprisonment of noncitizens was $4.2 billion of which $1.6 billion were SCAPP reimbursements. At the federal level, the following number of noncitizens were imprisoned: 42,424 (2001); 44,073 (2002); 46,063 (2003); and 48,708 (2004). In Fiscal Year 2002, 50 states were reimbursed for holding 77,000 criminal aliens. In Fiscal Year 2003, 47 states were reimbursed for holding 74,000 noncitizen prisoners. In 2003, the following numbers of noncitizen prisoners were held by the states: Arizona (4,200), California (30,200), Florida (5,200), New York (5,700) and Texas (11,200). These five states held approximately 76 percent of criminal aliens. The General Accounting Office estimates that the states in this listing spent $1.6 billion to hold these individuals and were reimbursed $233 million. In 2002, SCAPP reimbursed 752 local jail systems for holding 138,000 criminal aliens. In 2003, 698 jurisdictions were reimbursed for 147,000 criminal aliens. In 2003, five local jail systems held 30 percent of criminal aliens: Los Angeles County, California (18,900); New York City, New York (8,100); Orange County, California (7,800); Harris County, Texas (4,600); and Maricopa County, Arizona (4,300). The General Accounting Office estimated that four of these five jail systems spent $390 million on incarceration and that they received $73 million in SCAAP reimbursements. The state and local cost of arresting and

Crime and Youth Gangs | 149

holding individuals for being undocumented or being noncitizens who commit crimes is extensive. JUVENILE DELINQUENCY AND IMMIGRANTS Gang development and criminal involvement has occurred among the 1.5 generation (foreign-born children who have primarily lived in the United States) and second-generation children. Second-generation children are born in the United States but have not experienced living conditions in the sending country. Gang members are often thought to lack the drive for success and the willingness to sacrifice of their parents, while having absorbed the consumer desires of American culture. Caught between their parents’ traditional culture and Americanization, these youths may turn to gang membership as a pathway to crime. Carl Horowitz refers to the increased crime rate in the second generation as the echo effect. Tony Waters, a sociologist, has studied second-generation immigrant crime and found an echo effect connected to high birth rates in low-income immigrant groups. Second-generation crime varies by immigrant nationality. The key factor is the proportion of young males in lower-income ethnic populations. Neighborhood ethnic heterogeneity, poverty level, and other factors provide the social context in which a transition to delinquency and crime may occur. In the early 1990s, refugee groups from South Asia (Laotians, Cambodians, Vietnamese, Thai, and Hmong) had higher serious-crime rates than other Asian ethnic youth. The echo effect is very much connected to the human and social capital that Asian refugees brought to the United States. In the country of origin, traditional culture would not have fostered this level of delinquency. Carl Horowitz believes that parent-child relationships are impacted by the national culture of the homeland. Tony Waters found that differences in traditional cultural and American norms resulted in a break between parents and children in certain Asian ethnic groups. For example, among Laotians, the parents used harsh discipline, which diverged from U.S. custom resulting in normative miscalculations. Parents and children were not allies in dealing with the police due to cultural misunderstandings. Among Mexican immigrants, parent-child conflict leading to delinquency is thought to result in marginalization and discrimination. Neither parents nor police approve of youth misbehavior, but there is no cooperation because parents do not view police as allies. In other words, if a Mexican youth gets into trouble, they are stereotyped as delinquents and criminals and their parents avoid intervening on their behalf. Tony Waters suggests that limiting immigration, especially family reunification, would reduce the youth crime rate by preventing the 1.5 and second generation from forming. He indicates the best way to reduce U.S. crime connected to foreign nationals and immigrants would be to better enforce border entry and visa time limits, alter immigration policy to place an emphasis on skilled labor rather than family reunification, and reduce the number of immigrants who legally enter each year as temporary or permanent residents.

150

|

Crime and Youth Gangs

MARA SALVATRUCHA In the 1980s, the Mara Salvatrucha (MS-13) gang began a turf war. After 1979, El Salvadorians had fled a 12-year civil war which displaced one million people, some of whom migrated to the United States for protection. Migrants included individuals trained by paramilitary organizations with knowledge of weapons, explosives, and combat tactics. They settled primarily in Southern California and the Washington D.C. region. Lacking acceptance, they became the target of local Hispanic gangs and formed their own. Later, they accepted other Central Americans and evolved into a transnational crime network estimated to have between 150,000 and 300,000 members. U.S. deportation to the countries of origin has been instrumental in MS-13 organization. Deported MS-13 members sent to nations with weak law enforcement are able to convince or coerce prison guards to release them. They recruit more members in Central America, and most return to the United States. MS-13 engages in the trafficking of humans, drugs, weapons and munitions into the United States. In the United States, MS-13 sells narcotics and weapons and engages in prostitution, robbery, and theft. MS-13 offers a glamorous lifestyle for Latino males from impoverished backgrounds with home and school problems. Young men are attracted to the money, women, and social relationships the gang offers. Both the United States and Central America have established gang task forces and are beginning to share policing intelligence. Because it was thought that MS-13 had al Qaeda terrorist contact, a crackdown occurred, but no hard evidence was found. In 2005, organized crime gangs were targeted by the Department of Homeland Security, and 582 suspected members of MS-13 were arrested.

IMMIGRANT INCARCERATION The media sensationalizing of serial killer Angel Maturino Resendez is in the American cultural tradition of stereotyping immigrants. Census statistics indicate that immigrants are less likely to commit crimes than the native born and that increases in their deportation and incarceration rates are due to changes in U.S. immigration law. The war on crime launched in the 1970s has resulted in a great increase in imprisonment in the United States. In 1980, 500,000 individuals were in jails and state or federal prisons. Bureau of Justice Statistics indicate this figure increased to 2,186,230 by June 2005. This is the highest rate of incarceration of any nation. Imprisonment and immigration numbers rose at the same time; is there a relationship between them? Because prisoners tend to be young males aged 18 to 39 and because the U.S. Census immigrant population of sixty million is skewed towards youth, it would be logical to predict immigrants would constitute a greater percentage of the prison population than the native born. This is not true now, nor has it been true in the past. A 1985 General Accounting Office analysis of FBI data for six major cities (Chicago, Denver, Houston, Los Angeles, Miami, and New York) found that

Crime and Youth Gangs | 151

foreign-born individuals accounted for 19 percent of total arrests and 19.6 percent of the population. The study suggests that foreign born visitors, residents, and citizens do not commit crimes at a higher rate than the native born. Similarly, Kristin F. Butcher and Anne Morrison Piehl, economists, found no evidence of an association between immigration and crime using 1990 Census data. The 2000 Census showed similar results. The demographic characteristics of those most likely to be arrested are: minority member, aged 18–39, and low-level of education. When the native-born population is compared to the foreign-born population, its social composition suggests that immigrants will have a higher crime rate, especially Mexican immigrants. Ruben Rumbaut’s analysis of the Public Use Micro-data Sample (PUMS), a 5 percent sub-sample of the 2000 U.S. Census, demonstrated that 3.51 percent of the native-born population was incarcerated as compared to less than one percent (0.86%) of the foreign-born population. First generation immigrants are far less likely to be incarcerated than native-born non-Hispanic whites or minority members. U.S.-born citizens have a higher crime rate than Latin American or Asian immigrants. All minority groups except Puerto Ricans are less likely to be incarcerated. Puerto Ricans are U.S. citizens and if they are excluded from the analysis, the immigrant incarceration rate drops to 0.68%. Remarkably, the lowest rate of imprisonment is found among the least educated immigrant ethnic groups: Salvadorians/ Guatemalans (0.52%) and Mexicans (0.7%). Yet Mexicans and other Latin Americans are the most stigmatized as criminals in the media. Federal prison statistics make it clear that the number of criminal aliens incarcerated has been steadily increasing over time. In 1991, 14,475 criminal aliens were deported. In 2001, 42,000 were deported while 49,000 were removed by the end of 2004 (GAO 2005). These statistics make it look like immigrant crime has vastly increased. In reality, both retroactive deportations and increased imprisonment for undocumented entry or re-entry produce an increase in criminal aliens held that cannot be precisely detected from the reported statistics because they do not identify the time period of the offense. Temporary and permanent resident immigrants are being retroactively deported for past offenses for which they served time and then were released to rejoin American society. This is a retroactively inflated percentage which makes it appear that immigrant crime is on the rise when, in fact, the numbers are a very small portion of the estimated population of 22 million. Only second generation and later citizens of the following ethnicities have incarceration rates higher than the native-born 3.51 percent: Laotians and Cambodians (7.26%), Mexicans (5.90%), Vietnamese (5.60%), Puerto Ricans (5.37%), Cubans (4.20%), and Dominicans (3.71%). The majority of these inmates are second generation with the exception of Mexicans and Puerto Ricans, who have had a long-term presence in this society. Furthermore, for the second generation and beyond among immigrant minority groups, individuals who do not receive a high-school-level education are more likely to be incarcerated. High school dropouts (6.91%) are more likely to be incarcerated than graduates (2.0%). Nevertheless, it is native-born men without a high school degree who are at the greatest risk of incarceration (9.76%) as opposed to the 1.31 percent of immigrants with less than a high school education who are imprisoned. Native

152

|

Crime and Youth Gangs

birth, among all ethnicities, is a stronger predictor of criminal behavior than being an immigrant. Ruben Rumbaut, a sociologist, interprets these results as indicating that Americanization leads to exposure to criminal activity and that lack of opportunity for social mobility, such as that experienced by high-school dropouts, may motivate individuals to commit crime. Indeed, the 2000 Census PUMS data indicates that incarceration increases as time spent in the United States increases, but the rate of foreign-born incarceration never rises to the level of incarceration for the second generation and beyond. U.S. nativity is the most important predictor of likelihood of imprisonment due to a myriad of factors associated with host-country conditions. The Children of Immigrants longitudinal study in San Diego provides more information about the social factors associated with crime across immigrant generations. Being from a single parent family, having a low G.P.A., being suspended from school on multiple occasions, being physically threatened or offered drugs on more than two occasions in high school, and not graduating from high school were all risk factors for criminal activity and incarceration. Being suspended from school due to fights resulting in physical injury, attempted or threatened fighting, class disruption or defiance, drugs, property damage, and weapons possession were also factors in criminality. Although Mexicans were more likely to have a criminal history, school related variables such as poor grades, nonattendance, or suspensions emerged as a stronger predictor of criminality. An unfortunately common sequence is failure at school, attempts at crime, and then failure through imprisonment. Contemporary imprisonment emphasizes incapacitation, simply doing long and hard time, rather than the learning of rehabilitative skills that could replace crime as a source of economic support. According to social disorganization theories, crime is strongly related to the level of neighborhood poverty and the age and sex distribution of the population. Yet research on the areas in which immigrants settle indicates that rates of crime and violence are the same or lower. Matthew Lee and Ramiro Martinez Jr. suggest that immigrants may revitalize or stabilize the communities they live in. New forms of social organization and adaptation may reduce the negative impact of poverty and increase informal and social control, which would reduce or prevent crime. Ramiro Martinez found some support for an increase in Latino crime due to a lack of opportunity for youth in the second generation. Economic deprivation, however, was the strongest predictor of drug related homicide in San Diego and Miami, not the percent immigrant. Mexican communities in San Diego were poor, but working, which the researchers speculate provided sufficient social capital to act as a buffer against crime. San Diego neighborhoods with a higher proportion of recently immigrated, young, male Mexicans who lack education and have a potential for downward social mobility, however, had a higher incidence of drug-related homicides. This suggests that economic conditions are a stronger predictor of drug homicide than the ethnic or immigrant composition of a neighborhood. This finding was supported by Enrico Marcelli, a sociologist, whose California survey data showed that the unauthorized status of Latinos

Crime and Youth Gangs | 153

did not impact the probability of them being arrested for drug related or economic crimes. Ramiro Martinez found no evidence that Latino immigrant neighborhoods have high rates of drug-related violent crime. Sacalia and Litras’ review of Department of Justice statistics found that 56 percent of those charged with a re-entry immigration offense had previously been convicted of a violent or drugrelated felony. In other words, deportation does not permanently remove serious offenders. U.S.-Mexico border cities, such as San Diego, have been major ports of entry for drugs and deported foreign born traffickers can easily return. CONCLUSION In an era of mass immigration and mass imprisonment, particularly of young men with limited education, immigrant status is not a major predictor of criminal activity. Organized crime involvement of foreign nationals who operate in the United States and recruit gang members is the chief threat because many in the United States want to purchase drugs and practice illicit consumption, such as prostitution. The second generation descended from immigrants is at risk only because of issues involving under-funded school systems and neighborhood factors such as chronic poverty and lack of a sense of collective efficacy that need to be further examined. The public taste for crime news is certain to generate more coverage of the relationship between immigration and crime. Balanced coverage would publicize statistics about immigrant’s lower crime rate and their role in stabilizing and actually reducing the crime rate in neighborhoods where they establish strong ethnic communities. Americans need to examine how their policies regarding who may enter generates criminal aliens who lack authorization and employers who commit white-collar crime by employing them. Furthermore, crime cannot be dealt with by deporting immigrant prisoners to their homeland because they have criminal networks to easily effect their return. It is time to rethink the issue of immigration and crime and for the United States to consider its responsibility for international crime control. References: Butcher, Kristin F., and Ann Morrison Piehl. “Cross City Evidence on the Relationship Between Immigration and Crime.” Journal of Policy Analysis and Management 17(1998): 457–403; Camarota, Steven A. The Open Door: How Militant Islamic Terrorists Entered and Remained in the United States: 1993–2001. Washington, DC: Center for Immigration Studies. http://www.cis.org/articles/2002/theopendoor.pdf; Cole, David. Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism. New York: The New Press, 2003; Escobar, Edward J. Race, Police and the Making of a Political Identity: Mexican Americans and the Los Angeles Police Department, 1900–1945. Berkeley, CA: University of California Press, 1999; Federal Bureau of Prisons, U.S. Department of Justice. Quick Facts about the Bureau of Prisons. http://www.bop.gov/news/ quick.jsp; Hagan, John, and Alberto Palloni. “Sociological Criminology and the Mythology of Hispanic Immigration and Crime.” Social Problems 46(1999): 617–632; Hanson, Victor Davis. Mexifornia: A State of Becoming. Encounter Books, 2004; Horowitz, Carl. An Examination of U.S. Immigration Policy and Serious Crime. Washington D C: Center for Immigration Studies, 2001; Johnson, Steven, and David B. Mulhausen. “North

154

|

Crime and Youth Gangs American Transnational Youth Gangs: Breaking the Chain of Violence.” Trends in Organized Crime 9, no. 1 (2005): 38–54; Kephart, Janice L. “Immigration and Terrorism: Moving Beyond the 9/11 Staff Report on Terrorist Travel.” Washington, DC: Center for Immigration Studies. http://www.cis.org/articles/2005/kephart.pdf; Lee, Matthew T. Crime on the Border: Immigration and Homicide in Urban Communities. New York: LFB Scholarly Publishing, 2003; Lichtblau, Eric. “Prosecutions in Immigration Doubled in Last Four Years.” New York Times. September 29, 2005; MacDonald, Heather. The Illegal-Alien Crime Wave. city-journal.org. http://www.city-journal.org/html/14_l_the_ illegal_alien.html; Malkin, Michelle. Invasion: How America Still Welcomes Terrorists, Criminals and Other Foreign Menaces to Our Shores. Washington, DC: Regnery, 2002; Maricelli, Enrico A. “Drug Related and Economic Crime Among Unauthorized Latino Immigrant and Other Arestees in California.” Journal of Ethnicity in Criminal Justice 2, no. 3 (2004): 23–52; Martinez Jr., Ramiro. “Coming to America: The Impact of the New Immigration on Crime,” in Immigration and Crime: Race, Ethnicity and Violence, edited by Ramiro Martinez Jr. and Abel Valenzuela, 1–19. New York: New York University Press, 2006; Martinez Jr., Ramiro, and Abel Valenzuela, eds. Immigration and Crime: Race, Ethnicity and Violence. New York: New York University Press, 2006; Martinez Jr., Ramiro. Latino Homicide: Immigration, Violence and Community. New York: Routledge, 2002; Martinez Jr., Ramiro, and Matthew T. Lee. “Social Organization Revisited: Mapping the Recent Immigration and Black Homicide Relationship in Northern Miami.” Sociological Focus 35 (2002):363–380; Martinez Jr., Ramiro, Mathew T. Lee, and Amy L. Nielsen. “Segmented Assimilation, Local Context and Determinants of Drug Violence in Miami and San Diego: Does Ethnicity and Immigration Matter? International Migration Review 38, no. 1 (2004):131–157; Miller, Teresa A. “By Any Means Necessary: Collateral Civil Penalties of Non-U.S. Citizens and the War on Terror,” in Civil Penalties, Social Consequences, edited by Christopher Mele and Teresa A. Miller, 47–66. New York: Routledge, 2005; Rumbaut, Ruben, Roberto G. Gonzales, Golnaz, Komaie, and Charlie V. Morgan. “Debunking the Myth of Immigrant Criminality: Imprisonment Among First—and Second-Generation Young Men.” Washington, DC: Migration Policy Institute. http://www.migrationinformation.org/USfocus/display.cfm?ID=403; Rumbaut, Ruben, Roberto G. Gonzales, Golnaz, Komaie, Charlie V. Morgan, and Rosaura Tafoya-Estrada. “Immigration and Incarceration: Patterns and Predictors of Imprisonment among First—and Second Generation Young Adults,” in Immigration and Crime: Race, Ethnicity and Violence, edited by Ramiro Martinez Jr. and Abel Valenzuela, 64–89. New York: New York University Press, 2006; Sampson, Robert J., Stephen W. Raudenbush, and Felton Earls. “Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy.” Science 277(1997):918–924; Scalia, John, and Marica F. X. Litras. Immigration Offenders in the Federal Criminal Justice System, 2000, Bureau of Justice Statistics Special Report. Washington, DC: U.S. Department of Justice. http://www.ojp.usdoj.gov/bjs/abstract/iofcjs00.htm; Simon, Rita J. Public Opinion and the Immigrant: Print Media Coverage, 1880–1980. Lexington, MA: Lexington Books, 1985; Tancredo, Tom. “Cui Bono? The Case For an Honest Guest Worker Program.” Texas Review of Law and Politics 10, no. 1 (2005):63–83; Tanton, John, and Wayne Lutton. “Immigration and Criminality in the U.S.A.” Journal of Social, Political and Economic Studies 18 (1993):217–34; U.S. Committee for Refugees and Immigrants. “MARA SALVATRUCHA: MS-13.” http://www.refugees.org/uploadedFiles/Investigate/ms-13.pdf#search=’M ara%20Salvatrucha; U.S. Department of Justice, Office of the Inspector General. The September 11th Detainees: A Review of the Treatment of Aliens Held On Immigration Charges in Connection With the Investigation of the September 11th Attacks. Washington, DC: U.S. Government Printing Office, 2003; U.S. General Accounting Office. Information on Criminal Aliens Incarcerated in Federal and State Prisons and Local Jails. GAO-05-337R. April 7,

Cultural Assimilation 2005, Washington, DC; U.S. General Accounting Office. Homeland Security: Justice Department’s Project to Interview Aliens After September 11, 2001. Washington, DC: U.S. Government Printing Office, 2003; U.S. General Accounting Office. Criminal Aliens: INS Enforcement Activities, GAO/GGD-88–3. Washington DC: U.S. Government Printing Office, 1987; Waters, Tony. Crime and Immigrant Youth. Thousand Oaks, CA: Sage, 1999.

Judith Ann Warner CULTURAL ASSIMILATION If a person holds on to their ethnic cultural heritage, can they be an American? Culture is at the heart of debates about assimilation. This concern is centered around whether immigrants will identify as American and the degree to which they will adopt mainstream culture, especially speaking the English language. Mexican and other Latino immigrants are the largest and the most controversial group entering the United States. They are the subject of debate because of high rates of both legal immigration and undocumented border crossing. Because they maintain a strong sense of ethnicity and traditional culture (multiculturalism) people question what place they will find in American society. Critics of multiculturalism fear that the nation will become divided and that a shared culture will no longer unite people. Usage of the term Balkanization, which refers to the history of conflict in Eastern Europe from World War I to Kosovo, signifies a fear that our nation could split into separate groups with separate nations. This is of greatest concern in the Southwest, an area with a large Latino population abetted by a steady flow of legal and undocumented Mexican and Latin American immigrants. In response to these fears, immigrant advocates point out that immigrants are not crying out for separatism but simply want to be accepted as equals while they warn that the Americanization process can cause a loss of self-worth if no value is attributed to immigrant culture. BACKGROUND Assimilation and Multiculturalism Assimilation is a multidimensional concept that refers to various cultural and social structural processes. The term Americanization refers to cultural changes and social structural incorporation, such as achieving integration into the economy, that occur as immigrant groups adopt American social patterns and achieve social mobility. Assimilation turns newly arrived ethnic groups into insiders. Popular views of assimilation have defined it is an intergenerational process. We are exposed to many images of Americanization over the generations in the media, such as movies like My Big Fat Greek Wedding. Many native-born Americans believe that immigrants should culturally assimilate through such actions as learning to speak English. The actual process is difficult and different for every immigrant group. Many ethno-racial groups have maintained a degree of cultural pluralism. In the twentieth century, cultural pluralism was defined as the ideology of promoting maintenance of ethnic culture. For example, German Americans maintained their culture by speaking

| 155

156

|

Cultural Assimilation

German from colonial times to World War I, which brought a pragmatic decision to assimilate to speaking English due to a desire to disassociate themselves from the former homeland. Cultural pluralism can mean becoming and remaining bilingual across generations. Because of the cultural diversity of both new and old immigrants, cultural pluralism began to be displaced in the late twentieth century by the concept of multiculturalism. Although cultural pluralism could involve maintaining a separate ethnic society within a society, multiculturalism is different. It stresses ethnic cultural continuity, the incorporation of respect for ethnic heritage, and knowledge of ethnic heritage within the mainstream American culture. A dispute has developed about whether immigrants should adopt the Anglo Saxon core culture and speak only English or retain ethnic cultural competence. This dispute is sometimes referred to as the culture wars. The multicultural position is that the ethnic cultural heritage and the language of current and past immigrants is worth learning about both in public and private education. Conservatives believe that American values and the great books and culture of the Western tradition should be emphasized in education. The dynamic on which cultural assimilation is based is changing. This change has major implications for the acceptance of new immigrants and the degree to which they will be able to attain economic mobility in this society. Three-Generation Model of Assimilation In the mid-twentieth century, both liberals and conservatives embraced a model in which immigrants were expected to culturally and structurally assimilate in three generations. What became known as the three-generation model explained a process of intergenerational assimilation as follows: (1) firstgeneration immigrants often experience difficulties or do not want to give up elements of their traditional (sending country) culture, although they may be accepted into the U.S. labor market and minimally assimilate; (2) secondgeneration individuals, the children of immigrants, attend school and attain English fluency while maintaining competency in the native country language to communicate with their parents; (3) The third generation, the grandchildren of the original immigrants, may feel an attachment to ethnic culture, but they are integrated into mainstream American culture. Second-generation immigrants are often bilingual and bicultural (having knowledge of two cultures). The second generation can maintain a sense of ethnicity or peoplehood based on common ties to other immigrants from the same sending country and may achieve a degree of socio-economic mobility. The third generation is often monolingual and mono-cultural (having only one culture) and historically has become structurally integrated into the middle class or higher. Historians agree that Northwestern and Southwestern European immigrants, particularly those who came between 1880 and 1924, have been culturally and structurally assimilated into American culture to a high degree. They adopted English and became Americanized over the course of three generations and are considered a part of the mainstream population. Nevertheless, members of specific

Cultural Assimilation

ethnic groups such as the Italian Americans have not lost a sense of ethnicity. Their sense of group membership is referred to as symbolic ethnicity because of its lack of traditional cultural content. Because of the pattern of assimilation established by European cultural groups of the first and second great migration streams, the three generation process has been considered the rule; groups that do not follow it are considered the exceptions and a cause of controversy. Indeed, as the United States continues to change in the twenty-first century, the process of assimilation may take longer to complete or groups may not assimilate. Instead, they could maintain cultural pluralism, keeping a degree of cultural and structural separation from the mainstream society. The Traditional View of Assimilation Often theories which seem universal are strongly impacted by the specific socio-historical context in which they were developed. Milton Gordon, a midtwentieth-century sociologist, developed a theory of assimilation conceptualizing the process of immigrant adaptation. His theory was anchored in 1950s and 1960s social thought and circumstance, which included postcolonial AngloAmerican cultural and economic dominance. Milton Gordon and contemporary conservatives assume that societal organization is based on traditional patterns that meet population needs. Immigrants are expected to adapt to American society’s version of the process of assimilation and not vice versa. Anglo-American culture was originally based on: English language, the Protestant religion, and English legal and governmental practices that were kept after the United States became an independent nation. Anglo-American is an ethnic term used by Gordon and other academicians to refer to both the descendents of English settlers and Europeans who adopted the Anglo culture. The term is misleading because contemporary ‘Anglos’ are actually of many different European nationalities. It is now used to refer to mainstream Americans who are culturally assimilated, but these people are not all Anglo Saxon Protestants and, in fact, include Catholics, among other religious denominations. Gordon’s theory assumes that ethnic and racial minorities will learn AngloAmerican culture and attain socioeconomic mobility. His theory was unique because he divided assimilation into eight sub-processes that an immigrant group must pass through in order to achieve cultural and then full structural integration. The eight sub-processes, which he conceptualized as stages in a linear progression, include: (1) cultural assimilation (individuals change their cultural beliefs to conform to those of the host society), (2) secondary structural assimilation (large-scale participation in host society institutions, including the labor market, schools, neighborhoods, public recreation, and civic life), (3) identificational assimilation (acquiring a sense of identity based exclusively on the host society, such as identifying oneself as American), (4) attitude receptional assimilation (host society members do not express prejudice or negative attitudes towards members of the immigrant group that is being incorporated, and the dominant group accepts the immigrant minority as full members of society), (5) behavioral receptional assimilation (host society members do not

| 157

158

|

Cultural Assimilation

discriminate or take negative actions against immigrant minorities and there are no indirect consequences of institutional policies—a factor now conceptualized as institutional discrimination), (6) primary structural assimilation (host society members accept and interact with immigrant minority members in cliques and groups), (7) civic assimilation (shared values and incorporation into the power structure, through for instance the voting process and political participation, have occurred), and (8) marital assimilation (host society members and immigrant minority members freely intermarry, and no stigma is attached to intermarriage). All of these terms are useful for conceptualizing types of assimilation, but use of the terms has changed. The model on which they are chronologically ordered is also problematic. Today, academicians do not always differentiate between secondary structural economic integration and primary structural integration into friendship groups, clubs, and so on. Instead, they refer to structural integration. They have fully critiqued how Gordon conceptualized the progression of cultural and structural assimilation in relation to the new immigration without abandoning the term assimilation. Gordon assumed that each sub-process would occur at a different rate, although all of the eight types of assimilation would be co-occurring. Gordon assumed that his stages of assimilation were directional, continuous, and unilinear—a process that has been contradicted by the social experience of many national origin groups that have either maintained elements of their traditional culture or have not been fully accepted. Historically, assimilation has been viewed as a clean break from the homeland, but that was before mass transport and communication. Today, transnational ties persist. In the past, the acculturative transformation was centered on a homogeneous Anglo American culture. Today, this attitude would overlook the presence and contributions of other ethnic cultures in a globalized and partitioned economy. Immigrants may have co-ethnics, or members of other immigrants groups, as their neighbors. In this environment, multiculturalism emerges and is valued. Immigrants often live in social environments far removed from the Anglicized middle class. Finally, Suarez-Orozco points out that a progressive assimilation moved from: good (first generation) to better (second generation) to best (third and fourth generations). There was a bias towards preserving only an enhanced mainstream culture. Gordon predicted that mainstream cultural assimilation would be rewarded by structural assimilation in the third generation. Unfortunately, the postindustrial economy has stagnant sectors, and health, educational achievement, and even aspirations may decline. The ability of earlier immigrants to pull themselves up by their bootstraps was fostered by a growing industrial economy that has been globalized and displaced. Today, highly educated immigrant professionals may make a fast transition while less-educated immigrants may not progress out of poverty or remain working class. At this point, it is important to understand that a theory is both an explanation and a set of predictions—it is not the same as reality. For example, African Americans were considered by Milton Gordon to be culturally assimilated, but due to prejudice and discrimination, many have never reached full structural

Cultural Assimilation

| 159

and marital assimilation. Only with the passage of the Civil Rights Act of 1964 and the executive order for Affirmative Action, have African Americans made greater progress in socio-economic structural integration. The candidacy of Barack Obama, who is multi-ethnic and multi-racial, in the 2008 Presidential Election was a milestone for blacks in America. In applying Gordon’s concepts to the new immigration, Suarez-Orozco emphasizes that it is important to recognize that new immigration is divided into two subsets. The knowledge-intensive sector attracts highly skilled and educated immigrants who will live among the middle class and have children who are high educational achievers. This sector does not take three generations to achieve social mobility. The other sector of immigrants is unskilled with a low level of education. Often without documents and sometimes refugees, they live in impoverished inner-city neighborhoods and work at jobs with low pay, no benefits, and little promise for socioeconomic mobility. Segregated neighborhoods with underperforming schools expose their children to risky behaviors: delinquency, drug use, and early sexual activity. As a result the second and third generation may not advance. Unfortunately, the Americanization offered in segregated, low–income, inner-city neighborhoods may include negative attitudes toward schooling and exposure to delinquent behavior. This is not what immigrant parents want, and they resist, but this negative acculturation could be an avenue toward stagnation or downward socio-economic mobility by the third generation. Before rejecting the idea of welcoming these immigrants, however, it is useful to consider their shared values of hard work, the importance of family,

ANTI-ASSIMILATIONIST IDEOLOGIES A lasting fear held by the native-born American mainstream population is that a very concentrated, numerically large immigrant minority or contained group (Native Americans, African Americans, Mexican Americans) will not accept assimilation and want to split off. In fact, the United States has experienced periods of separatist and secessionist ideology without ever realizing a split. The term separatism refers to a system of beliefs based on the assumption that dominant and subordinate groups in a society should live separately. Unfortunately, separatism was imposed as a policy when American Indians were placed on reservations and Africans Americans were segregated under the post–Civil War Jim Crow laws in the South. Ethnic groups may co-reside but they have never claimed a separate territory. Secession is a form of separatism in which a group advocates complete separation or withdrawal from society. The Marcus Garvey movement in the 1920s did lead to some African Americans emigrating to the nation of Liberia in the hopes of better treatment. In addition, both the Hopi and the Seminole Indians represent themselves as sovereign nations and do not officially recognize the U.S. government’s claim to them, although they cooperate with the federal Bureau of Indian Affairs. It is of interest that, in the twenty-first century, there are Anglo supremacist groups, including survivalists, who have separated and would like to break off (secede) from the rest of society. They believe that cultural diversity threatens their way of life.

160

|

Cultural Assimilation

and optimism. We cannot be certain that their future is blocked, and one can see ways for improving their chances for success through expanded educational and economic opportunity. Gordon’s theory provides a useful set of concepts for talking about assimilation—if assimilation is the goal. In a multicultural society, there are alternatives to cultural assimilation, and the trajectory of various new immigrant groups is uncertain. When immigrant parents encourage their children towards biculturalism (knowledge of two cultures) and bilingualism, it keeps them united with their parents and away from negative Americanizing influences. In deteriorating inner-city environments, asking immigrant children to give up their culture weakens ties with parents and can lead to alienation. In other words, a linear progression towards mainstream assimilation and a break with ethnic tradition could be a recipe for disaster for today’s immigrants. THE BICULTURAL ASSIMILATION OPTION The Civil Rights movement of the 1960s and related ethnic movements promoted ethnic identity and culture. The multiculturalism movement evolved out of this movement. Proponents of multiculturalism devalue the ideas of assimilation and praise bicultural competencies. In the 1980s university, corporate, and media-elites began to champion multiculturalism and doubted the basic decency of Americans who rejected it. But today this idea is in decline along with the ethnic studies programs in universities that it fostered. In a globalizing world, biculturalism among new immigrant groups remains an ideal. Nevertheless, the fact that immigrant replenishment is occurring, both legal and undocumented, promotes retention of traditional ethnic culture. Cultural Assimilation by Addition One issue with traditional ideas about assimilation is the idea that individuals will want to undertake monocultural assimilation (giving up their traditional immigrant culture for American mainstream culture) and that assimilation is the only path for immigrants. Americans have traditionally viewed assimilation as a subtractive process. The immigrant gives up their national origin and ethnic culture for the American core culture. This assumption overlooks the possibility of additive assimilation. McLemore and Romo refer to this alternative as cultural assimilation by addition; cultural patterns of the host society are selectively adopted and patterns of ethnic group culture are selectively kept. This type of assimilation results in biculturalism and bilingualism. Researchers have not fully uncovered the social circumstances in which additive assimilation can persist past the second generation, but a co-ethnic community could be a factor. In the United States, the likely third-generation outcome would be monolingual English speakers assimilated to their core cultures. McLemore and Romo recognize that there are two paths to assimilation and that other factors impact social mobility outcomes. While recognizing that conflict occurs between a majority culture and immigrants incorporated as culturally

Cultural Assimilation

pluralistic minorities, they introduce a more sophisticated and positive understanding of the situation. CRITICAL THOUGHT ABOUT MAINTAINING AN ANGLOAMERICAN CULTURAL CORE The debate about assimilation is often marred by stereotypes and too little information. Academicians use the term Anglo conformity to refer to a perspective that, objectively, a core Anglo-American mainstream culture exists. This concept is based on principles adopted with the unification of the 13 colonies into the United States. The ideology of Anglo conformity matches the idea of cultural assimilation by subtraction of the original immigrant ethnic culture and has been the official policy of the United States. In the late twentieth century, groups such as Official English, which sought to speed assimilation by substitution by making English the official language of the United States, mobilized to promote this ideology and process. More dramatically, there are conservative thinkers such as Pat Buchanan who fear new immigrants will swamp American culture and replace it with dozens of conflicting cultures, diminishing national unity. Among all groups, Mexican Americans who have maintained a cultural tradition replenished by Mexican immigrants, have been the most attacked for their cultural pluralism in an increasingly multicultural society. The American Creed and American Culture. A basic concept of transition to U.S. citizenship is that there is an American creed, based on political principles, that must be adopted. The ideas of the U.S. Constitution and the Bill of Rights are central in this creed. The degree of emphasis on specific cultural origins of this creed varies. Tamar Jacoby, a conservative political scientist, writes that an abstract and minimalist set of principles represents this creed. Samuel Huntington, a controversial Harvard historian who has been accused of being a nativist (hostile toward immigrants), advocates Anglo conformity and presents it as a maximalist set of principles. He writes: Most Americans see the creed as the crucial element of their national identity. The creed, however, was the product of the distinct AngloProtestant culture of the founding settlers. Key elements of that culture include the English language, Christianity, religious commitment; English concepts of the rule of law, including the responsibilities of rulers and the rights of individuals; and dissenting Protestant values of individualism, the work ethic, and the belief that humans have the ability and the duty to try to create a heaven on earth, a “city on a hill.” (2004a, 31–32) English Language. Huntington believes that Latino immigration will create a culturally bifurcated society in which both English and Spanish will be national languages. In other words, he does not foresee a bilingual and bicultural society that approaches assimilation by addition to the immigrant ethnic culture. Instead, he predicts language conflict and separatist tendencies.

| 161

162

|

Cultural Assimilation

White Anglo Protestant Roots vs. Alternative Roots. For Huntington, the creed has specific Anglo Protestant roots. The ideal of Anglo conformity and an American creed is based on national pride and a devaluation of other world cultural traditions. Huntington writes: Would the United States be the country that it has been and that it largely remains today if it had been settled in the 17th and 18th centuries not by British Protestants but by French, Spanish or Portuguese Catholics? The answer is clearly no. It would not be the United States, it would be Quebec, Mexico or Brazil. (2004a, 32) If we were to critically think about the above assertion, it is inflammatory and not subject to verification. Quebec is one among many provinces of Canada, but it is predominately French-speaking and has historically been in a relationship of subordination with English-speaking Canada. It is thought that Quebec’s linguistic differentiation has put them at a disadvantage in terms of structural integration with the rest of English-speaking Canada. Nevertheless, in a close vote, Quebec elected to remain a part of Canada. Placing a multicultural emphasis on French maintenance has also encouraged bilingualism and appears to be helping Quebec to advance as a part of Canada. After 1848, Mexico lost the California gold fields and much of the southwest to the United States, which had military superiority. Today, Mexico is economically subordinated to the first world powers, laboring under a massive debt. Can we say that, given the same resources as existed in the contemporary Southwest, Catholic Spaniards and Mexicans would have been unable to advance? This assertion is not verifiable, as we cannot change history or rule out the impact of global inequality on present-day outcomes for developing regions and countries. It is Huntington’s rhetoric which is compelling, not the impossibility of testing his assertion with historical evidence. Because of his attack on Latino immigration, Huntington has been accused of being ethnocentric. Ethnocentrism is the belief that one’s culture is superior to all other cultures. Given the many contributions by individuals from other cultures and their cultural traditions to American society, including Latinos, there are pundits and academicians who disagree with Samuel Huntington. Mexican Immigrants. Samuel Huntington represents Mexican and Mexican American culture as antithetical to the Anglo-Protestant creed. He cites Jorge Casteneda a conservative Mexican, as attributing the following characteristics to Mexican culture: “differences in social and economic equality,” and the manaña syndrome (putting it off until tomorrow). These are traditional American stereotypes of Mexico and Mexicans. Today, Mexico’s changing economy and the resilience of its people, citizens, and immigrants, may change public perception. By examining these cultural attitudes more closely, one can see they reflect the attenuation of opportunity caused by living in extreme poverty and necessity of coping. Mexico is an upper-middle–income, developing country with the twelfth largest economy in the world (World Bank 2007). It has major divisions between a small ultra-wealthy elite, a small middle class, and a vast lower-socio-economic

Cultural Assimilation

group. Because of the North American Free Trade Agreement (NAFTA) and remittances from Mexican immigrants in the United States, the World Bank indicates that the number of people living in extreme poverty in the general population decreased from 24.2 percent in 2000 to 17.6 percent in 2004. In rural areas, the number decreased from 42 percent in 2000 to 27.9 percent in rural areas in 2004 (El Universal 2005). Severe income inequality is still a problem in Mexico, but the figures indicate that Mexicans are not waiting until tomorrow (manaña) to do something about it. In another attack on Mexican culture and Mexican Americans, Samuel Huntington quotes Sosa saying, “little use for education” hinders Latino achievement. Once again, in making a decision about an immigrant ethnic culture, it is best to examine what the beliefs and actions of the authors rather than accepting statements that may be stereotypes at face value. In order to critically evaluate these assertions, it is necessary to examine research on Latino culture and values that illustrates Latinos’ belief in the American dream and Latino parents’ desires for their children to become educated and upwardly socially mobile. Swail and fellow researchers found that parental expectation that their children would get a bachelor’s degree increased the children’s chances for receiving a degree by 46 percent. The unfavorable difference in completion of high school and college by Mexicans and other Latinos has more to do with social structural obstacles such as problems with public school funding than their parent’s aspirations for them. Velez found that lower socio-economic status, having only one parent, and living in disadvantaged, often segregated neighborhoods are stronger predictors of educational achievement (or lack thereof ) than Latino or Mexican ethnicity and cultural attitudes. Race and Historical Primacy. Although Anglo-conformity has been official policy in the United States, the history of socially constructing racial difference through pigmentation and other physical features has made it harder for nonwhites to achieve full acceptance. For example, Mexicans were involuntarily incorporated by conquest through the U.S.-Mexico War of 1848. Afterwards they were labeled a brown race, and prejudice and discrimination were the lot of the Creation generation (individuals involuntarily incorporated into the United States by the U.S.-Mexico War of 1848). Historical primacy predicts that Mexican Americans would be less likely to assimilate. A group has historical primacy if the land was originally theirs, and they had a preexisting culture and social structure. This example refers to the fact that Spanish and Mexicans were in the Southwest first. In the midst of considerable replenishment of Mexican immigrants in the Southwest, this cultural tradition has consistently received new life into the twenty-first century. This does not mean, however, that Mexican Americans and Mexican immigrants are not impacted by American culture. Carlos Velez-Ibanez saw Mexican American group membership as follows: We are a synthesis of myriad experiences—pan-human, multicultural, and multisocial. During the course of history, such experiences and continuing experiences are added as layers of meaning, layers of orders, layers of different and shared understandings, and, as a result of such

| 163

164

|

Cultural Assimilation

experiences and the discarding of layers we constantly ‘become.’ This is another way of saying that culturally we are neither Mexican nor AngloAmerican, but we are of the North American continent in a technologically complex society, with a complexity of experience of moral orders. (1979, 47–48) The past structures the present. In contemporary society, inner-city and rural blacks, Native Americans and Mexican Americans, among others, still face issues in socio-economic integration related to past and present issues of prejudice and discrimination. Certain new immigrant groups, including Mexicans, Central Americans, and Haitians, have had a hostile reception, particularly because of their connection to undocumented immigration and their generally low level of education and skills. As a result, they have sought to preserve certain aspects of ethnic culture while they were under attack. Despite encountering resistance, Mexican Americans and Mexican immigrants are following the same transition as earlier immigrant groups toward speaking English and adopting many aspects of mainstream culture by the third generation. THE MELTING POT AND MULTICULTURALISM The melting pot, or integration of elements of immigrant culture into American culture, is not the same as multiculturalism. Multiculturalism, a term with no set definition, implies that there are persisting elements of immigrant ethnic culture that may not come to be universally shared. It places an emphasis on respecting the ethnic origins of cultural elements that came from outside the Anglo Saxon core and may never be within it. Multiculturalism is a term associated with both the humanities and social sciences in academe and bilingual education. Both multiculturalism and the ideology of cultural pluralism advocate indigenous and immigrant groups adapting to the Anglo national culture keeping many or all of their original core cultural elements. This idea generates much controversy because it could make the United States a multi-ethnic and multicultural, diverse society in which the native-born members of the Anglo, core-culture group could have a reduced degree of social power and, presumably, a more commensurate share of the economic pie than the disproportionably large slice they control now. Cultural Hybridity. The idea of the so-called melting pot is premised on hybrid culture. Hybridity is a concept in which all ethnic or national-origin cultures contribute to a product that is more than the sum of its parts. In a rapidly globalizing world, the idea of a national melting pot is becoming more diffuse because Americans are influenced on a daily basis by ideas and products from many countries. Globalization has brought the integration of economic markets, expanded international travel, and communication and consumer consumption of international goods. In order to stay economically competitive, the United States may need to cultivate a knowledge of hybridity and adapt to it. We have been taught that the United States is a melting pot in which many peoples and cultures have contributed. Americans do not always differentiate

Cultural Assimilation

between whether it was a complex melting pot or a selective Anglo conformist package. Samuel Huntington (2004a: 32) writes, “Contributions from immigrant cultures modified and enriched the Anglo-Protestant culture of the founding settlers.” The melting pot ideology was a recombinant ideal of how indigenous, immigrant, and original European groups would develop a hybrid culture incorporating beneficial elements of all cultures. Although Americans believe that we are a melting pot, this ideal has been more often advocated than achieved in practice. When Huntington prioritizes the Anglo Protestant contribution and acknowledges a Catholic contribution, he takes no notice of how Mexican and Mexican American culture has influenced the United States. A definitive study of the elements of the melting pot has not yet been undertaken. The melting pot model is a utopian ideal in which assimilation is achieved through a pattern of complex cultural incorporation rather than by emergence in a dominant group’s culture. If this ideal had been achieved in the United States, as we are led to believe, Anglo American culture would not dominate, and groups, including African Americans, would be considerably more socially intertwined and intermarried. Yet although the United States is not a true melting pot, some minority cultural contributions have entered the mainstream. For example, the English language has changed in terms of word incorporation and grammatical patterns as it has evolved as a hybrid language. English has remained the dominant language while absorbing words from tacos to hamburger. What is more American than the food described with the German-derived word hamburger? American citizens are accepting of multiculturalism as long as it does not go past the point of food, ethnic holidays, and music. Richard Alba and Victor Nee, sociologists, characterize the mainstream approach to multiculturalism as laissez-faire. If an ethnic custom does not require any major change in native-born citizen belief and lifestyle, it is tolerated. Alba and Nee suggest that acceptance of ethnic cultural traits reflects values of individualism rather than abandonment of the expectation of assimilation. This view is strongest with respect to learning the English language. The native-born expect new immigrants to learn English and tend to support bilingual education only to the extent that it transitions students towards speaking English. Despite some melting, many Americans identify themselves, at least symbolically, as a member of a particular ethnic group and/or race rather than as multiethnic, multiracial, or without a racial identification. Similarly, the cultural and technological contributions of immigrants have been absorbed into a tale of Anglo-Protestant triumph without recording the diverse cultures and religious traditions which contributed to the United States’ present-day cultural capital. Did Anglo-Protestants truly invent America and its current global superpower status—or has there been a lot of unacknowledged borrowing? German scientists Werner Von Braun and Albert Einstein (Jewish), Asian and South Asian American computer designers and programmers, etc., have technologically enriched American culture. The actual history of the United States is more complex than the Anglo Conformity model.

| 165

166

|

Cultural Assimilation

America as a Universal Nation Ben Wattenberg, a policy analyst with the American Enterprise Institute stresses that the new immigration has brought together immigrants from so many cultures and nations that we have become universal. His view is that immigrants help to globalize America, making us more competitive. Samuel Huntington (1998) spoke of a “clash of civilizations between the modernized West and developing nations with traditional cultures.” Although we see evidence of a religious clash between Judeo-Christians and certain traditional Muslim sects, there is much less evidence of a global technological clash. Instead, there is a desire for sharing of technology and the global interconnection that sharing will bring. Wattenberg believes that immigrants provide a form of public diplomacy, spreading ideas about democracy, economic efficiency, and freedom. Immigrants can transmit these values to their sending countries and universalize American culture while blending elements of their ethnic cultures into U.S. society.

REVISIONIST VIEWS OF THE SIGNIFICANCE OF THE AMERICAN CREED National Identity. As mentioned, Tamar Jacoby feels that American national identity has been based on a minimalist ideology with the potential for transformation. The U.S. Constitution and the Bill of Rights offer unifying ideas. “All men are created equal,” individual achievement is more important than inherited status, all citizens are equal before the law, and that the government should prevent the majority from dominating minorities. The idea of equality in our founding documents implies universality and that democracy would involve all of the people. The American ethos was initially very abstract. After independence, it was understood that neither blood nor ancestry defined an American. Before the evolution of mainstream culture and normative rules, a sense of identity based on ideas of liberty began to define Americans. Ideas about speaking English were added later. The political system was what united newcomers. National holidays such as Independence Day and George Washington’s birthday, folklore, and symbols such as the flag are the basis for American national unity. St. Jean de Crevecoeur stated that the American “new man” was “leaving behind him all his ancient prejudices and manners.” Instead, receiving “new ones from the new mode of life he has embraced, the new government he obeys, and the new rank he holds.” Despite this optimism, uniting the native-born and immigrants has never been an easy transition. America’s history has been one of repeated nativist (antiforeigner) reactions, and survival through the melding of people of different ethnic backgrounds. Tamar Jacoby indicates that this contradictory history has continually re-introduced the value of tolerance into our cultural background. Immigrants with an early history of rejection are accepted today; today’s new immigrants are likely to be accepted tomorrow.

Cultural Assimilation

Emergent Common Humanity Assimilation does not mean the negation of true identity. Stanley Crouch emphasizes that American culture is constantly changing. Giving up one’s ethnic identity and culture has been viewed as a way of selling out and losing authenticity, but cultural change allows America to adapt to new immigrant cultures. There has always been an element of immigrant cultural incorporation in assimilation to a changing mainstream culture. The essence of the melting pot, to the limited degree that it has been realized, is cross-cultural borrowing. This leads to a commonality of expectations partially led by the consumer culture. The 1997 Report to the U.S. Commission on Immigration Reform took a warm and welcoming attitude towards immigrants. The Commission emphasized immigrant contributions: “to its vibrant and diverse communities; to its lively and participatory democracy; to its vital intellectual and cultural life; to its renowned job creating entrepreneurship.” Shteyngart stresses the American tradition of tolerance that allows the immigrant first generation to learn some English and to adopt basic values in order to be accepted. American culture, however, has become a global culture with many elements adopted from immigrant groups. America attracts immigrants because of its promise of upward mobility and fairness. In this global framework, native-born Americans need to assimilate to a changing culture as well. CONCLUSION Will multiculturalism cause the United States to eventually split apart? Native Americans living on reservations might already feel that they were forcibly separated, and this feeling has been a factor in maintaining their culture. Does attributing value to knowledge of other languages and cultures in a globalizing world threaten to reduce the value of American mainstream culture, or does it make the United States more globally viable? Can mainstream Americans tolerate multiculturalism and create a diverse society in which all groups come together as equals? Although there is no evidence that the United States is breaking up today, immigrant population concentration in the Southwest and states like California may bring greater political power and a voice. Both the Republican and the Democratic parties cultivate the Hispanic vote. Will this immigrant replenishment population change mainstream culture, or will it become abandoned and isolated? Assimilation is proceeding, but the political and economic outcomes are not yet known. See also Bilingualism; Social Mobility References: Alba, Richard, and Victor Nee. Remaking the American Mainstream: Assimilation and Contemporary Immigration. Cambridge, MA: Harvard University Press, 2003; Alvarez, Rodolfo. “The Psycho-Historical and Socioeconomic Development of the Chicano Community in the United States,” in The Mexican American Experience: An Interdisciplinary Anthology, edited by Rodolfo de la Garza, Frank D. Bean, Charles M. Bonjean, Ricardo Romo, and Rodolfo Alavarez, 33–56. Austin: University of Texas Press, 1985;

| 167

168

|

Cultural Assimilation Buchanan, Pat. State of Emergency: The Third World Invasion and Conquest of America. New York: Thomas Dunne, 2006; Casteneda, Jorge. “Ferocious Differences.” Atlantic Monthly 276 (July)(1995):71–76; Chavez, Linda. Out of the Barrio: Towards a New Politics of Hispanic Assimilation. New York: Basic Books, 1992; Crouch, Stanley. “GooseLoose Blues for the Melting Pot,” in Reinventing the Melting Pot: The New Immigrants and What it Means to be American, edited by Tamar Jacoby, 271–283. New York: Basic Books, 2004; El Universal. “Baja pobreza en México de 24.2 a 17.6%: Banco Mundial”, El Universal, August 24, 2005; Gordon, Milton M. Assimilation in American Life: The Role of Race, Religion and National Origins. New York: Oxford University Press, 1964; Haubert, Jeannie, and Elizabeth Fussell. “Explaining Pro-Immigrant Sentiment in the U.S: Social Class, Cosmopolitanism and Perception of Immigrants.” International Migration Review 40, no. 3 (2006):489–507; Huntington, Samuel. The Clash of Civilizations and the Remaking of World Order. New York: Simon and Shuster, 1998; Huntington, Samuel. “The Hispanic Challenge.” Foreign Policy March/April (2004):30–45; Huntington, Samuel. Who are We? The Challenges to America’s National Identity. New York: Simon and Shuster, 2004; Jacoby, Tamar. “What it Means to be American in the 21st Century,” in Reinventing the Melting Pot: The New Immigrants and What it Means to be American, edited by Tamar Jacoby, 293–314. New York: Basic Books, 2004; Jacoby, Tamar, ed. Reinventing the Melting Pot: The New Immigrants and What it Means to be American. New York: Basic Books, 2004; McLemore, Dale, and Harriet D. Romo. Racial and Ethnic Relations in America, 7th ed. Boston: Allyn & Bacon, 2005; Portes, Alejandro, and Ruben Rumbaut. Legacies: The Story of the New Immigrant Second Generation. Berkeley: University of California Press, 2001; Rodriguez, Gregory. Mongrels, Bastards, Orphans and Vagabonds: Mexican Immigration and the Future of Race in America. New York: Pantheon, 2007; Sosa, Lionel. The Americano Dream. New York: Plume, 1998; SuarezOrozco, Marcelo M. “Everything You Ever Wanted to Know About Assimilation But Were Afraid to Ask.” Daedalus 129, no. 4 (2000):1–30; Shteyngart, Gary. “The New TwoWay Street,” in Reinventing the Melting Pot: The New Immigrants and What it Means to be American, edited by Tamar Jacoby, 285–293. New York: Basic Books, 2004; Swail, Walter Scott, Alberto F. Cabrera, Chul Lee, and Adriane Williams. Latino Students and the Educational Pipeline, Part III: Pathways to the Bachelor’s Degree for Latino Students. Stafford, VA: Educational Policy Institute, 2005; Velez, William. “The Educational Experiences of Latinos in the United States,” in Latinas/os in the United States, edited by Havidan Rodriguez, Rogelio Saenz, and Cecilia Menjivar. New York: Springer, 2008; Velez-Ibanez, Carlos. “Through the Eyes of an Anthropologist,” in The Chicanos: As We See Ourselves, edited by Arnulfo Trejo. Tucson: University of Arizona Press, 1979; Waters, Mary C., and Tomäs R. Jimenez. “Assessing Immigrant Assimilation: New Empirical and Theoretical Challenges.” Annual Review of Sociology 31(2005):105–25; Wattenberg, Ben. “Immigration and the Clash of Civilizations . . . or a Solution to It?” The American Enterprise 13(2002):22–24; World Bank. Data and Statistics: Country Groups. http://go.worldbank. org/D7SN0B8YU0; World Bank. Countries Ranked by GDP (PDF). World Bank Report (2007–2004).

Judith Ann Warner

D DEPARTMENT OF HOMELAND SECURITY (DHS) AND IMMIGRATION ENFORCEMENT The terrorist attacks of 9/11 led the federal government to refocus its domestic and foreign policy priorities around national security. One of the most significant outcomes of these new priorities was the creation of the Department of Homeland Security (DHS). However, from its inception, questions were raised about the efficiency and effectiveness of the DHS. Its proponents argued that the United States needed a new, comprehensive counterterrorism strategy, and this required the creation of a bureaucracy that would have oversight over all facets of national security. Its detractors argued that the DHS was simply too big and charged with too broad a mission statement to be effective. BACKGROUND The Creation of the DHS In November 2002 the U.S. Congress enacted legislation that authorized the creation of the Department of Homeland Security (DHS). The DHS incorporated over 20 agencies within its bureaucratic infrastructure. The former Immigration and Naturalization Service (INS) was just one of these agencies (others included the U.S. Coast Guard, the Secret Service, the Federal Emergency Management Agency, and the newly formed Transportation Security Administration). Following this change, the INS was restructured into three departments that reported directly to the chief secretary of the DHS, including U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (CIS), and U.S. Immigration Customs Enforcement (ICE). 169

170

|

Department of Homeland Security (DHS) and Immigration Enforcement

Since its creation, Congress and the Bush administration expanded funding for the DHS. The 2007 Department of Homeland Security Appropriations Act increased funding for ICE by 25 percent and added an additional $1.2 billion for new border-control technology and the training of several thousand more border-control agents. These developments sent a very clear signal that the federal government sees immigration enforcement as a key component of homeland security. But this apparent consensus also obscures the debates that surrounded the creation of the DHS and the controversies that continue to shape the debate over immigration enforcement and national security. The Bush administration’s initial response to the terrorist attacks of 9/11 was to install a Homeland Security adviser position within the Executive Office and to enact legislation that would expand the enforcement powers of federal agencies. It was presumed, however, that there was no need to reconsolidate these federal agencies within a new bureaucracy. Hence, the Bush administration did not act on proposals from Congress for converting the Homeland Security adviser into a permanent Cabinet department. Suggestions to create a new bureaucracy that would consolidate the functions of several federal agencies under the mission of homeland security (as originally proposed by Senator Lieberman) also seemed to be out of the question. Just a few months later, however, the White House produced its own plan for reconsolidating homeland security under a new federal bureaucracy that was far more ambitious in scope than the proposals it had initially rejected. These ambitious plans laid the foundations for the DHS that exists today. Criticism of the DHS Bureaucracy Ironically, the current trend in expert opinion on strategies for civilian defense is closer to the Bush administration’s original stance on homeland security. Many analysts believe that multi-agency collaboration is the most effective way of responding to security threats. This can be broadly described as a network approach, which is focused on partnerships and information sharing between agencies but does not require the creation of entirely new agencies. From this perspective, bureaucratic centralization is problematic because it inhibits the free action of federal agencies and can produce prolonged periods of uncertainty as these agencies adapt to a new chain of authority and a new organizational mission. Critics have also noted that both Congress and the White House used the creation of the DHS bureaucracy to achieve aims that had little, if any, connection to homeland security. The local distribution of DHS funding tended to reflect the political pull of Congressional representatives, resulting in many lowrisk terrorist targets receiving a disproportionately large amount of funding. It has also been argued that the imperative of homeland security may have been used to divert federal agencies from legacy mandates that were at odds with the ideological agenda of White House officials. In addition, the reconsolidation process threw some federal agencies into a tail spin by requiring them to transform their legacy mandates without orienting

Department of Homeland Security (DHS) and Immigration Enforcement

them around a new, clearly defined mission. This weakness became painfully apparent with the Federal Emergency Management Agency’s (FEMA) hesitating response to Hurricane Katrina. According to some critics, this was the most compelling proof that the incorporation of FEMA within the DHS had actually compromised its efficiency and that this failure was symptomatic of deeper problems in the organization of the DHS. Similar questions have been posed about the role of immigration enforcement under the DHS. Unlike the debate surrounding FEMA, there has been no serious speculation about removing immigration enforcement from the DHS portfolio. But there have been a number of questions raised about the way that ICE should enforce immigration laws and how these enforcement practices should (or should not) relate to the overarching goal of homeland security. The sections below explore the various sides of this debate in greater detail. ARGUMENTS FOR LINKING ICE’S MANDATE TO HOMELAND SECURITY Prioritizing Counterterrorism According to some immigration control advocates ICE’s contribution to homeland security is defined, primarily, by the support it provides for counterterrorism operations. They have argued that there is a connection between rising immigration levels, increases in immigrant crime, and the danger of future terrorist strikes. As a result, all forms of migration or entry (including the flow of tourists, business guests, etc.) are seen as providing opportunities for terrorists to enter the United States. Even if they do not result in the apprehension of terrorist suspects, get-tough enforcement practices send signals that could deter wouldbe terrorists and the individuals who might harbor them. Federal-Local Collaboration on Interior Enforcement Advocates of federal-local collaboration argue that the aim of effective interior enforcement is to create a seamless web of surveillance practices. To accomplish this, it is necessary for ICE to work more closely with local and state governments, private employers, and citizen coalitions for assistance in identifying immigration violators. These surveillance practices can be used to facilitate counterterrorism operations, but they also operate under a definition of homeland security, which includes anti-racketeering (focusing on transnational crime syndicates) and controlling unauthorized migration. In this case, the idea of homeland security is broadened to include all forms of immigration enforcement (instead of linking all forms of immigration enforcement to the more specific goal of counterterrorism). Multi-Agency Collaboration for Civilian Defense Multi-agency collaboration is the position on homeland security that has enjoyed the broadest measure of support and resonates with the network arguments

| 171

172

|

Department of Homeland Security (DHS) and Immigration Enforcement

referenced earlier. It is similar, in some respects, to arguments for federal-local collaboration, except that it focuses on enhancing collaborations between ICE and other federal agencies. From this perspective, ICE’s contribution to homeland security is best viewed through the lens of civil defense including: border and maritime security, counter-espionage, research and development for new security technologies, and disaster preparedness. In this regard, immigration enforcement can enhance homeland security by becoming integrated, at all levels, with the entire portfolio of civil-defense projects that have become part of the DHS mandate. ARGUMENTS FOR DISTINGUISHING ICE’S MANDATE FROM HOMELAND SECURITY Civil Liberties Arguments According to civil liberties advocates, the melding of homeland security and immigration enforcement has resulted in major setbacks for privacy and legal rights that are not justified by the benefits they have yielded for homeland security. Examples include the revocation of habeas corpus for immigrant detainees (the right to question the terms of one’s arrest and detainment) by the 2005 REAL ID Act and the broad powers of surveillance authorized by the 2001 USA PATRIOT Act. Instead of weakening the civil liberties of all U.S. residents, the government should find more effective ways of targeting terrorist suspects. This also means that immigration enforcement should not be equated with counterterrorism, since this can be used to justify more aggressive enforcement practices that affect a population much broader than the small number of persons that are deported for terrorism or security-related charges each year. Isolating Immigrant Communities Immigrant-rights advocates and some police departments have argued that the priorities of homeland security, crime control, and immigration enforcement clash at the local level. The vast majority of immigration violators are persons who entered the United States without authorization, but only a small minority of these persons have committed criminal violations. When all immigration violations become defined as matters of homeland security, immigrants are much less likely to volunteer information to local authorities for fear they will be treated like terrorist suspects because they overstayed their temporary visa or because they live in a household that contains undocumented migrants. As a result, the national security approach to immigration enforcement tends to isolate immigrant communities from law enforcement. Diversion from Immigrant Integration Services The incorporation of the immigration system within the DHS has further enhanced the importance of (and funding for) immigration enforcement and

Department of Homeland Security (DHS) and Immigration Enforcement

border security. But it has also diverted attention from federal services that are supposed to assist with immigrant settlement and integration. Some scholars have noted that these programs could assuage public concerns about immigration by helping immigrants with language training and strengthening social and civic ties between immigrant and native-born populations. However, the spotlight has been on immigration as a possible security risk rather than the benefits of funding for immigrant-integration programs. It may be possible to develop new strategies for increasing the visibility of immigrant-integration services, but the security-orientation of the DHS inhibits the organizational vision for these services as well as limiting the kinds of interagency collaborations that could enhance their scope and implementation.

CONCLUSION Despite the ongoing debate over ICE’s role in the DHS, there has been little change in the government’s support for its activities. The most recent DHS appropriations act has continued to increase funding for immigration enforcers, and statements from White House officials continue to make a connection between immigration enforcement, homeland security, and counterterrorism. Meanwhile, immigrant-rights and civil-liberties advocates continue to challenge the legality of many of these enforcement practices, as well as questioning the feasibility of their objectives. For example, ICE launched a new series of workplace immigration raids in both 2007 and 2008, demonstrating that it is ready to get aggressive with employers who hire unauthorized migrants. However, these raids also provided a platform for immigrant-rights activists to highlight the damage that these raids do to immigrant families—especially the U.S. citizen children of unauthorized migrants. In the process, they raise questions about the long term effectiveness of get-tough enforcement and about who really pays the price for the workplace raids that are intended to change the hiring practices of employers. At present, it appears that the movement for get-tough immigration enforcement and immigrant rights are feeding off of each other, creating a perfect storm for future controversies over ICE’s enforcement practices. Of course, at the heart of this controversy lies the question about the ultimate goal of immigration enforcement. Some policy analysts have argued that homeland security is too broad a framework for immigration enforcement and that this designation has been used to justify practices that are arbitrary and excessively punitive. It also bears noting that some of ICE’s counterterrorism objectives are duplicated by the initiatives of other federal agencies that operate outside of the purview of the DHS (a notable example being the FBI’s Joint Terrorism Task Force: FBI 2004). Even so, the alternative approaches to homeland security that have been put forward by the likes of the 9/11 Commission raise similar questions about civil liberties and immigrant rights. Although these proposals tend to be critical of bureaucratic centralization and overly broad mandates, they also call for information sharing practices and federal-local collaborations that are worrisome for

| 173

174

|

Department of Homeland Security (DHS) and Immigration Enforcement

civil liberties advocates. So, even if the DHS decided to uncouple immigration enforcement from homeland security (or change the role that immigration enforcement is expected to play in homeland security), this may have no direct bearing on deportation rates or the kinds of surveillance practices that are used to gather information on noncitizens. This is one reason why we can expect the debate over enforcement, homeland security, and immigrant rights to continue in the years to come. References: Carafano, James, and Jamie Metzl. “Homeland Security Grant Reform: Congressional Inaction Must End.” Heritage Foundation. Backgrounder #1971, 2006; Carter, Ashton. “The Architecture of Government in the Face of Terrorism.” International Security 26, no. 3 (2001): 5–23; Chishti, Muzzafar, Doris Meissner, Demetrious Papademetriou, Jay Peterzell, Michael Wishnie, and Stephen Yale-Loehr. “America’s Challenge: Domestic Security, Civil Liberties and National Unity after September 11.” Migration Policy Institute. http://www.migrationpolicy.org/pubs/Americas_Challenges.pdf; Cohen, Dara Kay, Mariano-Florentino Cuellar, and Barry Weingast. “Crisis Bureaucracy: Homeland Security and the Political Design of Legal Mandates.” Stanford Law Review 59, no. 3 (2006): 673–759; Department of Homeland Security, Office of the Inspector General “Federal Emergency Management Agency’s Volunteers Service Program Following Hurricane Katrina.” http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_07–51_Jun07.pdf; Edwards, John. “Up to the Challenge.” Foreign Policy 135 (2003):52–54; FBI. “FBI Strategic Plan 2004–2009.” http://www.fbi.gov/publications/strategicplan/stategicplantext.htm; Fuchs, Lawrence. The American Kaleidoscope: Race, Ethnicity, and the Civic Culture. Middleton, CT: Wesleyan University Press, 1990; Henry, Ray. “Federal Raid Leaves Mass. Town a Mess.” Associated Press, March 8, 2007; Hing, Bill. To Be An American: Cultural Pluralism and the Rhetoric of Assimilation. New York: New York University Press, 2000; Leiken, Robert. “Europe’s Mujahideen: Where Mass Immigration Meets Global Terrorism.” Center for Immigration Studies. http://www.cis.org/articles/2005/back405.html; Leone, Richard, and Greg Anrig The War on Our Freedoms: Civil Liberties in an Age of Terrorism. New York: Public Affairs Press, 2003; Meyers, Deborah. Homeland Security Department Gets Green Light. Migration Policy Institute. http://www.migrationinformation.org/Fea ture/display. cfm?dtime=1&ID=79; National Immigration Forum. “Proposals to Expand the Immigration Authority of State and Local Police: Dangerous Public Policy According to Law Enforcement, Governments, Opinion Leaders, and Communities.” http://www. immigrationforum.org/documents/TheDebate/EnforcementLocalPolice/CLEARHSEA Quotes.pdf; Nunez, Peter. Testimony before the U.S. House of Representatives Committee on International Relations. Subcommittee on International Terrorism, Nonproliferation, and Human Rights. http://www.cis.org/articles/2004/petertestimony021304.html; Sagarin, Raphael. “Adapt or Die.” Foreign Policy 138 (2003):68–69; Steinberg, James. Statement to the National Commission on Terrorist Attacks Upon The United States. Fourth Public Hearing of the National Commission on Terrorist Attacks Upon the United States. http://www. 9–11commission.gov/hearings/hearing4/witness_steinberg.htm; U.S. 9/11 Commission. “The US 9/11 Commission on Border Control.” Population and Development Review 30, no. 3 (2004):569–574; Voice of America. “Strong Criticism of FEMA Response to Hurricane Katrina.” September 3, 2005. http://www.voanews.com/english/archive/ 2005-09/2005-09-03-voal.cfm?CFID=36266938&CFTOKEN=24546445; White House. President Bush Signs Department of Homeland Security Appropriations Act. http://www. whitehouse.gov/news/releases/2006/10/20061004–2.html.

Philip A. Kretsedemas

Detention Conditions

DETENTION CONDITIONS Many immigrant detainees—including unauthorized entrants, refugees, applicants for political asylum, and individuals held on suspicion of terrorism— entered the United States without papers. This act is a civil offense and not classified as a criminal act; however, even when refugees and asylum seekers present themselves in a legitimate manner and have no criminal background, they are subject to mandatory detention. For example, upon entering the United States, asylum seekers (referred to as asylees) are given the same status as criminal aliens, although international law mandates that they should not be detained and have a right to special treatment. Often these detainees have a long wait before their cases are reviewed. Claims have been made that the conditions detainees are held in constitute inhumane care. Accusations include insufficient space for living quarters, limited medical and mental health services, issues of foreign language and cultural barriers, and physical and sexual abuse while detained. These are problems associated with standard prison management in the United States. Should citizens of another country who are not attempting to enter illegally be detained and treated the same as criminals? What about the human rights of undocumented detainees? Should they be afforded a standard of care that avoids this type of abuse while imprisoned? Often detainee treatment is the same as for criminal imprisonment. Treating detainees as convicts criminalizes them in the eyes of the public and subjects them to abuses that are condemned in international human-rights law. It remains to be seen if immigrant advocacy, legal challenges to the situation, and negative world opinion will bring about more humane treatment of undocumented entrants and asylees.

BACKGROUND OF THOSE DETAINED The United States has a worldwide reputation for welcoming immigrants, and the public is not aware of the large number of entrants who are being detained. Detainment of asylees can occur while their petition for political asylum is considered or, if they were rejected, while they plea for a reversal of deportation. Since May 2006, when President Bush ended the catch-and-release policy, many undocumented entrants have been detained for a period of time before deportation. In addition, individuals who are permanent-resident aliens but have committed a crime classified as an aggravated felony are placed in prison prior to deportation. Mandatory detainment is required when Immigration and Customs Enforcement (ICE) apprehends individuals who fall into one or more of seven categories: (1) aliens who have previously entered without documents (referred to as criminal aliens), (2) individuals considered to be a national-security risk, (3) asylum seekers who do not have documentation (until they can demonstrate that they have reason to fear persecution in the home country), (4) undocumented arrivals subject to expedited removal (deportation without a hearing), (5) other arrivals who appear inadmissible for reasons other than documentation (such as being unable to demonstrate financial means of self-support), (6) persons who have a final order of removal because they committed an aggravated felony, are

| 175

176

|

Detention Conditions

terrorist aliens, or were present in the country without documents, and (7) USA PATRIOT Act mandatory preremoval-order detention of an alien certified as a terrorist suspect by the attorney general. Two individuals admitted under a plea of political asylum, Ramsi Yousef and Almad Ajaj, were convicted of involvement in the first World Trade Center bombing that was perpetrated by terrorists in 1993. After passage of the 1996 Immigration and Nationality Act reforms, the Immigration and Naturalization Service (INS, now ICE) increasingly detained asylees and undocumented entrants of national origin connected to international terrorism. The passage of the 2001 USA PATRIOT Act soon after the 9/11 destruction of the World Trade Center led to the creation of special interest cases—permanent-resident aliens, individuals with visas, or undocumented immigrants suspected of terrorist ties. These individuals can be held on suspicion indefinitely without access to lawyers or family. Basically, the United States clamped down on all people entering without prior documentation. In principle, administrative detainees, such as individuals asking for political asylum, are being kept because they might disappear and fail to show for a later court hearing. Their release is termed parole, but it does not indicate that they have served a sentence for a crime. The ICE district administrator can make a decision to release a detainee, but it is done less and less frequently. Demand has exceeded capacity at ICE processing centers, and detainees are sent to ICE detention centers, county jails, and privately run lockups. Detained asylees never have any certainty about the length of their confinement, and immigrant advocates have documented incidences of abuse. ICE has been criticized for treating detainees as objects to be stored rather than as individuals. The immigration-enforcement bureaucracy maintains that its facilities are more than adequate and that asylee detainees cannot be released or deported until their cases are reviewed for validity. ICE Detention Entering ICE Detention. The Lawyers Committee on Human Rights has alleged that ICE-ICE-detained asylum seekers are put into handcuffs and/or leg restraints when being brought to detention. Once at a detention facility, they are stripped of clothing, and their possessions are taken. They are given prisoners’ attire. Corrections officers use humiliation as a technique of social control. Individuals are placed in large rooms that hold many detainees, typically for three to four months but often for up to a year. Except for being kept in a holding area, this treatment is like that of convicts. During ICE Detention. Welch found that detainee complaints about how they were confined included that they were kept hungry, did not have medical care, and lacked access to an open air yard. Mark Dow, a journalist, investigated INS/ ICE detention centers by obtaining permission to visit and interview asylees. He concluded that all detainees were treated exactly like prisoners. ICE Detention Interviews. After arrival, a political asylum applicant is given a credible-fear interview as a part of establishing her or his case. If the initial

Detention Conditions

interview results in a refusal of political asylum, a detainee can appeal. One appeal is permitted per year, but it may take more than a year for ICE to send a representative for an appointment. As a result of the appeals process, some individuals may be detained for years. Detainees are always offered the opportunity to sign a voluntary deportation order to return to their homeland. Mark Dow thinks it is possible that the appalling conditions of detainment are used to wear detainees down and convince them to sign a voluntary departure order. ICE Detention as a Jail Experience The Krome Detention Center in Miami is used to house unauthorized immigrants and asylum seekers. Guards are armed, detainees are in orange prison uniforms, and gunfire can be heard at a target range where the ICE practices. In the 1990s, when asked why Krome appears to be a jail, Richard Smith, an INS/ICE regional director stated: “That’s because it is a jail, albeit a minimumsecurity jail. The sign outside may say that it’s a processing center, but that’s just semantics” (Rohter 1992, E18). In other words, a person is detained like a prisoner until ICE reviews her or his claim and establishes it as legitimate. A detainee is a criminal suspect until proven innocent. ICE officials maintain that they will be blamed if they release detainees who subsequently commit criminal or terrorist offenses. Jail Detention Because of a shortage of ICE facilities, asylum seekers and undocumented immigrants have sometimes been put in county jails. ICE records do not differentiate between asylees and undocumented immigrants. Guards do not differentiate between criminals and detainees. Detainees are given jail uniforms, eat the same food, and have the same contraband rules. Detainees mix with criminals in commons areas. Human Rights Watch, an advocacy organization, is opposed to ICE detention practice and recommends ending the placement of detainees in jails, an action which they view as evading responsibility for detainee care. Remoteness of Facilities. Asylees and undocumented immigrants alike have been placed in remote detention where lawyers and psychologists are not readily available. Detainees with language and cultural barriers may not be able to communicate their needs. The rural detention centers effectively prevent communication with co-ethnics who may speak the same language and are a way of deterring lawyers and other professionals who could offer assistance. Medical Treatment. Jails are not required to have a doctor, nurse, or medical unit on the premises. They are not even required to conduct an initial health screening for infectious diseases. Inadequate response to symptoms and lack of, or inappropriate, treatment of illness are common and this situation has been extended to detainees. Principle 24 of the United Nations Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment specifies that healthcare should be free of charge, but jailed detainees are required to pay a fee. Human rights organizations have protested this situation.

| 177

178

|

Detention Conditions

No Tolerance and Incapacitation. In the United States, a standard of no tolerance and incapacitation has been set for felony and misdemeanor citizen offenders. This is reflected at the Dallas regional jail in Oregon where Captain Larry Lindhort was in charge. This jail denies television or newspapers and does not have a commissary to purchase small goods. No bilingual officers have been hired. There is limited recreation. Detainees are inside 23 hours of the day. According to Captain Larry Lindhorst, “It’s a no-frills jail. I wouldn’t say jail is an enjoyable stay” (Sullivan 2000a, EV8). This attitude toward making jail or prison time hard time is not reflected by Constance K. Weiss, an ICE administrator at the Krome Detention facility in Miami. She stated: “Why would we want to run a place that beat the hell out of people?”(Tulsky 2000, EV2). In response, Robert A. Wallis, then INS District Director moved certain women detainees from Krome to “a full service, stateof-the-art facility that would ensure those detainees are in the most safe, secure, and humane detention conditions possible” (Tulsky 2000, EV2). Yet Mark Dow’s journalistic investigation indicates that the Krome Detention facility suffers from overcrowding and detainee mistreatment. The ICE Detention and Jail System Pre-9/11 Developments. After 1996, detention became a harsh and indefinite process that produced hunger strikes and some attempts at suicide. Harsh treatment could be a motivator for return to the homeland. Asylum seekers who lost hope because of prolonged detention could sign deportation papers to return to their home country. It is extremely difficult for lawyers and families to contact detainees. Because frequent transfers are common, the ICE system itself makes navigating the process of being detained difficult. The detainees are not told why they are being transferred or allowed to notify lawyers or family about where they will be. Mark Dow indicates that some of these transfers are done on purpose after a detainee has had contact with a lawyer, immigrant advocacy group, or media attention to prevent further contact and negative publicity. Often, the transfers are made at night. Asylees and undocumented immigrants are treated the same as criminals. Types of abuse and problems which have been reported in jails and prison often occur in both ICE detention and jails. A system has developed in which officers can treat detainees in an arbitrary manner, while the ICE gives disinformation to the public. Physical Abuse. ICE detainees are at risk for abuse in the jail/state prison system because there is no inmate classification. In jails and prisons, detainees are mixed with convicted criminals and may be wearing the same uniforms and badges. Physical abuse appears to be common in ICE detention or when the federal government contracts out the housing of detainees to jails. Human rights activists consider this inappropriate treatment of those imprisoned for crime, let alone detainees. When a corrections officer initiates an assault on an individual and beats them severely, the incident may be written up to protect the officer and make the detainee appear guilty. These counter-charges are a way to stop physical abuse

Detention Conditions

from being reported. When applying for political asylum, these reports are used as evidence against the applicant for the purpose of denial. Sexual Abuse. Sexual abuse occurs when female detainees have sexual interactions with corrections officers. Officers may use the promise of release as a way to entice sex. Rape was reported to be common at the Krome detention center in Miami. Segregation Cells. Mark Dow, in American Gulag: Inside U.S. Immigration Prisons, documents detainee testimony that corrections officers put them into segregation at the slightest provocation. In a segregation cell, one individual or, less commonly, two individuals are removed from the detainee population and not allowed to leave for a stipulated period of time. Isolation is a standard threat used to control detainees. Mental Health Services. The long time span required of applicants for political asylum often causes depression. Mark Dow reports attempted suicides and suicides among detainees. Asylees may have experienced torture or other persecution that necessitates therapeutic treatment. ICE detainees are subject to further psychological and emotional stress when they realize that they are to be confined like criminals for an undetermined period of time. Artic1e 22(1) of the United Nations standard minimum rules for detention specifies that at least one correctional employee should be a medical officer knowledgeable of psychiatric protocol. Article 25(2) indicates that the medical officer responsible for mental health should report to the jail director if a prisoner’s mental health is impacted by any aspect of confinement or imprisonment itself. ICE has medical officers at its detention centers but does not require jails to conform to these standards even if an asylee has indicated that they were tortured in their country of origin. Drugs. ICE policy is that no administrative detainee will be medicated for the purpose of restraint. Dow obtained detainee interviews that indicate ICE has used psychiatric diagnosis as a way of getting around the rule that sedation is not to be used for restraint. In effect, a psychiatric diagnosis could be used as a way of tranquilizing an individual for deportation. If an individual is thought to be prepared to use physical force to resist deportation, then—although it is against ICE rules—medical personnel maybe asked for medical assistance in removing a detainee. Lack of Media Access. In order to keep questionable conditions in secrecy, detainees are asked not to give media interviews. Dow speculates that this is done for intimidation and control. Detainees are discouraged from signing standard interviews as a way of maintaining secrecy. INS/ICE Reform In 2000, former INS Commissioner Doris Meissner ordered personnel to use more discretion in the use of detention and removal. She introduced new standards for confinement as well. Her directives emphasize the right of access to legal counsel and the courts, ending strip searches before and after visiting attorneys, improved food, access to communication, and heath care. Doris Meissner has been characterized as too soft-hearted to have run INS/ICE, and her reforms have gone largely unimplemented.

| 179

180

|

Detention Conditions

DETAINEE HUNGER STRIKES In New York, few detainees are paroled. In 1999, some New York detainees who had been held for long periods in a privately run facility owned by Wackenhut, went on a hunger strike. Because detainees are often moved between ICE detention and jails or private prison corporations, they lose their ability to maintain contact with the outside world and are often subject to verbal or physical abuse. Loss of contact makes it difficult for their cases to be heard and detainees have used hunger strikes to try and get the attention of authorities. Detainees report substantial mistreatment. Emmy Kutesa, a Ugandan applicant for asylum, explains why a hunger strike is one of the only meaningful tactics for a detainee to receive attention: Immigration, they’re federal. Wackenhut, they don’t know why you are here. They’re here to keep you here . . . When you don’t eat, they feel worried. You may get sick . . . if you die in their detention . . . they will get it hard to explain why . . . [ They will have to decide] where to take your dead body . . . [ They will have to say] a detainee died because he was demanding parole. (Dow 2004, 112) The Wackenhut detainees gave mistreatment as the reason for their strike; violence against detainees had occurred. More than one hundred, over half of the total New York Wackenhut detainees, refused to eat. A few had been detained for a year or more. The INS/ICE tried to deny the strike and used several tactics to try and control detainees: taking away water and juice, solitary confinement, detainee-leader transfer to other facilities, and threats toward detainees aimed at forcing them to sign deportation agreements. Afterward, the INS/ICE refused to release the location to which detainee leaders had been transferred, stating that asylum seekers need confidentiality. The INS/ICE is able to abuse confidentiality to mask mistreatment of asylees.

9/11 DETAINEE CONFINEMENT The Office of the Inspector General has been critical of the FBI confinement of the 762 initial 9/11 detainees. It charges that New York City detainees were verbally and physically abused by guards, and that the detainees were subjected to handcuffs and leg irons in cells. The cells were lit all night and they were allowed only one phone call a week and one visit a month. Court cases have been brought alleging that Fourth Amendment rights were violated by intrusive body searches, including body cavity searches. The Fifth and Sixth Amendments are alleged to have been violated by denial of access to a public defender. Finally, the First Amendment, which provides for freedom of worship, was infringed upon by restriction of prayer, denial of access to the Qur’an, and non-Halal meals. In retrospect, the almost complete lack of evidence that permanent-resident aliens or undocumented immigrants conspired in 9/11 suggests that President Bush and Attorney General John Ashcroft, with Congressional support, and the INS/ICE overreacted. The treatment of the 9/11 detainees cannot be viewed as an anomaly, because they were suspected terrorists. The Office of the Inspector

Detention Conditions

General was critical of how 9/11 detainees were handled—but the evidence is that harsh treatment is standard practice. DETENTION AND HOMELAND SECURITY Prior to 9/11, the U.S. government maintained that it could not differentiate between legitimate requests for asylum and false requests made by noncitizens who want to come to the United States for economic purposes. Since the first World Trade Center attack in 1993, there has been a concern that terrorists could enter by asking for political asylum. The 9/11 attack was entirely orchestrated by individuals who had entered with legal or false visas and did not follow that pattern, yet permanent-resident aliens and undocumented immigrants have been detained. The Terrorism Threat and Lack of Detention Space Past evidence supports the possibility that terrorists could be released into the United States, because ICE does not have enough space for mandatory detention. Two terrorists used their freedom under international asylum law to remain in the United States to plan and execute attacks. Ramzi Yousef was the planner of the first attack on the World Trade Center in 1993. Yousef arrived at JFK airport in September 1992 and applied for asylum. He was paroled into the United States while his claim was being adjudicated and set up the World Trade Center bombing. Ahmad Ajaj, who tried to enter the United States on a false Swedish passport, helped to plan the attack from his jail cell. After the bombing, the INS actually released him into the United States after he served six months for passport fraud because of lack of detention space. He was released despite the fact that he had bomb making manuals in his possession when he was first detained. THE RIGHT OF ASYLEES TO BE RELEASED Regardless of whether individual terrorists might try to enter under the cover of asking for asylum, asylees are not considered to be criminals under international law, and they are expected to receive special treatment and to be released on their own recognizance. Because of terrorist threat, ICE is uniformly detaining all asylees as if they are false applicants or terrorists until they can establish credible fear of persecution. If asylees are held, the International Covenant on Civil and Political Rights Article 10(1) specifies that persons deprived of their liberty have a right to be treated with respect for their dignity and humanity. ICE detention centers do not provide optimal treatment for detainees, and use of the jail system worsens conditions for noncitizens. Jails are designed for short-term imprisonment of criminals. They create empty time for inmates bereft of educational or job training opportunities. Sleep and watching television are primary activities, and libraries are limited and unlikely to have books in detainees’ languages. Detainees

| 181

182

|

Detention Conditions

LAWSUIT AGAINST DETAINING IMMIGRANT CHILDREN The American Civil Liberties Union (ACLU) has brought lawsuits against Michael Chertoff, the Director of Homeland Security and 16 Immigration and Customs Enforcement administrators. The issue is the detainment of 17 children at the Corrections Corporation of America (CCA) T. Don Hutto Detention Center in Hutto, Texas. In 1997, the case Flores v. Meese was settled by establishing minimum conditions for housing and release of minors detained by the INS/ICE. The lawsuit contended that CCA treated detainees like prisoners. When the ACLU suits were filed in April and May, 2006, there were four major objections to practices in the detainment of children that match standard practice with adults: (1) children were forced to wear prison uniforms; (2) children were given only one hour outside their cell each day, which was seldom out-of-doors; (3) children were detained in small cells for 10 –11 hours per day; and (4) children were prohibited from keeping toys in their cells. Additional objections that match adult treatment were: (1) limited access to medical, dental and mental healthcare that prevents ready treatment of diagnosable illnesses and causes progression of these illnesses; (2) complete lack of appropriate schooling for the children’s ages; and (3) disciplining children by threatening to separate them from their families. Since the lawsuits were filed, ten children named in the first lawsuits have been released in the U.S. or Canada and seven are still detained. This case is being tried in Texas federal court and Judge Sam Sparks indicated that the ACLU is likely to prevail. The 1997 Flores settlement provided for detained children to receive timely release to family members if possible and that they be placed in the leastrestrictive setting available with basic health, educational, and social benefits. The Court has found that, despite taxpayer dollars spent on the Hutto facility, it is not licensed or subject to state regulations for child treatment. The high level of control exercised over all family members, including children, at this secure facility has been criticized. The ACLU is promoting the release of all detained children and opposing the separation of family members. They advocate reasonable supervision rather than confinement. The Corrections Corporation of America (CCA) makes a profit by denying adequate services. ICE has a standard practice of treating detainees as prisoners. To extend this treatment to children raises questions about human-rights practices and whether American democracy is eroding.

are rarely allowed outdoor recreation and, if they are, it is often the decision of a particular officer rather than policy. In 2000, former INS Commissioner Doris Meissner ordered improvement in the conditions of detainment. The basic problem, lack of access to legal rights under the U.S. Constitution or international human rights law, persists. The INS retained prosecutorial discretion, which was passed on to ICE. Since 9/11, the rights of special interest detainees have been further restricted.

Detention Conditions

Detention as a Way of Forcing Voluntary Deportation Mark Dow suggests that detainee life is purposely made miserable to encourage detainees to sign voluntary deportation agreements. Detainee life at the El Paso Processing Center demonstrates how detainees are demoralized. Detainees were locked down in crowded detention rooms for all but one hour each day. They slept with their heads close together and no pillows. Toilet paper had to be requested from a cage officer. Only two meals were given on weekends. Detainees had little access to the small law library. No radios were allowed. Most important, detainees have the right to see a judge within 14 days, and this was violated. There was no certainty as to when a judge would oversee the cases. Detention as a Deterrent to Asylee Entry Asylum advocates believe that detainment is being used to frighten potential asylees from entering the United States. ICE is allowed to treat asylees in defiance of international law, because detainees are powerless and do not have access to due-process rights. Detainees do not have the constitutional rights of citizens. Identifying terrorists trying to enter the United States is a time consuming process, but ICE has reacted with mass detainment of asylees, particularly those from nations identified as posing a potential terrorist threat. Applicants for political asylum with legitimate cases, including children, are not quickly differentiated and remain in limbo, packed like sardines, as the nation protects itself. Warehousing and ICE Detention System Michael Welch, an academic researcher, refers to the ICE detainee handling system as warehousing, because large number of detainees are placed in crowded detention centers or with no access to meaningful activities. This is also indicative of the current emphasis on punishment as opposed to rehabilitation in the conventional prison system. Welch maintains that ICE policy unnecessarily confines many would-be entrants at great expense due to cell-space out-sourcing to public criminal facilities and private corrections corporations. By giving up custody, both ICE and immigrant advocacy groups have difficulty monitoring the status and treatment of the detainees. ICE contracts with many jails and prisons to hold asylum seekers and other detainees. The United States operates with a capitalistic economy in which all businesses, even detention centers, attempt to make a profit. Prisoners can bring $50 or more in federal tax revenues per day. What happens when detention is contracted out to jails and prisons operated by counties and private corporations? City and county jails obtain significant revenue to spend in their communities in return for detaining unauthorized potential immigrants. In a time period when people are resisting new taxes, this allows for additional spending. Of course, thrifty practices such as limiting laundry, feeding detainees a cheap diet, and canceling pest control increase profits. Prison corporations and jails have been known to save money to boost profits in ways that jeopardize detainees’ lives. Reducing or withholding medicine is

| 183

184

|

Detention Conditions

one means. The INS/ICE Manual for workers stipulates that detainees are entitled to certain requests, such as eyeglasses; prison corporations try to avoid compliance, even to the point of speeding up deportation. CCA is the major contractor in private corrections, but its record lists numerous complaints. Dow investigated the ICE’s Houston Processing Center, owned and operated by the Corrections Corporation of America (CCA). Dow notes that the partnership between the ICE and privately-run prison corporations pairs bureaucracies that tend to operate in secrecy. While the INS/ICE maintains that it is open to public scrutiny, CCA tries to avoid it. Privately run correctional corporations are hostile to public scrutiny. For-profit prisons are a multi-billion dollar industry. ICE maintains that detainees are not treated the same as prisoners and inmates, but the distinction is blurred when detainees are locked up, especially in jails or prisons along with actual prisoner inmates. The housing structure, escape risks, and quality of life are similar to that of jails and prisons. In addition, flow (transfer of detainees through a series of detention centers, jails, and prisons) is practiced in order to better control detainees. For-Profit Immigrant Detention Building Boom The Intelligence Reform Act of 2004 authorized up to 40,000 new beds in immigration centers by 2010. The Corrections Corporation of America is expanding a correctional facility in Texas to house families and will expand their operation in Laredo by 772 beds. Other regions for expansion include Florida. In Fiscal Year 2005, ICE had a fiscal shortfall of $500 million. Congress reacted by releasing additional funds to allow ICE 18,500 beds, 517 short of the 2003 level. Congress has acted in the belief that asylees and those entering with false documents and undocumented entrants should be detained before being deported or permitted entrance. After President Bush announced the end of the catch and release policy in 2006, a contract was awarded to create huge tent-like structures called dorm pods for housing detainees in Raymondsville, Texas. Five hundred bunks were made available in three months, and the structures for housing 2,000 were available by September 26, 2006. Each of the ten pods holds 200 detained immigrants in bunks separated into four rooms. Tall barbed wire surrounds the facility, which is located near a county jail and state prison. ICE commissioned many new or expanded prison projects. The end of catch and release meant that Mexican immigrants would no longer be driven back to be released to Mexico at the border. OTM (Other Than Mexican) immigrants had previously been given a notice to appear at an immigration court up to thirty days after their arrest. Most did not return for an immigration hearing and they are now placed in detention. The Department of Homeland Security, which oversees ICE, is detaining both immigrants apprehended at the U.S.-Mexico Border and tracking down individuals without documents in the interior, often apprehending them in workplace raids. El Salvadorians will be detained for the

Detention Conditions

first time since a two-decade old court decision ruling that they were political refugees. Private prison companies that house nonviolent-immigrant detainees realize a high profit margin. While communities may benefit from increasing jobs or by out-sourcing their own cell space, the actual number of high-paid positions is very limited because of a concern for profit, while the number of low-paid correctional officers is the basic work force. Communities do not actually realize many jobs, especially high paying ones from private correctional corporations. Nevertheless, communities have come to count on detainees for additional revenue despite the few jobs these facilities create. Whether corporations and communities should profit from detainment is an important ethical question. CONCLUSION Many procedures put into place after the mid-nineties’ terrorist bombings and the 9/11 catastrophe have restricted the rights of citizens and noncitizens. Noncitizen civil rights, in particular, were heavily impacted. U.S. citizens have yet to experience many direct consequences. The treatment of noncitizens is not in compliance with international legal agreements, and the United States appears heavy handed when treating noncitizens in a manner more often associated with a dictatorship than a democracy. While 9/11 appeared to warrant serious action, the number of active terrorists among U.S. citizens and immigrants at the time was practically nonexistent. Will the way the United States has treated permanent resident aliens and asylees create resentment that results in terrorist reprisal? Can the international community bring pressure to bear on the United States for acting independently and not in concert with international practice? Even before 9/11, the rights of noncitizens were being taken away, and their access to due process under the law denied. The ICE bureaucracy is extremely inefficient and keeps asylum seekers in detention over long periods. Asylees are often denied access to legal counsel and deliberately shifted about to prevent legal advisement. It is more humane to mandatorily detain and quickly deport undocumented entrants and criminal aliens, since it at least allows them to live a greater part of their lives outside captivity. Human rights and immigration advocates consider the major fault of the ICE to be the ability to hold detainees for long periods of time in a system without sufficient long-term capacity. There are many private corporations, cities, and counties eager to profit from federal payments for holding people, and this uncompassionate system is likely to expand. Meanwhile, the ICE prisonindustrial complex is pouring federal money into the hands of private corporations, counties, and jails. There is a desire to hold detainees for profit or additional tax revenue. The detainees become a means to an end for stockholders and a way for citizen’s quality of life to be improved without paying higher property taxes. The President, the Congress, and the Department of Homeland Security have allowed this detainment to occur in order to keep Americans safe. But was this over-done? In the 1970s and 1980s, certain Latin American nations (Argentina,

| 185

186

|

Diversity, Racism, and Xenophobia

Brazil, and Chile) were run as military dictatorships and they disappeared (kidnapped) and executed political dissidents. Evidence has been found in unmarked graves. While the United States does not kill and bury detainees in unmarked mass graves, it does appear that detainees face a living death and are disappeared unless they win their case or agree to voluntary departure. Is the United States committing a state crime? The poorly run and inhumane nature of this captivity must be questioned and improved to meet the needs of noncitizens and citizens alike. We would like to believe we live in a democracy, but we do not if we deny detainees civil rights guaranteed by the Constitution. A beginning would be to re-establish due process of law for noncitizens, but negative public opinion about immigrants will need to change for politicians to change the rules. Another choice would be to allow corporations and communities to profit or gain revenue by creating humane detention centers. Finally, the United States could chose to follow international law by releasing asylees, thus improving world opinion. See also Indefinite Detention References: Brezosky, Lynn. “Companies Make Big Profits From Immigration Jails.” Associated Press. realcostofprisons.org/blog/archives/2006/08/companies_make.html; Camarota, Steven A. The Open Door: How Islamic Terrorists Entered and Remained in the United States, 1993–2001. Washington, DC: Center for Immigration Studies, 2002; Casimir, L. “Asylum Seekers are Treated Like Criminals in the U.S.” New York Daily News, February 16, 2001:EV1–4; Dow, Mark. American Gulag: Inside U.S. Immigration Prisons. Berkeley: University of California Press, 2004; Lawyers Committee on Human Rights. Slamming the Golden Door: A Year of Expedited Review. www.lchr.org; Rohter, L. “Processing for Haitians is Time in a Rural Prison.” New York Times, June 21, 1992: E18; Sullivan, J. “Prison Conditions Severe Even For Jails.” New York Times. October 13, 2000: A1, B5; Tebo, M. “Locked Up Tight.” ABA Journal, November (2000):EV1–9; Tulsky, F. “Detained Immigrants Who Allege Sex Abuse Are Transferred to Jail.” San Jose Mercury News, December 13, 2000: EV1–2; U.S. Department of Justice, Office of the Inspector General. “The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks.” Washington, DC: U.S. Government Printing Office, 2003; Welch, Michael. Detained: Immigration Laws and the Expanding I.N.S. Jail Complex. Philadelphia: Temple University Press, 2002.

Judith Ann Warner

DIVERSITY, RACISM, AND XENOPHOBIA Contemporary Western industrial societies have become multiethnic and multicultural. The massive transformation caused by immigration has occurred at an unprecedented speed. This transformation greatly widened the range of cultural diversity within industrialized societies. At the same time, racial tensions in cities and other social infrastructures increased. Many scholars assert that racism and xenophobia, a fear of foreigners, is on the rise in contemporary industrialized democracies. In a world of increased global migration, racism and xenophobia are at the core of contemporary debates in countries with culturally diverse societies. Since

Diversity, Racism, and Xenophobia

the events of 9/11, there has been an increase in the number of Islamophobic incidents. Many of them include difficulties faced by Muslim women wearing the Islamic headscarf, or hijab, men with beards or caps, harassment in public places, and telephone threats targeted at mosques or at Muslim public figures. Many Americans believe that racism and xenophobia are promoted by individuals and sustained by institutions mainly because of the majority’s power advantage in the economic, social, political, and educational realms. In Europe, the question of immigration has become one of the most significant political and social issues, and calls to limit immigration are often based on racism. Many activists and scholars argue that more resources need to be devoted to counter anti-immigrant xenophobia, which has become one of the major social problems in culturally diverse societies. The issue of immigrant diversity and racism will continue to occupy an important place in political and public debates as we continue our journey through the twenty-first century. SOCIAL HISTORY OF RACISM Racism, which produces acts of discrimination and exploitation, is not a new phenomenon. It has haunted civil societies for centuries. The Spanish and Portuguese spheres of influence in the New World from 1493 to1494 marked the beginning of modern race relations. The capitalist quest for profit caused fundamental changes that resulted in prejudice against minorities, particularly the indigenous peoples. Some scholars argue that racism had its origins among Western Europeans during the sixteenth century, when the rise of nationalist ideology was applied to class conflicts. Racism began to develop in the age of colonialism and imperialism, when Europeans confronted indigenous peoples, who became labeled as nonwhites, in situations of conquest and exploitation. In the aftermath of European expansion and conquest, physical differences that signify cultural inferiority emerged as a central factor in the rationalization of dominance. Classic racist theory predicts that cultural difference is founded in biology. It is now understood that biological races do not exist. We are all one human species. Nevertheless, until the mid-twentieth century, there was little challenge to racist thought. During the Enlightenment and in the religious revival of the eighteenth century racism ideology developed further and spread to the New World. During this time, there was a conflict between the rationality of science and the spirituality of religion. While one end of the spectrum was preoccupied with the rational universe and nature, the other end placed an emphasis on the eternal force of religious emotion and man’s soul. Many enlightened concepts such as human freedom, equality, and justice opposed the intolerance of conservative religious thinking that supported racist ideology. It was against this background that we can trace the emergence of writings about race and racism in the eighteenth century. Alexis de Tocqueville, a young aristocratic French lawyer, came to the United States in 1831 to study its social structure. His ninemonth visit and subsequent reading and reflection resulted in Democracy in America, in which he stated that racism would prove to be the most serious issue for the United States. White supremacy attained its full ideological and

| 187

188

|

Diversity, Racism, and Xenophobia

institutional development in the southern United States during the nineteenth and early-twentieth centuries. Since the sixteenth century, the process of global contact has involved dominance, group physical or cultural differentiation, and ideological rationalization of unequal treatment. Although America has made big strides since the abolition of slavery and with the civil rights movement, it is still far from achieving equal rights. It is, however, quite convincing that racism was the product of several factors, of which colonialism, slavery, and nationalism coupled with ethnic group dominance are some of the most extreme examples. Racism has been a distressing reality of Western society over the centuries, forcing ethno-racial minorities to struggle for power, influence, and equality within the socio-economic infrastructure of the society in which they reside. GROWING GLOBAL DIVERSITY, RACISM, AND XENOPHOBIA The past few decades saw a new dimension in the history of racism without a complete evolution in vocabulary. Contemporary Western societies have become multiethnic and multicultural due to immigration patterns that have become structural phenomena on a global scale. This transformation greatly increased cultural diversity within industrialized societies. Academicians still use the term racism in a context in which prejudice and discrimination occur in reaction to not only physical, but language, nationality, and religious difference. As reference to racial difference is diminishing, issues of national origin, culture, and religious difference are becoming more important. Racism refers to a socially constructed ideology in which visible biological features of groups are thought to predict cultural superiority or inferiority. Contemporary cultural conflict is emerging between secularized Judeo-Christians and traditional Muslims. This is a religious conflict involving people of many different ethno-racial backgrounds. Today, the word Islamophobia is being used to refer to an irrational fear of Islam connected to stereotypes about Arabs and Muslims as terrorist threats. In Great Britain, The Guardian published the opinion that “Islamophobia should be as unacceptable as racism.” The European Union created the European Monitoring Center for Racism and Xenophobia. Significant ethnic minority populations, most of the Islamic faith, are now present in almost every industrialized society. This also means that, in these societies, virtually every minority group has representation in the population, and this trend has ultimately led to a climate for racist and xenophobic movements to emerge on a broader scale. In the evolving academic vocabulary, certain racist or xenophobic movements are now classified as hate groups, and their actions are classified as hate crimes. RELIGIOUS DIVERSITY AND MUSLIMS IN THE UNITED STATES The United States is the most religiously and ethnically diverse country in the world, with more than 1,500 religious and ethnic groups. The country remains

Diversity, Racism, and Xenophobia

dominantly Christian (almost 85 percent claim this faith), but because of immigration, the country’s religious composition is changing. Today, the country is also comprised of Jews, Hindus, Buddhists, Muslims, and other religious minorities. Muslim American Immigrants Muslim ethnic groups have been in the United States since the arrival of Middle Easterners in the early part of the twentieth century. Only in recent years, however, have they emerged as a sizable element of the American society. The current Muslim population is composed of highly educated professionals as well as laborers and unskilled workers escaping poverty and poor economies in their home countries. Muslim Americans now exceed seven million in number and attend over 2,000 different mosques and Islamic centers around the country. Forty-five percent of the American Muslim community are native-born African Americans, and 55 percent are immigrants from South Asia, sub-Saharan Africa, and North Africa. Islam has become the fastest growing religion in America. Conversions are based on teachings from the Qur’an, many of which are beholden to the Jewish and Christian faiths. Racism and Religious Tolerance of Muslims Coping with the rapid growth of religious diversity is becoming a central issue in American political and social life. Sometimes very minor issues, such as a Muslim woman insisting on maintaining her religious beliefs by wearing a hijab and having the right to receive a driver’s license, can spark controversy and criticism. Religious tolerance depends heavily on prevailing societal attitudes and the degree of acceptance by the mainstream. There are however, different perspectives on why racial issues continue to emerge in American society. Racism, for example, has frequently been attributed to ignorance or stereotyping, the tendency of people to generalize a biased attitude towards a whole group on the basis of an unpleasant experience with a single member of that group. Post-9/11 Intolerance The events of 9/11 affected public attitudes about cultural diversity. A January 2002 Gallup poll reported that 60 percent of Americans thought immigration should be curtailed. Public opinion was especially strong against persons of Arab and Muslim descent, who many Americans believed have a connection with terrorists. The fact that a majority of Arab and Muslim Americans denounce terrorism does little to help reduce negative public perception. Studies on the Muslim immigrant communities in the United States describe them as multiethnic and relatively secular, meaning that they are less traditional than fundamentalist Muslims shown in global news stories.

| 189

190

|

Diversity, Racism, and Xenophobia

Muslim Faith and Growth Islam is growing about 2.9 percent per year (religioustolerance.org). This is faster than the total world population, which increases about 2.3 percent annually. Thus, Islam is attracting a progressively larger percentage of the world’s population. Muslims are tied together on the basis of traditions and carry a strong belief in religion, family, and culture. Islam was founded by the Prophet Muhammad in the seventh century and is the youngest of the three monotheistic world religions: Islam, Judaism, and Christianity. The Islamic culture is oriented towards group goals, primarily within the extended family and social network. The Arabic word Allah means God, and Allah Ho Akbar, which Muslims often chant, means God is great. Social Pressure for Muslims to Assimilate In the United States, immigrants have often differed in religion and race. Each group has suffered from racism at one point in history but has gradually, over time, assimilated into American society. For example, Italians and Jews who arrived in the second stream (1889–1924) assimilated and were eventually accepted in American society after being discriminated against and stigmatized during the late nineteenth and twentieth century. The situation of contemporary Muslim immigrants is different because of global pressure due to political and religious issues such as conflict in the Middle East and the wars in Iraq and Afghanistan. The 9/11 terrorist attacks were the worst of their kind and exaggerated worries that Muslims would not be assimilated into the greater American society. Anti-Arab and Muslim Stereotyping and Hate Crimes A social survey done right after the 9/11 attack, however, showed that Arab and Muslims were considered the most undesirable group in American society. Americans believe that Arabs, Muslims, and terrorists have become almost synonymous. Hate crimes and racial incidents skyrocketed in the weeks after 9/11. An Indian Sikh was the first murder victim of the backlash; his traditional Sikh turban and unshorn hair were confused with Osama Bin Laden’s kafieh and beard. Ironically, Sikhs are neither Arab nor Muslim—the identity of most of the al Qaeda terrorists. The Council on American Islamic Relations reports that ignorance is rampant in the United States and is partially responsible for the 15 percent increase in anti-Muslim racial harassment in 2002. Another study reports that during the first six months of 2003, the Justice Department received more than 500 reports of hate crimes against Muslims and Arab Americans. Public Surveillance Undeniably, the USA PATRIOT Act of 2001, which was later renewed in 2005, gave extra powers to the intelligence agencies that curtailed civil liberties and systematically targeted Muslims on the sole basis of their religion. Under

Diversity, Racism, and Xenophobia

this act, government investigators can more easily eavesdrop on Internet activity; FBI agents are charged with gathering domestic intelligence; Treasury Department officials are charged with creating a financial intelligence-gathering system for use by the CIA. Separate from the USA PATRIOT Act, the Bush administration unsuccessfully argued to the Supreme Court that it could detain U.S. citizens and foreign nationals on U.S. soil indefinitely and without access to legal counsel. Defending these programs, President Bush in his State of the Union address in 2006 said, “These programs have helped prevent terrorist attacks. If there are people inside our country who are talking with al Qaeda, we want to know about it, because we will not sit back and wait to be hit again.” In his speech, Bush also declared Islam was a religion of peace and urged Americans to be tolerant towards other religions and religious practices. Nationality and Religious Profiling Many Americans agree with the security measures, but they also believe that these security measures have led to racial profiling of one specific group. Former Attorney General John Ashcroft’s war on terror targeted Arabs and Muslims and put an effective stop to the flow of Muslims into the United States. For example, immediately after 9/11 a Gallup public opinion poll found that support for reducing immigration from Muslim countries jumped sharply from 38 percent in September 2000 to 58 percent in October 2001. However, opposition to immigration dropped to 45 percent in 2004, which reflects the changing American attitude on immigration and the renewed acceptance of cultural diversity after 9/11. Negative attitudes towards Muslims are reinforced by media that highlights Arab terrorists and their activities. To understand the native-born reaction to Islam in the United States, consider the resurgence of global anti-immigrant racial profiling against Muslims and Arabs. An impressive gallery of incidents supports the assertion that racism exists and has caused an increasing amount of tension in recent years. The following incidents illustrate this situation. On July 22, 2005, London Metropolitan Police shot and killed Brazilian citizen Charles de Menezes, a suspected suicide bomber, because he looked like an Arab Muslim. Another article posted on the Saudi-funded website Islamonline. net pointed to an incident in 2006, when 40 American Muslim passengers returning to the United States from Saudi Arabia after the annual Hajj pilgrimage were barred from boarding a Northwest flight from Germany to their hometown in Detroit because of Arab Muslim profiling. In Los Angeles in December of 2001, an American citizen of Middle Eastern descent boarded a plane to New York. He had barely gotten settled in his seat when he was told by the crew that he made the passengers feel uncomfortable. He was forced to get off the plane and was given a boarding pass for the next flight to New York. He filed a lawsuit on the basis of discrimination against the airline, who filed a motion that said because of national security, they are not required to obey civil-rights protection laws. This motion was dismissed on October 11, 2002.

| 191

192

|

Diversity, Racism, and Xenophobia

Anti-Arab and Anti-Muslim Job Discrimination One special concern is the status of Muslims in American society. According to the United States Equal Employment Opportunities Commission (EEOC), after the 9/11 attacks, job discrimination complaints from Muslims doubled from 542 to 1,157 in 2002. Religious intolerance has a negative financial impact on these immigrants. MUSLIMS IN EUROPE Islamophobia is growing due to increasing Muslim diversity in Europe. Throughout Europe, this growing diversity has been perceived in different ways by the general public. Many Europeans consider non-European immigrants as a threat to Europe’s cultural heritage. Islam is often presented as an autocratic and undemocratic faith that is opposed to equality, freedom, and peace. Because of these stereotypes, some people believe that non-Europeans have different views on important issues like democratic values, religion, and gender equality. Religious Intolerance A major concern seems to be whether one should be tolerant towards those who themselves are not tolerant—such as religious extremists. Geert Wilders, a member of the Dutch Parliament, believes that Islam is a threat to Dutch society and goes against Dutch culture, morals, and tradition. One may come across such perceptions in all European countries, and there can be little doubt that acts of terrorism in the United States and Europe reinforce such feelings among many Europeans. In countries like Germany, Switzerland, Benelux, and Scandinavia, the issue of racism is due in part to foreign workers and an enormous increase in the number of persons seeking political asylum. Southern European countries, in contrast, have been for the most part countries of emigration, only recently beginning to receive migrants from Africa, the Middle East, and other developing countries. However, Europe’s new found multicultural identity has not been accompanied by either harmony or equality. In the wake of recent terror attacks in Spain, the United Kingdom, and various parts of the Western world, racism is clearly demonstrated by the growing and disturbing tendency towards rejection of visible Muslim religious practice among the majority population in the West. For example, most Muslim women are not allowed to wear the headscarf in schools. Many Muslims face discrimination when asking for time off for religious festivals. Acceptance of minorities, particularly from the Muslim countries, has been less forthcoming, and calls to restrict immigration are a driving factor in the recent electoral process. Anti-Muslim racism is alarming, because it undermines human relationships that are important for a vital and viable harmonic society. Racism negatively impacts economic, cultural, and political institutions, as well as daily

Diversity, Racism, and Xenophobia

interactions among individuals. The Western democracies have now begun to face race-relation problems as millions of immigrants from different religions and cultures arrive. While these democracies have a long history of being multicultural to some degree, these latest developments have greatly widened the range of cultural diversity, which will in turn continue to breed racism in the coming decades in Europe, the United States, and elsewhere. Social-Psychological and Political Factors in Islamophobia Many scholars relate racism to social-psychological and political reactions to social difference. Irrational fear, perceived threats to power, opportunity hoarding, and the need for multicultural adjustment make racism a problem for society. These are threats that are posed by social behavior and attitudes that are rationalized by specific ideological forms of racism based upon physical, linguistic, religious, nationality, and cultural differences. Most anti-Islamic rhetoric comes from those who often see racist attitudes and behavior freely vented upon ethnic groups who are relatively powerless and often cannot fight back. One need only visit Web sites and other media to witness the Islamophobia that exists in our society. Congressman Peter King, the ranking Republican on the House Committee on Homeland Security, has frequently accused Muslim communities of harboring potential violent extremism. He feels that Muslim religious leaders are too radical and says that 85 percent of Islamic houses of worship today are heavily influenced by extremist ideology. His claim was dismissed by Muslim leaders, who state that there is no indication that radicalism has taken hold in the mosques. Nevertheless, numerous comments reflecting their Islamophobic beliefs made by prominent church leaders such as Rev. Jerry Falwell and Rev. Pat Robertson are broadcast on television and in other public media. Michael Graham, the Washington, D.C. talk-show host, was suspended following criticism by the Council on American-Islamic Relations (CAIR) of his comments linking Islam and terrorism. Graham’s suspension stemmed from characterizing Islam as a terrorist organization. He later explained that when some members of a group conduct terrorism, and the general population of that group does not denounce it, it is our right to conclude that the group, as a whole, promotes it. At the time of the controversy, Graham redeemed himself by explaining that “I have great sympathy for those Muslims of good will who want their faith to be a true religion of peace, but I believe that terrorism and murder do violate the sensibilities and inherent decency of the vast majority of the world’s Muslims. I believe they want peace” (Grahm 2005). Whether intended or not, the leadership positions of these individuals and the anti-immigrant rhetoric delivered by them further fuels the hatred of reactionary elements always lurking in American society. Despite this trend, many public, religious, and activist leaders have come forward in solidarity with Muslims to enhance interfaith understanding and cooperation. The Fiqh Council of North America (FCNA), supported by CAIR and other Islamic

| 193

194

|

Diversity, Racism, and Xenophobia

organizations, issued a fatwa condemning terrorism after Graham’s firing, its first since 9/11. PROMOTING RELIGIOUS TOLERANCE Islamophobia has a strong impact on the U.S. population and a significant effect on the shaping of attitudes towards Arabs and Muslims. For example, in 2003, the FBI created an Arab-American Advisory Committee in Washington so that the Arab and Muslim communities could have “no barriers of mistrust.” The FBI has also been more diligent in investigations of suspected hate crimes since 9/11. On May 18, 2004, President Bush, speaking in Manroe Elementary School in Kansas on the 50th anniversary of Brown v. Board of Education, took a new look at the issue of racism. He argued that the Supreme Court decision to eliminate separate but equal doctrine was fair and just, but that America still had not met the promise of this decision. He appealed to American people to combat racial intolerance with commitment and vigor. Roger Williams, the Archbishop of Canterbury in Great Britain, is the spiritual head of the worldwide Anglican Communion. In 2007, the archbishop received a letter from 130 Islamic scholars calling for interdenominational peace and good will. Williams stated the letter “is particularly important in underlining the need for respect towards minorities in contexts where either Islam or Christianity is the majority presence” (Islamic Republic News Agency 2007). The Archbishop of Canterbury went on to state that “Muslims and Christians together make up well over half of the world’s population. Without peace and justice between those two communities, there can be no peace and justice in the world.” ART AND ETHNIC FREEDOM Postmodernism cross-cultural art developments have highlighted the magnificent history of art, film, and music. Certain postmodernist approaches may even ease tensions in ethnic and race relations by increasing understanding of cultural diversity and showing positive intercultural interaction that promotes tolerance. Art, literature, plays, and folksongs about ethnic groups’ experiences can teach a great deal about cross-cultural customs and norms. Movies like El Norte, which covers two Central American undocumented immigrants’ journey to and life in the United States, take up the issue of whether there is a rational basis for racism and group stereotypes. Another example is Bob Geldof, a famous British singer whose song, We Are the World influenced the dismantling of the black-white segregation system in South Africa called apartheid. His song raised world consciousness of human unity, the inhumanity of segregation, and how race overlaps with social class struggle when a dominant group denies resources to other groups. The art and cultural activities of the late 1980s and 1990s frequently gave a positive spin to minority/majority relationships. They show that racism should be viewed in the context of globalization and postmodernism and not reduced to specific fields, such as economic, power, and political relations within a single society.

Diversity, Racism, and Xenophobia

GLOBAL LEGISLATION AND ANTIISLAMOPHOBIC ACTIONS In March 2008, the Netherlands was severely criticized over incidents of Islamophobia that were written up by the Organization of the Islamic Conference (OIC). The OIC, which is based in Saudi Arabia, set up a research unit on Islamophobia to monitor and document activities perceived as Islamophobic around the world. The organization strongly criticized the film Fitna by Dutch lawmaker Geert Wilders. The organization argued that the film was a deliberate act of discrimination against Islam and Muslims and that it was aimed to provoke intolerance and Islamophobia throughout the world. In Great Britain, the Racial and Religious Hatred Act of 2006 made it illegal to incite hatred against Muslims, Christians, and other religious groups. In the United States, the Council on American-Islamic Relations (CAIR) (whose goals are to enhance understanding of Islam) along with the Associated Press (AP), called Republican Congressman Virgil Goode Jr. Islamophobic, because of his December 2006 letter. In this online letter, Goode criticizes Rep-elect Keith Ellison’s desire to use the Qur’an during the swearing in ceremony as a threat to the values and beliefs traditional to the United States. His response in general is not only an attack against Muslims but also an attack on democratic values. In February 2004, France was accused of Islamophobia when it passed a law on secularity and conspicuous religious symbols that banned the wearing of religious symbols in public schools. The French decision caused a strong outcry from Muslims around the world seeing it as an act of discrimination and a strong violation of the right to practice religion freely. The head of the Party of France’s Muslims, Mohammed Letreche, called the ban “institutionalizing Islamophobia.” In November 2004, a crime-reporting scheme called Islamophobia—Don’t Suffer in Silence was set up in Tower Hamlets, London. Police hoped it would raise awareness of Islamophobia and help them understand the extent of the alleged problem. Through this reporting system, incidents of Islamophobia are taken seriously by law enforcement agencies so they can be handled promptly and effectively. In Germany, a Living with Foreigners campaign was started jointly by the German trade union and employers federations. This campaign was targeted at around one million apprentices in German industry and used training packages and media materials aimed at countering attitudes of intolerance and xenophobia.

ETHNOCENTRISM AS A BASIS FOR RACISM Ethnocentrism refers to the belief in the superiority of one’s own culture and group (Levine and Campbell 1972). In spite of positive developments in combating racism, many Americans argue that ethnocentrism, as a psychological factor, is the basis for the group in power promoting racial bias and maintaining disparity in social conditions. Racism articulates a deep rooted ethnocentrism that appeals to the superiority and inherent proprietorship of certain lifestyles and so-called civilized values. This approach is harmful because, in the twenty-first

| 195

196

|

Diversity, Racism, and Xenophobia

century, we are confronting a period of globalization where we are dependent on each other regardless of ethnic groups and races. Ethnocentrism in all forms has little impact on minorities’ social values and norms, because every group considers itself better than another. Unfortunately, the notion that Western civilization is the best destroys any healthy development of intergroup human relationships. There are many examples of how individuals react to Islamophobia and racial hatred by shielding their group affiliation. Many Muslims change their names to hide their Islamic identity, for example Rashid becomes Richard, Hassan and Hussein become Henry, and Ali becomes Al. Ethnocentrism and Anti-Immigrant Ideology Ethnocentrism, however, has become manifested in the ideologies of rightwing movements in many Western societies, some of which have achieved considerable electoral success. In France, Germany, and Austria, the growing hostility toward Muslim immigrants was one of the reasons behind the electoral gains for many right-wing radical parties in recent years. For example, a radical right-wing political party, Fremskrittpartiet, in Norway gained support for its anti-immigrant rhetoric and agenda on strict immigration policies in the national elections of 2001 and 2005. These immigrants, welcomed during a period of economic expansion of the 1960s and 1970s, became a convenient scapegoat, charged with threatening national security. Sporadic attacks by youth and incidents of arson against minorities have been reported in several European cities. Some may argue that racist attacks emerge from the oppression of the political extreme right; others may argue that they are the result of organizations and parties who propagate extreme messages unhindered. One of the consequences of the resurgence of democratic process after overthrow of communist regimes in Eastern Europe is further escalation of ethnic hatred in these countries. One example would be the attacks against Muslims in Bosnia. Another example would be the attempt of the Serbs to remove ethnic Albanians from Kosovo. European National Identity and Cultural Diversity A recent upsurge of neo-Nazism in Europe is related to problems such as unemployment, increased poverty, and general insecurity. Europe’s identity as a more substantially multicultural continent is still a fragile one. It may have been based on divergent national cultures present in so-called borderless Europe rather than the acceptance of new immigrants. Neo-Nazism has served above all else to highlight the importance of racism as a social and political force which should be dealt with. Western societies must begin to face racerelation problems due to the settlement of millions of immigrants from different regions and cultures. While Europe has a long history of being multicultural to some degree, these latest developments have greatly widened the scope of cultural diversity. As a consequence, there is pressure on the governments for

Diversity, Racism, and Xenophobia

restrictive immigration policies and pressure to retain traditional nationalcultural identities. Certainly, racism has its roots in modern European imperialism, and although slavery and colonialism are products of days gone by, anti-Semitism, religious conflict, and ethnic nationalism have flourished from time to time in the European domain and elsewhere (as we have seen recently in the former Yugoslavia in Europe, Northern Ireland, and in the Middle East between Israeli Jews and Muslim Arabs. Even in countries, like the United States, with the most pronounced and celebrated democratic values and traditions, incidents of racist intolerance have been on the rise since 9/11. For example, there have been incidents in which suspicious-looking foreigners came under the scrutiny of government agencies. Although not racially explicit, the USA PATRIOT Act of 2001 restricted immigration from countries whose citizens are believed to be undesirable and a national security risk. Thus, in order to provide justice and racial equality to minorities and other discriminated-against groups and to promote a sense of shared humanity, it is of vital importance that there be concerted efforts against racism, especially in the political, social, and cultural domains. The Future of Immigrant Diversity in the United States The subject of immigration and racism is controversial and will remain so in the United States. The issue, however, can be fairly argued and debated in two different ways. Multiculturalism proponents value group diversity and believe that immigrant diversity is good for American society, because it gives stimulus to economic growth. They also argue that the United States is comprised of many nationalities and each wave of immigrants has made a contribution to U.S. society with their values, beliefs, and numerous other cultural aspects. These proponents believe that this is the normal pattern of cultural evolution in the United States and it will most likely continue in the future. The opposing argument states that the fabric of U.S. society might lose its so-called American character if non-European and non-Christian immigration is not controlled. Furthermore, some say that these new immigrants will not assimilate into American society because of religious or cultural differences. These patterns have led to both pessimistic and optimistic scenarios about the future of diversity in the United States. There are genuine cases of groups that do not seek cultural assimilation, and usually there are some religious factors involved in their choice. For example, in the case of Jews and Muslims, both believe that their traditional culture and identity are under attack from industrial and technological progress. They find it important to maintain their identity and cultural norms. In addition to this, they also require separate places of worship, as well as supplies of food pertaining to their religious traditions. Some fundamentalists among these groups go even further and demand separate schools for their children. Although integration is a positive development for a multicultural society, these groups are often criticized by right-wingers as a threat to social cohesion.

| 197

198

|

Diversity, Racism, and Xenophobia

Finally, diversity and immigration are important to understand in the context of racism. If racism is related to these concepts and to the existence of ethnic groups and minorities and if this perception of racism is widely accepted, then the struggle against racism has to be continued in the political, cultural, and socioeconomic fields for the years to come. We have now entered into the twenty-first century, and globalization and popularization of postmodern technology such as the Internet, international media, international travel, and communication have made it possible for the world to unite together. A vital step toward achieving harmony and cooperation among the citizens of the world is to promote mutual understanding and appreciation for one another. The challenge here is great and fundamental. Obviously, the coexistence of minority and majority is here to stay. The world needs to sustain cooperation to build effective systems for dealing with diversity and racism. A humane and truly civilized democratic society must strive toward the goal of equality and a meritocratic system of rewards. Unless there is real change in the economic, political, and social structures that maintain and promote racism, the goal for genuine equal opportunity for all will remain unfulfilled. We need constructive and practical steps that motivate us to live together in harmony and peace. Regardless of how we tackle this important issue of our modern era, it will most likely continue to be a major determining factor in the socioeconomic and political lives of both ethnic minorities and major populations in our culturally mixed societies. The United States is not alone in its ethnic and racial problems. These issues in U.S. society are relatively mild compared to that of many European countries experiencing immigrant diversity. Immigrant cultural and religious diversity are more acceptable and respected than at many times in U.S. history. See also Scapegoating of Arab and Muslim Americans References: Bauman, Zygmunt. “Is There a Postmodern Society?” Theory, Culture and Society 5, nos. 2–3(1988):217–237; Bodi, Faisal. “Islamophobia Should be as Unacceptable as Racism.” The Guardian. www.guardian.co.uk/print/0,3858,4833761–103677,00. html; CBSnews.com. Opinion Polls. December, 2004. www.cbsnews.com.Opinion Polls; Coates, D. Rodney “Critical Racial and Ethnic Studies: Profiling, Reparations.” American Behavioral Scientist 47, no. 7 (2004): 873–878; Dawn.com. “UK Law on Inciting Religious Hatred in Force.” www.dawn.com/2007/10/02/top17.htm; EEOC Report. Religious Discrimination. U.S. Equal Employment Opportunity Commission: Washington, DC, 2002; Essed, Philomena Understanding Everyday Racism. An Interdisciplinary Theory. Newbury Park, CA: Sage, 1991; Evans, Martin C. “King Calls For Scrutiny of Nation’s Mosques.” Newsday, September 2007; Ghazi, Jalal. “FBI Establishes Arab American Advisory Committee.” Civil Liberties Digest, April 24 (2003):3; Graham, Michael. “The Tragedy of Islam.” www.jewishworldreview.com/michael/graham072805.php3?printer; Islamic Republic News Agency. “U.K. Archbishop Welcomes Call to Defuse Religious Tensions.” http:// www2.irna.ir/en/news/view/menu-273/0710119761173143.htm; Levine, Robert A. and Campbell, Donald T. Ethnocentricism: Theories of Conflict. Ethnic Attitudes, and Group Behavior. New York: John Wiley and Sons, 1972; McGraw, Barbara A., and Jo Renee Formicola. Taking Religious Pluralism Seriously. Texas: Babylon University Press, 2005; Mosse, George L. Toward the Final Solution. A History of European Racism. Madison: University of Wisconsin Press, 1985; Parrillo, Vincent N. Diversity in America, 2nd ed.

Domestic Violence and Victim Rights Newbury Park, CA: Sage Publications, 2005; Religioustolerance.org. “How Many Muslims are in the U.S. and the Rest of the World.” www.religioustolerance.org/isl_numb. htm; Sada-E-Pakistan. Anti-Muslim Rage in U.S. Hurts Others Too. www.turkishdaily news.com.tr/archives.php?id=33162; Shenon, Philip. “Report on U.S. Antiterrorism Law Identifies Accusations of Abuses.” New York Times, July 20, 2003; Solomos, John, and Les Back. Racism and Society. New York: St. Martins Press, 1996; Tocqueville, Alexis de. Democracy in America. New York: Library of America, 2004; Wrench, J. Managing Diversity, Fighting Racism or Combating Discrimination? A Critical Exploration. Budapest: Council of Europe and European Commission Research Seminar, 2003.

Navid Ghani DOMESTIC VIOLENCE AND VICTIM RIGHTS Many Americans know that domestic violence is a social problem, but they are not aware that it is an issue in immigrant communities that has necessitated the development of a range of legal protections to cover immigrants who do not have the rights of citizens. When immigrant women become naturalized citizens, they are guaranteed the same right to protection from violence as nativeborn women. Protections for both citizens and authorized immigrant women were established by the Violence Against Women Act of 1994. Later, undocumented immigrant women subject to intimate partner violence, who were not given protection from deportation if they were discovered when they reported the abuse, were covered by the Violence Against Women Act of 2000 and the Victims of Trafficking and Violence Protection Act of 2000. Despite Congressional legal actions, there are a lot of questions about whether the United States intends to safeguard the human rights of these women. The most important issue is the failure of the Immigration and Naturalization Service (INS, now Citizenship and Immigration Services [CIS]) to issue guidelines for battered, undocumented immigrant women to receive visas. This failure to act is being contested by a lawsuit that was pending in 2008. Because the expansion of both legal and undocumented immigration is a major issue among voters, there is little sympathy for women immigrants, especially those who are unauthorized entrants, even if they come to escape battering in their homeland. Domestic violence is a serious issue among immigrants, because their cultural attitudes and fear of the police reduce reporting. In particular, undocumented women who are violently assaulted by citizens and temporary legal immigrant residents often lack information that could help them and may feel that they have nowhere to turn because they could be deported and/or lose their children. Providing any type of social services for undocumented immigrants is controversial, but battered immigrant women have advocates. What should be considered is whether an immigrant woman, even if undocumented, has human rights. If so, should the United States follow its own laws and try to overcome barriers to helping provide protection from violence for her and any of her U.S.-born children? The failure of the United States to effectively carry out its own legal initiatives and continue to refine them to protect immigrant women is a controversial issue.

| 199

200

|

Domestic Violence and Victim Rights

BACKGROUND The women’s movement of the 1970s focused on violence against women as one of its major concerns. Domestic violence is now recognized as a criminal offense in every state requiring mandatory arrest of the primary perpetrator—the person who is most violent in the incident. There are many concerns involved in the extension of the right not to be physically assaulted by intimates. First, it has been primarily viewed as an issue involving citizen couples rather than permanent-resident immigrants or undocumented immigrants. Domestic violence advocates began to recognize that immigrant women were impacted by this issue in the 1990s and that they had special needs regarding assistance. One of the first steps was to gain information on the extent of the problem. One survey of married immigrant women found that 59.5 percent experienced domestic violence in their lifetimes. Over 50 percent remained with their abusers (Rodriguez 1995). It became clear to legal advocates and the government that battering was a problem among immigrant women. Impact of Domestic Violence on Battered Women Domestic violence represents behavior used by an intimate to control the spouse or partner. The common elements of domestic violence include not just physical aggression, but emotional abuse, intimidation, threats, economic or other coercion, social isolation, destroying possessions including residency documents, and sexual abuse. A particularly damaging threat, or actuality, is harming or kidnapping children—sometimes by taking them to a foreign country. A circumstance specific to immigrant women is the stealing of her remittances— money she was planning to send to support her children or family in her country of origin. In addition, violent men have used the immigration status of women as a means of controlling them in court cases or to turn the attention of civil authorities away from their violence. A especially effective threat made by assailants of immigrant women is that if she contacts the police or the courts, the abuser will get custody of the children and/or she will be deported. Researchers have found that women’s immigration status is a powerful tool of control by the abuser if the women are not aware of protective measures that can be applied to their situation. Abusive spouses or partners may threaten deportation, not file legalization papers, or withdraw papers as a power and control tactic. This keeps immigrant women in abusive relationships. Research provided to Congress led to the inclusion of special provisions for battered women in the Violence Against Women Act of 2000 despite the opposition that exists to increased immigration (Orloff and Little 1999). Special Visas and Encouraging Undocumented Immigration There are anti-immigration conservatives who see allowing undocumented or temporary resident women who are battered to remain in the United States as promoting more unauthorized immigration. Deportnow.com is an example of an extreme vision of the impact of undocumented immigrants on American

Domestic Violence and Victim Rights

society. They advocate the complete removal of unauthorized immigrants and their families. This viewpoint does not express concern over human rights of immigrants, but gives preferences for protecting U.S. citizens. Since 9/11, it has been hard to devise strategies for issuing special visas to protect victims of violence. Those who support immigration restriction and tougher enforcement are against the special visa system created by various congressional acts. They see it as a set of loopholes for the undocumented that foster more harm than benefit. Even immigration policy critics who would support protection for battered immigrant women do not support special visas, because they believe the entire immigration system needs to be changed. This has placed battered immigrant women in special jeopardy. Nevertheless, prior to 9/11, there was a series of legislative acts intended both to control immigration and help battered immigrant women. LEGISLATION IMPACTING BATTERED IMMIGRANT WOMEN Immigration Marriage Fraud Amendment of 1986 In 1996 an immigration fraud amendment was passed for the purpose of preventing marriages of convenience—unions for the sole purpose of gaining permanent resident status faster. This amendment categorized all immigrant marriages as potentially suspicious and placed women who had become mailorder brides through international services and other legitimately married battered immigrant women at risk. This law required immigrant women married to U.S. citizens or permanent resident aliens to have conditional residency for two years before they could become permanent residents. Ninety days before conditional residency expired, the couple needed to file a joint application to make conditional residency permanent. This requirement created a situation in which a woman who had sincerely entered into marriage could be subject to domestic violence and threats of removal (deportation) by an abusive spouse for up to two years. Knowledge of this problem resulted in the passage of two additional laws. The Immigration Act of 1990 The battered-spouse waiver was created by the Immigration Act of 1990. The act addressed the conditional-residency requirement. If a battered spouse had both paperwork for conditional residency and an application on file to become a permanent resident, she was eligible to receive permanent residency without further participation by her spouse. Needless to say, women whose spouse refused to file any paperwork did not have any chance of leaving an abusive relationship with permanent residency. Violence Against Women Act ( VAWA) of 1994 The 1994 VAWA act protected unauthorized resident immigrant women who had been violently assaulted. The battered-spouse waiver was extended to

| 201

202

|

Domestic Violence and Victim Rights

resident spouses or intended spouses of United States citizens or lawful permanent residents by allowing them to self-petition for lawful immigration status without the knowledge or participation of the abuser. Qualification involved documentation of battering by a citizen or lawful permanent resident, marriage or divorce of the woman within two years of application, and evidence that it would be an extreme hardship if she were deported. Legal Services Corporation funding was made available regardless of the immigration status of the victim. Additional protections included not allowing access to a petitioner’s information by an abuser and not making a decision about granting a visa based solely on an accused abuser’s testimony. There were still documentation flaws in this act: an immigrant woman had to demonstrate extreme hardship despite possible language, cultural, and economic barriers to pursuing a successful outcome. In addition, if they had fled the abuser by returning to their home country, they were not eligible to apply. Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 After the first World Trade Center bombing in 1993, a trend toward withdrawing immigrant rights through legislation began with the war on crime and the war on drugs and became progressively more severe. Previously, a spousal abuse waiver made legal and financial remedies available to women and impacted children. In 1996 the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) and the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) were passed. In concert, these laws cut off access to public benefits for many immigrants and made it harder to become a lawful immigrant. These laws were not meant to harm battered immigrant women, and IIRIRA did contain some provisions to protect them. However, ground was lost in the effort to protect their human rights during the transition to economic independence from an abusive spouse/partner. Violence Against Women Act of 2000 ( VAWA II) VAWA II removed the requirements that an immigrant woman must be a U.S. resident and demonstrate extreme hardship to qualify for a battered-spouse waiver, because they were a difficult combination to prove. In addition, protection was extended to immigrant women regardless of whether they had entered with authorization. Undocumented women do enter into long-term relationships with citizens or permanent-resident aliens who can become abusive. The VAWA II battered-spouse waiver was connected to a new U visa applicable to victims of serious crime, such as domestic violence, sexual assault, and stalking. An immigrant woman needed to demonstrate that she was mentally and/or physically abused, and law enforcement or the judiciary needed to certify that the victim could provide assistance in adjudicating the crime. Importantly, these laws were being refined to reflect the changed perception of the types of action

Domestic Violence and Victim Rights

involved in domestic violence. Research shows that a separated woman is more likely to be a victim of homicide than a coresident women. Law enforcement became aware that the stalking of a separated woman was a significant criminal justice issue, and this form of harassment was classified as a serious crime. Protections extended to citizen women were extended to noncitizen women. Victims of Trafficking and Violence Protection Act (VTVPA) of 2000 The VTVPA of 2000 authorized a maximum of 10,000 special temporary U visas for undocumented immigrant women and children who were victims of human trafficking or family violence, if they would help police and prosecutors by testifying against criminals. Essentially, they were protected from removal. These temporary visas were connected to provisions to gain permanent residency on humanitarian grounds. This new initiative was to supplement the VAWA II battered-woman waiver and extend protection to women abused by boyfriends, wives of diplomats, work-visa holders, and diplomats. As of 2006, not a single U visa had been issued despite the cooperation with law enforcement investigating thousands of cases involving domestic violence, assault, rape, attempted murder, and murder. The federal government did not implement guidelines to issue these visas! A lawsuit has been filed to get the process moving. DOMESTIC VIOLENCE ACTS RELATED TO UNDOCUMENTED IMMIGRANTS Immigration Marriage Fraud Act of 1986 Immigration Act of 1990 Violence Against Women Act of 1994 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 Personal Responsibility and Work Opportunity Reconciliation Act of 1996 Violence Against Women Act of 2000 Victims of Trafficking and Violence Protection Act of 2000

EFFICIENCY OF ASSISTANCE FOR BATTERED IMMIGRANT WOMEN Barriers to Help Much of the difficulty for immigrant women who want to leave abusive relationships is the result of controversial social obstacles that law enforcement and social agencies need to overcome. Immigrant women are often from traditional cultures in which a woman’s role is confined to the household and child care. Because she is a wife and a mother, great importance is placed on raising an intact family. Her family and community is unlikely to support leaving an abusive man

| 203

204

|

Domestic Violence and Victim Rights

and is more apt to tell her that abuse is her lot in life. Often, immigrant women face cultural and language barriers in seeking help as well. In the country of origin, domestic violence may not be considered a crime, and immigrant women are often not aware that they can seek protection. A particular fear of many abused women, not just immigrants, is that if they leave the abuser, they will not be able to economically support themselves and their children. Immigrant women cannot be treated as a unified group, because there are ethnic cultural differences between them that affect the impact of domestic violence. A study conducted in Seattle, Washington, examined nine ethnic-immigrant group communities including Ethiopians, Filipinas, Cambodians, Latinas, Russian, and Vietnamese. The study found that battered immigrant women were both socially and economically marginalized but reluctant to look for help outside their communities. At the same time, they needed social support and assistance from culturally competent service providers (Bhuyan and Sentoria 2005). Research showed that Cambodian, Vietnamese, and Ethiopian immigrant women were conditioned by war in their original homeland to view violence in the home as just one more source of violence. In the Cambodian and Vietnamese communities extended family members were involved in domestic violence. Ethiopian women experienced community pressure to remain with their husbands and to accept a situation of gender inequality in which men were viewed as superior to women. Immigrant communities with first-generation members from traditional cultures have a pattern of verbalizing support for ending the violence, but victims may be pressured to keep the problem inside the community and family and not to look outside for help. This perpetuates domestic violence (Bhuyan et al. 2005). Vietnamese women felt that there was limited awareness of domestic violence in their immigrant community. Marital conflict was perceived as normal and a matter to be kept private within the family. Traditional Vietnamese genderrole socialization places responsibility for maintaining family harmony on the woman. As a result, marital conflict is perceived to be her failure to be a good wife. Acculturative learning about U.S. beliefs brings awareness of how domestic violence departs from marital conflict. One action that Vietnamese women learned to see as abusive was when husbands kept total control of family income, leaving them totally economically dependent (Thorton et al. 2005). Vietnamese culture promotes keeping domestic violence private within the family and the community. Some women respond passively by keeping silent; at the other extreme, a few attempt suicide. As awareness of the idea of abuse develops, women are blamed for the violence because they learned American ways. Speaking out about abuse is considered a shame to the entire family and is discouraged. Nevertheless, some Vietnamese men who become aware of domesticviolence laws moderate their abuse. Ultimately, the Vietnamese women studied often remained with an abusive husband for the sake of the children, to avoid shame, in fear of retaliation, or because of their Catholic belief in maintaining the family intact. Nevertheless, some Vietnamese women do attempt to leave abusive relationships. They stress the need for someone who speaks their language to help them apply for shelter assistance, protective orders and other

Domestic Violence and Victim Rights

forms of assistance. Vietnamese women stressed emergency funds and longterm economic support as important to leaving an abusive relationship. A major issue for immigrant women is that they are likely to be economically dependent on a abusive spouse/partner. Among women over age 16, 53.7 percent are in the labor force and 5.5% percent are unemployed (Grieco 2002). Nevertheless, immigrant women are less likely to be employed and more likely to receive lower incomes than immigrant men. With children, even if they work, they are likely to be economically dependent on male income. This economic inequality can be associated with beliefs about gender inequality. Among Portuguese immigrant women, there are intergenerational differences in recognizing abuse and acceptance of patriarchal beliefs. The patriarchal beliefs that Portuguese women identified included the idea that women were not equal to men, had fewer rights, should obey men, and were responsible for all household tasks. Doing all of the housework is not normally defined as abuse, but exhausted Portuguese women were not able to attend English as a Second Language classes or increase their education and job skills. Both generations of Portuguese women, first-generation immigrants and second-generation adult children supported help seeking on the part of abused women. Domestic violence is a global problem with similar patterns of mistreatment but ethnic cultural groups have culturally-specific responses to abuse within their particular immigrant communities (Barata et al. 2005). Mail-Order Brides A mail-order bride is a woman living in a foreign country who has contracted to emigrate and marry a man with whom they do not have a prior relationship. Needless to say, information about the prospective husband can be limited or misleading. In the Seattle study mentioned above, Russian immigrant women were subject to the most domestic-violence pressure because they were supposed to keep the violence to themselves and not speak to anyone. Many Russian women had entered as mail-order brides and were socially isolated and completely dependent on their husbands. In addition, many Russian immigrant women did not have an accurate understanding of what constituted domestic violence or felt that abuse was normal and that they should tolerate it. As in many traditional cultures, the Russian immigrant women had been socialized to believe that women were not equal to men and that they should subordinate themselves. In addition, while there are laws against domestic violence in Russia, they are not enforced and women did not expect that there would be help available. Although they had been culturally conditioned to accept abuse, the women felt humiliated and were under intense stress. Because divorce was looked down upon in the Russian community, the social isolation and economic dependency they experienced resulted in an intention to keep the family together. In order to stop the violence, Russian immigrants had to gain knowledge of services. Once connected, they were able to make use of a broad range of help. The assistance they initially needed was information about immigration law and how to access domestic violence related services.

| 205

206

|

Domestic Violence and Victim Rights

Because many of the abuse survivors were mail-order brides, the Russian women had some specific suggestions about changing immigration law. They felt that men with domestic violence records should be prohibited from marrying mail-order brides. They wanted women to be able to see the man’s marital and criminal record in advance. Finally, they wanted immigrant women to be provided with information about domestic-violence resources in their own language upon arrival. The state of Washington, where the Russian mail-order brides had settled, has already passed one legal remedy. Women are allowed to see the criminal history of potential husbands and overseas match-making agencies are now criminally liable for harm to mail-order brides. Immigration Law As a Tool for Abusing Undocumented and Transitional Status Women Salcido and Adelman are anthropologists who studied the problems of undocumented or transitional-status Mexican battered women in Phoenix, Arizona through interviews. One pattern they found was the use of temporary status to control a woman through lack of cooperation in gaining legal residency. In one case, a very independent Mexican immigrant woman accumulated her paperwork, deposited it with a friend, and traveled back to Mexico for safety. Leaving the country violated her temporary status. The lack of bilingual INS (now CIS) staff, incompetent lawyers, and the efforts of her husband left her in legal limbo. Her husband could withdraw the legal-permanent-residency petition mandated under immigration law to control her. In another case, the act of crossing the border without papers to escape an abusive male permanent resident jeopardized a woman. He tracked her down and physically assaulted her. Because she was unauthorized, he could abuse her and deprive her of financial support while at the same time, she was threatened with removal (formerly deportation). Because an undocumented or temporary status woman can be removed, she may feel it is not in her best interest to call the police, tell an employer or invite official scrutiny. The woman, her children, and relatives or friends could be vulnerable to deportation. Batterers see calling the police as an act of hostility towards them and may escalate battering or threaten to stop their residency petition. Because the police can contact CIS, the woman is made even more vulnerable to scrutiny. Salcido and Adelman found that battered immigrant women from Mexico try to avoid battering, gain safety, and avoid detection by crossing the U.S.-Mexico border without authorization to join family, or find other means of economic support. Unfortunately, these women may perform sex work, drive without a license, or use fraudulent documents to gain public aid in order to survive. Return proved to be a double edged sword because certain battered women were married to criminals who tracked them, abused them, and involved them in illegal activity, Finally, some women who cross the border legally may become illegal if their husbands refuse to support their petitions for legal residency,

Domestic Violence and Victim Rights

withdraw sponsorship, destroy paperwork, or report her for criminal or immoral acts. Salcido and Adelman make the point that leaving a batterer can increase a woman’s vulnerability. Crossing the U.S.-Mexico border may increase safety but brings the new problem of illegality. They suggest that women who are not eligible for relief be scrutinized and included in an effort to stop the violence by modifying immigration law in order to protect them. Conditions which foster illegality in an attempt to escape abuse leave immigrant women outside the protection of the law. Law Enforcement Protection for Immigrant Victims of Domestic Violence There are major issues in contacting law enforcement that extend beyond traditional cultural practice and lack of knowledge of domestic violence services. If permanent, temporary, or permanent resident immigrant women fear that police contact could result in deportation, they will avoid calling them. In the post-9/11 era, this issue is more important than ever because Congress has taken steps in a series of laws to try and incorporate state and local police forces into enforcement of criminal immigrant law. If Congress crosses the line and gives police responsibility for enforcing civil violations of immigration law, such as first-time contact after unauthorized entry, it is likely to reduce the effectiveness of policing domestic violence in immigrant communities. Assuming that immigrants are informed about their rights, which they may not be, often the first recourse to continued battering is to call the police or be visited by them as a result of a neighbor’s call. If handled properly, this contact is likely to give immigrant women knowledge of available services and protections. A domestic violence survivor often goes to a women’s shelter, one or more times, before deciding if she will break away from her abuser—who may or may not change after legal intervention. Nevertheless, a woman cannot be sheltered forever and the next step can be separation and divorce. The spouse/partner abuser is often reluctant to the point of violence about ending the relationship. As a result, civil protective orders are issued by the courts which forbid the abuser to contact the immigrant woman. McFarlane and nurse researchers studied the effectiveness of these orders. They found that immigrant women were in double jeopardy because they lacked English proficiency, education, and a means of economic support relative to native-born women. Despite this hurdle, protective orders were found to decrease the likelihood of stalking, after three months and six months, to the same extent as for native-born women. An additional issue is unresolvable until a decision is reached about how and when to legalize the undocumented immigration population. The problem is that police action after a domestic violence call can result in deportation of an undocumented spouse/partner. Not all women are ready to break with their spouse by having them deported and some are forced to make expensive arrangements to bring a husband who is a major source of economic support back. In a turnabout, some immigrant women threaten to call the police again if husbands are abusive so that they will be removed.

| 207

208

|

Domestic Violence and Victim Rights

Providing Social Service Help for Immigrant Women Violence Survivors Despite the negative reaction to the volume of immigrants coming to the United States and the issue of whether or not they are authorized, there is increasing advocacy for immigrant women survivors of domestic violence. These women have four types of status in American society: (1) citizen, (2) permanentresident alien, (3) temporary-resident alien, and (4) unauthorized entrants. Social service and advocacy groups in the United States continually try to provide assistance for immigrants with limited resources. One key resource that has been developed is women’s shelters where women and children can be protected and assisted. Unfortunately, there is a shortage of beds in these shelters, and the social isolation of immigrant women and any fear they have of the authorities needs to be overcome before they can enter into the system of aid. Social service, public health, and legal service providers need to understand the social and political factors impacting immigrant survivors of domestic violence in addition to straight-forward cultural competency training. For example, a critical political issue impacting whether an abused woman will seek help is if she fears removal (deportation). Barriers to help for immigrant women survivors that are based on ethnic culture and language can be immediately overcome by providing new immigrants with domestic violence information in their own language upon arrival in this country. Getting the word out to abused immigrant women involves word-ofmouth outreach and advertisements in the media, on buses, in community centers, and on language-specific radio stations. Child, family welfare, and social workers would benefit from training about immigrant family culture, parenting practices, and intergenerational conflict. If service providers understand immigrant cultural norms, they can overcome fear and meet the needs of domestic-violence survivors. Children have needs in the area of care services, education, and recreation as well. Low-cost child care is an issue in this society. Economic support for women, especially to provide for their children, is important in ending an abusive relationship. Low income housing is a priority need, and there is a shortage. Beyond temporary economic assistance, education and job training assistance are needed for violence survivors to lead an independent life. For many immigrant women, progress towards independence necessitates an English-as-a-Second-Language program. Even basic training, such as using a bus or bank, may be needed for these new immigrants. The above recommendations for assistance are almost utopian in nature due to budgetary constraints in this society, but many service providers succeed in overcoming these restraints so as to end abusive relationships and set immigrant women and their children on a path towards independence and integration in this society. It is necessary to consider that political movements to cut off social services to undocumented immigrants negatively impact some survivors of domestic violence as well.

Domestic Violence and Victim Rights

Finally, communities need volunteers to help with immigrant women victims of violence and women’s shelters rely on donated goods and other financial contributions. Even a simple donation of soap and shampoo can make a difference for a woman who had to flee an abusive spouse/partner without time to pack essentials. Adequacy of Legalization Assistance for Battered Noncitizen Immigrant Women The Victims of Trafficking and Violence Protection Act of 2000 lacked regulations for implementation, forms for application, and filing fees. By mid-2006, the only action taken was to issue 5,800 potential U-visa applicants one-year work permits and temporary protection from deportation. Temporary status does not allow them to visit children abroad or legalize their children. A suit was filed in 2005; the Department of Homeland Security was ordered to comply by July 2006 and did not. A second suit was filed on March 7, 2007 in the federal court of San Francisco to compel the Bush administration to follow the October 28, 2000, law signed by President Clinton. A national civilrights group and social-service agency coalition filed for class-action status on behalf of those who would be protected by the act to have it implemented. The lead organization in this lawsuit was Sanctuary for Families in New York City. The suit does not hold United States Citizenship and Immigration Services (CIS) at fault, because they provided temporary relief for 82 percent of applicants. It was instead filed against Director Michael Chertoff and the Department of Homeland Security for failing to implement the law. Sanctuary for Families argues that victims of VTVPA crime are a low priority at the agency. Despite the passage of years of time, CIS maintains that the delay reflects a need to ensure that U visa regulations are adequate. In the absence of U visas, interim procedures were implemented in 2001 for protection from deportation of noncitizen crime victims who cooperate with police. As a result, immigration advocates need to apply to CIS for deferred action status on a case-by-case basis for domestic violence victims once a year. Gardella found that the resultant process was piece meal and strained immigrant advocacy groups resources because of the yearly re-application process. CIS workers also lack a mandate as to what exactly to do about these cases. Constantina Campos is an example of the type of immigrant woman whose case is represented in the class action suit. She began seeking a U visa in 2002 after her husband was arrested and charged with punching her and kicking her down the stairs. Ms. Campos is a Mexican citizen who came without authorization in the 1990s. She has relief from deportation and a work permit for one year. A U visa would have given her three years and a clear channel to apply for permanent residency—if the regulations and paperwork existed. This status leaves her in legal limbo; Constantina Campos has already renewed her work permit three times. In addition, Ms. Campos has no way to legalize her 16-year-old eldest

| 209

210

|

Domestic Violence and Victim Rights

daughter, Luz Maria, who is denied the ability to work or go to college without legal papers. The situation of Constantina and Luz Campos is far from the security promised by the VTVPA law (Bernstein 2007). An even more severe case is that of a woman from Ecuador who cooperated with police after she was beaten by her husband. He was prosecuted and deported to Ecuador, where he is abusing their children, who had never come to the United States. She would be in danger of her life if she returned to Ecuador. The VTVPA law would allow this woman to bring her children to the United States under derivative visas. Her children would be safe after she cooperated with law enforcement, if the law were functioning. The law has failed her so far. This failure also denies this woman and others a range of social services available under the U-visa law.

Failure to Implement the Law Peter Schey, who works at the Center for Human Rights and Constitutional Law in Los Angeles, California as a lawyer, views the failure to set up the VTVPA U-visa system as a violation of the law. One problem is that crime victims who fear deportation fail to come forward, and law enforcement is hampered. Peter Schley indicates that the VTVPA was designed to put violent criminals (including wife batterers) in prison, and failing to support undocumented witnesses to testify hinders violent crime law enforcement (Bernstein 2007).

Consequences for Reporting Domestic Violence It is probable that many undocumented battered spouse/partners and other violent crime victims will not come forward because deferred action status is an unknown. Victims do not have a set of rules as to how they will be treated and they fear that they could be ultimately deported despite their cooperation. This defeats the purpose of the law—to protect battered women.

CONCLUSION The United States has entered a mire in which the size of the unauthorized population, negative public reaction to extensive immigration, and issues of homeland security have resulted in relative neglect of policy for battered immigrant women other than the VAWA battered-spouse waivers. There are many controversies to be addressed concerning the reform of immigration laws, the implementation of Congressional intent, extension of humanitarian relief to battered women from other countries (such as Mexican undocumented women), the ability of law enforcement to police immigration law and criminal law effectively at the same time, and the ability of the loose web of social services for battered women to meet the needs of immigrant women. The cause of stopping the violence among those new to this society still has its advocates,

Domestic Workers in the Private Household Economy | 211

but draconian changes in immigration law could roll back the rights of battered immigrant women and make them victims of the war on terror. References: Barata, Paula C., Mary Jane McNally, Isabel N, Sales, and Donna E. Stewart. “Portuguese Immigrant Women’s Perspectives on Wife Abuse: A Cross-Generational Comparison.” Journal of Interpersonal Violence 20, no. 9 (2005):1132–1150; Bernstein, Nina. “Special Visas for Women Remain Elusive Despite a Law.” New York Times, March 7, 2007. http:// www.nytimes.com/2007/03/07/nyregion/07visas.html?ex=1330923600& . . . &emc=rss; Bhuyan, Rupaleem, Molly Mell, Kirsten Senturia, Marianese Sullivan, and Sharyne Shui-Thorton. “ ‘Women Must Endure According to Their Karma’: Cambodian Immigrant Women Talk About Domestic Violence.” Journal of Interpersonal Violence 20, no. 9 (2005):902–921; Bhuyan, Rupaleem, and Kirsten Senturia. “Understanding Domestic Violence Resource Utilization and Survivor Solutions Among Immigrant and Refugee Women: Introduction to the Special Issue.” Journal of Interpersonal Violence 20, no. 9 (2005): 895–901; Crandall, Marie. “ ‘No Way Out’: Russian Speaking Women’s Experience With Domestic Violence.” Journal of Interpersonal Violence 20, no. 9 (2005):941– 958; Dutton, Mary Ann, Leslye Orloff, and Giselle Aguilar Hass. “Characteristics of Help Seeking Behaviors and Service Needs of Battered Immigrant Latinas.” Georgetown Journal on Poverty, Law and Policy 7, no. 2 (2005):245, 259, 295–299; Gardella, Adriana. “U.S. Challenged on Immigrant Women’s Legal Limbo.” Women’s eNews. March 27, 2007. www.womensenews.org/article.cfm/dyn/aid/3110; Grieco, Elizabeth. U.S. in Focus: Immigrant Women. Washington, DC: Migration Policy Institute. www.migrationinforma tion.org/USfocus/display.cfm?ID=2; McFarlane, Judith, Ann Malecha, Julia Gist, Kathy Watson, Elizabeth batten, Iva Hall, and Sheil Smith. “Intimate Partner Violence Against Immigrant Women: Measuring the Effectiveness of Protection Orders.” American Journal of Family Law 16, no. 4 (2002):244–252; Orloff, Leslye E., and Rachel Little. Somewhere to Turn: Making Domestic Violence Services Accessible to Battered Immigrant Women. A ‘How To’ Manual for Battered Women’s Advocates and Service Providers. Washington, DC: Ayuda, Inc., 1999; Rodriguez, R. “Evaluation of the MCN Domestic Violence Assessment Form and Pilot Prevalence Study.” Clinical Supplement of the Migrant Clinicians Network (1995):1–2; Salcido, Olivia, and Madeline Adelman. “ ‘He Has Me Tied with the Blessed and Damned Papers’: Undocumented Immigrant Battered Women in Phoenix, Arizona.” Human Organization 63, no. 2 (2004):162–163; Thorton, Sharyne Shui, Kirsten Sentura, and Katherine Sullivan. “ ‘Like a Bird in a Cage’: Vietnamese Women Survivors Talk About Domestic Violence.” Journal of Interpersonal Violence 20, no. 9 (2005):959–976.

Judith Ann Warner

DOMESTIC WORKERS IN THE PRIVATE HOUSEHOLD ECONOMY The past four decades have witnessed substantial changes in U.S. immigration policy. While the 1965 Immigration and Nationality Act ended racially discriminatory entry criteria, progressively more restrictive legislation was passed in the 1990s, and the United States has not had a legalization program since the Immigration Reform and Control Act of 1986. This has run parallel to increasing wealth inequalities between countries, which has favored the exit of millions of men and women from poor nations in order to work in countries like the United States. Due to growing border restrictions, migrants are increasingly entering

212

|

Domestic Workers in the Private Household Economy

the country and staying in it without the proper documentation, and they often occupy the lowest and most vulnerable sectors of the labor market. The domestic work sector is one of the worst-paid and most weakly regulated sectors of all. It is no coincidence that it is mostly occupied by poor immigrant women of color. The call for an improvement of their conditions, both in terms of their employment and their immigration status, has collided with a countrywide push for further restricting the entry to the country and the rights of undocumented immigrants. Politicians neglect this issue because domestic work is devalued. At issue is how higher-income households will take care of their families and how domestic workers will deal with low income and separation from their own families (often their own children) while enduring working conditions that can be abusive.

BACKGROUND Devaluation of Domestic Work Paid domestic work has historically been done by poor women of color in the United States. Today, it is increasingly being organized within an international system in which immigrant women of color from poor countries provide care for families in the developed world. Domestic work has always been treated as a noneconomic activity performed by housewives for free, where no economic value is produced. Even when these tasks have become remunerated, the traditional cultural devaluation of the work depresses wages and working conditions. As the government retreats from many of its social responsibilities for ensuring child care, immigrant women compensate for the void left in these areas. In high-income countries, the economy requires women’s participation in the labor market, yet neither businesses nor the government make up for the necessary— formerly free—labor lost at home. Partly due to the lack of national response to this situation, middle-class families in countries like the United States hire immigrant women from developing countries to do this work for them. This labor transaction from developing to developed countries is triggered by growing levels of poverty and unemployment overseas. Women from developing countries, as well as men, are increasingly leaving their homes—and often their children—to go overseas and provide for their families. Despite high demand for immigrant domestic workers and their importance for the maintenance of the economy, the United States does not have an immigration program to regulate their entry and provide them with protections. According to the U.S. Census, service workers in private households numbered 718,000 in 2000, 757,000 in 2002, 764,000 in 2003, and were estimated at 790,000 for 2004. Over 92 percent of these workers are female (U.S. Census, 2003). The data shows a steady increase in this occupation. This increase is likely even more accentuated than the numbers show, if one takes into account that a lot of these jobs are done by undocumented women, who are often not registered by official statistics. Domestic work opportunities are growing as an aging baby-boom generation is entering retirement and simultaneously an increasing number of working and

Domestic Workers in the Private Household Economy | 213

middle class women have been joining the workforce for the past few decades. This process increases the need for paid workers to take care of the elderly and children as well as the housework that stay-at-home mothers used to perform for free. The Gap between Immigration Policy and the Need for Domestic Workers Although the past decade has seen an increasing emphasis by U.S. immigration policy on employment-based visas to cater to the needs of the economy, these programs have usually targeted the technology and health-care sectors and other professional occupations. No program regulates the entry of overseas reproductive labor (family work related to child care and household maintenance allowing the next generation). A key factor behind the lack of an immigration program for domestic and care work has been the U.S. Department of Labor’s lack of recognition of the shortage of local or state workers in this sector. This has taken place despite the Health and Human Services Department 2003 report indicating that by 2050 the United States’ demand for caregivers would multiply by three: from 1.9 million workers in 2000 to 6.5 million fifty years later. Due to growing inequalities between rich and poor countries, as well as an increasingly strict immigration policy, thousands of people enter the United States in an irregular manner every year. The U.S. Government Accountability Office estimates that since 1992, there have been between 400,000 and 700,000 undocumented entries into the country each year. Many immigrants have entered without authorization; others have stayed beyond the specified period after legal entry with a visa or green card or have violated the terms of legal entry. Many domestic workers are undocumented. In 2006, the Pew Hispanic Center estimated that the undocumented population in the United States ranged from 11.5 to 12 million people. These figures have been supported by the U.S. government. The Pew Hispanic Center (2006) indicates that 57 percent of this population comes from Mexico, 24 percent from Central America, 9 percent from South America, and 4 percent from Asia. The Feminization of Migration The past two decades have also witnessed a feminization of global migration flows. Women are migrating more than in the past, both by following after male family members and as independent household heads. Families and entire communities have become dependent on having their daughters enter the global circuit of labor. Female migrants often find themselves falling into the underground economy and remaining undocumented for long periods of time. These are some factors behind the strong presence of undocumented immigrants, particularly women, in the domestic work sector, which, given the nature of the workplace and the labor itself, is not strictly regulated. Since these workers do not have immigration and labor authorization, they are more vulnerable to abuse and exploitation. For example, Irma Martinez, who traveled from the

214

|

Domestic Workers in the Private Household Economy

Philippines to the United States on a tourist visa twenty-two years ago, worked as a domestic worker and nanny for a family. Through 2005, she worked sixteen hours a day, seven days a week. She earned about $100 a month, or less than $4 a day for the first ten years and about $400 a month thereafter. She was often verbally abused. Her employers did not allow her to leave the house or be seen by nonfamily members. In addition, her employers constantly made threats that they would report her to U.S. authorities. While Irma Martinez was in a difficult situation, she was still making more money than if she had stayed in the Philippines, and she felt responsible for supporting her family back home by sending remittances. Her immigration status as undocumented, besides her family’s need for her income back in the Philippines, was the main factor that allowed her employers to keep her from leaving such deplorable conditions. The coercion used to maintain her in the household made the judge define this episode as a case of labor trafficking. Irma Martinez’s case shows how the combination of conditions of high unemployment and economic crisis in the home country and a vulnerable immigration situation are ingredients for exploitation and abuse. Regardless of whether Irma’s story may be considered by some as an extreme case, it sheds light on some of the most common difficulties faced by undocumented domestic workers in the United States: low wages, long hours, no overtime pay, lack of privacy, verbal or physical abuse, and even sexual harassment. Lack of Labor Law Protection All workers in the United States are entitled to certain labor protections, such as specified working hours, regardless of their immigration status. However, the lack of distinction between documented and undocumented workers is often more de jure (policy) than de facto (reality). The domestic and agricultural work force has a strong presence of undocumented laborers, but they are often excluded from labor protections. Not surprisingly, undocumented workers are often hesitant to assert their rights for fear of being reported for deportation. The U.S. federal system treats employment and immigration law differently. On the one hand, employment may be under the jurisdiction of a city or a state. Immigration law, on the other hand, is always Congress’ prerogative. When the two legal bodies come into conflict, it is always immigration law that prevails. For example, San Francisco and California minimum-wage laws include undocumented workers. If these workers are processed for deportation as a result of their involvement in a labor case against their employer, there is nothing that local and state agencies can do to stop removal procedures. When legal status is withheld, and occupations such as care or domestic work are excluded from labor laws, the outcome is generally the creation of a second, separate tier of workers. Since the inclusion of domestic work under the Fair Labor Standards Act in 1974, even undocumented immigrants have the right to receive minimum wages and overtime pay. Yet due to the very nature of a federal nation-state, employment law is written and enacted at different levels. Therefore, the current federal minimum wage of $6.55 an hour, effective July 24, 2008, sets the minimum from

Domestic Workers in the Private Household Economy | 215

which state law often departs. In the case of California, the minimum wage is $7.50 an hour, which introduces a substantial improvement from federal law. However, not all states have a higher minimum wage than the federal and some of them even do not have one at all. In fact, before Congress acted to raise the minimum wage in 2007, 31 states offer an improvement of federal minimum wage, and 19 states, either directly or indirectly, applied the federal minimum. Nonetheless, the implementation of the minimum-wage law for domestic labor is highly problematic. Domestic workers have far fewer protections than other workers under the federal and state-wage statuses, and no protection at all under other key laws, such as the National Labor Relations Act, employment discrimination laws, and the federal occupational safety law. First, immigrant women who do personal care work are explicitly excluded from the right to earn minimum wage and overtime pay. The right for wages under federal law is limited to people doing housekeeping as opposed to strictly care work such as attending to the needs of elderly. These exemptions have an important impact on immigrant women—as opposed to men—since it is women who are largely concentrated in these occupations. According to the U.S. Department of Labor, in 2005 94.5 percent of childcare workers were women, as well as 87.6 percent of personal and homecare aids. The exemptions mentioned above apply to live-in employees, who are not covered by overtime regulations under federal law either, regardless of the nature of their work. This lack of regulation shows that immigrant domestic workers are still expected to be available for their employers around the clock. Many women are expected to do care work at all hours in U.S. society. Many immigrant women of color are expected to do it twenty-four hours a day and often for abusively low wages. As opposed to biological sex, gender refers to the cultural expectations for men and women rather than their physical make-up. Historically, western societies have been patriarchal. Patriarchy refers to a situation in which men have the positions of power and their activities are socially valued. Unfortunately, in societies with a patriarchal history, such as the United States, not only is women’s work never done, it is not thought to be worth very much either, in part because of the tradition of not paying housewives supported by a so-called breadwinner. The overly long hours worked by many domestic workers are a reflection of the gendered devaluation of household labor, where the reproductive tasks associated with raising the next generation are not considered work. In addition, labor inspection of private households as workplaces does not happen. This increases the vulnerability of the worker to abuse and exploitation. On call at all times and without remuneration reflecting this time, immigrant domestic and care workers encounter a double standard of sacrifice: the gendered expectation of selflessness similar to norms of conduct set for housewives coupled with the additional racialized and classed view of them as servants. This situation places them under a heavy cultural expectation of self-abnegation. When the worker is undocumented, she enjoys less leverage to assert her limited rights, to move into another job, or both, even if she technically has the same rights as her documented counterparts.

216

|

Domestic Workers in the Private Household Economy

EVALUATING ALTERNATIVE POLICIES: IMMIGRANT DOMESTIC WORKERS IN SPAIN Until the 1980s Spain had been an out-migration country, but its entrance to the European Union and a steady economic growth during the last decades of the twentieth century have turned it today into the second-largest world receiver of immigrant population. The United States is the largest. The Spanish economy has been characterized by high levels of informality as well as a segregated labor market. It also presents a high percentage of undocumented immigration. The migrant population entering the country has usually filled the growing demand in the construction, agriculture, and domestic work sectors that, besides being segregated by race and ethnicity, are also organized along gender lines. In contrast to the United States, Spain does have an immigration program that regulates the entry of immigrant domestic workers to the country. In addition, the government has conducted five regularization programs since the 1990s, which have been an avenue for hundreds of thousands of people to acquire their papers. However, immigration policy has shown itself to be highly bureaucratic and incapable of serving the needs both of local businesses and immigrant workers. This has resulted, especially in sectors such as household work, in a chronic cycle where immigrant men and women are constantly oscillating between regular and irregular status. On top of this, a discriminatory employment law does not offer domestic workers the same rights as the rest of the labor force. This often results in low wages, lack of benefits, multiple abuses, and constant failure to fulfill the requirements to achieve permanent residency.

COLLECTIVE RIGHTS AND VIOLENT ABUSE The collective rights of domestic workers, as human rights, should include freedom from abuse. Legal scholars John Fitzpatrick and Katrina Kelly argue that, “[W]here the maid becomes a resident member of the household, she may face physical and psychological violence and subordination, including demands for sexual services, which replicates the general phenomenon of domestic violence” (1998, 4). Title VII of the Federal Civil Rights Laws bars employment discrimination on the basis of race, color, religion, sex, or national origin, including sexual harassment, but applies only to employers with fifteen or more employees. Thus, virtually every domestic worker in the United States is de facto (in fact, although not de jure [by law]) excluded from Title VII’s protections. Most states either apply the law starting at a state-specified minimum number of employees or follow the federal minimum. Paid domestic workers are not covered by the National Labor Relations Act. This means that they do not have legal rights to organize and therefore no protection from an employer’s retaliation if they organize. This neglect expresses an ideology that does not see this work as economically or socially relevant and, as a result, the rights of domestic workers are not seen as relevant as those of other workers. The fact that they are often undocumented immigrant women, with

Domestic Workers in the Private Household Economy | 217

fewer rights than U.S. citizens, worsens their conditions and limits their leverage. This legal ideology runs parallel to the inability (or lack of will) of the U.S. Congress to recognize reproductive work as relevant to the economy, including its avoidance of national day or elder care, and refusal to admit that the United States needs foreign workers to do this labor. Therefore, the household work sector, as well as the women occupying it, remains invisible to both employment and immigration law, which could provide work-related visas and open the household to the gaze of labor inspectors. CONCLUSION While social and economic dynamics in the United States create an increasing demand for domestic and care workers in this country, the arrival of tens of thousands of women from other countries works to fulfill this need. The nature of the work, as well as discriminatory gender, class, and racial practices in U.S. society and legal systems, often put these workers, mostly women, in vulnerable positions. The fact that they often are undocumented puts them at even higher risk of abuse and exploitation. Current employment and immigration legislation is not sufficient to impede employers’ malpractices, and it does not recognize the country’s need for this labor or domestic workers’ contribution to the U.S. economy. The debates taking place in Congress since 2005 concerning immigration reform demonstrate existing difficulties in addressing undocumented immigration while completely ignoring this issue. While some sectors of U.S. society claim that stricter legislation should be passed in order to restrict undocumented immigration and presence on U.S. soil, other sectors call for a more lax legislation that provides the immigrant population with more rights. The outcome of this debate will undoubtedly have a strong impact on undocumented domestic workers who, more often than not, suffer among the most abusive and exploitative working conditions among the U.S. labor force. See also Minimum Wage; Underground Economy References: Department of Health and Human Services. The Future Supply of Long Term Care Workers in Relation to the Aging Baby Boom Generation: Report to Congress. Washington, DC: Government Printing Office, 2006. http://aspe.hhs.gov/daltcp/reports/ ltcwork.pdf; Fitzpatrick, Joan, and Katrina R. Kelly. “Gendered Aspects of Migration: Law and the Female Migrant.” Hastings International and Comparative Law Review 47(1998):47–112; Government Accounting Office. Illegal Immigration: Border Crossing Deaths have Doubled Since 1995; Border Patrol’s efforts to Prevent Deaths Have Not Been Fully Evaluated. Washington DC: U.S. Government Printing Office. 2007. http://www. gao.gov/new.items/d06770.pdf; Green, Nicole W. Immigration. Washington, DC: CQ Press, 2002; Hewison, Kevin, and Ken Young. “Transnational Migration and Work in Asia.” New York: Routledge, 2006; Hondagneu-Sotelo, Pierrette. Gendered Transitions: Mexican Experiences of Immigration. Berkeley: University of California Press, 1994; Hondagneu-Sotelo, Pierrette. Doméstica. Immigrant Workers Cleaning and Caring in the Shadows of Affluence. Berkeley: University of California Press, 2001; Hondagneu-Sotelo,

218

|

Drug Trafficking Pierrette, “Gender and Contemporary US Immigration.” American Behavioral Scientist 42 (1999):565–576; Parreñas, Rhacel. Servants of Globalization: Women, Migration, and Domestic Work. Stanford: Stanford University Press, 2001; Parreñas, Rhacel. “Migrant Filipina Domestic Workers and the International Division of Reproductive Labor,” in Pinay Power Peminist Critical Theory, edited by M. L. De Jesus. New York: Routledge, 2005; Pessar, Patricia. “Engendering Migration Studies. The Case of New Immigrants in the United States,” in Gender and US Immigration. Contemporary Trends, edited by P. Hondagneu-Sotelo. Berkeley: University of California Press, 2003; Pessar, Patricia and Sarah Mahler. “Transnational Migration: Bringing Gender In.” The International Migration Review 37(2003):811–838; Pew Hispanic Center. “Modes of Entry of the Illegal Immigrant Population.” Pew Hispanic Center, 2006; Phizacklea, Annie. “Migration and Globalization: A Feminist Perspective,” in The New Migration in Europe. Social Constructions and Social Realities, edited by K. Koser and H. Lutz. Basingstoke: Macmillan, 1998; Sink, Lisa. “Maid Tells of Harsh Terms of Servitude,” Milwaukee Journal Sentinel, 2006; U.S. Census Bureau. American Community Survey 2003 Data Profile. U.S. Census Bureau, 2003; U.S. Department of Labor. Women in the Labor Force: A Databook. U.S. Bureau of Labor Statistics, 2005; Zimmerman, Mary K., Jacqueline S. Litt, and Christine L. Bose. Global Dimensions of Gender and Carework. Stanford: Stanford University Press, 2006.

Sandra Ezquerra

DRUG TRAFFICKING When politicians and journalists speak about the U.S.-Mexico border, undocumented immigration and drug trafficking are linked as part of the problem of border security. Yet, does drug trafficking have a link to human smuggling and immigration? If it does, is it an organized crime linkage or does it involve individual immigrants? Drug trafficking is a critical issue at all ports of entry, including the U.S.-Mexico border. Conceivably, heightened border enforcement will impact the drug cartels, and they will begin to diversify by entering the illicit business of human smuggling. Despite all of the efforts made by the president and Congress to strengthen the border, drug cartels can respond with ever more sophisticated and brutal efforts. BACKGROUND The U.S. government has resisted the legalization of marijuana, heroin, and cocaine because of their psychotropic effects on the mind. The war on drugs began as a law enforcement effort to stop the smuggling of Colombian cocaine to Florida from the Caribbean and marijuana and heroin from Mexico. This issue has heated up because the Drug Enforcement Administration (DEA) was successful in stopping cocaine smuggling in the late 1980s and late 1990s. Colombian cocaine cartels turned to Mexican smugglers and began using the U.S.-Mexico border as the major route for entry. Smuggling issues on the U.S.Mexico border escalated, and both human and drug smuggling became objects of a combined U.S. Border Patrol and Drug Enforcement administration effort.

Drug Trafficking

| 219

Patrick Buchanan, a media commentator, has referred to the change in drug smuggling routes from sea to land as the Colombianization of Mexico. A 2005 conflict over territory between rival cartels in Nuevo Laredo and Laredo, principle ports of entry for cocaine and marijuana, led to the deaths of 135 people; most were cartel member deaths, but a journalist, city council member, 13 Mexican police, and the Mexican police chief were also killed. President Vincente Fox (2000–2006) sent federal Mexican troops to Nuevo Laredo to control the situation. Texas Governor Rick Perry sent additional police and equipment to aid the border cities. Both U.S. and Mexican officials have become concerned that the major drug cartels are a threat to border security. Mexican President Felipe Calderon (2007–present) has increased law enforcement activity against the cartels. In Mexico, headless or tortured bodies are being left in public places connected to marijuana growing regions or cartel controlled areas. In August 2008 a massive public protest against the violence involving hundreds of thousands of marchers occurred in Mexico City and throughout Mexico. Drug trafficking and undocumented immigration are discussed as issues of lawlessness along the U.S.-Mexico border, but most people in the region are law-abiding. The chief problem has been that, as U.S. border enforcement has escalated, both drug smuggling and human smuggling have become more sophisticated. Currently drug cartels are entering the human smuggling business and diversifying their organized crime operations. This situation would not occur unless there was a demand for drugs in the United States and a lack of economic opportunity in Mexico. In September 2008, 175 arrests were made in Mexico, the United States and Italy to control the violent Gulf drug cartel. DRUG TRAFFICKING CULTURE The underground drug trafficking culture is marked by romanticism. In the working and lower classes of South Texas, drug mafiosos are feared and respected. Mafiosos, however, are not fully accepted unless they invest in legitimate businesses. In the tradition of Robin Hood banditry, some drug dealers do give to the poor, while others don’t. Despite this acceptance, the presence of drugs in South Texas communities is regarded negatively by both Mexicans and Mexican Americans who consider it to be unlawful and a corrupting influence on youth.

Drug Trafficking and Global Inequality on the U.S.-Mexico Border Democrats and Republicans are united in using law enforcement as a means to combat drug trafficking, but they do not emphasize the role of global inequality between the United States and Mexico as a factor in this trade. Drugs are estimated to be the most profitable form of organized crime worldwide. Eighty billion dollars per year are thought to be spent on drugs crossed through the U.S.-Mexico border region. Although the exact figure spent is unknown, U.S.Mexico inequalities fuel this multi-billion-dollar trade industry. Mexico has a

220

|

Drug Trafficking

high unemployment rate and a low minimum wage. The demand for drugs in the United States is high; there are an estimated 20 million users willing to pay high prices for drugs. The wage disparity between the United States and Mexico makes working for drug cartels attractive for many young Mexican men in border communities. Many of the recruits are low skill laborers who have a hard time locating employment. Drug trafficking skills—physical aggression, taking the role of a bodyguard, using a gun, and driving a vehicle across the border— can be quickly learned. The easy money earned from smuggling is much greater than what is available from legitimate employment opportunities in Mexico. It is surprising that the vast majority of Mexicans resist involvement in criminal enterprise. The South Texas Drug Smuggling Corridors The Texas-Mexico border has communities and cities with some of the highest poverty rates in the nation. It should come as no surprise that both Mexicans and U.S. citizens are attracted to the easy money made by trafficking in drugs. The Rio Grande Valley, located in South Texas, has the highest rate of poverty, school drop outs, and unemployment in the United States. It is no coincidence that it also has one of the highest rates of drug seizures by law enforcement. Although the North American Free Trade Agreement (NAFTA) was expected to bring prosperity to this region, it mainly accounts for thriving warehouse, trucking, and railroad business at the United States border region ports of entry (POEs). Chad Richardson, a sociologist, found that South Texas has an ethnic subculture in which it is hard to avoid contact with people involved in drug smuggling. Even if an individual is law-abiding, anyone ranging from relatives to friends to legitimate business operators may have a connection to drug smuggling. Smuggling is known to be criminal. It is, however, tolerated. It is deeply embedded in communities and in activity going on around people. Even traditional cultural values, education, and religious upbringing do not cause individuals to question the income flowing into impoverished border communities and the surrounding region. Drug Trafficking Cartels In the 1980s, Mexico had one drug cartel, organized by Felix Gallardo. When drug trafficking in the Caribbean was brought under control, Columbian cocaine traffickers joined forces with the Mexican cartel. As the war on drugs heated up along the border, interorganizational disputes marred the operation of the border-wide cartel, and Gallardo (in prison) ordered it split into four separate organizations: the Gulf cartel (Southeast Texas), the Juarez cartel (Southeast Texas), the Sinaloa-Sonora cartel (New Mexico and Arizona), and the Tijuana cartel (California). The Mexican cartels have been able to thwart every effort to stop trafficking, because they are flexible and adaptive organizations. Tony Payan, an international relations and foreign policy specialist, characterizes the

Drug Trafficking

| 221

war on drugs effort at the border as a cat and mouse game in which the United States has tactical victories such as drug seizures and arrests but is losing the conflict. U.S. escalation in personnel and technology has always resulted in cartel adaptation and a continued supply of drugs. Drugs and Issues of Morality and Inequality Payan does not consider the border an immoral or a moral location; individuals traffic in drugs because of economic motivation and the structural asymmetries along the border. The wage disparity between the United States and Mexico border communities combines with the poverty of the U.S border region to prompt young Mexican and Mexican American men and women to try for income by crossing a one-time load of drugs in a vehicle for hundreds or thousands of dollars. Mexican holders of B1 and B2 Visas (crossing cards) can greatly increase their income if they can cross a load of drugs. These individuals are not immigrants, but border residents with citizenship on either side. NARCOTICS TRAFFICKERS AND BORDER CORRIDOS A corrido is a Mexican ballad. A genre of narcocorridos has developed about narcotrafficantes (drug smugglers). “Los Tres de Sierra” ( The Three Men of the Sierra) is an example of a narcocorrido. Mark Cameron Edberg emphasizes that narcocorridos can be interpreted as a mirror of reality, political statements, heroic tales, image enhancers, and sources of power. “The Three Men of the Sierra” expresses pride in the men and the businesses they own. Narcocorridos also express resentment of the Americans and the drugs they demand while making the process illegal—a strong political statement. Finally, these corridos refer to the issues of involvement with government officials and the law through corruption and the act of smuggling. This type of music is controversial because it is thought to influence youth. Nevertheless, narcocorridos are a popular musical genre in Mexico.

Drug-Crossing Methods Jon E. Dougherty, a journalist, contends that poor Mexicans are consistently used as so-called mules to backpack drugs into the United States in remote areas. He emphasizes the lack of economic opportunity as a reason why Mexicans will risk the dangers involved in muling. When Mexicans are seen with backpacks along the border it is not clear if they are smuggling drugs or entering without papers. Mexicans temporarily entering without documents have not traditionally been involved in drug trafficking—despite the association between the two activities that is made in the media and by politicians. Cartels have their own personnel. Heroin and cocaine have been too valuable to risk crossing in between ports of entry, as U.S. Border Patrol agents could become aware and seize the load. As a result, most drugs are crossed through ports of entry.

222

|

Drug Trafficking

Social networks built on corruption on both sides of the border facilitate drug transport. Attempts are made to bribe U.S. Customs officers, Sheriffs, and law-enforcement personnel, and some give in to the offer of large amounts of money. Border Crossings and Border Checkpoints Cartels often use vehicles rather than mules because it is impossible for Customs to inspect every vehicle and item that crosses the border. The Bureau of Transportation Statistics indicates that the following numbers of vehicles, cargo containers, and individuals crossed in 2005: 316,005 trucks, 2,075,227 loaded truck containers, 302,975 loaded rail containers, 14,909 rail passengers, 93,558 buses, 1,616,738 bus passengers, 46,008,747 personal vehicles, 95,157,818 vehicle passengers, and 19,017,249 pedestrians. Checking is done at random or due to Customs officers’ intuition, based on signs of anomalies or driver nervousness. All roads located past the border leading into the U.S. interior also have checkpoints that are frequently manned by officers with drug-sniffing dogs. Payan indicates that many of the vehicles that cross drugs go through POEs rather than between them. It is estimated that 70 percent of drugs are crossed through the Southwestern border in this way. Mexico has become the major supplier of marijuana, brown heroin, and Columbian cocaine. In the past, cars, vans, and pick-up trucks have been the favorite vehicle for crossing drugs. Today, this method is used by small operators. Hidden compartments in ordinary places in the vehicle are created. The drugs are then basted with masking scents tested by the cartels own drug sniffing dogs. Vehicles are crossed in two ways. The first involves going to the checkpoint and taking a risk that drug sniffing dogs, the reaction of the driver to stress, and the thoroughness of the inspection will not expose the drugs. The second method is to cross cars in groups and let one be caught, distracting officials from the others. Often workers are placed in locations where they can see if an inspector is distracted. The best way to smuggle drugs is to bribe a U.S. officer working at a port of entry to let drugs pass through. Several cases in which law enforcement has been bribed turn up every year. A single corrupt official can allow massive quantities to be crossed, making other drug enforcement activities unable to stop the flow. Since the passage of the North American Free Trade Agreement, tractor trailer trucks are extensively used to transport drugs. This is the preferred method of the largest cartels. The escalation of technologies used in the war on drugs has made it harder to bribe officials because of the risk of being caught. Now the drug cartels need to spend millions on bribes in order to find Americans working at ports of entry who will take the risk. Moving Drugs through South Texas Traditionally, drug smugglers preferred the Rio Grande Valley because it has many remote areas that are not regularly supervised by law enforcement. Cartels

Drug Trafficking

have many specialty jobs to bring drugs in: drug loaders, surveillance to watch for the U.S. Border Patrol, local drivers, places where drugs are hidden, brokers, legal businesses that contract for transport, northbound truckers, southbound money couriers, and finally money launderers. Marijuana, the cheapest substance, may be carried by swimmers or placed in boats to cross the Rio Grande, driven in vehicles across international bridges, and/or flown in to hidden landing sites. The individuals who participate in crossing the border are most often low-level operatives, the mules. These operatives face the risk of being shaken down by the Mexican police, drowning in the river, being robbed by border bandits, or being caught by the U.S. Border Patrol. Drug trafficking is in the smuggling mix but has not been not a regular activity of would be undocumented migrants. If someone is in danger of being caught, however, they can lose the load and act as if they are migrants. Nevertheless, the main source of drug operatives is unskilled workers who suffer low pay and have family connections to drug smugglers. These operatives can be native-born or Mexican migrants. Mexican migrants without papers who work in South Texas agriculture for low wages may be attracted to the larger pay-offs for riskier work. Human Smuggling—a Business Opportunity for Drug Traffickers Interpol found that increased sentences for drug trafficking has led some organized crime organizations to switch to the equally profitable but lesspenalized smuggling of undocumented immigrants, sometimes even for the purpose of coerced labor. Human smuggling refers to the unlawful transport of people across borders for a fee. Human trafficking is differentiated as: “smuggling plus coercion or exploitation” (Martin and Miller 2000: 969). The United Nations has prepared a draft Convention on Transnational Organized Crime that delimits trafficking in people as “the recruitment, transfer, harboring or receipt of persons, either by the threat or use of abduction, force, fraud, deception or coercion, or by the giving or receiving of unlawful payments or benefits to achieve the consent of a person having control over another person” (969–970). In practice, although some smuggling is individualized and does not involve coercion, as when aid is given to asylum seekers, it is difficult to draw a distinction between smuggling and trafficking as both are illegal. In 2000, U.S. concerns about undocumented immigration and enslavement were addressed when President Clinton signed the Trafficking Victims Protection Act of 2000, which authorized tougher penalties for human traffickers, including life imprisonment for individuals who engage in child sex-trafficking. Previously, trafficking victims were likely to be punished and deported, discouraging them from taking action. Drug and Human Smuggling Linkages An unauthorized migrant now pays $1,200 to $2500 to enter; individuals from other sending countries pay considerably higher: an estimated $45,000 to

| 223

224

|

Drug Trafficking

$60,000 per person. This income stream has attracted the cartels, and they have responded by diversifying their organized crime operations. Another reason for entering human trafficking is that the penalties for being caught are still lower than for drug smuggling. Criminal penalties are typically not applied as migrants will not identify the smuggler and both migrants and smugglers can sign a voluntary departure form, evading arrest and lengthy punishment, although everyone has been detained for up to several months since President George W. Bush (2000–2008) ended the catch and release policy in 2006. President Bush and Congress have pursued a policy of escalation in the U.S. border security program. After 9/11, the resources put into this effort prompted Mexican drug cartels to take over human smuggling routes and reorganize their criminal operations. This is resulting in a hydra-headed monster of organized crime linkages. Inside the United States, the drug cartels are strengthening ties with criminal gangs such as Mara Salvatrucha (MS-13), the Mexican Mafia, and the Texas Syndicate. MS-13 is believed to have a membership made up of 90 percent unauthorized entrants. This is partly because some are deported as criminal aliens. The Central American countries from which they originate do not have the capability to keep them in prison due to widespread corruption. The expedited removal mechanism has actually been exploited by MS-13 members who turn themselves in to take advantage of the U.S. program to receive a free plane trip back to their home country. Tom Tancredo, U.S. Congressman from Colorado and former 2008 presidential candidate, has spoken out about how specialized professionals and high technology are stepping up the response of trafficking organizations—and the potential for violent conflict. According to the FBI, the Zetas, highly trained former Mexican soldiers, have become involved in smuggling both drugs and humans into the United States. The Zetas have surveillance operatives, checkpoints, and high technology. They have been linked to the possibility of smuggling special interest entrants into the United States—that is, individuals who may or may not be connected to terrorism who originate from sending countries identified as having terrorist organizations. In addition, Tancredo is concerned that corruption in Mexico has led to involvement of the Madrinas (godmothers or guardian angels in Spanish), a group that functions as special operatives and is unofficially employed by federal, state, and local governments. A trend in developing countries is for government officials to appoint proxy operators who collect bribes (mordida in Spanish) and assist in drug smuggling. There is a high level of corruption within the Mexican government and, through their Madrinas, any government official could enter into the drug trade. Because the Madrinas are not officially employed by the government, they allow plausible deniability. In addition, the Madrinas never receive a Mexican criminal record; if they later migrate to the United States, although they are criminals, there is no record to identify them. Finally, there have been armed incursions into the United States by individuals dressed as Mexican military. This unlawful entry could have been the action of either the Mexican army or Madrinas dressed as Mexican army officers.

Drug Trafficking

Homeland Security Chief Michael Chertoff and the FBI have maintained that these incursions are accidental, but on January 23, 2006, a Mexican Humvee with a 50-caliber machine gun and 12 men in Mexican army uniforms protected three SUVs carrying contraband while they re-crossed the river back to the Mexican side.

Diversified Organized Crime Tactics Controlling two types of smuggling, human and drugs, has allowed the cartels to use unauthorized migrants as a border-patrol diversion in order to cross drugs in a different area. Undocumented immigrants pay protection money to the cartels, the cartels then divert the immigrants to certain routes designed to attract U.S. Border Patrol activity and remove attention from the route through which drugs will be smuggled. Fencing, National Guard troops, and additional U.S. Border Patrol personnel have made it more risky to use traditional drug smuggling routes. There has been a significant increase in the amount of cocaine and marijuana seized. National Guard groups placed along the Arizona border have resulted in a significant increase in detained unauthorized migrants as well. It is plausible that this has cut into cartel’s profit margins prompting use of alternative methods. In a reversal of a prior trend in which mules were not used for expensive drugs like cocaine, smuggled migrants are carrying backpacks along the high desert and mountain trails that were traditionally used by migrants. Because migrants seek legitimate employment, although they do not have papers, they are avoiding certain border areas because they do not want to have to carry drugs due to cartel extortion or because they do not want to be diverted for use as decoys for drug trans-shipment. Drug trafficking could cause a drop in attempts to enter without papers. The Sinaloa cartel has gained control of Arizona migrant routes and uses gunmen to capture undocumented migrants. The cartel sends the migrants to other crossing areas in order to divert the U.S. Border Patrol or asks smugglers to pay a fee in order to cross, after which they may be detained by U.S. law enforcement. Drug cartel organizations have begun to ask for protection money from all manner of individuals and businesses, much like traditional organized crime syndicates such as the Mafia. Oddly, such cartel tactics are not good for their human smuggling business. The cartels inadvertently add a second level of control to that of the U.S. Border Patrol in persuading migrants that the trip into the United States without documents may not be safe to undertake.

U.S. Border Patrol Confrontations with Cartel Smugglers The greatest risk that U.S. Border Patrol officers take is dealing with drug smugglers and cartels. The U.S. Border Patrol makes more drug smuggling arrests than any law enforcement agency, including the Drug Enforcement Administration (DEA). Drug smugglers use violence to avoid arrest and will risk

| 225

226

|

Drug Trafficking

killing U.S. Border Patrol officers. In effect, a major activity of the U.S. Border Patrol has become drug interdiction rather than immigrant apprehension. U.S. Border Patrol officers’ jobs involve working individually in remote regions away from witnesses. In cases of human smuggling, they may face resistance, but drug smugglers may try to kill them. In June 1998, Alexander Kirkpatrick was shot and killed while attempting to apprehend five marijuana smugglers in the desert hills near Nogales, Arizona. One issue in confronting cartels involved in drug and/or human smuggling is that the U.S. Border Patrol is literally outgunned. The drug cartels have access to automatic assault rifles while each U.S. Border Patrol officer has only a revolver. Former Laredo, Texas, Sheriff Rick Flores (2005–2008) points out that smugglers have automatic assault weapons, rocket-propelled grenades, and Kevlar helmets with level-four body armor similar to that of the military. The violence of drug smugglers’ reactions to attempts to stop and arrest them has increased. In the past, the sight of law enforcement would result in smugglers dropping the drugs or abandoning vehicles. Human smugglers would be arrested with the rest of the group. Currently, drug cartels are firing on the U.S. Border Patrol, engaging in high-speed reckless chases, and initiating standoffs at the U.S.-Mexico borderline. The United States has no jurisdiction to pursue drug and human smugglers into Mexico. The drug and human smuggling cartels control increasingly sophisticated technology. Spotters using high powered binoculars and encrypted radios are placed in the mountains. Despite the placement of interior checkpoints, smugglers slip through by using private property. The income realized from drug and human smuggling allows them to invest in high technology and the cartels have even been able to decipher the U.S. Border Patrol’s encrypted communication. The War on Drugs and Expansion of Drug Trafficking There are two views on whether border security initiatives are curbing drug trafficking. Payan feels that despite expansion of U.S. Border Patrol and Drug Enforcement administration personnel on the border, the amount of drugs seized each year continues to increase along with the total volume of drugs being trafficked. Drug cartels are so successful at moving product that the price of drugs on the street in urban cities has declined. The federal government’s bordercontrol policy has not succeeded in controlling the cartels. The alternate view, put forth by the House Committee on Homeland Security is that federal and state efforts to secure the border have resulted in the cartel’s current efforts to control human smuggling and enter into extortion, because their profits are falling due to drug seizures. The controversy over whether the U.S.-Mexico border can be controlled cannot be resolved by examining rates of seizure of drugs, as supply can be increased if seizures are increased. Only examination of information on street prices and availability can resolve this issue, and that data has not been a major concern in the debate about the impact of escalation in bordersecurity personnel and technology.

Drug Trafficking

Unintended Functions of U.S. Border Policy Peter Andreas, a political scientist, suggests that that there is an unintentional and reinforcing impact of the U.S. attempt to control its southern border with Mexico and the expansion of drug and human smuggling. He refers to this effect as unintentionally symbiotic and points out that the criminal-justice complex at the border has been greatly expanded as a result. Throughout most of the twentieth century, the southern border has been ineffectively policed and the then-Immigration and Naturalization Service, now renamed Immigration and Customs Enforcement (ICE) and a part of the Department of Homeland Security, did a largely symbolic job. As border enforcement became enhanced in the 1990s, the smaller smugglers became less effective than large smuggling operations. In many inland ports, the volume of truck traffic is greater than the ability to inspect trucks bringing commerce from Mexico, and expanded NAFTA trucking is a new transport mechanism for both drug and human smugglers.

Globalization and the Border Chad Richardson suggests that cultural globalization promotes individuality and pleasure seeking, including the use of drugs. This drug demand as well as employer’s willingness to hire undocumented migrants creates cross-pressures at the border where the United States is trying to exercise sovereignty and prevent entry of drugs. This contradicts the North American Free Trade Agreement trans-border economic connection promoting opening the border instead of closing it. Richardson concludes that the cross-pressures of globalization and nationalism are irrational. Globalization prompts migrants to cross the border, while nationalistic sentiment labels them illegal aliens and tries to keep them out. In the confusion of apprehending immigrants and letting trade goods flow across the border, both drugs and humans have often gotten through. The logic of securing the border to open it for trade is contradictory. The reason for considering globalization as a factor in the expansion of this problem is that many nations have opened their borders to increased trade and tourism, generating new criminal opportunities. The U.S.-Mexico-border smuggling issue is a part of a larger global-crime nexus in which powerful international organized crime syndicates operate. Both the linkage between Columbian cocaine cartels and the developing linkages between drug cartels and human smuggling operations reflect globalization. Michael Kenney, a political scientist, explains that the U.S. reliance on its Department of Homeland Security bureaucracy to combat smuggling is constrained by its need to rely on international and national law. Cartels do not stay within this boundary and they control the information on who they are and where they operate. Once their identities are known, they are at a disadvantage against the resources thrust against them. Yet, dismantling one operation opens an opportunity for other clandestine organizations. The struggle to obtain information on flexible and adaptive criminal operations begins again, and a new cycle of

| 227

228

|

Drug Trafficking

competitive adaptation begins. Because the so-called rules do not favor law enforcement, they are often stuck trying to catch up to the ingenuity of cartels. CONCLUSION Drug trafficking is almost inevitably linked to undocumented immigration in the public mind, because both issues involve the media idea that the U.S.Mexico border is out of control. Originally, any involvement by undocumented entrants to the United States was very minor, but as border conflict with drug cartels has escalated, undocumented entrants are increasingly becoming forced to hire human smugglers and are made vulnerable to coercion to bring in drugs. Every escalation in border security by ICE and the DEA has been met with adaptation by the drug cartels. Although many officials in Mexico and some law enforcement officers in the United States have been bribed, both Mexico and the United States are increasingly choosing to confront the cartels. One issue that Mexico is concerned about is that the trade is based on an estimated 20 million users in the United States. The law enforcement approach to the war on drugs has not reduced demand. This suggests that reducing the motivation of American citizens for using drugs and rehabilitating drug users would be an alternative way of reducing demand. The United States has engaged in many wars: a war on drugs, a war on terrorism, and conflict in Afghanistan and Iraq. Has it won any of these wars? What are the criteria for deciding? The United States is pursuing its strategy of constantly escalating a quasi-military struggle for control of the Mexican border. This strategy has never worked, and the cartels adapt more rapidly to change than the Department of Homeland Security bureaucracy. It is unlikely that this problem will be immediately resolved in the future any more than stopping cocaine smuggling in the Caribbean to Florida ended Columbian drug smuggling. References: Andreas, Peter. Border Games: Policing the U.S.-Mexico Divide. Ithaca, NY: Cornell University Press, 2003; Associated Press. “Mexican Cartels Use Migrants as DEA Decoys: Drug Smuggling Rings Take Over Human Trafficking Routes.” CBS. www. cbsnews.com/stories/2007/05/01/national/main2746396.shtml; Bales, Kevin. “Expendable People: Slavery in the Age of Globalization.” Journal of International Affairs 53, no. 2 (2000):461–484; Buchanan, Patrick. State of Emergency: The Third World Invasion and Conquest of America. New York: St. Martin’s Press, 2006; Chaddock, Gail Russell. “Congress Takes Aim at Modern-Day Slavery: Traffickers in Human Cargo for Sex Trade or Sweatshops Will Face Tougher Penalties.” Christian Science Monitor 2(2000); Dougherty, Jon E. Illegals: The Imminent Threat Posed by Our Unsecured U.S.-Mexico Border. Nashville, TN: WND Books, 2004; Edberg, Mark Cameron. El Narcotrafficante: Narcocorridos and the Creation of a Cultural Persona on the U.S.-Mexico Border. Austin, TX: University of Texas Press, 2004; House Committee on Homeland Security. Interim Report: A Line in the Sand: Confronting the Threat at the Southwest Border. Washington DC: House Committee on Homeland Security. www.davickservices.com/Line_In_Sand3.htm; Kenney, Michael. From Pablo to Osama: Trafficking and Terrorist Networks, Government Bureaucracies and Competitive Adaptation. Philadelphia: University of Pennsylvania Press, 2007; Martin, Philip, and Mark Miller. “Smuggling and Trafficking: A Conference Report.” International Migration Review 34, no. 3 (2000):969–975; Payan, Tony. The Three U.S.-Mexico

Dual Citizenship | 229 Border Wars: Drugs, Immigration and Homeland Security. Westport, CT: Praeger Security International, 2006; Richardson, Chad. On the Edge of the Law: Culture, Labor and Deviance on the South Texas Border. Austin, TX: University of Texas Press, 2006.

Judith Ann Warner DUAL CITIZENSHIP Globalization has enhanced immigrant mobility, and home countries are encouraging emigrants to retain ties through dual citizenship. This is a new development in which naturalized U.S. citizens maintain a tie to citizenship rights in another nation. Traditionalists find dual allegiance morally objectionable and claim that it undermines loyalty to the United States and will impede the civic assimilation of immigrants. Supporters believe that dual citizenship recognizes the interconnection of people and families across nation-state boundaries in a shrinking world while promoting norms of democratic participation. Dual citizenship will engage the United States and other countries in an international controversy about national sovereignty, allegiance, and the human right of individuals to have multiple identities and participation in other polities. WHAT IS DUAL CITIZENSHIP? Dual citizenship, also referred to as dual nationality, refers to the state of a person who has legal citizenship in two or more sovereign nations. The country in which a person with dual citizenship resides is considered to have the first claim to allegiance. There are no international laws regulating dual citizenship between the United States and other nations. Each nation and international political confederations such as the European Union set rules on how to treat dual citizenship. BACKGROUND The United States is an unusual case, because its citizenship rules were invented in a time when the world was dominated by monarchical government. Worldwide, citizenship has often been based on ethnicity (as in Germany), culture (as in France), or geography (as in Great Britain, which units England, Scotland and Wales). The United States was founded primarily by Anglo Americans, but it has always had a mixed ethnic population. Although some argue that American identity is based in the use of the English language, Anglo American culture, and capitalism, the United States has always been an ethnically diverse society that has included culturally diverse groups such as the American Indian tribes, which survive today and practice cultural pluralism. Instead of a single ethnicity, culture, or set of institutions, the United States is founded on a shared sense of civic responsibility. Thomas Jefferson wrote, “That all men are endowed by their creator with certain inalienable rights and that to secure these rights, governments are instituted.” The Constitution and the Bill of Rights are the basis of the U.S. nation.

230

|

Dual Citizenship

The United States unites immigrants of many nationalities with a core group that is in itself diverse and based on prior immigration. Although the United States has not functioned as a true melting pot, various elements of immigrant culture have been adapted into U.S. culture. To be American is to expand and include the diverse immigrant groups and cultures of what is the world’s foremost immigrant nation. Citizens, whether born or naturalized, are covered by the Bill of Rights and principles of freedom and self government which, in turn, have provided a global model of nationhood. Immigrants who become U.S. citizens embrace these liberties. Despite the U.S. status as a multi-ethnic nation, the U.S. Congress attempted in the 1960s to legislate acts of expatriation which would, by law, revoke the citizenship of any U.S. citizen who voted in a foreign election, served in another nation-state’s military, or held office in another nation-state’s government. In 1967, the Supreme Court decided 5–4 in Afroyim v. Rusk that a naturalized citizen who moved to another country and voted there would not lose U.S. citizenship. The court decided that the 14th Amendment made citizenship an irrevocable constitutional right. The Afroyim decision made many acts, such as service in a foreign army, no longer cause for revocation of citizenship, an act known as expatriation. In 1990 the State Department officially adopted the policy that such acts do not imply an intention to renounce U.S. citizenship. Individuals, not the U.S. government, have the right to decide whether or not they will renounce citizenship. As a result, the United States does not recognize dual citizenship or disallow it. It is a de facto (in fact) tolerance not a de jure ( legal) recognition. On record, the United States government does not encourage dual citizenship. At present, 150 nations allow dual citizenship and the number is likely to increase, improving the possibility that the United States will adopt a de jure policy in the future. The first set of repeated dual ties between Americans and other countries based on nationality occurred when individuals with U.S. citizenship served in the Israeli Defense Forces. Other immigrant groups thought to have substantial dual nationality include the Irish, Italians, Southeast Asian Indians, and Mexicans. The second major group of Americans with potential dual nationality was actualized in 1998 when Mexico passed its first dual citizenship law. Mexicans are thought to be the primary group of naturalized U.S. citizens with dual nationality. This law permitted them to claim Mexican citizenship, but did not give them the right to vote in Mexico. Mexico has since passed a law permitting them to vote absentee in Mexican Presidential elections. It is thought that migrant support helped Vincente Fox to become president. The most prominent Mexican American with dual citizenship is Juan Hernandez, who was born in Dallas, Texas. He was a member of the cabinet of Mexican President Vincente Fox (2000–2006). Dual citizenship is a matter that is regulated by sovereign nations who set their own laws. Great Britain refuses to let a citizen renounce allegiance because it is an irrevocable right. The protection provided by a U.S. passport is a reason that many legal resident immigrants naturalize as citizens. International travel, including to the sending country, is monitored and any problems U.S. citizens have will be monitored by U.S. consulates, which will extend diplomatic protection.

Dual Citizenship | 231 HARRY A. WU AND THE RIGHT TO DIPLOMATIC PROTECTION Harry A. Wu was a Chinese citizen and dissident who spent years in a gulag prison. He was released and immigrated to the United States, where he became a naturalized citizen. After attaining citizenship, he went back to the People’s Republic of China to do research on human-rights violations, such as organ farming. In China, he was re-arrested and then released to the United States upon diplomatic request. China does not recognize dual citizenship, but his rights as a U.S. citizen protected him. A U.S. passport is a source of protection of individual rights in sovereign nations like the People’s Republic of China.

Mexican dual citizenship requires the immigrant to maintain a link with nonU.S. citizen(s) in Mexico. The U.S. oath of naturalization states that “I hereby renounce and abjure any and all foreign princes, potentates, states, or sovereigns.” The language seems partly archaic because it was written in a monarchical era. Taking the oath is a requirement for citizenship. This method of attaining citizenship reversed traditions in which sovereigns and states decided who were to be subjects; Thomas Jefferson considered the individual to be the ruler and the polity (all citizens) to rule by majority but with inalienable rights. Keeping dual citizenship rights could be viewed as an extension of Jefferson’s ideas about individual rights, but it would clash with other accepted beliefs of the nation’s founders. Dual citizenship became more controversial after 9/11 when the U.S. engaged in a war against the Taliban government of Afghanistan. John Walker Lindh was captured as a member of the Taliban military. Charges were brought against him as an enemy combatant but dropped because it is not a crime for an American to fight in a foreign military. Lindh’s lawyers also claimed that he fought for the Taliban against their enemy, the Northern Alliance, not the United States. Although Lindh is not free, he was granted constitutional protections not given to other enemy combatants in the war on terror. THEORIES AND RESEARCH ON CITIZENSHIP The traditional model of citizenship is based on the idea that all individuals have one citizenship that links them to a particular nation state. Individual rights and identity are defined by that citizenship. Traditionalists believe that immigrants will become naturalized citizens and that few will be attracted to dual citizenship. Over time, they believe that even those who claim dual citizenship will give up those rights. Immigrants who claim dual citizenship are predicted to be those who do not develop an emotional attachment to the new homeland and are socially marginalized. Irene Bloemraad’s research on Canadian immigrants indicated that the traditional model of citizenship is valid because most Canadian immigrants choose to become naturalized citizens but the socially marginalized are not prone to maintaining dual citizenship. In the 1990s, two alternate theories of citizenship or human-rights based membership in a global community have evolved: transnationalism and postnationalism. Transnationalists assert that the degree to which today’s immigrants retain

232

|

Dual Citizenship

connections with the home country demand dual citizenship. They purport that individuals are living in diaspora communities located in multiple nation states. Bloemraad summarizes the transnationalist dual citizenship argument as being based on two theoretical claims: (1) “immigrant lives span geographical borders, creating transnational activities and identities; and (2) citizenship can be multiple; memberships are in deteritorrialized nation-states” (2004, 398). She presents an implication of transnational citizenship theory that can be tested by research: increasing numbers of immigrants will adopt dual citizenship. Her further hypotheses are that dual citizenship will increase over time as more countries recognize it and that either economically marginalized or racially stigmatized individuals from developing countries will adopt dual citizenship. An additional hypothesis is that business people with human capital, such as higher levels of education, will become dual citizens. The postnational model is considered to have one major premise: “Normative changes valorizing personhood are eclipsing state—centered citizenship. Rights do not depend on citizenship; identities transcend nation-states” (Bloemraad 2004, 398). This perspective has two variants. The first is that immigrants will retain homeland citizenship, and the second is that they will take dual citizenship. Postnationalism predicts that dual citizenship will decrease over time as human rights norms are adopted worldwide. Bloemraad hypothesizes that because immigrants from the European Economic Union have been more exposed to human rights discourse, they will be less likely to naturalize or claim dual citizenship. Postnationalists claim that dual citizenship eventually will be abandoned in favor of extra-territorial human rights of individuals. Bloemraad’s research on Canadian immigrants indicates that both the transnational and postnational models of changing citizenship do not predict immigrants’ citizenship-related decision-making. In Canada, only 16 percent of immigrants have dual citizenship. Even though there are few differences in the rights of temporary residents as opposed to permanent residents, immigrants naturalize at very high rates. Over time, the naturalization rate of Canadian immigrants only increases. Although dual citizenship claims vary by country of origin, the rate of adoption is substantially below what would occur in any widespread movement towards dual citizenship. Between 1981 and 1996 (the time period of her study), however, dual citizenship did increase. It is possible that dual citizenship could be an emergent trend as more nations have adopted such policies. In line with traditional citizenship theory, a sense of rootedness or emotional attachment was found to be correlated with becoming a naturalized Canadian citizen. Among individuals claiming dual citizenship, there was no relationship between economic marginalization, having lower human capital, and claiming dual citizenship. Owning a business or having high income did not predict dual citizenship. Instead, having greater education and, implicitly, possible exposure to the human-rights dialogue, was a predictor of dual citizenship. Understandably, as more and more countries adopt dual citizenship laws, the United States and Canada will be faced with monitoring the impact of

Dual Citizenship | 233

globalization on citizenship trends. It is impossible to ascertain the impact of emergent dual citizenship law on the United States, because only the naturalization rates of immigrants as U.S. citizens is monitored by federal statistics such as the U.S. Census. As a result, the dialogue engaged in by both supporters and opponents of dual citizenship for naturalized American immigrants is disconnected from the reality of the people who practice it. One could advocate simply keeping track of these statistics by adding a question to the U.S. Census. SUPPORTERS OF DUAL CITIZENSHIP Peter Spiro, a professor at the Temple University Beasley School of Law, is a major supporter of dual citizenship who enters into public debate. He contends that dual citizenship offers two types of benefits to individuals. First, it is a way of manifesting the very real multiple identities of immigrants. Second, it fosters democratic participation norms. Many immigrants have relatives and own property in the sending country. Dual citizenship allows them to have a voice in both countries in which they have a stake. From the perspective of national interest, dual citizenship also has two benefits. Initially, it encourages immigrants who are afraid of losing citizenship in the receiving country to naturalize. Second it is a strategy for enhancing global democracy as people in other countries become familiar with the U.S. Constitution and Bill of Rights. Many nations have adopted the American model of citizenship and grant individual liberties. It abrogates individual liberty to deny dual citizenship in a globalizing world. In addition, one reason that naturalized citizens want dual citizenship is to bring democratization to their home countries. Dual citizenship is an international trend now endorsed by a majority of world nations. The 1997 European Convention on Nationality requires countries to recognize dual citizenship for children born to parents with citizenship in other countries and the preamble recognizes dual citizenship as an individual right. This is the first recognition of such a right in an international document. Dual citizenship is being considered a matter of personal identity, autonomy and freedom of association. As a result, dual citizenship may emerge as a status protected by international law. Supporters of dual citizenship maintain that a strong nation should not be concerned about citizen ties to other countries in a globalizing world. When permanent residents gain citizenship, it strengthens commitment to the U.S. and ties to another nation are viewed by dual citizenship supporters as positive rather than as diluting allegiance to the United States. Globalization allows contact with the immigrant sending country regardless of citizenship issues. Although some Americans worry about divided loyalties, this idea is out-dated in a world of transnational ties. For Mexican immigrants, dual nationality extends economic rights, duties, and the right to vote in Mexico’s presidential elections. Mexico would like for naturalized U.S. citizens to invest in Mexico, visit, and spend money. This is different from a situation in which a nation or financial institutions make

234

|

Dual Citizenship

decisions about how to invest. International decision-making impacting Mexico is viewed as foreign involvement, and Mexico is welcoming investment by dual citizens as a way towards further economic development. Paul Donnelly of the Immigrant Reform Coalition suggests that dual citizenship is only viable if the rights and responsibilities of U.S. citizenship are intact. U.S. Citizenship remains important to dual citizens. There is even an international practice among certain professional travelers of maintaining two passports to have greater global mobility. The U.S. passport is especially valued as a source of diplomatic protection. OPPONENTS OF DUAL CITIZENSHIP Nation-states have discouraged dual citizenship because it is viewed by traditionalists as undermining the linkage between individuals and a sovereign nation state. Problems connected to dual citizenship include divided loyalty, conflicts in diplomatic protection, and double military service or taxation requirements. The United States is comprised of the descendents of former immigrants of many nations and new immigrants. It is multi-ethnic, and citizenship cannot be based on shared ethnicity. Opponents of dual citizenship purport that we are a civic nation in which political loyalty, not ethnicity or church, is the basis of social cohesion. A major argument against dual citizenship is that it stops a transfer of allegiance to the United States. Because the United States is a major immigrant-receiving country, it is necessary to realize civic assimilation of immigrants in order to maintain the nation. Because the United States has a multiplicity of ethnic groups in the population, it is necessary for civic ties rather than ethnic ties to hold the nation together. If shared ideals and history are the basis of commitment to the United States, then continued attachment to another country’s ideals creates conflict. Mexico, in particular is viewed as trying to use dual citizenship to exercise dual sovereignty over naturalized Mexican citizens in the United States. Stanley Renshon, a political scientist and accredited psychiatrist, is concerned that dual allegiance undermines national identity in an age of terrorism. He is concerned that citizens who follow the activities of two or more countries closely will feel less patriotic allegiance. Renshon feels that voting, investing in, and maintaining ties to other countries creates a conflict of interest. This would be a liability if the United States declared war on any of the 150 countries that allow dual citizenship. He argues that immigrants need special assistance in becoming integrated in this nation. Dual allegiance undermines equality of citizenship. Dual citizens have the privilege of voting in more than one country. This makes them supra-citizens with more options than regular citizens. U.S. citizens with dual allegiance have responsibilities to another nation that may conflict or compete with allegiance to the United States. Practical and moral necessity mitigates a full commitment to the United States. Dual allegiance can be viewed as a moral issue. In situations in which two countries are in conflict, questions of which side an individual will take can

Dual Citizenship | 235 FOSTERING IMMIGRANT EMOTIONAL ATTACHMENT TO THE UNITED STATES Traditionalists believe that dual citizens could be unable to form an emotional attachment to the United States like that of unilateral naturalized citizens. Liberals and conservatives agree that the American ideals of democracy and justice unite U.S. citizens. Emotional attachment—a feeling of warmth, affection, and pride—could be necessary for a commitment and sense of civic responsibility as a naturalized citizen. Emotional attachment of immigrants to the United States can be enhanced through six steps. The first step would be to create welcome centers to help immigrants and their families understand and adjust to U.S. culture and societal institutions. The second step would be to provide free English classes for immigrants. The third step would be to recognize English as the language of professional and public discourse while promoting use of the original homeland language on a temporary basis while making a transition to English. The fourth step would be an emphasis on the civics curriculum in public schools as a tool for integrating the children of immigrants into American society. The fifth step would be to continue to disallow noncitizens from voting in local, state, and national elections but to allow them to take part in school board elections and to join political and civic organizations to begin the process of political integration. The sixth step would be not to make any allowance for undocumented immigrant participation in U.S. society through disallowing driver’s licenses, in-state tuition, or amnesties. Exceptions would only be made in case of natural disaster and personal tragedy. All immigrant residents without documents would be deported. Traditionalists’ reasoning is that undocumented immigrants are anomic and emotionally disconnected from society. In his view, illegality is corrosive to the sense of national community and emotional attachment of all Americans and sends a message that the United States is not willing to enforce the law.

dilute allegiance. Critics feel requiring the oath of allegiance for dual citizens of the U.S. and another country undermines allegiance, because the United States has no provisions for enforcing the oath. Peter Brimelow is a naturalized U.S. citizen and journalist who was born in England. He believes the oath of allegiance required of naturalized citizens involves swearing allegiance to the United States only. Dual citizenship violates the moral integrity of the oath, and the government itself doesn’t intend to enforce unilateral citizenship. For Brimelow, allowing dual citizenship turns the oath into a lie. Opposition to dual citizenship concerns naturalized citizens who would give primacy to their sending country if it became involved in a conflict with the United States. A survey taken in Los Angeles by John Fontes of the Hudson Institute indicated that 90 percent of Muslim immigrants would support their country of origin in such a conflict. There are concerns related to national security about the maintenance of ties to countries that are known to harbor terrorists. For Muslim immigrants themselves, becoming naturalized citizens and

236

|

Dual Citizenship

cutting ties might be a defensive measure in a nation that has puts limits on civil liberties because of the war on terror. Traditionalists argue that dual citizenship can be employed by criminals to escape prosecution. For example, individuals with both Mexican and American citizenship can commit a crime in the United States and flee to Mexico to avoid prosecution. In cases of suspected homicide, Mexico will refuse to extradite individuals to states that have the death penalty because it does not. Some suggest that revised extradition agreements would solve this problem, but such negotiations are not always fruitful. Despite the Afroyim Supreme Court decision, Congress is attempting to pass legislation making acts that were formally a cause for expatriation, such as voting in a foreign election, a felony. This would make a U.S. citizen subject to legal penalty without depriving them of their individual citizenship. Exceptions would be made for service that benefits U.S. national security. Making dual citizenship illegal is based on the idea that civic assimilation is harmed by it. National security is also considered a reason to disallow dual citizenship. The legislation would not be retroactive but would establish a new precedent and presumably, because of the federal system of checks and balances, it would be challenged in the courts. CONCLUSION Traditionalists believe that the United States, as a multi-ethnic nation, cannot maintain a core allegiance if it continues to de facto allow for dual citizenship. Congressional attempts to make dual citizenship a felony circumvent the Constitution. Because of globalization, transnationalist and postnational theorists believe that the time in which an individual must owe allegiance to one sovereign nation has passed. At the core of the debate is how strong the ideal of democracy and individual rights that the founders of the nation gave citizens is and whether these ideals will spread globally and sustain an international e pluribus unum (Latin for “out of many one” and on the great seal of the United States). Because dual citizenship spreads ideals of democracy and human rights rather than the reverse, U.S. citizenship is an ideal to be looked up to in a world that has increasingly turned against the United States because of unilateral actions after 9/11. Only statistically tracking the prevalence of dual citizenship among naturalized U.S. immigrants and research into how dual citizenship impacts their political behavior in the United States and abroad will provide vital information for this debate. In the meantime, concerns about allegiance in the context of dual citizenship will be repeated without an actual understanding of the lives of dual citizens. Rhetoric will triumph over empiricism. References: Basch, L., N. Glick Schiller, and C. Szanton Blanc. Nations Unbound: Transnational Projects, Postcolonial Predicaments and Deterritorialized Nation States. Langhorne, PA: Gordon and Breach, 1994; Bloemraad, Irene. “Who Claims Dual Citizenship? The Limits of Postnationalism, the Possibilities of Transnationalism, and the persistence of Transnational Citizenship.” International Migration Review 38, no. 2 (2004):389–426; Donnelly, Paul. “No: A Confident Nation Need Not Worry About It’s Ties to Other Nations.”

Dual Citizenship | 237 http://www.mnforsustain.org/ brimelow_p_duel_citizenship.htm; Renshon, Stanley A. The 50% American: Immigration and National Identity in an Age of Terror. Washington DC: Georgetown University Press, 2005; Spiro, Peter. “Dual Citizenship: A Postnational View.” Temple University. James E. Beasley School of Law. http://papers.ssrn. com/sol3/papers.cfm?abstract_id=901754; Spiro, Peter. Dual Nationality: Unobjectionable and Unstoppable. Center for Immigration Studies http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=901754.

Judith Ann Warner

This page intentionally left blank

E ECONOMY Americans are divided in their opinions on whether immigrants take jobs or make jobs. The business lobby supports legal immigration and legalization of previously unauthorized workers. Conservatives believe that immigrants are a drain on the economy and would use more government funds through benefits than they would provide through taxes. Native-born citizens are divided in their opinion, although their attitudes are likely to lean toward the negative during a recession, regardless of research findings about immigrants’ contribution to economic growth. In times of economic downturn, immigrants are often made into scapegoats for the loss of jobs and viewed as competition by native-born workers. The diversity of the new immigration means immigrants have a varied set of impacts depending on their level of education, skill level, and even the geographic location where they reside. Controversy over economic impact boils at the national level and fluctuates according to positive or negative state and local impact. Lost in this controversy is what this society would do without less-educated, low-skilled immigrant workers to do many basic tasks ranging from picking crops to house cleaning. An even more hidden dimension of this debate is that the United States is unable to recruit enough native-born citizens to pursue higher education and take jobs in science and technology. Overlooking the importance of the contribution of highly skilled immigrants to the U.S. economy could be a mistake. BACKGROUND Historically, the United States has experienced many unfortunate economic downturns, including the Great Depression of the 1930s. During bad times, the 239

240

|

Economy

native-born have reacted negatively towards immigrants and during the Great Depression, many Mexicans and some U.S.-born Mexican Americans were actually deported to Mexico in a historical event known as the repatriation. Immigrant Impact on the Economy The debate on immigrant impact on the economy is extremely contentious. Anti-immigrant, nonprofit organizations and activists release research reports on how immigrants, particularly those who lack documents, compete with American citizens for low skill jobs that might otherwise be taken by minority, non–high school graduates. Proimmigrant nonprofits and activists release information on the lack of native-born workers and how there are some jobs citizens would prefer not to do as they are considered too backbreaking or demeaning. Economic Restructuring Economic restructuring refers to the move from an industrial to a postindustrial economy. It is associated with the trend for high-paid employment to be concentrated in high technology and the upper tier of the service sector. Restructuring dramatically reduced employment in agriculture and manufacturing while new low-skill job demand was created in the service sector. Nurses’ aides, maids, bus boys, preschool child care workers, and other less skilled labor is often done by immigrants or migrants who seek to return to their homeland. The new immigrants have arrived in a time when low-skill wages have greatly declined. The high income for skilled labor has further devalued this work. Competition from imports, a decline in unionization, and the availability of unskilled immigrant workers have placed downward pressure on unskilled-worker wages and made it harder for workers to get wage increases, which increases social inequality. Legal and undocumented unskilled immigrants and migrants work in agriculture, construction, labor-intensive food preparation such as meat processing, and manufacturing. Business owners contend that loss of these workers would severely challenge the U.S. economy, as these are not desirable jobs. Besides low earnings, there is a lack of benefits and poor working conditions that expose immigrants to high levels of risk. For example, in meat processing industries such as poultry, assembly line cutting set-ups can result in serious injury and disability. Sunbelt Shift Public attention is focused on the low-wage, unskilled labor market that attracts unskilled immigrants. It has changed in structure and location with manufacturing often relocating to the Sunbelt. As economic restructuring progressed, the Sunbelt states gained in both native-born and immigrant population. By 2000, the number of immigrants living in Texas and Florida had increased to 5.2 million, a major demographic change from 0.6 million in 1960. Traditional immigrant receiving destinations such as New York and California continue to

Economy

retain manufacturing and are still growing in immigrant population. Changes in border enforcement that secured urban areas and diverted immigrants to more risky rural regions has been associated with increased movement of undocumented immigrants to new destinations such as the South, which has become more diverse. The Right to Work and Unionization The Sunbelt states have right-to-work laws that mandate that workers do not have to join unions. In the 1950s, almost one-third of the native-born labor force consisted of union members; now unions represent only 13 percent of workers. Companies seeking to cut labor costs moved remaining manufacturing to the South. In former manufacturing centers, many of the only surviving industries, such as garment work primarily employ immigrants and are increasingly nonunion, even descending to the level of being sweatshops. Economic restructuring led to a bifurcation of the labor force into the welloff and those who are trying to get by. Many middle-income jobs disappeared, placing constraints on the American dream. Projected occupational change predicts the continued economic division of the labor force into a slightly expanded privileged sector with extremely high incomes and a greatly expanded less-skilled sector with much lower incomes. One result will be a middle-class base that continues to diminish in size and income. Income and Social Class Structure The number of occupations that are socially valued have decreased, creating growing wage inequality. In the 1990s, the U.S. economy began to experience a moderate increase in high-paying employment with extreme salaries, a decrease in middle-class salaried employment, and moderate to limited growth in lowerincome employment. This has been metaphorically described as an hourglasseconomy, shaped by growth at the top, shrinkage in the middle and some growth at the bottom. For example, from 1994 to 2000, 55.9 percent of new jobs were higher income while 38.2 percent were middle income. Many of these jobs were in the service sector, thought to comprise from 62 to 75 percent of the emergent U.S. labor force. Service jobs include medical doctors, all levels of educators, engineers, and computer-systems analysts. The news media informs us of political and business-driven social change. One of these changes is a social division into an elite, highly paid class of workers and a class of low-paid, unskilled workers, containing many immigrants. At the same time, shrinkage in middle-class employment is a realistic threat to nativeborn workers. While corporate executives earn extremely high salaries with stock options and are given golden parachutes to leave if their company fails to prosper, resentful native-born skilled workers from manufacturing were simply let go. Since 1981, periodic tax cuts have favored the highest income brackets with the expectation that their increased spending would trickle down. Both the nativeborn and immigrant workers have cause to wonder if what has happened isn’t a

| 241

242

|

Economy

trickle up effect. In 2008, the housing bubble, credit crisis and extreme fluctuation in the stock market focused public attention on the growing social inequality. In response, worker productivity has greatly increased and households have tried to increase their income through both parents working and even having more than one job each. Despite increased worker output, pay stagnated and labor unions lost power. The only way to improve status in this changing labor market is through college degree(s) or operating one’s own business. Needless to say, the people in the high-income jobs at the top still need the people at the bottom, but they do not pay them very much for work that is socially devalued despite being necessary. Immigrants have gained jobs requiring highly educated expertise at the top and jobs at the bottom, where they realize greater earnings with less than a high school education than in sending countries. Jeopardizing the American Dream The American dream is for both citizens and noncitizens. Americans face a situation in which the middle-class jobs they aspired to are disappearing while less-skilled jobs proliferate. A problem caused by this economic trend is that it denies the possibility of social mobility or guarantees downward mobility for native-born members of the middle class or the once prosperous skilled working class. The threat that no amount of hard work will bring social mobility looms and jeopardizes the egalitarian ideal of a middle-class society with the specter of extreme inequality. As a result of these economic changes, we should not be surprised that many Americans believe they are jeopardized and regard low-skilled new immigrants, especially the undocumented, as an economic threat. Low-Paid, Unskilled Work and Economic Stability Unskilled immigrants and native-born drop-outs do contribute to national economic stability. In agriculture, both immigrants and temporary migrants realize low wages and no benefits, but consumers realize lower food prices. The surge in food prices caused by the 2008 oil shock reflects how economic change can suddenly hurt consumers. During this shock, the wages of agricultural workers have not been increasing, suggesting that without these workers, food costs and food shortages would have been worse. Economic Growth In recent years, immigrants have accounted for 15 percent of American labor and about half its growth in workers. While the Republicans hold the presidency, they tend to be pro-business. It is not surprising that during the George W. Bush administration, the Council on Economic Advisors concluded that immigrants complement rather than substitute for native workers; what is interesting is that they are neutral or slightly optimistic about the economic contribution of immigrants to growth.

Economy

WHO ARE THE IMMIGRANTS FEATURED IN ECONOMIC DEBATE? The new immigrants and global visitors to our society are both culturally and economically diverse. No one argues that Rupert Murdoch, a migrant visitor and the Australian owner of the Wall Street Journal and a global media empire, should be deported. Visas are more quickly issued to the affluent, and the poor are most often denied unless they are given refugee status. The Immigration Act of 1990 (IMMACT) made it possible for any individual demonstrating substantial financial capital holdings to more easily immigrate. America is traditionally unwelcoming to the poor and unskilled but provides a red carpet for wealth. The public gaze is drawn towards the economic impact of immigrants for two reasons. First, they are arriving during a period of economic restructuring (1970s–present) when companies are geographically locating, leaving some U.S. citizens without skilled, high-paying work and others in fear of displacement. Second, immigrants, especially the undocumented, are stereotyped as less skilled and less educated, which causes concerns that they will cost more for taxpayers than they will contribute in return. As a result, the public clamors for U.S.-Mexico border fortification and does not know the truth about immigrant socio-economic diversity. In reality, immigrants are over-represented among both the less educated and the highly skilled. As shown in Chart E. 1, the American Community Survey indicates that 36 percent of immigrants have less than a high school education. The majority, 64 percent have a high school degree or higher education. Twenty-three percent have attended college or received a bachelor’s degree, which approaches the native-born population average of 25 percent. Seventeen percent of immigrants have an advanced degree. Forty-one percent of immigrants with advanced degrees have science PhDs, an area that the native-born are less likely to study. Thus, immigrants are balanced between those who are less educated or have a high school degree (49%) and those who have attended college or achieved various degrees (51%). As a matter of fact, today’s immigrants are very similar to the native-born population and just as capable of economically contributing.

Public Perception of Unskilled Immigrants Hispanic journalists make the point that the public focus on unskilled immigrants is upon Latinos (not Europeans, Asians, or Africans). Doubtless, the tensions about the U.S.-Mexico border and entry without documents figure strongly in this debate. The previous geographic concentration of both new and undocumented immigrants in the Southwest, certain states such as New York, and the nation’s largest metropolitan areas generates public attention. The attempts to secure the southern border have sent Mexican and Central Americans to new crossings and geographic destinations. Many smaller cities and rural communities now have new immigrant populations, raising issues of cultural differences and how to accommodate immigrant children in the schools.

| 243

244

|

Economy

Chart E.1 Foreign-Born Proportion of U.S. Workers by Education Level, 2005 Foreign-born workers are concentrated at the top and bottom of the education distribution relative to native-born workers. Note: The sample includes all employed persons over the age of 15. Adv. Degree, Ph.D., and Science Ph.D. are not mutually exclusive categories. The Science Ph.D. group includes workers in computer, mathematical, architectural, engineering, and life, physical, and social science occupations. Source: American Community Survey

Blue–collar, skilled, native-born workers from states like Ohio or Pennsylvania who lost their jobs in economic restructuring, did not necessarily transition successfully. They may earn less as aging adults than they did at the peak of their careers if they live in areas like the so-called rustbelt that are subject to economic deterioration. They are a missing part of the shrinking middle class and the all but vanished higher paid skilled working class, and they have learned to fear unskilled immigrants and use them as scapegoats. These U.S. citizens are still in the work force, but they disapprove of the North American Free Trade Agreement (NAFTA) and ponder an uncertain retirement. They are not told about the dynamic contributions of higher-educated immigrants to the U.S. economy. Public Lack of Knowledge about Skilled Immigrants Professionally skilled immigrants do not figure in the economic debate on native displacement. The professional preference established by the Immigration and Nationality Act of 1965 allows more skilled immigrants to enter. Employers can sponsor immigrants for H-1B visas in areas of job shortages. International students who receive degrees in areas of need, such as medicine, high technology, and certain college/university teaching fields, are recruited into high-paying positions. Approximately 40 percent of PhD scientists working in the United States are foreign born. They contribute to productivity and technological advancement.

Economy

These immigrants, primarily from developing nations, allow the United States to retain a global competitive edge because they are innovators. Their tax contribution is significant. Typically a younger population, their social-security and Medicare contributions are much needed. This group also includes entrepreneurs; immigrants are 40 percent more likely than the native-born to open businesses. ECONOMIC ISSUES There are three important issues in the debate on the new immigrants: (1) whether immigrants compete for jobs with the native-born or complement their work in the labor force, (2) immigrants’ likelihood of becoming a public charge (dependent on welfare and other government aid), and (3) how much educational and other social services for immigrants will cost taxpayers. The idea of the welfare queen is re-emerging, only the stereotype is of a Latino woman with many children. The emphasis on independence and the work ethic in the U.S. value system is often negatively directed at Latino new immigrants, who are stereotyped as lacking in this dimension despite evidence that they will do hard manual labor for low wages and share a strong work ethic with the native born population. Public Opinion The 2006 General Social Survey indicated that 60 percent of Americans believe that immigrants take jobs away from the native-born. Numbers USA leader Roy Beck refers to illegal immigrants as wage thieves who require substantial taxpayer-financed infrastructure. In contrast, a May 2006 New York Times/CBS poll found that 53 percent of the public believe that undocumented immigrants take jobs that U.S. citizens do not want. While the two beliefs are not entirely incompatible, they illustrate the high degree of ambivalence in the U.S. public’s views about immigration. A PEW Research Center poll indicated that 61 percent of Americans believe immigrants cost more than they contribute relative to education and health. Only thirty-one percent believed that immigrants contribute more in taxes than they may receive from the system. Because many immigrants work at lessskilled, low-paid jobs, there is reason to question if the relatively better–educated, native-born labor force is negatively impacted by job loss at all. Instead, there is cause to believe that the geographic relocation of firms to states with lower wages or abroad is the culprit for job loss and the undermining of the skilled, industrial working class. The United States is less and less a manufacturing nation and has become a postindustrial service economy. LOWWAGE IMMIGRANT WORKERS The economist George Borjas has argued that the quality of post-1965 new immigrants has declined relative to prior periods of high immigration. He believes that their skill level has declined, their wages will remain stagnant, and that in the 1980s they drove down the wages of less-educated native workers. As the twenty-first century began, immigrants were 11 percent of U.S. residents,

| 245

246

|

Economy

14 percent of the labor force, and 20 percent of low-wage workers. The hourly wages of immigrants are lower than the wages of the native-born and almost half of the immigrant population earns less than 200 percent of the federal minimum wage—as compared to one-third of the native-born. Less education and lower English-language proficiency is associated with taking low-wage work. Thirty percent of immigrant workers never completed high school, in part, because many sending countries do not have an economic or educational system geared to graduating the majority of their populations from high school. Only 8 percent of native-born workers are high-school dropouts. In contrast, 18 percent of immigrants have less than a ninth-grade education. Three quarters of all U.S. workers with less than a ninth-grade education are foreign-born. Undocumented Workers Researchers estimate that 20 percent of low-wage immigrant workers are undocumented. Undocumented men are more likely to work than legally resident, foreign-born and native-born men. There is a cap, however, on what they can achieve, as only legal immigrants and the native-born have access to government job-training initiatives. This does not mean, however, that they do not make an economic contribution. For example, University of Arizona researchers predict that if undocumented immigrants were to leave jobs in the Arizona workforce, $29 billion, 8.2 percent of economic output would be lost. In Arizona, immigrants contribute $6.56 billion to construction; $3.77 billion in manufactured goods, $2.48 billion in service work, and $600.9 million to agriculture. Low-Wage Occupations Immigrants are concentrated in occupations with more than 50,000 lowwage workers and in agriculture and private-household labor. Forty-two percent of private household workers—on the books—are immigrants as well as 37 percent of agricultural workers who are counted for the purpose of federal taxation. These are the jobs at the bottom with little promise of social mobility. In addition—as many middle and even upper-class households know—a lot of these jobs are paid off the books. Researchers think that agribusiness, smaller farmers, and hotel or restaurant owners profit the most from immigrant labor. Major low-wage economic sectors with extensive immigrant workers include services, precision production, crafts and repair, assemblers, machine operations, and administrative support. Although these are low-wage jobs, there is a limited opportunity for job training and advancement. This work sector is not the option of choice for closely substitutable, less–educated, native-born workers because of low pay, lack of benefits, and limited chances to move up the job hierarchy. Indeed, as an example, raising wages in agriculture for hard manual labor is unlikely to attract many native born, who have higher expectations and no longer see dignity in this type of work. In addition, any wage increases would be passed on to consumers.

Economy

Unskilled Immigrants—Skilled Native-Born Complementarities Unskilled immigrants can do work that complements that of higher-skilled American workers. For example, the Council of Economic Advisors indicates unskilled immigrant construction workers allow skilled contractors and craftsmen to build houses at lower cost—increasing native-worker productivity and income. Immigrants receive wages, but native-born workers have both wages and income from ownership of physical assets and their own human-capital attributes. The native-born gain from lower-priced goods and services provided with a greater variety to choose from. Economists believe that the period of economic expansion in the 1990s was related to economic complementarities that permitted a low rate of inflation. Immigrants produce a surplus by enhancing the productivity of the moreskilled native–born workers. At present, economists estimate that 0.28 percent of the Gross National Product (GNP)—$37 billion a year—is contributed by immigrants. At face value, this is an over-simplified analysis because it does not differentiate on the basis of being foreign or U.S.-born, by skill, or by experience. Based on a more complex model, economists estimate that immigrants have boosted native-born wages by 0.7 percent to 1.8 percent. Ninety percent of native-born workers are thought to have seen annual wage gains of $30 to $80 billion. Unskilled native workers may not realize the same degree of complementarities; they may be subject to substitution. Immigrant Labor Substitution and Native Job Loss Problems occur when unskilled immigrant workers substitute for the nativeborn, American workers with a low level education, whether members of the majority or a minority group. Immigrants may compete for jobs and realize lower wages. Overall, there is mixed evidence about the substitutability of lesseducated immigrants for similarly situated native workers. Borjas estimated a large displacement effect of 10 percent to less-educated native-born workers over a twenty-year period. Nevertheless, U.S. society must deal with its highschool dropouts in order to economically integrate them. The Council on Economic Advisors found that immigrants do not cause native-born drop out or the contemporary value reduction of a high school degree, it is a problem related to poverty, public education issues, and economic restructuring. Reducing immigration will not result in work gains for unskilled, native-born workers. Decline in Less-Skilled Native Workers The number of native-born workers with less than a high-school education has greatly declined over time. U.S. society still needs unskilled workers, and this has opened up jobs for immigrants. From 2000–2005, immigrants increased their participation in low wage and lower skilled work that does not require a high school education. In 2005, immigrants comprised at least one fifth of

| 247

248

|

Economy

low-wage workers and 45 percent of all lower-skilled workers. About one tenth of low-wage workers and 25 percent of low-skilled workers were unauthorized immigrants. Over time, undocumented workers have been increasing their representation in low wage and low skilled work. These immigrants offset a decline of 1.2 million in the number of low-wage native-born workers. Over six hundred and twenty thousand immigrants filled this gap, of which 460,000 were undocumented. Increasingly, it was native-born women who left these jobs. There was an increase of 50,000 native-born men in low-wage work while 1.86 million native-born women left this sector. Over time, it appears that low-wage, lowskill work is increasingly taken by immigrants and that the number of unauthorized immigrants doing this work is increasing. The majority of the native-born workforce is becoming better educated. It would be a fallacy to believe that legal or undocumented immigrants are taking unskilled jobs from the native-born when more of the native born are receiving useful high school and very remunerative college degrees. This may create a gap in the number of low-skill workers needed. Economic demand for additional unskilled workers is not increasing, but the demographic demand for people with these social characteristics as replacements for existing positions appears to be decreasing. Does Immigration Negatively Impact African American Employment or Increase African American Discrimination? The PEW Hispanic Center found no relationship between immigrant employment and native-born unemployment, even at equal educational levels. Traditionally, the African American unemployment rate has been twice that of non-Hispanic whites. African Americans see new immigrants as competitors in the job market. The Reverend Al Sharpton has expressed a concern to the effect that there has been an adversarial relationship between African Americans and Latinos caused by anti-immigrant rhetoric. The reverend believes that immigrants take jobs that employers did not offer to blacks. He believes that antiblack discrimination is a factor in black unemployment and that Latino-African tensions are based on a false assumption of competition. The National Research Council found that 1990s immigration could have displaced some African American workers in preferred urban destinations. Nevertheless, African Americans have not tended to live in locales of high immigrant concentration. After 2000, as immigrants become more geographically dispersed, this could change. New immigrant destinations include Georgia and North Carolina. How this will impact less educated African Americans remains to be seen. GLOBALIZATION AND NATIVE BORN WORKER DISPLACEMENT Economic restructuring is a major cause of the substantial change in jobs available to Americans. Nationally, the North American Free Trade Agreement (NAFTA) is being scrutinized. The rustbelt states of the Midwest, which lost the

Economy

automobile industrial complex as a result of outsourcing during globalization, are blaming immigrants. In addition, NAFTA was criticized for allowing jobs to leave the country. Many Ford automobile components are manufactured by lower-wage workers in Mexico and assembled by the remaining U.S. employees, so they can be labeled “made in America.” NAFTA and U.S. regional wage differences in nonunion states are major factors in the reduction of pay for unskilled or skilled manufacturing work. Many Americans who earned middle-class wages as skilled workers have found that jobs have migrated to Southern or Western states with lower wages, Mexico, or other countries. To see this for oneself, just look in a closet and see which countries the clothes have been manufactured in—nations from Turkey to Taiwan with an occasional American Garment Workers Union label. Not surprisingly, immigrants have a role in keeping assembly line work like sewing in the United States because they accept lower wages. In an atmosphere of global and national worker competition, certain categories of workers are going to lose out to international competition—regardless of immigration. Elite Profits Peter Brimelow, an English immigrant who took up journalism, stimulated debate about immigration’s economic impact when he published Alien Nation: Common Sense about America’s Immigration Disaster in 1996. He argues that mass immigration contributes nothing to the economy while transfer payments create a net loss for taxpayers and foster the transfer of money from nonelite social classes to the elite. The economist George Borjas believes that the increased income of the elite results from profit derived by driving down wages through competition between the native born and immigrants. Massive transfer of wealth to elite Americans is purported to be a result of immigrants lowering the wages paid to the native-born. In 1992, Borjas estimated that $120 billion went to the elite—2 percent of the GNP. What is overlooked is the way in which companies in the United States move toward geographic locations, such as right-to-work regions, with lower wages and abroad. This movement is a major cause of increasing social inequality in the United States, and is associated with a change in the social value attached to high-skill and unskilled work. Brimelow thinks that native-born citizens displaced from “jobs Americans don’t want” are living on transfer payments and can avoid working at lowincome jobs while increasing demand for immigrant labor. Further, population experts point to declining native-born birthrates as a cause of need for immigrants to replace the native-born in existing, low-skill jobs. Brimelow suggests that pronatalist policies would increase the native-born birthrate above replacement level. He does not consider how families will pay for additional children. Proponents of the elite-transfer explanation argue that immigration is reducing native-born income while increasing economic surplus. The economic surplus benefits a relatively small elite social class and not native-born workers overall. This view dovetails with the idea that economic restructuring has benefited the elite while reducing the size of the middle class and relegating many

| 249

250

|

Economy

Americans to low wage work—except for its focus on immigrants rather than corporate-executive decision-making as a cause of economic problems. Job Displacement and Training Opportunities In the first decade of the twenty-first century, there has been a trend for somewhat less labor force participation by both immigrants and natives, but the native-born had a slightly higher rate of decline (1–2%). This decline was offset by an increased tendency among native-born persons to stay enrolled in high school, enter General Equivalency Diploma (G.E.D) programs, or otherwise try to improve their education. From 2000 to 2005, native-born workers with less than a ninth-grade education experienced an unemployment increase from 11 percent to 15 percent. Unemployment for immigrants declined from 9 percent to 7 percent in this time period. Exactly why low-educated, native-born workers were unemployed is not known, but there is a possibility that a preference for immigrant workers, access of the native-born to public benefits, including job training, or withdrawal from the labor market caused this reduction. Native-born workers who are high-school dropouts have experienced a degree of job displacement and are less likely to work than in the past. Nevertheless, the period 1970–present has experienced recession followed by slower economic growth. Less-educated immigrants have been more likely to work than similarly situated native-born workers. In 2005, 70 percent of immigrants with less than a ninth-grade education worked as compared to 44 percent of the native-born. The native-born, however, have other options. Increasing the Skill Level of Low-Wage Workers The Workforce Investment Act provides job training for less-educated workers. It is aimed at improving the situation of the native-born, but a key issue concerns whether the United States will always need as many unskilled workers

HIGH INCOMES AND LOW POVERTY RATES AMONG NEW ASIAN IMMIGRANTS Nationally, 11.5 percent of the population lives below the poverty line. Among new immigrants, only 11 percent of Asians are impoverished. Thus, they do not create a taxpayer burden through their use of public services. In this ethno-racial grouping, Vietnamese and other Southeast Asian groups, such as the Hmong from Laos and Cambodians, are less educated and have higher poverty rates. It is important to remember that the United States was involved in the Vietnam War and Southeast Asian political struggles. Many immigrants came to this country as refugees who were not professionally adapted to this society, and it will take them longer to find their way. In contrast, Asian Indians (people born in India), Chinese, and Japanese households have higher incomes than native-born descendents of Europeans (European Americans). Many arrive as college students and take up professions such as engineering, which are considered harder or less-desirable by the native-born, but pay high incomes.

Economy

of any origin as it needs now. Participation by immigrants in job training is problematic as the programs have been designed for the native-born. These programs assume a ninth-grade education and English literacy and are often geared to skilled individuals and managers. Urban Institute economists have suggested that these programs should offer English-language learning, basic literacy, and education for the professions in addition to specific job-skills training. NUMERACY REASONING SKILLS, THE EXPERTS, AND PUBLIC BENEFITS Numeracy refers to the ability to numerically reason. One aspect of this critical reasoning ability lies in the ability to evaluate the estimates and projections made by statisticians. Although our society has a high rate of literacy, false statistics are often spread in the media. If an authority figure states a number, we do not necessarily pause to ask: Is this correct? Many out-of-date studies inform current debate. The U.S. Commission on Immigration Reform estimated that, in the 1990s, immigrants contributed $110 billion to the U.S. economy: 0.1 percent of the Gross National Product (GNP). It was estimated that native-born families lost a national average of $166–226 annually and $1,174 annually in California, a top-ten destination. George Borjas, an economist, performed statistical analysis indicating that in 1992, .01 percent of surplus income generated by immigrant labor passed to the native born: $6 billion to $12 billion. Borjas then calculated a net loss of $16 billion in transfer payments from taxpayers to subsidize immigrants. Later in that decade, the National Research Council estimated that first generation immigrants and subsequent generations would have a positive input of $80,000 (in 1996 dollars). In 2006, the Council of Economic Advisors estimated that 0.28 percent of the Gross National Product (GNP)—$37 billion a year—is contributed by immigrants. High-skilled immigrants were estimated to contribute $198,000 in economic surplus and less-skilled immigrants were calculated to cost $13,000. This estimate is much lower than that of conservative anti-immigrant organizations using less-easily verified economic assumptions and statistical techniques. Research on the contribution of high-skilled immigrants and their role in the science and technology sector challenges Borja’s assertions about the declining quality of the new immigrants. The reverse is suggested; they help keep the United States globally competitive. The Heritage Foundation published a report by Robert Rector that calculated that low-skilled, less-educated immigrants cost $89 billion more than they pay in taxes. He went on to claim that it would take 300 years for this to be paid back. Yet research has shown that the length of time that immigrants live in the United States is associated with increased English-language acquisition and schooling, on-the job training, and better knowledge of labor-market conditions. When age and education are held equivalent for immigrant and native-born workers, the immigrants catch up economically over a period of 10 to 20 years. It follows that they will be paying more into the taxation system over time. In contrast, former President George W. Bush’s Council on Economic Advisors issued a report indicating that foreign-born workers accounted for

| 251

252

|

Economy

50 percent of labor-force growth, generating work and increasing native-born earnings by $80 billion. Lower wages for immigrants decreased inflation. Immigrant households contributed $80,000 per person in additional taxation. The American Immigration Law Foundation’s Immigration Policy Institute criticized the Heritage Foundation for attributing the cost of children to immigrant parents instead of recognizing that the second generation often receives higher salaries and pays higher taxes than the first. Accordingly, they believe upward social mobility is still a possibility in the United States. The Council of Economic Advisors to the president believed that immigrants will have a modest long-term benefit for the economy. Immigrants are even thought to have a slight but beneficial impact on the pay-as-you-go” solvency of Social Security and Medicare. The Social Security Administration estimates that admitting 100,000 immigrants a year would increase the Social Security payroll by .07 percent. Low-Skilled Immigrant Minority Formation Nevertheless, there is a concern regarding the low skill level of Latino immigrants and fear that they will not economically assimilate and remain a socially disadvantaged minority for generations. In all fairness, the descendents of late nineteenth and early-twentieth century immigrants did not overcome their low level of education and skills in two generations and, even for this group, economic assimilation continues. For example, Italian Americans have remained working class and some social scientists argue that this will become true of Mexican Americans and other Latinos as well. IMMIGRANT ENTREPRENEURS Latinos and Asians with some financial capital have entered as legal immigrants for the purpose of starting a business. Not necessarily highly educated, they have started mom-and-pop groceries, restaurants, and service businesses such as landscaping and home contracting. These businesses often use family members as an unpaid source of labor, and households put in long hours. In 2002, the Current Population Survey counted 2.7 million Latino and Asian nonfarm businesses employing 3.7 million people and realizing $548 billion in income.

CONCLUSION Federal government experts believe that a high level of immigration will have a mildly positive long term monetary impact. The immigrant advocacy of the Council on Economic Advisors was related to long-term federal tax revenues while many of the costs of immigrants have been felt at the state and local level. At issue are unskilled immigrants, who have less positive impact in the first generation, but whose children may achieve social mobility. Native-born citizens emerge as winners when they are business owners or consumers. Immigrants can provide low-skill services at a cheaper rate or produce cost savings if product manufacturers pass on lower-wage costs to consumers.

Economy

Business owners are also able to hire low-skilled immigrants that compliment the labor of higher-skilled, native-born workers, and both benefit. The citizens who emerge as losers are those who have less education and must compete with immigrants who may be a preferred form of labor because employers view them as having a stronger work ethic. Despite the public’s riveted attention on immigration, immigrants’ long term fiscal impact is not likely to generate major economic surplus or deficits. Far too little attention is paid to the big picture of how federal, state, and local government spend. Expensive foreign wars in the aftermath of 9/11, an increasing cost of living ranging from higher food costs to expensive healthcare, and issues of which states and localities receive federal funds all figure into government budgets. In 2008, it became apparent that how consumers were encouraged to spend through mortgage and credit card debt is another issue no one has factored into this debate. The role of the new immigrants in economic readjustment cannot yet be known. At present, large-scale immigration shows no sign of slowing, which alarms pessimists and causes little optimism. See also Education Costs; Financial Costs and Contributions; Global Economy and Migrant Control; Health and Fiscal Costs; Social Mobility; Taxation; Welfare Costs References: Alba, Richard. “Mexican Americans and the American Dream.” Political Science and Politics 4, no. 2: 289–296. www.apsanet.org/imgtest/PerspectivesJun06Alba. pdf; Borjas, George J. Heaven’s Door: Immigration Policy and the American Economy. Princeton, NJ: Princeton University Press, 1999; Borjas, George J. “The Labor Demand Curve is Downward Sloping: Reexamining the Impact of Immigration on the Labor Market.” Quarterly Journal of Economics 118(2003):1335–1374; Borjas, George J. “Immigration in High Skill Labor Markets: The Impact of Foreign Students on the Earnings of Doctorates.” NBER Working Paper No. W12085. http://srn.com/abstract=888287; Brimelow, Peter. Alien Nation: Common Sense about America’s Immigration Disaster. New York: Random House, 1995; Capps, Randy, Michael Fix, Jeffrey S. Passel, Jason Ost, and Dan Perez-Lopez. A Profile of the Low Wage Immigrant Work Force. Washington, DC: The Urban Institute. http://www.urban.org/UploadedPDF/310880_lowwage_immig.wkfc.pdf; Capps, Randy, and Jeffrey S. Passel. Trends in the Low Income Immigrant Labor Force: 2000–2005. Washington, DC: The Urban Institute. http://www. immigrationprocon.org/documents/411426_Low_Wage_Immigrant_Labor.pdf; Council of Economic Advisors. “Immigration’s Economic Impact.” http://www.whitehouse. gov/cea/cea_immigration_062007.pdf; Gans, Judith. “Immigrants in Arizona: Fiscal and Economic Impacts.” Tucson, AZ: Udall Center for the Study of Public Policy, University of Arizona. http://udallcenter.arizona.edu/immigration/publications/impact_ judy.pdf; Kaushal, Neeraj, Cordelia W. Reimers, and David M. Reimers. “Immigrants and the Economy.” Cambridge, MA: Harvard University Press, 2007; Kochar, Rakesh. Kochar, Rakesh. “Survey of Mexican Immigrants Part 3. The Economic Transition to America PEW Hispanic Center.” December, 2005; PEW Hispanic Center. “Growth in the Foreign-Born Workforce and Employment of the Native-Born.” 2006. www.pewhis panic.org/files/reports/58.pdf; President’s Council on Economic Advisors Immigration’s Economic Impact. June 20, 2007. http://www.whitehouse.gov/cea/cea_immigration_ 062007.html; Rector, Robert. “Amnesty and Continued Low Skill Immigration Will Substantially Raise Welfare Costs and Poverty.” Heritage Foundation 2006; Rivera, Geraldo. HisPANIC: why Americans fear Hispanics in the U.S. New York: Celebra, 2008; Smith,

| 253

254

|

Education James P., and Barry Edmondston. The New Americans: Economic, Demographic and Fiscal Effects of Immigration. Washington DC: National Academy Press, 1997.

Judith Ann Warner EDUCATION Many Americans feel anxiety about the country’s current public educational system. A quick glance at the most current educational reform underscores this tense debate. President Bush’s 2001 No Child Left Behind program was created to improve the performance of U.S. elementary and secondary schools by emphasizing standards of accountability on the state, district, and school levels. Additionally, English for the Children, an organization dedicated to outlawing bilingual education, has had recent success convincing voters in California, Arizona, and Massachusetts to do away with bilingual services. These laws directly stem from the existing perception of a low level of scholastic achievement nationwide. In reality, these measures were passed to alleviate the troubles of the most academically ailing schools in the country—the majority of which have a both a low socioeconomic status and an immigrant student population. Given the disproportionate numbers of immigrants in low-achieving public schools, one can see how most Americans negatively view the role of current educational standards in the process of acculturation. Considering that immigrants have the highest dropout rate, many U.S. citizens are worried that focusing too many resources on accommodating immigrants in our schools only promotes academic underachievement and social deviance associated with underperforming and low-income schools. Many questions are asked in this debate. Should undocumented immigrants be allowed to attend public schools? What languages should immigrant students be allowed to use in schools? Who is financially responsible for funding programs to educate immigrants? How do we prepare educators to work with immigrant students? This discussion aims to illuminate the factors involved in immigrant education. Furthermore, highlighting some common misconceptions of the role schools play in the immigration process offers hope for restructuring the way we approach minority education in general. BACKGROUND Immigrant Student Definition Before delving deeper into the larger theme of immigrant education, it is necessary to understand what is meant by the term immigrant student. If we understand immigrant student to mean any foreign-born immigrant residing in the United States who is involved in or eligible for public education services, the immigrant student population would include those with either legal status (e.g., naturalized citizens or students with special visas) or unauthorized residence (e.g., undocumented individuals). While this definition is rather easy to conceive, there remain second—and even third-generation—students who might still identify themselves as immigrants. Neither is it uncommon for children to

Education | 255

be born in the United States and then return to their home country for either one long period of time or many short stints over an extended number of years. In some cases, these children might not speak English nor consider themselves as strictly American. For this reason, it can be proposed that an immigrant student is any child with direct ties to another country who is participating (or eligible for services) in the U.S. public education system, and who identifies with her or his heritage country and culture more than she or he does with mainstream American norms. We should also make the distinction between those in the United States on student visas and those actually born in the United States, as the former are much more likely to experience social and educational marginalization. This definition also allows us to see how certain patterns of inequity are perpetuated across multiple generations when proper educational services are not implemented. Cultural Meaning of Education We must also tease out the concept of education. The dominant Western perspective of education posits that years of learning in formal institutions result in higher levels of knowledge. From this perspective, it might seem absurd to imagine an educated person who hasn’t attended school. This Western view, however, is usually based on the concept that knowledge equates to some set of skills enabling someone to obtain a lucrative job in the marketplace. In many cultures, education equates to a set of skills that facilitates appropriate social interaction and positive self development. Promoting the wellbeing of one’s family and social group is often valued by immigrant groups as a primary focus, especially in the face of social and economic marginalization. Unfortunately, many immigrant students are caught between conforming to American educational standards and their possibly conflicting personal responsibilities at home. Since the skills imparted to immigrant students at home are not usually valued in the school context, it is often hard for them to bridge their knowledge base from the family or other informal realms to the classroom. If learning is to be discussed in terms of knowledge, any notion of education must include all sets of skills that promote a student’s social advancement and her or his notion of self fulfillment. This concept will become more evident when the notion of achievement is outlined. Origins of Immigrant Students Immigrant students come from—and grow up in—a variety of different social, political, and cultural backgrounds. Whether they arrive as refugees from countries imbued with political turmoil or cross the border with a parent seeking employment, they often find themselves enrolled in schools that are insensitive to their previous experiences. Adjusting to such marked differences in societies and the sudden change of social environments may be emotionally and psychologically trying. As students, they are expected to overcome personal issues and smoothly acclimate to new instructors, peers, language, and perhaps a wholly different educational system.

256

|

Education

This potential culture shock of a new situation is intensified if the students are undocumented. These children quickly learn that they and their family members are constantly under the threat of being deported. The overwhelming social rhetoric condemning illegal immigrants is an additional burden that shapes their identity. Furthermore, many of these students live in extreme poverty and must work to help support their families. The sum of their past experiences and current social situation molds the way these students negotiate their education. Problems arise when politicians, voters, and school personnel in the United States fail to sufficiently consider the best means of educating children from these types of diverse backgrounds. Culturally Defining Achievement The concept of achievement is another extremely contentious point in this debate. Obviously, immigrants from all backgrounds strive to succeed economically. Educational institutions typically use grades and test scores to measure achievement. These grades, scores, and graduation rates are seen as markers of success and ostensibly reflect the students’ desire to succeed. When groups of students consistently receive low scores, they might be seen as unsuccessful or as lacking the desire to achieve. This context is especially poignant for immigrant students. From a mainstream vantage point, there is a perceived rift in immigrant groups that want to succeed economically and those that are merely complacent with living in the United States. Immigrant students with long-term or indefinite plans to stay in the United States particularly feel the effects of these black and white views of achievement. International students studying on temporary student visas might deal with similar issues of acculturation or discrimination, but the two groups differ due to the disparity in the social and economic support available from their countries of origin. Because the principal objective of international students is based on education, they are not therefore considered here, whereas the situations of immigrant students are subsumed under the larger context of immigration. Furthermore, comparing levels of success and achievement is difficult without considering the types of educational services immigrant students receive and the ways in which they are (mis)applied. LANGUAGE The brunt of social antagonism toward immigrants generally focuses on language issues. This is apparent when looking at the most prominent immigrant group. According to the 2000 census, there are approximately 35 million Latinos over the age of 5 living in the United States, constituting approximately 10 percent of the total population. However, with only a combined 8 million people (approximately 3 percent of the total U.S. population) admitting to speaking English not well or not at all, it is difficult to imagine that Spanish is considered by many as the main threat to English. Regardless, language rights have been the target of much political debate in recent decades, with the primary focus on Spanish.

Education | 257

History of Bias-Oriented Language Policies From a diachronic (comparative over time) perspective, the current situation with the Hispanics in the United States can be applied to the plight of the culturally pluralistic German population in the nineteenth and twentieth centuries. Being proportionally very similar, Latinos in the United States are being subjected to similar bias-oriented language policies that eventually diluted the prevalence of the German language in American society. Historically, the controversy over language has been dealt with through educational policies, both formal and informal. Thus, schools become instruments to either support or eradicate languages other than English. Test Scores and Estimating Student Potential The main focus of immigrant education revolves around the nature of language. According to the U.S. Department of Education, the number of limitedEnglish-proficient children attending U.S. schools has grown dramatically, primarily because of immigration. In 2006, the National Education Association reported that there are 425 first languages being spoken in U.S. public schools. State education agencies reported that limited-English enrollment rose from 2.1 million in the 1990–1991 academic year to more than 5 million in 2003. A congressionally mandated study found that these students received lower grades, were judged by their teachers to have lower academic abilities, and scored below their classmates on standardized tests of reading and math. While standardized assessments might be efficient for large-scale comparison purposes, more than test scores need to be investigated to support serious accusations like these. Rather than relying on test-score disparities to assess students’ potential, we would do better to examine the reason for the inconsistencies in the first place. Labeling and Dealing with Immigrant Students’ Languages In the face of such linguistic diversity, the debate over how to best educate these students has resulted in legal and social upheaval in recent years. For identification purposes, educators commonly elect to categorize immigrant students according to linguistic abilities. Immigrant students and programs dedicated to their education are frequently labeled as English Language Learners (ELL), Limited English Proficient (LEP), English as a Second Language (ESL), bilingual education, or language-minority students. While the basic dispute surrounds what services are provided and the type of teaching methodologies that are used, there are many practitioners whose benevolent intentions may mask underlying biased language policies aimed at certain immigrant groups. In such cases, assimilationist intentions are easily conflated with practical issues of bilingual education. Socially dominant groups channel the policies, legislation, and immigrant education pedagogies. Language becomes the fulcrum upon which the acculturation of immigrant students pivots. This is evident in the turbulent evolution of language policy in education over the past forty years.

258

|

Education

LANGUAGE POLICY AND THE LAW The Bilingual Education Act (Title VII of the Elementary and Secondary Education Act, 1968) was initiated to address the needs of the language-minority population, although it did not specifically require schools to use a language other than English for instruction in order to receive funding. Without direct federal guidance, language issues were further disputed in state courts. Unanimously ruled on by the U.S. Supreme Court in 1974, Lau v. Nichols is the defining court case for language minority children. This decision provided guidelines for school districts on how to evaluate language-minority students and offer instructional options for them. The Office of Civil Rights used the Lau decision to police school districts around the country and to make sure that they were providing adequate services. Misapplication of Bilingual Education Policy The misapplications of bilingual education pedagogies caused heated disputes over the quality of the services offered to immigrant students during the subsequent decades. Xenophobic sentiments surfaced, and bilingual education programs were accused of impeding English acquisition by supporting native languages instead. Shortly after taking office, President Reagan announced that “it is absolutely wrong and against American concepts to have a bilingual education program that is now openly, admittedly dedicated to preserving their native language and never getting them adequate in English so they can go out into the job market and participate” (Crawford 1999:53). Not only do statements like this affect political mandates, they contribute to the body of commonly shared social knowledge that is reproduced, such as the belief that immigrant students and their parents are not interested in or do not have good abilities for learning English. Anti-Bilingual Education Legal Initiatives Since 1997, three states have passed anti-bilingual education laws that prohibit schools from utilizing a language other than English for instruction. In California (1997), Arizona (2000), and Massachusetts (2001), millionaire Ron Unz successfully bankrolled an English for the Children campaign and convinced voters to limit options for the language-minority population. According to his program, after one year of an English immersion class, students are mainstreamed into regular classes without further instruction in their native tongue. Exacerbating the situation are laws that hold teachers personally liable for speaking only in English. Whereas the research literature supporting bilingual education is quite extensive, opponents easily convinced the public of its alleged disabilities by exaggerating the few published failures of bilingual methodologies. The irony in this battle of ideologies is that the research supporting the English-only campaign in many cases actually provides evidence of the success of bilingual education. Regardless of what the research purports, politicians in these states have cajoled voters into passing anti-bilingual education legislation in order to disenfranchise the linguistic minority.

Education | 259

Federal Indifference to Immigrant Student Language Issues Current federal education policies reflect indifference toward nurturing the native-language skills of non-English speakers. In 2002, Title VII (the Bilingual Education Act) was eliminated by the Bush administration as part of the No Child Left Behind (NCLB) education reform. While Title III of NCLB continues to support the education of language-minority students, it places more emphasis on rapid English acquisition, accountability of schools on standardized assessment, stronger state control of resources, and less focus on the development of native (foreign) language skills and funding for program development based on scientifically based research. Also lacking from Title III is support for heritagelanguage development.

Cultural Gaps Although often framed in the context of linguistic difficulties, the challenges facing language-minority students also stem from a cultural gap experienced in the classroom. Surrounded by students that have had up to twelve years of academic and social enculturation, a non-English speaking student may feel lost or confused while processing even basic school traditions (such as taking roll, tardiness, and lunch procedures). The socio-cultural determinants of school failure may be more important than language differences. Such practices—and teachers’ exercise of authority—may demean immigrant students’ self-concept to the extent that they withdraw from the educational environment, thereby appearing unmotivated or lazy.

Language Tracking Problems These trends increase when immigrant students are categorized merely according to their language abilities and placed into academic classes with lower expectations. Lower track and retained students are likely to experience stigmatized learning environments, further undermining their self-concept as learners. Such classes are often less stimulating and unlikely to provide opportunities to develop higher-order thinking and problem-solving skills. Building upon or acknowledging the presence of the cultural knowledge that students bring to the classroom, on the other hand, can mitigate frustration and encourage success. Educators and policy makers can help overcome mainstream ethnocentrism by recognizing alternative, but equally relevant knowledge-systems.

ACHIEVEMENT As discussed above, the notion of achievement is problematic. Does child scholastic achievement automatically equate to socioeconomic achievement as an adult? How do different immigrant groups conceptualize achievement? As researchers that focus on the formation of identities of ethnic minority youth in schools, Yeh and Drost explain that “motivation for achievement may come

260

|

Education

from a desire to gain access to others and to maintain affiliative ties with peers rather than from a desire to attain personal or individual goals” (2002, 3). While the influence of family cohesion has been demonstrated as important for the overall well being of immigrant communities, it has also been posited as a key component in their educational success. Residential Segregation Describing the characteristics of success and failure is difficult without first portraying the more general contexts involved in immigrant achievement. Immigrants are most influenced by where they settle and the preestablished relationships they have when they arrive. In general, newly arrived Latino immigrants tend to live in highly segregated neighborhoods while Asian immigrants are inclined to live in more integrated neighborhoods and enroll their children in schools that are predominantly white. The different relationships and access to resources caused by these living conditions directly relate to the educational opportunities of immigrant children. Negative Stereotypes While immigrant children are expected to assimilate into American society through schools, they are commonly subjected to derogatory stereotypes and offensive messages about their intellectual capabilities, causing them to negotiate multiple, and often competing, identities in the classroom. Looking at how immigrant children integrate into the U.S. school system provides a platform from which to analyze the primary factors that tend to depict a student’s future success or failure. On average, one in five children nationwide is either an immigrant or the child of immigrants. In California, half of the children are immigrants or children of immigrants. Such pronounced numbers require closer inspection of the educational achievement patterns of immigrant children and how they are related to different school contexts. Standardized Testing Problems According to President Bush’s No Child Left Behind Act, all students will become proficient in English and math by 2014. To ensure that this goal is met, states and school districts are responsible for implementing a battery of standardized tests to gauge performance. The problem confronting immigrant students is that “current standardized tests are inappropriate because they are designed around culturally specific content and normed to mainstream cultural groups, which presents problems for children from nonmainstream cultural and linguistic backgrounds” (Olsen et al. 2005, 23). Moreover, because of NCLB, school districts and communities are facing increased pressures to prepare all students but lack the resources necessary to bring up achievement levels. This type of top-down pressure further inhibits immigrant students’ ability to draw on their own culturally appropriate knowledge to bridge the educational gap.

Education | 261

Effective School Characteristics Considering the different social and academic knowledge that schools can provide, it is obvious that the schools themselves are probably one of the most important factors in determining the eventual level of economic success of a child. While the family context is important in achievement, school is the most important institutional context. Establishing a school environment that empowers students and recognizes diverse cultures as part of the mainstream can help create a balance between students’ native ways of communicating, learning, and behaving and the need for them to be educated. The common characteristics of an effective school include: positive staff members, demanding academic expectations for all students, a sincere interest in the students’ cultures and language, and a safe school environment. Tracking and Marginalization Educators and policy makers often fail to see the negative results inherent in the process of exclusion and sorting that often assigns students by skin color, class, and English fluency, thereby relegating them to positions of unequal access to resources and opportunities. Immigrant students are often placed in compensatory programs designed to help them overcome cultural differences. Even though many of these programs have been initiated with good intentions, their inherent goal is to compensate for implied deficits resulting from inadequate training at home or cultural deprivation. Consequently, tracking and compensatory programs are endemic in schools with large minority and immigrant populations. LATINO AND ASIAN ACADEMIC ACHIEVEMENT Latino Ethnicity and School Segregation This trend becomes very striking when it is considered that Mexican students are the lowest achieving group among all immigrants, and they attend schools that are primarily minority; by contrast, the highest achieving immigrant students, Asians, go to schools where 75 percent or more of their peers are white. As a result, perpetually low academic achievement by immigrant students often causes educators to see them as unteachable. These sentiments quickly cement into false ethnic stereotypes. Among Latino immigrants, students from Mexico, Central America, and Puerto Rico demonstrate the lowest levels of achievement; conversely, Cuban students commonly demonstrate rather high levels of academic achievement. In general, the Latino group comprises such a large proportion of Mexican students that the overall trends do not accurately represent the experience of most Cuban immigrant students. Need for Latino Teachers Another factor that tends to steer academic achievement is the ethnic composition of the educators who work with immigrant students. Teachers who can

262

|

Education

identify and empathize with immigrant students tend to have a deeper impact. Latinos constitute not only the lowest achieving but largest immigrant group. Whereas Latino students make up 15 percent of the national student population, only about 4 percent of public-school teachers are Latinos. The presence of more Latino instructors can contribute to a higher level of academic achievement and help build a sense of belonging and identification with the school environment. Asian Achievement Trends Contrary to the Latino experience, Asian immigrant students demonstrate a strikingly better record of academic achievement. As stark as this trend might appear, it can be very misleading. Asians have been stereotyped as a model minority because many of the ethnic groups that comprise the Asian category perform highly in school. Certain Asian students, however, including Vietnamese and Laotian Hmong refugees, struggle with school work and perform at the level of other disadvantaged minority students. The misconstrued stereotype of the model minority weakens when considering some current trends in Asian immigrant achievement, especially since more Asian immigrants find themselves in poor and segregated schools, facing the same limited opportunities as other immigrants of color. Placing the Blame for Under-Achievement While all schools share a set of common characteristics and have similar effects on immigrant students, it is helpful to view achievement trends across different educational levels. Pointing the finger of blame is not a way of ending the school problems of immigrant students. High schools blame middle schools and middle schools blame elementary schools. Increasingly, as every level looks to the previous level for more accountability, parents are faced with the responsibility of educating their children before they even start school—a task that can be formidable when one is not familiar with the academic standards and literacy patterns in U.S. schools. Obviously, all levels have to accept some responsibility. Missing a Head Start Although children three to five-years-old might enter school better prepared to learn if they were read to on a daily basis, only 65 percent of Latino children in 2000 were read to as compared to 75 percent of whites. While federally funded programs like Head Start provide early education services to economically stressed families, Latino children under 5-years-old are less likely to be enrolled in early-childhood education programs than other groups. Furthermore, while 36 percent of Latino children live in impoverished communities, only 26 percent of those families attend Head Start programs. Translating these trends to the primary level, it is easy to see how many immigrant students are corralled into tracking systems and compensatory programs.

Education | 263

Advanced Placement versus Dropping Out The effects of early educational programs surface as students reach high school. For example, Latino students are less likely than white students to complete AP (advanced placement) courses in mathematics, advanced science, and advanced English, but are more likely than white students to complete advanced foreign language classes. The dropout rate for Latinos is significantly higher than for other groups; the attrition rate for foreign-born Latino students (ages 16–24) was reported in 2000 at a stifling 44.2 percent. Compared to Latinos, the dropout rate was 14 percent for African Americans and 8 percent for whites. Being Native as Opposed to Foreign Born While some might suggest that dropout rates vary according to the students’ foreign or native-born status, there is no difference among Latino high school students. Neither is there a generational difference. Finally, the high school completion rate (i.e., via high school diploma or GED) in 2000 for Latinos was 63 percent as compared to 90 percent for whites. One would think that such outrageous dropout and completion rates across generations would be drastic enough to warrant alternative educational approaches. While national statistics might provide a holistic view of the immigrant educational experience, focusing on states with high immigrant populations paints a clearer picture. In the border state of Arizona, Latinos comprise 25 percent of the total population. In Arizona, only 49 percent of foreign-born residents over the age of 25 have earned a high-school diploma or higher as compared to 85 percent of native born residents. College Attendance Beyond high school, the trend for college attendance among immigrants varies. Documented Latino immigrants who have completed high school are just as likely as second generation and third generation Latino youth to immediately enter postsecondary education. Though, without proper documentation, immigrants are often excluded from post secondary education. Even though Latinos lag behind every other immigrant group in attaining college degrees, they have doubled their overall undergraduate degree attainment since 1976. In 1996, Latino students earned 5 percent of all bachelor’s degrees and 7 percent of all associate’s degrees. Contrary to the overall trends demonstrated by the Latino immigrant group, Asian students are more likely than native-born whites to attend school in the Los Angeles metropolitan region, including Vietnamese students who arrived after they were ten years old. While Asians are more likely to attend college and pursue bachelor’s degrees, most Latino undergraduates languish along educational paths that are associated with lower chances in attaining a bachelor’s degree, usually prolonging their educational careers in community colleges beyond their mid-20s. Approximately 48 percent of Mexican undergraduates in

264

|

Education

the 18 to 24-year-old group attended community college institutions as compared to about 32 percent of Puerto Ricans. Despite this, Latinos are receiving more bachelor’s degrees, master’s degrees, and doctoral degrees. Moreover, there is a positive correlation between college attendance and the attainment of professional occupations for Asian and Latino immigrants and how such achievements increase from the first to second generation. Parental Socio-Economic Status and Educational Achievement Perhaps the most significant underlying determiner of immigrant achievement in school is the socioeconomic status of the parents. Income greatly influences the extent to which immigrant families can provide educational resources (e.g., tutors, books, school supplies, computers, private school, etc.) to their children and open career opportunities for them. More importantly, income determines where people can afford to live. Poverty and segregation are closely related. Poverty in a social context of racial segregation is devastating for educational achievement. Regardless of individual traits, growing up racially isolated in neighborhoods of concentrated poverty produces high rates of teenage motherhood, delinquency, and school dropout which connects to low educational achievement and lower lifetime income. Understanding poverty and social segregation is only possible by looking at the role of racial and ethnic discrimination. Educational programs that devalue a child’s culture and heritage are caste-like in that they limit minority children from obtaining a level of education equal to those in the dominant class. Although the significance of language and cultural differences in not to be underestimated, the lower school performance of Mexican-Americans and Puerto Ricans is exemplary of entire groups that have been educationally and socially confined. If cultural differences in socialization and development are not understood and incorporated into education programs, children become viewed as deficient. By establishing a context of deficiency, the children’s sense of identity may be damaged and early negative labeling and tracking can occur, thereby causing immigrant students to develop adverse perceptions of discrimination by others in the school. Improving immigrants’ opportunities for educational and economic success must begin with erasing this deficit orientation and providing them with the resources necessary to succeed. SUGGESTIONS FOR IMPROVING IMMIGRANT EDUCATION An effective education is achieved through a combination of social, political, pedagogical, and cultural determinants. In this era of standardized testing and accountability, it is easy to lose sight of the variety of backgrounds and experiences that shape immigrant students’ lives. Instead of helping immigrant students acclimate to their new social and educational contexts, the currently favored one-size-fits-all programs impede students from building on their previous knowledge base. A top-down approach to policy implementation only causes those at the top of the political hierarchy to point fingers at those below.

Education | 265

This generally results in politicians blaming schools, the public blaming educators, and educators blaming students and their families. The most difficult aspect of figuring out how to best educate immigrant students is looking for one solution—in reality, there is no single solution. Every region, state, district, school, and classroom faces different demands. Providing more resources (e.g., teacher training, funding, smaller class sizes, instructional aides, and cultural liaisons) would be a positive start, but it is not enough. Designing programs around individual contexts (whether regionally or on the district level) would help educators figure out how to provide the best services. National standards and punitive measures against schools and educators is not the way to motivate for success. CONCLUSION There has to be a shift in the way immigrant students are viewed and treated. Passing laws that suppress immigrant students’ cultural backgrounds (e.g., anti-bilingual education) not only inhibits their academic progress, it devalues their prior knowledge base and contributes to an overall sense of inadequacy. Schools have to be connected to the students’ homes. When the families are communicated with sincerely, they feel more included in the education process. Moreover, employing community members to work in schools (regardless of qualifications) to assist teachers would allow the students to identify with their educators and could alleviate the stress and anxiety experienced in cultural isolation. While ignoring other aspects of the education process can have deleterious effects, demonstrating to children that their knowledge is respected and that their skills are valued can be extremely motivating. Instead of restricting educational resources and blocking access to broader social networks, it is vital that we acknowledge and build on the strengths that immigrant children have while honoring the inherent wealth of cultural capital that they bring to the classroom every day. See also Bilingual Education; Bilingualism; Education Costs; Undocumented Children and Schools References: Brice Heath, Shirley. “What No Bedtime Story Means: Narrative Skills at Home and School.” In The Matrix of Language: Contemporary Linguistic Anthropology, edited by Donald Brenneis and Ronald K.S. Macaulay,12–38. Boulder: CO: Westview Press, 1998; Crawford, James. Bilingual Education: History, Politics, Theory, and Practice. Los Angeles: Bilingual Educational Services, INC., 1999; Crawford, James. James Crawford’s Language and Policy Web Site and Emporium. http://ourworld.compuserve.com/homepages/ JWCRAWFORD/home.htm; Cummins, Jim. Rights and Responsibilities of Educators of Bilingual-Bicultural Children. http://www.iteachilearn.com/cummins/rightsrespons bilinged.html; Del Valle, Sandra. Language Rights and the Law in the United States. Buffalo: Multilingual Matters LTD., 2003; ERIC Digest Number 162. Latinos in School: Some Fact and Findings. ID# ED449288: ERIC Clearinghouse on Urban Education, 2001; Flannery, Mary Ellen. Language Can’t Be a Barrier, NEA Today 24 (2006):24–30; Fry, Richard. “Hispanics in College: Participation and Degree Attainment.” ID# ED480917: ERIC Clearinghouse on Urban Education, Institute for Urban and Minority Education, 2003;

266

|

Education Gans, Judith. The Economic Impacts of Immigrants in Arizona. Tucson, Arizona: University of Arizona Udall Center for Studies in Public Policy. http://udallcenter.arizona.edu/ programs/immigration/publications/immigrants_inarizona.judith_gans.july2007.pdf; Johnson, Eric. “Proposition 203: A Critical Metaphor Analysis.” Bilingual Research Journal 29, no. 1 (2005):69–84; Kozal, Jonathan. Savage Inequalities. New York: Harper Perennial, 1991; Kozal, J. The Shame of the Nation: The Restoration of Apartheid Schooling in America. New York: Crown, 2005; Montgomery, Alesia F., and Robert J. Rossi. Education Reforms and Students at Risk: A Review of the Current State of the Art. American Institutes for Research. http://www.ed.gov/pubs/EdReformStudies/EdReforms/chap1a.html; Ogbu, John. Minority Education and Caste: The American System in Cross-Cultural Perspective. New York: Academic Press, 1978; Olsen, Laurie. Made in America. New York: The New Press, 1997; Olsen, Laurie, Jhumpa Bhattacharya, and Amy Scharf. 2005. Ready or Not? A California Tomorrow Think Piece on School Readiness and Immigrant Communities. www. californiatomorrow.org: California Tomorrow; Perez, Lisandro. “Growing Up in Cuban Miami: Immigration, the Enclave, and New Generations.” In Ethnicities: Children of Immigrants in America, edited by R.G. Rumbaut, and A. Portes, 91–126. Berkeley: University of California Press, 2001; Portes, Alejandro, and Dag MacLeod. “Educating the Second Generation: Determinants of Academic Achievement among Children of Immigrants in the United States.” Journal of Ethnic and Migration Studies 25, no. 3 (1999): 373–396; Portes, Alejandro, and Ruben G. Rumbaut. Legacies: The Story of the Immigrant Second Generation. Berkeley: University of California Press, 2001; Schwartz, Wendy. “Closing the Achievement Gap: Principles for Improving the Educational Success of All Students.” ID# ED460191: ERIC Clearinghouse on Urban Education, 2001; Spolsky, Bernard. Language Policy. Cambridge: Cambridge University Press, 2004; Suarez-Orozco, Carola, and Marcelo M. Suarez-Orozco. Children of Immigration. Cambridge, MA: Harvard University Press, 2001; United States Census Bureau. http://www.census.gov/main/ www/cen2000.html; U.S. Department of Education. “National Center for Education Statistics.” http://nces.ed.gov; Valdes, Guadalupe. Con Respeto: Bridging the Distances Between Culturally Diverse Families and Schools. New York: Teachers College Press, 1996; Van Dijk, Teun. Communicating Racism: Ethnic Prejudice in Thought and Talk. London: Sage, 1987; Van Dijk, Teun. “Discourse and Access.” In Rights to Language: Equity, Power, and Education, edited by R. Phillipson, 73–78. Mahwah, NJ: Lawrence Erlbaum Associates, 2000; Velez-Ibanez, Carlos G., and Anna Sampaio. “Introduction: Processes, New Prospects, and Approaches.” In Transnational Latina/o Communities: Politics, Processes, and Cultures, edited by C.G. Velez-Ibanez and A. Sampaio, 1–38. New York: Rowman and Littlefield Publishers, 2002; Waldinger, Roger. “Strangers at the Gates.” In Strangers at the Gates: New Immigrants in Urban America, edited by R. Waldinger, 1–29. Berkeley: University of California Press, 2001; Wiley, Terrence G. “The Imposition of World War I Era English-Only Policies and the Fate of German in North America.” In Language and Politics in the United States and Canada: Myths and Realities, edited by Thomas Ricento and Barbara Burnaby, 211–241. Mahwah, NJ: Lawrence Erlbaum Associates, 1998; Yeh, Christine, and Christopher Drost. Bridging Identities among Ethnic Minority Youth in Schools. ID # ED462511: ERIC Digest, 2002; Zhou, Min. “Progress, Decline, Stagnation? The New Second Generation Comes of Age.” In Strangers at the Gates: New Immigrants in Urban America, edited by Roger Waldinger, 272–307. Berkeley: University of California Press, 2001; Zhou, Min. “Straddling Different Worlds: The Acculturation of Vietnamese Refugee Children.” In Ethnicities: Children of Immigrants in America, edited by R. G. Rumbaut and A. Portes, 187–228. Berkeley: University of California Press, 2001.

Valerie A. Ramos and Eric J. Johnson

Education Costs

EDUCATION COSTS Most immigrants come to the United States in hope of gaining a better, stable life for themselves and their families. From 1990 to 2000, the U.S. Census indicates that the possibility of establishing a more hopeful future enticed approximately 8.6 million people to emigrate from their home country. As the number of immigrants arriving in the U.S. increases, more resources are needed to adequately educate this growing population. While many argue that accommodating the educational needs of immigrants, particularly singling out the undocumented, puts a fiscal strain on government, others believe this monetary expenditure is minimal when compared to the cultural wealth that all immigrants offer, regardless of entry status. The economic costs associated with immigrant education can be fiscally estimated, but the social and economic costs of denying such an education cannot. In the debate about immigrants and the cost of adult or children’s education, anti-immigrant organizations argue that immigrant education places a strain on taxpayers. The opposing viewpoint examines a multifaceted concept of cost and how it is manipulated to cast immigrants in a negative light. This short-sighted view of cost overlooks the long-term gain of investing in immigrant education. BACKGROUND The unfortunate events of 9/11 created a backlash against supporting and providing education for immigrants in the United States. Many fault loose immigration laws for giving the men who flew the planes into the World Trade Center access to flight school, thereby enabling them to create such devastation. Some even argue that, had more laws been in place to restrict the education services immigrants receive in the United States, the tragic events of 9/11 could have been avoided. Whether or not this is true, the result of these ideas was increased publicity and concern about who is entitled to receive educational services and who is not. A quick glance at historical policy regarding immigrant education is necessary to situate this contentious debate. Supreme Court Case: Plyler v. Doe (1982) In 1975, Texas Education Code § 21.031 was enacted for the purpose of excluding undocumented immigrants from K-12 public education services. As a result of the alleged state financial strain of educating this growing population, undocumented children were denied access to public schools. In conjunction with many of the anti-immigrant laws that would follow, supporters of this legislation argued that limiting or outright prohibiting education to undocumented children would prevent their parents from immigrating to the United States. In 1982, the U.S. Supreme Court struck down the Texas legislation in the landmark case Plyler v. Doe—ultimately ruling in favor of the right of immigrant students to legally obtain a K-12 public education. The general sentiment surrounding Plyler v. Doe was that without an education, these undocumented

| 267

268

|

Education Costs

children, subject to poverty, in need of learning English, and subject to racial prejudice and discrimination, would be unable to gain social mobility and would remain permanently economically disadvantaged. Trends toward Denying Immigrants Educational Rights During the Reagan administration, however, public institutions—like universities—continued to inhibit access to education by forcing immigrants to verify their status in order to receive federal aid. In the 1990s, further efforts were made by state governments to block access to education. For example, California’s Proposition 187 (coined Save Our State by its proponents) in 1994 and the federal Illegal Immigration Reform and Immigration Responsibility Act (IIRAIRA) of 1996 relied upon the unclear terms of the Plyler case when attempting to reclassify undocumented students entering college as out-of-state residents. The reclassification brought about by Prop 187 and IIRAIRA would ensure that, unless undocumented students had the financial ability to attend college, they would be excluded (given the exorbitant costs of out-of-state resident tuition). While the IIRIRA was able to gain a foothold, Proposition 187 was disputed in federal courts and eventually dismantled by Governor Gray Davis in 1998. In 2003, this provision of IIRAIRA was repealed by The Student Adjustment Act. This new act granted states the option to determine residency for in-state tuition at public universities, given that a student possesses a “good moral character.” Arizona Proposition 300 Despite this trend, in November 2006, voters in Arizona passed Proposition 300, a measure denying undocumented residents the right to adult education classes, in-state tuition privileges, and financial assistance for educational purposes. At the University of Arizona, undocumented students could only receive aid from willing, nongovernmental donors. As of spring 2007, this university had lost $160,000 in government supported tuition, and Arizona State University was alleged to have continued giving scholarships to undocumented students. At present, only nine states allow undocumented students access to in-state tuition and funds for attending college. Given that the United States admits international students, there is clearly a need for students in many professional fields and limiting participation of undocumented immigrants who qualify for admittance deprives the United States of talent. Immigrant Financial Contribution to Government This back and forth legislation has since prompted research on exactly what the fiscal costs would be if immigration and immigrant education were excluded or limited. A national report demonstrated that with the net balance of the taxes immigrants pay and the services received, immigrants ultimately contribute more to public coffers—including education—than they take from them. On the state level, it has been estimated that undocumented immigrants

Education Costs

in Arizona contribute approximately $1 billion dollars more to the economy than they receive in state assistance. Many immigration opponents refute this point by arguing that as the immigrant population ages and they are unable to work, citizens will shoulder the financial burden of their care. However, this short-sided reasoning does not take into account the children of these immigrants who will ultimately work and contribute to the tax base. In reality, it is the aging baby-boomer population that will more likely require the help of current immigrants’ labor. RECESSION AND ANTIIMMIGRANT FISCAL BACKLASH In the 1990s, research showed that for every $1 spent on the education of children, $9 is returned. Unfortunately the results of this kind of study did not seem to make their way to the fiscally concerned voter. The era of Proposition 187 coincided with one of the largest economic recessions in California since the Great Depression. In addition to denying education to the undocumented, the proposition was designed to force teachers, social workers, and doctors to turn in their students, clients, and patients who had entered without legal authorization. In 1994, Governor Pete Wilson won the state’s election on a platform that accused immigrants of causing California’s financial plight. More recently, drawn-out congressional debates in Arizona over determining legislation on bilingual education for language-minority students cost the state $22 million dollars in fines. Negative Social Consequences of Denying Services This debate over immigrant education, however, is about much more than the U.S. economy and fiscal costs. For instance, opponents of immigrant education claim that providing public services (e.g., education, Social Security, and healthcare) promotes undocumented immigration. This belief posits that denying public services to undocumented children will deter adults from entering the U.S. illegally. Other people believe that cutting education services to undocumented immigrants will save them valuable tax dollars. These myopic stances fail to see the relationship between school truancy, juvenile criminal activity, and the perpetually high incarceration rates of minorities. Furthermore, proponents of heavy-handed immigration policies are overlooking the importance of cultivating strong education habits across second and third-generation immigrant families. The American Dream and Political Power While proponents of immigration respond to negative accusations by promoting the American Dream, immigration restrictionists are quick to criticize this line of thought as emotional and irrational. In the late 1980s, John Tanton, an ophthalmologist who helped found an anti-bilingualism movement was

| 269

270

|

Education Costs

quoted in the Arizona Republic as writing, “ ‘Will the present majority peaceably hand over its political power to a group [Hispanics] that is simply more fertile?” (cited in Fry 2001,81). Interestingly, many who seek to limit immigration tout these kinds of ethno-racially biased stereotypes as their chief reason for imposing restrictions. INTERGENERATIONAL IMMIGRANT EDUCATIONAL ATTAINMENT When thinking about the trajectory of a child’s academic achievement, many point to the educational attainment of her or his parents. In general, the higher the level of education achieved by the parents, the more likely a child will pursue further education. Extending this point, some might argue that immigrant children of uneducated parents are predestined to underachieve, regardless of the amount of educational services provided. This claim alone apparently weakens the argument for increased immigrant education spending. However, this trend applies less directly to immigrant parents and their children than it does to their citizen counterparts. Considering the plethora of other obstacles that immigrant families face (in comparison to documented residents), limiting education services only fuels the desire to drop out of school. Immigrant parents know that education is the pathway to economic success for their children; though, without adequate assistance, they are left feeling helpless in the schooling process. Educational Opportunity and Undocumented Immigration In addition, opponents of immigration—namely organizations such as the Federation for American Immigration Reform (F.A.I.R.) and groups backing Save our Schools (S.O.S.)—argue that increasing educational opportunities will essentially attract waves of immigrants hoping to take advantage of free education. Contrary to this notion, one recent poll on immigration reports that the number one reason for emigration from home countries remains obtaining a job, and not, as incorrectly assumed by many, to collect welfare and other public service benefits. NEGATIVE MESSAGES ABOUT THE SOCIAL VALUE OF IMMIGRATION Most anti-immigrant policies are technically targeted towards the undocumented, designed to deny them public services. When discussing education, though, we must nevertheless consider the millions of immigrants in the U.S. with legal documentation—citizens and residents explicitly guaranteed access to education—suffering from the effects of renounced rights of the undocumented. All over the media, immigration reform remains a primary topic. Debates over building a wall along the U.S.-Mexico border, reports of Minute-Men restraining border crossers, and the multiple propositions to restrict bilingual education can be found everywhere.

Education Costs

As a result of these headlines, immigrant children learn that their native language and culture are not valued and are highly contested within American society. With regard to legal residents, this simple fact may seem unworthy of mention, until we examine how the identities of documented and undocumented immigrants are conflated. In this context, the latter group’s restrictions are more likely to affect the educational condition of legal immigrants. When discussing the idea of providing education (for both citizens and noncitizens), it is important to consider Mickelson’s idea that “achievement is affected by students’ perceptions of the opportunity structure that awaits them” (2003, 1068). A child who finds herself or himself in a caste-like system—one involving little to no upward mobility—suffers from poor self-perception that may eventually lead to poor mental health outcomes. Anti-Immigrant Media Impact on Mental Health A societal reception that is hostile to immigrants takes a psychological toll; statistics show that rates of mental health disorders increase with time of residence in the United States. This correlation is further supported by the idea that the more assimilated immigrants and subsequent immigrant generations are, the higher the likelihood they have of gravitating towards delinquent behavior. Interestingly, this outcome does not back-up what many anti-immigrant education proponents believe: increased assimilation will lead to harmony between the two cultures and an overall adjustment. Why, then, instead of acculturating with increased exposure to American values, do immigrants oftentimes fall into delinquency and suffer from poor mental health? Psychologist J. W. Berry explains that in order to achieve mutual accommodation and integration between both groups, certain factors most be in place, including “low levels of prejudice and discrimination” and a preparedness to “adapt national institutions (education, health, justice, labor) to better meet the needs of all groups now living together” (2001, 619). Basically, the United States should fund institutions to accommodate the varying needs of immigrant cultures. Given the over-representation of impoverished immigrants and the stigmatization of immigrant languages (e.g., Spanish—the language most spoken by immigrants), it appears that many of these conditions are not being met. Essentially, if we view the education of undocumented individuals as damaging to the United States and continue selecting policies that reflect this notion, we are choosing to perpetuate the detrimental effects resulting from social marginalization. This train of thought leads us to specify just what kinds of educational goals we should promote. FUNDING IMMIGRANT EDUCATION IS CHEAPER IN THE LONG RUN Since different cultures have varying definitions of what constitutes learning, as well as what is meant by education, it is important to view immigrant populations on their own terms. If we hope to understand the concept of immigrant education cost, we cannot rightly deny the unique knowledge base of the very

| 271

272

|

Education Costs

cultures being discussed. Luckily, a recent wave of research has begun to examine this very phenomenon. For instance, the notion of familism is used to define the unique ways many Latino immigrant families negotiate familial priorities. This new research demonstrates that failing to address immigrants on their own terms has its own repercussions and costs. Misunderstanding students outright instills feelings of unworthiness, ultimately causing increased dropout rates. The experience of being an immigrant student does not exist in a vacuum. Many other challenges (e.g., family obligations, peer pressure, and language barriers) should likewise be considered when examining the dynamics of choosing how to properly educate immigrants. Otherwise, we risk accruing additional costs, both social and financial, if we fail to look beyond popular (mis)beliefs advanced by dominant-social-class-related values. Cultural Capital Contributed by Immigrants One such social cost of denying education is the loss of the dynamic cultural capital immigrant children bring to the classroom. Educators have the option to shun a child’s background or to embrace it. The concept of funds of knowledge refers to a family’s specific cultural knowledge base. When teachers are able to build a bridge between classroom materials and a student’s background, immigrant children feel more empowered and are more likely to engage in the learning process. Furthermore, given that parents are a child’s first teacher and remain a large influence throughout a child’s life, policy should focus on educating parents about the United States’ unique educational system and supporting their efforts in encouraging their children to stay in school. This is not possible if undocumented parents fear being reported by the very teachers that should be helping their children. If we are to expect an exchange between immigrant parents and teachers, policy should encourage teachers to appreciate these families’ funds of knowledge and to build on what the child already knows to enrich her or his education. CONCLUSION To simply argue that providing education to immigrants drains the economy, increases delinquency, and promotes undocumented immigration paints an inaccurate and unfair portrait. These misconceptions stem from xenophobic and biased notions of an immigrant population flooding the United States. It is equally near sighted to solely declare that, by educating immigrants, we are ultimately serving the economy. This simplified argument reinforces the one-sided implication of cost by neglecting the multiple social and moral factors inherent in providing an education to immigrants, including preventing crime and delinquency. It also raises the question of just how we define the American Dream; do money matters now trump previous ideals of opportunity? The challenges confronting immigrants are often met by resilience in difficult situations. Businesses are benefiting from adult immigrant labor, but attempts to deny a public education, efforts to apply out-of state college tuition, and other restrictions on civil and democratic rights could deny the next generation the

Education Costs

opportunity to contribute. Creating a second generation population denied an education could contribute to delinquency as legitimate ways of attaining social mobility are denied due to nation of birth in a globalizing world. If we are to continue promoting the virtues implicated in the American Dream, we can no longer deem the argument for monetary gains a sufficient defense for not promoting immigrant education. References: Arizona Education Association. History of Flores v. Arizona. http://www.arizonaea. org/politics.php?page=186; Bempechat, J., S. Graham, and N. Jimenez. “The Socialization of Achievement in Poor and Minority Students.” Journal of Cross Cultural Psychology 30, no. 2 (1999):139–158; Berry, J. W. A Psychology of Immigration. Journal of Social Issues 57, no. 3 (2001):615–631; Cortez, A. “Why Attempt to Fix What’s Not Broken?” Intercultural Development Research Association 23, no. 5 (1996):5–6; Delgado-Gaitan, C. “Sociocultural Adjustment to School and Academic Achievement.” Journal of Early Adolescence 8, no. 6 (1988):63–82; Deng, S., V. Lopez, M. Roosa, E. Ryu, G. Lockhart Burrell, J. Tein, and S. Crowder. “Family Processes Mediating the Relationship of Neighborhood Disadvantage to Early Adolescent Internalizing Problems.” The Journal of Early Adolescence 26, no. 2 (2006):206–231; Essess V. M., J. F. Dovovidio, and G. Hodson. “Public Attitudes Toward Immigration in the United States and Canada in Response to the September 11, 2001 ‘Attack on America.’ ” Analyses of Social Issue and Public Policy 2, no. 1 (2002):69–85; Fry, B. Responding to Immigration Perceptions of Promise and Threat. New York: LBF Scholarly Publishing LLC, 2001; Gans, J. The Economic Impacts of Immigrants in Arizona. Tucson, Arizona: University of Arizona Udall Center for Studies in Public Policy. http://udallcenter. arizona.edu/programs/immigration/publications/immigrants_in_arizona.judith_gans. july2007.pdf; Gonzalez, G. Educational Attainment of Immigrant Families. New York: LBF Scholarly Publishing LLC, 2005; Henning-Stout, M. “Que Podemos Hacer?: Roles for school psychologists with Mexican and Latino migrant children and families.” School Psychology Review 25, no. 2 (1996):152–165; Johnson, E. “Dreams of (Under)Achievement: A Critical Metaphor Analysis of the American Dream and the Formation of Language Policy in Arizona.” Journal of Borderland Education 1, no. 1 (2006):11–28; Martinez, R., Lee, M. “On Immigration and Crime.” In The Nature of Crime: Continuity and Change, edit by G. LaFree, vol.1:485–524. Washington: Office of Justice Programs, U.S. Department of Justice, 2000; Mickelson, R. A., “When Are Racial Disparities in Education the Result of Racial Discrimination? A Social Science Perspective.” Teachers College Record 105, no. 6 (2003):1052–1086; Moll, L. “Rethinking Resistance.” Anthropology & Education Quarterly 35, no. 1 (2004):126–131; Ogbu, J. Minority Education and Caste: The American System in CrossCultural Perspective. New York: Academic Press, 1978; Perry, A. Philosophical Arguments of Membership: The Case of Undocumented Immigrants and Financial Aid for Postsecondary Education. Unpublished Doctoral Dissertation. Cornell University, 2004; Rincon, A. Paying for Their Status: Undocumented Immigrant Students and College Access. Unpublished Doctoral Dissertation. University of Texas at Austin, 2005; Romero, V. Alienated Immigrant Rights, the Constitution, and Equality in America. New York and London: New York University Press, 2005; Sanchez, G. “Face the Nation: Race, Immigration, and the Rise of Nativism in the Late-Twentieth-Century-America.” In American Immigration and Ethnicity, edited by D. A. Gerber and A. M. Kraut, 131–145. New York: Palgrave Macmillan, 2005; U.S. Census Bureau. “Profile of the Foreign Born Population in the United States: 2000.” http://www. census.gov/prod/2002pubs/p23–206.pdf; Vega, W. and A.Gil. Drug Use and Ethnicity in Early Adolescence. New York: Plenum Press, 1998; Vega, W. and S. Lopez. “Priority Issues in Latino Mental Health Services.” Mental Health Services Research 3, no. 4 (2001):189–200.

Valerie A. Ramos and Eric J. Johnson

| 273

274

|

Electronic Eavesdropping

ELECTRONIC EAVESDROPPING In the 1960s, there were those who argued that the U.S. criminal justice system swung back and forth between due-process and crime-control approaches. Due process approaches focus on fundamental constitutional rights, such as presumed innocence, privacy, and illegal search and seizure. Crime-control approaches focus on presumed guilt, suspended privacy rights, and the collection of evidence at any cost—even illegally. Shifts from one orientation to another can occur for many reasons, such as the occurrence of a catastrophic event that makes citizens feel unsafe. In the weeks following the 9/11 terrorist attacks on the United States, the battle between due process and crime control heated up. The criminal justice system shifted to a crime-control orientation. Due process rights took a backseat with the passage of the USA PATRIOT Act and the Bush administration’s National Security Presidential Directives. The directives started programs aimed at preventing terrorism and ignored the necessity of obtaining search warrants. This included National Security Agency (NSA) efforts to electronically eavesdrop without warrants regardless of Fourth-Amendment rights on unreasonable search and seizure. This unprecedented intrusion into citizen’s and authorized immigrant resident’s privacy rights has prompted a major debate about the USA PATRIOT Act’s true purpose and legality. BACKGROUND In December 2005, the New York Times ran a story claiming that the White House authorized the National Security Agency (NSA) to carry out electronic surveillance on U.S. citizens and authorized or unauthorized foreign-born residents within U.S. borders without obtaining search warrants. The directive appeared illegal based on the history of electronic eavesdropping law. History Since the invention of the telegraph, the government has struggled with the need to wiretap and eavesdrop. In 1968, the government started regulating both activities with Title III of the Omnibus Crime Control and Safe Streets Act. Title III let the federal government eavesdrop on U.S. citizens without warrants only in special situations, such as ones involving one-party consent. The Foreign Intelligence Surveillance Act of 1978 relates to foreign-born people within the United States. It permits federal agents to use electronic surveillance (for telephones and computer communication) without a warrant in national security situations. The post-9/11 Bush directive went beyond the bounds of both laws because the NSA targeted U.S. citizens, not just foreigners, without obtaining consent. The administration defended the directive arguing that it was legal based on the president’s broad powers as commander in chief for foreign intelligence collection. They also justified the directive by claiming they viewed it as a reasonable action.

Electronic Eavesdropping | 275

The post-9/11 White House directive for electronic eavesdropping brought up important questions. From a crime-control perspective, should the federal government be able to overstep the boundaries of the U.S. Constitution in order to catch potential terrorists? On the contrary, based on due-process priorities, should we limit electronic eavesdropping by the NSA in the name of privacy rights?

THE CASE OF ELIOT SPITZER In early 2008, an FBI investigation of a pricey prostitution ring in New York was in full swing. They used traditional undercover techniques and parking-lot surveillance in their investigation of the Emperor’s Club. However, they also used information provided by tax officials monitoring bank records. Those officials alerted the FBI that odd money exchanges to the club were taking place from New York Governor Eliot Spitzer. The FBI initially believed Spitzer, a former attorney general with a crime control mindset, was involved in some basic form of political corruption. However, agents convinced a former prostitute working for the club to provide them additional information on Spitzer. They found more than expected. Spitzer was actually a client. Though the investigation had nothing to do with national security, the FBI took advantage of their ability to easily obtain wiretaps and got a judge to grant a warrant allowing them to engage in electronic surveillance of the club. Spitzer’s demise came in February 2008, when he arranged to have a club prostitute meet him at a hotel across state lines in Washington D.C. A 1910 federal statute called the Mann Act prohibits crossing state lines to engage in prostitution. The FBI had the evidence they needed. Under public scrutiny, Spitzer resigned on March 12.

EXPANSION OF ELECTRONIC EAVESDROPPING National Security and the Crime Control Perspective Desperate times call for desperate measures. From a crime-control perspective, President Bush did what citizens wanted after 9/11 by pushing for broad eavesdropping powers. People who are for increasing the federal government’s ability to use surveillance believe wiretapping and eavesdropping are important in the fight against terrorism, especially when citizens and foreign-born residents, authorized or unauthorized, in the United States might have ties to terrorist organizations. People cannot avoid communicating with each other when plotting terrorist acts. Proponents of expanded electronic eavesdropping feel it is necessary to track conversations and electronic correspondence at all cost, in order to keep the country safe, even if it impinges on certain constitutional rights. Frequency. Since 9/11, the federal government has eavesdropped on thousands of telephone calls without warrants. They currently have a database containing information (numbers dialed from specific telephones and calls coming in to specific telephones) on billions of calls made by U.S. citizens and immigrants.

276

|

Electronic Eavesdropping

The NSA has probably prevented multiple terrorist acts with this information, especially since they say they have only been focusing on al Qaeda suspects. LIMITING ELECTRONIC EAVESDROPPING Cost and the Due Process Perspective The United States currently spends $40 billion per year on intelligence. Much of it, citizens did not ask the government to spend. After all, the President enacted the NSA electronic surveillance program under a veil of secrecy without following proper legal channels. He did check with some members of Congress before moving forward, but now some of those people say they were confused about what exactly the NSA would be doing. It is not economically assuring to know that tax dollars are being used to prevent something that might happen. Moreover, from a due-process perspective of security versus privacy, some people believe Americans would choose more privacy if they had a choice. Questions of Usefulness and Unwarranted Use Regardless, can we really count on the NSA? It has to sift through insurmountable amounts of data every day. The chances are low that they will turn up evidence that provides guaranteed national security. Furthermore, the federal government could be using eavesdropping powers to target people who have nothing to do with terrorism. That goes against fundamental ideas of privacy and paints a scary picture of our government. Consider the story of Mark Klein. The AT&T technician says he saw NSA workers build secret rooms at telephone company headquarters in 2003. According to his accounts, the rooms have cables that tap into lines allowing the NSA to track internet data. Is this what Americans want? Apparently, it is not. One survey found that 59 percent of Americans think the NSA data collection program is an unnecessary tool in the fight against terrorism. CONCLUSION NSA electronic eavesdropping is not the only White House program under scrutiny. A separate program operated by the Central Intelligence Agency and supervised by the Treasury Department involves the examination of bank transactions without warrants. The logic behind the program is to cut off funding for terrorism, limiting its effectiveness. As the United States continues to emphasize the crime-control model in its war on terrorism, citizens need to carefully evaluate the effectiveness of warrant-free surveillance and the amount of power it allows the government to have. See also Department of Homeland Security (DHS) and Immigration Enforcement; National Security and Community Policing; 9/11 Commission and Recommendations; Police Relations; Symbolic Security; Terrorism and National Security; USA Patriot Act. References: Burton, Adam. “Fixing FISA for Long War: Regulating Warrantless Surveillance in the Age of Terrorism.” Pierce Law Review 4, no. 2 (2006):381–404; Fishman, Clifford.

Employer Sanctions “Wiretapping and Eavesdropping.” In Encyclopedia of Crime and Justice, edited by Sanford H. Kadish, 1657–1664. New York: The Free Press, 1983; Hosenball, Mark, and Evan Thomas. “Hold the Phone; Big Brother Knows Whom You Call. Is that legal, and Will It Help Catch the Bad Guys?” Newsweek, May 22, 2006:22; Jordan, David Alan. “Decrypting the Fourth Amendment: Warrantless NSA Surveillance and the Enhanced Expectation of Privacy Provided by Encrypted Voice Over Internet Protocol.” Boston College Law Review 4, no. 1 (2006):1–42; Kocieniewski, David, and Danny Hakim. “Spitzer Resigns in Sex Scandal and Turns His Attention to Healing His Family.” The New York Times, March 13, 2008:1; Lichtblau, Eric, and James Risen. “Bank Data Sifted in Secret by U.S. to Block Terror.” The New York Times, June 23, 2006, A1; Packer, Herbert. The Limits of Criminal Sanction. Stanford, CA: Stanford University Press, 1968; Pilkington, Ed. “Mysterious Bank Transfers Alerted Tax Investigators.” The Guardian, March 12, 2008:19; Richburg, Keith. “Spitzer Linked to Prostitution Ring by Wiretap.” Washington Post, March 11, 2008, A1; Risen, James, and Eric Lichtblau. “Bush Lets U.S. Spy on Callers without Courts.” The New York Times, December 16, 2005, A1.

Jason S. Ulsperger

EMPLOYER SANCTIONS In 1986 when the Immigration Reform and Control Act (IRCA) was passed, the public was led to hope that employer sanctions for hiring unauthorized workers and amnesty would result in legalization of the workforce and prevention of further hiring of undocumented immigrants. That never happened. Prior to 9/11, employer sanction enforcement was sporadic and it dwindled to an almost complete halt in 2004. Employers could hire undocumented workers with impunity, relying on the loophole that IRCA did not require them to validate documents, such as Social Security cards, presented upon hiring a person. This changed in 2005 when Immigration and Customs Enforcement (ICE) began a series of raids on employers who were knowingly hiring unauthorized workers under substandard working conditions and committing tax violations paired with money laundering offenses. Suddenly, industries that were very dependent on undocumented immigrants were facing large fines, executive imprisonment, and asset forfeiture in the millions. Business is very influential in lobbying for legislation favorable to its interests and their lobby supports a guest-worker program and legalization. Certain businesses are reliant on unauthorized workers and realize a higher profit margin as a result. Congress has been unable to reach a compromise on an immigration bill, and employers are feeling the heat. Department of Homeland Security Secretary Michael Chertoff has used IRCA to go after people who have considered themselves above the law. The convergence of an estimated 12 million unauthorized immigrants, their employment in particular businesses, and workplace raids suggest that this controversy has heated past the boiling point. BACKGROUND The 1952 Texas Proviso allowed employers to hire undocumented workers without any penalty. The Immigration and Reform Act (IRCA) of 1986

|

277

278

|

Employer Sanctions

provided for procedures to verify employee work authorization and made knowingly hiring and employing unauthorized workers illegal. IRCA required all employers to complete an Immigration and Naturalization Service (INS) I-9 form providing name, date of birth, address, Social Security, and identification form for workers. Employers could choose from many documents to meet this requirement: driver’s licenses, voter registration cards, passports, etc. If employers did not comply, INA section 274A provided for employer fines beginning at $250 and increasing up to a maximum of $10,000 per unauthorized worker. If a violation was repeated, the amount of the fine increased. If there was a pattern of hiring unauthorized workers, employers could be imprisoned up to six months. IRCA requires employers to check all potential employee work papers, such as Social Security cards and work permits. Because of concerns about the civil rights of (and discrimination against) Hispanics, a national ID card was not implemented by Congress when IRCA passed. This omission left a huge loophole for employers because unless fraudulent documentation was extremely substandard, employers could easily claim that they did not knowingly hire an undocumented worker. In addition, if a business hired workers from a subcontractor, the subcontractor assumed the responsibility, and the employer could deny having any knowledge of using undocumented workers. Two years after the passage of IRCA, U.S. Border Patrol apprehensions of undocumented entrants at the U.S.-Mexico border had decreased, but then the number jumped. The fraudulent-document cottage industry had expanded into an organized criminal enterprise. Once unauthorized workers learned that employers were not going to check and see if they had counterfeit documents, unauthorized entrants began to purchase fraudulent documents and take jobs after successful entry. Initially, the INS tried to make the system of employer sanctions work, but only civil, not criminal penalties were used. Over time, INS became overloaded from handling both increased documented and undocumented immigration caseloads in addition to workplace enforcement. In 1994, the INS developed the Phoenix Plan. Under this new plan, the INS would look at an employer’s I-9 records and give them the opportunity to fire unauthorized workers rather than conducting worksite raids and deporting such workers. The Phoenix plan was defended as cost efficient, less troubling, and easier for businesses to accommodate. It was assumed that the unauthorized workers would leave for their home country when they lost their jobs. This plan was outrageously inefficient because the unauthorized workers still had the fraudulent documents they had used for the I-9 forms and were working in the United States. The undocumented workers used the counterfeit forms to get new jobs, sometimes with competing employers. In 1998, the INS required high-profile workplace enforcement operations to get district or national district or national headquarters approval, which slowed or discouraged such efforts. At the same time, interior enforcement immigration officers were told to avoid operations that would disturb the public, such as raiding businesses at peak customer times. Finally, a community-operations

Employer Sanctions

liaison officer was required to be present when the INS entered work sites except when especially unsavory businesses, such as sweatshops, were raided. Under the original Phoenix plan, an average of 1,660 warnings and fines were issued per year between 1994 and 1998. After the new provisions in 1998, the number of warnings and fines dropped to an average of 427 per year through 2002. The INS was developing a history of backing off if an employer stated that they did not know the law or fought a fine. In the 15,000 cases investigated, only 3,765 involved the assessment of a fine. $34.5 million in fines were given, but only $14.5 million was collected. Of the ten largest fines imposed through 1994, five were negotiated down to no payment, and the other five were lessened. The INS allowed all employers to negotiate a settlement and the vast majority did so. Often a part of the settlement involved signing up for an employee verification program. Sweatshops often solved their problem by closing and then setting up under a new name. During the Clinton administration, another issue surfaced related to undocumented labor. The INS had never dealt to any great degree with the issue of unauthorized workers in private households. Both Kimba Wood and Zoe Baird were lawyers nominated to be Attorney General during the Clinton administration. They withdrew their nominations after it was discovered that they had employed undocumented workers. High, a conservative immigration researcher, notes that the Kimba Wood and Zoe Baird cases brought to light the fact that it is illegal to employ household workers—maids, gardeners, and so on—because they are unauthorized. In addition, private arrangements allow federal taxes, Social Security, and Medicare to be dispensed with. This allows employees to get more money immediately because they are illegal and employers are able to save money because the cost of these benefits, if paid fully, would be higher. In 1996 the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRAIRA) provided indication that Congress knew that employer sanctions were not working. Business lobbying interests are very powerful, however, and rather than install a national identification verification system, legislators adopted a pilot program to confirm employment eligibility with machine-readable documents. This pilot project to determine employment eligibility had been found to be successful, and by 2003, Congress voted to extend the pilot project for five years and to make it operational nationwide by 2004. Since 2004, Immigration and Customs Enforcement (formerly the INS) has used tougher enforcement tactics including undercover agents who carry recording devices. After a successful investigation, seizures of property connected with use of unauthorized labor occur. Industries that rely a great deal on unauthorized immigrants (such as meatpacking, construction, and apparel) are being targeted. The question of whether employers should continually check noncitizen work authorization has not been completely decided by the courts. Statutory and case law suggests that if employers have constructive knowledge—suspicion, tips from authorities, or poorly filled out forms—they should check on the worker. Congress has the final authority to make continual inspection of work documents a part of law.

|

279

280

|

Employer Sanctions

WORKSITE ENFORCEMENT RAIDS In the public mind, immigration raids are typically connected with the removal of unauthorized immigrant workers. Although corporate raids result the in arrest, detention, and deportation of many unauthorized immigrants, ICE maintains it is targeting employers. According to the ICE Web site, it has transitioned toward a focus on employers’ immigration and labor law violations. ICE conducts worksite-enforcement investigations of criminal violations by employers. Employment of unauthorized entrants is illegal, and employers have become involved in human smuggling, harboring unauthorized entrants, document fraud, money laundering, violation of the requirement to pay the minimum wage, and breaking of workplace health and safety law. ICE attempts to document situations of worker exploitation, including the use of threat of deportation or force to keep workers from reporting substandard or abusive work conditions. The discovery and arrest of employers violating criminal statutes is meant to deter other employers from deviation from the law. ICE monitors sensitive worksites for unauthorized workers. They are developing an automated system that will enable security agencies to independently verify workplace authorization before employers can hire workers. In effect, ICE is not relying on employers to verify whether or not workers are using fraudulent documents. Julie L. Myers, Department of Homeland Security Assistant Secretary for Immigration and Customs Enforcement, wrote an op-ed piece in which she announced criminal charges against selected roofing companies in St. Louis and Kansas City, Missouri. The companies, their owners, and their managers were all charged. Myers stated that. in the past. lengthy paperwork investigations had resulted in minimal fines that were merely a slap on the wrist. In 2002 ICE prosecuted only 25 worksite-investigation criminal cases, and 485 unauthorized workers were deported. In 2006 there were 716 case investigations with 3,667 administrative arrests. ICE has the authority to seize assets and had collected $29 million in

Table E.1 INS/ ICE Unauthorized Immigration Workplace Arrests, Investigations and Number of Employer Fines

Year

Arrests

Investigations Completed

Number of Fines Levied

1997 1998 1999 2000 2001 2002 2003

17,554 13,914 2,849 953 735 485 445

7,537 7,788 3,898 1,966 1,595 2,061 2,194

778 535 297 180 78 13 124

Employer Sanctions

forfeiture as of June 2007. In 2002 the INS collected $72,585 in criminal fi nes. ICE has prosecuted a wide variety of companies including fruit and vegetable processing factories and cleaning agencies. In April 2007, the owner of ten Dunkin’ Donuts restaurants in Connecticut paid a $1-million fine and was sentenced to 10 months in jail. Myers suggests that a mandatory employmentverification system with tighter criteria for employer verification of worker documents and increased civil penalties would allow ICE to increase its effectiveness further. Fines versus Seizures The INS fined employers; its successor organization, the Immigration and Customs Enforcement (ICE), an arm of the Department of Homeland Security, is arresting them. “The number of workplace fines dropped from 417 in Fiscal Year 1999 to three in FY 2004 while criminal arrests—of which a sizable number involve company executives or managers—increased. In FY 2005, there were 176 arrests; a year later, there were 718. In the first three months of FY 2007, which began in October, there were been 395 criminal arrests. Seizures of property are also on the rise. For example, in drug busts, the federal government can seize property related to a crime and require the property owner to prove in a hearing that the property was not involved in the crime. Such seizures often end up with owners forfeiting property. Now ICE is using the tactic. In FY 2005, it netted $15 million from a single forfeiture case—more money than the total the government collected in immigration-related workplace fines in the previous eight years. These white-collar arrests are being followed by some convictions. Wal-mart paid an $11 million settlement. In FY 2004, there were 46 convictions while in FY 2005 there were 127. A Baltimore Sushi chain owner pleaded guilty to both money laundering and employment of illegal workers. The settlement was one million dollars. ICE is targeting firms that knowingly employ unauthorized workers to increase the risk involved, which could deter other employers from doing the same. In a 2005 undercover case involving IFCO Systems (a manufacturer of pallets and containers) of Guilderland, New York, an informant showed an executive a fraudulent green card, which he accepted as a probable false ID. When the informant returned with more fake green cards, management was grateful. ICE then targeted the Houston branch of IFCO and found that the company recruited unauthorized workers and provided then with company houses and transportation to and from work. Next, ICE conducted a multiple-state raid of IFCO, arresting seven current and former managers and 1,187 unauthorized workers in 26 states. Five administrators pleaded guilty to knowingly employing undocumented workers, and each faces two years in prison and $250,000 in fines. The ICE investigations revealed that 53.4 percent of the 5,800 Social Security numbers in use at IFCO were invalid, did not match the name registered, or belonged to children or people who were deceased.

|

281

282

|

Employer Sanctions

ARGUMENTS AGAINST IMPLEMENTING EMPLOYER SANCTIONS IRCA contained a provision for the Government Accounting Office (GAO) to check to see if employer sanctions would result in discrimination against temporary or permanent-resident aliens and citizens. In 1990, the GAO surveyed 9,400 employers and, in conjunction with the Urban Institute, conducted a hiring audit in which 360 paired persons (a foreign-sounding person of Hispanic appearance and an Anglo without an accent) applied for employment. The report found that national-origin discrimination was not an isolated event but a pattern among employers who did not want to hire an unauthorized worker. The GAO estimated that 10 percent of the 4.6 million employers in the survey population had been discriminated against by employers who feared employer sanctions. A GAO and the Urban Institute matched-pair hiring audit found that foreign-accented, Hispanic-appearing persons were three times more likely to receive unfavorable treatment. The Anglo participants were 52 percent more likely to get job offers. Cynthia Bansak, an academician, used Current Population Survey files from 1983–1990 to see if IRCA had resulted in discrimination. She found a decline in the earnings of Mexican-origin workers relative to that of Cubans and Puerto Ricans. This wage change did not affect non-Hispanic, white workers. Bansak examined the impact of the level of enforcement and changes over time in relation to employer-sanctions-related discrimination. In regions characterized by enforcement, the wage decline for Mexican-origin workers remained constant. In regions with a low level of enforcement, where employers realized they were likely to get by with a good faith effort, the downward trend in wages for these workers was reversed. Bansak concluded that the continual decline in the level of enforcement through the 1990s and up to 2004 would have lessened the likelihood of discrimination against Mexican origin workers. If employers so choose, they can contact the Office of Special Counsel for Immigration Related Unfair Employment Practices. This office appears to have an advisory rather than a regulatory function, as they indicate that employers should accept documents that “appear to be genuine on their face” and that the Department of Homeland Security cannot be contacted to “run a number” (such as a Social Security number) unless the employer has “strong and articulable reasons” to believe a document is false (http://www.usdoj.gov/crt/osc/htm/facts. htm#overview). This office operates for the purpose of preventing discrimination, but does not attempt to identify document or identity fraud. Eventually, the issue of identity fraud may produce more pressure for a national system of document verification. Large-scale and highly publicized workplace enforcement raids since 2004 that have resulted in both employer sanctions and deportations could resurrect the pattern of discrimination against Mexican workers and various other nationalorigin groups who have an accent and appear foreign. This phenomenon is what ICE is counting on to reduce employment of unauthorized workers, but it will also likely bring back discrimination against an even wider variety of groups, including Central Americans, Asians, and Caribbean immigrants.

Employer Sanctions

|

283

A broad spectrum of labor unions, civil rights, and religious groups has been opposed to employer sanctions. They include the American Civil Liberties Union, the U.S. Civil Rights Commission, the NAACP Legal Defense and Education Fund, the Mexican-American Legal Defense and Education Fund, the American Friends Service Committee, and the National Conference of Catholic Bishops. In 2000, the AFL-CIO issued an anti-employer-sanctions resolution that was immediately supported by the National Network for Immigrant and Refugee Rights (NNIRR), an affiliated group of over 200 immigrant, civil-rights, and labor organizations. The AFL-CIO suggested that employers were knowingly hiring undocumented workers and if the workers ask for improved working conditions, they were fired. The AFL-CIO proposed that undocumented workers should be given the legal right to federal-labor law protections. While immigration advocates thought this position has its merits, there would be negative public reaction regarding giving rights to undocumented immigrants. The reason for Congress to grant these rights would be to offset the competitive labor-cost advantage of substandard working conditions, eliminating the benefit of hiring unauthorized labor. EMPLOYER HIRES UNDOCUMENTED WORKERS TO BUILD U.S.-MEXICO BORDER FENCE Two corporate officers of the Golden State Fence Company pled guilty in San Diego federal court to felony charges of knowingly hiring at least ten unauthorized workers from January 1999 to November 2005. The company agreed to forfeit $4,700,000 in illegal proceeds and to implement a compliance program to reduce the possibility of again hiring undocumented workers. The two company officers, Melvin Kay Jr. and Michael McLaughlin were individually fined $100,000 and $200,000, respectively. ICE was able to prove the case by monitoring records and determining that certain workers were unauthorized in 1999, 2004, and 2005. In 2006, ICE obtained a search warrant and scrutinized the employer’s records. The company’s paperwork indicated a pattern of hiring undocumented workers and showed that hundreds of names and Social Security numbers (SSNs) did not match national SSN records. During the search, 16 unauthorized workers were arrested. Testimony was later provided that the Golden State Fence Company was aware of hiring workers without valid documentation. The two company officers faced a minimum of six months and a maximum sentence of five years (felony) in prison with a maximum $250,000 fine. At the time of the guilty plea, it was recommended that the men serve at least six months (a lesser misdemeanor charge). Instead, following the INS/ICE pattern of leniency with employers, they received three years of probation,180 days of home confinement with electronic monitoring, and 1,060 hours of community service. The company officers had been previously warned not to hire undocumented workers, but they had rehired ten. In their defense, they commented that it was difficult to fire people with families and mortgages who had proven themselves to be reliable experienced workers.

284

|

Employer Sanctions

The League of Latin American Citizens (LULAC) has referred to raids as inhumane and called for a moratorium, as there was a likelihood of a legalization program in 2007, although Congress failed to pass one. LULAC President Rosa Rosales pointed out that no one has been arrested on a charge of terrorism, the Department of Homeland Security’s top priority, during these raids. Many of the arrested had families and were separated from their children, which raised questions of who would take care of these children, who were often U.S.-born citizens. The lack of agreement among and between the Senate and House in Congress, during an election year, all but ruled out a legalization program. The result has been that ICE is increasingly pressing enforcement that threatens individuals and communities with its severity. ARGUMENTS FOR EMPLOYER SANCTIONS AND WORKPLACE ENFORCEMENT Identity theft has become a new type of crime in the late twenty-first century. Victims of stolen identity have encountered debt collectors, credit denials, forced bankruptcy, and other financial harms. Unauthorized workers have turned to ID counterfeiters, and as computerization has increased, the possibility of stealing private IDs for financial transactions has greatly increased as well. The GAO testified that the wide variety of documents that can be used for an I-9 form in the basic pilot employment verification program makes it difficult to determine if documentation is exact. In particular, many employers are unknowingly hiring unauthorized workers, not only because of counterfeit documents, but because of identity fraud, which is even more difficult to detect. ICE has responded with a small number of large-scale operations primarily focused on workplace raids. ICE has targeted businesses with high numbers of unauthorized workers as part of a campaign against both the hiring of unauthorized workers and identity theft. In 2005, a large series of raids was carried out against the meat processor Swift & Company in Greeley, Colorado; Grand Island, Nebraska; Cactus, Texas; Hyrum, Utah; Marshalltown, Iowa; and Worthington, Minnesota. The meatpacking industry is extensively staffed by immigrants who are subject to low pay and poor working conditions. The largest INS/ICE raid in history resulted in 1,282 worker arrests. Sixty-five individuals were held on criminal charges while the others were held on the basis of civil violations of immigration law. No charges or allegations were filed against the Swift Company. ICE chief Julie L. Myers stated that agents had uncovered an identity theft ring in which the identities and Social Security numbers of citizens and permanent lawful residents had been stolen. In Amarillo, Texas, Federal Judge Mary Sue Robinson denied a workers’ union request for a stay of action against detainment indicating that there were 331 complaints of identity theft against Swift workers (Solis, 2006). In the union’s request for an injunction for 13 workers, Judge Robinson noted that all used false identities and one woman faced charges of aggravated identity theft. It is probable that organized crime, which is already involved in human smuggling and trafficking, is participating in the fraudulent-document industry and expanding into the business of identity theft. Identity theft can economically

Employer Sanctions

ruin individuals, and more pressure will be brought to ensure that worker documents are legitimate. Annie Decker, a lawyer, suggests that pressure to verify whether an employee’s paperwork is accurate can discourage labor-rights disputes. Legal workers may face problems pressing for labor rights if they fear they will be replaced by undocumented immigrants in industries with high immigrant-labor concentration. The Supreme Court referred this issue to Congress, suggesting that they considered suspending employer responsibility to check employee verification during labor disputes. On the other hand, employers who carry out their duty to verify worker documentation are put at a competitive disadvantage relative to noncompliant employers who can coerce unauthorized workers to accept substandard pay and working conditions. Decker argues that by providing protection for undocumented workers, employers will have less incentive to hire them. The Federation for American Immigration Reform (FAIR) advocates the use of employer sanctions in a way that does not place employers in double jeopardy. They contend that employers who make a concerted effort to hire only authorized noncitizen and citizen workers are more likely to face charges of racial discrimination because they made an error. Additionally, conscientious employers are at a disadvantage when employers who look the other way when examining documents hire cheaper labor. FAIR suggests that the federal government should take responsibility for verifying worker documentation. This would relieve employers of the responsibility of verifying documents and, theoretically, remove the possibility of discrimination due to national origins and appearance profiling. FAIR feels that the agri-business lobby and employers who are very dependent on undocumented labor have pressured Congress not to pass a mandatory national-identification program. When IRCA was being debated, a national ID card was turned down as an instrument that might foster discrimination. The REAL ID Act of 2005, whose operation has been postponed until 2009, will let states develop uniform standards for driver’s licenses and identification cards for those who do not drive. As a part of the act, individuals will need to provide a photo or nonphoto ID, birth certificate, citizen or noncitizen status documents, a Social Security number, and an address. All of these initial documents will be copied and, along with the driver’s license or ID, stored in a database that is accessible nation-wide. There is disagreement about whether this step has created a national identification card. CONCLUSION Employer sanctions may look like a good idea on paper, but lenient enforcement followed by controversial workplace raids suggests that there are negative community implications. These must be considered along with the reduction in unauthorized workers through detention and removal that places stress on families and communities. United States immigration policy has been Janusfaced (two-faced); talk of severe measures is often not matched by the degree of action.

|

285

286

|

Employer Sanctions

The history of INS/ICE enforcement of employer sanctions suggests that the business lobby has had a degree of power that allowed the need for low cost, unskilled labor to ultimately prevent these white-collar crimes from being effectively enforced. Since the creation of the Department of Homeland Security and the unprecedented rate of increase in the undocumented population, national security has become an issue, and ICE is acting more forcefully. This has sparked community protests, as many unexpected consequences have ensued. The raids have involved extensive use of force against profiled workers, resulting in the separation of children from parents in mixed immigration status families. Many citizens are agitated because of the degree of disruption the raids have caused. This negative public reaction to the way that the raids are handled augments the disinclination of businesses to make sure that their I-9 forms are backed up by authentic documents. See also Identification Cards; Identity Theft; Minimum Wage; Raids; Sanctuary Policy; Sweatshop Labor; Underground Economy References: Bach, Robert. “Transforming Border Security: Prevention First.” Homeland Security Affairs 1, no. 1. http://www.hsaj.org/hsa/volI/iss1/art2; Bansack, Cynthia. “The Differential Wage Impact of the Immigration Reform and Control Act on Latino Ethnic Subgroups.” Social Science Quarterly 86(2005):1279–1299; Berestein, Leslie. “Probation Set in Rare Immigrant Labor Case.” The San Diego Union-Tribune. March 29, 2007; Decker, Annie. “Suspending Employers’ Immigration-Related Duties During Labor Disputes: A Statutory Proposal.” The Yale Law Journal 115, no. 8 (2006):2193–2201; Department of Justice. www.usdoj.gov/usao/cas/press/cas61214-GoldenStateFence.pdf; Dunne, Elizabeth M. “The Embarrassing Secret of Immigration Law: Understanding Why Congress Should Enact an Enforcement Statute for Undocumented Workers.” Emory Law Journal 49, no. 2 (2000):623–675; Federation for American Immigration Reform. Employer Sanctions. http://www.fairus.org/site/PageServer?pagename=iic_immigrationissuecenters ff8e; Green, Thomas C., and Illiana M. Ciobanu. “Deputizing—and Then Prosecuting— America’s Businesses in the Fight Against Illegal Immigration.” The American Criminal Law Review 43, no. 3 (2006):1203–1224; High, George B. “Facing The Issues? Employer Sanctions, Tax Violations and Household Workers. Washington DC: Center for Immigration Studies. www.cis.org/articles/1993/back393.html; Immigration and Customs Enforcement. “Worksite Enforcement.” http://www.ice.gov/pi/worksite/index.htm; Jonsson, Patrik. “U.S. authorities hold tougher line on hiring illegal immigrants; Criminal arrests, often of executives, quadrupled in a year. But is it a tactic to pass a guest worker program?” The Christian Science Monitor, Match 20, 2007:1; Myers, Julie R. “No More Slaps on Wrists for Workplace Violations.” Kansas City Star. June 26, 2007. http://www.ice. gov/doclib/pi/newstestimonies/07062KCStarOpEd.pdf; National Network for Immigrant and Refugee Rights. “Immigrant Rights Groups Applaud AFL-CIO Resolution Against Employer Sanctions.” www.nnirr.org/news/press_releases/FEB17.HTM; Office of Special Counsel for Immigration Related Unfair Employment Practices. http://www.usdoj.gov/ crt/osc/htm/facts.htm#overview; Solis, Dianne. “Judge Refuses to Halt Swift Worker’s Detention: She Cites ID Theft in Rejecting Union’s Bid for Injunction.” Dallas Morning News, December 22, 2006:1; United States Government Accountability Office. Immigration Enforcement: Weaknesses Hinder Employment Verification and Worksite Enforcement Efforts: Testimony Before the Subcommittee on Immigration, Border Security and Citizenship, Committee of the Judiciary, U.S. Senate: Richard M. Stana, Director Homeland Security and

Enslavement Justice. Washington DC: U.S. Government Printing Office, 2006; United States Government Accountability Office. Immigration Reform: Employer Sanctions and the Question of Discrimination. Washington DC: U.S. Government Printing Office, 1990.

Judith Ann Warner

ENSLAVEMENT Human trafficking, or trafficking in persons, has been defined as the new modern-day form of slavery and is perhaps one of the most profitable transnational crimes next to the sale of drugs and arms. This transnational crime has been subject to international and national attention. Publicity and human-rights advocacy has helped pave the way for the creation of international and national laws to stop the sale and enslavement of persons. However, some controversy exists over the extent of the protection these laws provide, especially the Victims of Trafficking and Violence Prevention Act of 2000 (VTVPA), a law drafted and implemented by the United States. Because a significant number of persons who are trafficked become vulnerable victims of this crime due to grim economic circumstances in their native countries, controversy also exists over the extent to which victims contribute to their own victimization and whether the United States should provide any legal protection for these victims. Opposing views focus on the extent to which the law should protect victims (such as prostitutes, sex workers, and agricultural workers) who might have initially consented to being transported across national or international borders in order to find employment and then became enslaved. WHAT IS HUMAN TRAFFICKING? Trafficking in persons has a broad definition. The Protocol to Prevent, Suppress, and Punish Trafficking in Persons (the Palermo Protocol), which is the leading and most recent international legislation to stop the sale and enslavement of persons, defines human trafficking in persons as • The action of: recruiting, transporting, transferring, harboring, or receiving persons • By means of: the threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim • For the purpose of: exploitation, which includes exploiting the prostitution of others, sexual exploitation, forced labor, slavery or similar practices, and the removal of organs. Using the international definition as a foundation, the U.S. Congress adopted the VTVPA, which is the leading U.S. law against trafficking. The law categorizes human trafficking into two primary components: sex trafficking and labor trafficking. Both types of trafficking are defined as involving the recruitment, harboring, transportation, provision, or obtaining of a person. Sex trafficking is for the

| 287

288

|

Enslavement

purpose of initiating a commercial sex act by force, fraud, or coercion and the law particularly focuses on when the sex trafficked individual is under 18 years old, specifying even greater penalties. Labor trafficking concerns using force, fraud, or coercion to subject a person to labor under conditions of involuntary servitude, peonage (debt bondage, often to work off a smuggling fee), or slavery. Human trafficking can also be understood within the context of the methods and/or activities of the trafficker(s)—those who actively engage in the sale and enslavement of persons. The trafficker usually recruits persons, either adults or children, to be sold into slavery. Recruitment generally involves some form of deception or fraud such as lying about finding and/or providing legitimate employment for persons. Recruitment can also involve the abduction of persons. The trafficker then needs to make the transaction or the sale of the person in exchange for money or another service. This usually involves transporting a person to a specific destination. Finally, the receipt or transfer of the person to the paying customer or client must be made. The threat or use of force or any other means of coercion is present throughout the components or phases of the sale. Additionally, once the transfer to the paying customer is made, the trafficked person is further exploited by being forced to work as a prostitute, agricultural worker, domestic servant, or any other work against her or his will. Although the definition of human trafficking does not necessarily need to involve the sale, transportation, or transfer of a person across international borders, victims of this crime are usually sold on an international scale, thus the need to classify human trafficking as a transnational crime. BACKGROUND Although the sale of drugs and arms are two of the most profitable transnational crimes since the fall of the Soviet Union in the early 1990s, human trafficking has become well-known in the first decade of the twenty-first century. Indeed, the television mini-series Human Trafficking on Lifetime starring Mira Sorvino has certainly brought attention to this global issue as has the public fight of singer Ricky Martin to combat this crime. Today, it is estimated that 21 million people are victims of human trafficking. In the United States alone, government estimates indicate that between 600,000 and 800,000 individuals are victims of trafficking each year. One of the reasons for the existence of this problem is that the sale of human beings is highly profitable. In fact, it is estimated to be the third-most profitable international crime next to the sale of weapons and drugs. The profits of the global human trafficking enterprise are estimated at $7–10 billion a year. Other reasons for its prevalence may be the belief (of the traffickers) that there is a relatively low risk of being apprehended and punished. Law enforcement preoccupation with stopping the sale of weapons and drugs leaves criminals with the impression that human trafficking laws will not be enforced and that their chances of being arrested and incarcerated are minimal at best. This false sense of security also drives the willingness of traffickers to continue their economic venture. Human trafficking results in a form of slave labor or involuntary servitude. It is a venture that thrives on the exploitation of humans for financial or economic

Enslavement

reasons. In fact, one could argue that human trafficking is a more profitable business than other transnational crimes, such as arms trafficking or drug smuggling because humans can be sold over and over again. Thus, unlike drugs and arms, which are usually sold to only one customer for a one-time profit, humans can be resold to different customers and sold numerous times for an exponential amount of profit. Typically, victims of human trafficking are sold and enslaved to perform a variety of jobs, the most common of which involves working in some capacity in the sex industry as prostitutes or exotic entertainers. This is the case for most women and children. Children are often trafficking victims of sex tourism operations. Sex tourism or child-sex tourism occurs when people of one country, usually because of strict enforcement of human trafficking laws, travel to a foreign location for sexual gratification. The travel is undertaken with the knowledge the government of the visiting county does not have the capability or is unwilling to enforce trafficking laws or prostitution laws. Mexico and Latin America have been locations where child-sex tourism has been thriving. Children are also used as camel jockeys (camel riders in races) in some countries or forced to work as domestic servants or in sweatshops. In most cases, victims of human trafficking are forced to perform a multitude of jobs because the traffickers insist that they must pay an impending debt— money ostensibly used by the trafficker to purchase fraudulent travel documents or pay for any travel expenses. Essentially, the traffickers create a situation of debt bondage where the victims must perform some type of service to earn their freedom. However, freedom is rarely a reality because the trafficker is constantly adding to the debt. Over-inflated living expenses, medical expenses, and other expenses, including the trafficker’s commission, keep the victim from earning her or his freedom. There are some who wonder why victims do not attempt to escape their captors and why they choose to remain enslaved. The answer is actually quite simple. Victims do not choose to remain enslaved, and they do not attempt to escape for fear of harm to themselves or their family. Victims are continuously warned that if they try to flee or call the authorities, death will be imminent. Harm could also come to family members. The psychological abuse of constantly fearing for one’s life or the lives of loved ones is enough to cripple any attempts to escape. Psychological manipulation at the hands of the traffickers is not the only factor that keeps victims from escaping. Most victims fear they will be arrested since most are in a country without legal documents and authorization. What makes matters worse is that travel visas, even if fraudulent, are taken from the victim as soon as they reach their place of destination. Fear of arrest for violating immigration laws keeps victims from contacting authorities. Physical abuse is also a factor that keeps victims from escaping. In addition, constant supervision by their captures makes it virtually impossible to attempt an escape. CURRENT EFFORTS TO END HUMAN TRAFFICKING The international community has been tackling the problem of human trafficking since the early 1900s, when a 1904 international treaty banned trafficking

| 289

290

|

Enslavement

in white women for prostitution—the so-called white slave trade. In the midtwentieth century, further international treaties were created to address this problem. For instance, in 1949, the United Nations, of which the United States is a member, signed an international treaty to suppress the sale of humans. More recently in 2000, 148 countries were signatories to an international treaty to prevent, suppress, and punish those who traffic in persons. This international treaty, known as the Palermo Protocol because it was signed by the various nations in Palermo, Italy, makes it a crime to recruit, transfer, harbor, or purchase a person for the purpose of any type of exploitation. It also makes the sale of organs a crime. The Palermo Protocol considers a victim’s consent irrelevant, meaning that any person who is abducted, deceived, forced, or suffers other forms of coercion or initially agrees to be transported across borders shall be treated as a victim if she or he suffers any form of exploitation. The victims shall receive help to return to their country or city of origin and shall receive any medical, legal, or psychological assistance needed. COUNTRIES WHO COMPLY WITH INTERNATIONAL LAW According to the U.S. Department of State, there are numerous countries that have made significant strides in adopting legislation to prevent human trafficking and strides in prosecuting traffickers and protecting victims of this crime. In fact, the Department of State acknowledged the efforts of 26 counties that have taken significant steps to prevent the sale and enslavement of human beings. Some of the most notable countries include Australia, the United Kingdom, and Sweden. Australia has adopted important legislation to prevent the sale and enslavement of human beings. It has successfully prosecuted cases of human trafficking and provides a holistic protection package for victims. Together with Child Wise, a nongovernmental organization, it has sponsored regional education campaigns to prevent child-sex tourism. The United Kingdom is another country that has been conscientious about preventing human trafficking. In 2006, the United Kingdom conducted 343 trafficking investigations and prosecuted eight cases of trafficking for sexual exploitation and one case of forced labor. It convicted a total of 22 traffickers and handed out prison sentences ranging from 5 to 21 years. In addition, Sweden investigated, prosecuted, and convicted a comparable number of traffickers. It also instituted training programs for judges and law enforcement officials to help them understand the gravity of human trafficking. CRITIQUE OF CURRENT EFFORTS TO END HUMAN TRAFFICKING The Palermo Protocol’s significance cannot be understated. It is, after all, an international agreement to prevent, suppress, and punish those who traffic and enslave human beings. Despite its outward significance, some of the 148 countries have yet to finalize or execute the international law in their respective countries. Mexico, for instance, was a signatory of the Palermo Protocol but has

Enslavement

yet to actualize any meaningful steps to prevent, suppress, and punish traffickers. Mexico is not alone; there are other countries that have not fully adhered to their promise to end human trafficking. Arguably, some countries that have been unable to fully comply with the mandates of the international treaty, including Mexico, have been unable to do so due to internal turmoil, such as economic instability in the country. Although the United States was a signatory to the Palermo Protocol, in 2000 it passed its own law against human trafficking. The Victims of Trafficking and Violence Protection Act (VTVPA) is a comprehensive law that addresses the problem of human trafficking. It is a federal law that consolidates the protections of the 13th Amendment, which abolishes slavery, and the various immigration and organized crime laws (racketeering laws) that are frequently violated when traffickers, particularly those with organized crime connections, illegally transport victims into the United States. The VTVPA takes a three-level approach to combating trafficking. At the first level, it seeks to prevent the occurrence of the crime by working with the international community to identify those who traffic in persons. This requires the creation of law enforcement task forces, usually composed of FBI (Federal Bureau of Investigation) agents or ICE (Immigration and Customs Enforcement) agents as well as agents performing similar tasks abroad, to locate human trafficking rings. More importantly, the United States attempts to prevent human trafficking by educating women, who are especially victimized by sex trafficking, in countries where they are most vulnerable to this crime about the dangers of human trafficking and by providing governments facing economic instability monies to help the most vulnerable in society find legitimate employment. Second, the law seeks to punish those who traffic and enslave human beings. Under the Peonage Abolition Act of 1867 it is a crime to force or coerce any person (man, woman, or child) to work as a slave. Today, the VTVPA, adding to its predecessor laws specifically makes it a crime to provide or obtain a person, whether through deception or threat of harm, for the forced labor of services regardless of whether such work is to be fulfilled in the sex industry, agricultural fields, homes, sweatshops, or another environment. The trafficker and/or the customer could face up to 20 years in prison if convicted. However, if the victim is a child (under the age of 18), or the victim dies, is kidnapped, or endures severe sexual abuse, the trafficker and/or customer could face life imprisonment. The VTVPA also makes it a crime for any U.S. citizen to travel to another country for the purposes of engaging in illicit sexual conduct (sex tourism). For this latter offense, a person could face up to 30 years in prison. The third component of the VTVPA is protection of the victim. If a victim of human trafficking is identified in the United States, she or he is placed in a secure shelter and generally provided with medical, psychological, legal, and employment aid. Victims may also be granted temporary visas to stay in the United States and even permanent-resident visas for themselves and their family. The VTVPA is not without its critics. For instance, with respect to prevention, the United States only provides monies to countries it deems to have made sufficient strides to prevent and suppress human trafficking. Each year,

| 291

292

|

Enslavement

the Department of State publishes a document titled the Trafficking in Persons Report that contains findings on the U.S. government’s investigation of foreign efforts to combat trafficking. Only countries that have previously received and/ or are currently receiving financial aid from the United States are subjected to this investigation. Countries that do not receive a passing grade, according to the mandates outlined by the Department of State, will no longer receive aid. Thus, countries that are not doing enough to combat trafficking will not receive assistance from the United States. This can be problematic for such countries, however, especially when their inability to launch a concerted effort to fight trafficking is not intentional but hindered by internal strife or political or economic instability. A failure to provide financial aid to countries that do not receive the so-called passing grade will make it harder to prevent and suppress human trafficking and will possibly make this global crime flourish even more. In terms of prosecuting and punishing those who traffic human beings, the United States has also received criticism. In order to prosecute traffickers, the VTVPA requires victims to prove that they have endured harm at the hand of their captors. Victims must be able to show that they were forced, or coerced, to work as slaves. For those victims who initially agreed to be transported across international borders or who agreed to work in the sex industry, the law makes it difficult to prosecute cases in which consent was initially given. Perhaps the most criticized aspect of the VTVPA is its attempt to protect victims of trafficking. As mentioned, victims have the burden of proving that they were actual victims of this crime and that they were forced to perform labor against their will. If the victim is seeking to stay in the United States for fear of retaliation in the country of origin, she or he must: (1) agree to fully cooperate with the government in its effort to prosecute the traffickers and (2) agree to undergo an evaluation to determine if in fact she or he is a victim of severe forms of trafficking. The United States defines severe forms of trafficking as (1) any trafficking in which sex is induced by force, fraud, or coercion or in which the person induced to perform such act is under that age of 18 or (2) any form of service in which the use of force, fraud, or coercion was used for the purpose of subjecting a person to involuntary servitude, debt bondage, or slavery. Force may be induced through physical abuse or psychological manipulation. Thus, in order to stay in the United States, even temporarily, the victim must agree to fully cooperate with federal prosecutors in any criminal case against the perpetrators and must undergo an evaluation, called a certification process, before any temporary visa is issued. The certification is conducted by the Department of Health and Human Services and is meant to ensure that the trafficking was indeed of a severe form. Moreover, benefits for victims, such as medical, legal, employment, housing, and psychological assistance, are dependent on the outcome of the certification process. HISTORY Trafficking in persons is not a new phenomenon, even though much recent attention has helped shed light on this global problem. The enslavement and

Enslavement

exploitation of human beings has an extensive history dating to the earliest civilizations. Ancient Greece for example, was heavily dependent on slave labor for a variety of work including domestic tasks within the home. However, the sale of humans became a transnational economic enterprise in the fifteenth century when the Portuguese actively engaged in a highly profitable trade that shipped slaves from Africa to Europe. In the Americas, it is estimated that the sale of 300,000 humans to plantation owners occurred in the fifteenth and sixteenth centuries. By the eighteenth century, the trade of human beings for weapons and molasses, the latter of which was one of the most valuable products of the Americas, was an economic enterprise with only minimal opposition. In the nineteenth century, both sides of the Atlantic tried to eradicate slavery. For example, the United States passed the 13th Amendment to abolish slavery after the Civil War. Despite these efforts, the practice of exploiting others for economic gain continued. Before the 1900s, historical records indicate that women and children were sold across international borders, primarily for sexual exploitation. The sale, transfer, and exploitation of humans continued during the early twentieth century despite a concerted international effort to end such practice. By 1904, the problem had worsened so much that an international convention was held to address the problem. Countries such as Brazil, Denmark, India, Italy, Norway, Sweden, and Switzerland signed one of the first international treaties to suppress the trade of human beings. Although this treaty was one of the first international initiatives to address trafficking in humans, it was only intended to suppress the trade of white women. It was not until 1921 that the League of Nations (known now as the United Nations) included initiatives to protect nonwhite women from being sold into slavery. In the following few decades, other international treaties were passed, but all lacked a definite law enforcement plan to combat human trafficking. Today, trafficking of humans is believed to occur on every continent. Due to the clandestine nature of such enterprises, it is difficult to estimate the total number of victims that fall prey to the deceptive and fraudulent practices of traffickers. However, government and nongovernment experts believe that the majority of victims are women; their average age is 20, and they are trafficked primarily for sexual exploitation. Most of these victims are trafficked from countries such as Belarus, Moldova, the Russian Federation, and Ukraine. The primary source countries for the United States are Thailand, China, Mexico, Russia, Ukraine, and the Czech Republic. Because human trafficking is a lucrative business requiring an elaborate scheme to deceive not only the victim but also law enforcement and other government authorities, it appears that criminal syndicates, including both small and large operations, sell and trade humans in large numbers. FACTORS GIVING RISE TO HUMAN TRAFFICKING Although lax law enforcement and the high profitability of trafficking persons are certainly factors that contribute to the prevalence of this crime, globalization has also increased the sale and enslavement of human beings. Globalization is

| 293

294

|

Enslavement

generally defined in economic terms. It is described as a process of increased interaction, connectivity, and communication around the world and is achieved mainly through deregulation of trading opportunities. However, advances in communication, such as the Internet, and the ease of travel are also factors that contribute to globalization. Because of globalization, or more specifically the ability to trade goods among varying nations around the world, together with the ability to communicate or travel around the world with more ease, crimes are able to be committed on a larger, international scale. Ironically, just as globalization has made it possible to trade legitimate goods and items across oceans, it too has helped the trade of illicit items such as drugs, weapons, and humans. One other possibility for the increased trade of drugs, weapons, and humans is economic marginalization—an effect of globalization. Economic marginalization is created when there are economic differences among countries. For instance, some countries reap the benefits of free markets and free trade while others suffer as a result of free trade. Thus, certain countries get richer while some get poorer. For those who live in countries that suffer as a result of globalization, or more specifically from extreme poverty, criminal activity becomes one of only very few options to make a living. After considering the high profit margin for international criminal ventures, individuals may choose to enter the illegal trade of goods. Extreme poverty also means that some people, particularly women and children, become targets of exploitation and are easily deceived into underground markets such as the sale of humans. Economic marginalization or economic disparity has greatly contributed to what sociologists refer to as the feminization of poverty. The feminization of poverty is the result of the dire economic circumstances that most women face, especially in developing countries, when there are a finite number of jobs available. Thus, women become suitable targets for deceptive employment ventures or, at times, become desperate victims willing to take a chance on such purported job opportunities in order to survive. For example, a woman may be deceived into believing that she will take a job as a “club hostess” and wind up enslaved as a prostitute. Apart from economic disparity, another factor that is said to affect human trafficking is political instability. Although globalization has contributed to the rise of transnational crime, so too has political instability. In the early 1990s, the collapse of the Soviet Union following the end of the Cold War stimulated a rise in regional conflict. Although the conflicts were localized in nature, monies needed to support political ideologies as well as the weapons needed to fight the opposition were obtained through transnational crime. The warfare also diverted government attention away from social protection programs, and many citizens, especially women and children, became easy targets for those wishing to engage in the trade of human beings. The collapse of the Soviet Union together with globalization led to a decline in border-enforcement that resulted in increased free trade, including the transportation of trafficked victims. Freetrade agreements between nations, such as NAFTA (North American Free Trade Agreement) also helped the movement of people, including those who fall prey to human trafficking.

Enslavement

| 295

In some West African countries, such as Nigeria and Togo, culture plays an unfortunate role in human trafficking, particularly the trafficking of children. It is not uncommon in these countries for parents to voluntarily consent to send their children to live in the homes of relatives, family members, or third persons, in order to provide them with an opportunity to attend school and/or learn a trade. Because of economic desperation, parents willingly agree to this cultural and historical practice. In some situations, parents facing extreme economic frustration agree to sell their children for a small amount of money. Unfortunately, some of these children become victims of labor exploitation especially as domestic servants or slaves. Although these global factors are important to understanding human trafficking, they only serve to explain the supply-side of the criminal enterprise. Because of globalization, political instability, and economic uncertainty, citizens who inhabit counties that do not benefit from the legitimate opportunities of a free-market society become vulnerable to human trafficking. Indeed, most victims of human trafficking originate in countries that suffer from instability. However, as with any business venture, there must be a customer willing to purchase a commodity. Thus, the demand side of human trafficking creates a quite ironic situation. Countries that profit from globalization have the financial ability to support this transnational crime. It should come as no surprise that the United States ranks very high as a destination country for victims of human trafficking. Thus, there is certainly a demand or steady flow of customers to facilitate this crime in the United States.

IS THERE A DIFFERENCE BETWEEN HUMAN TRAFFICKING AND HUMAN SMUGGLING? Human trafficking and human smuggling are terms that are sometimes confused and used interchangeably. Arguably, both involve the movement of people from one locale to another and such movement of people is generally guided by the prospect of economic gain or the prospect of legitimate employment. Often, both trafficked and smuggled individuals consent to leave their country of origin and both are at risk of being exploited. However, human trafficking, as opposed to smuggling, is different in terms of the means used to move people from one location to another and with respect to the outcome of such movement. It has been said that human trafficking is the dark side of migration. It is essentially coerced or involuntary migration. Thus, the means used to move people from one place to another usually involve force, deception, coercion, or abduction. Another critical difference between human trafficking and human smuggling is the outcome. Victims of human trafficking are moved across borders to be enslaved and exploited. They could be forced to engage in prostitution or work in a variety of occupations, such as domestic service or garment making in sweatshops, against their will. Essentially, human trafficking is human smuggling plus force, deception, coercion, or abduction. It is not human smuggling per se because of the extreme exploitation and enslavement.

296

|

Enslavement

METHODS USED BY TRAFFICKERS There are many methods that traffickers use to either gain the initial willing participation or consent of a victim or to forcibly garner such willingness. For example, preying on a victim’s vulnerability, particularly the need to find legitimate employment, traffickers most often place ads in newspapers detailing opportunities to work abroad or in another city as either domestic servants (maids), housekeepers, garment workers, models, or a variety of other types of employment. At first appearance, the ads appear genuine—they convey that help is wanted. Even after a person answers the help-wanted ad, no signs of trouble may be present. In fact, the deception may be so fine-tuned that a person does not know of her or his fate until she or he reaches their destination abroad. Vulnerability is an important determinant of human trafficking. Vulnerability may be brought about through extreme poverty, a desire for a better life, or the need to escape a country suffering from political strife. Regardless of which factor contributes to a victim’s vulnerability, traffickers prey on this feeling of helplessness and use it to gain initial compliance. Initial compliance may also be garnered another way. Traffickers often know their soon-to-be victims because a familial or other relationship may exist. Thus, the trafficker, or at least the recruiter, may be a family member, a friend, or an acquaintance of the victim or victim’s family. Once potential victims have been recruited and the promise for a better life has been accepted by such victims, transportation becomes another important step in the human trafficking operation. The process of convincing victims to travel away from their hometowns often involves illegal behavior on the part of the victim. Because of the dire need to find employment, victims often contribute to the illegal enterprise by lying to government authorities about the true nature of their travel and stay in another country. They may for example, lie to authorities to obtain a business or tourist visa as well as a student, fiancée, or entertainer visa. Victims may even agree to accept fraudulent travel documents or visas in order to obtain employment abroad. Although deception and fraud tend to be the most often used methods to convince victims to leave their hometown for employment, the threat of force, and/or abduction are also methods that are used. The movement of persons to a predetermined destination is an essential component of the human trafficking operation. However, the final component is exploitation and enslavement. This final component is achieved after traffickers confiscate victims’ passports, thus preventing a likely escape when victims are no longer free to leave their traffickers’ sight. It is also achieved when victims are forced to labor against their will.

SHOULD CONSENT MATTER? One of the most debatable points in defining situations of human trafficking is whether or not consent should be a factor in determining who should be labeled a victim as opposed to a willing participant in the migratory scheme to move or transport humans across international borders. There seems to be hesitation to

Enslavement

treat those who initially consented to leave their countries of origin, especially those who knowingly and willingly consented to work in the sex industry, as victims. This hesitation also intensifies when individuals agree to the falsification of travel documents and when they aid others to help them enter a country illegally. There are those in society who may wrestle with this issue, perhaps because of a moral dilemma over prostitution, and this diffusion of victimization has an extensive history within the law enforcement community. Internationally and nationally, law enforcement officials, including immigration officers, often view and treat trafficked persons as willing accomplices to a migratory scheme. Thus, trafficked victims are apprehended and charged with crimes for violating immigration laws. Even after the passage of international and national laws against human trafficking, law enforcement officials are quick to treat trafficked persons as unauthorized entrants and therefore accomplices in their migratory scheme before treating such persons as victims in need of protection. Prostitution, which is one of the most common forms of trafficking, has been and is considered a victimless crime by many in the law enforcement field although many academicians argue otherwise. It is therefore not surprising that law enforcement officials view trafficked persons, especially those in the sex industry, as willing participants and hesitate to label them as victims. The same diffusion of victimization occurs for agricultural workers, some of whom may agree or consent to pay for their unauthorized yet aided migration into a country in which they are not a permanent resident. The law enforcement community, particularly immigration officials, considers illegal migrants to be violators of immigration law. Because they knowingly and willingly consent to violate immigration laws and even pay a smuggler to help them enter a foreign county, immigration officials consider such migrants as accomplices and not victims. It is only after a lengthy investigation that officials come to realize that even those who may have initially consented to be smuggled into a country illegally can eventually be forced into debt bondage or forced to work against their will. The Palermo Protocol as well as U.S. law make consent irrelevant to whether a person should be considered a victim of human trafficking. Accordingly, if a person consents to be smuggled into a country in which she or he is not a legal or permanent resident and, upon reaching the destination of choice is forced to work or labor against her or his will, the initial consensual decision becomes irrelevant. Any smuggled migrant becomes a victim of human trafficking when she or he is forced into employment against her or his will. CONCLUSION Trafficking in humans has become one of the most profitable transnational crimes. Its profitability is highly dependent on a steady flow of vulnerable and exploitable persons and a steady flow of customers willing to purchase this commodity. Similar to other economic ventures, human trafficking thrives from the supply of victims and the demand for them. Human trafficking is thus significantly affected by global factors, such as economic and political instability, both

| 297

298

|

Ethnic Identity across Generations

of which are effects of globalization. Although globalization has certainly helped make the sale of humans a transnational enterprise, human trafficking has an extensive history. Human trafficking flourished despite early and mid-twentieth century international treaties and laws to eradicate this problem and the passage of the 13th Amendment in the United States during the nineteenth century. Today, trafficking in persons has once again captured the attention of the world and has become a high law enforcement priority for the United States. Perhaps it has been prioritized, since the United States is a prime destination country for victims of trafficking. However, the United States, which has a federal law against trafficking, has received criticism about its protection of victims. There are some who believe that the government re-victimizes those who have already suffered from being trafficked by making them undergo a certification process and requiring them to prove their innocence. References: Aronowitz, Alexis. “Smuggling and Trafficking Human Beings: The Phenomenon, the Markets that Drive It and the Organizations That Promote It.” European Journal of Policy and Research 9, no. 2 (2001):163–195; Bales, Kevin. Understanding Global Slavery. Los Angeles: University of California Press, 2005; Farr, Kathryn. Sex Trafficking: The Global Market in Women and Children. New York: Worth Publishers, 2005; Kandathil, Rosy. “Global Sex Trafficking Victims Protection Act of 2000: Legislative Responses to the Problem of Modern Slavery.” Michigan Journal of Gender and Law 12(2005):87–129; Shelley, Louise. “Post-Communist Transitions and the Illegal Movement of People: Chinese Smuggling and Russian Trafficking in Women.” Cosmopolitan Crossings: Slavic Contacts and East-West Connections 14, no. 2 (2000):71–85; Sullivan, Barbara. “Feminism and New International Law.” International Feminist Journal of Politics 5, no. 1 (2003):67–91.

Claudia San Miguel ETHNIC IDENTITY ACROSS GENERATIONS The assimilation and identity of the children and grandchildren of immigrants has been cause for great concern since the early waves of immigrants from South and South East Europe in the mid to late 1800s. However, the reality is that while many children and grandchildren still identify with ethnic culture and maintain an ethnic identity, they have also identified with American culture. The question is, which America? American culture is not static and has changed over time under the influence of first and second-generation immigrants’ ethnic culture. BACKGROUND One of the enduring questions about immigrants is whether their children and their grandchildren can or will integrate into American culture. Cultural assimilation or acculturation is when immigrants and their descendents begin to adopt mainstream patterns of dress, behavior, and personal values as they acclimate to life in the United States. This is very visible early on in the first and second generations. For example, youths take cues on their style of dress and cultural repertoire from pop culture and neighborhood influences. An ethnic community becomes fully assimilated when others no longer view them as ethnic

Ethnic Identity across Generations | 299

and they do not consider themselves to be ethnic. Often in U.S. history, this has meant being seen as white rather than a member of a foreign or ethnic group. Though assimilation is often viewed as a group of people blending into U.S. society, in reality, immigrants coming to the United States have consistently made an impact on mainstream society from one generation to the next. The influence of immigrants on society occurs in all extremes, from the anti-immigrant sentiment that solidifies the current racial and ethnic hierarchy to the incorporation of cultural traits that become mainstream. The most obvious example of how immigrant culture becomes integrated into mainstream society is through food; for instance, bagels, spaghetti, and salsa have become staples in the American diet. However, it cannot be denied that the English Protestant traditions have remained highly influential in mainstream American identity, which is often considered to be based on Anglicized or Anglo culture despite the many contributions from European tradition. Nevertheless, what we consider mainstream should not be seen as static and unchangeable. Rather, the process of assimilation has the potential of bringing ethnic minorities into the mainstream in a process whereby all groups influence and broaden how cultural difference is accepted and integrated, making parity in life-chances a long-term possibility. Special Case: English Only and Americanization Programs Having multiple languages in the United States is not a new phenomenon and neither are the issues surrounding the fate of the English language in the United States. Since the first large immigration wave of Germans in the late 1800s, people have been concerned that immigrants will not learn English, and therefore will not integrate into U.S. society successfully. Anxiety over language continues to infiltrate immigration debates, and groups who are seen as unable or unwilling to learn English are painted as threats who will potentially weaken the country’s national character, which is seen as unified under English. These anxieties are most visible when bilingual education is discussed. One of the first and most widespread legal cases involving bilingual education was in 1839 when Ohio became the first state to adopt bilingual education into law, authorizing German-English instruction. Then in 1847, Louisiana enacted a similar law for French-English instruction. Under the Treaty of Guadalupe Hidalgo, after the United States acquired Mexican territory in 1848, the United States promised that the use of Spanish would not be prohibited in California, New Mexico, Arizona, Nevada, Utah, Colorado, and parts of Wyoming. New Mexico established the first policy for Spanish-English instruction in 1850. At the turn of the nineteenth century, the use of German was so widespread that 8.7 percent of the U.S. population spoke it as their first language. Today, 13 percent of the U.S. population speaks Spanish as their first language. By the 1900s, four percent of all American children were receiving at least part of their instruction in German, which is larger than the percentage of students enrolled in Spanish-English programs today. However, anxiety over Germans’ ability to assimilate and remain loyal to the United States during WWI caused the first anti-bilingual education backlash.

300

|

Ethnic Identity across Generations

By the 1920s many of the bilingual programs were dismantled. Instead Americanization programs were instituted to try and integrate the community, and English-only classrooms were mandatory. Looking back, many of the programs have been highly criticized because of how ethnic communities were taught they were inferior to American culture. In the Southwest, these programs focused on the Mexican-American community. Because Mexican culture was critiqued and deemed inadequate for those who were destined to remain in the U.S., programs for assimilation were developed as the second solution for solving the so-called Mexican Problem. These programs gave clear messages of inferiority, the legacy of which is demonstrated through examples of both resistance and internalization in future generations of Mexican Americans. Many of the reformers who advocated assimilation programs focused on the family and the change of culture and habits of Mexican women. Therefore, the focus of these programs centered on etiquette, cleanliness, health, and reproduction as ways to produce an Americanized second generation. Schools developed Americanization programs, some of the tenets staying in place until the early 1970s. The education of these American-born children included rules and lessons meant to socialize them in values and language skills. Mexican American girls were given lessons on how to establish American homes and cook American meals. English-only programs were implemented, and students were punished physically and socially for speaking Spanish anytime during the school day, including recess. For example, a child found speaking Spanish to peers might be fined a nickel. Because of these incidents, parents made important cultural choices, such as not teaching the next generation how to speak Spanish, which created a generation of children who grew up learning that speaking Spanish and being Mexican made them an inferior population. In hindsight, this was not a positive way to incorporate new populations and caused a lot of hurt, sometimes stunting Mexican American economic mobility in the United States. However, more recent work shows evidence that ethnicity may not necessarily be a liability and that ethnic culture is not akin to an inferior culture. According to studies by institutes such as the Pew Hispanic Center, the majority of immigrants today understand that learning English is an important component to their success in the United States (Pew Hispanic Center 2007). The second generation is largely bilingual, and by the third generation the vast majority are English dominant. Therefore, fears that immigrants and their children will erase English as the primary language in the United States are unfounded. It appears that the transition to cultural and linguistic assimilation is being made by the third generation. CONCLUSION Upon arrival in the United States, immigrants are influenced by U.S. society. Even as immigrants practice their cultural traditions, they do it with the United States as a backdrop. Therefore, rather than immigrants practicing a culture that

Expedited Removal

is unchanged, in reality, their identity is changed as they adjust to life in the United States, and their children are highly influenced by both their parents, their experiences in school, and popular culture such as music, television, and fashion. Despite fears that children of immigrants will not assimilate into American society, the descendants of immigrants are English dominant and successfully integrated into U.S. society. Although many, given that a large proportion of immigrants come from countries other than Europe, are considered racialethnic minorities even to the third generation and beyond. While the children of immigrants may still identify a shared bond of common ancestry with their parents and are considered racialized minorities into the third generation, there is no evidence that by the third generation the descendants of immigrants would not consider themselves to be American as well. Nor is it the case that ethnic culture needs to be completely erased in order to preserve some form of American culture. The fact of the matter is that immigrants have influenced American culture as much as they have been affected by it. References: Acuna, Rudolfo. Occupied America: a history of Chicanos. NY: Harper & Row, 1972; Alba, Richard D., and Victor Nee. Remaking the American Mainstream: Assimilation and Contemporary Immigration. Cambridge, Mass.: Harvard University Press, 2003; Almaguer, T. Racial Fault Lines: The Historical Origins of White Supremacy in California. Berkeley, University of California Press, 1994; Cornell, Stephen, and Douglas Hartmann. Ethnicity and Race: Making Identities in a Changing World. Thousand Oaks: Pine Forge Press, 1998; Gans, Herbert. “Symbolic Ethnicity: The Future of Ethnic Groups and Cultures in America.” Ethnic and Racial Studies 2(1979):1; Glazer, Nathan, and Daniel P. Moynihan. Beyond the Melting Pot: the Negroes, Puerto Ricans, Jews and Italians, and Irish of New York City. Cambridge: MIT Press, 1970; Gonzalez, Juan. Harvest of Empire: A history of Latinos in America. New York: Viking, 2000; Gordon, Milton M. Assimilation in American Life: The Role of Race, Religion, and National Origins. New York: Oxford University Press, 1964; Montejano, D. Anglos and Mexicans in the Making of Texas, 1836–1986. Austin, University of Texas Press, (1987); Muller, Thomas. Immigrants and the American City. New York: New York University Press, 1993; Rumbaut, R. G., and A. Portes. Ethnicities: Children of Immigrants in America. Berkeley: University of California Press; Waters, Mary C. Ethnic Options: Choosing Identities in America. Berkeley: University of California Press, 1990.

Cynthia Duarte

EXPEDITED REMOVAL One of the social markers of U.S. citizenship is the right to due process under the law guaranteed by the U.S. Constitution. Foreign nationals who have entered the United States without proper paperwork and inspection, whether as unauthorized migrants or asylum seekers, do not have this right. They are subject to “expedited removal,” a process in which an immigration officer, not an immigration judge, makes a decision about whether an individual has a claim to remain in the United States. When asylum seekers present such claims, it is up to the immigration officer to decide if it is worth an investigation based on a set of four standard questions.

| 301

302

|

Expedited Removal

MARIA: AN ACCEPTED ASYLEE Maria was an outspoken critic of the dictator who ruled her home country. Maria attended rallies protesting the dictator’s human rights abuses. As a result of Maria’s activities, she was jailed for several days. After Maria’s release, she continued to protest the dictator. As a result, Maria was jailed again, this time for several weeks. In addition, the government prevented Maria’s children from attending school. Once Maria was released from jail, she and her children fled their home country. Maria traveled to the U.S. and sought asylum. An immigration judge listened to Maria’s story and decided that she qualified for asylum because she had been persecuted based on her political opinion. Maria now lives safely and legally in the U.S. and can eventually become a U.S. citizen.

BACKGROUND Defining Expedited Removal In 1996, Congress passed the Illegal Immigration Reform and Responsibility Act (IIRIRA). Under IIRIRA, Congress created a procedure called expedited removal. Expedited removal allows immigration inspection officers at U.S. borders to remove people who do not have documentation to prove that they legally reside in the United States (such as a U.S. passport) or have permission to visit the United States (such as a tourist visa) without a hearing by an immigration judge. Basically, it applies to individuals who arrive: (1) without inspection and have no documents, (2) with inspection but presenting altered or fraudulent documents, and (3) with inspection but willfully misrepresenting a “credible fear of persecution” as an asylum applicant. The group most impacted is asylees. The federal government believes that certain potential asylum entrants give fraudulent information or willfully misrepresent the facts of their situation. Asylum applicants are required to prove “credible fear” to an immigration officer. Asylum applicants given a negative “credible fear” determination may request a hearing before an immigration judge. Before Congress passed the IIRIRA, individuals who entered the United States without proper documentation had the right to an attorney and a hearing before a judge before they could be removed from the United States. Currently, individuals do not have the right to an attorney or a hearing before a judge; the decision to remove an individual is entirely up to the immigration officers at U.S. borders. While a person is waiting to be removed from the United States, she or he is held in a jail or jail-like facility and sometimes shares a cell with a criminal because of lack of detention space. From April 1997 to November 2002, expedited removal only applied to ports of entry. In 2002, expedited removal was extended to individuals arriving by sea. In cases of air or sea arrival, after an expedited removal order is issued, the airline or sea carrier who brought the individual to the United States is required to take the individual back on board or have another vessel or aircraft operated by the same company return the individual to her or his country of departure.

Expedited Removal

In August 2004, expedited removal procedures were applied to undocumented entrants within 100 air miles of the U.S.-Mexico border who could not establish with an immigration officer that they had a credible fear of persecution. Policy Change Impact. Many people who arrive in the United States without documentation have expectations of working or reuniting with family while specific individuals and their families may want to apply for asylum. Before the policy of expedited removal was adopted, one of the important decisions an immigration judge made was whether a person could qualify for asylum. Asylum is granted to individuals who have been harmed in their home countries because of their race, religion, nationality, membership in a particular social group, or political opinion. Asylum is also granted to people who fear that they will be harmed on account of their race, religion, nationality, membership in a particular social group, or political opinion if they are forced to return to their home countries. Asylum allows individuals to remain in the U.S. and eventually become citizens. Before the policy of expedited removal was adopted, an immigration judge determined whether a person who arrived at an air or sea port of entry or a U.S. border without proper documentation could qualify for “asylum.” Now that expedited removal has been adopted, immigration inspection officers at U.S. borders make this determination. Formerly, these officers were a part of Immigration and Naturalization Services (INS); now they are a part of the Department of Homeland Security division re-named the Bureau of Citizenship and Immigration Services (BCIS). In order to determine whether an individual might be eligible for asylum, immigration inspection officers are required to ask individuals the following questions: (1) Why did you leave your home country or country of last residence?; (2) Do you have any fear or concern about being returned to your home country or being removed from the United States?; (3) Would you be harmed if you were returned to your home country or country of last residence?; and (4) Do you have any questions or is there anything else you would like to add? If the individual expresses a fear of return, the individual is referred to an asylum officer. An asylum officer is a specially-trained employee of the Department of Homeland Security who speaks with the individual and makes a so-called credible fear determination. In other words, the asylum officer decides whether there is a significant possibility that the applicant could establish that she or he has been or will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion. If the asylum officer decides that the individual has a credible fear, the individual is then referred to an immigration judge. In short, before expedited removal was adopted, a person who arrived at a U.S. port of entry without proper documentation was entitled to have their case heard by an immigration judge. Now, a person has to convince both the officer at the border and an asylum officer that they are eligible for asylum before they can have their case heard by an immigration judge. An individual who is denied asylum is prohibited from entering the United States for a period of five years. As a result, a majority of asylum applicants agree

| 303

304

|

Expedited Removal

to withdraw their application. In Fiscal Year (FY) 2003, among all entrants subject to expedited removal (177,040), 72.5 percent withdrew application to enter. Three percent were referred to United States Citizenship and Immigration Services (USCIS) for a credible fear determination. From FY 2000 to FY 2003, 93 percent of those referred for legal evaluation of a credible fear of persecution had their petition granted. By 2006, the number of expedited removals had increased from 187,000 in FY 2001 to over 300,000 in FY 2007. In 2006, nine percent of individuals receiving expedited removal were asylum applicants who withdrew their petitions. Forty percent of all 2006 removals were expedited.

BEFORE CONGRESS PASSED EXPEDITED REMOVAL COMPARED TO AFTER CONGRESS PASSED EXPEDITED REMOVAL Before

After

A judge determined whether a person entering the United States without proper entry documentation could remain in the United States. Individuals without documentation were occasionally detained.

An immigration officer at the U.S. border or a port of entry makes a preliminary and often final decision on whether an individual without documentation will be removed. Individuals without documentation are almost always detained.

Arguments for Expedited Removal Less Cost. Expedited removal was first proposed in the early 1980s, largely as a result of a massive immigration of approximately 125,000 Cubans and 30,000 Haitians to South Florida in 1980. Because no expedited removal policy was in place at the time, all of these individuals were entitled to a hearing before an immigration judge. These hearings can be costly to the U.S. government. The government has to pay the salaries of attorneys to represent the government at each of these hearings. In addition, the government has to pay the salaries of the judges and the salaries of staff to run the day-to-day operations of the immigration court. More hearings mean more expenses for the government. Deterring Undocumented Entry. The government expends resources on patrolling the borders. Expedited removal was put into place, in part, to deter individuals from attempting to enter the country without authorization (document checks). The theory was that if people knew that they would be detained and swiftly removed if they tried to enter the United States undocumented, then people would be much less likely to attempt to do so. If less people attempt to enter the country without authorization, then the government will not have to expend as many resources on policing the borders. In addition, unauthorized migration may pose a threat to national security because it deflects resources such as the Coast Guard from homeland-security duties.

Expedited Removal

Deterring Fraudulent Asylum Claims. Expedited removal was also put into place to deter individuals from making fraudulent asylum claims. Before expedited removal was put into place, people who entered the United States without proper documentation and claimed asylum were released on their own recognizance with work authorization. As a result, many people falsely claimed that they were going to seek asylum in order to gain entry into the United States. Allowing individuals who falsely claim asylum to enter the United States poses a security threat. In fact, individuals who claimed to be asylum applicants and who were released into the United States pending the decision on their asylum applications were named as suspects in the 1993 bombing of the World Trade Center and in the fatal shootings outside the Central Intelligence Agencies’ (CIA’s) offices in Virginia in 1993. Under expedited removal, individuals are detained pending the determination of their asylum cases. This discourages individuals from falsely claiming asylum and also means that potentially dangerous individuals who claim asylum will be detained while they wait for their cases to be heard. Maintaining Homeland Ties. Furthermore, proponents note that it is best to catch individuals who have entered without paperwork and inspection before they establish homes, employment, and other ties to the United States. This makes it easier for the individuals to resume their lives in their home countries. Treatment as Foreign Nationals under the Law. Backers of expedited removal believe that the 1998 U.S. District court decision in AILA v. Reno established that foreign nationals seeking admission have no constitutional right to due process of the law, as provided to citizens by the Fifth Amendment or equal protection under the law. Removal is a civil, not a criminal action, and deportation is not viewed as punishment. High Asylum-Claim Acceptance Rate. Backers of expedited removal argue that the system is working because the vast majority of individuals who proceed with a claim of a credible fear of persecution after interaction with an immigration officer pass a hearing before an immigration judge. The U.S. Commission on International Religious Freedom (USCIRF) found that mandatory Department of Homeland Security procedures for protection of asylum seekers from expedited removal were satisfactory. Arguments against Expedited Removal Critics of expedited removal note that individuals are not given an adequate opportunity to produce evidence of asylum eligibility when they are interviewed by officers at the border or in the interior. Immigration officers are front-line persons and there is no follow-up on the accuracy of their decisions. Immigrant advocates contend that individuals with a credible fear of persecution have been removed. It is alleged that some individuals who make a claim of asylum are simply refused. In one case, a famous Chinese dissident, Liu Nianchun was detained at Kennedy International Airport after attempting to reenter the United States on a visitor’s visa. He had been out of the United States testifying at a United Nations

| 305

306

|

Expedited Removal

conference on human rights. Liu was chained to a bench, and, according to his lawyer, kicked whenever he fell asleep. Liu was able to convince an inspector that he feared persecution in China, and was eventually granted asylum. However, others contend that the policy of detaining all asylum seekers who enter without proper documentation is too harsh. The position of the United Nations High Commission on Refugees is that detention of asylum seekers is “inherently undesirable” (Office of the United Nations High Commission on Refugees 1999, 1). They argue that detention may be psychologically damaging to an already fragile population, such as those who are escaping from imprisonment and torture in their countries. Often the asylum seeker does not understand why they are being detained. Additionally, asylum seekers are often detained with criminal aliens. From April 1, 1997 through September 30, 2001, there were 34,736 aliens in expedited removal who made a claim of credible fear. Of these, 33,551 were detained, and 1,185 were paroled (Congressional Research Service 2005). In addition, those opposed to the expansion of expedited removal express concerns that since there is no review by Executive Office for Immigration Review (EOIR) and only limited judicial review, an immigration officer’s authority to order an alien removed is almost unchecked, and that there have been reports of abuse of the expedited-removal procedure since its inception, including aliens with valid legal status who were expeditiously removed However, both the availability of detention bed space and the transportation of aliens placed in expedited removal (i.e., transporting the aliens to detention facilities and returning the alien to their home country) present barriers to expanding expedited removal. Aliens placed in expedited removal are subject to mandatory detention, yet many of these individuals do not have criminal records, multiple re-entries, or other characteristics that would make them subject to mandatory detention absent expedited removal. Since aliens under expedited removal are subject to mandatory detention while noncriminal aliens in removal proceedings are often not detained, expanding expedited removal may raise detention costs (including the cost of transporting aliens to the detention facilities), and make fewer beds available for other aliens to go through removal proceedings. Notably, Immigration and Customs Enforcement (ICE) has been at or above their detention capacity for several years. In addition, expanding expedited removal would increase the need for deportation officers to arrange the physical removal of the aliens, and USCIS asylum officers to conduct the additional credible fear hearings. Removal Proceeding Delays. Proponents of expanding expedited removal note the delays imposed by immigration judges in adjudicating removal cases, as well additional postponements resulting from the appeals process, which can take years. In addition, they contend that aliens use frivolous appeals to postpone deportation. Some note that any improvement that can reduce the delays in the removal process, including both the courts and the actual deportation, can enhance the government’s ability to enforcement immigration laws. Opponents of expanding expedited removals contend that removing EOIR’s role in removal

Expedited Removal

proceedings infringes on the rights of aliens and creates a situation where there is little oversight and note that recent changes in EOIR have helped streamline the removal procedures. Logistics. Expanding expedited removal raises questions about how procedural due process under the Fifth Amendment is to be achieved; critics of expedited removal maintain that immigration law has long made a distinction between those aliens seeking admission to the United States and those who are already within the United States, irrespective of the legality of the entry. In the latter instance, they observe, the Supreme Court has recognized additional rights and privileges not extended to those in the former category, who are merely “on the threshold of initial entry” (Mary Ma v. Barber, 357 U.S. 185, 78 S, CL. 1072, 2 L. Ed. 2d 1246 (1958)). Some legal scholars continue to question whether the U.S. Constitution applies at all to aliens seeking entry at the border or a port of entry, particularly in determining an alien’s right to be here. CONCLUSION Balancing the need to conserve resources and ensure national security with the need to protect the basic human rights of individuals attempting to enter the United States is not an easy task. Lawmakers and policymakers continuously search for better ways to balance these priorities. Congress enacted expedited removal in order to conserve resources associated with border enforcement and immigration hearings and to deter fraudulent claims for admission to the United States. Although safeguards were put into place to allow asylum seekers to gain entry into the United States, evidence shows that these safeguards are not working; people with legitimate asylum claims have been refused entry into the United States. Much of the problem with the current expedited-removal procedure lies in the authority granted to immigration officers at U.S. borders. Although these officers’ supervisors review orders of expedited removal, this review process has failed to prevent the expedited removal of many individuals with legitimate asylum claims. If individuals who enter the country have access to an attorney and have their cases heard by an immigration judge, these individuals would have a much better chance to tell their stories and prove that they are deserving of the protections of asylum. However, like all governments, the U.S. government has limited resources, resulting in a continuous tug-of-war between priorities such as national security and the protection of human rights. References: Agnolucci, Simona. “Expedited Removal: Suggestions for Reform in Light of the United States Commission on International Religious Freedom Report and the REAL ID ACT,” Hastings Law Journal 57 (2006):619; Human Rights First. “Is this America?: The Denial of Due Process to Asylum Seekers in the United States,” Human Rights First. http://www.humanrightsfirst.org/refugees/reports/due_process/due_process.htm; Martin, David A. “Two Cheers for Expedited Removal in the New Immigration Laws.” Virginia Journal of International Law 40 (2000):673; Musalo, Karen. “Expedited Removal.” Human Rights 28, no. 1 (2001):12–13; Office of Immigration Statistics Policy

| 307

308

|

Expedited Removal Directorate. Annual Report: Immigration Enforcement Actions: 2006. Washington, DC: U.S. Government Printing Office, 2008; Office of the High Commissioner for Refugees. UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers. February 1999; Siskin, Alison, and Ruth Ellen Wasem. “Congressional Research Service Report for Congress: Immigration Policy on Expedited Removal of Aliens.” Washington, DC: Government Printing Office, 2005.

M. Angela Buenaventura

F FEMALE GENITAL MUTILATION AND ASYLUM Advocates of immigration restriction have argued that court rulings allowing members of a particular social group, such as girls and women fleeing genital mutilation, to claim asylum will open the immigration system to massive numbers of applicants and fraudulent claims. Human rights advocates argue that girls and women have a right to flee a form of social persecution necessitating surgery, often under unsanitary conditions, that deprives them of a biological capability to experience sexual pleasure and potentially subjects then to a lifetime of tortuous pain due to repeated infection. Globally, the arena of what is considered to be human-rights abuse is legally expanding to cover gender issues such as female genital mutilation, battered women, and sexually abused children, who are most often female. Sexual orientation, China’s one-child-per-couple policy, and mistreatment of the disabled have all come to be socially constructed (viewed) as forms of social persecution. These cases are referred to as special interest cases; providing relief will recognize human rights, but it will vastly expand the caseload of the asylum system and may permit primarily economically motivated would-be immigrants to claim asylum. Nevertheless, claiming asylum and being admitted are two different situations. It is hard to prove a credible fear of persecution and we cannot automatically assume that the asylum process is abused. The question of which populations should constitute the world’s potential asylees will require on-going legal scrutiny.

309

310

|

Female Genital Mutilation and Asylum

BACKGROUND What Is Female Genital Mutilation? There are several different variations of female genital mutilation (FGM), commonly referred to as circumcision. The sunnah circumcision, which is less severe, involves some cutting of the clitoris and/or labia minora. Sunnah translates to tradition or duty, and it entails the removal of the layer of skin covering the clitoris; sometimes the tip of the clitoris is also removed. Any of the milder forms of FGM are referred to as sunnah circumcisions. The more severe of the two types is the pharonic circumcision, or infibulation. Infibulation is the stitching together of the vulva in order to prevent intercourse, often after a clitoridectomy that leaves a small opening for the passage of urine and menstrual blood. Pharonic circumcision involves not only the removal of the entire clitoris and labia minora, but also the scraping or cutting away of most of the labia majora. In subsistence-level traditional villages, this is done with knives, razor blades, or broken bottles. What remains is a small opening, roughly the size of a matchstick. Often the operations are performed under very unsanitary conditions without anesthesia. Females may go into shock and deaths are not uncommon. Any form of FGM may have severe long-term health consequences, but the more severe the type of FGM, the more risky and life-threatening the after effects will be. These effects include extreme pain, recurrent bleeding, heightened risk of infection, urine retention, damage to the urethra and anus, difficulty in urinating and menstruating, and fertility problems. FGM-subjected women are also more prone to HIV infection. Female genital mutilation is commonly practiced throughout much of Africa, and especially the Middle East, with the highest rates concentrated in Egypt. In Africa, FGM procedures are commonly performed by the grandmothers and great grandmothers of the young girls themselves. One of the most common reasons given for practicing female genital mutilation is that it serves as an important initiation to the adult community. Additionally, it serves to construct, enhance, and reinforce femininity with cultural norms that govern family honor and female sexuality. Girls are generally circumcised between the ages of 8 and 12. In the United States, the Centers for Disease Control has estimated that 150,000 females are at risk for or have undergone FGM because immigrants have introduced the traditional cultural practice. Academicians argue that female circumcision is not an appropriate term. The circumcision of males is not comparable with the more severe forms of female circumcision because it does not interfere with the male’s ability to attain orgasm or otherwise enjoy sexual intercourse. At issue is a girl or woman’s ability to experience her sexuality. Pulitzer Prize–winning author Alice Walker has addressed FGM and sexuality. Her book, Possessing the Secret of Joy details the life of a fictional character, Tashi. Tashi has a dysfunctional sex life, intensely painful childbirth, a deformed child, a troubled marriage, and a tortured soul, all of which are attributed to female genital mutilation. Tashi is contrasted to her American husband’s French lover, who emerges as the embodiment of female liberation and for whom birth is

Female Genital Mutilation and Asylum | 311

orgasmic. Walker’s book, along with a supplemental film documentary, brought the issue of FGM to light and attempted to bridge the gap between the first and third worlds. The activism of women from developed countries against FGM has led to tensions within the international women’s movement. Feminists from the developing countries are emerging from colonialism and sometimes consider basic needs and achieving gender equality as more important than ending FGM. Gender-Based Asylum Gender-based asylum is a relatively new occurrence. It includes and applies to women fleeing female genital mutilation. The precedent case for this occurred when the Board of Immigration Appeals (BIA) granted Fauziya Kassindja asylum for fleeing female circumcision (Matter of Kasina, 21 I. and N. Dec. 357 BIA 1996). Though this more than 4000-year-old practice has stimulated debate for some time, it wasn’t until Fauziya Kasinga’s protest that the U.S. role in it was extensively discussed. Kasinga fled her native Togo at the age of 17, after her father’s relatives made plans to have her undergo the procedure. She arrived in New York in 1994. Kasinga spent more than a year in New Jersey and Pennsylvania prisons and detention centers after losing her first case in which the judge asked why she didn’t just go to the Togo police and called elements of her story unbelievable. Kasinga was ultimately granted permission to stay in the United States on the grounds that female genital mutilation constitutes persecution. The Kasinga case established the legal basis for extending protection to any foreign woman claiming asylum for herself on the basis of a fear of female circumcision, the occurrence of circumcision, or the fear that her daughters would be circumcised in the future. Another early case involving female genital mutilation and political asylum was Abankwah v. INS (2nd Cir. July 9, 1999), in which the Second Circuit reversed the decision of the Board of Immigration Appeals (BIA) denying asylum to an alien who claimed that she would face female genital mutilation by her tribe if she returned to Ghana. The court held that Abankwah’s testimony was plausible, detailed, and internally consistent and that the evidence showed the pervasiveness of female genital mutilation throughout Ghana. Consequently, because Abankwah’s fear was both subjectively real, objectively founded, and reasonable, the court found that she had established a well-founded fear of female genital mutilation. Because the 1951 Refugee Convention does not include gender, not even a concept in recurrent use at the time, as one of the five reasons for refugee or asylum status, women have to argue that they are persecuted because of membership in a particular social group (i.e., females in an FGM practicing society). It is also necessary that they establish that there is no sufficiency of protection, such as police intervention in their homeland. In the United States, the federal courts and the Board of Immigration Appeals (BIA) have defined female genital mutilation as a form of persecution that can be the basis of an asylum claim. The federal courts and the BIA disagree about the asylum status of women who have experienced FGM. The federal courts

312

|

Female Genital Mutilation and Asylum

accept it as a sign of possible future persecution, but the BIA argues that it is a one-time procedure and cannot be a basis of future persecution. Some reasons for considering there to be a basis for future persecution include cases of infibulation in which women need to be cut to allow intercourse or give birth and then re-stitched. Continuing health problems due to botched FGM operations or FGM itself are also unlikely to be fully addressed in the home countries of many women fleeing FGM as under-taking procedures to undo the operation is unlikely even to the limited extent to which they could be attempted. The likely progression in U.S. asylum law is that the BIA will reject many cases while those that proceed to federal courts will be accepted. SHOULD ASYLUM BE GIVEN TO WOMEN WHO CLAIM FGM? Some feel that constant litigation keeps expanding the once-clear concept of political asylum. The practice of FGM may seem cruel, but the asylum laws were meant to cover political persecution, not widely approved social customs that some Americans find appalling. The Federation for American Immigration Reform (FAIR) argues that such special interest cases open the U.S. asylum system to both mass immigration and fraudulent claims for admission. They argue that individuals will use such claims to gain entrance in order to become an immigrant, increasing immigration rates on a fraudulent basis. It is estimated that up to 100 million women worldwide are exposed to this practice. Fraudulent claims are a concern in any asylum case. It is alleged that genitally mutilated women seeking asylum in the United States who come from countries that regularly practice it actually do not feel that is why they are being persecuted. Certain women applying for asylum were advised by lawyers to say that they were fleeing female genital mutilation so that they’d have a better chance at staying. It is likely that for these women who have experienced FGM, they cannot be fleeing it, although they could seek to protect their daughters. Women subject to female genital mutilation are often from the Middle East. Advocates of limiting asylum argue that giving safe harbor to this special population could permit terrorist penetration and threaten national security. On the other hand, their reasoning could be considered discriminatory toward women on the basis of national origin. Human rights are for both men and women. The right not to be tortured, however many violations occur, is basic for all human beings. Female genital mutilation, as it is performed, is often done without anesthetic and under unsanitary conditions. The operation can be considered a form of torture. Afterwards, the degree to which the operation was carried out brings a series of lifelong complications ranging from immediate infection to reoccurring bladder and vaginal infections, problems during pregnancy, and barrenness. These health problems are painful and because they are coercively inflicted, can be considered a lifelong form of torture. In addition, the operation places limitations on a woman’s sexuality, which compromise her ability to ever fully experience her own body as biology intended. If the phrase anatomy is destiny were to be interpreted in

Female Genital Mutilation and Asylum | 313

such a way as to benefit women, it would be appropriate not to deprive girls and women of the full experience of their sexuality. Asylum advocates feel that mutilation is very similar to classic political persecution. FGM is recognized as grounds for asylum by the World Health Organization, the UN High Commission on Refugees, the United Kingdom Apellate Gender Guidelines and, on the basis of evolving asylum law, the United States. Women and girls, often their daughters, fleeing female genital mutilation can be considered to belong to a particular social group, which fits the definition of an asylum seeker. The threat of coerced FGM operation can be viewed as persecution. It is both torture and a degrading form of treatment. Despite the claims of those seeking to restrict immigration, the impoverished circumstances of women seeking to flee FGM make it hard for them to leave their country to present themselves as asylum seekers. Female genital mutilation is a women’s issue as well as a political and humanrights issue. Women subject to FGM originate in patriarchal (male dominated) societies in which they have an inferior social status to men. FGM can be viewed as an extreme form of discriminatory practice towards women. Internationally, women’s organizations have condemned the practice and they are active in promoting asylum for women subject to FGM. CONCLUSION The world has been slow to recognize women’s rights, although progress was made in the twentieth century. Currently, there is a clash between the West and traditional cultural practices in the Middle East, upper Africa, and other Muslim regions. This tension between fundamentalism and Western secular culture has resulted in terrorism and war. The international women’s movement can find itself at odds with women who have undergone FGM, accept it, and want it for their daughters. At present, granting asylum on the basis of FGM sends a message of disapproval to societies with long-standing non-Western traditions. If anti-FGM advocacy can be separated as an issue from Islam as a world religion that has never advocated for it, a clash of civilizations can be avoided. If avoidance of torture is a basic human right, then female genital mutilation represents persecution of girls and women. The negative long-term health consequences are also of great concern and the subject of preventative educational campaigns in Africa. The role of the United States and other nations in providing protection to women is controversial because FGM becomes another form of persecution subject to asylum claims that ultimately increase immigration. Whether only women who have not suffered the operation will be protected or adult women can gain protection is one controversy. How many asylees should be admitted and how this contributes to the number is another issue. FGM makes an important statement about the status and human rights of women that will greatly impact both immigrant receiving nations and traditional societies in the future.

314

|

Financial Costs and Contributions

See also Asylum and Human Rights; Detention Conditions; Expedited Removal; Gender and Family Formation References: Barnett, D. “US immigration policy: Asylum-seekers and refugees.” The Journal of Social, Political, and Economic Studies 27, no. 2 (2002):151–165; Bureau of Immigration Appeals. Matter of Kasina, 21 I. and N. Dec. 357. 1996; Kim, Yule. “Congressional Research Service: Asylum Law and Female Genital Mutilation.” Washington, DC: U.S. Government Printing Office. http://www.fas.org/sgp/crs/misc/RS22810.pdf; Leo, J. “The Voters Go to Pot.” U.S. News & World Report 21, no. 17 (1996): 23; Lerner, S. “Rite or Wrong?” The Village Voice 42, no. 13 (1997): 44–47; Walker, Alice. Possessing the Secret of Joy. New York: Harcourt Brace Jovanovich, 1992; Walley, C. J. “Searching for ‘Voices’: Feminism, Anthropology, and the Global Debate over Female Genital Operations.” Cultural Anthropology 12, no. 3 (1997):405–438; Williams, L., and Sobieszczyk, T. “Attitudes Surrounding the Continuation of Female Circumcision in the Sudan: Passing the Tradition to the Next Generation.” Journal of Marriage and the Family 59, no. 4 (1997):966–981; Yount, K. M. “Like Mother, Like Daughter? Female Genital Cutting in Minia, Egypt.” Journal of Health and Social Behavior 43, no. 3 (2002):336–358.

Erin Nieto-Salinas and Judith Ann Warner

FINANCIAL COSTS AND CONTRIBUTIONS Lately, largely due to increasing numbers and an increasingly more-obvious presence in the country, immigration and undocumented immigration has been a focus of national dialogue. Debate rages on, considering important questions such as language, culture, fairness, and compassion, but for many the bottomline argument boils down to answering the question of whether or not immigration is good or bad for the country economically. Alternatively, one may hear people debating whether immigrants, and especially illegal immigrants, pull their own weight or are a burden on society. Much of the public believes that, on balance, immigration is bad and that undocumented immigrant families are reaping enormous windfalls at their expense. Many Americans think that undocumented immigrants do not pay any taxes and consume billions of dollars of government benefits annually.

BACKGROUND Critics of unregulated immigration argue that the influx of undocumented immigrants brings high economic costs by lowering domestic wages and raising state and local expenditures on public services such as healthcare and education. They further protest that immigrants are a burden on our country because they take our jobs while using our housing and healthcare. Moreover, the American public largely believes the critics are right. In a May 2007 CBS News/New York Times poll individuals were asked: “Do you think illegal immigrants do more to strengthen the U.S. economy because they provide low-cost labor and they spend money, or do illegal immigrants do more to weaken the U.S. economy

Financial Costs and Contributions | 315

because they don’t all pay taxes but use public services?” Seventy percent responded that immigrants weaken the U.S. economy. This negative public opinion is primarily due to inflammatory misinformation about undocumented immigrants coming from powerful anti-immigrant interests because, in reality, the exact opposite is true. Immigrants, including undocumented immigrants, pay billions of dollars in taxes annually and, in fact, legal immigrants do not qualify for most government benefits, including Social Security and modern welfare, for up to five years after they enter. According to the Bush Administration President’s Council of Economic Advisor’s chairman Edward P. Lazear (2007), “Our review of economic research finds immigrants not only help fuel the Nation’s economic growth, but also have an overall positive effect on the income of native-born workers.”

IMMIGRANTS AND JOBS Downward Wages and Native-Worker Displacement Immigration critics assert that immigration lowers wages for native workers who compete for the same jobs. Critics also claim that immigration leads to higher unemployment for native workers whose jobs go to immigrants for lower wages. These claims become socially constructed facts, and they do seem to make a great deal of sense. For example, economist George Borjas estimates that 1990s immigration contributed to a decrease in average U.S. wages of three percent. Since immigration, especially undocumented immigration, appears to be concentrated among the low-skilled, native-born high school dropouts are the workers most likely to be hurt. Hence, Borjas reports that the wages of native workers without a high school degree fell by nine percent because of immigration. Nevertheless, rates of high school completion in the United States increased from approximately 55 percent in 1970 to 78 percent in 1990 and 85 percent in 2005, meaning that the percentage of native workers affected by falling wages due to immigration has fallen precipitously. Nonimmigration Factors in Native Workforce Change Professor Borjas overlooks that the U.S. workforce is becoming more educated, and the reason the wages of low-skilled native workers might be depressed are, more or equally, because of globalization ( jobs moving overseas), the decline of American labor unions, the failure of Congress to raise the minimum wage (frozen during the following high-immigration periods: 1981–1989, 1991–1995, and 1997–July 2007), or technological change. Besides, even if Borjas is correct, those truly responsible for lower wages are not immigrants, but materialistic or, at least, opportunistic American employers. Throughout U.S. history, employers have take advantage of immigrant workers by only offering them substandard wages. Today some pay subminimum wages because undocumented immigrants have no legal right to defend themselves.

316

|

Financial Costs and Contributions

Businesses can use this group of vulnerable workers against the rest to lower other workers’ wages and thus, their cost of doing business, which increases profit. Unemployment Politicians who promote increased border enforcement justify it by linking undocumented immigrants to unemployment. Yet, despite fears that immigration causes unemployment, especially for low-skilled native workers, nearly all the economic research shows this is not true. For example, a 1994 study of unemployment and immigration found no significant relationship (Simon, Moore, and Sullivan 1994). Moreover, in the 1990s economists found that Canadian and Mexican immigration slightly decreased native unemployment rather than increasing unemployment (Dorantes and Huang 1997). The Current Population Survey indicates that unemployment increased from a rate of 5.1 percent in 1997 to 6.2 percent in 2003. In 2003, the foreign born had an unemployment rate of 7.4 percent as compared to the native-born rate of six percent. Clearly, the economic decline that has occurred throughout the decade hurts foreignborn workers more than the native born (Camarota 2003). The job decline is connected to the strength of economy.

POSITIVE IMMIGRANT WORK CONTRIBUTION Immigrant Job Demand and Creation There is evidence to conclude that the opposite of conventional wisdom is true; immigration in essence appears to create jobs. Low-skilled, legal and undocumented immigrants have proved to be hardworking and resourceful. As a result, they, at least indirectly, create a demand for their own employment. A significant number of employers appear to prefer their own low-wage service workers over expensive automated alternatives. In addition, immigrants create demands for products and services for immigrants, directly increasing employment. What is more, some immigrants create jobs by starting their own enterprises. For example, immigrants have founded an amazing one in five new companies in California’s vibrant economic engine, Silicon Valley. Furthermore, nearly one-half of all new Ph.D.s in science and technology are immigrants. These immigrants earn high wages, pay higher taxes, and create additional U.S. jobs. Hence, the evidence on the negative effects of immigration on native workers’ wages and jobs is far from clear, despite critics’ attacks and claims. Lower Consumer Costs Alternatively, consider what low wages in low-skilled jobs mean for native workers who have higher-skilled jobs. Low wages also mean lower prices for labor-intensive goods and services. Patricia Cortes, also an economist, found that U.S. cities with larger inflow of low-skilled immigrants experienced larger

Financial Costs and Contributions | 317

reductions in prices for housekeeping, gardening, child-care, and other laborintensive local services. Ten percent more immigration lowers prices for these services by about 1.3 percent. Lower prices for goods and services raise the real incomes of U.S. households, with most of these gains going to those in regions with large immigrant populations. IMMIGRANT TAX CONTRIBUTION Critics of immigration claim that immigrants are a burden on society and that they do not pay taxes while at the same time place demands on government services. Nevertheless, immigrants both legal and undocumented do pay taxes just like native U.S. citizens. There is no way to avoid all taxation in the United States, even for the minority of undocumented immigrants who work under the table. Moreover, immigrants pay more in taxes than they receive in benefits from government. However, it is true that this surplus is unevenly distributed, resulting in a net surplus of taxes paid to the federal government but a net cost to some states and some local governments. High immigration states and localities, such as the states that border Mexico, appear to bear a greater burden, but even that varies by public-service sector and locality. Taxation Other Than Income Examples of taxes that immigrants and even illegally employed undocumented workers who are paid in cash must pay are sales taxes, property taxes, excise taxes, gasoline taxes, and so-called sin taxes (liquor and cigarettes). Most of the states collect a sales tax on retail sales and, naturally, immigrants pay sales taxes on the products they purchase. Because most undocumented immigrants have lower incomes, they do not pay as much in absolute terms in sales taxes, but sales taxes are by their nature regressive taxes, which means that lower income families pay a higher percentage of their incomes as sales and similar taxes. For example, in Texas, taxpayers in the bottom 20 percent of incomes pay about 8.5 percent of their incomes in sales and excise taxes while Texas taxpayers in the top one percent of incomes pay only 1.2 percent of their incomes in sales and excise taxes. Most of the states’ local government entities such as counties, cities, towns, villages, townships, and school districts collect a property tax on real estate that is paid either directly by property owners or indirectly through rent payments by both immigrants and the native-born. Property taxes also tend to be at least mildly regressive. Federal Taxes Although it is not well-known, most undocumented immigrants pay Social Security, Medicare, and income taxes, also. Researchers estimate that between 50 percent and 75 percent of unauthorized immigrants pay federal, state, and local taxes. However, because they are undocumented, it is very unlikely that they will ever be able to collect Social Security or Medicare benefits. The Social

318

|

Financial Costs and Contributions

Security Administration reports that it collects $6 billion to $7 billion in Social Security tax revenue and about $1.5 billion in Medicare taxes annually into its earnings suspense file, mostly from undocumented immigrants using false Social Security Numbers (SSN). Undocumented workers using false SSNs are unable to file for tax refunds. Since the vast majority of undocumented workers are among low-skilled and low-paid workers, it seems they would otherwise be entitled to income-tax refunds. As a result, a significant proportion of the $90 billion a year collected from unauthorized workers that might have been refunded, remains with federal and state governments. WELFARE, FOOD STAMPS, AND OTHER PUBLIC BENEFITS Federal, state, and local governments provide numerous services to immigrants. Critics of immigration cite three of them as especially costly and subject to abuse: welfare, healthcare, and public education. Despite the widespread myth that immigrants collect welfare (food stamps and Temporary Aid to Needy Families) payments at the government’s expense, the truth is that since 1996 nearly all immigrants are barred from collecting welfare until they have lived in the United States for at least five years, and undocumented immigrants in most states absolutely cannot collect welfare. Most immigrants, both legal and undocumented, work. Additionally, remember that undocumented and even legal immigrants are often afraid to seek such assistance, even when they do qualify. They fear classification as public charges (individuals who cannot support themselves) and subsequent deportation. Overall, 21 percent of immigrants are poor compared to 12 percent of the native-born, yet the percentage of immigrants on welfare (8.7%) is lower than the percentage of citizens on welfare (11.6%). Immigrants are much less likely to receive food stamps than are citizens. While immigrants represent between 8 and 12 percent of the U.S. population, depending upon the estimate, only about three percent of food-stamp recipients are immigrants. Even immigrants who are eligible for food stamps are significantly less likely to receive them than are all other individuals who are eligible for the program; for example, the U.S. Department of Agriculture reports about 45 percent of eligible immigrants received food stamps in 2002, compared to almost 60 percent of eligible individuals overall. HEALTH COSTS Immigrants are said to be bankrupting state and local health-care budgets. In a report asking the Federal government for more help, southwest U.S.-Mexico border-county hospitals reported uncompensated care totaling nearly $832 million in 2000. Of that $832 million, almost $190 million or about 25 percent of the uncompensated costs these hospitals incurred resulted from emergency medical treatment provided to undocumented immigrants. Note that 75 percent of these uncompensated costs cannot be attributed to treating undocumented immigrants, but to treating other uninsured people. While those costs are increasing

Financial Costs and Contributions | 319

rapidly for some jurisdictions, they account for a small percentage of spending by most state and local governments. For example, in 2006, the Oklahoma Healthcare Authority estimated that it would spend about $9.7 million on emergency Medicaid services for unauthorized immigrants that year, and that 80 percent of those costs would be for services associated with childbirth. The agency’s actual total spending for that year was $3.1 billion. The agency also reported that, since Fiscal Year 2003 (the first fiscal year considered), the services provided to unauthorized immigrants have accounted for less than one percent of the total individuals served and have cost less than one percent of the total dollars spent for Medicaid services. Moreover, immigrants and especially undocumented immigrants are less likely to be insured and therefore, less likely to consume healthcare services. Similarly, contrary to popular belief, immigrants rarely use emergency-room services. For example, the metropolitan areas of Miami-Dade County, Phoenix and Orange County, CA (urban areas with large immigrant populations), have much lower rates of emergency-room use than do areas with smaller immigrant populations, such as Cleveland, OH and Little Rock, AR. Additionally, fewer than 10 percent of Mexican immigrants, both documented and undocumented, who had been in the United States for fewer than 10 years reported using an emergency room, compared to 20 percent of native-born Americans. Immigrants’ low use of emergency-room services reflects a low use of healthcare services in general and more specifically reflects fear among immigrants about using the healthcare system at all due to concerns about deportation. COST OF EDUCATING IMMIGRANT CHILDREN Another expense criticized is that of educating the children of immigrants. Public education can be expensive, and education is the largest single expenditure in state and local budgets. In 1982, the Supreme Court ruled that states may not exclude children from public education because of their immigration status. Current estimates indicate that about 2 million school age children (5 to 17 years old) in the United States are undocumented immigrants; an additional 3 million children are U.S. citizens born to unauthorized immigrants. Critics complain that the cost of educating undocumented immigrant children tops $12 billion. When they add the cost of public education for immigrants’ U.S.-born children, who are by law U.S. citizens, the total cost was over $28.6 billion in 2004. Limited English Proficiency Educational Programs Critics further bemoan that special programs for non-English speakers are an additional burden as well as a hindrance to the overall learning environment for English-speaking children. The additional expense is at least $290 to $879 per pupil depending on the size of the class. Moreover, because the children of undocumented immigrants come from families that are often living in poverty, there is also a major expenditure for supplemental-feeding programs in the schools. Overall, federal, state, and local governments spent $590 billion

320

|

Financial Costs and Contributions

on education in 2004, and of this, $530.8 billion was state and local spending. Hence, the above $28.6 billion figure is 4.8 percent of state, federal, and local spending on education, and 5.4 percent of state and local spending on education. Undocumented Children’s Educational Future It is more reasonable to be concerned only with spending on undocumented children and not to include children who are citizens. One might argue that logically it is prudent and a responsibility for the future to educate our own citizens, no matter who their parents are. Why should even critics of immigration want to deny a basic education to U.S. citizens because their parents have broken the rules? Furthermore, education is a well-proven major factor in determining the future earnings and contributions (including tax payments) of future adults. Therefore, it seems more honest to assess the extra costs of educating only undocumented, noncitizen children when counting the burdens of immigration on the public. Accordingly, the additional costs of the public education of noncitizen children consists of only two percent of total education spending and 2.3 percent of state and local spending on education. Also, if compared to total federal, state, and local government spending, the expense of educating two million extra children is only half of a percent of federal spending ($2.3 trillion in 2004) and about half a percent of state and local spending ($2.2 trillion in 2004). BALANCING COSTS AND CONTRIBUTIONS Despite widespread hysteria that immigrants are on balance an economic drain on the country, they are not. In the longterm, according to a 1997 National Research Council report, immigration nets the country $80,000 per immigrant or $10 billion annually. By 2006, as immigration increases, this figure was revised to $37 billion per year. Moreover, in a Wall Street Journal 2006 survey of economists, 44 of 46 agreed that even undocumented immigration provides a net gain to the national economy. A December 2006 report from the high-immigration state of Texas estimated that undocumented immigrants paid the state almost $1.6 billion in taxes while costing the state only $1.2 billion in benefits and services. Moreover, the Texas state comptroller estimated that illegal immigrants contribute $17.7 billion to the state’s gross state product each year. On the other hand, the same Texas report notes that private and public hospitals and Texas local governments spend over $900 million more than they collect from undocumented immigrants, mostly on healthcare. Similarly a 2006 New Mexico state report relates that its estimated 40,000 undocumented immigrants pay between $1.2 and $1.8 million in state and local taxes above and beyond the additional costs imposed on the state by immigrants. While in the short-term, low-skill immigrants impose some costs, over time these costs are small and temporary. However, it is true that these costs are borne unevenly by state and local governments, and most of the obvious tax benefits go to the federal government.

Financial Costs and Contributions | 321

Anti-immigration interest groups, such as the Federation for American Immigration Reform (FAIR) and the conservative think tank the Center for Immigration Studies (CIS), have released several reports over the last two decades used repeatedly as evidence to make this point. Yet, these reports suffer from several major flaws. The first is that they do not report that, in fact, local governments also suffer a deficit in tax revenues compared to spending for native-born citizens. The gap between tax revenue and spending is greatest for undocumented immigrants, but this is due to lower incomes compared to native-born citizens. The second flaw is that these reports fail to take into account federal transfer payments to state and local governments. Since as far back as 1986, the federal government has made transfer payments to reimburse state and local governments for at least some of the services they provide immigrants. Thirdly, their estimates inevitably are inaccurate because this calculation would be far too complex, leave out immigrants’ indirect contributions to the tax revenue that they create by patronizing American business and commerce. Hence, we can only conclude that the evidence, while mixed, seems to support the idea that immigration, even so-called illegal immigration, on balance is economically advantageous for the United States.

CONCLUSION Despite plenty of research to the contrary, the public blames immigrants, especially undocumented, unskilled immigrants, for U.S. economic problems. Nevertheless, politicians who made immigration their key or even only issue are not getting elected (J. D. Hayworth—former Colorado Congressman, defeated in 2006) or dropped out of the 2008 Presidential election (New Mexico Governor Bill Frist; Colorado Congressman Tom Tancredo). In the face of unprecedented oil-price increases raising costs of all goods that need transport (even food), a spectacular federal budget deficit in the trillions, and a credit and housing price crisis, the finger of blame is pointing directly at the federal government. Somewhat more cautiously, the everyday taxpayer who criticizes immigrants may be wondering about the elite taxpayers who have benefited from massive tax cuts that made the entire federal tax system more regressive. The new presidency and re-elected Congress might be expected to take new and bolder positions on immigration than the failed 2006–2007 reform bills. Because the immigrant balance sheet comes out mildly on the positive side, it is to be hoped that the federal, state, and local governments will reach a compromise in which everyone pays for and gets their fair share—even immigrants. See also Economy; Education Costs; Health and Fiscal Costs; Minimum Wage; Taxation; Welfare Costs References: Borjas, George J. Heaven’s Door: Immigration Policy and the American Economy. Princeton, NJ: Princeton University Press, 1999; Camarota, Steven A. “Immigration in a Time of Recession: An Examination of Trends Since 2000.” Washington DC: Center for Immigration Studies. November, 2003. www.cis.org/articles/2003/back1603.html; Card, David. “Is the New Immigration Really So Bad?” Paper Presented at the Philadelphia Fed Immigration Conference, April 28–29, 2005. http://www.philadelphiafed.org/econ/

322

|

Financial Costs and Contributions conf/immigration/card.pdf; Lowenstein, Roger. “The Immigration Equation.” The New York Times Magazine. July 9, 2006. http://www.nytimes.com/2006/07/09/magazine/ 09IMM.html; McCarthy, Kevin F., and Georges Vernez. “Benefits and Costs of Immigration: The California Experience.” In The Debate in the United States over Immigration, edited by Peter Duignan and Lewis H. Gann. Stanford, CA: Hoover Institution Press, 1998; Saiz, Albert. “The Impact of Immigration on American Cities: An Introduction to the Issues.” Business Review Q4(2003):14–23; Smith, James P., and Barry Edmonston, eds. The New Americans: Economic, Demographic, and Fiscal Effects of Immigration. National Research Council. Washington, DC: National Academy Press, 1997; Strayhorn, Carole Keeton. Undocumented Immigrants in Texas: A Financial Analysis of the Impact to the State Budget and Economy. Austin, TX: Special Report of the Texas Comptroller of Public Accounts, 2006.

James A. Norris

G GENDER AND FAMILY FORMATION The immigration debate focuses on women and children because of the costs that immigrant families, including legal permanent residents, may generate for providing public education and social services. Historically, temporary male migrants were more likely to migrate than women, and developed countries like the United States have benefited from this household arrangement by avoiding the costs associated with raising children to be adult workers. Little thought is given as to how this has impacted immigrant family formation and developing countries. Heightened border enforcement and more rigorous standards for admission of less-educated and less-skilled immigrants have been matched by the creation of standards for federal means-tested benefits that women and children have difficulty qualifying for. Given the need of developing countries for economic support, these contradictory trends have increased permanent migration among the undocumented and strengthened the trend toward the feminization of migration. A social analysis of U.S. immigration policy’s impact on women and families requires a consideration of how avoiding social costs connected with less-skilled immigration may overlook other social issues, such as the need to replenish the U.S. workforce and promote family and community development.

BACKGROUND Gender Feminist theorists have established a basic distinction between biological sex and gender. Biological sex refers to the reproductive anatomy one is born with. 323

324

|

Gender and Family Formation

Gender refers to a set of cultural expectations for behavior that are the basis for social ideas about masculine and feminine behavior. Feminists believe that, aside from reproduction and secondary sexual characteristics, there are few behavioral differences that are innate. Essentialists, on the other hand, believe that anatomy is destiny. Men are destined to be dominant in the public sphere of politics and commerce while women belong in the private sphere of the household, raising children and engaging in family-maintenance tasks. Certain feminists take an essentialist position regarding women’s capacity for nurturance. They believe that nurturance is a biologically based trait and point to the need for women to bond with their babies in the crucial days after birth, which is accompanied by hormonal changes. In Western postindustrial countries, the women’s movement has achieved a major social change regarding women’s integration into the public sphere— particularly through employment. Feminists argue that patriarchy, a social structure in which men control public life and the masculinist ideology that men are superior to women, are a social reality that belongs to the past. Although Western women have not achieved full integration into the public sphere in terms of power and income parity, they have made substantial gains. In the developing world, a global feminist movement is acting on behalf of women’s education and economic integration as paid workers. One social consequence is a global trend toward women’s entrance into the labor market and the increasing immigration of women. There remain, however, patriarchal societies, such as Saudi Arabia in the Middle East, that are very resistant to letting women enter public life except under conditions of gender segregation, as when women doctors treat women. As globalization rapidly occurs, women’s roles and their integration into the economy raise many questions about how women’s employment and involvement in family life will change not only immigration patterns but the foundation of human life. Feminization of Migration The feminization of migration is a global phenomenon related to the increasing need for monetary payments (remittances) for households in developing countries to realize income. Historically, men were predominant as temporary migrants and women, although less likely to migrate, were more likely to emigrate, in smaller numbers than men, on a permanent basis. Currently, women are more likely than men to migrate to developed countries. The United States is an example of a country in which the trend towards feminization of immigration is being re-balanced by male immigrants. In 1960, there were 95.6 males per 100 women. In 1970, the family reunification emphasis of the 1965 Immigration and Nationality Act resulted in a sex ratio of 84.4 which increased to 87.8 by 1980. By 1990, the sex ratio returned to 95. 8 and in 2000, reached parity at 100.1. The 100.1 sex ratio of males to females, practically even, can be compared to 95 males to 100 females in the native-born population, suggesting that social factors have been acting to tweak the international pattern. As shown by sex ratios, men were more likely than women to migrate from Africa (140.1), Mexico

Gender and Family Formation | 325

(118.1), Central America (112.6), and Latin America (103.8). Conversely, women were more likely to migrate than men from the Caribbean (84.8), Asia (91.7), South America (91.8), Europe (94.7), and Canada (95.5). The tradition of temporary and cyclical migration of men to the United States may explain the pattern of more migration of men from Mexico and Central and Latin America. Global Economic Linkages and Reproduction of the Labor Force In the late twentieth century, women were more likely to permanently emigrate, which resulted in female migration balancing out with male migration in the foreign-born U.S. population. Women are a major component of global undocumented immigration. Globalization has fostered the formation of oneway labor networks headed to developed countries in search of low-wage labor. In return, families and relatives in developing countries depend on immigrants to send money home. These remittances are a significant source of capital and a way of dealing with unemployment. Overall, gendered occupations in services, subcontracted manufacturing, domestic help, and the sex industry have encouraged the feminization of immigration. Feminization has altered the way in which countries pay the costs of raising the next generation of workers, a process called the social reproduction of labor. When developing countries and families pay the costs of raising and educating children who go abroad as adult workers, they are sparing the wealthy, developed countries this expense. Often these workers are less educated and skilled because developing countries do not have the means to pay for advanced education at the many middle or high schools, colleges, and universities that provide it. When talented women go abroad for an advanced foreign education, they may not return, which is referred to as brain drain and also benefits developed countries. Another consequence of feminization of immigration is that the low cost domestic labor of less-educated women from developing countries has freed middle and upper class women to enter the developed countries’ labor forces. The cheap labor of less-educated women from developing countries makes it possible for many professional native-born and immigrant women to work without a constant responsibility for children and the home. Indeed, it may have facilitated the revolutionary number of women obtaining higher education and skilled employment. It has not, however, transformed the gendered nature of household work such as cleaning and raising children. Immigrant women shoulder this time-consuming and even physically arduous work. Ironically, the adult women whose social cost of rearing was borne by developing countries come to the United States and subsidize the social reproduction of native-born families and new generations of educated and skilled employees. A sad consequence is that, like many less-educated and skilled male immigrants, these women leave their own families behind in their homelands. Their own mothers or female relatives raise their children, continuing to subsidize the social cost of the next generation of potential immigrant workers. This intergenerational

326

|

Gender and Family Formation

form of family reproduction creates transnational motherhood, a sad situation in which immigrant mothers do not have many chances to see their own children while they work for a family in another society. The love and aid they give to children in the United States is something which they cannot give to their own children. They are only able to financially support them and perhaps hear about them or attempt visits that have become harder and harder for undocumented women as border enforcement is tightened. WOMEN’S MODE OF ENTRY Family Reunification and Employment Preference. The McCaron Walter Act of 1952 and the Immigration and Nationality Act of 1965 established family reunification as the first priority in legal immigrant admission, followed by a skilled employment preference. This makes women appear to be family dependents. Many women, however, migrate for employment in their own right, irrespective of family ties. Other motives include escaping marital or family conflict and personal freedom. Refugees and Asylees. Men are more likely to enter as refugees or asylum petitioners, although women and children are a majority of the world’s refugees (United Nations 1994). One reason for the limited admission of women has been unwillingness to recognize gendered persecution. War crimes involving mass rape, the practice of some Islamic cultures of genital mutilation, and (until recently) family violence, including sexual abuse of children, have not been seen as human rights issues requiring protection. Undocumented Entry. In March 2004, it was estimated that three million (29%) of all undocumented immigrants are women. In the past, men were more likely to attempt entry without inspection. Currently, undocumented men are less easily able to cross the border due to heightened enforcement, and family formation has accelerated. Women and children are attempting risky crossings to rejoin their husbands and stabilize their families. WOMEN’S EMPLOYMENT Economic restructuring and labor market segmentation changed the role of immigrant women in the formal and informal economies. The contemporary garment, footwear, textile, and electronic industries have been very dependent on both fashion and demand. These firms operate like sweatshops, giving work to subcontractors who cut corners with low wages (even sub-minimum), no benefits, hazardous working conditions, or home employment. Sweatshops, like private household labor, are a part of the informal economy. It is a sub rosa (hidden) form of employment in which federal taxes, Social Security, and other legalities are avoided. Immigrant women predominate in low-skill and lowwage employment, such as private household workers, and have preserved some forms of traditional manufacturing in the United States. Despite the concentration of both native-born and immigrant women in service and other forms of work that pay less than what men earn, there are

Gender and Family Formation | 327

professional immigrant women earning high salaries. Often employed in science and technology, immigrant women should not be stereotyped as less-educated people destined for poverty. Work Status and Earnings One stereotype of immigrant women is that traditional gender roles tie them to the family and that they do not work. In 2004, approximately 54 percent of immigrant women work as compared to 61.6 percent of native-born women (American Community Survey 2004). In the 25 to 54-year-old age grouping, 66.5 percent of immigrant women work as compared to 79.4 percent of native born women. Immigrant women who have been in the United States for less than ten years are less likely to work (56.1%) as well as those who were not citizens (60.1%). In contrast, women who were naturalized citizens were most often employed (77.4%). Approximately 55 percent of Mexican immigrant women worked as opposed to 66.5 percent of all foreign-born women. Immigrant men ($27,239) tend to have higher median earnings than immigrant women ($22,139) (American Community Survey 2004). Approximately 55 percent of immigrant women earned less than $25,000 per year as compared to 44.1 percent of native-born women. Twelve percent of immigrant women earned more than $50,000 per year while 13.2 percent of native born women earned at this level. Women from Europe ($28,319) and Asia ($29, 662) had higher median earnings than women from Latin America. Reflecting lower educational and skill levels, Mexican born women ($15, 149) earned less than Caribbean ($21,255) and South American women ($23,080) but had similar earnings as compared to Central American women ($15,857). In 1999, median native-born household income was $41,383 as compared to $36,408 for foreign-born households (United States Census 2000). Thirty-four percent of immigrant households earned below $25,000 as compared to 30.2 percent of native-born households. Poverty rates among immigrant households vary by region: Europe (9.3%), Asia (12.8%), and Latin America (21.9 %). In Latin America, there was regional variation in poverty rates for South America (11.5%) and Mexico (25.8%). Immigrant women household heads with children had a 31 percent poverty rate as compared to 12.4 percent of married-couple immigrant households. Examination of the income differences of men versus women and native-born versus immigrant men and women living in households suggests certain trends. First, gender inequalities result in native-born and immigrant men earning more than women. Secondly, regional variation in education and skill level of immigrants indicates that Mexican and Central American women and their affiliated households will have lower earnings levels, with the highest poverty rate among single women heading households with children. Both global and gender inequalities shape the earnings of immigrant households in the United States. It should come as no surprise that a somewhat lower workforce-participation rate and earnings for immigrant women, combined with an increased poverty rate among immigrant households, focuses debates about immigration reform

328

|

Gender and Family Formation

on promoting male cyclical migration and reducing female migration, which is connected to family formation. Immigrants from Mexico and Central America are made particularly negative targets; because the highest poverty rate is found among immigrants from these regions, their family formation is likely to cost taxpayers more. WOMEN AND FAMILY FORMATION Western hemisphere migration, such as from Mexico, has often resulted in bi-national family formation because women stayed behind. Historically, men were much more likely to migrate than women. Cyclical labor migration was based on a system in which women raised families and received remittances (monetary payments) from their husbands abroad. Mexico, a developing nation, provided a subsidy for the United States by bearing the social costs of raising children. Current attempts to establish guest worker programs often represent an attempt to return to cyclical migration. The immigration debate revolves around an attempt to exclude less educated and less skilled immigrants in an effort to halt family formation perceived to raise social costs for the native-born population. Because heightened border enforcement has had the unexpected impact of making permanent immigration of both men and women and family formation more likely, efforts at social exclusion of the undocumented could have unanticipated social consequences. ARGUMENTS AGAINST WOMEN’S AND FAMILY IMMIGRATION Increased Social Costs Federal and State Benefits. The public believes that it should not have to assume educational and other social costs associated with multigenerational immigrant households. California taxpayers were among the first to rebel, passing Proposition 187, which sought to restrict undocumented children and adults from education, healthcare, and welfare benefits. Although since ruled unconstitutional, Proposition 187 resulted in other attempts by the states to restrict immigrant access to taxpayer-based programs and benefits. The public believes that the federal and state-benefits systems are not tightly run. There is a concern that even undocumented immigrants make use of meanstested social services meant for those in poverty. Since the undocumented fear deportation, except for education, they are significantly less likely to attempt to access public services unless it is an emergency. This fear may cause undocumented parents to avoid healthcare for U.S.-born children. The public has not wanted to provide free or sliding-scale healthcare for legally admitted immigrants, let alone the undocumented. Emergency Healthcare. Undocumented temporary migrants, immigrants, and visiting foreign nationals cannot be denied emergency healthcare. Health insurance for the native-born is a major issue due to rising costs. Yet it is difficult

Gender and Family Formation | 329

to determine the costs of emergency care for the undocumented because the Emergency Medical Treatment and Active Labor Act (EMTALA) makes it illegal to ask a person’s immigration status in an emergency room. In 2000, the United States-Border Counties Coalition estimated that $200 million a year is spent on foreign nationals. The amounts paid were $31 million in Arizona, $79 million in California, $6 million in New Mexico, and $74 million in Texas. Thirteen million dollars were spent on emergency transportation. State and local government has paid these costs. Migrants arrive as walk-ins, by ambulance, or are dropped off by the U.S. Border Patrol or Immigration and Customs Enforcement (ICE). The U.S. Border Patrol or ICE will bring injured migrants, most often men, who entered without inspection to border hospitals for care but do not pay for medical services. One common occasion for emergency healthcare occurs when pregnant women from Mexico cross the border to deliver a child in the United States because it confers birthright citizenship. Because of inability to ask about residency status, it is difficult to determine how many children are delivered for impoverished women with legal residency as opposed to undocumented women. Undocumented women and children are eligible for Medicaid. In order to receive federal reimbursement, healthcare facilities attempt to enroll undocumented patients in Medicaid. State or county eligibility workers review these applications, which are lengthy, time-consuming, and hard to process. Education. Women’s immigration is tied to family formation and children. Taxpayers, particularly those in the U.S.-Mexico border states and Florida, have repeatedly tried to prevent undocumented children from receiving a public education. From Plyler v. Doe in 1982 to California’s Proposition 187, all of these attempts have been found unconstitutional. At the college level, states have sometimes imposed out-of-state tuition requirements on undocumented applicants. Anti-immigrant proponents argue that college is a privilege not an entitlement, like a public education through high school. The nation’s state and community colleges, unlike private universities, are funded by taxpayers and a scholarship and loan system with an element of competition. Some native-born would socially exclude undocumented young adults from a college education due to the cost issue. Proimmigrant advocates point out that creating an underclass of children denied an education is a route to delinquency and crime. Raising the cost of college education for the undocumented is a barrier to acquiring skilled labor for the economy. National Identity and Culture The U.S. population has a tradition which valorizes immigration, specifically European immigration. Mass immigration from the developing world is sometimes viewed as more of a population-displacement threat than an addition to America’s national identity and culture. A majority of U.S. undocumented immigrants and legal residents are from Mexico, Central America, and Latin America. Many are Spanish speakers and they arrive in a nation whose

330

|

Gender and Family Formation

southwest has a strong Mexican American cultural tradition. In the midtwentieth century, non-Hispanic whites were the dominant group, but population projections indicate that increased immigration will displace whites as a numerical majority by the year 2050. Sometimes this is misinterpreted as meaning that Latinos will become the majority, but in actuality, all racial and ethnic minorities will begin to outnumber non-Hispanic whites. This demographic change to a multi-ethnic culture threatens non-Hispanic-white identity and generates a negative reaction towards both legal and undocumented immigrants. An underlying theme in this perceived population threat is that immigrants have large multigenerational families and that they will reproductively overwhelm the European-heritage population. If American national identity has been a white identity and if American mainstream culture is Anglicized and based on speaking English, immigration trends that emphasize women’s entry and family formation present a threat to culture and identity. One criticism of this view is that America has previously had a multicultural and multiracial heritage encompassing Europeans, Africans, and American Indians. Another controversial aspect of this view is that it has racist implications. STEREOTYPING AND RESISTANCE TO LATINA WOMEN’S IMMIGRATION An implicit theme in America’s policy towards unskilled immigrants is to welcome male temporary workers and to discourage female and family settlement. Mexican nationals comprise approximately half of all immigration to the United States and are more likely to be undocumented, less educated, and unskilled. Undocumented Mexican and Latin American immigration and the impact of potential population increase is represented as a social problem. Specifically, Mexican and Latina reproduction is presented as a threat. Leo Chavez, an anthropologist, conducted an anthropological examination of representations of Mexican and Latin American women in national magazines from 1965–1999, which revealed three elements of discourse on Latinas as a reproductive threat to U.S. society. These three themes are (1) a negative impact of fertility and population growth, (2) re-conquest of the United States, and (3) high use of welfare and social services. First, Latinas are viewed as a source of high fertility and population growth. Higher birth rates in Mexico and Latin America and a lack of jobs in those countries are seen as push factors for immigration to the United States. Higher fertility rates of Latinas and native born Mexican Americans are viewed as a cause of the numerical displacement of non-Hispanic whites as a racial majority, which carries a racist implication. Higher Latina fertility is also viewed as a cause of increases in the cost of public education and welfare as well as a potential threat that could weaken citizenship because of social ties abroad. The reality is that from 1970 to 1998, the reproductive rate of Mexican-origin women ages 18–44 declined to 1.81 children, which is below zero population growth. Secondly, the idea of the reconquista (re-conquest) of the United States through immigration and both social and biological reproduction is advanced by

Gender and Family Formation | 331

news writers. The numerical increase in the Mexican population combined with a tendency to preserve traditional culture, including speaking Spanish, is proposed as a potential cause of separatism. The actions of French speakers in Quebec, who almost obtained a majority vote to separate from Canada, is given as an example of what could happen to the United States. Mexican immigration is viewed, by advocates of immigration restriction, as taking back the territory lost in the Texas Rebellion and the U.S.-Mexico War of 1848. The core of this idea is that Spanish speakers will multiply and cause a linguistic rift which will divide the country. The trend among Mexican and Latino immigrants to become more proficient in English over time and for their children to be bilingual is overlooked. A majority of the Mexican population are English speaking by the third generation—a common trend among all immigrant nationalities. Thirdly, undocumented Latina immigrants are perceived as overusing the welfare and social service system. When Latinas migrate, they are viewed as people who will form large families. Their children are seen as creating a need for prenatal care, children’s health services, and more schools, among other taxpayerfunded social services. This belief persists despite limits placed on legal permanent residents that include being denied use of public benefits during the first five years of their stay. Latina women’s biological and social reproduction is viewed as a threat to U.S. fiscal and political policy. This perception is associated with specific stereotypes about the reproductive behavior of Mexican and Latin American women. These stereotypes include beginning sexual activity at an earlier age, having more sexual partners, and not using birth control. Research in Orange County, California determined that Latina immigrant teenagers were somewhat less likely than U.S.born Latinas and non-Hispanic whites to engage in sexual activity under age 18 (Chavez 2004). Non-Hispanic-white females began sexual activity at an average of 18.1 years, a year earlier than all Latinas. Latina immigrants began at approximately a year and one half older, at age 19 or older. Regarding sexual partners, Latina immigrants were more likely than non-Hispanic white females to report having two or fewer sexual partners while non-Hispanic-white females were more likely to report having five or more partners. Native-born Latinas reported a mean of 2.5 sexual partners. Finally, approximately 65 percent of Latina immigrants reported using birth control as compared to about 85 percent of nonHispanic-white women. The average age at which Latinas had a first child was over 20 years old, belying the idea of Latina unwed teen mothers and indicating that family-planning is important in Latina immigrants’ lives. This research also found that both Latina and non-Hispanic-white women of 18–44 years of age had an average of less than two children, below the zero population growth replacement rate. ARGUMENTS FOR WOMEN’S AND FAMILY IMMIGRATION Family Values. Traditional femininity, marriage, and motherhood were once at the foundations of American society and still retain an importance emphasized by conservatives, who, ironically, support restricting immigration. Many

332

|

Gender and Family Formation

immigrant women, especially from developing countries, arrive with traditional gender expectations regarding their role in creating a household in the United States but conservatives would stop their entry. The United States has recognized the need for immigrant family formation in its formal family reunification preference policy, which is opposed by those who would place more restriction on immigration. Changing Gender Roles. Even in less-educated and less-skilled national origin groups, immigrant women can be more capable of raising household income than immigrant men. Central American women residing in California often earn more than their husbands and are supported in this endeavor by their men. Multiple research studies show that a global women’s movement has resulted in greater integration of women into the formal economy. For example, the pattern of cyclical migration in Mexico made women more independent while, simultaneously, relocation of manufacturing from industrialized nations to Mexico promoted the entrance of Mexican women into the labor force. Once in the United States, it is very clear to Mexican women that they can improve household earnings by working, and they look to the changing level of economic participation of U.S. women as a yardstick. Research on Mexican fathering in the United States found that the men had developed gender-progressive attitudes about sharing household tasks and developed equity in expectations for sons’ and daughters’ achievements. They valued a strong work ethic, educational achievement, and intra—and intergenerational respect. Population Replacement. The native-born U.S. population is at below zero population growth. In short, not enough children are being born to replace the current population, which would decline in size if it were not for immigration. A low national birth rate is related to a high social value placed on having fewer children, which is associated with the cost of raising children. In the industrialized nations of both North America and Europe, a low birthrate (referred to as fertility) creates a need for immigrants in the labor supply. Immigrants who value larger family size may help to compensate for population decline. The major factors associated with decline in the native-born birth rate are increased age of women at first child birth, increased education of women, and increased family socio-economic status. Higher socio-economic status families have a decreased birth rate. Over time and across generations, this finding applies regardless of ethnicity and immigrant status. Baby Boomer Retirement and Labor-Force Needs. A desire to exclude lowskilled immigrants and to reduce immigration overlooks the fiscal crisis that could occur as the Baby Boomer generation retires. Social Security has relied on using the wages of current workers to fund retired workers. Given belowpopulation-replacement birth rates among the native-born in the United States, an important question is where the workers who will pay into the Social Security system during the Boomer’s retirement will come from. A related issue is who will take care of the Baby Boomers, whether privately at home (which is expensive), in retirement cooperatives, or in nursing homes. Finally, at an advanced age, Baby Boomers will need additional medical care from both unskilled and

Gender and Family Formation | 333

specialized workers. If the United States does not encourage immigration, including family formation, there will be a gap in both finance and caretaking of this aging population. The Latino labor force is viewed as at least a partial answer to meeting Baby Boomer’s retirement needs. Fractured Families. While employers value low-priced labor and consumers have benefited from lower costs, little thought is given to the sacrifice made by parents who migrate alone. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) promoted tougher border enforcement and raised the income requirement for family-sponsored immigration from 100 percent to 125 percent of the federal poverty line. In keeping with welfare reform, this act was designed to keep less-educated, less-skilled, and poorer Mexican and Central American immigrants from coming to the United States. Survey research on the impact of IIRIRA on Mexican and El Salvadorian families indicated increased fear and stress. Increased deportation of undocumented household members from El Salvador caused financial stress for U.S. households and a loss of remittances (monetary payments) that helped home country households. Many deportees had established jobs in the United States and left behind wives and children who suffered negative emotional and financial consequences, hence the term fractured families. Many Mexicans who had commuted to work across the border have become unemployed, causing household stress. Mexican immigrant families reacted by seeking naturalization, but found that the new 125-percent-above–poverty-line income requirement prevented them from sponsoring additional household members who could financially contribute. Paying Social Costs. Denying social services for undocumented women and children will cause the health, education, and safety of American communities to decline. Denying healthcare allows illness to progress to a more extreme and costly level. Infectious disease can spread in both the native-born and immigrant populations. Failing to provide medical care is cruel and violates medical ethics. Denial of education has implications for creating an impoverished underclass and generating crime. Removing eligibility for social services denies the economic contributions that undocumented families make. They lower consumer costs and make American products more competitive in international markets. Contrary to public belief, many pay federal, state, and local taxes, Social Security, property tax, and user’s fees. A case in point is the accumulation of hundreds of millions of dollars in Social Security funds that cannot be paid out. Elderly men and women could be denied a source of support that they earned with the collaboration of employers. FAMILIES AND FEDERAL MEANSTESTED ELIGIBILITY Changes in laws regulating federal benefits may be harming immigrant women and children in a manner that will have long-term negative consequences by making it harder for them to become socially mobile. For the native born, federal means-tested programs are based on income qualification. Four programs are meant to help people living in poverty: (1) food stamps, (2) Supplemental

334

|

Gender and Family Formation

Security Income (SSI), (3) Temporary Assistance for Needy Families (TANF), and (4) Medicaid. Two laws passed in 1996 restrict the eligibility of legal permanents residents (LPRs), refugees, asylees, and other noncitizens for this aid. These laws are the Personal Responsibility and Work Reconciliation Act of 1996 (PRWRA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Eligibility depends upon immigration status, time of arrival (pre- or post-1996 legal changes), and length of time living and working in the United States. PRWRA provided that an LPR with a long-term work history (generally ten years or forty work quarters) or with a military affiliation is eligible for all programs. Refugees, asylees, and humanitarian cases are eligible for at least five to seven years after entry. Recently arrived LPRs must have lived in the United States for five years or qualify as children for food stamps. The federal five-year residency requirement is in place for TANF and Medicaid and, after that point, eligibility is at state option. SSI beneficiaries must have already been receiving benefits as of 8–22–1996 or have been residents at that date and disabled. Undocumented immigrants are not eligible for any federal benefits with the exception of emergency services. PRWRA and IIRIRA increased the importance of immigrant’s original sponsors to LPR deeming (income and resource support) in order to restrict access to federal means-tested benefits. The new rules require that all of a sponsor’s income and resources and those of their spouse be a part of calculating an LPR’s federal-benefit eligibility until they meet the ten-year work requirement or become naturalized citizens. A sponsor’s affidavit of support is now a legally binding contract. This information, gathered under IIRIRA, is registered in a federal computer system known as Systematic Alien Verification for Entitlements (SAVE). Noncitizen TANF, food stamps, and Medicaid use has decreased, and the LPR poverty rate has also declined. In 1995, 27.8 percent of LPRs had a povertylevel income. This declined to 20.4 percent in 2005. Social factors associated with this shift include increased naturalization rates and entry of higher-income skilled workers. Naturalized citizens rose from 0.8 million in 1995 to 1.4 million in 2005. The poverty rate for noncitizens residing in the United States fell from 27.8 percent in 1995 to 20.4 percent in 2005. Despite a poverty rate reduction, immigrants are still disproportionately poorer than the general population. In 2005, 12.6 percent of the general population lived in poverty while 10.4 percent of naturalized citizens were impoverished, a result of aging and diminished income in this sub-population. Approximately 20 percent of noncitizens lived in poverty; social factors connected to this include educational level, skill level, and length of residency in the United States, which is also associated with income increases and naturalization. Figure G.1 reveals that noncitizen benefits usage dropped for all federal means-tested programs between 1995 and 2005. Native-born program participation also dropped, but naturalized citizens increased SSI, food stamps and

Gender and Family Formation | 335

Figure G.1

Percentage of Noncitizens Receiving Selected Assistance or Benefits: 1995 and 2005.

Source: Congressional Research Services Analysis of Current Population Survey Data, 1996 and 2006. Reprinted from: Wassem, Ruth Ellen. 2007. Congressional Research Report for Congress: Noncitizen Eligibility for Federal Public Assistance: Policy Overview and Trends. Washington D.C.: U.S. Government Printing Office. http://assets.opencrs. com/rpts/ RL33809_20070119.pdf Note: Food stamp data are by households; all other data are individuals. Welfare includes AFDC, TANF, and general cash assistance.

Medicaid participation. This data does not provide the full picture because many states, including California, replaced federal assistance with state funds. Welfare Reform In the mid-1990s, poor whites were a majority of recipients of welfare reform. A major and persisting stereotype is that large, undocumented Mexican families cross the U.S. border to live off of welfare benefits. At that time, the foreignborn population receiving welfare was comprised of Europeans, Asians, and Latin Americans. A segment of program recipients were African American and Puerto Rican, who are citizens. Overlooking the actual statistics on welfare use, the public saw it as both a racial and an immigration issue. The media reinforced stereotypes by reporting stories about blacks and immigrants that implied they preferred welfare to work. These reporters overlooked both the fact that the majority of participants were white and the turnover rate in welfare participation due to the many women who took underpaid employment when they could get it. Unfortunately, low-paid work was not enough to lift families out of poverty

336

|

Gender and Family Formation

during a long period of minimum-wage stagnancy and both native- and foreignborn women and children suffered. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) restricted new, legal, permanent residents from receiving Temporary Assistance for Needy Families (TANF) benefits until five years after arrival. Eligible immigrants found themselves in a limited and changed program emphasizing welfare to work. A qualitative-research study carried out in Los Angeles by social scientists Alejandra Marchevsky and Jeanne Theoharis indicated that two years after PWORA’s passage, two thirds of Mexican immigrant women in their study had been removed from TANF; they were not, however, self sufficient. Welfare has always been a program that placed participants under suspicion and surveillance. Marchevsky and Theoharis found that this atmosphere of disrespect increased under PWORA, and women were forced to leave the program because of intimidation and sanctions. Latina immigrants who were working had temporary and part-time jobs in light-manufacturing and services. They were paid the California state minimum wage of $6.75 per hour and did not receive benefits, such as health insurance. Many women and children could not pay their full cost of living on these benefits and continued to receive low-level welfare payments of $100 a month, which used up their fiveyear lifetime eligibility. In California, Marchevsky and Theoharis found in their Orange County study that Mexican immigrant women earning the minimum wage still needed low welfare payments to prevent food shortage or eviction. Relying on short-term lowered benefits meant they were not able to rely on federal benefits in the future. At the same time, women and children removed from TANF had their federal food stamps and Medi-Cal coverage cancelled. They were still eligible for these programs, but most did not reapply. In the Orange County study, at least one-half of Mexican immigrant women and children were part of two-parent families that could not make ends meet. Not one immigrant woman in this study transitioned from welfare to work and found employment that raised her family above the poverty line or joined an organization where promotion could be achieved to raise her income. The women were dissatisfied due to the disrespect they received, lack of job search assistance, lack of help with their education, and denial of childcare subsidies. Welfare receipt by immigrants made a difference in buying food, clothing, and children’s school supplies as well as bus fare and necessary sundries. Food shortage, insecurity about child care, and deepened poverty are a new social consequence of PWORA for both native-born and immigrant families.

CONCLUSION Each attempt at U.S. immigration reform produces a multitude of unanticipated consequences. Border enforcement heightened the immigration of lesseducated and less-skilled women and children, which in turn promoted family formation and greatly reduced cyclical male migration. Attempts to keep legal

Gender and Family Formation | 337

permanent residents and undocumented women and children from receiving means-tested social benefits put yet more pressure on a situation of gender inequality; both immigrant and native-born women tend to earn less than men. Little attention is paid to maintaining positive relations with immigrant sending countries now receiving deportees, and their subsidizing of the United States labor force remains unacknowledged. A perception of threat among the nonHispanic-white population and the stereotyping of immigrants, particularly women, will keep this issue on the front burner. A re-examination of immigration policy regarding women and family formation will better preserve America’s families’ and communities’ health and safety. The 2008 elections brought a new opportunity for the President and Congress to examine these issues. See also Domestic Workers in the Private Household Economy; Economy; Education; Education Costs; Health and Fiscal Costs; Legal Immigration System; Sweatshop Labor; Taxation; Undocumented Children and the Schools; Undocumented Immigration Policy; Welfare Costs References: Bonacich, Edna, and Applebaum, Richard Behind the Label: Inequality in the Los Angeles Apparel Industry. Berkeley: University of California, 2000; Chavez, Leo. “A Glass Half Empty: Latina Reproduction and Public Discourse.” Human Organization 63, no. 2 (2004):173–188; Cheng, Shu-Ju Ada. “Labor Migration and International Sexual Division of Labor: A Feminist Perspective.” In Gender and Immigration, edited by Gregory A. Kelson and Debra DeLaet, 38–58. New York: New York University Press, 1999; DeLaet, Debra L. “Introduction: The Invisibility of Women in Scholarship on International Migration.” In Gender and Immigration, edited by Gregory A. Kelson and Debra DeLaet, 1–20. New York: New York University Press, 1999; Dubay L, Kenney G. Covering Parents Through Medicaid and SCHIP: Potential Benefits to Low-Income Parents and Children. Washington, DC: Kaiser Commission on Medicaid and the Uninsured, 2001; Feld, Power B. Immigrants’ Access to Health Care After Welfare Reform: Findings From Focus Groups in Four Cities. Washington, DC: Kaiser Commission on Medicaid and the Uninsured; 2000.; Hondagneu-Sotelo, Pierette. Gendered Transitions: Mexican Experiences of Immigration. Berkeley, CA: University of California Press, 1994; Hondagneu-Sotelo, Pierette and Avila, Ernestine. “I’m Here But I’m There: The Meanings of Latina Transnational Motherhood.” In Families at Work: Expanding the Boundaries, edited by Naomi Gerstel, Dan Clawson, and Robert Zussman, 139–161. Nashville: Vanderbilt University Press, 2002; Marchevsky, Alejandra and Jeanne Theoharis. Not Working, Latina Immigrants, Low Wage Jobs and the Failure of Welfare Reform. New York: New York University Press, 2006; Marrieta, Melissa. “Undocumented Immigrants Should Receive Social Services.” International Social Science Review 81(1/2)(2006):61–66; Pearce, Susan C. “Immigrant Women in the United States: A Demographic Portrait.” Immigration Daily 2006. http://www.ilw.com/articles.2006,0804-pearce.shtm#_48; Pessar, Patricia. “Gender and Family.” In The New Americans: A Guide to Immigration Since 1965, ed. Mary C. Waters and Reed Ueda, 258–269. Cambridge, MA: Harvard University Press, 2007; Porter, Lakeisha. “Illegal Immigrants Should Not Receive Social Services.” International Social Science Review 81(1/2)(2006):66–72; Rodriguez, Nestor, and Jacqueline Maria Hagan. “Fractured Families and Communities: Effects of Immigration Reform in Texas, Mexico and El Salvador.” Latino Studies 2(2004):328–351; Taylor, Brent A., and Andrew Behnke. “Fathering Across the Border: Latino Fathers in Mexico and the U.S.” Fathering 3(2)

338

|

Global Economy and Migrant Control (2005):99–120; United States-Mexico Border Counties Coalition. “Medical Emergency: Who Pays the Price for Uncompensated Emergency Medical Care Along the Southwest Border?” http://www.bordercounties.org; Wassem, Ruth Ellen. Congressional Research Report for Congress: Non-Citizen Eligibility for Federal Public Assistance: Policy Overview and Trends. Washington DC: U.S. Government Printing Office. http://assets.open crs.com/rpts/RL33809_20070119.pdf; Wilson, Tamar Diana. “Strapping the Mexican Woman Immigrant: The Convergence of Reproduction and Production.” Anthropological Quarterly 79(2)(2006):295–302.

Judith Ann Warner

GLOBAL ECONOMY AND MIGRANT CONTROL The labor-migration policies of industrial countries that receive migrant workers have the often implicit goal of welcoming the skilled and rotating the unskilled, goals that are difficult to achieve because: (1) relatively few of the world’s best and brightest migrate and (2) economic and human factors combine to ensure that there is nothing more permanent than low-skilled temporary workers. Most of the world’s 3.3 billion workers are low skilled. Past guest worker programs were begun to fill low-skill jobs at times of low unemployment and little undocumented migration, as with the U.S. Bracero (1942–1964) guest worker program. Today, guest worker programs are often justified as a means of curbing illegal migration and spurring development in migrant countries of origin via monetary remittances sent back to relatives. Nevertheless, they have produced unexpected outcomes leading to more settlement in industrialized countries. Past guest worker programs relied on employers receiving permission to hire migrants and then going abroad to recruit workers. Today, from the United States to many other developed nations, unauthorized foreigners enter and go to work. Governments later allow local employers to regularize migrants, or the migrants to regularize themselves, by granting permanent residence or several years of additional legal work. As a result, migrant networks (an infrastructure of recruiters and agents) and the nation’s employers in agriculture, construction, low-skill manufacturing, and some services (a relatively small selection of all business) select many future residents. Legalization abets more amnesties and becomes an unexpected social pattern. The remittance part of the evolving migration infrastructure has received high-level attention; the World Bank has lead an international effort to formalize flows of funds over national borders and to reduce the cost of sending money via regulated financial institutions. Although remittances can speed up development, it appears that unskilled migrants are more likely to send them than skilled migrants. The United Nations (UN) and many governments have tackled the most abusive aspects of migrant smuggling and trafficking. The majority of recruiters and agents who enable several million workers to cross national borders each year are little studied. The full impact of international migration is incompletely known.

Global Economy and Migrant Control

There are both economic gains and losses for industrial and developed countries. As the globalization of the world economy expands, old solutions must be discarded and new solutions developed that better meet twenty-first-century needs.

BACKGROUND The Global Workforce In 2004, there was a 20 to 1 gap in per capita incomes between the 30 richest and the 165 poorest countries included in the World Bank’s World Development Indicators database, $35,100 versus $1,750. World Bank Indicators 2006 data show that the 30 highest-income countries, with one billion residents (16 percent of the global population of 6.4 billion in 2004), had a gross national income of $32 trillion (80 percent of the global $40 trillion). The developing countries with 5.4 billion or 84 percent of global population had 20 percent of world income. Global Economic Prospects (GEP) 2006 said that when adjusted for purchasing power, wage gaps between rich and poor countries average five to one. The gap between average per capita incomes in richer and poorer countries has not changed significantly over the past quarter century, but revolutions in communications, transportation, and rights have made it easier for workers in lowincome countries to learn about opportunities abroad, to cross borders, and to work and settle abroad. With demographic and economic inequalities persisting and governments unable or unwilling to slow the spread of low-cost communications and transportation systems, migrants have more national borders they can reach to cross and the motivations and means to do so. There were 43 generally recognized nation-states in 1900; in 2000 the CIA fact book listed 191 “independent states,” one “other” (Taiwan), and six “entities,” including Gaza Strip, West Bank, and the Western Sahara. The Failure of Immigration Management by Limiting Migrant Rights A default migration-management option in migrant-receiving countries has been to adjust the rights of migrants in an effort to control their number and/ or costs. The most common policy changes in response to public opposition to unwanted migration include restricting access to tax-supported benefits. For example, European nations in the 1990s restricted the access of asylum seekers to a system that provided housing, food, and other support for several years while applications and appeals were pending, and the United States in the mid1990s restricted the access of legal and unauthorized foreigners to federally funded welfare programs. Despite attempts at immigration control, the number of international migrants and the number of international migrant workers greatly increased between 1980 and 2005. The largest group of migrants in 2005 moved from developing to industrial countries, for instance from Mexico to the United States,

| 339

340

|

Global Economy and Migrant Control Table G.1 Migrants in 2005 (millions) Origin / Destination

Industrial

Developing

Industrial

53

14

Developing

62

61

Source: United Nations, 2006

but almost as many migrants moved from one developing nation to another, such as from Guatemala to Mexico. There were four times more migrants moving from one industrial country to another (e.g. Americans to the United Kingdom) than from industrial to developing countries (e.g. Britains to Africa) (see Table G.1). Migrants versus Those Left Behind About half of the world’s people and half of the world’s migrants are in the labor force. The 31 million workers who migrated from developing countries to developed countries in 2005 face an entirely different situation than that of native workers in both destination and home countries. About 40 percent of the world’s workers are employed in agriculture, 20 percent in industry and construction, and 40 percent in services. In other words, they are concentrated in less desirable, lower paying work and host country populations express social tension about their presence. Migrant Labor Force Distribution in Industrial Countries The industrial countries have about three percent of their workers employed in agriculture, 25 percent in industry, and 72 percent in services. However, as shown in Figure G.2, migrant workers from developing countries working in industrial countries have a labor force distribution unlike that of the sending countries they leave or the receiving countries they enter. About 10 percent of developing-country migrants working in industrial countries are employed in agriculture, 40 percent in industry and construction, and 50 percent in services, reflecting the three major types of industrial-country employers requesting migrants: those in shadow industries such as agriculture and manufacturing (primarily meatpacking and sewing), those in industries that are difficult to move abroad (such as construction), and many growing service-sector industries (from domestic helpers and janitorial services to healthcare services). MIGRANT WORKER PYRAMID The Top Level Migrants who leave developing and industrial countries are at all rungs of the job ladder. If migrants are arrayed by their levels of education, they generate a

Global Economy and Migrant Control

Figure G.2

Workers and Migrants, Industrial and Developing Countries, 2005

pyramid shape. At the top are doctors and others with advanced degrees who emigrate, including those who leave as students and stay abroad after graduation. Just below are college graduates with IT skills and nurses; skilled construction workers, drivers, and seamen who create a broader base below them. There are several exceptional labor migrations involving students and college graduates working in low-skill jobs, including Eastern Europeans working in Britain and Ireland in agriculture and services. Holidaymakers from many commonwealth countries temporarily work in these countries as well as Australia and New Zealand; J-1 exchange visitors from many countries work in U.S. homes and resorts. The Bottom Level The bottom half of the migrant-worker pyramid is dominated by domestic helpers and laborers, most of whom have less than a secondary school education. Many of these low-skilled workers move from developing to nearby industrial countries (e.g. Mexico to the United States or Morocco to Spain), but many also move from one developing country to another (e.g. Burma to Thailand or Indonesia to Malaysia). Long-distance migration of low-skilled workers, such as from the Philippines or Indonesia to the Middle East, is generally legal, but migrant workers often pay high fees to recruiters and governments to get these jobs—up to 25 percent of what they will earn on a typical two-year contract.

| 341

342

|

Global Economy and Migrant Control

THE EFFECTS OF LABOR MIGRATION All economic analyses agree that the major beneficiaries of international migration are those directly involved—migrants who earn higher wages and their employers who have lower labor costs. Overall, receiving countries gain economically from migration, largely because the availability of migrants holds down labor costs and consumer prices, increasing national income. Economic studies agree that the net economic benefits of immigration to receiving countries rise with the migrant’s level of education, which is the best single predictor of an individual’s earnings. Higher earners pay more taxes, consume fewer taxsupported services, and have favorable externalities including higher rates of children’s success in school. Economic Return to Sending Countries: Remittances In sending countries, the results of sending workers abroad are more ambiguous. Most analyses agree that a breadwinner going abroad, earning more than he or she would at home, and sending home remittances reduces poverty. The unanswered question is whether remittances also speed up development. Households receiving remittances tend to have better housing and children who get more schooling and healthcare. The spending of remittances also generates benefits for those who do not migrate, increasing local economic activity if most remittances are spent on locally produced goods and services. Migration can re-orient families to foreign labor markets for earnings, reducing work efforts by those who remain at home while the family lives off remittances; home can become merely a place to rest and retire. Having a migration safety valve may also make it easier for sending-country governments to postpone the structural changes necessary for faster growth. The emigration of key skilled workers can lower productivity in sending countries, which can have negative externalities, as when the exodus of managers leads to factory shutdowns or the exit of healthcare professionals allows disease to spread. The emigration of skilled workers may represent a lost investment in human capital if doctors and nurses were trained at public expense. Professional and skilled workers are most likely to migrate with their families and have the right to settle abroad, so they may send fewer remittances and develop weaker links to their countries of origin. SKILLED WORKER MOVEMENT TO INDUSTRIALIZED COUNTRIES One of the liveliest discussions in the economics of migration involves skilled workers moving from developing to industrial countries. There are not many Einsteins who want to cross national borders as migrant workers or immigrants. The United States makes 42,456 immigrant visas a year available to aliens with extraordinary ability, and 5,100 were issued in FY05, including over 90 percent to foreigners already in the United States. Over half of the 26,000 principals

Global Economy and Migrant Control

who received so-called first-priority immigrant visas in FY05 were executives of multinationals who were already living in the United States, suggesting that even at the top of the job ladder, a probationary period of work is common. (The number of first-priority visas issued was 65,000, but 30,000 of these visas went to the spouses and children of principals; Statistical Yearbook of the United States 2006.) Developing countries generally need capital, physical and human, to speed economic and job growth. Educational policies in developing countries, as well as Fulbright and other scholarship programs, aim to add this human capital. Many foreign students go abroad to study and stay to work after graduation, and the question is what effect the movement of this human capital has on sending countries that are developing. Traditionally, economists decried the brain drain, prompting countries such as Germany to enforce strict rules requiring foreign students to leave upon graduation. Industrial-country employers want to hire foreign graduates, especially in science and engineering, so Australia, Canada, and the United States allow adjustment from student to worker and immigrant; European countries are following suit. After some African countries complained about the recruitment especially of their healthcare workers by former colonial powers (such as the United Kingdom’s National Health Service recruiting nurses) and demanded compensation, a twenty-first-century perspective on the brain drain developed. Instead of decrying the brain drain, a new theory evolved to justify brain circulation or brain gain as a benefit to sending countries and offset demands for compensation. Brain Gain or Brain Drain This notion of brain gain via brain drain asserts that because of the opportunity to emigrate and earn higher wages, more youths in Africa and elsewhere will become nurses etc, but not all of them will go abroad. Thus, even though there is an exodus of nurses, countries that send large numbers abroad will have more than they would have had if there were no emigration. The theory may be valid for closed countries such as North Korea, but not for countries already sending large numbers of skilled workers abroad. International Migration as a Good Thing The consensus of most economists and international organizations is that the rising number of workers crossing national borders is a good thing since remittances can accelerate poverty reduction in developing countries and can increase investment (the increased physical capital flowing to sending countries via remittances offsets the loss of human capital via emigration). The World Bank’s Global Economic Prospects (GEP) 2006, for example, asserts that more labor migration from developing to industrial countries “could make a significant contribution to poverty reduction” by generating remittances that exceed lost local earnings.

| 343

344

|

Global Economy and Migrant Control

There were, according to GEP, about 28 million migrant workers from developing countries in industrial countries in 2005 (UN data suggest 31 million). Adding an additional 14 million developing-country migrants in industrial countries would, according to GEP models, increase developing country incomes by $350 billion a year, more than the $300-billion-a-year gain estimated from completing the Doha trade liberalization round. The GEP recognizes that many past guest worker programs are considered failures because migrants settled or undocumented migration increased. It recommends incentives for return and no accompanying family members to lower public expenditures on schooling and health and reducing potential social conflict by discouraging permanent stays. MIGRANT NUMBERS VERSUS RIGHTS The International Labor Organization (ILO), the major UN organization seeking to protect migrant workers, also favors more labor migration but adds the condition that migrant workers need protection while abroad. The bedrock principle of ILO Conventions is equality of treatment, meaning that migrants are to be treated as other workers in the receiving country. This sets up a tradeoff between migrant numbers and rights that is rarely discussed. Countries in which migrants are a large share of the labor force, such as Singapore and Middle Eastern oil exporters, have strict controls on migrant workers. They discourage marriage by not granting permanent residence rights to foreigners who marry citizens, deport female guest workers who become pregnant, and offer no path to permanent resident immigrant and citizen status, especially for unskilled migrant workers. On the other hand, countries that treat migrants more equally and allow them to earn an immigrant status, such as Sweden, have relatively few guest workers. The International Labor Organization (ILO) and most other international organizations have avoided discussing the trade off between migrant numbers and rights. The usual formulation is to call for more migrants to generate win-win-win outcomes, for migrants as well as sending and receiving countries, and also to call for adherence to ILO Conventions as well as a 1990 UN Migrant Convention. These conventions were ratified by 42 (97), 18 (143), and 36 (UN 1990) mostly emigration countries as of 2007. SELECTING MIGRANTS: SUPPLY VERSUS DEMAND Migrant-receiving countries want to select the best and brightest foreigners to maximize the economic benefits of immigration. The United States and the European Union have developed a preference for skilled immigrants. Their education and professional achievements benefit mature economies. On the other hand, the world’s migrants are primarily low skilled and, although they may also be in demand, such as in U.S. agribusiness, the world supply out strips the developing countries’ needs.

Global Economy and Migrant Control

Supply Approach There are two broad approaches to selecting immigrants for economic reasons: supply and demand. The supply approach looks at individual characteristics such as level of schooling, age, knowledge of the language, etc. It often assigns points to each of these traits and grants visas to those who score more than a threshold level of points. Canada has perhaps the best-known point system for selecting immigrants, requiring applicants to score at least 67 of 100 points (www.cic.gc.ca/english/skilled/qual-5.html). Australia and New Zealand have similar point systems; the United Kingdom and United States are discussing point selection systems. Demand Approach The alternative is a demand approach that allows employers to select migrants they feel are best qualified to fill vacant jobs. This is the system currently used in the United States to admit most economic immigrants; employers petition the government to request an immigrant visa for a particular foreigner. The United States has five economic-employment preferences, and 247,000 of the 1.1 million immigrants in FY05 were admitted under them (this includes both the immigrant who received the economic-employment preference and his or her family members). Over half of these economic-employment immigrants, 129,000, were so-called third preference, skilled and unskilled workers and their families. The Lengthy Process of Labor Certification The U.S. Department of Labor (DOL) certifies an employer’s need for an immigrant by checking to ensure that U.S. workers are not available, a process that can take several years. Once a foreigner receives an immigrant visa, he or she is free to leave the employer who sponsored the visa, and many do. For this reason, the DOL inspector general has condemned the U.S. labor certification system as not achieving its goal of admitting foreign workers to fill specific U.S. job vacancies. Supply and demand selection systems are converging. Canada is raising the number of points awarded to foreigners with a Canadian job offer while Germany and the United States make it easiest to obtain an immigrant visa if the employer is paying above a certain wage or the foreigner has a college degree. THE IMPLAUSIBILITY OF ROTATING GUEST WORKERS Most governments are dubious of large new guest worker programs because of the unexpected settlement of guest workers and integration challenges, or because guest worker programs in one era led to illegal migration in the next, as between Mexico and the United States. Researchers agree that the Bracero program sowed the seeds for later undocumented Mexico-U.S. migration.

| 345

346

|

Global Economy and Migrant Control

Distortion in Employer Hiring Patterns Guest worker programs tend to get larger and to last longer than anticipated because of distortion and dependence. Most employers in labor-receiving countries do not hire guest workers; the United States has about 7 million employers and 150 million workers. No one knows the exact distribution of the 23 million foreign-born workers, including the 7 to 8 million not authorized to work in the United States, but it is likely that 90 percent are hired by fewer than 10 percent of U.S. employers. Distortion means that the minority of employers who hire foreign workers on an ongoing basis face different labor supply conditions than employers who hire only national workers. Dependency and Employer Hiring Patterns Employers who hire low-skilled guest workers often assume that migrants will continue to be available, and many make investment decisions that reflect this assumption. In agriculture, for example, farmers may plant fruit trees in areas with few people, assert (honestly) that they will go out of business without migrants to pick their crops, and resist efforts to reduce the number of migrants to avoid a reduction in the value of their orchard investment (the value of the land goes down if it is used for mechanically harvested wheat in the absence of pickers for fruit trees). This is economic distortion: a small percentage of employers look abroad for workers and, because migrants are available, these employers may not have to raise wages, add benefits, or change working conditions as socio-economic changes provide other opportunities for local workers. The Three Rs: Recruitment, Remittances, and Returns Some migrants and their families as well as their regions and countries of origin become dependent on emigration when they assume that foreign jobs, earnings, and remittances will continue. In theory, this is not a problem, since foreign employment and remittances can speed economic development and reduce emigration pressures. The three Rs of recruitment, remittances, and returns sometimes do set in motion virtuous circles, in which emigration in one period contributes to stay-at-home development in the next. This occurred in Southern European countries such as Spain and Italy and is occurring in parts of India. On the other hand, the three Rs can also set in motion vicious circles, in which some migration begets more migration as has been the case with the Mexican Bracero program (1942–1964) and related undocumented immigration. Mexico-U.S. Migration In the case of Mexico-U.S. migration, the three Rs sowed the seeds of subsequent unauthorized migration, via distortion in rural America (the expansion of labor-intensive agriculture in areas with few people) and dependence in rural Mexico (where there was population and labor force growth without economic

Global Economy and Migrant Control

development). In 1970, when Mexico’s population was about 50 million, there were fewer than 800,000 Mexican-born U.S. residents. By 2000, Mexico’s population had doubled to 100 million, and the number of Mexican-born U.S. residents had increased by a factor of 10 to over 8 million. Mexico’s population is expected to stabilize at about 140 million in 2035; socioeconomic developments and policies in both Mexico and the United States will determine how many more Mexican-born persons migrate to the United States. Similar considerations underlie German reservations about Turkey’s European Union bid and tensions surrounding migration from Indonesia to Malaysia and from Burma to Thailand.

REDUCING DISTORTION AND DEPENDENCE IN EMPLOYER HIRING The realities of distortion and dependence, the fact that guest worker programs often get larger and last longer than expected, should encourage receiving governments to proceed cautiously. Matching willing international workers with local job openings is one of the most difficult tasks for governments. However, there are ways to reduce distortion and dependence. Economic mechanisms, such as taxes to encourage employers to look for alternatives to migrants and subsidies to encourage guest workers to return to their countries of origin as their contracts require, can help guest worker programs achieve the goal of adding workers temporarily to the labor force but not settlers to the population.

Creating a Need for Migrants Polices to deal with distortion begin with the recognition that employers always have alternative choices when they fill jobs and make investments that create a need for migrants. Most governments get involved when employers ask for foreign workers. The usual approval procedures begin with these employers first asking local employment service agencies for help in finding local workers. When recruitment fails to find local workers, employers receive permission to hire migrants.

Covert Recruitment of Migrants However, by the time employers ask government agencies to help them recruit local workers, they have usually already found the desired migrants abroad; because of this, recruitment rarely finds acceptable local workers and government agencies are ill-suited to second guess employers who reject local workers. The fact that employers often find the migrants they want before they begin the required recruitment of local workers is one reason why labor certification processes are often contentious, especially if unemployment rates in the areas where migrants will be employed are high.

| 347

348

|

Global Economy and Migrant Control

Migrant Networks and Employer Dependence Employers can soon become accustomed to migrant workers. Hiring via migrant networks can deliver reliable workers who are then trained by friends and relatives already employed, enabling employers who otherwise would have to spend a great deal of effort to recruit and train workers to switch to other tasks. The result can be a deepening dependence on migrants. These migrant networks bridge borders in ways that allow labor-market information to flow far more freely from a migrant workplace to migrant countries of origin than to local, native-born workers who are unemployed. Payroll Taxes and Reduction of Distortion One way to minimize distortion is to realize that payroll taxes for Social Security, unemployment, and other insurance add 20 to 40 percent to wages in most industrial countries. These taxes should be collected on migrant wages to avoid giving employers an extra reason to prefer migrants (who may already be preferred because they work hard and are scared), but in most cases migrants are not eligible for the benefits financed by the taxes. The employer share of payroll taxes could be used to restructure migrant jobs by, for example, promoting labor-saving mechanization. There is also room for government in encouraging such restructuring. In an industry such as agriculture, it is often hard for one farmer to finance or implement mechanization, since peach packers and processors want hand or mechanically picked fruit, but not both. Mechanization versus Migrants Mechanization is not the only alternative to migrants. In some cases, local workers may be attracted to migrant jobs after they are restructured; for instance, garbage-collection workers in the United States were renationalized by the switch in many cities to large containers lifted mechanically. In other cases, levies on migrants may accelerate market segmentation; for instance, some elderly have migrant caregivers and others use technology, such as video monitoring that can summon help quickly, to live alone. The universal truism is that wages held down by the presence of migrants will lead to more labor-intensive ways to get work done, and wages bid up by the absence of migrants will encourage the development of alternatives. Migrant Return Incentives The other half of the equation involves giving migrants incentives to abide by the terms of their contracts, which usually require departure when seasonal jobs are over or a one to two-year work contract ends. To encourage returns, guest workers can be given unique tax-reporting numbers, and the workers’ share of payroll taxes can be refunded when they surrender his or her work visa in the

Global Economy and Migrant Control

country of origin. Governments and development institutions could match payroll tax refunds to support migrant investments that create jobs in the migrants’ home area, as with Mexico’s 3 × 1 program. ENFORCEMENT AND LEGALIZATION Minimizing distortion and dependence with taxes and subsidies will not have the desired effects on employers and migrants if unauthorized workers are readily available and labor laws are not enforced. Some employers hire unauthorized workers to save payroll taxes. Some migrants established in the United States will resist departing when their work visas expire despite refund offers if they believe they can continue to work in an irregular status and they have few options to earn income at home. Thus, enforcement of immigration and labor laws is a prerequisite to the development of guest worker programs that promote legal labor migration and minimize distortion and dependence. Tax Laws Enforcing immigration, labor, and tax laws in the workplace is not easy. Most countries devote relatively more enforcement resources to collecting taxes. Years of studying tax systems have led to a variety of automatic mechanisms, such as VAT systems, to collect taxes. A system checks and balance ensures that wages deducted as a cost of business show up as income reported to workers. Countries also reserve some of their stiffest punishments for economic crimes for violations of tax obligations. Labor Laws The enforcement of labor laws, on the other hand, has traditionally depended on both social and economic factors. Child labor was reduced by prohibitions bolstered by free schooling, school lunches, and other means of making schooling a low-cost alternative to work. Most labor laws are self-enforcing, in the sense that the best way to ensure that employers pay at least the minimum wage is to have a labor market in which workers will not work for less. Workers have an incentive to report violations of minimum-wage laws since they will get more money. Immigration Laws Enforcing immigration laws is different. Border enforcement aims to prevent undocumented entries, and interior enforcement focuses on preventing the employment of unauthorized workers. However, unlike the incentive for workers to report violations of labor laws, there is rarely an economic interest for employers and migrants to report violations of immigration laws since the employer may lose a worker and the worker a job.

| 349

350

|

Global Economy and Migrant Control

Role of Complaints in Enforcement The enforcement of all laws depends in part on complaints, and competitors who observe violations of tax, labor, and immigration laws have an incentive to complain in order to level the playing field. However, workplace institutions such as unions tend to be far more willing to complain about labor-law than immigration-law violations. Most unions organize workers, including migrants, and most are reluctant to report unauthorized migrants to immigration authorities. The American Federation of Labor -Congress of Industrial Unions (AFLCIO) called for the elimination of sanctions on employers who hire unauthorized workers and instead advocated stepped up enforcement of labor laws. Taiwan is one of the few countries with a scheme that provides payments to those who report employers who hire unauthorized foreign workers currently up to NT$50,000 (USD$1,500). Malaysia has a 500,000-strong People’s Volunteer Corps (RELA) to help enforce laws, including laws against unauthorized foreigners. RELA volunteers are allowed to enter workplaces and homes without warrants, carry firearms, and make arrests after receiving permission from RELA leaders. Migrant activists say that RELA volunteers have become vigilantes, planting evidence to justify arrests of foreigners and using excessive force in their policing. Rewarding Migrants Experiencing Violation of Rights There have been proposals for policies that reward unauthorized workers who complain of violations of their rights. However, most reward programs are limited to migrants who complain about extremely abusive conditions, such as migrants who testify against traffickers who enslaved them. These reward programs can have unintended consequences. A case of Thai workers freed from a sewing factory in the Los Angeles suburb El Monte in 1995 was widely reported in Thailand and seems to have prompted the smuggling of more Thais into the United States. In August 1995, California labor inspectors found 70 Thai workers restrained from leaving S.K. Fashion in El Monte. They were sewing garments for brand-name firms. The 71 female workers testified against the seven Thais who held them, and most received $5,000 to $80,000 in a settlement with three Los Angeles garment makers and established permanent residency in the United States. Several were special guests at an exhibit sponsored by the Smithsonian Institution, Between a Rock and a Hard Place: A History of American Sweatshops, 1820–Present in January 2000. Unintended Consequences of Legalization General-legalization programs can also have unintended consequences. The goal of most governments is to have only legal migrants and workers. Most countries receiving migrants have laws against working without proper permits and hiring workers without proper documents. As countries with growing numbers of unauthorized workers debate how to make the enforcement of immigration

Global Economy and Migrant Control

laws more effective, there is typically pressure for a grand bargain between those who put top priority on reducing illegal migration and those who want to legalize the status of migrants who have developed roots. Grand-bargain enforcement and legalization campaigns never completely stop unauthorized migration, nor do they legalize all foreigners. As a result, one grand bargain is typically followed by another, as enforcement mechanisms are fine-tuned and another group of migrants is brought out of the shadows. Countries such as Spain and Italy have made this process routine, periodically allowing foreigners who have found employers who will pay taxes on their wages to be regularized and, after five years of legal work and residence, earn permanent residence rights. The signal sent by successive legalizations is that the best way to gain eventual immigrant status (for those who cannot migrate legally via front or side doors) is to be inside the country and employed. In this way, successive legalizations can encourage undocumented migration. CONCLUSION It is important to question whether the strategies of industrial countries for controlling migration from developed countries work. Virtually all population and labor-force growth is in developing countries where, on average in 2005, per capita incomes are 1/20 those of industrial countries. There are substantial economic incentives to attempt migration. Migration is a process to be managed, not a problem to be solved. This is a globalizing world marked by persisting demographic and economic differences. It is undergoing revolutions in communications and transportation that increase awareness of opportunities abroad and lower the cost of taking advantage of them. The policy instrument currently most often used to manage migration is the adjustment of migrant rights, for instance, the curbing of migrant access to asylum or welfare systems. As a result, migrant-receiving countries are often criticized by United Nations organizations and nongovernmental organizations (NGOs) seeking to protect migrant rights. Remittances to developing countries surpassed Official Development Assistance (ODA) in the mid-1990s, and are approaching three times ODA. Governments and international organizations have become aware of remittances and see them as a way to speed poverty reduction and economic growth. Especially after 9/11, there have been efforts to formalize and reduce the cost of sending small sums over national borders. Developing countries have mostly low-skilled workers to send abroad. The World Bank and other institutions whose goal is faster development have advocated new guest worker programs to allow more migrants to move into industrial countries. Such programs can, in theory, achieve goals that range from filling vacant jobs to generating remittances for sending countries and reducing illegal migration and smuggling. Nevertheless, guest worker programs have a checkered history, largely because past programs got larger and lasted longer than anticipated. Adding workers temporarily to the labor force, but not settlers to the population, is hard to do

| 351

352

|

Guest Worker Programs

because the economic incentives of migrants and employers may run counter to the goals of guest worker programs. Recognizing this disjuncture between program rules and incentives and developing economic mechanisms to better align program goals and employer and migrant incentives, could help twentyfirst century programs avoid some of the failures of past programs. Legalization is normally combined with stepped-up enforcement to solve unauthorized migration. Such grand bargains are often repeated, since legalizations are never complete and enforcement is unable to completely stop unauthorized migration. Not surprisingly, the United States has experienced the problems of distortion of need for migrant workers and the resultant dependence on migrants that occurs. The Kennedy McCain Senate bill of 2007 put forth the traditional solutions of legalization (dependent on return and payment of taxes) and temporary guest worker programs. These programs cannot be expected to reduce illegal migration unless they are re-examined and altered. This is the consequence of U.S. integration into a global economy. References: Central Intelligence Agency. CIA Factbook. Washington DC: U.S. Government Printing Office, 2000; Citizenship and Immigration Canada: Skilled Workers and Professionals. September 14, 2008. http://www.cic.gc.ca/english/immigrate/skilled/index. asp; Cornelius, Wayne A., Takeyuki Tsuda, Philip L. Martin, and James F. Hollifield. Eds. Controlling Immigration. A Global Perspective. Stanford, CA: Stanford University Press, 2004; Elliott, Kimberly Ann. Delivering on Doha. Peter G. Peterson Institute for International Economics. www.iie.com; Global Commission on International Migration (GCIM). Migration in an Interconnected World: New Directions for Action. (www. gcim.org/en/finalreport.html); International Labor Organization. Towards a Fair Deal for Migrant Workers in the Global Economy. Geneva: International Labor Organization, 2004; Martin, Philip, Manolo Abella, and Christiane Kuptsch. Managing Labor Migration in the Twenty-First Century. Yale University Press. 2005; United Nations. Report of the Secretary-General on International Migration (A/60/871). www.unmigration.org; World Bank. Global Economic Prospects (GEP) 2006. Washington DC: World Bank, 2005; Statistical Yearbook of the United States. Washington DC: U.S. Government Printing Office, 2006; World Bank. World Development Indicators. Washington DC: World Bank, 2007.

Phillip Martin

GUEST WORKER PROGRAMS In a nation increasingly disturbed about large-scale immigration, especially unauthorized immigration, President George W. Bush (2000–2008) argued that a temporary guest worker program would solve the nation’s problems. Many politicians and researchers feel that the guest part of temporary worker programs is misleading; these migrants tend to stay and become immigrants. Many are concerned that this policy would bring even more immigrants, straining societal resources. Meanwhile, employers looking for people to work low wage jobs often hire undocumented migrants who may stay long enough to settle as

Guest Worker Programs | 353

immigrants. Controversy continues as the nation searches for an answer to the immigration question. BACKGROUND California and other Southwestern states have relied a great deal on Mexican American and Mexican-immigrant farm labor. Farms more likely to hire seasonal agricultural workers include: (1) fruits and nuts, (2) vegetables and melons, and (3) flowers and nursery products. Large growers who need a major contingent of workers to pick seasonal and perishable crops have expressed the most interest in temporary workers. For most of the twentieth century, and now in the twenty-first, waves of immigrant workers who cannot find other employment have harvested crops. This is a situation in which the economic need for temporary labor has repeatedly vied with the human need to both work and be united with family. Internationally, the United States has pressed Mexico to provide the basic education and social services for each generation recruited to go north, and U.S. citizens repeatedly lobby not to provide tax-based services for noncitizens. HISTORY The Bracero Program: 1942–1964 Because crops come to maturity on a seasonal basis, migrant workers (whether citizens or foreign-born) have predominately taken this type of work, moving from region to region depending on crop growth and maturity. Beginning in 1929, various conditions for the entrance of Mexicans seeking farm and other workers, such as requiring papers, led to undocumented entry across a very passable border. The Great Depression was a time of hardship for U.S. workers; ever since, entering the United States has required authorization. Yet from 1921 to the start of World War II, migrant and unauthorized workers (Filipinos, blacks, whites, and Mexicans) brought in U.S. harvests. Mexicans were considered dependable and capable of stoop labor—weeding or harvesting that involved bending down from the waist. This labor was often done with the short-handled hoe, so arduous and eventually crippling that it was later outlawed. By World War II, the need for labor had increased, and growers asked for Mexican labor to be recruited and brought into the United States. In 1942, the Bracero program began and thousands of Mexican men responded to the offer to become guest workers. Hardship for the recruited Mexican men began in Mexico where they were required to gather and wait for their names to be called before receiving permits. In Mexico, the Gubernacion department received requests from the United States that were allocated to municipios, villages and towns, according to a quota. If a man volunteered, he was given a permiso certifying that he was a lawful Mexican citizen and had served in the military, as required. Men then had to go on their own to a processing site without any guarantee of a work contract.

354

|

Guest Worker Programs

Estimates are that 20 percent of those who reported to Mexico City and 7–10 percent of those who went to border-zone processing sites were rejected. Long waits often resulted before men were called to be given an Alien Laborer’s permit. These men often waited for weeks hoping they would be called, ran out of money, and became dependent on charity; some died while waiting to be called. From 1942 to 1964 it is estimated that 4.6 million workers entered with authorization, and from one to two million received major U.S. work experience. Braceros were recruited to come alone without their families and with no expectation of staying or pursuing a career. They were temporary workers and no effort was made to integrate them into local communities. One half of all Mexican Braceros worked in California on several crops: tomatoes, lettuce, citrus, melons, and citrus. The low wages and steady workers were viewed as ideal by growers, but Ernesto Galarza criticized the program in Strangers in Our Fields (1956), a book that growers tried to prevent from being published. For poverty-level wages, Braceros spent long hours at stoop labor without rest facilities followed by sleep in overcrowded, unhygienic barracks housing that was hidden and segregated from American communities. Workers who complained were deported back to Mexico and blacklisted. Wages were set at minimum level, but some workers were paid below minimum wage or were shorted on their wages. Money received went to remittances sent back to Mexico, paying off loans, and meeting daily needs. In addition, ten percent of all wages were kept back to ensure that workers returned to Mexico, but most of this money disappeared and whose pockets it lined has never been discovered. During this time period, farm wages remained stable and fell relative to increasing factory wages. Citizen migrant workers were not able to work for such low wages and tried to leave migratory farm work. Phillip Martin (2002) pointed out that at the same time admissions to the Bracero program were increasing (1942–1964), apprehensions of Mexican workers entering without authorization and legal Mexican immigration were increasing. The Bracero program, combined with economic opportunity differentials between Mexico and the United States, created migratory networks that allowed workers to gain familiarity with routes, employers, and settlements. As a result, when the Bracero program ended, unauthorized workers continued to come and take these jobs. U.S.-Mexico Relations and Guest Worker Exchange Mexico is a very poor country relative to the United States, although it would be classified as a middle income country by the World Bank. The United States is a high-income country and has used its political and economic power to foster unequal economic exchange. Gilbert Gonzalez, a sociologist, views the United States as an imperialist power that has set the terms by which Mexican labor can enter. He compares the Bracero program (1942–1964), a guest worker program in which Mexicans came to the United States to work in agriculture, to colonial labor programs in British India and French Algeria. Gonzalez states that guest workers are a form of indentured labor for six reasons: (1) workers are only

Guest Worker Programs | 355

allowed to come to work for a specific employer under the control of the government; (2) workers are kept segregated from the rest of society; (3) workers are not allowed the right to organize to ask for wage increases or better working conditions; (4) workers are not allowed to freely change employers or residence, and (5) worker rights, such as standard housing, are laxly enforced. Gonzalez thinks that U.S.-economic control over Mexico is the reason that guest workers and unauthorized migrants come to the United States. If Mexico were not controlled by the United States and other foreign investors, and instead had a more equal relationship, workers presumably could negotiate for better terms of employment. As it is, guest workers provide a subsidy for agribusiness because they work very cheaply. If unauthorized labor is used, lack of legitimate documentation also keeps wages down. Above all, the U.S. consumer benefits from buying cheaper vegetables and fruit even after the grower’s substantial profit markup is taken.

UNDOCUMENTED FARM WORKERS LIVING CONDITIONS In the early 1980s, Leo Chavez, an anthropologist, documented living conditions for undocumented farm laborers in San Diego County canyons. Because of U.S. Border Patrol and INS efforts to locate and eject them, these migrants often lived in spider holes (one-person-sized pits dug into the ground and covered with a tarp to keep out the rain). Today, poor living conditions still characterize the after hours of most migrant farm laborers. An inadvertent effect of federal labor legislation was that increased housing standards resulted in many growers closing their labor camps. As a result, many migrants now live in illegal labor camps, and many growers evade legal responsibility for their living conditions. Migrant workers employ many strategies for finding shelter.

H2-A Agricultural Guest Worker Program Many are unaware that since the passage of the 1952 Immigration and Nationality Act, the United States has had a seasonal-agricultural-labor program. Employers petition on the basis that native workers cannot be found. They are supposed to pay the minimum wage and provide workers’ compensation insurance, funds for round-trip transportation, meals or kitchen facilities, a laundry sink, and transportation or housing for noncommuters. H2-A employers must also pay an adverse-effect wage that is set by the Department of Labor in order not to undercut wages. The current rate is $8.48 an hour, $3.33 higher than minimum wage. The number of H2-A workers has been limited. In 1999, it was estimated that there was a farm work force of 1.2 million, not counting farm operators and managers. The 41,827 H2-A workers admitted amounted to 3.5 percent of the labor force. This program was originally used to bring Jamaicans to harvest Florida sugar cane, but the number of Jamaicans has declined over time; in 1999, 96 percent of all H2-A visas went to Mexicans.

356

|

Guest Worker Programs

1986 Immigration Reform and Control Act Agricultural Worker Provisions The 1986 Immigration Reform and Control Act (IRCA) was subject to agribusiness lobbying and established three programs for admittance of immigrant workers to agricultural jobs. The Special Agricultural Worker Replenishment (SAW) program legalized unauthorized agricultural workers who could certify that they had worked in agriculture for 90 days in 1984–1986 and a second group who met the ninety day requirement before May 1, 1986. Ninety percent of SAW applicants met the second deadline. The U.S. Department of Agriculture estimated that there were 350,000 unauthorized farm workers who would apply for the SAW program, but 1.3 million applied, primarily young Mexican men. Phillip Martin characterizes the SAW program as problematic because fraudulent signed statements could be obtained from labor contractors or growers indicating that workers had done farm labor. Many unauthorized workers who received an immigration visa may not have been looking to remain in farm jobs. A major assumption of the SAW program was that these rural Mexican men would continue to legally work and then return to their families in Mexico with a nest egg. Many legalized SAW workers, however, moved on to nonfarm work and brought their families, despite IRCA’s lack of provisions for SAW worker family reunification. This initiated new mixed status (legal and undocumented) families. In addition, IRCA instituted a Replenishment Agricultural Worker (RAW) program that would have legalized workers recruited after 1986 for farm labor shortages, but it was never utilized. Instead, growers have used the H2-A certification program for which they must demonstrate that they could not find workers and provide housing. In 1985, prior to IRCA, 20,682 workers were certified; this figure did not show an annual decline until 1992, despite SAW legalization. In 2000, 44,217 H2-A workers were certified, an all-time high.

Impact of the 1986 Immigration Reform and Control Act The efforts to educate and retrain agricultural migrants who are citizens, combined with the movement of SAW workers given amnesty by IRCA away from farm work, resulted in a new, primarily Mexican, unauthorized farm-labor force. The National Agricultural Workers Survey (NAWS) has annually collected random sample data from farm worker populations. In the twenty years since the passage of the 1986 Immigration Reform and Control Act, low wages and lack of benefits undermined the intention of the law to create a fully legal population of farm workers. In 2001–2002, NAWS indicated the only 23 percent of farm workers were native-born. Seventy-five percent were born in Mexico, two percent in Central America, and one percent in other countries. Fifty-three percent of these workers did not have papers. Twenty-five percent were citizens and 21 percent were legal permanent residents. Thirty-five percent of these workers traveled back and forth from Mexico. Thirty-eight percent of those interviewed were in the United States for the first time and for less than one year. It was

Guest Worker Programs | 357

estimated by NAWS researchers that 16 percent of crop workers were new foreign recruits and that 99 percent of new recruits were unauthorized. Agricultural labor recruitment is gendered because growers prefer to hire unaccompanied male workers. In 2001–2002, 79 percent of farm workers were male; among new, foreign-born recruits, 90 percent were male. Men are more likely to be unauthorized and less likely to be native-born. Fifty-eight percent of farm workers are married, and 51 percent are parents with an average of two children. Despite this, social and working conditions on farms and low payment discourage family employment. Many parents (34%) and childless married workers (20%) were unaccompanied by spouse and or children. The vast majority (87%) of unaccompanied parents and spouses had at least one child and/or a spouse in Mexico. Work authorization makes a difference because those with papers are twice as likely to live with their spouses and children as unauthorized workers (86% as opposed to 43%). From the time of the U.S.-Mexico Bracero agricultural guest worker program, growers have preferred to hire unaccompanied Mexican males, which results in gender-asymmetric migration. Low wages, harsh working conditions, and substandard housing discourages those who are married from bringing their families. The sending country is left with the expense of providing education and social services for the spouses and children of international migratory farm workers. In 2001–2002, NAWS respondents worked an average of 42 hours per week and earned an average of $7.52 per hour. Seventy-six percent of work-authorized farm laborers indicated they would be covered by unemployment insurance if they lost their job as opposed to four percent of workers lacking documents. Sixty-five percent of authorized workers stated they would receive workers’ compensation for employment-related illness or injury. Twenty-three percent said they had health insurance. Due to issues connected with seasonal-labor availability resulting in periods of unemployment, the average income of farm workers was from $10,000 to $12,499 per year. Thirty percent earned an income below poverty guidelines. Many farm workers (58%) lived in rental housing unconnected to an employer while 21 percent lived in employer-supplied housing. These income limitations were connected to use of public assistance. Twenty-two percent of authorized immigrant farm workers reported use of taxpayer-funded services, including Medicaid (15%), Women, Infants, and Children (WIC) food supplements (11%), and food stamps (11%). It is ironic that some farm workers do not earn enough to pay for food for their families. The persistence of a poorly paid, seasonal migrant-labor force in the United States is connected to labor subcontracting. Subcontractors who provide unauthorized workers are often dishonest. In the late-twentieth century, contractors often made false promises, provided substandard housing, transported crews in poorly maintained cars and vans, maintained false wage records, tampered with worker wages, and even intimidated workers with threats of violence. The most common criminal tactic of contractors was to pocket the worker’s state and federal wage deductions. Unauthorized farm workers have little legal

358

|

Guest Worker Programs

recourse for dealing with subcontractor dishonesty as they would have to reveal their undocumented status. Millennial Reliance on Unauthorized Farm Worker Labor At present, there are proposals to recruit three types of immigrant labor: (1) guest workers who are not allowed to legalize, (2) guest workers who are allowed to legalize, and (3) unauthorized workers already present who would legalize through amnesty. The focus of guest worker proposals has been upon the recruitment of Mexican farm labor. Martin (2002) estimates that 1.2 million (47%) of U.S. agricultural workers are unauthorized. The size of a farm, the type of employer, crop produced, and geography are associated with the use of unauthorized labor. Larger farms that use labor contractors have a greater number of workers without legal papers than smaller farms that directly hire. Seasonal fruit and vegetable growers employ the most unauthorized workers. Mexican immigrants have worked primarily in the Southwest but are becoming more spatially dispersed as the native born leave farm labor for higher paying work. Farm labor is low paid and workers often opt out before or at ten years. If a legalization program were to require applicants to have worked at least ninety days at farm labor in the previous year, 50–70 percent of unauthorized workers would be able to legalize. This is approximately 600,000 to 800,000 individuals. Legalization would be for the purpose of stabilizing the U.S. agricultural labor force. Nevertheless, the Special Agricultural Workers (SAW) provision of the Immigration Reform and Control Act of 1986 resulted in a movement of legalized workers into other forms of employment. Phillip Martin estimated that there would be a need for 125,000 more farmlabor recruits each year if wages and working conditions remain unchanged. Earned legalization (requiring a period of time in farm work for an immigrant visa) slows worker departure from agricultural labor and slows the process of family reunification. It is important to understand that a need for inexpensive, temporary agricultural labor has driven guest worker legislation. This type of recruitment attracts workers with little or no education who will labor for 10– 20 years and then seek better opportunities for their children. Mexican President Vincente Fox (2000–2006) advocated re-establishment of a guest worker program and engaged in talks with President Bush in 2001. The response to 9/11 delayed consideration of this issue, but it has repeatedly been re-introduced. In 2004, President Bush stated he favored a guest worker program that would match willing workers with willing employers. His proposal would allow temporary legal entry to work in sectors of the U.S. economy with a labor shortage. Visas would be renewable every three years but not indefinitely. Dependents accompanying guest workers would not be eligible for benefits and be set on a path toward permanent legalization. Two new aspects of this guest worker proposal were the recruitment of both men and women and the extension of work permits to construction and service-sector labor. A guest worker program tied to legalization is different from a temporary legalization program. Tom Tancredo, a congressional representative from New Mexico, introduced

Guest Worker Programs | 359

a temporary guest worker program initiative with six guidelines for individuals unaccompanied by family: (1) applications could only be made in the home country and unauthorized immigrants in the United States would be required to return to their home country to apply and then, like new recruits, be matched with a specific employer; (2) migrants would have temporary work status for no more than 365 days in a given two-year period requiring return to their home country (touchback) in order to keep family ties strong; (3) a portion of earned wages, perhaps 5 percent, would be placed in escrow in banks and would only available if the worker returned to their home country; (4) wages would be set at the level paid to citizen workers to correct the impact of guest workers on the prevailing wage; (5) there would be heightened enforcement of labor laws and application of employer sanctions to further reduce use of unauthorized labor; and (6) operation of the program would begin only after the border was secured. Given the history of U.S. guest worker programs, meeting this list of criteria seems improbable and Congress has been unable to enact immigration reform. Supporters of Guest Worker Proposals A major criticism of guest worker programs is that they keep wages down and exploit migrants. Robert Mayer (2005) has advanced the idea of a sufficiency standard for countering the idea that guest worker programs exploit temporary immigrants. He points out that the disadvantaged party, temporary farm workers, can gain from exploitative transactions. If the alternative to an exploitive interaction is even more disadvantageous, as extreme poverty would be, then the temporary workers benefit although the employer benefits disproportionately. Exploited workers are operating from a position of insufficient assets, and they benefit if a job transaction allows them to achieve sufficiency. Sufficiency is defined as the state of earning a salary above the poverty line minimum that provides a living wage, having appropriate housing, and so on. Six factors that increase the likelihood that exploitation will be at an unacceptable level include: (1) agricultural employment, (2) guest worker pay less than the prevailing minimum wage, (3) a high level of income inequality in the nation receiving guest workers, (4) lack of competition by nonagricultural workers in jobs that recruit guest workers, (5) lax federal enforcement of guest worker contract provisions, and (6) a work environment with a social atmosphere of prejudice toward immigrants, including harsh treatment and poor living conditions. Many of these conditions would apply to unskilled temporary farm labor in the United States. Despite the level of exploitation that appears inherent in U.S. agricultural enterprise, Mayer considers the guest worker trade-off for Mexico and other sending countries and the United States, the receiving country, to be acceptable because exploitation is minor rather than intense and because guest worker status enhances the well-being of temporary migrants. Basically, foreign workers benefit business by allowing them to save money on wages and pass these savings on to the consumer. It has been argued that citizens do not want to do this kind of work and that these jobs need to be filled. A temporary worker-program would ensure that native-born workers who need this work can regain it while

360

|

Guest Worker Programs

allowing permanent immigration would not. In addition, taxpayers benefit because they do not need to pay for education and social services for temporary workers’ families, who would remain in their home country and receive support from monies(remittances) sent back. In summation, citizens would be protected from loss of work and theoretically receive the benefit of cost savings realized by the grower. The temporary farm worker and his or her household in the home country would benefit from the wages paid because of the relative inequality in income and opportunity between the sending country and the United States. Needless to say, opponents of guest worker programs consider that these benefits are based on the high degree of income inequality between the United States and Mexico and the low wages for the temporary worker, while providing for subsistence, do not appear to raise Mexico from its status as a developing nation to a developed one. Instead, it could perpetuate income inequality between the two nations. In support of guest worker programs, there are humanitarian benefits associated with providing a legal means of entry: (1) The current reliance on unauthorized workers in agriculture creates a high level of risk, including death, for Mexican citizens who attempt dangerous crossings through desert U.S-border regions; (2) Unauthorized immigrants suffer from uncertainty about length of stay and anxiety about deportation and its consequences; and (3) Workers wind up alone, which results in an imbalanced sex ratio favoring males in farm-worker communities. Currently, growers benefit from unauthorized labor because they can pay lower wages and do not have to improve working conditions or housing. A major humanitarian alleviation of suffering would be that government regulated programs would require a legal minimum wage and adequate housing or housing allowances. Government, union, and NGO inspections would become more likely to ensure safe and livable conditions. Mexican workers would benefit from legal entry and authorization but would have to remain in the country and work in agriculture for specified temporary periods on condition that they return home, which is referred to as “touchback.” Opponents of Guest Worker Proposals Politicians have used the immigration issue to further conservative agendas. Public opinion is against the use of temporary labor and most citizens fear temporary foreign labor is pushing down wages and marginalizing work opportunities for citizens. The U.S.-Mexico Bracero program (1941–1964) antagonized citizen workers, and although business interests wanted to maintain it, it was ended in the face of opposition. Shadow government programs and undocumented workers replaced Braceros until the IRCA amnesty and the Special Agricultural Recruitment (SAW) program. Currently, H2-A worker recruitment is a common (if not publicly advertised) practice, and the undocumented population is again increasing. Guest worker programs may be viewed as a form of indentured or colonized labor that allows eventual legalization while constraining foreign citizens to work in agriculture or other low-wage sectors. Guest worker programs have been

Guest Worker Programs | 361

considered unjust because they exploit or take advantage of noncitizens. Willingness to work does not necessarily indicate a fair exchange of work for wage. Neoclassical economic theory predicts that guest workers restrict economic competition and cause a downward impact on wages. Agriculture, construction, and service-sector work earns low wages, and temporary or legalized workers could stabilize or reduce rather than increase wages and benefits, encouraging citizens to opt out of such jobs. In addition, workers are dependent on specific employers to remain, which deprives them of bargaining power in the workplace. Tom Tancredo, characterizes most guest worker proposals as disguised forms of amnesty for unauthorized workers already in the United States. Tancredo only supports a temporary guest worker program coupled with enforcement of laws regulating both immigrants and employers. In addition, he believes that such a plan cannot succeed until after U.S. borders are secured. Tancredo states, “If it is not a program for temporary workers, then we will have unrestricted immigration from 150 low-wage countries using our six thousand miles of open borders as their de facto port of entry” (Tancredo 2005, 69–70). Tancredo believes that the willing worker idea was driven by employers’ desire to hire foreign workers at lower wages, taking jobs away from the native born. Construction, landscape gardening, hotels, restaurants, and janitorial services are sectors in which unauthorized immigrant laborers are increasingly employed. Guest worker programs with a legalization component for farm workers are not a permanent solution for finding seasonal labor. After 10–20 years, laborers leave agriculture and seek social mobility for their children. Whether the U.S. economy can provide this opportunity is in question. If it does not, a stagnating rural or agricultural population will have transferred foreign poverty to the United States. Another argument against guest worker programs is that temporary workers often stay, legally or undocumented, and desire to be reunited with their families. Allowing Mexican guest workers to enter, male or female does not deal with family reunification issues. Although it would reduce unauthorized entry along the U.S.-Mexico border, it would not eliminate undocumented immigration. Family members who did not receive authorization and children would still attempt to cross. Guest worker programs are inhumane and often circumvented, raising the issue of increasing legal immigration rather than relying on a class of marginal workers who will seek stability anyway. Past efforts to legalize farm workers or provide amnesty showed that legalized workers pursue better opportunities and want to reunite with their families. Agribusiness has been first and foremost in getting the government to openly pursue legalization or tacitly allow undocumented workers on farms. Nevertheless, the SAW legalization program of the Immigration Reform and Control Act of 1986 did not stabilize farm labor but hastened immigrant exits to other forms of employment. The need for farm labor led to more unauthorized entry of new agricultural workers and their spouses and children. Proposed guest worker programs with earned-legalization measures tied to periods of farm labor as a qualifier would recruit both men and women as

362

|

Guest Worker Programs

individuals rather than families. Both unauthorized-labor entrance and guest worker programs create family unification issues. The 1965 Immigration and Nationality Act made family reunification a central feature, but established Western hemisphere and Mexico quotas that require a long waiting period. Humanitarian concerns are raised over the issue of recruiting solo individuals who must leave their families, especially children, behind. The argument could be made that business interest in temporary foreign labor eventually fosters permanent immigration rather than guest workers because they will eventually seek to reunite with family in the country where they actually work. One reason given for recruiting guest workers is to save money on education and social services. The sending country, often economically ill-equipped, is left with the economic burden of providing for the upbringing of guest workers, a situation that is conceptually described as the social reproduction of labor. The community impact of solo temporary immigrants is perceived to be minimal, especially if they are housed on farms—away from the community. Yet the human longing for family interaction leads legalizing workers to bring family members. The RAW and SAW programs led to unauthorized family reunification that impacted the need to provide services. While guest worker legalization proposals imply that family immigration will not impact communities, human needs make this unlikely.

SEASONAL FARM LABOR AS A POVERTY TRAP: CITIZEN MIGRANT WORKERS Growers have continued to fight a battle against unionization and are reluctant to improve work and living conditions. In 2000 –2001, Farm-worker income is often poverty-level— between $2,500 and $5,000 annually for individuals and $7,500 to $10,000 for households. Three-fifths of farm-worker households, immigrant or native-born, live below the poverty line. Foreign-born workers had a slightly higher median income than U.S.-born workers. Green card holders and legal permanent residents earned from $7,500 to $10,000 per year while citizens and amnesty recipients earned between $5,000 and $7,500. Undocumented workers earned from $2,500 to $5,000. Despite efforts to effect social change, a majority of migrant farm workers live below the poverty line, and the overall rate of poverty (61%) is higher than in 1990, when approximately one-half of migrant farm workers lived in poverty. Migrant farm workers are unlikely to utilize social services, but Medicaid is used by a third of authorized workers; food stamps are used by 29 percent. It is ironic that those who grow and harvest the nation’s food, especially U.S.-born Hispanic citizens, often resort to food stamps.

CONCLUSION Will agribusiness and other employers get the guest workers they need in order to pay low wages? Or will politicians rally to the native-born workers who fear losing their jobs to immigrants willing to work for low pay under severe conditions? This is the type of issue that has repeatedly come up in Congress, and the controversy will continue.

Guest Worker Programs | 363 References: Carroll, Daniel, Ruth M. Smardick, Scott Bernard, Susan Gabbard, and Trish Hernandez. Findings from the National Farm Worker’s Survey (NAWS 2001–2002): A Demographic and Employment Profile of Farm Workers. Washington DC: U.S. Department of Labor. http://www.doleta.gov/agworker/report9/naws_rpt9.pdf; Chavez, Leo. Shadowed Lives. New York: Harper Collins. 1992; Galarza, Ernesto. Strangers in Our Fields. Washington DC: Joint United States-Mexico Trade Union Committee, 1956; Gonzalez, Gilbert. Guest Workers or Colonized Laborers?: Mexican Labor Migration to the United States. New York: Paradigm Publishers, 2005; Griffith, David, and Ed Kissam. Working Poor: Farm workers in the United States. Philadelphia: Temple University Press, 1995; Martin, Phillip. Guest Workers: New Solution, New Problem? Washington D.C.: Pew Hispanic Center, 2002. http://pewhispanic.org/files/reports/7.pdf#search=%22Guest%20 worker%22; Martin, Philip. “Senate: Immigration Reform Stalls.” Migration News 13, no. 3 (2007). http://migration.ucdavis.edu/mn/more.php?id=3294_0_2_0; Mayer, Robert. “Guest Workers and Exploitation.” Review of Politics 67, no. 2 (2005):311–334; Rothenberg, Daniel. With These Hands: The Hidden World of Migrant Farmworkers Today. New York: Harcourt Brace & Co, 1998; Tancredo, Tom. “Cui Bono? The Case for an Honest Guest Worker Program.” Texas Review of Law and Politics, 10(1)(2005):63–83.

Judith Ann Warner

This page intentionally left blank

H HATE CRIMES When people state that they hate someone or something, they are expressing strong negative emotion, but most dislike does not translate into extreme negative action. Hate speech refers to verbal abuse while hate crimes are criminal actions taken toward individuals or groups because of their race, ethnicity, religion, or sexual orientation. What is more alarming is that the number of hate groups organizing to commit crime in the United States has increased. Hate crimes are developing in the climate of strong anti-immigrant opinion that exists in the United States today. Hate speech regarding immigrants has increased, and that encourages hate crime. Hate-crime law is controversial because it imposes an additional penalty upon actions already covered by traditional criminal law and may promote a different type of legislative injustice. Nevertheless, because hate crimes carry an added penalty, the United States has taken a strong stand against this illegal behavior. It is necessary for law enforcement, prosecutors, and the judiciary to arrest suspects, and now they are required to add this penalty if a decision is made to classify it as a hate crime. The climate of anti-immigrant opinion is so strong that this judicial initiative is not fully enforced despite the damage caused by bias against individuals because of their social categorizations. The media contributes to this inaction by not publicizing anti-immigrant violence and the actions taken against it. BACKGROUND The Basis of Hate Hate emotion associated with verbal abuse, assault, and even homicide develops when one group, the in-group, such as Neo-Nazis, differentiates itself as 365

366

|

Hate Crimes

superior to another group, the out-group, such as Latino immigrants, which is viewed as inferior. The group targeted as inferior is subject to othering (being treated as an out-group that is undeserving and dehumanized). The in-group bases its sense of self esteem and rights on social exclusion of the out-group. The in-group may either form organizations or influence individuals who carry out acts of verbal harassment and/or intimidation and physical aggression, which range from gun threats to beatings and homicide. Fortunately, most members of a societal in-group, like non-Latino whites, the current majority group in the United States, do not develop an allegiance to a hate group or engage in hate speech. It is the deviant fringe of an in-group that becomes so engaged. Hate-Crime Laws The FBI has defined hate crime, sometimes called bias crime, as “a criminal offense committed against a person, property, or society which is motivated, in whole or in part, by the offender’s bias against a race, religion, disability, sexual orientation or ethnicity/national origin” (Shively, 2005:2). Almost all states have established criminal penalties for hate crime. These penalties enhance the severity of punishment for a hate or bias motivated crime or establish hate crimes as a new category of crime, a process conceptualized by social scientists as criminalization. Federal statute requires mandatory reporting of all crime, including hate crime, but there is inconsistency in reporting across all states. Civil rights and immigrant advocates believe that hate crime is unreported partly due to differences in state and federal law and their interpretation. Another cause of underreporting is the need for training on how to recognize and classify hate crime. This innovation in law enforcement is subject to further debate. There are law makers and lawyers who are not convinced that justice for all will be served by adding hate crime penalties. IN SUPPORT OF HATECRIME LAWS AND ENHANCED PENALTIES Hate crime laws were federally enacted and then adopted by states for four reasons: (1) a bias motivated crime is viewed as different from a traditional crime because it traumatizes an individual because of their group affiliation; (2) hate crimes place stress on distinct social groups because they view themselves as a target and are subject to more stress than other groups; (3) hate crimes impose an additional punishment designed to protect targeted individuals and groups by deterring hate criminals from acting; and (4) law enforcement has seldom acted forcefully in cases of violence and property crime motivated by hate. Each of these arguments for hate-crime laws are examined below. The creation of hate-crime legislation is based on the idea that hate or biasmotivated crimes are a different type of crime than a traditional criminal act and that they are more serious. The consequences of hate crime include more

Hate Crimes |

negative psychological and emotional consequences for victims, increased violence, and greater physical injury. For example, an individual who is robbed and then beaten for thirty minutes due to hate motivation has had a more traumatic experience than an individual who is briefly assaulted, even if injured, and robbed. Hate crimes have different consequences for communities because they threaten the safety of singled-out groups of people. No one wants to be a crime victim, and a hate crime indicates that members of a particular group are targets for more hate crime. The targeted group has an increased sense of risk of criminal victimization and views the situation as persecution. Because of the perception that hate crime is more severe than conventional crime, laws have been created to increase penalties. Hate motivation is thought to make a crime more serious. A social message is sent that penalties will be increased in the hope that this type of crime will be deterred by concern about the increased consequences of conviction. For example, adolescents commit acts of vandalism but the element of hate motivation and emotion is not usually evoked by this act. If the crime was not motivated by bias, such as breaking the windows of an abandoned house, it would carry a lesser punishment. Vandalism motivated by bias, such as painting swastikas and other hate symbols on an immigrant’s house or church, would be punished more severely. The last reason for the creation of hate-crime laws and penalties is that victims of hate crimes have traditionally received less law-enforcement protection. The hate crime aspect of such acts has not been investigated or is under-prosecuted. In other words, hate crimes have been prosecuted in the same way as traditional crime or not prosecuted at all. The hate-crime statutes in at least twelve states provide for more law-enforcement training on the recognition of hate crime to increase the protection of targeted groups. Recently, federal efforts to train all state and local police departments about documenting hate crime have been expanded. Hate-crime laws contribute to an understanding of what hate crime is among both law enforcement and the general public. The general public has increasingly understood and accepted the idea that there is a separate category of crime characterized by hate. OPPOSITION TO HATECRIME LAW AND ENHANCED PENALTIES Hate crime has been criticized because: (1) additional penalties under hate crime legislation on crimes that existing law already prosecutes are redundant; (2) offender thought rather than action is punished; and (3) protecting one group but not another is potentially discriminatory. Each of these arguments is considered separately below. Those who have opposed creation of hate crime laws argue that they are based upon the perception of the social traits of the criminal and the victim. This is different than basing punishment on the severity of the crime itself, as a traditional crime would be prosecuted. They argue that if such a crime is more serious, then the severity of the offense is already covered in the law. They want

367

368

|

Hate Crimes

the focus to be on the crime, not the offender or the victim. For example, an act of Neo-Nazi hatred would be punished to the same extent as a traditional crime whether or not it involved painting hate symbols on a building such as a synagogue or mosque. A major reason for criticism of hate-crime laws is that they are redundant— traditional criminal law protects everyone. These cases could be protected by the same criminal code. Hate-crime statutes create a precedent for creating multiple parallel laws covering a type of crime rather than one unified category of criminal law. These parallel sets of laws could differentiate between any number of groups and expand indefinitely until they become ridiculous, protecting people who, for instance, shave their heads or wear distinct hats. Another reason for not creating hate-crime laws is that they place an emphasis on punishing the thoughts rather than the actions of offenders. Prejudicial and biased thought is protected by the First Amendment of the U.S. Constitution because it allows for freedom of speech. Hate speech and membership in hate groups is legal. Unless hate speech encourages or provokes a crime, it is not inherently illegal. Essentially, the thoughts of an offender during a crime are unknowable. Unless there is evidence, such as painting a Nazi swastika on a building or hate speech accompanying the crime, it is hard to prove beyond a reasonable doubt that a crime was motivated by hate. Those defending the concept of hate-crime point out that there is a precedent in considering how a person thinks in differentiating between first degree murder (premeditated) and second degree murder (no prior planning). This does, however, add an additional level of required documentation to a crime that may be hard to collect. Hate speech is transitory and, unless there are witnesses, hard for the victim to document. Proponents of equity argue that when hate-crime laws designate specific groups for protection, they may be omitting other groups. For example, women can be victims of hate crimes but are not mentioned in approximately one half of state laws, which denies them the safety of hate-crime law. Another argument is that by protecting certain groups and not others, vulnerable groups may wind up pitted against each other rather than unified in crime prevention. Any protected group can be the subject of a legal challenge by an unprotected group that wants protected status or considers itself a more likely target. Critics of hate-crime legislation consider this legislation represents identity politics rather than a justifiable form of law. Lawmakers, judges, and lawyers who determine the categories of victims are viewed as being politically correct. Others suggest that hate crime laws can result in reverse discrimination because the inference that a crime is motivated by bias because of the offender and victim’s social characteristics may not be true. For example, a non-Latino white who is assaulted for a reason of bias may not be protected under hate-crime laws, or a non-Latino white offender might be wrongly accused of bias motivation. Hate-crime laws complicate the task of law enforcement. Enforcement of hate-crime laws imposes additional evidence presentation on law enforcement. Establishing hate requires an additional level of testimony and evidence collection/preservation that prosecutors must integrate into a case.

Hate Crimes |

This can place an unfair additional burden on the criminal justice system when an offender can be quickly convicted under conventional law. Problems with State Hate-Crime Law Regardless of issues concerning federal hate-crime law, states have implemented a variety of these laws. Georgia’s hate-crime law was overturned because its language was considered too vague, and it needs to be revised. Statutes have also been criticized for covering too narrow a range of groups, failing to provide for state-wide data collection required under federal law, and doing too little to provide data that can be integrated into the federal Uniform Crime Report (UCR). Another major problem with many state laws is that they provide little protection for victims and witnesses. Provisions could be made to protect identity and privacy. Services could be offered to victims, and court protocols for assisting victims and witnesses could be created. Many of these laws have not mandated any training for law-enforcement personnel. HATE GROUPS AND HATE CRIMES Although state hate crime laws have been challenged and, in some cases, modified, they have withstood constitutional challenge with only occasional requests for modification. They can provide a tactic for dealing with bias-motivated crime committed by hate groups. The Southern Poverty Law Center monitors both hate crimes and hate groups. There are 844 active hate groups in the United States. In 2005 through 2006, at least 144 new nativist (anti-immigrant) groups were developed, a 40 percent rate of increase. These hate groups protest more than immigration policy, they are capable of harassing and assaulting individuals. The anti-immigration groups attack undocumented Latinos and spread conspiracy theories. The main conspiracy theory is that Mexicans plan to retake the American Southwest through a reconquista (re-conquest) of sheer force of numbers. The visibility of anti-immigrant hate speech is spreading into the mass media, especially radio and talk shows. Certain members of Congress have taken up the cause, accusing immigrants of increasing crime rates. Certain civilian patrol groups in the Southwest, such as the Minuteman Project, who are acting on their own to apprehend undocumented migrants are referred to as vigilante groups. These groups are categorized as xenophobic (showing a fear of foreigners) but not as hate groups although they may yet achieve that categorization. The Southern Poverty Law Center recognizes them as nativistic groups that promote their own culture and language (English). They are anti-immigrant because of perceived cultural and racial-ethnic differences. Some members of these groups have moved toward committing hate crimes. Other recognized hate groups, including the Ku Klux Klan, are becoming active in U.S.-Mexico border areas. As a result, the federal government has started to keep track of their immigrant-related activities.

369

370

|

Hate Crimes

The National Incident-Based Reporting System (NIBRS) In 1990, hate crimes were added to NIBRS data-collection protocols. Although this is not as widely used for data reporting, it provides more information about the social context of crime. Between 1997 and 1999, the data represents just 10 percent of law enforcement agencies and 6 percent of the population. In 2001, the Bureau of Justice statistics analyzed this limited data pool. The data provided four major findings relevant to understanding immigrant hate-crime victimization: (1) 60 percent of hate crimes involved a violent crime, typically verbal or related threat of bodily harm or simple assault; (2) forty percent of offenses involved damage, destruction, or vandalism of property; (3) two thirds of crimes motivated by religious bias involve property crime; and (4) a majority of hate crime offenders are under eighteen, and they commit about one-third of violent hate crimes and almost half of property crimes such as vandalism and destruction. Unfortunately, the limitations of the NIBRS data reporting system prevent this data from being generalized to the entire U.S. population and must be considered merely suggestive of possible trends. Advocacy-Program Hate-Crime Reporting and Law Enforcement The Anti-Defamation League (ADL), the Human Rights Campaign (HRC), and the National Coalition of Anti-Violence Programs (NCAVP) are nongovernmental organizations (NGOs) that provide supplemental, often qualitative, data and work with law enforcement. Nearly every major city and the states have collaborative programs to report hate crimes in conjunction with NGOs (Shively, 2005). City, state, and federal programs are available to provide training manuals and assistance for police in collecting data and enforcing hate-crime law. Recent advocacy concerns involve bias against immigrants due to scapegoating (when a group is blamed for a situation they did not generate) for terrorism and the climate of negative public opinion towards unauthorized immigrants (primarily Latinos from Mexico and Central America). Issues in Enforcing Hate-Crime Laws Immigrants to the United States are often unaware of the definition of a hate crime. While the police are responsible for reporting crime, the victim must initiate the collection of hate crime evidence. Hate is not essential for a crime to be classified as a hate crime, bias against a group is sufficient. Immigrants do not know that graffiti, vandalism, and nuisance crimes fall under this category unless there are public awareness campaigns, with bilingual information. Crime documentation in writing and through photographs and video can constitute the evidence. Police are reluctant to report hate crime because it hurts the community image to be viewed as racist. Prosecutors often drop the hate issue from criminal charges because they are difficult to document. Both police and district attorneys may not regard hate or bias as the motive for a crime. Finally, prosecutors

Hate Crimes |

371

may avoid complicating a criminal charge with hate crime elements for fear of losing the case. In cases where a hate crime classification has been avoided, public advocacy can be initiated with a victim authorization statement. Local politicians and media victim stories may help immigrant legal advocates to get a district attorney to prosecute under a hate crime designation. CITIZEN PATROLLERS OR VIGILANTES? Roger and Don Barnett are Arizona ranchers who rounded up men and women at gunpoint and turned them over to the U.S. Border Patrol. Due to anti-immigrant public opinion, they are viewed as heroes. They complained that their fences were cut and their property littered by unauthorized migrants. Until recently, the possibility that the Barnett brothers might be going beyond their rights as citizens and that U.S. foreign-born citizens were being subjected to bias-motivated harassment was not considered. In November 2006, a lawsuit was filed against the Barnetts for harassing five U.S. citizens, including three girls between 9 and 11 years old, with an AR-15 rifle while verbally abusing them with racial slurs. The family had been hunting deer and thought they were on public lands. The Barnetts have been charged with eight counts of aggravated assault and 10 misdemeanor counts of disorderly conduct and intimidation. Whether the Cochise County court will accept the case is another matter. They have a history of rejecting cases involving citizen patrolling. When a case involves racial slurs, however, it takes on the charge of being a hate crime, which would present the Barnetts as vigilantes—people who take the law into their own hands rather than exercising their rights to law enforcement protection. Former Attorney General Alberto Gonzalez was monitoring border vigilantes and did not hesitate to enforce federal hate-crime law. Accusations have been made that such groups as the Minutemen, Ku Klux Klan, and Ranch Rescue have committed hate crimes.

ANTILATINO HATE CRIME The National Council of La Raza (2003) reported that the prevalence of hate crime in which Latinos are victims increased in the 1990s. They attribute the increase to: (1) common negative and racist stereotypes, (2) negative representation of Latinos in the media, (3) demographic changes in which Latino immigrants have spread into all states and certain rural regions causing ethnic tension and conflict, and (4) anti-immigrant public speech and opinion. Many public commentators including Patrick Buchanan, Rush Limbaugh and politicians like Tom Tancredo are heavily opposed to high levels of immigration and, in particular, to undocumented Mexican and Central American immigration across the southern border. Although their words may not constitute hate speech, they promote nativism and hate. The National Council of La Raza was particularly concerned about increased police brutality toward Latinos in the 1990s. The

372

|

Hate Crimes

potential for law enforcement abuse or errors continues into the twenty-first century as negative opinion aimed at unskilled, Latino immigrants increases. Immigrant Street Protests and Anti-Immigrant Hate Violence The incidence of hate crimes against immigrants is often treated by journalists as a non-story because it concerns only immigrants who have become devalued by anti-immigrant stereotypes. Roberto Lovato, a journalist, reported that the May 2007 immigrant-rights protest demonstrations were matched by a response from hate groups and aggressive police tactics. The increase in hate-crime planning and attacks is believed to be motivated by anti-immigrant public opinion. Newspapers, known to reflect a degree of bias, become the source for learning about what is currently happening. They are not reporting hate crime at public protest events or are giving it little attention, which underestimates the amount of harm. Los Angeles. The 2007 Los Angeles May Day rally of 30,000 people in support of amnesty for undocumented immigrants was held at MacArthur Park (Winton and Blankstein, 2007). Thirty to forty demonstrators began to taunt police who were wearing riot gear and threw rocks and water bottles at them. Orders had been given to disperse the nonviolent rally despite their permit to meet. Police fired 240 foam rounds at participants who were not arrested. Seven members of the media, three protestors, and eight police were injured. Rocks were thrown at the police, and eight adults and one juvenile were arrested for public drinking. Videotapes show that almost all protestors were nonviolent and that the police physically attacked them and local media personnel covering the event. Documentation of this incident can be found in the Los Angeles Times. Los Angeles has a history of police violence against immigrants and minorities. Los Angeles Mayor Antonio Villaraigosa, Congresswoman Hilda Solis, and other local officials condemned the recent violence at the 2007 rally, but no national politician or presidential candidate spoke out against it. It can be speculated that fear of anti-immigrant public opinion causes politicians who seek to lead the country to overlook hate violence against immigrants, especially Latinos. The Coalition for Humane Human Rights in Los Angeles has documented an increase in hate crimes by individuals and organized hate groups in that region. Mass media has a role in promoting intergroup understanding but it has failed to lead on the issue of hate crime prevention. Alabama. In reaction to another attempt to hurt immigrants at May 1, 2007, amnesty rallies, the federal Bureau of Tobacco, Alcohol and Firearms arrested and indicted six Alabama Free Militia Members who had gathered grenades, semi-automatic weapons, and 2,500 rounds of ammunition (Lovato 2007). They are thought to have had a plan to attack Mexican immigrants near Birmingham. Washington D.C. and Maryland. In Washington D.C., Tyler J. Froatz attacked immigrants at a rally while carrying these weapons: knives, a hammer, a flare gun, a taser stun gun, and pepper spray. A search of his apartment found guns, a Molatov cocktail, a grenade and at least 1,000 rounds of ammunition. Nearby, Casa de Maryland, a day-labor center in Gaithersburg, MD that had received

Hate Crimes |

hate phone calls and emails, suffered arson. The Washington Post referred to this incident as a hate crime. IMMIGRANT DAY LABORERS AS HATECRIME VICTIMS Abel Valenzuela Jr. is a sociology professor who studies day laborers. Immigrants who gather at corners, convenience stores, and centers to be hired for day labor are susceptible to violence. Many day laborers are unauthorized temporary migrants, and they are at risk for crime because they must seek work in exposed public spaces. Newspapers and other media document numerous incidents of theft, assault, and even drive-by shootings of day laborers. They often occur at the hiring site or close by at local stores, hotels, and laborers’ residences. While much of the property and violent crime directed at day laborers does not involve anti-immigrant bias, the incidence of hate crimes is increasing. Day laborers are often unkempt and very noticeable, prompting in-your-face protests from store owners and neighborhood residents. During day laborers’ very visible work search, they may have “go back where you came from” yelled at them, experience racial hate speech, or have objects (such as bags of urine or rocks) thrown at them. Valenzuela Jr. points out that undocumented status and limited knowledge of English makes it hard for day laborers to report these experiences to police. Both the police and Immigration and Customs Enforcement (ICE) may be trying to get them to leave—making crime reporting very threatening. Public anger at unauthorized immigrants can result in hate crimes such as assault by White supremacists, armed robbery with homicide or severe beatings, and fire-bombings. As undocumented immigrants migrate to new locations in the United States, the potential for hate crimes is increasing. Latino immigrants are increasingly working in the rural and urban South, a major cultural change impacting the region. The Southern Poverty Law Center reports that Domingo Lopez Vargas, a legal resident originally from Guatemala, was severely assaulted and robbed by high school students in Canton, Georgia. Vargas was a construction worker who turned to day labor when jobs became scarce in a housing market downturn. It is estimated that there are over 100,000 jornaleros (day laborers) doing landscaping and construction after being picked up from gathering sites such as street corners in Georgia. Four young men, pretending to be contractors, picked Vargas up, took him to a remote area, and beat him for thirty minutes. The assault and robbery was one of a series that occurred in Canton. Seven Cherokee High School students, one of whom was bragging about beating up Mexicans were involved. Day laborers are a new facet of Georgia life that leads some to refer to it as Georgiafornia. According to the 1990 census, Georgia’s Latino population increased 300 percent to 435,000. The presence of unauthorized workers may double that count. The response to a new ethnic population of Mexicans and Guatemalans has included anti-immigrant rhetoric claiming immigrants increase the crime rate, litter, and cause increased spending on health services and education for so-called illegals. Because the American South has a history of

373

374

|

Hate Crimes

prejudice and discrimination, there are neo-Nazis, Southern-heritage groups, and White supremacist groups (such as the Ku Klux Klan) involved. These ingroups are opposed to new Mexican and Guatemalan immigrants as an outgroup and practice hate speech toward what they call the Mexican Invasion. The nation’s largest neo-Nazi group, the National Alliance, has held rallies in the South. They claim that Latinos are attempting to displace whites and garner a major portion of societal resources. This anti-immigrant hate speech is voiced at public rallies, and it incites hate crimes. 9/11 AND HATE CRIMES AGAINST ARAB AND MUSLIM IMMIGRANTS In the year after 9/11, increases in hate crime reflected a pattern of inappropriate retaliation against people of Middle Eastern appearance. Hate crime motivated by ethnicity or national origin increased from 927 known incidents in 2000 to 2,098 incidents in 2001. Hate crimes motivated by religious bias increased from 1,483 in 2000 to 1,828 in 2004. Statistical analysis of trends in hate crimes motivated by bias towards religion indicated that the increase— seventeen-fold from 2000 to 2001—was due to anti-Islamic bias. After 2004, these numbers declined. The UCR data spike could be due to several causes. After the identities of the 9/11 hijackers were established as Middle Eastern and Islamic, public administrators and law enforcement could have anticipated a backlash and responded. Police could have given more patrol coverage to Middle Eastern businesses and mosques. The media coverage of post-9/11 hate crime could have expanded and encouraged victims to report incidents they might not have otherwise. The spike could be entirely due to increased victim reports to police and increased lawenforcement investigation. Ahmad, a lawyer and legal scholar, explains that the increase in anti-immigrant hate crime against people of Middle Eastern appearance and/or Muslim victims was connected to bias broadly present in the post-9/11 American population. He views the perpetrators of these hate crimes as motivated by vengeance. Ahmad claims that these were crimes of passion motivated by male honor, loyalty to country, defense of property, and a sense of violence and betrayal. Ahmad identifies the national response to terrorism as the forming of an ideology in which Muslim-looking people were connected in the public mind to acts of terrorism. Hate-crime perpetrators were engaging in acts of passion due to racial and religious scapegoating. CONCLUSION The failure of the United States to control its borders and reform immigration policy has produced a volatile situation. Hate crimes against immigrants are increasing, hate groups are being organized, and established hate groups are taking violent action on the immigration issue. Anti-immigration and anti-terrorism rhetoric encourages hate speech and hate crimes against immigrants, who are

Health and Fiscal Costs

less likely to report such crime because of fear of removal and language barriers. As immigrants become more widely distributed in the United States, the potential for anti-immigrant-motivated hate crime is increasing. The establishment of hate-crime law, however controversial, provides one avenue for deterring such crime and punishing offenders. Instances of police brutality against immigrants at May Day amnesty rallies and against day laborers suggest that getting police to fully enforce hate crime law will be difficult. The lack of integration of immigrants into the criminal justice system process of documenting victimization compounds the issue of enforcing hate law. Insofar as any society should not permit violence, hate crime against immigrants is an issue that needs media attention and action. References: Ahmad, Amir. I. “A Rage Shared By Law: Post-September 11 Racial Violence as Crimes of Passion.” California Law Review 92(5)(2004):1261–1330; Beirich, Heidi, Michelle Branblett, Angela Freeman, Anthony Griggs, Janet Smith, and Laurie Wood. “The Year in Hate.” Southern Poverty Law Center. http://www.SPLcenter.org/intel/intelreport/ articlejsp?aid=762; Jacobs, James B., and Kimberly Potter. Criminal Law and Identity Politics. New York: Oxford University Press, 1998; Lovato, Roberto. “Hate Crimes Against Immigrants Rise Following Rights Marches.” Albion Monitor, May 10, 2007. http://www. albionmonitor.com; Moser, Bob. “The Battle of ‘Georgifornia.’ ” Southern Poverty Law Center. http://www.SPLcenter.org/intel/intelreport/articlejsp?aid=505; National Council of La Raza. “The Mainstreaming of Hate: A Report on Latinos and Harassment, Hate Violence and Law Enforcement Abuse in the ’90s.” In Hate and Bias Crime: A Reader, edited by Barbara Perry, 211–222. New York: Routledge, 2003; Potok, Mark. “The Immigration Backlash.” Southern Poverty Law Center. http://www.SPLcenter.org/intel/intel report/articlejsp?aid=504; Shively, Michael. Study of Literature and Legislation on Hate Crime in America. Analytic Final Grant Report for National Institute of Justice, Washington DC: National Institute of Justice. 2005; Valenzuela Jr., Abel B. “New Immigrants and Day Labor: The Potential for Violence.” In Immigration and Crime: Race, Ethnicity and Violence, edited by Ramiro Martinez Jr. and Abel Valenzuela Jr. New York: New York University Press, 2006; Winton, Richard, and Andrew Blackstein. “Chief Vows Full Inquiry into Violence; Bratton Questions LAPD Tactics in Sweeping Protestors out of McArthur Park During May Day Rally. Los Angeles Times, May 3, 2007:A1.

Judith Ann Warner

HEALTH AND FISCAL COSTS Preserving the health of both adults and children is important for a nation. Political debate on the lack of a national health insurance plan demonstrates that the public and the medical business complex (private providers) are at odds regarding how to provide for the entire population. Increasingly, new immigrants are among those who need affordable health care, and they are increasing the gap between the covered and the uncovered. Anti-immigrant sentiment among the native born has made healthcare a pivotal issue since there have been efforts to deny social services such as state medical care to immigrants, especially the undocumented, in the past.

| 375

376

|

Health and Fiscal Costs

BACKGROUND Immigrant Health Exclusion History In the 1880s, Congress took federal control of immigration away from the states. In 1881, federal legislation prohibited the entrance of individuals considered likely to use public benefits. The Public Health Service (PHS) was required to physically examine and classify immigrants. Individuals diagnosed with Class A conditions, those that were considered contagious health risks or ‘disgusting,’ were considered likely to become a public charge and subject to exclusion. Class A diseases extended from tuberculosis of any type to ringworm of the scalp. Class B conditions applied to individuals thought to be less likely to be unable to support themselves Heart disease and varicose veins were criteria for exclusion subject to the discretion of the physician. Pregnancy, it should be noted, began as a Class B condition but was later moved to the less severe Class C, even though pregnancy is not a disease. These medical examinations were used to control immigration and select for workers who would remain healthy, be able to work in industry, and be less likely to require government aid. Needless to say, the discretion exercised by public health officials varied according to the social origin of the immigrants, including their degree of prosperity. Currently, certain immigrants are excluded for public health reasons. Tuberculosis (TB) has been identified as a so-called silent traveler and is a reason for rejection. The 1990 Immigration Act excludes individuals with dangerous contagious diseases, and active tuberculosis is grounds for exclusion. Immigrants admitted who test positive for TB are required to undergo medical care; if they do not follow up, they are held involuntarily for treatment. Immigration Reform and Public Benefits In 1996, Congress targeted immigrant benefits. The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) distinguished between eligibility of citizens and noncitizens and created the category of postenactment immigrants, those arriving after August 22, 1996, who would not be eligible for certain federal benefits for five years. In addition, the income of the sponsor of an immigrant was made a factor in benefit determinations. Regarding Medicaid, the states were given a choice as to whether to give federal coverage to immigrants who were present before PRWORA was enacted—and all states chose to keep that benefit. Medicaid, which provides for the blind, disabled, and aged as well as the children of impoverished families, became unavailable for postenactment immigrants in many states, with notable exceptions such as California. The U.S. government estimated that 44 percent of savings due to changes in eligibility for federal benefits due to IRWRA would come from making immigrants ineligible for benefits including help with health costs. California’s Proposition 107 was a turning point in state political efforts to block access to social services, education, and other benefits for immigrants. Although it passed by a significant margin, it was eventually struck down as unconstitutional by a federal circuit court. California continues to provide Medicaid

Health and Fiscal Costs

for pre and postenactment immigrants. Despite anti-immigrant rhetoric, some states still provide health-related funds for immigrants in need while other states are protesting and trying to cut immigrant health costs, particularly federally mandated emergency care for undocumented temporary migrants and immigrants. Welfare reform created a gap in coverage for many states, and most created State-funded Child Health Insurance Programs (SCHIP) to protect children’s health. Although SCHIP extended protection to immigrant children, they are still at higher risk of being uninsured, and immigrant families are less likely to attempt enrollment. A review of the literature revealed seven reasons why immigrants are less likely to access health care: (1) fear that demonstrating healthcare need will impact citizenship application, (2) lack of understanding of complex bureaucratic healthcare application forms, (3) stigmatization of those receiving government benefits (especially those tied to parental unemployment), (4) communication barriers due to lack of English proficiency and limited bilingual medical personnel, (5) reluctance to discuss traditional ethnic medical practices with practitioners, (6) unfamiliarity with U.S. health services, and, of course, (7) lack of health insurance. Immigrant Health and Insurance Coverage Much of what we believe about the ability of immigrants to pay for health insurance is based on statistics combined with rhetoric. If someone is not covered by health insurance, it is automatically assumed that they need extremely costly procedures. This debate overlooks health selection factors regarding entering immigrants. Since the 1900s, immigrants have had to prove that they are in good health prior to being accepted as legal permanent residents. In addition, after arrival immigrants continue to display more positive health trends than the native born. While this is not to suggest that immigrants do not need health coverage, it is possible that the immigrant phenomenon of good health known as the ‘epidemiological paradox’ indicates that their health costs will be lower—at least during the period of youth and maturity prior to old age. On the other hand, the fearful climate that immigrants face regarding deportation may prevent disclosure of developing conditions that are likely to occur in later maturity or, as with all aging people, during the elder years. Indeed, the occupational hazards encountered by the working poor population could cause disability or even death. Not enough is known to decide if immigrants are positively selected for health over time; destined by stress, poverty, and unsafe working conditions for poor health; or healthier than the general population until the time of old age. All of these factors impact the cost of health insurance, not the need for health insurance. Mexican and Other Latino Immigrants Historically, there has been limited concern about Latino immigrants because they proved healthy. The epidemiological paradox refers to the social fact that

| 377

378

|

Health and Fiscal Costs

Mexican immigrants have been healthier than the general population; this has been shown by lower rates of smoking and alcohol use, and fewer low-birthweight babies, despite their origin in developing countries. There are two explanations for the paradox. The first is that there are protective factors in Mexican culture, such as diet and strong family ties. The second, the ‘salmon hypothesis,’ is that the individuals who immigrate are healthier and thus better able to come to the United States, a self-selected special population. This perspective overlooks the acculturative and intergenerational possibilities of developing diseases; at the point when immigrants enter society, their health is documented as being better than the native born, and their health needs at that time are likely to be routine rather than expensive procedures unless they need emergency treatment. Epidemiological Paradoxes. When legal permanent residents are admitted to the United States, they have to undergo a physical that includes blood testing for malaria, HIV/AIDS, and other diseases considered to pose a public health threat. This produces an immigrant population selected for good health regardless of country of origin. Unfortunately, in the case of undocumented entrants, health selectivity can be fostered by the increased risks associated with the U.S.Mexico border crossing. Literally, only the tough can make it. This suggests support for the unfortunately named salmon hypothesis. National data indicates that 38 percent of the native born suffer from a chronic condition as compared to 27 percent of all foreign born. The native born have much higher rates of hypertension (20% as compared to 14%), depression (8% as compared to 2%), arthritis (13% as compared to 8%), and asthma (11% as compared to 4%). It would appear that being a birthright citizen is associated with stress and unhealthy behaviors (Kandula et al. 2004). Even when researchers controlled for age and visits to a doctor, immigrants still reported fewer health problems. As a result of these insurance and health patterns, health spending by foreign-born men was $1,086 less than that of native-born men while foreignborn women spent $1,201 less than native-born women (Mohanty et al. 2005). This suggests that immigrants are positively selected for health, which would be a reason for the epidemiological paradox. Preventable Illness and Injury The scrutiny given to new immigrants is a factor in failure to report preventable injuries, and it creates data limitations. In addition, injured immigrants may fear or not know how to use the legal system to obtain compensation. Workplace occupational hazards, which can be due to employer reluctance to pay for enhanced safety, are a risk factor for injury. Undocumented workers are particularly exposed to unacceptable working conditions. Health Insurance Coverage The 2006 Current Population Survey (CPS) indicated that 13 percent of the native born and 33.8 percent of the foreign born were uninsured. Immigrants

Health and Fiscal Costs

are currently about 12.6 percent of the population, but they were 26.8 percent of all uninsured. Adding the children of immigrants to this figure increases their share to approximately 30 percent. The U.S.-born children of immigrants below the poverty line have birthright citizenship and are eligible for Medicaid. Altogether, there are 14.9 million uninsured noncitizen immigrants. The U.S. Census showed 14.6 million uninsured immigrants in 1989 and 47 million uninsured in 2006. The Center for Immigration Studies, a conservative think tank, indicated that 9.21 million immigrants lacking health insurance arrived in 1990 or later and estimated that this equaled 62.9 percent of the growth in the uninsured population. If 1.12 million children born to these immigrants are added, it accounts for 71 percent of growth in the uninsured population. One should remember that 12.6 percent of the population is comprised of immigrants, and these statistics are an estimate of growth in the uninsured portion of this population that suggests they are merely the immigrant component of growth in the uninsured; the vast majority of the uninsured are native-born. Native-born reaction to the new immigration either focuses on Latinos and the U.S.-Mexico border or immigrants from all sending countries. All sending countries have some uninsured arrivals. The 2006 Current Population Survey data indicates that approximately 34 percent of all adult immigrants and 30 percent of child immigrants were not insured. Central American immigrants are especially likely not to have access to adult or child health insurance. Approximately 63 percent of Honduran, 61.1 percent of Guatemalan, and 53.1 percent of El Salvadorian immigrants lacked health insurance. Fifty-seven percent of Honduran, 51.8 percent of Guatemalan, and 44.5 percent of El Salvadorian children lacked insurance. Approximately 57 percent of Mexican Immigrants and 46.6 percent of Mexican children were not insured. Overall, over 50 percent of Hispanic adults and 44 percent of Hispanic children were not insured although other Latin American and Caribbean immigrants showed higher rates of access to insurance. A person’s lack or possession of insurance for their healthcare needs stems from many factors such as the person’s educational attainment, income, and poverty level. Economic problems such as the collapse of the housing market and credit crisis led to recession-related unemployment, and it is likely that poverty may increase among Latino immigrants, racial-ethnic minorities, and the nonLatino-white native born until the end of the decade. Medicaid In 2006, the CPS indicated that 17.7 percent of immigrants with U.S.-born children used Medicaid as compared to 11.9 percent of the native born and their children: 47.4 percent of immigrants and their children are eligible for Medicaid. This compares to 25 percent of natives and their children—a larger segment, proportionally, of the uninsured population. In 2006, 24.4 percent of all immigrant households and 24.9 percent of all immigrants in the United States had used Medicaid for more than 12 years. Camarota, a conservative advocating immigration

| 379

380

|

Health and Fiscal Costs

restriction, views this as indicating immigrants do not relinquish use of Medicaid after a longer-term stay. Among the native born, 14.7 percent used Medicaid. Country of Origin of Medicaid Users Immigrants from Latino origin countries, such as Latin America and the Caribbean, are the primary users of Medicaid. Almost half of immigrants from the Dominican Republic receive Medicaid. In 2006, the following Latino countries were above the average rate of Medicaid use for immigrants (24.4%): 40.5 percent of Ecuadorians, 36.3 percent of Mexicans, 30.3 percent of El Salvadorians, and 29 percent of Guatemalans. Non-Latino sending countries that were also higher in Medicaid use include Iran, 29.3 percent, and the USSR, 27.8 percent. Refugeesending countries have a somewhat higher rate of Medicaid use (27.4%). Undocumented Status and Health Insurance Coverage In 2006, undocumented immigrants constituted 15.4 percent of the uninsured population, and undocumented immigrants with U.S.-born children were 17.6 percent of the uninsured population. Technically, undocumented immigrants are not eligible for federal or state aid for medical problems, but hospitals and clinics cannot turn away people in distress.

HEALTHCARE COSTS IN NORTH CAROLINA North Carolina was one of the states that did not raise the minimum wage between 1997 and 2007. States with lower minimum wages set at the federal minimum may have attracted less-educated and less-skilled undocumented immigrants during this time period. As the increase in border enforcement shifted crossing to more hazardous routes, migrants went to new geographic destinations; North Carolina was among them. From 1990 to 2004, undocumented immigrants were one out of four new residents in North Carolina. The Pew Hispanic Center ranks North Carolina as having the ninth-largest undocumented population—300,000. One result has been an increase in undocumented and uninsured immigrants at the University of North Carolina’s four hospitals. Medicaid can cover emergency services, but with major illness or injury, funding can run out before patients are ready to leave but the patient’s condition may no longer qualify as an emergency. Hospitals make connections with Mexican consulates to remove patients to their homeland, but some remain hospitalized for long periods. From 2001 to 2004, emergency-medical spending on undocumented immigrants rose 28 percent in North Carolina. The majority of these expenditures were for pregnancy and childbirth. Other costs resulted from injuries and chronic diseases. Doctors treat conditions such as skin rash, hypertension, and infection on a sliding scale: averaging $6 for a visit and $6 for a prescription. In order to help out immigrants, a doctor might give them a bag of insulin samples for diabetes or treat an eye injury without a fee.

Health and Fiscal Costs

CHILDREN’S HEALTH Immunizations The relative youth of the immigrant population is another factor of health risk, provided preventative care occurs. Immigrants and their foreign-born children are less likely to be up-to-date on immunizations than the native born. The 1999 and 2000 National Immunization Survey (NIS) indicated that, controlling for socio-demographic factors, foreign-born children were 45 percent less likely to be current with recommended immunizations, making them more susceptible to preventable illness (Strine et al. 2002). Needless to say, it is cheaper to immunize children than to deal with the direct and indirect costs of illness. Compositional Risk Factors and Health Insurance There is evidence that immigrant children are at increased risk of living in poverty—a predictor of being uninsured if undocumented or covered by Medicaid. There are four compositional changes in immigrant families responsible for this trend. First, changes toward immigrant racial-ethnic diversity were an important factor in predicting poverty in the 1970s and, to a lesser degree, until the end of the 1990s. From 1970 to 1999, increases in single parenthood and decreases in parents’ work hours were associated with increased immigrantchild poverty. Among the native born, this trend occurred as well, but single parents reacted to their status over time by increasing their work hours. Concurrently, immigrants were less likely to be single parents, but they were not able to increase their work hours and child poverty increased. Finally, increasing numbers of adult immigrants without prior acculturative experience had greater difficulty in escaping poverty. Factors that mitigated these compositional effects to an extent were additional education, smaller families, and increased reliance on extended family households. The social impact of economic restructuring, immigrant education, longer work hours, and acculturative experience is a disadvantage in the ability to escape poverty and acquire health insurance. Child Safety Providing child-safety seats is an effective health intervention, but research has indicated that children’s car seats or restraints and seat belts were less in use in Latino communities. A southern California study found that Latino children have twice the rate of pedestrian-injury-related hospitalization or death than non-Hispanic whites. Follow-up indicated that the parents of hospitalized children had limited English and Spanish reading proficiency. It is likely that bilingual signage would decrease this accident rate. Undocumented-Immigrant Emergency-Healthcare Costs Undocumented immigrants are only eligible for emergency-care costs. In 2004, the Pew Hispanic Center estimated that 59 percent of undocumented immigrants

| 381

382

|

Health and Fiscal Costs

are uninsured, as compared to 25 percent of legal permanent residents and 14 percent of U.S. citizens. They may constitute 15 percent of the 47 million uninsured. As a group, the undocumented tend to be younger and healthier, accounting for 2 percent of national health spending. Unauthorized entrants are not eligible for nonemergency medical care unless they pay nor are they eligible for any other federal medical benefits. Many undocumented immigrants live with pain and injury because they are afraid of being deported if they see a doctor. As a result, by the time they receive treatment, health care is more costly. Community Health Centers During the 2008 presidential election year, Congress, state governments, and communities considered how to pay for uninsured immigrants’ healthcare. There are 4,000 federally funded health centers that have been developed over the past 40 years. In 2006, 6 million uninsured patients were served. Currently, these centers have low fees for medical service and do not ask for proof of residency. Often they will distribute free prescription samples or provide overthe-counter medicines. ARGUMENTS AGAINST PROVIDING HEALTH SERVICES FOR IMMIGRANTS The medical needs of undocumented immigrants are the major target of concern about immigrant lack of health insurance. Because they do not have legal permission to be in the United States, undocumented immigrants are viewed as undeserving of healthcare. In addition, they are viewed as raising unreimbursed healthcare costs for states and communities. The Federation for American Immigration Reform (FAIR) believes that immigration has increased the number of people without medical insurance and placed a burden on public healthcare. They present 1990s data that 25 percent of the uninsured are immigrants and that almost half of all immigrants have no insurance or taxpayer-provided insurance. From 1994 to 1998, immigrants and their children accounted for 59 percent of growth in the uninsured population. In certain hospitals, such as those located at the U.S.-Mexico border in areas with a large population of undocumented migrants, unpaid care for undocumented immigrants may constitute up to two thirds of total operating costs. Staff reductions, cost increases, service cutbacks, and closure of maternity and trauma centers have resulted at some hospitals. Conservatives advocating immigration restriction believe that undocumented immigrants’ medical costs are greater than what they pay in state and local taxes, but government data indicates that their federal tax contribution is higher. FAIR indicates that in 2004 undocumented immigrants cost $1.4 billion in healthcare in California. California, New York, Illinois, and Washington are states that use their own revenue to cover undocumented children. At times, the youth and relative health of the immigrant population has been used to argue against providing healthcare. The Center for Immigrant Studies

Health and Fiscal Costs

| 383

argues that nonemergency Medicaid for the undocumented increases taxpayer costs and that emergency services would provide any essential healthcare.

IMMIGRANT HEALTH COVERAGE IN CALIFORNIA California has never stopped aiding immigrants in need of healthcare. Los Angeles Family and Neighborhood Survey research from 2000 to 2001 documented that immigrant health costs were lower than those of the native born. Immigrants were 45 percent of the L.A. County population aged 18–64, but they accounted for 33 percent of health spending. Undocumented individuals were 12 percent of the population and accounted for 6 percent of the spending; 17 percent was paid for by public spending. Researchers believe that immigrants tend to be in better health and to spend less on healthcare. The Los Angeles Family and Neighborhood survey established a baseline that 60 percent of the native born had employer-provided health insurance. Fifty-nine percent of foreign-born citizens had employer-provided health insurance as compared to 45 percent of permanent residents, 22 percent of the undocumented, and 29 percent of temporary legal immigrants. Individual purchase of health insurance is relatively uncommon but not unknown. Nine percent of the native-born, nine percent of foreign-born citizens, seven percent of permanent residents, and two percent of the undocumented privately pay for medical insurance plans. In contrast, 13 percent of the native born, but only 10 percent of foreignborn U.S. citizens, used public benefits. Ten percent of legal permanent residents and eight percent of the undocumented received public healthcare. It is striking that 17 percent of the native born, 23 percent of naturalized citizens, and 38 percent of legal permanent residents are uninsured but not surprising that 68 percent of the undocumented are uninsured.

ARGUMENTS FOR PROVIDING HEALTH SERVICES FOR IMMIGRANTS Lack of health insurance is a problem for many native-born Americans. There are increasing numbers of low-income, disabled, elderly Americans, and sufferers of chronic disease. For the uninsured, native-born or immigrant, preventative measures are not emphasized, and quality healthcare is beyond their reach. Months may pass before necessary but nonurgent surgery—such as gall bladder removal in a young person—is performed, despite the patient’s pain. It is unreasonable to think that immigrants created this problem when substantial numbers of Americans share it. Anti-immigrant groups often overlook many reasons for rising health costs that are not related to immigration. Increasing costs can be attributed to a medical industrial complex: physicians, hospitals, pharmaceutical manufacturers, and insurance companies. Malpractice lawsuits resulting in millions of dollars awarded have significantly increased the cost of malpractice insurance. In addition, complaints have arisen about inefficiency and waste in the healthcare system.

384

|

Health and Fiscal Costs

Immigrants to the United States tend to be younger and healthier than the native-born population. As a result, their healthcare costs tend to be overestimated. Although both legal permanent residents and the undocumented have major gaps in health coverage, research indicates that they tend to have lower health costs. Denying health services for immigrants negatively impacts community health standards. At present, many undocumented immigrants and legal permanent residents who arrived less than ten years ago are afraid to access health services for fear of deportation. When healthcare is denied or avoided, disease conditions and injuries that could be easily treated become more expensive to treat and, if infectious, create a community hazard. Providing health services for immigrants is a cost-saving method. For example, prenatal care for an undocumented woman is less expensive than caring for a prematurely born baby. Similarly, blood pressure medication can prevent heart attack and strokes that require costly long term care and rehabilitation. Denial of healthcare is both cruel and unethical. At present all individuals, even undocumented workers, are eligible for emergency medical care at the nation’s health centers. The Emergency Medical Treatment and Active Labor Act (EMTALA) prohibits asking about an individual’s immigration status in an emergency room. Because the federal government requires that emergency care be provided regardless of immigration status, the state and local costs that are problematic should be reimbursed by the federal Medicaid program, which has obviously under-allocated for these costs. Since immigrants pay more in federal taxation than they receive in return, this would be a just allocation. States that have large immigrant populations have economically prospered and have made a transition toward providing healthcare. California is an example of a state making a medical investment in undocumented workers and their families. San Mateo county uses local tax dollars and nonprofit and hospital funds to cover all low-income children, including the undocumented. These children are viewed as a part of the school population and residents of the community. Providing for them is an investment in community health. San Francisco covers both undocumented children and adults. Likewise, New York City encourages undocumented immigrants to use public health clinics under its sanctuary policy, which guarantees proof of residency will not be asked for. The international implications are unsavory when a wealthy nation does not provide healthcare for a major portion of its population. The first decade of the twenty-first century brought 9/11 and subsequent invasions of Afghanistan and Iraq, allegations of torture, and inhumane immigrant and enemy combatant detention conditions that have soiled America’s reputation. While there is a need to repair international relations, there is much to be done in the homeland as well. Providing adequate healthcare, as necessary, is one such initiative. Resolving the Issue In 2003, Congress appropriated $1 billion over four years to cover health costs for undocumented immigrants. Fifteen thousand health care providers

Health and Fiscal Costs

have signed up for this Medicaid/Medicare program. Doubtless, this initiative is under funded in light of costs reported. The Democratic Party is addressing universal health insurance for adults but does not plan to include the undocumented because of political volatility. CONCLUSION The United States is one of the wealthiest world nations. Can it be true that the general standard of living of the middle, working, and low-income social classes has declined to a point that prevents providing taxpayer-based health insurance and/or care? Is it necessary to socially exclude immigrants in order to take care of our own? Is it possible that medical costs have been pushed to a maximum in a search for wealth rather than affordable healthcare? Or could it be that Americans have lost their sense of compassion if the poor do not appear to be members of their own racial-ethnic group and are presented in the media as preying on the public purse? Perhaps America is in decline and can no longer afford health insurance and care for its population. Regardless of the answer, it is important to find an affordable method of access to health insurance for both the native born and immigrants. Medicare was originally fought as a form of socialized medicine. Today, it is an accepted entitlement although, like Social Security, it is often in jeopardy. Health-insurance reform is being proposed—again—for universal population coverage. Who will gain and who will lose in terms of financial costs is a critical issue for federal, state, and local governments that impacts taxpayers. Given the resources and ingenuity of this nation, one can hope a universal rather than a particularistic system of healthcare will evolve since prompt treatment and prevention are cheaper than waiting for both the native born and immigrants. See also Financial Costs and Contributions; Gender and Family Formation; Public Health; Taxation; Welfare Costs References: Camarota, Steven. “Immigrants in the United States, 2007: A Profile of America’s Foreign-Born Population: Backgrounder.” Washington, D.C.: Center for Immigration Studies, 2007; Capps, Randolph, Genevieve M. Kenney, and Michael E. Fix. “Health Insurance Coverage of Children in Mixed Status Immigrant Families.” Washington, DC: Urban Institute. 2003. http://www.urban.org/url.cfm?ID=310886; DuBard, C. Annette, and Mark W. Massing. “Trends in Emergency Medicaid expenditures for Recent and Undocumented Immigrants.” JAMA: Journal of the American Medical Association 297, no. 10 (2007):1085–1092; Fairchild, Amy L. Science at the Borders: Immigrant Medical Inspection and the Shaping of the Modern Industrial Labor Force. Baltimore: Johns Hopkins University Press, 2003; Goldman, Dana P., James P. Smith, and Neeraj Sood. “Immigrants and the Cost of Medical Care.” Health Affairs 25, no. 6 (2006):1700–1711; Kandula, Namratha R., Margaret Kersey, and Nicole Lurie. “Assuring the Health of Immigrants: What the Leading Health Indicators Tell Us.” Annual Review of Public Health 25(2004):357–76; Kraut, Alan M. Silent Travelers: Germs, Genes and the Immigrant Menace. Baltimore: Johns Hopkins University, 1994; Mohanty, Sarita A., Steffie Woolhandler, David U. Himmelstein, Susmita Pati, Olveen Carrasquillo, and David H. Bot. “Healthcare Expenditures of Immigrants in the United States: A Nationally Representative Analysis.”

| 385

386

|

Health and Residential Segregation American Journal of Public Health 95(2005)1431–1438; Prentice, Julia C., Anne R. Pebley, and Narayan Sastry. “Immigration Status and Health Insurance Coverage: Who Gains? Who Loses?” American Journal of Public Health 95, no. 1 (2005):109–116; Strine, Tara W., Lawrence E. Barker, Ali H, Mokdad, Elizabeth T. Lumen, Roland W. Sutter, and Susan Y. Chu. “Vacination Coverage of Foreign-Born Children 19 to 35 Months of Age: Findings From the National Immunization Survey, 1999–2000.” Pediatrics 110, no. e15 (2002). http://www.pediatrics.org/cgi/content/full/100/2/e15; U.S. Census Bureau. Income, Poverty, and Health Insurance Coverage in the United States. 2006. Washington, D.C.: U.S. Census Bureau, 2007; Van Hook, Jennifer, Susan L. Brown, and Maxwell Nigume Kwenda. “A Decomposition of Trends in Poverty Among Children of Immigrants.” Demography 41, no. 4 (2004):649–670; Wolf, Richard. “Rising Health Care Costs Put Focus on Illegal Immigrants.” USA Today. January 28, 2008. www.usatoday. com/news/washington/2008–01–21-immigrant-healthcare_N.htm.

Judith Ann Warner

HEALTH AND RESIDENTIAL SEGREGATION When immigrants arrive in the United States, some of the more fortunate and educated ones will bypass urban ethnic enclaves and immediately obtain nice homes in middle-class suburban neighborhoods. Less-educated and unskilled immigrants, in contrast, will tend to settle in low income neighborhoods where the housing is cheap. Often, these less fortunate immigrants share their neighborhoods with other co-ethnics and poor African Americans. Social scientists believe that, over time, as immigrants become more “American” (i.e., learn English and acquire the cultural norms of the majority group) and improve their socioeconomic status (SES), they too will be able to fulfill the American Dream of owning a white-picket fence in the suburbs. While the trajectory of geographic and social mobility does occur for some immigrants, the American Dream is often out of reach for the vast majority of poor, uneducated, and dark-skinned immigrants and their children. Being relegated to the least desirable housing and neighborhoods, as is often the case with many low income and segregated African Americans, carries a package of disadvantages that could derail the life chances of immigrants and their U.S.-born children. Regarding health, there are important questions about the way in which residential segregation of low income populations has an independent effect on immigrants’ and other low income population’s access to health services, health-related behaviors, and overall health outcomes. Through understanding how the geographic isolation of impoverished, minority families affect the social, cultural, and physical makeup of neighborhoods, and, in turn, the health of residents within them, we can begin to address some of the inequities faced by immigrants. BACKGROUND In the United States, residence location has important consequences for people’s life chances. Since resources are unevenly distributed across geographic

Health and Residential Segregation | 387

space, where one lives determines the quality housing, neighborhood safety, and public amenities. The residential neighborhoods of low income new immigrants may provide some sense of continuity and social support from co-ethnics originating from the same country or even the same village. Yet the positive social support resulting from living among one’s “own kind’ may not be enough to compensate for the daily stressors and risks associated with residence in disadvantaged, inner-city neighborhoods. Families living in disadvantaged urban neighborhoods experience poor psychological and physical health, are exposed to high levels of crime and violence, and have limited access to quality schools, health facilities, and other health promoting public amenities like safe parks and walkable sidewalks. The close association of race and ethnicity means that racial and ethnic minorities, of whom many are immigrants or the children of immigrants, experience extreme forms of place-based disadvantage, including poor health and higher mortality rates. Socioeconomic Status and Health The socioeconomic health gradient is one of the most robust findings in epidemiology. The gradient refers to the positive relationship between a person’s socioeconomic status (SES) and her or his health. Socioeconomic status is typically measured by personal income, education level, or occupation. Ultimately, the SES health gradient translates into a pattern of poor people tending to have worse health outcomes than their wealthier counterparts. This relationship, while continuous, is not linear. That is, the returns to health from gains in socioeconomic status are more pronounced at the lower end of the SES scale than at the higher end. It is also important to note that not all diseases have an SES gradient. Certain ailments like diabetes, tuberculosis, and cardiovascular disease have strong SES gradients. Unfortunately, these diseases are also associated with high incidence (morbidity) and death (mortality) rates. For example, cardiovascular disease tops the list of the 15 leading causes of death in the United States killing more than 600,000 Americans in 2004 alone, accounting for 27 percent of all deaths (CDC 2005). The positive correlation between SES and health can be found at both the individual and the aggregate level. At the individual level, a person’s socioeconomic status has a direct effect on her or his health. Children from low income families, for example, suffer from more disabilities, are likely to have multiple adverse health conditions, and die at higher rates than children from more affluent families. Likewise, parental education has a direct negative effect not only on parent’s health but also on those of their children. At the aggregate level, neighborhood characteristics such as the proportion of households below poverty or at the median household income affects overall rates of morbidity and mortality. Simply put, people who reside in socioeconomically depressed neighborhoods tend to have, on average, worse health outcomes than residents in more affluent areas. In poor neighborhoods, it is not uncommon to find higher rates of cardiovascular-related illnesses, cancer, low birth weight, infant mortality, asthma,

388

|

Health and Residential Segregation

and exposure to violence. The relationship between neighborhood SES and health holds, even when individual level SES is taken into account. In other words, there is a neighborhood and community effect above and beyond individual socioeconomic status. Neighborhood characteristics such as poverty, population density, and racial/ethnic composition shape the built environment in such a way as to have profound consequences for people’s health and wellbeing. Residential Segregation and Health The relationship between neighborhood SES and health is an indirect one. In other words, neighborhood socioeconomic context impacts the social, service, and physical community environment that all residents, including immigrants, are exposed to, regardless of families’ incomes. The community environment, in turn, shapes individual health through biological, psychological, behavioral, and social risks. There are four main mechanisms whereby neighborhood characteristics affect health: (1) neighborhood institutions and resources, (2) physical environmental stressors, (3) social stressors, and (4) social networks and norms in the community. The types of risk associated with these mechanisms are lack of health care facilities, lead paint in older homes, lack of municipal services (e.g., green spaces and adequate sanitation systems), and crime. These factors illustrate the types of neighborhood conditions that may affect residents’ health behaviors and outcomes. Residential segregation is an important factor contributing to the relationship between neighborhood SES and health. Recent studies have found a positive association between residential segregation and mortality rates for both adults and infants. The relationship between segregation and infant mortality exists for blacks but not for whites. Isolation and concentration are the two features of residential segregation believed to compound adverse neighborhood conditions into worse health outcomes for racial and ethnic minorities, including immigrants. Similar to neighborhood SES, residential segregation has an indirect effect on health. First, segregation reduces the individual social mobility of residents. Since segregation concentrates poverty in certain geographic areas—namely, socioeconomically depressed, inner-city neighborhoods—economic downturns at the national or city-level (e.g., a recession or increased unemployment rate) tend to disproportionately disadvantage residents of segregated neighborhoods. The mobility-leveling effects of residential segregation are particularly acute for African Americans. For example, blacks in highly segregated neighborhoods had worse employment outcomes than blacks who resided in less segregated neighborhoods. Blacks in segregated areas were also less likely to do well in school and more likely to become single parents. It is also believed that residential segregation and concentrated poverty go hand in hand to create cultural environments wherein school disengagement, unemployment, sexual prowess, violence, and other mobility-inhibiting

Health and Residential Segregation | 389

activities are perceived as socially acceptable. Structural barriers and the residential isolation of blacks can give rise to cultural responses that seem to legitimize crime and violence. Ethnographic work comparing so-called decent and street black families in segregated neighborhoods of Philadelphia provided evidence of such cultural adaptations. It is important to note, however, that the cultural explanations these authors give is theoretically different from that espoused by the culture-of-poverty thesis. This approach emphasizes that the problem is not with the dysfunctional culture of individuals or groups per se but rather with the environment and the culture that it produces. Any individual or family, irrespective of race or ethnicity, exposed to the same maladaptive, socially disorganized conditions of segregated urban neighborhoods would likely adapt through similar cultural responses. Consistent with this hypothesis, all of the poor families living in high-risk neighborhoods face the same disadvantages and responded to their circumstances in similar ways, irrespective of race or ethnicity. While the maladaptive cultural responses may be a product of the environment, they nonetheless limit individuals’ ability to escape from impoverished neighborhoods through improvements in SES. Crime and violence are significant outcomes of stress for individuals. Residential segregation can elevate rates of crime and violence in communities through multiple socio-structural pathways. For example, high rates of family disruption and single parent households in segregated neighborhoods is positively associated with higher crime and violence rates for African Americans. In addition to the neighborhood specific conditions that increase rates of crime and violence, there is a ‘contagion effect’ of community level violence. Criminological research indicates that violence and its associated consequences in the neighborhood tend to diffuse across adjacent neighborhoods. The alarmingly high rates of violence in segregated neighborhoods have important public health consequences not only for the residents within these neighborhoods but also for those in surrounding neighborhoods as well. Social support, an important determinant of variations in health status, may also link segregation to disease. There is a negative association between the quantity and quality of social relationships and indicators of morbidity, as well as mortality. Of particular importance, institutions that foster sharing of social capital (information about resources available to co-ethnics, access to ethnic lending institutions and other sources of assistance) and strong co-ethnic support networks are either absent or less effective in segregated, concentrated poverty areas than in nonsegregated communities. Healthcare Facilities and Services in Segregated Neighborhoods Access to healthcare facilities and services is partly a function of individual level socioeconomic status (SES) as well as neighborhood characteristics. At the individual level, access is constrained by income, and in particular, the lack of health insurance to cover medical services. Cutbacks in federal spending on welfare, including Medicare provisions, have further diminished the capacity

390

|

Health and Residential Segregation

of poor families to access healthcare services. The greatest impact has been on legal permanent residents, who cannot apply for government benefits during the first five years of their stay in the United States. Therefore, even if medical facilities are available, few low-income immigrant families can take advantage of the services provided. Undocumented immigrants are at even more of a disadvantage because they have reason to fear deportation if they are exposed. Perhaps even more disturbing is the finding that even when uninsured persons do get access to health services via hospitalization, they are likely to receive less-specialized services and have higher probabilities of death during their stays in hospitals. Residential segregation worsens the relationship between individual SES and access to healthcare by limiting the quality and quantity of health care facilities and highly trained medical professionals available in socioeconomically distressed, segregated communities. The establishment of federally funded community and migrant health centers ensures at least a modest infrastructure of health facilities and services. Yet these centers are often understaffed and the range of health services provided is restricted. Racial prejudice and discrimination on the part of health practitioners, and culture and language barriers are some of the factors that contribute to unequal access to and inequality of health services. Segregation and Racial and Ethnic Health Disparities Through its impact on the social, cultural, and physical environment of neighborhoods, residential segregation is central to America’s racial/ethnic health dilemma. Racial and ethnic health disparities are especially pronounced between blacks and whites in the United States. Heart disease, cancer, diabetes, and HIV/AIDS are the leading causes of death for African Americans. In fact, out of all racial/ethnic groups, the prevalence of hypertension (a precursor to heart disease) is highest among blacks. Numerous studies have found that improvements in individual-level SES diminish but do not eliminate the black-white health gap. That is, at every income level, blacks have worse health outcomes and higher mortality rates than their white counterparts. The effect is especially extreme for low-income black men, who have the lowest likelihood of reaching old age. According to the Centers for Disease Control and Prevention, the life expectancy of the average African American is about 4.6 years less than that of the average American. Health disparity patterns for Latinos and Asians are more differentiated along national origin lines. For example, within the Latino population, Puerto Ricans have high rates of asthma, HIV/AIDS and infant mortality, whereas Mexicans are most afflicted with diabetes. The within-group variation is even greater among Asians given the disparate socioeconomic and national origin groups. In general, however, Asians tend to suffer disproportionately from Hepatitis B, certain forms of cancer, and tuberculosis. American Indians and Alaska Natives have among some of the worst health outcomes, second only to African Americans. Some of the leading causes of death among American Indians and Alaska

Health and Residential Segregation | 391

Natives include Sudden Infant Death Syndrome (SIDS), diabetes, chronic liver disease and cirrhosis, unintentional injuries, gonorrhea, and AIDS. Immigrants, Residence, and Health In general, foreign-born immigrants have better health outcomes and lower mortality rates than their native-born counterparts. Foreign-born status is a protective factor for some Asians and some Hispanic subgroups. For instance, there are lower mortality rates for 46 to 64–year-old Puerto Ricans, Mexicans, and other Latinos residing in neighborhoods with high percentages of foreign-born persons. Mexican and Southeast Asian immigrants also have more favorable birth outcomes, despite high poverty rates. In fact, low birth weight and infant mortality are less prevalent among immigrants. The better-than-expected heath of less educated and low income immigrants is known as the ‘epidemiological paradox.’ Although there are many competing hypotheses addressing the epidemiological paradox, immigrant selection and socio-cultural explanations have been explored most extensively. Research on the epidemiological paradox has also focused primarily on Puerto Ricans, Mexicans, and some Southeast Asian immigrant groups such as Hmong and Cambodians. More recent studies show, however, that other immigrant groups hitherto absent from the epidemiological paradox literature exhibit worse health outcomes with increased time in the United States. For example, more acculturated Arab immigrants in Detroit had higher asthma prevalence compared to recent Arab immigrants and those who were less acculturated. Nevertheless, the protective effect of foreign-born status is not enduring. In general, the longer immigrants reside in the United States, the worse their health becomes. Part of the reason why the initial nativity advantages dissipate over time for immigrants may be due in part to residential segregation in low income neighborhoods. Despite some initial advantages to health, foreign-born immigrants face similar challenges to accessing quality healthcare facilities and services as their native-born co-ethnics and African Americans. A recent study of cervical cancer in immigrant women in Tennessee revealed, for example, that low-income Latina immigrants have substantially fewer pap smears compared to similarly poor, non-Latina women (Scarcini et al. 2003). Since pap smears are critical for detecting cervical cancer, the lack of such health screens increases the likelihood that low-income Latina women with cervical cancer would be undiagnosed and therefore, not receive proper treatment for this disease. Immigrants suffer from certain infectious diseases such as Tuberculosis (TB). The prevalence of TB among foreign-born immigrants has increased almost two-fold within the past 13 years (from 29% in 1993 to 57% in 2006). In contrast, overall rates of TB have declined dramatically for native-born U.S. residents. In 2006 there were less than 6,000 cases of TB recorded for native-born Americans (compared to more than 17,000 cases in 1993) (Center for Disease Control and Prevention 2007). Research on residential segregation and infectious diseases revealed that African Americans and Latinos living in segregated areas were more exposed to

392

|

Health and Residential Segregation

risk factors that may facilitate the transmission of TB compared to whites and Asians (Acevedo-Garcia 2000). In particular, contact with foreign-born immigrants significantly increased the risk of TB for Latinos. This is partly because, as discussed earlier, the number of TB cases has dropped significantly among native-born residents while the rate has increased for the foreign-born. Therefore, contact with foreign-born co-ethnic immigrants in this case would increase the risk of contracting TB for native-born Latinos. Part of the reason why the initial nativity advantages dissipate over time for immigrants may be due in part to residential segregation and occupancy in low-income neighborhoods. The literature on spatial (residential) assimilation shows that initially, immigrants reside in immigrant enclaves, usually located in poor, inner-city neighborhoods, upon arrival in the United States. But as they attain social mobility, acculturate to U.S. culture, and acquire English proficiency, they naturally want to move away from the ethnic/immigrant enclave and instead integrate spatially with members of the host society, namely, white Americans. It has been well documented in that early–twentieth-century, European immigrants and contemporary Asian and Hispanic immigrants more or less followed the trajectory outlined by spatialassimilation theory. In general, Asians and Latinos tend to be less segregated from whites compared to African Americans. However, immigrants who are unable to translate their individual social mobility into residential mobility—due to racial prejudice, discrimination, or preference for co-ethnic neighbors—are exposed to the same place-based neighborhood and health disadvantages that afflict African Americans and native-born co-ethnics. CONCLUSION The public believes that America is an equal-opportunity society in which everyone, citizen or immigrant, majority or minority group member, has the same life chances. The socioeconomic-health gradient means that individuals with low socioeconomic status (SES) and residents of poor, resource-deprived neighborhoods will have worse health outcomes than individuals with high SES and residents of affluent neighborhoods. Given the patterns of socioeconomic stratification and residential segregation in the United States, this means that blacks, racial and ethnic minorities, and certain low-income immigrant populations disproportionately bear the burden of the poor health and higher mortality rates stemming from the SES health gradient. Although foreign-born immigrants generally fare better health-wise than their native-born counterparts, this nativity-status advantage disappears with increased duration in the United States. Moreover, to the extent that foreignborn immigrants co-reside with African Americans and native-born co-ethnics in poor and residentially segregated neighborhoods, they are also afflicted by the SES health gradient and neighborhood social context, such as a higher level of violence. In a similar vein, solutions that address racial and ethnic health disparities among low-income, residentially segregated minorities would also benefit the health and well-being of immigrants as well, but the public needs to develop the social conscience to act.

Health and Residential Segregation | 393

See also Financial Costs and Contributions, Health and Fiscal Costs; Public Health; Residential Segregation References: Acevedo-Garcia, Dolores. “Residential Segregation and the Epidemiology of Infectious Diseases.” Social Science & Medicine 51(2000):1143–1161; Acevedo-Garcia, Dolores. “Zip Code-Level Risk Factors for Tuberculosis: Neighborhood Environment and Residential Segregation in New Jersey, 1985–1992.” American Journal of Public Health 91(2001):734–741; Acevedo-Garcia, Dolores, and Kimberly A. Lochner. “Residential Segregation and Health.” in Neighborhoods and Health, edited by Ichiro Kawachi and Lisa F. Berkman, 265–287. Oxford: Oxford University Press, 2003; Blanchard, Troy C., Jeralynn S. Cossman, and Martin L. Levin. “Multiple Meanings of Minority Concentration: Incorporating Contextual Explanations into the Analysis of Individual-Level U.S. Black Mortality Outcomes.” Population Research and Policy Review 23(2004):309–326; Bond, Stephanie A., Robert A. Hummer, and Richard G. Rogers. “Individual and Contextual Risks of Death among Race and Ethnic Groups in the United States.” Journal of Health & Social Behavior 43(2002):359–381; Centers for Disease Control and Prevention. “Achievements in Public Health, 1900–1999: Decline in Deaths from Heart Disease and Stroke—United States, 1900–1999.” Morbidity and Mortality Weekly Report 48(1999):649–656; Centers for Disease Control and Prevention. “Highlights in Minority Health and Health Disparities: Hispanic/Latino Heritage Month, September/October.” Centers for Disease Control and Prevention. Atlanta. November 10, 2007. Georgia. http:// www.cdc.gov/omhd/Highlights/2006/HSept1506.htm. Centers for Disease Control and Prevention. “Highlights in Minority Health and Health Disparities: Asian American/ Pacific Islander Heritage Month, May.” Centers for Disease Control and Prevention. Atlanta, Georgia. November 10, 2007. http://www.cdc.gov/omhd/Highlights/2006/HMay06 AAPI.htm; Centers for Disease Control and Prevention. “Highlights in Minority Health and Health Disparities: American Indian/Alaska Native Heritage Month, June.” Center for Disease Control and Prevention. Atlanta, Georgia. November 10, 2007. http://www. cdc.gov/omhd/Highlights/2006/HNov06.htm; Centers for Disease Control and Prevention. “Highlights in Minority Health and Health Disparities: African American History Month, February.” Centers for Disease Control and Prevention. Atlanta, Georgia. November 10, 2007. http://www.cdc.gov/omhd/Highlights/2007/HFeb07.htm; Centers for Disease Control and Prevention. “U.S. TB Cases by Birthplace.” Center for Disease Control and Prevention. Atlanta, GA. November 10, 2007. http://www.cdc.gov/Data Statistics/2007/tuberculosis/; Charles, Camille Z. “The Dynamics of Racial Residential Segregation.” Annual Review of Sociology 29(2003):167–207; Farley, Tillman, Al Galves, L. Miriam Dickinson, and Maria J.D. Perez. “Stress, Coping, and Health: A Comparison of Mexican Immigrants, Mexican-Americans, and Non-Hispanic Whites.” Journal of Immigrant Health 7(2005):213–220; Grzywacz, Joseph G., David M. Almeida, Shevaun D. Neupert, and Susan L. Ettner. “Socioeconomic Status and Health: A Micro-Level Analysis of Exposure and Vulnerability to Daily Stressors.” Journal of Health and Social Behavior 45(2004):1–16; Johnson, Mary, Jerome Nriagu, Adnan Hammad, Kathryn Savoie, and Hikmet Jamil. “Asthma Prevalence and Severity in Arab American Communities in the Detroit Area, Michigan.” Journal of Immigrant Health 7(2005):165–178; Massey, Douglas S., and Nancy A. Denton. American Apartheid: Segregation and the Making of the Underclass. Cambridge: Harvard University Press, 1993; Padilla, Yolanda C., Jason D. Boardman, Robert A. Hummer, and Marilyn Espitia. “Is the Mexican American ‘Epidemiologic Paradox’ Advantage at Birth Maintained through Early Childhood Development?” Social Forces 80(2002):1101–1123; Robert, Stephanie A. “Socioeconomic Position and Health: The Independent Contributions of Community Socioeconomic Context.” Annual Review

394

|

Hispanic Migrants in Children’s Literature of Sociology 25(1999):489–516; Sampson, Robert J., Stephen W. Raudenbush, and Felton J. Earls. “Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy.” Science 277(1997):918–924; Scarinci, Isabel C., Betinna M. Beech, Kristen W. Kovach, and Terry L. Bailey. “An Examination of Sociocultural Factors Associated With Cervical Cancer Screening Among Low-Income Latina Immigrants of Reproductive Age.” Journal of Immigrant Health 5(2003):119–128; Viruell-Fuentes, Edna. “Beyond Acculturation: Immigration, Discrimination, and Health Research among Mexicans in the United States.” Social Science & Medicine 65(2007):1524–1535; Williams, David R., and Chiquita Collins. “Racial Residential Segregation: A Fundamental Cause of Racial Disparities in Health.” Public Health Reports 116(2001):404–416.

Zoua M. Vang HISPANIC MIGRANTS IN CHILDREN’S LITERATURE In virtually all countries, each generation, age, and era has or has had problems with immigration issues. Those who remain in one place often feel threatened by influxes of strangers, of foreigners, of the other. Why are these people here? Do they want to take our jobs away from us? Do they want to burgle our homes and take our possessions from us? Do they want to marry our daughters? Why, indeed, are they here? The social integration of the new immigrants is a controversial topic that new native-born generations are addressing. Questions of what the presence of immigrants, especially Hispanics, means have been a recent subject in children’s literature. When socializing children to live in a more complex society, information needs to be examined for neutrality and negative stereotyping. Many school districts are adopting teaching about multiculturalism as a curricula goal, but more-conservative districts have yet to adopt it. For individuals seeking books at this level, issues of representation and objectivity must be considered. While nonfiction tends to be accurate, fiction veers between extremes of realism and stereotyping. Inaccurate representations can be over-idealized in a positive or a negative way. In examining this literature, one finds that because it is for children, it does not deal with certain immigration issues. Given the reality of the new immigration, non-stereotypical books provide a basis for furthering an understanding of cultural diversity and legal or undocumented migration from the perspective of children. BACKGROUND The early political philosophy of isolationism in the early years of United States did not survive the mid-part of the twentieth century. Any shred of isolationism remaining in the United States has been all but eliminated during the more than 60 years since World War II. Figuratively, the world is getting smaller every day because of the telecommunications revolution. Immigrants, both legal and undocumented, continue to leave their homes and cross our borders, frequently out of a desire to improve their lives and to provide a better lifestyle for their children. Thus, as a nation in the twenty-first century, we must accept the inevitable and

Hispanic Migrants in Children’s Literature

be certain that cultural diversity is a goal in the curricula of all school districts. Whereas the bulk of books concerning immigration issues is to be found in adult literature, children’s literature has an increasing share of its own immigration information and stories in both fiction and nonfiction formats. The jury is still out as to whether the term cultural diversity or multicultural is preferable when discussing literature that covers the non-Western European ancestry, non-English speaking population of the United States. Of course, literature that deals with people and cultures in other countries is best described as international literature rather than foreign literature (the previously accepted term) primarily because the word foreign is derogatory. For the purposes of discussion of the issue of immigration in children’s literature, the terms multicultural and international are both used. There are many immigrant cultural groups covered in children’s literature. This discussion of the representation of immigration in children’s literature is limited to Hispanic immigration issues, both domestic and international. NONFICTION In the realm of nonfiction, two distinct subgenres emerge that present information in rather straightforward, informative ways. These subgenres can be classified as biographies and histories. Among the biographies is Beth S. Atkin’s book, Voices from the Fields: Children of Migrant Farmworkers Tell Their Stories. Atkin collected stories from nine Mexican-American migrant families in Salinas, California. The parents are all immigrants (some legal, some not) but many of the children were born in the United States and are, thus, legal citizens of this country. The interviews and photographs are factual and devoid of stereotypes. They represent individuals engaged in the same field of work, that is, migrant farm labor. A similar book is Margaret Poynter’s The Uncertain Journey: Stories of Illegal Aliens in El Norté. This book contains a dozen or more stories of sin papeles (undocumented immigrants) told to the author as she collected data and conducted interviews with migrants from Mexico, El Salvador, Ecuador, Haiti, Guatemala, Jamaica, and Honduras. Unfortunately, the number of significant Spanish language errors in the text causes the bilingual English/Spanish reader to distrust the complete accuracy of the author’s accounts. In addition, the stories’ endings are so unrelentingly successful as to be Pollyannaish, and the reader tends to be skeptical. Interestingly, in both of these books, it is difficult to ascertain whether the accounts are, in fact, stereotyped since they are purportedly the words of the actual subjects describing their own lives. Under the sub-genre of historical nonfiction multicultural books, Miranda Hunter’s book, Latino Americans and Immigration Laws: Crossing The Border, is part of a sixteen-book series entitled Hispanic Heritage. The book explores the reasons why Hispanics/Latinos are the fastest-growing ethnic group in the United States. Hispanic immigration has been ongoing for several centuries and the early settlers in the former Spanish and then Mexican Southwest and California, for example, are no longer immigrants in any sense of the word although aspects of the various Hispanic cultures (including the use of the Spanish

|

395

396

|

Hispanic Migrants in Children’s Literature

language) have survived and have been retained intact much longer than similar cultural practices in virtually all European groups. Of course, not all Hispanic immigrants are early arrivals since movement began after 1900 and immigration, both legal and undocumented, continues. Hunter’s book discusses Latino immigration patterns, risks faced by both legal and undocumented migrants, U.S. immigration law, and controversies regarding changing the law. María de los Angeles Torres’s The Lost Apple: Operation Pedro Pan, Cuban Children in the US and the Promise of a Better Future is an another example of the historical multicultural genre. This is an excellent account of the wave of Cuban children sent alone without adult members of their families to the United States during the late 1950s and early 1960s in order to escape the political unrest in postcommunist Cuba during that time. The vast majority of these children became well educated, and, subsequently very successful in both careers and finances here in their adopted country. The book is straight-forward and contains no stereotyping. This book, like other children’s nonfiction, deals with the realities of immigration in a format accessible to children. FICTION Turning to fiction, one finds far more stereotyping than in the various nonfiction books discussed above. This analysis does not discuss the genre of traditional literature since traditional tales are largely drawn from archetypal characters, settings, and plots. Traditional tales are often broadly stereotyped with no harm done to the validity of the literature. Modern stories, however, are a totally different situation. Across the Great River is Irene Beltran Hernandez’s first juvenile novel. The author, born and raised in North Texas, apparently looked at a map of the Texas/ Mexico border and chose Eagle Pass, Texas (and Maverick County) as the setting for most of her novel. However, the author of this entry was born in Eagle Pass, Texas and raised on a small ranch in Maverick County. Because of my own life-long knowledge of the region, I am able to discern, as most people could not, that her description of the area is largely fantasy. Furthermore, the book’s title reveals a nonborder-American translation of the river’s name since Mexican nationals universally refer to Texas’ southern boundary, the Rio Grande (literally Large River), as el Rio Bravo (literally Wild River) These jarring little disconnects are not as problematic as are the strongly stereotyped characters in the book. The coyotes (human smugglers) are all greedy, unscrupulous, and/or uncaring. The U.S. Border Patrol officers are reckless and trigger-happy. The mother in the family of four being led by their coyotes across the Rio Grande is wounded by a gunshot (presumably fired by a U.S. Border Patrol agent) while she is stoically wading/swimming the river with her young son clinging to her back. The father disappears and is sought after throughout the rest of the novel. Thus, Ana, the young girl, her wounded mother, and small brother must flee and/or seek assistance. Two of their coyotes take the fleeing family to the isolated ranch home of a grossly obese, physically repugnant curandera (faith healer) who turns out to have the proverbial heart of gold and

Hispanic Migrants in Children’s Literature

who becomes the family’s guardian angel. There is, of course, the requisite bad guy who beats and rapes his way to his own death via a speeding vehicle that acts as his own deux ex machina. Through the intervention of the curandera who is able to call-in favors owed to her by various people, the family is reunited in their original small village in Mexico with the missing father who had been languishing in a Mexican jail all this time, and presumably, they live happily ever after back in their native land. Esperanza Rising by Pam Muñoz Ryan is a historical fictional retelling of the author’s grandmother’s immigrant experiences during the 1930s traveling from Mexico to southern California. The young protagonist, Esperanza (Hope in English), is an only child and, unlike most fictional Mexican immigrants, not from a disadvantaged, poverty-stricken background. In fact, her wealthy father kept his small family in luxury on a vast, very profitable ranch in Mexico until his untimely assassination by bandits on the night of Esperanza’s thirteenth birthday party. In order to flee from the increasingly more threatening attentions of the greedy brothers-in-law/uncles who want to claim both the grieving widow and the land of their deceased half-brother, Esperanza and her mother, using documentation obtained by family members (two nuns), accompany the family of former ranch employees (ranch hand, cook, and their young son who is approximately Esperanza’s own age) as they travel north to California. Esperanza has to grow up very fast. Going from their previous almost fairytale existence to the hard, physical labor of the California agricultural sector, the two women must make major changes in both lifestyle and in their emotional/ mental views of the world, especially since shortly after arriving in California, the Great Depression begins in earnest and their lives become even more difficult before getting better. The book won the coveted Pura Belpré Award in 2002 and is very well written with a minimum of stereotypes. Ofelia Dumas Lachtman’s novel, The Girl from Playa Blanca, is filled with stereotypes—some easy to spot, some more subtle. The story begins in Baja California (Mexico) in a small, Pacific-oceanfront community and then moves to the California-Mexico border and from there on to Los Angeles. We, the readers, are told that Carlos, aged seven, is an American citizen because his Mexicannational mother gave birth to him (she died shortly thereafter) in Los Angeles, but we never know the exact citizenship status of his seventeen-year-old sister, Elena. She has papers (a birth certificate? A form of green card?), but she doesn’t seem to have ever lived in the United States. The two children cross easily from Mexico into the United States. An older Anglo woman who had befriended and mentored Elena back in Playa Blanca, is a stereotypical American artist who has moved to Mexico because she loves the climate and the people. She provides a letter of introduction, which solves most of Elena and Carlos’s immediate problems after they arrive in Los Angeles in search of their father, who had ceased writing almost six months before. Whereas most immigrant stories of Hispanics seeking a better life in the United States of America depict hair-raising tales of danger, corruption, and desperation, the teenager and young boy in this story have only minimal difficulties leaving their small, poverty-stricken village in Mexico to negotiate,

|

397

398

|

Hispanic Migrants in Children’s Literature

apparently quite skillfully, the intricacies of a huge city in a foreign country. Th e reader is led to believe that, up to this point, Elena has never been out of her small village and had learned her almost flawless English from the Anglo artist back in Playa Blanca. When even the people living in the house at the return address of their father’s monthly letters have no notion of who he was or where he had gone, Elena does not feel particularly threatened. She merely picks up her suitcase, takes her little brother by the hand, and searches for someone, anyone, who might know her father. The young travelers are intercepted by a stereotypically gruff, but kindly, cop and his sidekick partner on the beat. After they take Elena and Carlos to the owner of a small neighborhood Mexican food restaurant who remembers her father well, but who has no idea where he has gone, the policemen grab doughnuts and leave on an emergency call. The restaurant owner promises the cops that after feeding Elena and her brother a typical Mexican meal, he will see that they get to the home of the Dr. and Mrs. Montalvo addressed in the letter of introduction. The owner’s daughter, a sullen, sour, tough gang member (she is one of Las Brujas—The Witches), falls into just about all of the stereotypes of the rough, modern Latina girl who—albeit grudgingly and with little grace—still obeys most of her traditional Mexican father’s requests. The Montalvo family continues the pattern of stereotypes. Dr. Montalvo is a Geology Professor, very arrogant but good-looking. Mrs. Montalvo is beautiful but totally under the control of her domineering husband. Because of her failing vision, she is in need of a companion to read to her and drive her to the places to which she needs to go. Their young son Mario is the same age as Carlos, does not speak Spanish, and is spoiled and coddled by his mother. An older, very good-looking son, David, from Mrs. Montalvo’s first marriage is a bit older than Elena and is currently a law student at the university. He and his stepfather figuratively circle each other in the classic old bull versus young bull stance of two competing males, one powerful and one whose power is developing and who will, no doubt, live up to his potential in the near future. Once at the home of the Montalvos, Elena is mistaken as a job applicant for the position of companion and chauffeur for Mrs. Montalvo and is, amazingly, given the position although she is only seventeen years old and has her sevenyear-old brother in tow. Stereotypes abound at every turn. Mrs. Montalvo, the widow of a famous Mexican film star, is dependent upon others for both her comfort and her health although her late-husband’s estate provides much of the household income. Her older son knows that his stepfather is up to no good, but he cannot convince his mother to get rid of Dr. Montalvo. The domestic servant, a virtually illiterate Mexican immigrant, becomes almost violently jealous of Elena when the Señora gives Elena some excellent quality clothes that Mrs. Montalvo no longer wears. After a very short time, Elena obtains a California driver’s license, and her driving Mrs. Montalvo’s Cadillac is almost more than the maid can stand. Next there is a vendetta between Dr. Montalvo and Elena’s hardworking but honest father, Miguel Vargas (who, unbeknownst to Elena, are first-cousins) over a small ranch in the brush country of Tamaulipas, Mexico; the ranch was inherited by Vargas decades before, but Montalvo has been

Hispanic Migrants in Children’s Literature

plundering it for indigenous Mexican artifacts unscrupulously and illegally with the assistance of dangerous stereotypical villains. The story continues piling one stereotype on top of another until the end when the teenager, Elena, shows that she will be the strength and emotional support of the newly re-widowed Mrs. Ana Montalvo and her two sons. Patricia Beatty presents a much different story in Lupita Mañana, the story of thirteen-year-old Lupita Torres and her fifteen-year-old brother, Salvador’s (Sal) brutal journey to immigrate to the United States. The Torres children, their three younger siblings, and their parents live a hand-to-mouth existence on a tiny plot of land outside the coastal city of Enseñada in Baja California. The father crewed a fishing boat for a wealthy fisherman until he was swept overboard during a storm and drowned at sea. The little family is now desperately poor since the mother’s wages as a hotel chambermaid do not provide enough income to maintain six people. The mother decides that the older two children must make their way north to her well-to-do sister’s home in Indio, California. Of course, there is little money available to pay for a good coyote to smuggle them safely into the United States. Lupita is dressed as a boy (for protection against would-be rapists, one must assume) and the two teenagers begin to walk north. An interesting aspect of this book is the fact that the route Ms. Beatty sends her characters on really exists, and much of it might well have been in use by the indigenous peoples of precolonial through modern, pre-wall time Baja California and California for hundreds of years. Using a Rand-McNally Atlas, the Torres’ route can be easily calculated: Walk from Enseñada north to Tijuana = approximately 100 miles Ride by truck then train north to Los Angeles = approximately 120 miles Walk and ride east to Colton = approximately 55 miles Walk southwest to Indio = approximately = 60 miles Total journey = approximately 335 miles In Tijuana, Sal arranges for a coyote to smuggle them across the border, but neither Sal nor Lupita trust the man. Furthermore, they don’t have the exorbitant fee he is asking for. They stowaway in the coyote’s truck and follow him and the group of illegal immigrants whom he is leading into California. Bandits assault the group, an old man is killed, the U.S. Border Patrol arrives, and they arrest all of the grown immigrant men and require the woman and children to return to Mexico. Back in Tijuana, Lupita remains hidden during the day while Sal tries to pick up work where he can. After a week of near starvation, Sal happens to meet a fellow he had known from home who offers to smuggle them into California for the price of their father’s crucifix, which Sal is wearing, and his own treasured knife. This time, hidden in a load of vegetables, the two successfully cross into the United States. They are then north of Tijuana but south of Los Angeles and haven’t the faintest notion of how to get to Indio. Another illegal immigrant shows them how to hide in a freight car. However, as luck would have it, the man, his wife, and children are apprehended by the U.S. Border Patrol and removed from the train, although Lupita and Salvador escape detection.

|

399

400

|

Hispanic Migrants in Children’s Literature

They remain on the train until it has stopped. Cautiously, they leave the train in what they discover is Colton, California where a friendly Mexican American befriends them. He warns them that their lack of English is going to be a major problem since la migra (Immigration authorities including the U.S. Border Patrol), will know instantly that they are illegals (migrants who entered without paperwork and inspection). Through this friendly man, they obtain employment. Salvador is hired as a dishwasher in the man’s brother’s café, and thirteenyear-old Lupita is given a job as a maid in the adjoining motel. They are able to pay for forged papers as well as food and rent and are even able to send a bit of money home to their mother and siblings. Although this is not a perfect situation, it is interrupted when the U.S. Border Patrol appears looking for undocumented immigrants. Salvador realizes that they cannot stay and must continue their trip and head for Indio as soon as possible. The safest way is to walk, so walk they do. They hide during the day and walk during the night. After two nights on the road, they are pursued in a terrifying sequence by a pick-up truck full of dangerous joyriders with guns who chase them through the darkened countryside taking pot-shots at them until the men finally get bored with the game and veer off toward the highway. Upon finally reaching their aunt’s house, they are shocked to discover that she has not been telling her sister, their mother, the truth. She is not well-to-do and actually lives in a poor neighborhood in a ramshackle house barely large enough for herself, her lazy (really worthless) husband, and their five children, only one of whom will have anything to do with their “wetback” cousins, Lupita and Sal. After the pair promise to work in the fields along with the aunt and pay rent, the uncle allows them to remain. Thus begins a life of long, hot, hours of manual labor. Lupita continues to send money (formerly called remittances) home regularly, but another cousin persuades Sal to give up the agricultural labor. Work in town lures him away from his responsibility. The flashy clothes, flashy cars, and loud music are more than Sal can resist, and he leaves his aunt’s house to move in with the cousin who introduces him to fast women and marijuana. Soon his new lifestyle is taking most of his time and his disposable income, and he no longer contributes to his mother and sibling’s well-being. The climax comes at a Valentine’s Day dance, which the aunt insists the cousin find a young man to take Lupita to. Lupita wears the beautiful velveteen dress her aunt had, unexpectedly, given her for the Feast of Epiphany and is truly excited and happy until her so-called-date dances only once with her and then disappears. The heat and noise make Lupita want to escape, so she goes into the women’s restroom to freshen up. While she is washing her face, the music abruptly stops and cries of “La migra! La migra! ” alert her to the arrival of the U.S. Border Patrol, who are raiding the party. She is small enough to slip through the high, narrow window and escapes capture. After the confusion dies down, she overhears the cousin and her date laughing about Salvador being caught and their speculation that she, too, must have been caught since they haven’t seen her. She challenges the two and, after giving them a thorough tongue-lashing, they return her to her aunt’s house.

Hispanic Migrants in Children’s Literature

Although sad and homesick, Lupita tells her aunt that she wants to remain in Indio, to work in the fields, to pay rent, and to continue sending money home to her mother. She is more and more aware that the only way she can be successful in the United States will be if she can learn English—but how? The one cousin who has been nice to her enters the room with a flashlight and a book and proceeds to begin teaching Lupita English. Thus, the story ends. In examining Hispanic representations in children’s fiction, one can arrive at the conclusion that some books are very stereotyped while others are accurate. They do take a humanitarian viewpoint and present the issue of migration in a nonthreatening way that children can understand. As a result, these are not necessarily books for conservatives in favor of restricting immigration. The issue of why people should be kept out is complex and for maturing teenagers and adults. In addition, the U.S. Border Patrol is often presented as a threat, as undocumented children would see it, rather than in their other role of protecting children from risk in the increasingly dangerous crossings that are undertaken today. Nevertheless, these children’s books represent the reality of immigration enforcement from the perspective of the impacted children, and the threat is often non-stereotypical although no humanitarian view is taken of the rescue work of la migra. PICTURE BOOKS Picture books and other books for younger readers rarely deal directly with immigration issues although they do often deal with them indirectly through subtlety and inference. Because these books are for the youngest readers, they often emphasize the journey and social reception awaiting children in the United States rather than making a permanently frightening issue of undocumented status. These books are explanations of both legal and undocumented children’s lives and typically, although not always, do not deal with immigration restriction. They are humanitarian rather than exclusionary in orientation. One example is My Name Is Jorge: On Both Sides of the River by Jane Medina, illustrated by Fabricio Vandenbroeck. The book is a collection of 27 poems (in both English and Spanish). The main character, Jorge is very unhappy when the teachers and students at his new elementary school in the United States call him George. Slowly, through his friendship with a classmate, Jorge begins to fit into the strange American way of life. A similar story, albeit a 64-page beginning chapter book instead of a picture book, is My Name is Marîa Isabel by Alma Flor Ada. In this story, the young Puerto Rican protagonist is upset when her new teacher in the United States decides to call her Mary since the class has two Marîa’s already. The child does not recognize her new name and is misjudged as being inattentive and uncooperative. Not until she is able to explain the meaning of her name in an essay assignment, “My Greatest Wish,” does the teacher understand how significant her name is and make appropriate amends. My Diary from Here to There/Mi diario de aqui hasta alla by Amada Irma Perez contains parallel English/Spanish texts. The young girl’s family has decided

|

401

402

|

Hispanic Migrants in Children’s Literature

to move from Cuidad Juárez, Chihuahua, Mexico (across the Rio Grande from El Paso, Texas) to Los Angeles, California to look for work. Although her brothers are excited by the prospect, she is apprehensive and keeps a diary in which she expresses her feelings and concerns about the move. Another Texas/Mexico-Crossing-the-Rio-Grande book is Friends from the Other Side/Amigos del otro lado by Gloria Anzaldua, illustrated by Consuelo Méndez with both English and Spanish text. Prietita (the heroine of Prietita and the Ghost Woman/Prietita y la llorona by Gloria Anzaldua, illustrated by Maya Christina Gonzalez), a Mexican American Texan, makes friends with a young mojadito (a pejorative term meaning literally little wetback) who has recently crossed the Rio Grande with his mother. Prietita takes Joaquin and his mother to her friend, the local curandera, to heal the sores on his arms. While there, the unexpected arrival of the U.S. Border Patrol creates tension. The curandera hides the would-be immigrants and the reader is left with hope that they are now safe and that Joaquin and his mother will, hopefully, be able have a better life than the one they left in Mexico. Immigrants come from everywhere, not merely from Mexico and Puerto Rico, of course. Two books in parallel English/Spanish text addressing immigrants from El Salvador illustrate this point well. A Movie in My Pillow/Una pelicula en mi almohada: Poems/Poemas by Jorge Argueta contains poems describing Jorgito’s move from El Salvador to the Mission District of San Franscisco. Although his new home is nice enough, he cannot forget the spectacular beauty of his former home. In most immigrant families, if they cannot come together, the father traditionally comes ahead, working, saving money, and finally sending for his family. However, in u by René Colato Laínez, the boy and his mother have to leave war-torn El Salvador without his father. For one reason or another, the father’s visa is repeatedly refused until the boy, who misses his father very much, writes a composition about his longing for his father. He is invited to read it over the air and the radio program causes the wheels of justice to move and, as a result, the family is soon reunited. Another child awaiting reunion with his father is Chuy in Muffler Man/El hombre mofle by Tito Campos, illustrated by Beto Alvarez and Lamberto Alvarez. Chuy, however, is not safely in the United States awaiting his father’s to arrival from Mexico. Instead, Chuy’s father is in the United States and Chuy is the one left behind in Mexico. Working in order to earn enough money to rejoin his father, Chuy goes to the owner of the muffler shop where his father had worked before heading north, and talks him into hiring him to do odd jobs. While working there, Chuy discovers to his surprise that the title of the book, The Muffler Man /El hombre mofle, describes both his father and his father’s artistic work, since he had not known that the sculptured figure of a man made out of discarded mufflers, tin, and metal that stood at the entry of the muffler shop was made by his father. When the two are finally reunited, life is not automatically easy, but Chuy helps his father scrounge scraps of metal, old mufflers, et cetera in order to continue his folk art and ultimately to prosper in their new home. This story exemplifies the old saying, one man’s trash is another man’s treasure.

Hispanic Migrants in Children’s Literature

CONCLUSION Immigration will always be an issue in literature and culture. Extensive debate was carried out before the North American Free Trade Agreement (NAFTA) was enacted, and the debate continues. Should the United States have guest-worker programs or should it not have guest-worker programs? Should the U.S.-Mexico border exist as a physical barrier from the Gulf of Mexico to the Pacific Ocean? Should higher visa quotas be enacted? A humanitarian viewpoint emphasizes the hardships that children and teens face without documentation and the process of acculturation that all young children go through. The North American Free Trade Agreement (NAFTA) opened the economy but did not provide visitation privileges for most Mexicans, who are of lower socio-economic status and kept out of the United States because of the concern that their poverty would lead then to over-stay a visa. A prospective Central American trade agreement would keep the border closed as well. For children, an open border is the least threatening option, and there is a contingent of the public that would agree. Whatever the adults decide to do, the children are voiceless in any political, physical, and/or spiritual implications. Nonfiction books provide a narrative of the law, discrimination, and immigrant hardship for children. Fictional children’s literature dealing with immigration handles problems at a different level than the adult literature does. The nonfiction books discussed herein are filled with accurate facts and, with a few exceptions, are mostly nonjudgmental. One must assume that the younger the child, the more incomplete her or his ability to understand everything that is going on in the world including immigration issues, but as they mature, each child’s ability to internalize and understand expands. Children’s literature, by and large, reflects this increasing maturity and understanding. When not stereotypical, these books allow children to understand the world from the point of view of someone from another culture. For the very young reader, picture books frequently deal with loneliness and problems in adjustment, but more often than not, the story takes place in the midst of a loving supportive family. Older children can more easily handle loneliness and adjustment issues, but they can also deal with that delicious frisson of vicarious excitement when reading about peers dealing with danger, desperation, and dishonesty, often without the support of adult family members. Thus, so long as immigration continues to be a global issue, immigration in children’s literature will (and should) continue to be a topic worth writing about and worth reading (as long as it is not stereotypical) regardless of the age of the reader. See also Media Representation; Undocumented Immigration Policy References: Ada, Alma Flor. My Name is Marîa Isabel. Illus. K. Dyble Thompson. New York: Aladdin, 1995; Anzaldua, Gloria. Friends from the Other Side/ Amigo del otro lado Illus. Consuelo Mendez. Franscisco: Children’s Book Press, 1993; Argueta, Jorge. A Movie in My Pillow/Una pelicula en mi almohada: Poems/Poemas. Illus. Elizabeth Gomez. San Francisco: Children’s Press, 2001; Atkin, S. Beth. Voices from the Fields: Children of Migrant Farmworkers Tell Their Stories. Boston, MA: Little, Brown and Company, 1993; Beatty, Patricia. Lupita Mañana. New York, NY: Harper Collins, 2000; Campos, Tito. Muffler Man/El hombre mofle. Illus. Beto Alvarez and Lamberto Alvarez. Houston,

|

403

404

|

Human Trafficking TX: Arte Publico Press, 1991; Hernandez, Irene Beltran. Across the Great River. Houston, TX: Arte Publico Press, 1991; Herrera, Juan Felipe. Super Cilantro Girl. La Supernina del Cilantro. Illus. Honorio Robledo Tapia. San Francisco, CA: Children’s Book Press, 2003; Hunter, Miranda. Latino Americans And Immigration Laws: Crossing The Border (Hispanic Heritage). Broomall, PA: Mason Crest Publishers, 2005; Jimenez, Francisco. La Mariposa. Boston, MA: Houghton Mifflin, 1998; Lachtman, Ofelia Dumas. The Girl from Playa Blanca. Houston, TX: Piñata Books, 1995; Laínez, René Colato. Waiting for Papá: Esperando a Papá. Illus. Anthony Accarato. Houston, TX: Piñata Books, 2004; Medina, Jane Vandenbroeck. My Name Is Jorge: On Both Sides of the River. Illus. Fabricio. Honesdale, PA: Boyds Mills Press, 2004; Miller, Elizabeth. Just Like Home—Come en Mi Tierra. Trans. Teresa Mlawer. Illus. Mira Reisberg. Chicago, IL: Albert Whitman & Company, 1999; Perez, Amanda Irma. My Diary from Here to There/Mi diario de aqui hasta alla. Illus. Maya Christina. San Franscisco, CA: Children’s Book Press, 2002; Poynter, Margaret. The Uncertain Journey: Stories of Illegal Aliens in El Norte. New York: Atheneum, 1992; Reif, Tana. The Magic Paper. Belmont, CA: David S. Lake Publishers, 1989; Robleda, Margarita. Paco: A Latino Boy in the United States. Illus. Danilo Ramires Jr. Miami, FL: Santanilla USA Publishing Company, Inc. 2004; Ryan, Pam Muñoz. Esperanza Rising. New York: Scholastic Publishing, 2000; Torres, María de los Angeles. The Lost Apple: Operation Pedro Pan, Cuban Children in the U.S., and the Promise of a Better Future. Boston, MA: Beacon Press, 2003.

Frances Gates Rhodes

HUMAN TRAFFICKING Human trafficking is perhaps one of the most horrifying crimes against humanity. It has been described as a modern-day form of slavery, and it involves the exploitation of humans for the sexual gratification of others and/or for any form of labor. Human trafficking essentially involves enslavement or involuntary servitude whereby victims are forced to labor against their will. Various control techniques, such as severe physical punishment, are in place not only to prevent escape but also to inhibit victims from testifying against their traffickers. Worldwide estimates indicate that 21 million people are victims of human trafficking (Farr 2005). Although these estimates are astonishing, some believe that they underestimate the true nature of this global problem. Admittedly, no one knows for certain how many victims fall prey to human trafficking because trafficking is a clandestine crime. Due to this, it is uncertain as to the extent to which organized criminal syndicates, such as the Russian Mafia or the Chinese Triads, are involved in the sale and enslavement of human beings. There are some scholars who believe that organization is needed not only to transport victims from one continent to another but also to facilitate their illegal entry into another country. Such organization is believed to be a characteristic associated with established and structured organized criminal groups. Opposing views, however, exist. Because human trafficking is a highly lucrative business enterprise, any savvy individual wishing to make a profit could establish a small-scale trafficking industry. Thus, the transportation, sale, and enslavement of humans could be facilitated by individual entrepreneurs. Because human trafficking can

Human Trafficking | 405

be operated by both criminal syndicates and by individual entrepreneurs, the police have had difficultly identifying the victims of this crime. Other factors that increase such difficulty are that victims are too afraid, too isolated, and too closely watched to report crimes against their traffickers. However, difficulty in identifying victims may also be attributable to the complacent attitude of police agencies and a belief that most victims are not true victims of human trafficking and do not need rescue and assistance. Thus, the uncertainty regarding the number of trafficking victims may be largely due to inaction by police authorities. Worse yet, it may be partly due to corrupt police officials who are actually involved in human trafficking operations. DEFINING HUMAN TRAFFICKING Human trafficking is a criminal offense under a variety of federal and international laws. It violates the Victims of Trafficking and Violence Protection Act (VTVPA)—a United States federal law that incorporates the primary provision of the 13th Amendment, which abolishes slavery. Various immigration and organized crime laws (racketeering laws) are frequently broken when traffickers, particularly those with organized crime connections, illegally transport a victim into the United States. The Protocol to Prevent, Suppress and Punish Trafficking in Person, Especially Women and Children—an international law—negatively sanctions trafficking in humans. The Protocol defines human trafficking as the recruitment, transportation, transfer, harboring, or receipt of persons, through the threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim, for the purpose of exploitation (United Nations 2001). Exploitation may include forced prostitution, forced labor, any form of slavery, and/or the removal of organs. Human trafficking can be best understood as a crime that develops over a series of stages. The first stage, which is not necessarily connected to the criminal actions of the trafficker(s), involves factors that make individuals vulnerable to this crime. Most trafficking victims share similar characteristics—dire economic circumstances, hopelessness, and desire for a better life. Poverty has been identified as a major reason that makes victims vulnerable to human-trafficking schemes. This component predisposes individuals to search for economic opportunities without being fully aware of potential hazards or to disregard potential dangers. They fall prey to false promises of employment simply because of a desire for a better life. Often this motive is not a selfish aspiration but one that involves the health and well-being of family members. Indeed, the economic situation most victims find themselves in is not self-imposed, meaning that the victim does not have stable employment simply because she or he refuses to work for a small monetary gain. This situation is the result of economic instability in their countries and a limited number of available legitimate jobs. These individuals are relatively powerless to change their economic situation unless they seek employment, sometime illegitimate employment, in other regions of the country or abroad.

406

|

Human Trafficking

Although poverty is a principle component that contributes to victims’ vulnerability, in some West African societies culture is a primary factor that leads to the trafficking of children. It is customary for families of a lower socioeconomic status to exchange their children’s domestic services for education. Although not destitute, these families do not have the political or social influence needed to provide their children with schooling. Thus, some will give their children to a wealthier family in the hope that their domestic service to that family will be exchanged for the child’s education. For others, powerlessness may lead to selling their children to wealthier families. Regrettably, the families who come to harbor these children might not have their best interest in mind and may sell them to traffickers or retain their services, but subject them to severe exploitation. The second stage of human trafficking is the recruitment process. Given the factors described above, traffickers often find it all too easy to recruit victims. The recruitment process almost always begins with a local recruiter who knows the culture and vulnerability of victims. Often these local recruiters are acquaintances or friends of the victims and they can even be a family member. Though rare, victims who have been granted their freedom from traffickers have later become local recruiters, either out of necessity for employment, or because of their first-hand knowledge about the highly profitable market that exists for selling humans. It is more common, however, for local recruiters to be women. Regardless of the manner in which the recruiter obtained his or her position, exaggerated stories of money to be made from employment abroad are used to lure victims. Media outlets, such as newspapers, are also used to attract victims. For instance, help-wanted ads describing opportunities for legitimate employment are placed in newspapers to increase the pool of exploitable individuals. Kathryn Farr, author of Sex Trafficking: The Global Market in Women and Children, refers to this as recruitment by persuasion and it is the most common manner by which victims fall prey to this crime. For this type of recruitment, the recruiter must gain the trust of the victim because trust lays the foundation for control during subsequent stages and for the beginning of the exploitation and enslavement. Trust is also necessary to gain willing consent from the victim to travel abroad. It tricks the victim into believing the employment opportunity is legitimate and convinces them to consent to illegal activity such as obtaining a fraudulent passport. Trust may also persuade the victim to give a small down payment to facilitate travel abroad. There is another type of recruitment—by force. In this situation, individuals working with traffickers abduct, kidnap, or drug victims. Refugee camps are prime targets for abductions and those displaced due to civil war or political strife are targets for recruitment-by-abduction schemes. Displacement due to a natural disaster can make some vulnerable to this type of recruitment. The Department of State recently reported that a large number of children who were displaced due to the tsunami in Indonesia became easy targets of human trafficking. However, displacement need not precede all recruitment-by-abduction cases, victims may be kidnapped off the street, from schoolyards, or from any other location that lacks supervision by police authorities or any capable guardian.

Human Trafficking | 407

Stage three is the transportation of victims away from their hometowns. As mentioned, due to a belief that legitimate employment awaits them in another country, victims often aide in their illegal transportation by paying the recruiter or by simply consenting to be part of an illegal plan to be transported. Although deceiving victims to travel abroad is the most common method to transport them, some victims are abducted or forced to travel against their will. Statistics on the number of human trafficking victims are difficult to garner, but research on the subject as well as interviews with police and government officials and even victims reveal that human trafficking follows particular transportation patterns or routes. In general, victims originate in countries suffering from political and economic instability and eventually arrive in destination countries that are not burdened with such problems. Countries of origin for most trafficking victims are those that cannot and/or are unwilling to provide protection to individuals most vulnerable to this crime. Most victims are trafficked from countries such as Belarus, Moldova, the Russian Federation, and Ukraine (United Nations Office on Drugs and Crime 2006). The primary source countries for the United States are Thailand, China, Mexico, Russia, Ukraine, and the Czech Republic. The United States is one of the primary destination countries. Exploitation, stage four, may begin immediately upon arriving at a destination country or it may take a few weeks to materialize. Normally, it is upon immediately arriving at the destination country that the victim becomes aware that she or he was deceived about the true nature of the employment, usually because passports, identification, and travel documents are confiscated. It is also at this time that the victim learns she or he is being sold into slavery and that their fate is now in the hands of the slaveholder or trafficker who purchased her or him. The victim is told that a huge debt has been incurred from the travel and that she or he will have to labor as a prostitute, exotic dancer or entertainer, garment worker, factory worker, agricultural worker, domestic servant, miner, or any other work demanded by the trafficker. Although the victim is told that freedom may be a distant reality if the debt is paid, this seldom occurs because the debt accrues over time, making it virtually impossible to escape. Stage five is when the actual physical abuse and torture begins. Victims are routinely subjected to physical assaults, beatings, rape, and other forms of violence to not only make them compliant to the wishers of the trafficker and customers but also to prevent escape. Psychological torture comes about through confined living quarters such as when 15–20 victims must share a small apartment. Victims are watched by careful guards around the clock and not allowed to leave the premises of their place of employment or living quarters without supervision. The final stage is when a resolution to the ordeal is reached. Unfortunately, resolution for some victims is death. There are some who die trying to pay off the debt; others are killed due to physical torture, and yet others contract sexually transmitted diseases and are abandoned to die. Those who escape their enslavement or are granted their freedom may find it difficult to return to their hometowns due to shame or ostracism. In some cultures, laboring as a prostitute, even if it was induced by force, is not acceptable, and thus going home is not an option. Those that make it home find themselves in the same economic

408

|

Human Trafficking

situation as before, and although they are aware of trafficking schemes, remain vulnerable to this crime. Many victims who escape or are granted their freedom continue a life of personal enslavement to the health problems they developed as a result of the torture endured. THE ART OF CONTROL Control is established through several means, and it is embedded at every stage of the trafficking operation. Because most victims are recruited or persuaded to travel abroad for employment, control is first achieved through a false sense of security. This false sense of security is a result of the trust established between the recruiter and the victim. Trust tricks the victim into believing that the employment opportunity abroad is legitimate and that no harm will come to them. It persuades them to consent to travel plans and even pay an amount for their travel. Once trust is established and the victim agrees to leave her or his hometown, the recruiter has achieved control. For those who are abducted or drugged, control is immediately established. Victims often learn they are under the control of the trafficker when passports and other travel documents are confiscated and when they are forced to labor against their will. To deter escape or any form of disobedience, violence or the threat of violence is used. Violence, either a physical assault or rape, is used initially to break-in victims. Most victims vehemently object to their enslavement and break-in violence is used to establish compliance. Routine violence is then used to maintain control. Eventually, the fear of violence or the threat of violence becomes sufficient to gain compliance. The fear of violence or threat of violence against family members is also a control technique used by traffickers. Restricting the movement of victims is another control mechanism. Victims are not permitted to leave either their place of work or living quarters without permission or without supervision. Victims are constantly watched and usually under the supervision of a guard at all times. Lying to victims or brainwashing them is one way to control them. Essentially, because passports have been confiscated, victims have no legal status or legal identity in the country they were transported to. Victims are reminded that due to their unauthorized status, police authorities will not help but rather arrest them. They are also told that family members have forgotten about them and there is no one to help them. Feelings of isolation and then dependence soon convince victims that escape is futile. Psychological manipulation, isolation, and constant supervision “breaks down the victim’s sense of agency (e.g., the feeling that they can act on their own), often resulting in the belief that nothing can be done” (Farr 2005, 38). Sadly, most victims become dependent on drugs and alcohol to cope with their conditions of confinement, and this serves to diminish their desire to escape. THE ORGANIZED NATURE OF HUMAN TRAFFICKING Given these stages, trafficking in humans requires some planning and organization. The degree of planning and organization, however, is constantly debated.

Human Trafficking | 409

There are some scholars who believe that human trafficking is a crime committed by established and highly structured criminal organizations such as the Russian Mafia and the Chinese Triads. They base their belief almost entirely on how well organized a human trafficking scheme needs to be in order to ship humans across the world. This organization, according to such scholars, has been a characteristic of establish criminal groups. Organization includes factors such as (1) skills required to commit the crime; (2) possessing the capacity to use violence, which is used to dominate the criminal underworld; and (3) the resources and political connections to bribe professionals in the criminal justice system. There are others who believe that the lucrative nature of this crime attracts individual entrepreneurs who may or may not have ever been involved in criminal operations. Admittedly, human trafficking is a highly profitable enterprise because human beings can be sold over and over again, which means that money can be made each time the individual is sold. It is estimated that human trafficking is a $7–12 billion industry and the third-most-profitable international crime next to the sale of weapons and drugs (Bellamy 2007). The high profitability of this crime makes it extremely attractive to the criminal underworld and for anyone wanting to make money. Because of the dearth of information on this crime, it is not certain how many human-trafficking schemes or rings are operated by either organized criminal groups or by savvy entrepreneurs. From the available information, however, it appears that human trafficking rings are operated by both organized groups and by organized entrepreneurs. The U.S. Department of State indicates that these groups range from major criminal syndicates, gangs, and smuggling rings to very loose networks. Thus, trafficking attracts many players, some of which regularly engage in criminal activity, some whose criminal activity is irregular, and others who rarely engage in criminal activity. It is this factor that has made detecting human trafficking operations quite difficult for police authorities since operations are so diverse in organization. Nevertheless, there are some regular players such as the Russian Mafia, Chinese Triads, and the Japanese Yakuza. These are organized criminal groups known to engage in human trafficking, although trafficking is certainly not the only crime committed by these groups. ARE GROUPS TRULY ORGANIZED? The Russian Mafia’s involvement in human trafficking most probably began in the mid-1990s, shortly after the fall of the Soviet Union or the end of the Cold War. It was during this period that the newly independent states of the former Soviet Union, particularly Russia, experienced political and economic instability—two factors known to make individuals, particularly women and children, vulnerable to this crime. Because of such instability, lax enforcement of criminal laws was a reality, and protection for those most vulnerable to this crime was nonexistent. Free trade agreements, which made it possible to sell, buy, and trade goods in many parts of the world, also helped to encourage the mafia’s involvement in transnational crimes such as human trafficking. With the influx of trade and commerce among international borders, police authorities

410

|

Human Trafficking

quickly became burdened with the task of maintaining border enforcement while concomitantly keeping borders open to facilitate commerce and trade. It was the combination of these factors that encouraged the Russian Mafia to sell, buy, and trade illegal goods including humans. While many believe that the Russian Mafia is a singular group, there are many Russian Mafia groups. The United Nations estimates that there are about 200 Russian Mafia groups, many of which are involved in human trafficking. It is also estimated that these groups make a combined $10 billion annually (United Nations Office on Drugs and Crime 2006). Some believe that economic success is the result of diversification, meaning that mafia groups do not have one particular crime that they specialize in; criminal activity may include drug trafficking, money laundering, extortion, and arms trafficking. Economic success may also be the result of cooperation between groups. Russian criminal groups are known to work with other groups to transport goods, including humans, around the world. For instance, connections to crime groups in Albania and Yugoslavia aid in trafficking humans from newly independent states to Western Europe. Connections with the Chinese Triads and the Japanese Yakuza help to traffic humans into Japan and Asia. The Chinese Triads have a more extensive history; they formed in the mid1600s and began their criminal career with alien smuggling and racketeering. In the 1900s, however, the Triads became heavily involved in the sex trade, primarily to the United States. During this time, the U.S. government authorized the immigration of Chinese men to work on railroad construction; recognizing the profits to be made from prostitution, the Triads began to ship women overseas. This practice of providing sexual services to Chinese men overseas continued, but huge profits convinced them to diversify and provide services to other men and to exploit non-Chinese women too. During the Korean War, the Triads provided services to U.S. soldiers, and in the 1980s Chinese women as well as women from Vietnam, Laos, and the Philippines were trafficked into different parts of the world, including the United States. Today, Triad criminal activity includes prostitution, money laundering, extortion, and drug trafficking. Unlike the Russian Mafia groups, the Triads do not have a structured, hierarchical organization with one identifiable mafia boss surrounded by powerful assistants; rather, the organizational structure of the Triads is flexible and nonhierarchical. Similar to the Russian Mafia, however, the Chinese Triads know the importance of working with other groups to maximize their profits. They have been known to collaborate with the Japanese Yakuza and groups in Thailand, Vietnam, Korea, Europe, African, North America, and Latin America. The Japanese Yakuza (mafia) also have a long criminal past, with prostitution being their main activity. Similar to the situation in Russia, Japan experienced economic instability after World War II. With so many people struggling to find employment, the Yakuza found it easy to recruit victims for prostitution. By the 1960s, this group had diversified its prostitution enterprise to include sex tours to East Asia and then to other parts of the world. Essentially, the Yakuza established travel agencies that arranged sex tours for men in other countries. The profitability of sex tourism encouraged the Yakuza to enter the sex trafficking business, and in the early 1980s, it began to import women from Thailand and

Human Trafficking | 411

the Philippines to Japan. It continues this practice today along with the transportation of women and children to many parts of the world. The Russian Mafia, the Chinese Triads, and the Japanese Yakuza are three of the most notable organized criminal groups involved in human trafficking. However, they are certainly not the only ones. There are other groups from newly independent states as well as Asian crime groups that are also involved in the sale and enslavement of human beings. These include: • • • • • • •

The Ukrainian Mafia or Red Mafia Albanian Mafia Italian Mafia Turkish Mafia Taiwanese crime groups Thai crime groups Vietnamese crime groups

There are other groups in all parts of the world, such as in India, Nigeria, West Africa, and South Africa. Indeed, there has been a proliferation of criminal groups that are involved in human trafficking. Reasons for the proliferation are political and/or economic instability in countries where most victims originate, the demand for sex and servitude in more politically and economically stable countries of destination, economic marginalization or a growing lack of economic opportunities for women in particular, lax border enforcement due to free trade agreements, and globalization or the ability to communicate with individuals worldwide, whether by plane, telephone, or Internet. There are a few differences between older criminal syndicates and new ones. With the exception of the Chinese Triads, older criminal groups (mainly those established before the 1990s) have traditional hierarchical structures with an identifiable mafia boss; new groups are more lateral and fluid. Also, older mafias do not typically specialize in one crime. They may be involved in money laundering, arms trafficking, and human trafficking while newer groups tend to specialize exclusively in prostitution or human trafficking. Regardless of the date of inception, most of these criminal syndicates (with the exception of the Chinese Triads) have been described as constituting an organized group. Such description is mainly based on organizational structure, which leads leading scholars to conclude that human trafficking must be a highly organized enterprise operated by established criminal groups. Although accurate, the word organization is misleading. As is the case with the Russian Mafia, most criminal syndicates have a hierarchical structure. But, this structure is not necessary to a human trafficking operation. Arguably, such structure does not hinder a trafficking operation but most likely aids it. Nonetheless, it is not essential. The Chinese Triads, a successful criminal syndicate, do not have such a structure and have been able to remain a viable criminal group. Human-trafficking operations, however, are not completely devoid of organization. Organization, particularly the recruitment and transportation of humans across borders, is a necessity. Thus, the organization of activities is crucial to the success of human trafficking and a characteristic that can be developed and refined by established criminal syndicates but also by individual entrepreneurs. Organization almost always involves collaboration.

412

|

Human Trafficking

Most groups and entrepreneurs collaborate with others making the enterprise of human trafficking more of a network of associations and/or associates. THE NETWORK Human trafficking is best understood as a network of associations and/or associates where entrepreneurs collaborate with larger and more-structured groups. Structured groups collaborate with other structured groups to facilitate the sale, transportation, and enslavement of humans. Collaboration is critically important to maximizing profits. Collaboration is also one of the primary reasons why individual entrepreneurs have entered the business since knowledge and specialization in all aspects of the human-trafficking operation is not a job requirement. What is a job requirement, especially for entrepreneurs, is knowledge of a local area, its customs and culture, and its people. Thus, most entrepreneurs handle the recruitment process, although some are also involved in making travel arrangements for victims and all stages of the trafficking operation. In a sense, the network capitalizes on the skills of different players—the individual entrepreneur’s knowledge of the area and ability to recruit victims, another group’s ability to falsify travel documents, and another group’s ability to bribe immigration officials. Salt and Stein (1997) report that trafficking from Albania to Italy is facilitated by “mom-and-pop operations . . . that employ about a dozen people, including a driver in charge of getting the boat over and back, one or two crew members acting as enforcers during the voyage, and various others in charge of rounding up customers, collecting money, transporting passengers to secret departure points and acting as look-outs.” This is a common example of a network and one that is used in other parts of the world. A network however can be composed of established criminal syndicates who have agreed to collaborate. For instance, the Chinese Triads, most operating in Moscow, rely on the services of Russian groups to falsify documents for the easy transportation of victims across borders. The human-trafficking network has made it possible for virtually any person, even those with no prior criminal experience, to enter the business. It has also complicated the job of authorities who have found it especially difficult to crackdown on this crime. Because networks can vary in size and sophistication as well as exist in any part of the world, authorities often lack the resources to investigate human trafficking. With such fluidity and diversification of roles, it is not easy to pinpoint the players or even detect that human trafficking operations exist. Furthermore, because of the large profit margin, so many new players are constantly entering the business that it makes enforcement of this crime even more difficult. THE DIFFICULTY IN IDENTIFYING VICTIMS: THE POLICE AS ACCOMPLICES? The organized nature of human trafficking, particularly the collaboration between associations and associates, complicates the detection of human

Human Trafficking | 413

trafficking operations. According to Finckenauer and Schrock (2001), the job of law enforcement would be easier if only organized criminal groups were involved in this crime because “the targets for investigation and prosecution would at least be much clearer, and the effort could be more focused.” In a sense, this is true. Knowing the players makes it easier to apprehend those engaged in this crime. However, knowledge of criminal activity does not always result in an arrest. It has been found that some police authorities accept bribes to facilitate the trafficking operation or to intentionally look the other way. Some might even be major players in the trafficking operation and solicit the services of trafficking victims. Farr refers to these police authorities as corrupt guardians. There are a variety of ways corrupt guardians facilitate the flow of trafficked victims throughout the world and impede a willingness to identify victims. For instance, the police may accept or fabricate illegal identification documents. Arguably, some sophisticated criminal syndicates are quite skillful at producing identification papers for victims, and attempts at authenticating such papers may elude police authorities. Monetary compensation may be given to authorities to accept false identification and travel documents. Worse yet, police authorities, particularly immigration officials, may be involved in fabricating such documents. Human Rights Watch (2000) reported that Thai embassy officials were involved in issuing false identification documents (Japanese visas) for a fee. American officials are not immune to such activity. There have been instances where key immigration officials working for the U.S. Immigration and Naturalization Service (INS) have also accepted bribes in exchange for accepting false identification and visas. Another way corrupt guardians make human trafficking operations possible is by serving as enforcers of the criminal activity. For instance, these guardians may accept money to return any victims that come before them to the trafficker. In this situation, victims who muster the courage to confide in police officials are quickly turned over to the trafficker so that escape becomes an exercise of futility. Corrupt police officials may accept bribes to protect business known to exploit victims by warning traffickers about potential investigations, raids, and arrests. Additionally, they may accept bribes to intentionally ignore the crime. Farr (2005) cites examples of border and immigration officials in the U.S. who have been investigated for the latter activity. COMPLACENCY BY POLICE Although these actions by authorities are disconcerting, inaction is also troubling. A factor that complicates the identification of victims is their illegal status in a destination country, which makes police officials complacent to render help and assistance to such victims. Most victims that enter destination countries do so with illegal passports and thus are in violation of immigration laws. This illegal status precludes the identification of trafficking victims because officials will first treat the victim as a criminal. The victim will be scheduled for a deportation hearing and returned to their country of origin where they lack the resources

414

|

Human Trafficking

to protect themselves from further exploitation. The fact that some victims pay their recruiter to help them travel abroad and also consent to travel further complicates matters. Rather than providing help, officials often treat trafficking victims as willing accomplices. If and when an investigation uncovers a humantrafficking operation, consent will become an overriding factor that will retard a decision to assign a victim-status to the exploited. It is well documented that police often ignore so-called victimless crimes such as prostitution and drug use. Because most trafficking involves prostitution, though it is forced prostitution, police generally do not probe to determine if the victim has been compelled to labor against her or his will. They do not exert a lot of effort in identifying victims. This inaction by police authorities has a devastating effect on human-trafficking victims because they become a forgotten or ignored population. It is almost as though police further victimize this already exploited group. Inaction also has a monumental effect on humantrafficking operations. Knowledge regarding the relatively low priority given by police to prostitution only serves to encourage traffickers to continue their illegal business venture because the risk of apprehension is minimal at best. The unwillingness or complacency by the police to not only identify victims of trafficking but also to render assistance is perhaps linked to a law enforcement norm that treats prostitution as a victimless crime. However, it is most likely linked to societal and individualistic notions of morality and conceptions pertaining to victimization. The element of consent is an issue that diminishes victimization and impedes the early identification of trafficking victims and their subsequent rescue from traffickers. According to Kelly and Regan (2000), there are varying degrees of victimization that can be viewed along a continuum. On one side of the continuum are those who are completely coerced into trafficking. These are the individuals who are recruited to travel by force or are abducted and therefore consent is a moot issue. Then there are those in the middle of the continuum. These are the individuals who are deceived into traveling through promises of legitimate employment abroad or those who are recruited to travel through persuasion. In this category, individuals may have some knowledge of the illegal nature of their travel, participate in obtaining fraudulent travel documents, or might give a down-payment for their illegal travel but do not of course consent to exploitation. On the other side of the continuum are those who fully consent to illegal travel, the falsification of documents, and work in the entertainment industry as dancers, strippers, or prostitutes. Again, these individuals do not consent to any form of exploitation, such as forced and injurious sex, although they are working in the sex industry. As far as victimization is concerned, the first category of individuals is believed to be the true victims of trafficking whereas the last category is not. It is this latter category of individuals that impedes the identification of victims due to a societal and perhaps an individual moral view that consent diffuses the issue of victimization and that working in the sex industry is “at the bottom of virtually any scale of goodness” (Farr 2005, 79). Aside from these issues, complacency by the police may be due to other reasons such as a lack of knowledge on how to conduct investigations. In a recent

Human Trafficking | 415

report by Caliber (2006), an international organization tasked by the National Institute of Justice to explore how law enforcement officers in the United States conduct investigations on human-trafficking operations, findings underscored that officers lacked the tools needed to conduct effective investigations. One of the major findings was that officers had not been properly trained to investigate these incidents. Thus, complacency may not be intentional but attributable to a lack of knowledge on what to do. CONCLUSION Human trafficking will continue to be one of the most appalling crimes against humanity. It is not a new crime since the enslavement and exploitation of humans has existed since the beginning of time. It is thus a crime that has plagued all civilizations. Today, human trafficking is beginning to attract the attention of many government officials, and countries are passing legislation to prohibit the sale of human beings. Although laudable, legislation will not do much to deter the actions of those who traffic humans. This is because human trafficking has not been a top priority for the police. It is important to note that the U.S. government has recently provided additional funds to federal, state, county, and local law enforcement to conduct joint investigations into human-trafficking operations in the Trafficking Victims Reauthorization Act of 2005. But, it has yet to fully provide proper training to officers, particularly at the state, county, and municipal levels, on how to conduct such investigations. Thus, a lack of knowledge on which investigative tools to use may not do much to help combat this global problem. As was the case in Sweden, investigate training will not do much if it does little to change the attitudes or complacency of the police. Sweden, which also has laws against human trafficking, found it difficult to help victims because most police officials were not sympathetic to victims, especially those involved in the sex industry. Because most trafficking victims are involved in some aspect of the sex and/or prostitution industry, there is a general disregard for their human rights. Perhaps because of societal or individual moral beliefs, such victims are judged harshly and do not come under police radar as trafficking victims but are viewed as consenting sex workers. When and if such victims come to the attention of the police, they may be considered a criminal in violation of immigration law; other times, the initial consent of the victim clouds attempts to offer protection. There are other difficulties inherent in identifying victims, such as the unwillingness of the victims to divulge information to police authorities and/or unwillingness to press charges or testify against traffickers. This is primarily due to fear of the repercussions that may befall them or family members. They may also fear deportation and apprehension for being in a country illegally. Generally however, authorities are unaware of this crime for several reasons, the first of which is that trafficking operations are conducted by networks of associations and associates, which complicates identifying those involved in the illegal enterprise. In a sense it would be somewhat easier if criminal syndicates were the only ones engaging in this crime, but human trafficking has no

416

|

Human Trafficking

consistency. It is a fluid enterprise that changes according to who is involved and the scale of the operation. Because operations consist of many different players who may or may not have ever been involved with the law in the past, identification of human trafficking schemes is arduous. The second reason why it is so difficult to identify such schemes is the low reporting of this crime to the police. As mentioned, fear of repercussions inhibits victims from contacting the police. However, some authorities are unaware of this crime because they lack proper training to conduct proper investigations or simply ignore the problem. References: Aronowitz, Alexis. “Smuggling and Trafficking Human Beings: The Phenomenon, the Markets that Drive It and the Organizations That Promote It.” European Journal of Policy and Research 9, no. 2 (2001):163–195; Aronowitz, Alexis. “Victimization of Trafficked Persons and Illegal Migrants.” International Review of Victimology 11(2004):11–32; Bales, Kevin. Understanding Global Slavery. Los Angeles, CA: University of California Press, 2005; Bellamy, Carol. Human Trafficking Speech Delivered by Carol Bellamy, President and CEO, World Learning at RAMP Regional Anti-Trafficking mobilization for Prevention Conference. May 21, 2007. zonta.org/site/DocServer/ Human_Trafficking_Speech_5_07.pdf?docID=17064; Clawson, Heather J., Mary Layne, and Kevonne Small. “Estimating Human Trafficking Into the United States: Development of a Methodology.” National Institute of Justice. 2006. http://www.ncjrs.gov/pd files1/nij/grants/215475.pdf; Farr, Kathryn. Sex Trafficking: The Global Market in Women and Children. New York: Worth Publishers, 2005; Finckenauer, James, and Jennifer Schrock. “Human Trafficking: A Growing Criminal Market in the U.S.” National Institute of Justice International, 2003. http://www.ojp.usdoj/giov/nij/international/ht.html; Human Rights Watch. “Owed Justice: Thai Women Trafficked Into Debt Bondage in Japan.” September, 2000. http://www.hrw.org/reports/2000/Japan; Kelly, Liz, and Linda Reagan. “Stopping Traffic: Exploring the Extent of, and Responses to, Trafficking in Women for Exploitation in the UK.” Home Office Police Research Series, Paper 125, London, 2000; McKee, Kathleen. “Modern-Day Slavery: Framing Effective Solutions for an Age-Old Problem.” Catholic University Law Review 51(2005): 141–191; Richard, Stephanie. “State Legislation and Human Trafficking: Helpful or Hurtful?” University of Michigan Journal of Law Reform 38(2005):447–477; Shelley, Louise. “Post-Communist Transitions and the Illegal Movement of People: Chinese Smuggling and Russian Trafficking in Women.” Cosmopolitan Crossings: Slavic Contacts and East-West Connections 14, no. 2 (2000):71–85; Sullivan, Barbara. “Feminism and New International Law.” International Feminist Journal of Politics 5, no. 1 (2003):67–91; United Nations. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. 2001. untreaty.un.org/English/TreatyEvent2001/pdf/17e.pdf; United Nations Office on Drugs and Crime. Trafficking in Persons: Global Patterns. April, 2006. www. unodc.org/pdf/traffickinginpersons_report_2006ver2.pdf.

Claudia San Miguel

I IDENTIFICATION CARDS The federal government can pass a national security bill like the REAL ID Act of 2005, but can it make the states enact it? There have always been issues of federalism versus states’ rights, and regulating state identification cards and driver’s licenses has proven to be one of them. A state-issued driver’s license or identification card with a digitized photograph and machine readable data may be an idea whose time has not come because of implementation and privacy issues. To provide identity security may create more opportunities for security breaches than it solves. THE REAL ID ACT OF 2005 The 9/11 Commission recommended that the United States improve its identification document system. For instance, airport examination of a driver’s license, which can be forged, is the last step in trying to determine if a terrorist is trying to board. The Commission recommended that the federal government establish standards, and Congress passed the REAL ID Act of 2005 in response. Federal legislation passed in 2005 mandated that states create machinereadable data strips on state identification cards and driver’s licenses of citizens and legal residents. The Department of Homeland Security (DHS) proposed three uses for REAL ID licenses: (1) entering federal buildings or facilities, (2) boarding a federally regulated airplane, and (3) gaining access to nuclear power plants. The DHS indicated other security uses for the identification cards might be added. Although the REAL ID Act was passed in 2005, the Department of Homeland Security did not release the Notice of Proposed Rulemaking (NPRM) until

417

418

|

Identification Cards

March 1, 2007. The delay in release of a draft of proposed rules for public comment exposes reluctance to carry out expensive identification card projects. The current NPRM is a set of minimum requirements that states may or may not choose to exceed. State representatives were consulted in creating the draft regulations. To create a REAL ID, state Departments of Motor Vehicles must process identity documents including citizenship or lawful status paperwork, birth certificates, and Social Security cards. States already require birth certificates, Social Security numbers, and other information; the difference is in the verification and processing. Each REAL ID license would be valid for eight years, and states could re-verify source document images at that time. If states do not keep that database, the information would need to be re-issued. Holding this information would make it possible to see if individuals have multiple state driver’s licenses—a criminal resource. REAL ID Requirements The minimum requirements for a REAL ID state driver’s license or identification card would be: full legal name (39 character spaces), gender, date of birth, principal residence address, signature, document number, digital photograph, and machine-readable technology. The Department of Homeland Security is not requiring that citizens provide the full biometric data that noncitizens applying for visas abroad need to provide and then verify upon entry. States can choose whether to require two or ten fingerprints, iris images, or other data. The federal government does not plan on having a facial image repository. The machine-readable technology required will be the 2-D barcode in use in 45 states and the District of Columbia. The DHS is considering encrypting data on the barcode as a privacy protection. Radio Frequency Identification (RFID) cards are not required although states could choose this option. REAL ID state driver’s licenses will have physical security to prevent tampering, counterfeiting, or usable duplication. North Carolina is putting a hologram map of the North American continent on its license to prevent forgery. Biometrics Digitized photographs but not fingerprint scans have been proposed for residence permits and identification cards in the United States. The International Civil Aviation Organization advocates digitized facial photographs as a primary identifier and digitized fingerprints as a secondary identifier. This is due to the globalization of travel and need for interoperability, the traditional use of photographs, and the social unacceptability of such biometric identifiers as iris (eye) scans. A NATIONAL IDENTIFICATION CARD The federal government maintains that it is not requiring a much-disputed national identification card because states will issue the licenses. The federal

Identification Cards | 419

government will not create a national database although data sharing between states will be implemented. State Departments of Motor Vehicles will ordinarily have access to their own records without being able to scrutinize the records of another state. States are required to prepare their own data-security plans including preventing unauthorized access. The American Civil Liberties Union foresees that uniform state driver’s licenses could become a de facto national ID card. The machine readability and creation of a state data-sharing process duplicate a national data network. Other uses to which the card could be put include employment verification, regulation of access to federally subsidized housing, government loans, public benefits, voting, and owning a firearm. FISCAL ISSUES Jim Harper is a member of the Department of Homeland Security’s Data Privacy and Integrity Task Force Committee and Director of Information Policy Studies at the CATO Institute. He maintains that the implementation of the REAL ID Act will cost more than it will provide in the way of security. Harper, a civil libertarian, would take responsibility for digital identity and credentialing away from the federal government and let private companies compete to create the best methods. Executive Order 12866 requires agencies to evaluate costs and benefits of proposed changes (Harper 2007). The estimated cost of implementing REAL ID cards is 17 billion. This is a bill that the states would primarily have to pay. The Department of Homeland Security is willing to reimburse the states for up to 20 percent of the cost from State Homeland Security Grant program funds. By 2008, the Department of Homeland Security had provided $359 million in grants to the states. If Congress so chooses, it can appropriate additional federal money for state compliance. Cost-Benefit Calculations At present, certain states have magnetic readable strips and bar codes on identification cards, but what is on the card varies a great deal. If all cards were the same, it would create an economy of scale in manufacturing software, card readers, and databases. Even at a cost of $17 billion for implementation, it is estimated that $63.9 billion in tangible cost would be saved if the identification cards reduce the risk of terrorist attack by 3.6 percent a year. If the probability of a terrorist attack is reduced by 0.61 percent per year, it is estimated that $374.1 billion would be saved in structural assets and recovery cost. Harper stated that the reasoning these estimates are based upon is unsound. Creating a national identification system does not automatically create an authentic identity for everyone. Criminals can modify their behavior and attempt to breech the identification system. This system may shift risks away from the targets or create new risks. Jim Harper does not think an attack on the scale

420

|

Identification Cards

of 9/11 is a realistic possibility. He considers it flawed reasoning to assume an ID system can prevent an attack. Instead, identification systems should be evaluated on their ability to delay attacks for possibly six months because of the speed at which security problems could arise. THE FEDERALISM ISSUE AND STATE RESISTANCE There is a division between the powers of the federal government and states’ rights. Direct regulation of the states by the federal government is unconstitutional. The REAL ID Act requires states to produce state identification cards and driver’s licenses that would match federal regulations for identification. The American Civil Liberties Union claims that the REAL ID Act is in violation of the Tenth Amendment to the United States Constitution. The passage of the 2005 REAL ID Act created a need for upgraded driver’s licenses, but many states have not complied. One issue in state implementation has been the delay in publishing federal regulations until late 2007. The federal government placed the burden of obtaining and retaining massive amounts of data in large databases entirely on the states. More than 12 states have passed laws or resolutions against implementing the REAL ID Act. In Washington, lawmakers banned using state money to implement the act. The federal government backed the states into a corner by requiring the new identification cards for aircraft passengers. The states resisted funding and putting into practice the new technology and were given a May 2008 deadline to file for an extension on compliance until December 2009 (DHS 2008). The DHS expects states with an extension to issue REAL ID compliant driver’s licenses and state identification cards by January 1, 2010, with license replacement proceeding as older licenses expire. The governors of Maine, Montana, New Hampshire, Oklahoma, and South Carolina were strong hold-outs. The citizens and legal permanent residents who reside in states that do not comply with filing a time extension will face additional document requirements at federal buildings and airports, which will add additional airport time delays. If they do not implement the requirements, the states resisting creating the cards will face the distress of residents who are delayed at airport security or not allowed into federal buildings. POLITICAL OPPOSITION Seldom has a law that has passed Congress and been signed by the President created as much controversy among both liberals and conservatives as the REAL ID Act. The politics surrounding this issue have created strange bed fellows. In opposition are the conservative Cato Institute (a libertarian group), the Gun Owners of America, the Wall Street Journal, and many Republican politicians. Liberal organizations against the measure include immigrant-advocacy groups, such as the Council of La Raza, human rights organizations like the American Civil Liberties Union (ACLU), and privacy groups. Many state legislatures and state governors are against implementing it. The Bush administration, the

Identification Cards | 421

members of Congress who voted for the act, and the conservative Heritage Foundation supported it. In addition, defeated Presidential candidate Senator John McCain is an advocate of the bill; Senators Barack Obama, elected President in 2008, and Hillary Clinton expressed opposition. HUMAN RIGHTS ISSUES Privacy The Congressional REAL ID Act contained a statement about creating regulations that would adequately protect the privacy of holders of licenses and ID cards in compliance with federal standards. Maintaining the privacy of data on a machine-readable strip, like a grocery bar code for humans, is a major issue. Breaching a state database of birth certificates and other information would compromise both individual privacy and national security (Harper 2007). State databases may have individual flaws, and the REAL ID Act requires sharing between states that would expose all states to flaws in individual state systems (Harper 2007). It is also a requirement that states share data with each other rather than a federal database, which presents the most important issue for breach of privacy. State databases of functional identity documents present an opportunity for criminal organizations to commit identity fraud. Storage and Reliability Questions must be raised about keeping biometric and biographical data for an unlimited period of time. Security breaches could occur and there are issues about the access of private agencies to information. Biometrics are thought to be invulnerable to forgery and error, but the best test may be yet to come from plastic surgeons and organized crime. Private-Sector Piggybacking The machine-readable technology of REAL ID enables private business computers to obtain personal data from state identification cards and driver’s licenses. Many establishments with liquor licenses swipe these cards in order to establish legal drinking age. Even if identification data is protected, machine readability could allow the development of a private, for-profit database that is not controlled by privacy rules. The Department of Homeland Security insists that machine-readable data control is not their responsibility, and they do not require encryption by the states. Race and National-Origin Profiling The REAL ID Act of 2005 called for machine-readable data on individuals’ race. The history of racism and discrimination speaks against using a bar code indicating race. The 2007 regulations no longer ask for this data, but states could opt to ask for it. The greatest vulnerability attaches to noncitizens. The National

422

|

Identification Cards

Council of La Raza, a Latino organization, believes that the REAL ID Act will prevent undocumented immigrants from receiving driver’s licenses. In addition, individuals with certain immigrant statuses will not qualify. A distinction will be made between citizens and green-card holders (who will receive permanent licenses) and temporary visa holders (who will receive temporary licenses). If a state chooses to grant licenses to undocumented immigrants, it will need to be a different type that is not valid for entering a federal building. Only passports will be accepted as documentation for proving the identity, name, and date of birth of a foreign-born national. This ID would make local and state police upholders of immigration law, a federal responsibility if they were mandated to react to expired temporary licenses or to arrest the undocumented for lack of a license. This exemplifies the need to resolve the status of undocumented immigrants living in the United States. Double Standard Whether one is a citizen of the United States or a country in the European Union, there is more recourse if rights are violated than if one is a migrant from outside the European Union or a developed nation-state such as Japan (Thomas 2005). Claims of mistreatment can be taken to national and international bodies regulating data protection. Migrants from developing nations or from within the European Union without citizenship have much greater difficulty in learning about and gaining access to these protections. Tracking and Electronic Tagging Thomas purports that concern about border control and national security has led government officials to consider tracking systems without considering the human rights impact. Historically, individuals have been able to engage in world travel without having their data entered on computers. Theoretically, travelers who have not engaged in criminal activity could be singled out for government investigation simply due to tourist activities. The United States has used its visa information to track individuals in the student and visitor exchange program now linked to U.S.-VISIT, the port of entry screening program for visitors and immigrants to the United States. In China, North and South Korea, and Japan, identification cards are already in place to potentially prevent internal migration (Thomas 2005). The United Kingdom has used pilot tracking systems for five categories of potential immigrants and visitors: (1) asylum applicants who have exhausted the appeal process, (2) undocumented entrants, (3) individuals whose work or visitation visas have been over-stayed, (4) travelers on arrival who are pending further scrutiny, and (5) individuals not allowed to enter pending deportation (Thomas 2005). Ultimately, sophisticated electronic tagging using voice identification or global positioning systems (GPS) could be used to track individuals. The implication is that the United States could pursue such a course with citizens and noncitizens.

Identity Theft

Function Creep Function creep refers to a situation in which the original function of an ID card acquires added utility for data holders without the consent implied by public debate and acceptance (Thomas 2005). If identification cards become used in stop and search police procedures, which are known to involve disproportionate profiling, it would be function creep. A monster could be created because national identification cards can be used for many purposes. The cards could be used to regulate unlawful employment, gun ownership, and under-age drinking or smoking. The federal government evades the issue of controlling the use of these cards by treating it as a states’ rights issue. States have the option of using the enhanced IDs for other purposes. An even more serious form of function creep is an identification card linked to race, health, or DNA information that reveals information intended to be kept private. This information could be used for surveillance or by businesses. CONCLUSION Can the federal government back the states into a corner to implement a quasi-national identification system? National politicians and the states are very uneasy about implementing REAL IDs. It may be that it’s a good idea on paper but impossible to make foolproof in fact. There are two major classes of constituents who could get burned by sloppy implementation: (1) citizens who lose their identity or encounter unknown surveillance and (2) migrants who need a paper identity but can’t get one. In each case, the risk of loss of identity and privacy is all too real. A judgment will have to be made as to whether the technology exists to create a REAL ID that doesn’t create more problems than it solves. References: American Civil Liberties Union. ACLU Scorecard on Final Real ID Regulations. http://www.aclu.org/images/general/asset_upload_file162_33700.pdf; Department of Homeland Security. REAL ID Proposed Guidelines: Questions and Answers. www.dhs. gov/xprevprot/laws/gc_1172767635686.shtm; Harper, Jim. “Understanding the Realities of Real ID: A Review of Efforts to Secure Driver’s Licenses and Identification Cards.” Vital Speeches of the Day 73(5)(2007):208–213; National Council of La Raza. REAL ID Act. www.nclr.org/content/policy/detail/29762; Thomas, Rebekah. “Biometrics, International Migrants and Human Rights.” European Journal of Migration and Law, 7(2005):377–411.

Judith Ann Warner IDENTITY THEFT Many citizens and legal permanent residents are classified in a numerical system by federal and state governments. Numbers are attached to Social Security, Medicare, work authorization papers, visas, passports, and driver’s licenses, among other documents. Citizens and state governments have resisted implementation of a biometric, national-identification card used simultaneously as a driver’s license, but the REAL ID Act of 2005 mandated the creation of just such

| 423

424

|

Identity Theft

a card. In the meantime, the American public worries about credit cards and access to banking information without full awareness of the number of ways in which their identity can be stolen and used. The crime of identity theft, stealing the numbers and other information that make up an individual’s federal and state identity, is on the rise among fraudulent-document-counterfeiting rings that have ready customers in the form of undocumented immigrants seeking to secure legitimate employment in the United States. Identification numbers of both citizens and legal permanent residents can and have been stolen for the purpose of gaining jobs. Many leaks that make the information accessible have not been plugged, including simply having one’s wallet or purse stolen. Some suggest that biometric identification cards would resolve this. A new development in the immigration-enforcement crackdown is the decision to not simply deport workers without federal authorization. Undocumented immigrants convicted of the crime of document fraud and in particular identity theft are jailed or imprisoned for periods ranging from five months with expedited removal (quick deportation) to up to twenty years. U.S. prisons and jails are already over capacity, and immigrant detention is pushing the system beyond its limits. This raises questions of how people can protect their identification, whether the counterfeiters are major criminals, and whether the nation has adequate checks and guards for protecting U.S. residents (including immigrants working to support their families) in the United States and abroad from identity theft. BACKGROUND A Social Security number is required for jobs in the formal economy. For immigrants, a green-card work-authorization permit is needed, and a driver’s license is helpful in establishing identity. Until recently, identity theft and document fraud were unusual charges made against undocumented immigrants captured in workplace raids. This is changing as Immigration and Customs Enforcement (ICE) reacts to charges that interior enforcement of the broken immigration system is inadequate. As incidences of these charges increase, so does the criminalization of immigrants under the law. Obtaining and using an individual’s Social Security number for fraudulent purposes carries a prison term of up to five years and a $250,000 fine. It is not known if immigrants purchasing fraudulent documents know if the numerical ID is fictitious or real, but certainly, counterfeiters and thieves know. There are many criminal ways of acquiring a fictitious or stolen identity. Counterfeiting rings produce counterfeit identification documents ranging from Social Security cards to driver’s licenses. One Chicago counterfeiting ring employing 22 people was raided. For $200 to $300, fraudulent identification could be purchased. The ring was thought to operate in several cities including Denver and Los Angeles and to make a $2 to $3 million profit per year. The types of documents produced included Social Security cards, driver’s licenses, and green cards. In some cases, customers provided fictitious or real information

Identity Theft

about identities to be merged with their own identification. Using another person’s identity is identity theft. The operators were Mexican, as were many of the customers, but individuals of other ethnicity, including citizens, patronized the business (Sanders 2007). Eight individuals were indicted for counterfeiting IDs based on matching Puerto Rican birth certificates and Social Security cards used to provide customers with information to get Ohio state identification. Counterfeiters can be tried for violating federal immigration law, conspiring to commit identity fraud, and aggravated identity fraud. Conspiring to commit identity fraud and committing aggravated identity fraud can carry 20 years imprisonment and/or a fine of $500,000. The federal government is often slow to catch up with sources of information leaks connected to identity theft. For example, it was revealed that the U.S. Agriculture Department had listed the Social Security numbers of individuals receiving aid from two programs for many years. The Department of Energy, Navy, Department of Veterans Affairs, and the Internal Revenue Service are also known to have suffered data breaches. There are many ways of accessing legitimate government Social Security, Medicare, and other numbers helpful in establishing identity for those who manage identity and those who gain illegal access to it. IMMIGRATION AND CUSTOMS ENFORCEMENT ICE ACTIONS Undocumented aliens who obtain fraudulent credentials damage the wage, taxation, and credit histories of the individuals whose numerical identity was obtained. ICE investigations have uncovered many identity-theft victims. Criminal activities wrongfully attributed to victims of identity theft have included: (1) owing up to $17,000 in Internal Revenue Back taxes on unreported employment wages, (2) being denied healthcare, unemployment, or Social Security benefits on wages reported during identity theft, and (3) arrests on warrants issued for individuals using their identity. Meatpacking-Industry Raids The federal government targeted meatpacking plants in a series of raids. Pilgrim’s Pride poultry process plants were raided in Mount Pleasant, Texas; Live Oak, Florida; Chattanooga, Tennessee; Batesville, Arkansas; and Moorfield, West Virginia. The AgriProcessors (the nation’s largest processor of kosher meat) kosher meat plant in Postville, Iowa, was raided and the Waterloo, Iowa, plant was raided. Of the 389 undocumented immigrants taken into custody in Waterloo, Iowa, 270 were arrested for identity theft used in gaining jobs at an Agriprocessor meatpacking plant. Instead of utilizing expedited removal (immediate deportation) procedures, 260 undocumented immigrants were sentenced to five months detention while two received sentences of a year and one day and a felony charge for identity theft. The immigrants were handled, with their hands and feet shackled, in groups of ten in courtrooms. They pled guilty, receiving five months detention for either

| 425

426

|

Identity Theft

using false Social Security cards or other forged immigration documents. These pleas were in exchange for avoiding the more serious charge of felony identity theft that carries a mandatory penalty of two years minimum. Many of those charged were in procession of real Social Security card numbers or immigration visas, known as green cards, that belonged to other people. Those who pled guilty will be subject to expedited removal to their home country upon release. Most of these undocumented immigrants were from Guatemala. Meatpacking in the United States is a labor-intensive and potentially hazardous process in which assembly practices and speedups (pressuring faster processing) can result in serious worker injury, such as accidentally cutting a finger off. In Europe, meatpacking is now entirely mechanized, eliminating most jobs. Prior to the raid, AgriProcessors’ Iowa plant had been cited for numerous environmental and worker-safety violations. Conservative Jewish leaders had been investigating the plant. Guatemalan workers at the plant verified sub-standard working conditions. Although meatpacking carries a risk of serious injury, workers were often kept up to 14 hours on a shift while not being paid overtime, a labor-law violation. The raid raised humanitarian concern about the workers, who were said to prize family values and were helping to support families in Guatemala. Judge Bennet, who handled the cases, stated, “I don’t doubt for a moment that you are good, hard-working people who have done what you did to help your families.” He continued, “Unfortunately for you, you committed a violation of federal law” (Preston, 2008). The law did not allow for immediate probation, required jail time, and subjected the Guatemalan migrants to the judicial order for expedited removal that waives a right to have a case heard in immigration court. The cases were quickly handled in an emergency court. Many immigrants were from mixed-status families in which a spouse or children were legal residents or U.S. citizens, but the time frame did not allow addressing these issues. Community Economic Impact. When a rural community is dependent on an industry (such as meatpacking) for economic support, raids, wholesale deportation, and/or imprisonment can have adverse impact on the economy. The raids are often criticized as going after local workers who help support local community business and who have families. Document Enforcement and Employer Responsibility. The Department of Homeland Security (DHS) set up a pilot Social-Security-number-verification program. Certain employers have agreed to electronically check and validate the Social Security numbers presented by job applicants to verify job eligibility. Is Enough Being Done to Resolve Identity Theft by Immigrants? Federal Enforcement. The federal government has always emphasized border enforcement over interior raids against employers. Nevertheless, border enforcement has always failed to prevent a substantial number of undocumented workers from coming into the United States to meet employer labor demand. Since 9/11, the Department of Homeland Security has increased the number of workplace raids conducted by Immigration and Customs Enforcement (ICE).

Identity Theft

In 2003, ICE created an Identity and Benefits Fraud unit to work with U.S. Citizenship and Immigration Services to locate identity violators and reduce fraudulent benefit applications. In 2004, 2,334 investigations were conducted and in 2005, 3,591 were conducted. Criminal indictments were issued in 767 cases in 2004 and 1,052 in 2005. The task forces are operative in 10 cities (U.S. Immigration and Customs Enforcement Factsheets 2008). Since it was created in March 2003, ICE has dramatically enhanced its efforts to combat undocumented immigrant’s unlawful employment in the United States. During Fiscal Year (FY) 2007, ICE arrested 863 individuals on criminal charges in worksite investigations and administratively apprehended another 4,077 illegal workers on immigration violations. This increase in arrests is significant when compared to the 160 criminal arrests and 685 administrative arrests ICE made in FY2004 (U.S. Immigration and Customs Enforcement Fact Sheets 2008). In FY2007, ICE apprehended 863 on criminal charges in worksite investigations and arrested 4,077 workers on immigration violations. Although not all of these cases involved identity theft and statistics are not available, there was a substantial increase in misdemeanor and felony charges for it. In a 2007 case involving the nation’s largest pallet manufacturing company, five defendants pleaded guilty and were given expedited removal; seven defendants will be tried for counterfeit alien registration (up to a seven year penalty), illegal use of Social Security numbers (five year penalty), two years for identity theft, and all could receive six months to a maximum of 20 years for illegal re-entry after deportation. ICE efforts increased through August 2008, with more than 1,000 criminal arrests, including 116 owners, managers, or business administrators. An additional 3,900 administrative arrests were of unauthorized entrants for immigration violations (U.S. Immigration and Customs Enforcement Fact Sheets 2008). State Enforcement. As a result of public demand for protection of their jobs, in 2007 240 laws were passed in 46 states for the purpose of controlling immigrant access to work and protecting citizen and noncitizen immigrant’s legal identification. In total, 1,562 bills were introduced. The federal government has had the primary responsibility for controlling immigration; and states see enforcement of state identity-theft laws as a method of state immigration enforcement. In 2001, California passed a model law restricting companies from placing an individual’s Social Security number on cards required for private transactions to prevent identity theft. Thirty-one states have laws protecting Social Security numbers and many have begun requiring private health insurers not to put Social Security numbers on their cards. Local states have even used enforcement of the law as another way to arrest undocumented immigrants for violations such as not having a fishing license. The size of the unapprehended immigrant population using fraudulent documents suggests that ICE efforts are a drop in the bucket. New technologies are needed to combat fraud, and the federal government could be doing a better job of protecting its numerical identification system. Biometric Social Security Cards. In 2006, a series of immigration raids were carried out against Swift Company meat processing plants. The operation revealed, despite Swift’s participation in a DHS Basic Pilot program to verify

| 427

428

|

Identity Theft

employment eligibility with the Social Security Administration and other DHS databases, that over 1,200 undocumented workers were employed (U.S. Immigration and Customs Enforcement Fact Sheets 2008). Apparently, electronic verification of Social Security numbers is flawed because of identity theft. This pilot program also provided an impetus for more complicated identity theft since simple fabrication of Social Security numbers no longer worked. It has been suggested that digital photographs and fingerprints be added to make biometric ID cards. Otherwise, those who manufacture fraudulent Social Security cards will be motivated to steal numbers and increase their prices. Green cards, temporary work permits, and passports are currently more secure. Biometric Social Security cards would be developed to replace current cards over a period of years. Medicare Cards. Over 40 million Americans have Medicare cards with their Social Security numbers prominently displayed on them. Robbery and theft are means of obtaining the cards. The numbers can also be stolen from medical documents. Although removing the number has been suggested by the Social Security Administration, replacing the cards is viewed as an added cost that reduces convenience of the system. The Medicare bureaucracy estimates that replacing the cards would take three years of planning and eight years of implementation. In addition, it is thought that replacing the cards would scare legitimate Medicare card holders. Both the Department of Veterans Affairs and the Defense Department are removing Social Security numbers from cards as they are issued. Should ICE Target Immigrants or Fraudulent Document Rings? Counterfeiters and unauthorized immigrants are committing a crime when they provide or purchase fraudulent identification. Undocumented immigrants are committing the double crime of crossing the border while unauthorized and purchasing fraudulent work identification. The only way to fix a broken immigration system is to enforce the law. Enforcing the law, however, hurts individuals helping to support families while organized criminals, the major source of the problem, are relatively unscathed. Undocumented immigrants are looking for work in an unbalanced international economy, and in order to stand a chance, they need fraudulent identification that allows higher wages in the formal economy. While five months to one year and a day or two years may seem light penalties for document fraud or actual identity theft, in poor and working-class U.S. families and for those sending remittances abroad, it is a severe blow. In contrast, the counterfeiters who provide these documents and actually steal identities are getting off relatively light with a sentence of 20 years or a fine of $500,000 because they have made millions and are often the major purveyors of stolen and authentic, rather than fictitious identity. While stopping identity theft is important, immigrants should be viewed as victims of counterfeiters who are master, often organized criminals. In return for testimony, undocumented immigrants who identify counterfeiters and the major stealers of identity should be given work authorization and a step towards permanent residency, just as human trafficking victims of coerced

Identity Theft

labor are offered protection and immunity. The real priority should be stopping organized fraudulent-document rings. This would greatly reduce circulation of fictitious and stolen identity documents, making it harder to work without federal authorization and would stop a form of organized crime. If fraudulent documentation is hard to get, employers can lobby for the workers they need using legitimate means. In the controversy over whether workers take jobs from lawful residents or not, there is a lack of realism. The legalization of the labor market, by any means, should be the real priority. Free Trade. The North American Free Trade Agreement and a proposed Central American Free Trade Agreement have sought to create economic ties among employers while preventing the free movement of workers. This attempt to socially exclude workers from the United States while allowing them to work in their own countries at significantly lower wages benefits employers more than workers in the developed and developing countries that signed the agreements. If the labor markets in these countries were freed from such international regulatory policies and opened to more competitive investment and less restricted migration, it could impact employers by producing wage increases in developing countries with lower living costs that can then be met. This would reduce undocumented migration to the United States of workers seeking much higher wages than in Mexico and Central America. Unfortunately, this is not the way that the international capitalist system pursues profit. Currently, employers benefit from very-low-cost labor in developing countries and lower-cost undocumented labor in developed countries. Consumers in developed countries benefit from cheaper goods. It is doubtful that consumers are happy with the situation of international wage inequalities because they fear immigrant job competition, downward push on their wages, and crime related to undocumented immigration (such as identity theft). Establishing open North American and Central American labor markets would result in a means of legalization of workers, and many types of economic inequality between developed and developing countries could be redressed. A free world is one in which humans are free to travel and have freedom of opportunity. Biometric Solutions. The high cost of biometric identification and the bureaucratic hurdles of implementing it make it seem a forced solution to the fraudulent documents used by immigrants. It also hides the real problem of organizedcrime involvement in stealing identity for purposes of stealing the financial assets of citizens, visitors, and legal permanent residents. Again, those who steal identity should be the primary target of law enforcement. Humanitarian Issues. Many of the workers captured by ICE in raids are part of mixed-status families in the United States. Mothers and fathers are separated from children who are often forcibly abandoned in homes, at daycare, or in school when their parents do not come and get them. As a result, some workers captured in raids have been given a conditional release on humanitarian grounds in order to take care of their children or relatives. Whether these people should be ‘illegal’ can be questioned. Constraint on worker movement between countries with free trade agreements makes for organized crime opportunity such as the trade in fraudulent IDs.

| 429

430

|

Immigration Law and Exclusion

The U.S. Immigration and Citizenship Services’ processing backlog, along with the country quota system for legal family reunification, blocks families from being together, especially Mexican families seeking to reunite. Today, Mexicans and other immigrants risk their lives to cross the U.S. border in less enforced but more hazardous crossing zones in order to be with loved ones. Men, women, and children have died. The way the U.S. immigration system operates is out of balance with the needs of world population, particularly western-hemisphere countries. Laws protecting the sovereignty of U.S. borders and granting border enforcement the right to govern the movement of people rather than to regulate crime, such as drug smuggling, hurt the attempts of people to survive more than they help. See also Expedited Removal; Identification Cards; Police Relations; Raids; State Laws and Immigration References: Associated Press. “Oregon, More Than 165 Workers are Detained After Raid. New York Times. http://www.nytimes.com/2007/06/13/us/13brfs-immigration.html; Cave, Damien. “States Take New Tack on Illegal Immigration.” New York Times. http://www. nytimes.com/2008/06/09/us/09panhandle.html; Nixon, Ron. “U.S. Database Exposed Social Security Numbers.” New York Times. http://www.nytimes.com/2007/04/21/washing ton/21data.html; Meissner, Doris, and James Ziglar. “Op-ed: The Winning Card. New York Times. http://www.nytimes.com/2007/04/16/opinion/16meissner.html; Pear, Robert. “Agency Sees Theft Risk for ID Card in Medicare.” New York Times. http://www. nytimes.com/2008/06/22/washington/22medicare/html; Preston, Julia. “270 Immigrants Sent to Prison in Federal Push.” New York Times. http://www.nytimes.com/2008/05/24/ us/24immig.html; Sander, Libby. “Officials Raid Illegal Document Operation.” New York Times. http://www.nytimes.com/2007/04/26/us/26immig.html; Saulny, Susan. “Hundreds are Arrested in U.S. Sweep of Meat Plant.” New York Times. http://www.nytimes. com/2008/05/13/us.13immig.html; U.S. Immigration and Customs Enforcement, “Frequently Asked Questions About Worksite Enforcement.” http:www.ice.gov/pi/news/fact sheets/worksite.htm; U.S. Immigration and Customs Enforcement. “ICE and Department of Justice Joint Operation Targets Identity Theft at Poultry Process Plants in Five States.” http://www.ice.gov/pi/news/newsreleases/articles/articles/080416dallas.htm; U.S. Immigration and Customs Enforcement. “ICE Executes Search Warrant Targeting Farm Labor Contractor.” http://www.ice.gov/pi/news/newsreleases/articles/articles/080605elcentro. htm; U.S. Immigration and Customs Enforcement. “ICE Immigration Enforcement Initiatives.” http://www.ice.gov/pi/news/factsheets/immmigration_enforcement_initia tives.htm; U.S. Immigration and Customs Enforcement. “Leaders of Multi-million Dollar Immigration and Tax Scam Sentenced to Hard Time.” http://www.ice.gov/pi/news/ newsreleases/articles/articles/080311harrisberg.htm; U.S. Immigration and Customs Enforcement. “Twelve Indicted by Grand Jury in Idaho on Identity Theft and Immigration Violations.” http://www.ice.gov/pi/news/newsreleases/articles/articles/080417boise.htm;

Judith Ann Warner

IMMIGRATION LAW AND EXCLUSION In a land founded by immigrants originally from England and Northern Europe, the question of who else should immigrate and be a part of this new

Immigration Law and Exclusion

nation has been one of intense legal, political, economic, and social debate since the 1800s. Deeply enmeshed with the politics of race, social class, ethnicity, religion, gender, health, and morality, exclusion laws have been (and remain) measures of the nation’s economic needs and fluctuations that are oftentimes linked with heightened levels of xenophobia (fear of foreigners) and intolerance. BACKGROUND The United States of America began as a settlement of British immigrants. Seeking religious freedoms and profitable access to land and resources that were in use by the Native Americans, the first British settlers were unconcerned with, nor able to control, the arrival of other immigrants, mainly from Northern Europe. Their security and control priorities were focused on the Native American populations, which made the increases in the number of Europeans a beneficial and desired thing at the time. The position of relatively open immigration held since independence changed by the end of the 1700s to one rooted in racism and prejudice, creating a climate of control, restriction, and, later criminalization (making an act illegal). The two sides to the immigration debate can be simplified into two group positions: (1) those who support tighter control and restrictions on immigration (claiming that America is for Americans—albeit those of European ancestry) and (2) those who basically favor open or near-open immigration for all persons who either choose to come or are forced to come as refugees or asylum seekers. Thus, the issue is fundamentally one that questions who has the right to the available economic and cultural resources of the United States and who does not. The current immigration system is, in most people’s opinion, in need of fundamental reform, although what such reform should look like has been a matter of both heated current and historical debate. HISTORY OF IMMIGRATION EXCLUSION The first incidence of immigration control was in 1788 when Congress encouraged the states to enact laws to prevent “convicted malefactors from foreign countries” from coming to the United States, although such laws were virtually unused. In 1790 the Supreme Court stipulated in the Naturalization Act that, “any alien, being a free white person, may be admitted to become a citizen of the United States.” Obviously the key words in the act are free and white; the original notions of liberty and equality for all had been qualified by race first and foremost and next by economic position. In 1798, the Alien Acts were passed, prompted by aggression between the United States and France. These acts gave the president the right to deport aliens thought to be a threat to public safety, but they did not say anything about excluding them from entering the United States in the first place. Furthermore, they expired after three years. It was not until the 1875 Page Law that genuine immigration restriction was declared by the Supreme Court to not only be a responsibility of the federal government but also to be the exclusive right of the federal government.

| 431

432

|

Immigration Law and Exclusion

The roots of U.S. exclusionary immigration laws lie in racism and bigotry, and are exemplified in the original 1790 naturalization laws that restricted citizenship to include only free white persons. The 1875 Page Law Supreme Court ruling enacted new laws restricting the entry of criminals, prostitutes, lunatics, and others thought to be either a threat to the moral fabric of society or to have the potential to be a social burden. The link between racism and immigration law is most clear in the Chinese Exclusion Act of 1882. Congress, ironically, passed the Chinese Exclusionary Act not long after having passed the Fourteenth Amendment, granting equal protection under the law to all persons. The gaining of new levels of legal freedoms by African Americans as the Chinese lost the freedom to enter made it apparent that exclusionary immigration laws have always been and remain linked to domestic issues involving political, economic, and social interests and needs within the United States as well. The laws barring the Chinese were later expanded to include persons of Asian ancestry from any nation. The so-called Gentleman’s Agreement between the U.S. and Japanese governments in 1907–1908 barred Japanese and Koreans (although Japanese men already in the United States could send for wives from Japan). The Immigration Act of 1917 identified an Asia barred zone, excluding immigration from any country in Asia or adjacent to Asia that was not a colony of the United States. Other laws in this period instituted the barring of certain laborers as well as the creation of the Mexican Border District to stem the tide of immigration into the United States from Mexico. Furthermore, the 1924 Johnson Act was instrumental in the creation of a racialized, national-origin quota system that made it possible to exclude eligibility for immigration on the basis of race, such as being nonwhite. This law made race, ethnicity, and nationality the determining factors in U.S. immigration policy and granted the government even greater control over who would be allowed in and who would not. Preference was given to white immigrants, those from Northern and Western Europe, as opposed to those from Southern and Eastern Europe, such as Jews and Italians, who were not, at that time, seen as white. In short, the overall objective was understood to be keep America white. During World War II, Japanese Americans (many of whom were citizens) were forced into internment camps because they were seen as being potential enemies of the state. In contrast, the Chinese, who were allies, were rewarded with the 1943 Magnuson Act. It repealed the Exclusion Act of 1882 and lifted the racial bar by allowing in a small quota of Chinese immigrants. The 1952 Immigration and Nationality Act (INA), also known as the McCarran-Walter Immigration Act built upon the 1924 Johnson Act. Senator Pat McCarran first introduced the McCarran Internal Security Act in 1950 as part of the postwar, anti-communist movement, requiring that American Communist Party members register with the attorney general. President Truman vetoed the bill, indicating it was in opposition to the Bill of Rights. Congress overrode him, and the bill became law. Two years later McCarran and Congressman Francis Walter wrote the McCarran-Walter Immigration Act, which aimed at controlling subversion. This act permitted the government to exclude or deport noncitizens who engaged in activities against the public interest or which

Immigration Law and Exclusion

threatened national security. Anyone claiming to be, or even merely thought to be, a communist or associated with the communist party or other groups deemed subversive was under particular scrutiny. Although the linking of immigration law and questions of political ideology was not new, this act was the first attempt in many decades to give structure to immigration law. Furthermore, this act kept the National Origin Quota System that was established in 1924, but instead of targeting only Asians, it expanded quotas to all countries and ethnicities—except those of the Northern and Western Europe—and began the first system of visa preferences for those persons with special skills or those with family members already in the United States. As part of the 1952 McCarran-Walter Immigration Act, the Senate Committee of the Judiciary proposed in 1950 that homosexuals and individuals considered sex perverts be excluded. In the final writing of the act the words homosexual and sex perverts were not included and they instead became part of the provision that barred entry by “psychopathic personality with psychopathic sexuality” (House of Representatives No. 1365, 82nd Cong. 2nd sess. 47, 1952, cited in Foss 1994, 452). In 1965 the exclusion of gay and lesbian persons was rewritten under a provision barring admission of sexual deviates. One aspect of this issue is that it is difficult to determine sexual orientation during the course of immigration by any means other than relying on self-disclosure or third-party disclosure. Identification was probably based more often on socially constructed stereotypes that said more about society’s fears than about the person in question. The 1965 Immigration Act, an amendment to the 1952 Immigration and Nationality Act, abolished the racial national-origins system and set in place numerical limitations (20,000 from each nation) that were no longer based on nation of origin. This amendment was in accordance with the civil rights movement, which was forcing government to lift racial restrictions in all areas of American life. In 1986, Congress passed the Immigration Reform and Control Act (IRCA). It focused on controlling and deterring unauthorized immigration by granting amnesty and temporary status to any undocumented immigrant who had continuously lived in the United States since January 1, 1982. It also opened the way for government to penalize those employers who knowingly hired undocumented workers and to increase the level of inspection and enforcement of immigration laws at U.S. borders. In 1987 the human immunodeficiency virus (HIV) was listed as a dangerous contagious disease. In 1987 the Helms Amendment, named after conservative Senator Jesse Helms, required the Public Health Service (PHS) to replace acquired immune deficiency syndrome (AIDS) with HIV on its list of dangerous contagious diseases that are official grounds for exclusion. A blood test for the HIV virus antibody became a part of the health exam required of immigrant applicants. Being HIV positive is a new grounds for denying admission to the United States although a waiver is applied if individuals can prove they are financially self-supporting and will not become a public health risk. The 1990 Immigration Act, much like the 1965 Act, actually increased the numbers of immigrants allowed into the United States while officially removing

| 433

434

|

Immigration Law and Exclusion

the ban against homosexuality from its long-standing position on the list of health-based exclusion grounds. The next major bill contributing to immigrant exclusion was the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), a comprehensive bill targeting terrorism and other crimes. This act was promoted by politicians and supported by a public who, based on the mass media’s emphasis on the severity of the issue, wished to control immigration. The bill gives the government greater license to deport immigrants convicted of crimes, including retroactive removal of individuals committing crimes designated as aggravated felonies, such as a prior driving under the influence (DUI) conviction, no matter when the offense occurred. It also reduced forms of relief from removal (deportation). The overall theme of exclusionary immigration can be seen to compromise the original ethos of the United States, which Thomas Jefferson called “an asylum for the oppressed,” in favor of the interests of political pundits who seek to promote special political and economic interests through the manipulation of public misconception, prejudice, and fear.

EMMA GOLDMAN In 1885, Emma Goldman (1869–1940) emigrated from Russia to the United States and took a job in a New York sweatshop. Surprised to find inequality and injustice similar to what she had experienced in Tsarist Russia, Emma joined the American labor movement. She formed a connection with Alexender Berkman; when he attempted to kill a businessman named Frick, Emma was linked with the act and denounced. In the anti-anarchism climate of the day, she was arrested during a protest for inciting a riot and became America’s first female political prisoner. After President McKinley’s assassination by the anarchist Leon Czolgosz on November 6, 1901, Goldman was the target of attempts to charge her with the crime. She was imprisoned for several weeks without charges and, upon her release, wrote a piece defending Czolgosz’s actions that alienated her from the anarchist community. In response to McKinley’s assassination, state and federal authorities passed the 1918 Alien Act that allowed for both the banning of any anarchist immigrating to the United States and the expulsion of any alien found to be an anarchist. On September 27, 1919, Goldman was released from another prison sentence and then immediately re-arrested as eligible for deportation under the 1918 Alien Act. In 1919, Goldman and 248 other foreign-born radicals were deported to the Soviet Union. Through her repeated arrests and her deportation, the government made every effort to silence and demoralize her. An influential anarchist of her day, Goldman was an early advocate of free speech, birth control, women’s equality and independence, rights for homosexuals, and union organization. Furthermore, Emma Goldman founded the American Civil Liberties Union, a human rights organization that still fights for the rights of all Americans.

Immigration Law and Exclusion

THE CURRENT EXCLUSIONARY IMMIGRATION POSITION Supporters of immigration exclusion continue to view high levels of legal and undocumented immigration as a major threat to American security and its political, economic, and social stability. These fears are expressed mainly in opposition to immigrants who are nonwhite, unskilled, poor, and from developing nations. Advocates of immigration restriction believe these immigrants have the intent of using and abusing U.S. resources in the form of jobs, welfare, public school, healthcare, and so on, and will increase crime and other forms of social disorganization. The arguments generally put forth by conservative academics and politicians, nativist groups, and the general public who support tighter immigration control can be simplified into six main overlapping positions. They are: (1) immigration is theft; (2) open immigration would destroy important American values; (3) we have better ways of helping the world’s disadvantaged; (4) Americans have a special obligation to their fellow citizens; (5) Americans are not obligated to be heroic in helping the world’s poor; and (6) immigration controls protect the disadvantaged. Central to these six positions is that they all place the economic and cultural interests of existing American citizens over those of potential American citizens. For those who support tighter immigration control, such prioritization is understood as not only a logical stand but also an ethical one, as in the lifeboat analogy that we cannot take in or help everyone lest we endanger our own futures. On the other hand, for those who advocate open immigration and view resources as a collective right, regardless of place of origin, prioritizing Americans over others is in fact un-American and, more to the point, unethical. Supporters of restrictive immigration laws include the former politician Pat Buchanan and current Republican Congressman from Colorado Tom Tancredo. Pat Buchanan argues that in any debate on immigration, life in the United States as we know it is at stake. He believes that immigration from Mexico poses the greatest threat to national security. This is because for Buchanan, Mexican immigrants, many of whom he claims are criminals and thugs, pose a “hellish risk” to the nation (Buchanon 2006). Thus, he calls for the government to secure the U.S.-Mexican border and to make the control of immigration a national priority before it is too late. Evidence that Buchanan’s views resonate with the general public lies in the increasing popularity of such groups as the Minuteman Project, a citizen vigilante group. Such claims are echoed by many other anti-immigration groups and, according to a recent National Public Radio report, the Southern Poverty Law Center has recorded a significant increase in immigration-related whitesupremacist activity since 2000. Immigration issues are being used as a way to attract new members. Incidents of cross burnings have been reported outside immigrant homes. A similar position to that of the Minutemen and conservative groups (e.g., the American Immigration Control Foundation and Americans for Better Immigration) is taken by Congressman Tom Tancredo, who is the founder of the Congressional Immigration Reform Caucus. According to Tancredo’s Web site, the issue is the high rates of both undocumented and legal immigration that the

| 435

436

|

Immigration Law and Exclusion

Caucus believes is contributing to a rise in crime and drug use, creating labor and environmental problems and an overall threat to Anglo-American culture. George Borjas, a prolific immigration scholar and Cuban immigrant, takes a more scholarly approach, but reaches similar conclusions that the present levels of immigration are at record levels and are potentially damaging to the U.S. economy. Borjas asserts that the relative skills and economic performances of today’s immigrants have declined as have their average earnings, making them more likely to become dependent on welfare (or crime) for generations, potentially taking resources from so-called deserving native-born citizens. Borjas’s overall argument based on his research is that today’s immigrants harm the economic opportunities of America’s least skilled by driving down wages and increasing the welfare rolls. Furthermore, the net economic gains to the host nation and natives are seen to be small as opposed to the costs; although according to Borjas, this does vary based on the nation of origin. Borjas makes a considerable point that the country of origin and its overall level of development play a significant role in an immigrant’s level of future earnings. What all this means in terms of policy is, according to Borjas, not in the least bit implied by the symptoms themselves. In fact, he critiques the tendency of politicians to grab onto supposed facts and create immigration policies based on them. In contrast, his goal is to set out the facts so that American citizens are fully aware of the social and economic implications of immigration policy. However, for Borjas in the end the facts, based on his analysis, unquestionably assert that there is an economic price to be paid instead of one to be gained (Borjas 1999e). After 9/11, another reason given for tighter immigration controls is national security and public safety concerns motivated by fears of terrorism. For example, writing for the Center for Immigration Studies, James Edwards states “We should restore new, strong ideological exclusion grounds to our laws . . . reducing the live threats from outside coming in will enable America to tackle those native-born dangers” (Edwards 2005, 20). His appeal is for Congress to reinstate ideological exclusion as a way to grant government the right to exclude or remove any persons thought or found to be espousing hatred and violence towards America either individually or as part of any extremist group. The passing of the USA PATRIOT Act is certainly a step in the direction Edwards is advocating in that it allows government much greater liberties in monitoring an individual’s or group’s activities that could, in the case of immigrants, lead to grounds for deportation. Targets for such ideological exclusion would in many cases be based on racial and religious profiling of Arabs and Muslims, most of whom are neither terrorists nor extremists of any kind. As with our emphasis on protecting American economic interests, such measures are justified as being necessary to protect our national security and economic interests despite the fact that they circumvent the Bill of Rights. Another outspoken critic of our current immigration policies is Robert Suro. He emphasizes that immigration is a highly complex challenge to national sovereignty and that it can’t be solved by quick fixes. His overall position is that immigration must be controlled and used for the country’s benefit, thus he favors policies that limit immigrants who are poor and may become an economic

Immigration Law and Exclusion

burden through their use of welfare. Though similar to Borjas’ position in relation to the control of immigrants from developing nations with impoverished backgrounds, Suro’s position is more supportive of the immigration of skilled persons who would be to the country’s benefit; he is, however, not for open immigration. The history and current climate of exclusionary immigration policy and practice has been one of ongoing debate. This controversy continues to be based in this nation’s contradictory commitments to its own constitution and founding principles, on the one hand, and to conceptions of its own identity, sovereignty, and security on the other. The historical and current links between the domestic treatment of legal and undocumented resident immigrants and provide important insights into the uses and abuses of the law when it comes to the state’s desire for legitimized political, economic, and social control. History of Open Immigration The right to migrate was recognized as early as 1641 by settlers in Massachusetts as part of their first bill of rights. Likewise, after independence from Britain, Thomas Jefferson idealistically asked: “Shall we refuse to the unhappy fugitives from distress the hospitality which savages of the wilderness extended to our fathers arriving in this land? Shall oppressed humanity find no asylum on this globe?” (Emery 1989–1990, 757). Other evidence that the new nation was committed to immigration is found in its naturalization law that required a swearing of allegiance not to a king or to a political leader but to a set of beliefs rooted in the liberal ideology of liberty and equality for all. Thus, in its first 100 years, America was ideologically committed to open immigration, but of course it was then also economically in need of numbers in the form of both settlers in the West and workers in the East. The Current Open Immigration Position Advocates of open immigration believe that exclusionary immigration laws have been historically used and abused to promote racism, sexism, classism, homophobia, and other forms of oppression, as well as to exclude political radicals. This was done to promote economic and political gain on the part of government and corporate business interests. The central argument for open immigration is based on liberalism and the conviction that if the United States represents any one ideological concept, it is that of liberty. Many appeal to the words of Thomas Jefferson that “all men are created equal” and that this includes the rights of immigrants to come to the United States in order to realize their own pursuit of happiness. In essence, this argument puts forth the equal moral worth of all people of the world. This worth is understood as a given rather than earned. Any application of such an argument would also call for e a radical change in the treatment of the existing poor within the United States and around the world through such policies as domestic tax redistribution, increases in foreign aid, and open immigration. Such

| 437

438

|

Immigration Law and Exclusion

liberal policies, both internationally and domestically, are not currently popular although the economic crises of 2007–2008 resulted in attention to the plight of the citizen poor, working class and middle class as imperiled by the unrestricted actions of the wealthy. Federal financial regulation is again an emergent policy. For obvious reasons, there is much less public support for open immigration than for exclusionary immigration. There are some immigrant, citizen, and nonprofit groups, like the National Council of la Raza, The National Immigration Forum, and the Network for Immigrant and Refugee Rights, that work for immigrants’ rights and overall issues of social justice, but they are far more marginalized and demonized in the media than those that promote anti-immigrant sentiments, racism, and nativist nationalism. Supporters of open immigration are more likely to be academics or legal scholars than politicians. For example, open immigration articulates a central ethos of America for law professor Garnet Emery. Emery states that “Implementation of an open door policy would not only fulfill the United States’ role as a haven for the oppressed and those seeking a better life, but would dispose of a legally unfounded system, that can not be constitutionally enforced” (Emery 1989–1990, 774–775). In other words, exclusionary immigration is not only an example of various forms of prejudice but it is most importantly understood by many as being fundamentally unconstitutional. However, despite this claim and its importance as a point of debate, no nation anywhere in the world is currently considering an open immigration policy, as to do so challenges the political idea of national sovereignty. Another point made for open immigration comes from recognizing the contradiction between the ability of trade and transnational corporations to cross borders and the inability of people to cross those same borders. In fact, there is no greater articulation of liberty than the freedom of movement, be it within a nation or between nations, especially in a time of increasing global economic integration. Saskia Sassen, a sociologist, believes that people should have the same rights of movement as commodities and the transnational corporations who produce, buy, and sell them. She also argues that by tightly controlling immigration, those who enter illegally are prey for companies that benefit from an abundant supply of cheap workers—workers who nevertheless pay taxes for services they are not eligible to receive, such as Social Security and welfare. Similar to Borjas’s argument for immigration restriction, Sassen believes that immigrant workers who are easily exploited are detrimental to more expensive citizen or authorized immigrant workers. Still, despite the popular tendency to blame undocumented immigrants seeking work, it should be recognized that their position as unauthorized entrants has been created by tighter immigration policies and the inability of their native countries to compete in the global market. Theoretically, if open immigration were policy, all workers with equal levels of skill would eventually be paid the same for a particular job, regardless of citizenship, thereby protecting wages and workers. The argument that an abundance of workers drives down wages assumes new jobs can’t or won’t be created, even though job creation is always a possibility either from the private or public sector. In this climate of negative public opinion, it is surprising that the Comprehensive Immigration Reform Act (CIRA) of 2007 sustained repeated attempts to bring it to a vote in the Senate during mid-2007. President Bush (2000–2008)

Immigration Law and Exclusion

unsuccessfully pressed for legalization and a guest worker program throughout his terms. Business interests are the major outspoken supporters of open immigration in the United States. CIRA 2007 proposed both a legalization program (with penalties), expansion of skilled immigration and the creation of an unskilled temporary labor program. Agribusiness and other corporate interests found the relative opening of access to skilled and unskilled labor that CIRA would bring very favorable. In fact, many business leaders take the position of civil libertarians as they prefer to gain access to workers through open immigration. Nevertheless, Senate politicians could never succeed in bring CIRA 2007 to a vote because they were presumably driven by a fear of what negative public opinion about immigration could do to 2008 re-election campaigns. CIRA remains an attempt a changing policy to open immigration to the developing world that may guide later attempts to achieve immigration reform. Harvard historian Oscar Handlin, who won the Pulitzer Prize in history in 1952 for his book The Uprooted, is quoted as stating that “In times of shrinking expectations, . . . everyone feels like a victim and pushes away outsiders to defend his own corner.” Such is the story of the struggle for more open immigration policies. At the beginning of the United States as a nation, when resources were plentiful, there were no restrictions. As the political, economic, and social interests of the emergent white dominant group developed and became institutionalized, more restrictive policies were adopted that reflected fears over each one’s own corner. Likewise, today there are rising fears in the native-born population over resources such as jobs, housing, welfare benefits, and above all terrorism, making the climate one that does not reflect America’s more-original generous, politically tolerant, and egalitarian ethos. It can only be surmised that opposition to open immigration or even more liberal immigration policies will remain as the global wars over how proverbial pie is split continue to grow. CONCLUSION As with many current debates, it is not possible to assert who is right or wrong because such value judgments depend on conceptual frameworks. Obviously, the two main positions on immigration are based on two totally different sets of assumptions about the meaning of liberty; the founding ethos of the United States; the ethical and moral implications of having abundant resources in a world where many nations and consequently persons do not; who is an American and what should America look and be like ethnically, racially, and culturally; national sovereignty; the moral worth of all human beings; the idea of the modern welfare state; the articulation of political pluralism; and ultimately, the economic, social, political, ethical, and moral meaning and implications of immigration. Thus, how one views and constructs any one of these overarching topics will affect how one views the issue of immigration, and consequently, the best way or ways to proceed in a world that is increasing daily in numbers and shrinking in resources. Today’s increasing level of anti-immigration opinion is fueled by both economic concerns and the war on terror. Calls for a return to more exclusionary immigration and deportation laws and the failure to bring the Comprehensive

| 439

440

|

Immigration Law and Exclusion

Immigration Reform Act (CIRA) to a Senate vote in 2007 must be seen in light of the USA PATRIOT Act, which has greatly reduced every American citizen’s individual rights. Attempts to pass legislation that focuses on the control of individual behavior, both domestically and internationally, are indelibly linked, as shown historically, to the prejudice of a white, procapitalist majority that counterposed themselves in relation to people of color, the poor, perceived criminals, political dissidents, sexual deviants, and any others who were thought to pose a threat to keeping America American. Whether the United States can come to grips and reconcile the current interest of its corporate class in bringing immigrants with that of other social classes under economic strain, who have been convinced that they are being undermined by immigrants, will remain to be seen. See also Congressional Legislation Reform; Diversity, Racism and Xenophobia; Legal Immigration System; Open Border Initiative; Political Perspectives; Public Health; Undocumented Immigration Policy; USA Patriot Act References: Bacon, David. “For an Immigration Policy Based on Human Rights.” In Immigration: A Civil Rights Issue for the Americas, edited by Susanne Jonas and Suzie Dod Thomas. Wilmington, DL: SR Books, 1999; Bennett, Marion, T. American Immigration Policies: A History. Washington, D.C.: Public Affairs Press, 1963; Bischoff, Henry. Immigration Issues.: Westport, CT: Greenwood Press, 2002; Borjas, George. “The Economic of Immigration.” Journal of Economic Literature. Vol. 32(1994):167–171; Borjas, George. Heaven’s Door: Immigration Policy and the American Economy. New Jersey: Princeton University Press, 1999; Borjas, George. “Increasing the Supply of Labor through Immigration: Measuring the Impact on Native-born Workers.” Center for Immigration Studies: Backgrounder, 2004; Buchanan, Pat. State of Emergency: The Third World Invasion and the conquest of America. New York: Thomas Dunn Books, 2006; Campi, Alicia. J. “The McCarran-Walter Act: A Contradictory Legacy on Race, Quotas and Ideology.” Immigration Policy Brief, June 2004; Center for Immigration Studies. “Three Decades of Mass Immigration: The Legacy of the 1965 immigration Act.” September 1995; “Congressional Immigration Reform Caucus: Working Toward Sound Immigration Policies for America.” http://tancerdo.houe.gov/irc/about.html; Congress, Senate, House, Congressional Budget Office. Migration News 13, no. 4 (2006). www.migration.ucdavis. edu/mn/comments.php?id+3221_0_2_0; Dunn, Timothy. J. “The Militarization of the U.S.-Mexicn Border 1978–1992: Low-Intensity Conflict Doctrine Comes Home.” Austin, TX: University of Texas Press, 1996; Edwards, James, R. “Keeping Extremists Out: the History of Ideological Exclusion and the Need for Its Revival.” Center for Immigration Studies: Backgrounder, 2005; Emery, Garnet. “The American Dream—For the Lucky Ones: the United States; Confused Immigration Policy. University of Arkansas at Little Rock Law Journal 12 (1989–90):755–775; Foss, Robert, J. “The Demise of the Homosexual Exclusion: New Possibilities for Gay and lesbian Immigration.” Harvard Civil Rights Liberties Law Review 29(1994):439–475; Furumoto, Kim Benita, and David Theo Goldberg. “Boundaries of the Racial State: Two Faces of Racist Exclusion in United States Law.” Harvard Black Letter Law Journal 17(2001):85–111; Isbister, John. “Are Immigration Controls Ethical?” In Immigration: A Civil Rights Issue for the Americas, edited by Susanne Jonas and Suzie Dod Thomas. Wilmington, DL: SR Books, 1999; Isbister, John. The Immigration Debate: Remaking America. New York: Kumarian Press, 1996; Johnson, Kevin, R. The “Huddled Masses” Myth: Immigration and Civil Rights.

Indefinite Detention | 441 Philadelphia, PA: Temple University Press, 2004; Johnson, Kevin, R. “Race, the immigration Laws, and Domestic race relations: A ‘Magic Mirror’ into the Heart of Darkness.” Indiana Law Journal 73:1079(1998):1111–1159; Kansas, Sidney. U.S. Immigration Exclusion and Deportation and Citizenship of the United States of American. New York, NY: Matthew Bender and Co., 1940; Kennedy, John, F. A Nation of Immigrants. New York: Harper Collins, 1964; Kukathas, Chandran. “The Case for Open Immigration.” In Contemporary Debates in Applied Ethics, edited by Andrew I. Cohen and Christopher Heath Wellman. Malden, MA: Blackwell, 2005; Ludden, Jennifer. “Supremacist Groups Take Up Immigration.” National Public Radio, March 6, 2007; Luibheid, Eithne. Entry Denied: Controlling Sexuality at the Border. University of Minneapolis, MN: Minnesota Press, 2002; Lund, John. M. “Boundaries of Restriction: The Dillingham Commission.” University of Vermont: History Review 6(1994), December; Sassen, Saskia. “Beyond Sovereignty: Immigration Policy Making Today. In Immigration: A Civil Rights Issue for the Americas, edited by Susanne Jonas and Suzie Dod Thomas. Wilmington, DL: SR Books, 1999; Schoolland, Ken. “Why Open Immigration?” International Society for Individual Liberty. www.free-market,net/resources/libertydocs/immigration-open.html; Suro, Robert. Watching America’s Door: The Immigrant Backlash and the New Policy Debate. New York, NY: Twentieth Century Fund Press, 1996; The Minutemen Project. http://minute menproject.com; Tischler, Henry, L., ed. Debating Points: Race and Ethnic Relations. New Jersey, NJ: Prentice Hall, 2000; U.S. Immigration History. “Rapid Immigration” http://www.rapidimmigration.com/usa/1_eng_immigration_history.html; Vedder, Richard, Lowell Gallaway, and Stephen Moore. “The Immigration Problem: Then and Now.” The Independent Review 4, no. 3 (2000):347–364; Vellos, Diane. “A History of Immigration Law regarding People of Color.” Excerpted from: Immigrant Latina Domestic Workers and Sexual Harassment. American University Journal of Gender and the Law 407 (1997):414–418.

Phoebe Godfrey INDEFINITE DETENTION Is a person guilty until proven innocent? If a person is detained indefinitely without being charged or deported, major constitutional issues are raised. If a person’s case is heard in a closed immigration hearing, then the human right to due process of the law on a case-by-case basis with access to a lawyer and judicial review is denied. Before the mid-1990s, most noncitizens without papers were detained or deported in a specified amount of time. This included political asylum applicants, refugees, and undocumented immigrants. The passage of the 1996 Illegal Immigration Reform and Individual Responsibility Act stipulated that all asylees should be placed in mandatory detention. After 9/11, the executive branch of government determined that individuals suspected of a connection to terrorism could be indefinitely detained and denied hearings open to the press and public. The new procedures heavily impacted asylees (political asylum applicants including persecuted refugees presenting themselves without documents). Individuals from terrorist-harboring nations became post-9/11 targets. Their detention was presented as being in the interest of national security. Nevertheless it cannot be denied that there are constitutional and human rights issues involved in the indefinite detention of people attempting to enter and/or stay in the United States.

442

|

Indefinite Detention

BACKGROUND The Pre-9/11 Asylee Crackdown Prior to the mid-1990s, Immigration and Naturalization Service (INS) could indefinitely detain any alien placed in removal proceedings, a process that could take years. This procedure became applicable if a noncitizen was considered a national security threat or was thought to pose a risk of flight. These individuals, however, could seek release from an immigration judge, and many asylees were allowed freedom to move about in the United States on bond, pending the result of their case. Acts of terrorism on U.S. soil have led to the passage of a series of laws impacting all foreign entrants. The first attack on the World Trade Center, a bombing in 1993, resulted in an investigation that established that two of the plotters were political-asylum applicants from the Middle East. After the Oklahoma City bombing in 1995, Middle Eastern terrorists were suspected, but the perpetrator was actually U.S. citizen Timothy McVeigh. Nevertheless, in 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) was passed months prior to the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). In a crackdown on criminal aliens and terrorists, AEDPA and IIRAIRA changed how political-asylum applicants and refugees entering without documents were handled by mandating detention. International law indicates that applicants for asylum should be processed, given a court date, and released into society at large. Historically, many U.S. applicants failed to appear for their court hearing, and a dramatic change resulted. Asylees began to be detained by the Immigration and Naturalization Service (INS), now renamed Immigration and Customs Enforcement (ICE); they were removed (deported) if they could not demonstrate the facts of their case. The prospect of indefinite detention began to occur when detained asylees deemed deportable at an immigration and naturalization interview asked for judicial review of their case. Individuals were allowed one judicial hearing per year. Noncitizens who were certain of reprisal if they returned to their homeland began requesting these hearings every year to delay deportation, despite being continually detained, as a means of survival. While detained, asylees have been sent to over-crowded ICE detention centers, jails, and even prisons if there is no bed space. They have no certainty of exactly when their cases will be heard and are frequently transferred, making contact with lawyers difficult. After 9/11, the Immigration and Naturalization Service, now the Bureau of Immigration and Customs Enforcement (ICE) has been uniformly detaining asylees of targeted national origin and basically treating them as criminals. The International Covenant on Civil and Political Rights Article 10(1) specifies that detainees should be treated humanely and with dignity. The system of federal detention and the actual jails and prisons in which asylees are kept do not meet these criteria. Detainees are uniformly treated like prisoners with uniforms, shackling, use of segregation cells for discipline, and often verbal and physical abuse. Some asylees have been in detention for years because they will not sign papers to voluntarily return to their countries of citizenship.

Indefinite Detention | 443

The second attack on the World Trade Center conjoined with the Pentagon on 9/11 prompted the almost immediate passage of the USA PATRIOT Act of 2001 without significant debate in Congress. The USA PATRIOT Act impacted all permanent resident aliens and undocumented immigrants considered to be of special interest because they came from nations designated as terrorist harboring. These individuals were detained and held in secrecy without access to lawyers. President Bush (2000–2008) and former Attorney General John Ashcroft stressed that these procedures were necessary for reasons of national security. Legal Procedures for Detainment with No Possibility of Return ICE has the authority to detain individuals who have been denied entry to the United States until they are deported. If detention is longer than 90 days, the prisoner is labeled a post-order detainee. The government refers to long-term detainees as unremovable; immigrant advocates call them lifers. For citizen prisoners, the term dead time refers to being detained before trial with no credit for a sentence. For noncitizen detainees, it refers to an uncertain and indefinite period of time. Indefinite detention also increased because the United States does not have deportation agreements with certain countries. These include: Laos, Cuba, Libya, and Vietnam. For former residents of Somalia, there is no recognized government to accept deportees. Citizens of these nations have been subjected to indefinite detention, including Marielistas, individuals admitted by Cuban boatlift in the 1980s. Fidel Castro is considered to have used the Mariel boatlift to empty Cuban jails and prisons. This allowed Cuban criminals to enter the United States and some continued illegal activities. It is estimated that 1,750 Mariel Cubans who were tried as criminals and convicted have been indefinitely detained. Other Mariel Cubans who are still in prison are scheduled to be released to ICE after their sentence is served. Legal Challenges to Indefinite Immigrant Detention Prior to 9/11 Prior to 9/11, detainees destined for deportation were held by the Immigration and Naturalization Service (INS) for an indefinite period of time. Certain individuals were from countries that did not have deportation agreements with the United States or nation-states that no longer existed. In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court ruled that detainees who could not be deported within six months should be freed. This case took away the right of the government to indefinitely detain noncitizens but made one exception for “terrorism or other special circumstances.” Attorney General Ashcroft immediately began to resist the prospect of releasing lifers. Three weeks after the Zadvydas ruling, he made a speech about the threat of criminal aliens being released. He mentioned that certain detainees were rapists, serial child molesters, and violent criminals although he did not specify that many of these cases were subject to immediate deportation. Ashcroft indicated that he would seek to bring additional charges, send detainees back to

444

|

Indefinite Detention

prison for unserved parts of their sentences, and authorize additional charges where appropriate. The Attorney General stressed that detaining criminal aliens was for purposes of public safety and to combat terrorism. This speech was made two months prior to 9/11. Mark Dow believes that much of the detentionrelated language of the post-9/11 USA PATRIOT Act of 2001 was designed to maneuver around the Zadvydas ruling for the purpose of maintaining indefinite custody. Post-9/11 Sweeps and Indefinite Detention After 9/11, the executive branch of the government was legally allowed to detain certain immigrants for an indefinite period of time. Immigrants from countries designated as terrorist sponsoring were placed in detention without access to lawyers, judicial review, or contact with the outside. In effect, their lives were suspended while they were held in an inhumane state of uncertainty. In the two months after the 9/11 attacks, over 900 noncitizens, especially Muslims from the Middle East and Southeast Asia, were detained (Pious, 2006). Immigration charges were filed against 765, and 478 were deported within a year. Notice of deportation was not always given to their families. After one year, 147 people were still detained, 74 on immigration charges and 134 on charges of other criminal offenses. Ninety-nine people were convicted of immigration offenses. About 24 immigrants were held in solitary confinement as material witnesses. The federal government has been reluctant to disclose who was held or why. The largest group of detainees was subject to immigration charges such as overstaying a visa without returning to their home countries or applying for official adjustment of status. In other words, these individuals were probably individuals with visas, permanent-resident aliens, visa overstayers, and undocumented immigrants from countries listed as terrorist sponsors. The government has refused to list the names of these individuals, and their cases have or are being reviewed in closed proceedings. Immigration judges were instructed to release no information about names or cases being tried. Despite all of this effort, extremely few of these individuals have been determined to have had even a remote connection to terrorists or terrorist organizations. Special Interest Immigrant Detention After 9/11, ICE was given the power to detain individuals without formal charges for 48 hours. Previously, charges had been required to be filed in 24 hours. The ability of the Attorney General and ICE to detain nonaliens indefinitely raises Constitutional issues. The broad definition of who constitutes a terrorist suspect allows a person who poses no threat to national security and has no risk of flight to be detained. These individuals can be indefinitely detained even if they prevail in their removal proceedings before an immigration judge. A noncitizen can be detained on “reasonable grounds to believe” she or he has a connection to terrorism. ICE believes that this is similar to the legality of a stop and frisk under the Fourth Amendment. Previously, the idea of reasonable

Indefinite Detention | 445

suspicion had never been used to justify custodial arrest or indefinite detention. This ambiguous reason for detention has been primarily applied to noncitizens. The post-9/11, national-origin-based immigrant sweep has been compared to the internment of the Japanese in special camps during World War II. Noncitizens who were of Arab nationality or believers in the Muslim religion were rounded up. There were no camps, just federal detention. Both groups endured captivity. The John Ashcroft Rulings. Former Attorney General John Ashcroft authorized major changes in detainee treatment after 9/11. Immigration officers were allowed to detain noncitizens considered to be of special interest without criminal charges. At first, the time period a person could be held was 24 hours, later it was extended to 48 hours. New regulations, however, provided that detention could occur for a reasonable but indefinite time due to emergency or extraordinary circumstance. If homeland security is considered an emergency, and the United States has been on alert continuously since 9/11, then noncitizens can be held indefinitely. These administrative detainees were not charged with a crime but held until cleared of a connection to terrorism or if they were material witnesses in terrorism cases, until they testified. These new rules allowed immigration administrators to set aside the rulings of immigration judges and any release order if they felt there could be a danger to the community or at risk of flight. All that was needed was a form for the Board of Immigration appeals requesting continued

KIM HO MA Kim Ho Ma came to the United States from Cambodia as a child. In the United States, he became a gang member and was convicted of manslaughter. When released from prison, because he was a criminal alien, he was transferred to INS detention, but there was no possibility of deportation to Cambodia due to the lack of an international agreement. In 1999 Kim Ho Ma filed a habeas corpus petition authorized by a federal judge because he could not be deported. He stated that he had served more time in detention than in prison. He was ordered released and ordered to obey the law. In 14 months, he was arrested on a charge of assault and domestic violence, and the INS again took the position that he should be detained. In protest of his return to detention, Kim Ho Ma went on a hunger strike of limited duration. The INS then wrote the incident up as evidence that he was unreformable. The INS continued to argue that Kim Ho Ma could not behave appropriately and should be detained, perhaps indefinitely. Kim Ho Ma’s case went to the Supreme Court and was consolidated with Zadvydas. The Supreme Court, in a 5–4 decision interpreted immigration law as implying that an individual could only be detained a reasonable period of time, which would be subject to federal court review. Six months was determined to be a reasonable period of time. Ma was released after six months of detention.

446

|

Indefinite Detention

detention and another hearing. In addition, the Attorney General could respond to an immigration agency’s appeal by authorizing an individual to continue to be held. Immigration officials routinely applied for these appeals if a low bail amount was set for an individual’s release. Former Attorney General John Ashcroft authorized detainee proceedings to be held in secret. Chief Immigration Judge Michael J. Creppy ruled that judicial review with no visitors, family, or press was to occur in 611 of 766 special interest cases. The government did not release names in order to protect the future of the individuals in this country. They maintained that individual names needed to be kept private and that it would also keep information from terrorists. Noncitizens who entered without documents could be held by the Department of Homeland Security if it was believed that they could be a nationalsecurity risk. This happened even if they had no apparent link to a terrorist group or had been granted bond by the Board of Immigration Appeals.

POST9/11 ARGUMENTS FOR AND AGAINST INDEFINITE DETENTION Homeland Security as a Reason for Indefinite Detention The 9/11 terrorist attack against the United States was unprecedented in scale and should be of concern to any citizen. The world mourned the incident of the two towers. The United States was under attack by an enemy that was not attached to any nation-state. Under these circumstances, all individuals who might be found to be connected to al Qaeda terrorism needed to be secured until their innocence or guilt could be determined. Special-interest deportation hearing closure was conducted to avoid disclosure of any sensitive information relevant to terrorism investigations. Terrorist organizations were to be prevented from gaining information on investigative techniques. The patterns of entry into the United States were considered vital intelligence information about how terrorists could get in and out. If a member(s) of a terrorist cell were captured, it was thought that the organization should not be allowed to learn how severe the intelligence leak might be (although an individual disappearing might be a dramatic clue). The executive branch felt that harm would result from open hearings. Terrorist organizations might alter attack planning or learn of easy ways to enter the United States. Terrorists could seek to disrupt pending proceedings by destroying evidence, coercing witnesses, or attacking the hearing location. It was even thought that disclosing hearing information would prevent immigrantcommunity cooperation because of fear of retaliation. In North Jersey Media Group v. Ashcroft, 308F.3d 198 (2002), the United States Court of Appeals for the Third Circuit upheld indefinite detention in specialinterest cases on six criteria. First, the Court reiterated that public hearings at deportation proceedings reveal sources and enable terrorist organizations to learn how national-security-related investigations are conducted. Second, although the specifics of an individual case may not jeopardize investigation, the details and

Indefinite Detention | 447

specifics of special-interest cases as a whole would allow terrorists to detect successful and unsuccessful patterns of entry. Third, information about which terrorist cells have been breached would allow exposed cells to shut down and new opportunities to be developed. Open hearings could result in exposing what the United States did not know about a planned attack, allowing it to proceed. Fourth, if a terrorist organization learned a member was detained or that a plot had been uncovered, it might expedite an attack. If an attack had to be re-planned, it could be shifted to another cell. Fifth, open investigations allow terrorists to create and plant misleading evidence or to destroy compromising evidence and threaten potential witnesses. Sixth, detainees being investigated for connections to terrorism have a compelling interest in not being stigmatized by open court hearings. It was thought that linking detainees in any way to the 9/11 investigation would forever compromise them even if they were innocent. The Court did not oppose the Attorney General’s actions but suggested that executive accountability would determine the validity of closed special-interest detainee hearings. Indefinite detention allowed the Department of Homeland Security the time to thoroughly research an individual’s background and locate any possible connections to terrorism. The massive scale of the attack and the elusiveness of the enemy justified this. The steps taken in the interest of national security did restrict civil liberties, but temporary loss of liberty is not a threat to democracy as great as another 9/11-type attack would be. Indefinite Detention as a Violation of Human Rights Although homeland security is an important issue, the Bill of Rights applies to persons not citizens. Noncitizens, both permanent residents and undocumented, have historically been considered to have many of the due-process protections provided by the fourth and fourteenth Constitutional amendments. Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the USA PATRIOT Act of 2001, American Constitutional law had come to provide many civil rights and liberties to noncitizens. After 9/11 noncitizens of Arab or Muslim background were targeted for intensive screening without due-process protection. Newspapers filed federal court legal suits opposing Judge Creppy’s directive that immigrant detention, hearings, and deportation were of special interest and closed. They argued that the First Amendment requires a case-by-case treatment of individuals—not mass detention. In addition, the Judge Creepy directive disallowed special-interest detainees from giving out information about their proceedings because it would remove secrecy. There is a basic contradiction in federal government detention policy. It insists that individuals must be held in secret with closed hearings to prevent leaks to terrorists. On the other hand, it previously theoretically allowed that detainees should be free to communicate with family and lawyers, precluding secrecy. After 9/11, 611 detainee hearings excluded family, friends, and in cases of individuals who could not afford counsel, attorneys. The immigration judges who heard these cases were individuals employed by the Department of Justice.

448

|

Indefinite Detention

The closure of these hearings did not occur on a case-to-case basis. This uniform type of procedure did not meet the standard for due process of the U.S. Constitution. All closed immigration and deportation hearings assumed, on the basis of one extreme attack, that al Qaeda was a powerful organization that had penetrated the United States in multiple ways. There was no way in which this perceived threat to national security could be disproved without investigation, but the assumption that there were many terrorist cells in the United States has now been disproved by both the inability to find guilty individuals among those immigrants detained and the fact that no further attacks occurred through August 2008. Since passage of the USA PATRIOT Act, Immigration and Customs Enforcement (ICE) prosecutors can keep a noncitizen in detention even if an immigration judge orders that they be released. ICE only needs to file an appeal to the release order, and they do not need to show evidence that an appeal would overturn that decision. Immigration custody appeals normally take months or over a year to decide. A legal critique of this issue is that the hold-until-cleared policy was a very vague way of seeking persons connected to terrorism and had no written criteria. There was no clear standard for identifying a person to be of high interest or of interest, other than the whims of the Department of Homeland Security and the Bureau of Justice, who were seeking terrorists. The FBI International Terrorism Operations section lacked sufficient agents to investigate detained noncitizens, and ICE imprisoned these individuals until they could be cleared as not of interest. The average period of detention was 80 days and some were held up to 18 months. Congress authorized holding and detaining aliens on “reasonable grounds to believe” they endangered national security. Criminal charges or deportation were supposed to occur within seven days, not after an indefinite period of time waiting for an investigator to get around to it. If there has been an immigration violation, detention without bond is mandatory until a person is criminally charged, deported, or found to be unconnected to terrorism by the Attorney General. If a noncitizen is potentially deportable, they can be detained for six months longer while investigating connections to terrorists and the decision must be reviewed every six months. A detainee is supposed to be able to apply for a writ of habeas corpus to challenge the legality of detention but has no right to governmental legal representation, only judicial review. Detainees do have a right to counsel, but 4/5 of detainees held after September 11 were not represented by lawyers. Although some detainees secured counsel after they were found to be held and their families secured lawyers, the detainees had no explicit right to obtain counsel, a critical aspect of due process under constitutional law. Their families were not told where or why they were being held. Before 9/11 immigrant-advocacy groups could obtain the names of detainees, but after 9/11 the names were withheld. Detainees were denied access to phones for days or weeks and not immediately notified of charges against them. Noncitizens, especially resident permanent aliens, have a right to pursue their livelihood. Individuals were taken away from their jobs and their families while

Indefinite Detention | 449

their lives were put on hold. Their families and any relatives here or abroad were left to cope with no information as to the adjudication of their household member. In the case of individuals who were detained but found unconnected to terrorism, the government issued no apology or promise of financial compensation for the slice of their life that was taken. The federal government, particularly President George W. Bush and John Ashcroft claimed that the hold-until-clear policy was necessary to fight the war on terror. As of 2007, it became very apparent that individuals from Middle Eastern countries and practicing Muslims were being deported for immigration violations and prior criminal offenses rather than any connection to terrorism. The sweep for terrorism suspects was carried out among 83,000 noncitizens, and none were charged with committing terrorism. Nevertheless, 13,000 people were deported as a result of an investigation based on nationality and religion without access to immigration advocates. Denying access to the public and the media creates ‘nonpersons’ captured in detention. Because the sweep of Arab and Southeastern Asian Muslims did not net any substantial number of terrorists or terrorist connections, it can be argued that the rush to detain noncitizens was both unlawful, destructive to human lives, a colossal intelligence failure, and a waste of resources. The fear that al Qaeda and other terrorist organizations could have other cells in the United States produced a degree of overreaction unparalleled since the Japanese American internment during World War II. Need to Improve Due Process Rights of Immigrants Libertarian political groups and conservative think tanks think the dueprocess rights of noncitizens in detention need improvement. The Heritage Foundation, a Washington-based group, proposed that the executive branch should clarify and even reduce its level of authority. They feel that a law should specify that an individual suspected of a connection to terrorism could be held before and after a deportation hearing. The current requirement for holding is that the noncitizen must be considered a “risk to the community,” a vague term traditionally used in the law to describe conventional criminals, not suspected terrorists. The Heritage Foundation supported denying bond to noncitizens suspected of terrorism but specified that they should have the right to challenge that decision in the immigration courts. They argue that no one should be deported until investigation is concluded. To facilitate investigation, they argue that better databases should be linked through the Department of Homeland Security (DHS) and that DHS rather than the FBI should screen information. If an investigative screening could be done within 48 hours of a noncitizen being detained, it would be a humane standard compared to indefinite detention. Afterward, a noncitizen could be released or deported, if appropriate. The Heritage Foundation recommendations would end indefinite detention although persons would still be subject to being held until cleared. This solution relies on an upgraded version of a high-technology surveillance society in which fingerprints or other

450

|

Indefinite Detention

ILLEGAL ENEMY COMBATANTS, GUANTANAMO, AND THE RIGHT TO DUE PROCESS In 2001, Congress passed an Authorization for Use of Military Force (AUMF) against “nations, organizations or persons” thought to have “planned, authorized, committed or aided” in the 9/11 attacks. Prisoners of war were designated as illegal enemy noncombatants. Because the conflict centered on the activities of a terrorist organization rather than a specific nation, the United States maintained that it did not have to comply with the rules of the Geneva Convention for treatment of prisoners of war. Hundreds of prisoners captured in Afghanistan were sent to the U.S. military base in Guantanamo, Cuba, denied the right to a lawyer, and tried by a military tribunal. Three of the detainees, John Phillip Walker Lindh, Yasser Esam Hamdi, and Joe Padilla were American citizens better able to gain legal access to the courts.

John Phillip Walker Lindh John Phillip Walker Lindh was thought to be fighting for the Taliban. Extensive publicity about his status as an American citizen resulted in his case being brought to trial. Lindh pleaded guilty on two counts: fighting for the Taliban and carrying weapons. His prior confession, obtained in Afghanistan, was deemed illegal because of absence of counsel and poor treatment in captivity. Lindh agreed to provide the government with information as part of his plea bargain and was sentenced to 20 years in prison.

Yasser Esam Hamdi Yasser Esam Hamdi was initially imprisoned without formal charges and denied access to legal counsel. After officials learned he was a citizen, Hamdi was transferred to detention in the United States. In the case of Hamdi et. al. v. Rumsfeld, Secretary of Defense et al. the Supreme Court ruled that American citizens were entitled to contest detention as an illegal enemy combatant. In Hamdi’s case, a petition was submitted by his father alleging that he had gone to Afghanistan as a relief worker and, although arrested in a battle zone with a weapon, was not an illegal combatant. It was argued that since Hamdi was in Afghanistan for less than two months, he could not have undergone al Qaeda indoctrination and military training. Hamdi obtained release to Saudi Arabia with the understanding that he would give up U.S. Citizenship. His Supreme Court decision is considered one of the most significant civil rights cases in recent times because it challenged the post-9/11 powers granted to the president and the executive branch. Nevertheless, the decision did not cover foreign nationals

Jose Padilla Jose Padilla, also known as Adham Amin Hassoun, was among a group indicted on November 17, 2005 for conspiracy to murder U.S. nationals and to provide support for terrorists in a dirty bomb plot. He was not allowed communication with lawyers or outsiders on grounds that he was being interrogated and that contact would disrupt his testimony during military confinement. Ultimately released to civilian detention, his postinterrogation lawyers have maintained that poor treatment during confinement caused posttraumatic stress disorder. He was considered fit to stand trial, and found guilty of supporting Islamic terrorism overseas. The case is under appeal.

Indefinite Detention | 451

biological recognition systems could be connected to criminal records and investigations. Supreme Court Decisions on Mandatory and Indefinite Detention The Supreme Court upheld mandatory detention in Demore v. Kim (2003). The provision of the Illegal Immigration Reform and Individual Responsibility Act of 1996 that mandated detention of convicted criminal aliens without right to release on bond was maintained, even in the case of lawful permanent residents. In Clark v. Martinez (2005) the Supreme Court determined that terrorist suspects or material witnesses in terrorism cases could be indefinitely detained for purpose of national security. Nevertheless, both the Zadvydas v. Davis (2001) and Clark v. Martinez (2005) Supreme Court decisions found indefinite detention that was potentially permanent to be unconstitutional. The Supreme Court maintained that due process of law under the Constitution applies to undocumented entrants, temporary entrants on visas, and permanent resident aliens. The Supreme Court maintained that freedom from government custody, detention, or physical restraint was based on the Fifth Amendment’s due-processof-the-law clause. The Supreme Court interpretation left a loophole: it did not define when indefinite detention should end or how a permanent situation of detention was to be avoided. CONCLUSION The American public should be protected from terrorists who are citizens or noncitizens. After the 9/11 tragedy, Americans were captured by fear and the government turned to the tactic of conducting an ethnic and religious sweep that denied the reality of what immigrants mean to America. Immigrants, both documented, permanent-resident aliens and undocumented immigrants, have made the United States the country it is today. When the Oklahoma bombing occurred, the first thought was to blame Muslims of foreign nationality, but that was a false action. American citizens planned the bombing, but no sweep of European American descendents of immigrants occurred. Similarly, all of the 9/11 attackers entered the country legally on visas and were not immigrants. Despite the almost-complete lack of evidence that noncitizen immigrants were involved in terrorist organizations, many have been deported or indefinitely detained. The Supreme Court recognized that it is unconstitutional to deny due process of the law to detainees. It has gone further by mandating that indefinite detention cannot become permanent detention. Yet when does indefinite detention become permanent? That hazy area of the law promises to bring further contention. Advocates of strong measures to promote homeland security and public safety will meet immigrant-advocacy groups arguing on behalf of detainee’s human rights under federal and international law in court. The future of indefinite detention is undecided.

452

|

International Students in Higher Education References: Cole, David. Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism. New York: The New Press, 2003; CNN. “Jury Finds Padilla Guilty on Terrorism Charges.” http://www.cnn.com/2007/US/08/16/padilla.verdict/; Demore v. Kim. Supreme Court of the United States. April 29, 2003. http://www.supremecourtus. gov/opinions02pdf/01–1491.pdf; Dow, Mark. American Gulag: Inside U.S. Immigration Prisons. Berkeley, CA: University of California Press, 2004; Hamdi et. al. v. Rumsfeld, Secretary of Defense et. al. Supreme Court of the United States. June 28, 2004. www.law. cornell.edu/supct/html/03–6696.ZS.html; Periodic Report of the United States of America to the United Nations Committee Against Torture, October, 2005. http://www.state.gov/ documents/organization62175.pdf; Pious, Richard. The War on Terrorism and the Rule of Law. Los Angeles, CA: Roxbury Publishing Company, 2006; United States of America v. Adham Amin Hassoun et al. United States District Court for the Southern District of Florida. November 17, 2005. http://www.wiggin.com/db30/cgi-bin/pubs/11–17–05 Indict ment.pdf; United States of America v. John Philip Walker Lindh, a/k/a “Suleyman al-Faris,” a/k/a “Abdul “Hamid.” United States District Court for the Eastern District of Virginia. February 2002. http://news.findlaw.com/hdocs/docs/Lindh/uswlindh020502cmp.htm; Welch, Michael. Detained: Immigration Laws and the Expanding I.N.S. Jail Complex. Philadelphia, PA: Temple University Press, 2001; Zadvydas v. Davis. Supreme Court of the United States. April 29, 2003. http://www.supremecourtus.gov/opinions02pdf/01–1491.pdf.

Judith Ann Warner

INTERNATIONAL STUDENTS IN HIGHER EDUCATION International students represent a group of highly skilled migrants. They raise different issues about movement across borders than the general population of U.S. immigrants. Due to their high levels of human capital, such as educational degrees, international U.S. graduates are desired by employers in both sending and receiving societies. Despite their temporary admission by the U.S. government, quite a few students obtain a work visa or green card (permanent residence) upon completion of their academic programs and remain in the United States. There is a controversy over the global impact of U.S. retention of professional graduates from developing countries. Extended stays of international professionals after graduation can increase the economic and technological gap between the sending societies and the United States, furthering preexisting global inequality. This phenomenon, often referred to as a brain drain, has been a serious concern for sending societies, particularly developing countries who do not want to lose their best talent. Recently, the idea of brain circulation has emerged to refer to the migration of highly skilled personnel, international students, and scholars; it is viewed as benefiting both sending and receiving societies. Highly skilled migrants are said to create more employment and to advance the economies and technology at both ends of international migration. Even though international students are found in the relatively secluded space of universities and colleges, some of them are vulnerable to discrimination based on their race, nationality and/or religion at the institutional and personal levels. Prejudice and discrimination can follow them after they graduate if they take professional jobs in the United States. Since 9/11 the United States has harmed

International Students in Higher Education | 453

itself in the global competition for talent because of stricter scrutiny of foreign entrants that may encourage students to study in other countries or seek professional positions elsewhere. Ultimately, discouraging international students and graduate professionals could hurt the United States. Despite a return toward a normal volume of international students in the United States, there are signs that a greater number of students are choosing to study elsewhere.

BACKGROUND Definition of an International Student From the viewpoint of current U.S. immigration laws, international students are not immigrants. They are admitted to the United States “temporarily for a specific purpose” (U.S. Department of Homeland Security, 2007: 1); international students are nonimmigrant aliens who are legally allowed to stay in America on a temporary basis to complete their academic or vocational programs. The Institute of International Education defines an international student as “an individual who is enrolled for courses at a higher education institution in the United States on a temporary visa, and who is not an immigrant (permanent resident with an I-151 or ‘Green Card’), a citizen, an illegal alien (undocumented immigrant), or refugee” (Koh Chin and Bhandari 2006, 90). The great majority of international students at higher education institutions hold F-1 academic student visas, and a small portion of them are admitted under J-1 exchange visitor visas to participate in specialized training programs at academic institutions or M-1 vocational student visas. There is no numerical cap on these visas. The Number of International Students in the United States In 2000, 514,723 international students were enrolled in U.S. higher education institutions (Koh Chin and Bhandari, 2006). The U.S. Census indicates that the number of foreign-born individuals residing in the United States in 2000 was 31,107,889 (or 11.1 percent of the total population). That means international students comprised 1.7 percent of the foreign-born population in America and 0.2 percent of the total U.S. population. During the last five decades, the number of international students has steadily increased from 48,486 international students enrolled in 1960 to a peak of 586,323 in 2003. The momentum was impacted by stricter visa application procedures after 9/11 and higher tuition at U.S. colleges and universities although it seems to be recovering. In the 2006–2007 academic year, there were 582,984 international students enrolled in U.S. higher education institutions (Koh Chin and Bhandari 2008) and further increase is expected. Nonetheless, the competition for international students has become intense among major receiving countries. International students and scholars have been an eminent part of the scientific community of America and more recently of technology-based entrepreneurship; any cause of decline in the number of international students may have a serious impact on the future economic and scientific life of America.

454

|

International Students in Higher Education

Graduate Education. There is a recent trend of more international students enrolling at the graduate level than in undergraduate programs, both in absolute numbers and in enrollment ratio. Since 2001, the number of international students enrolled in graduate programs has exceeded that of international students enrolled for associate and bachelor’s degrees. In 2007 there were 238,050 international students enrolled for associate or bachelor’s degrees, and 264,288 enrolled at the graduate level (Koh Chin and Bhandari 2008). Gender Ratio. The gender ratio among international students used to be asymmetrical; three quarters of all international students were male in the 1970s. It is now close to parity; 55.6 percent of international students were male and 44.4 percent were female in 2006. The figure is more balanced among undergraduate students at 51.0 percent male and 49.0 percent female than among graduate students at 58.6 percent male and 41.4 percent female. In addition, 95.0 percent of undergraduate students are single, as are 77.8 percent of international graduate students (Koh Chin and Bhandari 2006). The United States as a Receiving Country The United States has long been the most popular destination for internationally mobile students. While America still receives more international students than any other country, 22 percent of international students worldwide, followed by the United Kingdom (14%) in 2006, its dominance has subsided as the competition for recruiting international students has become more intense. The enrollment ratio of international students in the U.S., 3.9 percent, lags behind Australia (where one in five students enrolled is international), the United Kingdom, Germany and France (Koh Chin and Bhandari 2006). Sending Countries International students are more likely to come from Asia and less likely to come from Latin America than the foreign-born immigrant population. In 2007, America accepted 83,833 students from India (14.4 percent, an increase of 10 percent), 67, 723 from China (11.6 percent, up 8 percent from 2006), and 62,392 from South Korea (10.7 percent, up 6 percent from 2006). The list of students’ origin continues with Japan (6.1 percent), Taiwan (5 percent), Canada (4.9 percent), Mexico (2.4 percent), Germany (1.5 percent), Thailand (1.5 percent), and Turkey (1.1 percent) (Koh Chin and Bhandari 2008). The leading 10 countries of origin have not drastically changed in recent years. Asia has been the largest sending region, comprising 59 percent of total U.S. international student enrollments in 2006, followed by Europe (14.0%) and Latin America (11%) (Koh Chin and Bhandari 2008). The mixture of international students is different from that of the general foreign-born population. U.S. Census data from 2000 indicates that 51.7 percent of the foreign-born population came from Latin America. Mexico alone contributed more than half of this population; approximately one in three foreign born came from Mexico.

International Students in Higher Education | 455

Approximately 26 percent of all U.S. immigrants originate from Asia, and 15.8 percent originate from Europe (Malone et al. 2003). In 2006–2007, only four percent of U.S. international students in the United States came from the Middle East. Although the United States has placed greater scrutiny on visitors from this region, Saudi Arabia began a scholarship program that doubled the number of individuals studying English or attending college in the United States. Urban Destinations and Research Institutions When looking at the distribution of international students in America, two patterns become apparent. First, international students converge in urban areas; one in two international students attends a university or college in a large city or on the urban fringe of a large city. New York, Los Angeles, and Boston are the most popular metropolitan destination areas. California, New York, and Texas, combined, host one third of all international students, followed by Massachusetts and Florida. These five states accommodate 240,662, or 43 percent of all international students (Koh Chin and Bhandari, 2006). The second pattern is that international students are not equally distributed across universities and colleges of different types. More than half of international students attend large doctoral/research institutions. According to Koh Chin and Bhandari’s calculation, “the leading 25 institutions, all large Doctoral/Research institutions . . . hosted 18% of all international students” (2006, 11). It is not rare for these institutions, among the leading U.S. universities, to host more than 1,000 international students each. University Areas of Concentration There is a trend among international students for choosing business, science, and technology degrees. In 2007, business and management were the most popular fields of study among all international students (17.8%), followed by engineering (15.3%), the physical and life sciences (8.9%), the social sciences (8.4%), and mathematics and computer sciences (7.9%) (Koh Chin and Bhandari 2008). In 2006 among graduate students, engineering (23.4%), business and management (15.2%), and the physical and life sciences (13.0%) were the most popular fields; business and management (25.3%), engineering (17.6%), and the social sciences (8.9%) were the most popular among undergraduates (Koh Chin and Bhandari 2006). INITIAL ECONOMIC CONSEQUENCES OF INTERNATIONAL STUDENT ENROLLMENT Economic Contribution. International students contributed nearly $14.5 billion to the U.S. economy through payments for tuition and living expenses in 2007, which is a considerable figure (Koh Chin and Bhandari 2008). The New York

456

|

International Students in Higher Education

Times reported that higher education ranked as the fifth-largest service export in the United States “in the form of international enrollment” (Secor 2002). In 2007, approximately 61 percent of international students utilized personal and family funds as their primary source of funding. One quarter of international students were primarily supported by U.S. college or university funding. The latter was awarded in the form of federal government research grants and teaching assistantships. The sources of funding differ by academic level. In 2006, 81.5 percent of undergraduate students relied on personal and family funds and 11.4 percent relied on U.S. college or university funding; while 46.1 percent of graduate students received U.S. college or university funding and 46.5 percent depended on personal and family funding (Koh Chin and Bhandari 2006).

LATER ECONOMIC CONSEQUENCES OF INTERNATIONAL STUDENT GRADUATES Brain Drain Viewpoint From the perspective of sending countries, emigration of highly skilled individuals can be interpreted as an economic loss. Brain drain is viewed as a loss of skilled individuals for the sending countries and the United States is viewed as a primary source of that loss. Brain drain has been a serious issue for sending societies, particularly developing countries, since as early as the 1960s and is considered by migrants’ societies of origin to be the deprivation of the best and the brightest. Studies report that many students do not return to their homeland on completion of their degrees despite their status as temporary sojourners. Finn (2005) reports that 71 percent of foreign citizens who received science/ engineering doctorates from U.S. universities in 2001 and 67 percent of the 1998 foreign-born doctorate recipients in these fields still lived in the United States in 2003. The figures for two-year stays and five-year stays have been increasing. In the 1960s sociologist Man Singh Das analyzed various reasons why international students stay in the United States. He concludes that the following are the main reasons: “salaries, living conditions, lack of jobs at home, marriage to an American [citizen], and in some cases, unstable political regimes in their countries” (cited in Zimmerman 1974, 441). These reasons are still valid, despite the fact that the situations of some sending societies may have changed. Students’ stay rates vary according to their country of origin and can have a serious impact on the economies and scientific development of students’ countries of origin. Brain Circulation In contrast, the perspective of brain circulation has recently been put forward. Proponents of this idea argue that demographic movements of international students create a win-win situation for both sending and receiving societies. Anna Lee Saxenian, a political scientist, argues that recent trends undermine the simplistic notion of brain drain since former international students

International Students in Higher Education | 457

and other highly skilled migrants “return home to establish business relationships or to start new companies while maintaining their professional and social ties to the United States” (2006: 7). She asserts that brain circulation benefits America’s economy too. Another scholar, Szelenyi, indicates the possibility for international students to contribute to this trend “even when their stays abroad have become permanent forms of settlement” (2006, 187). The phenomenon of brain circulation is exemplified by entrepreneurs from Taiwan, Israel, China, and India who previously graduated from U.S. higher education institutions and make economic linkages between the United States and their homelands. PREJUDICE AND DISCRIMINATION International students and scholars are not necessarily always welcomed by native-born Americans. Some experience unfair treatment based on their race, nationality, and/or religion prior to and subsequent to their arrival in America. Although the United States welcomes them, the native born may view them as a source of job competition or have a xenophobic reaction. Sociologist Chakravartty’s exploratory study (2006) found that former international students from India felt their work conditions and promotion in the U.S. were not equal to those of their native-born counterparts. This negative view is debatable because the native born do not take all of the opportunities to obtain advanced degrees in business, science, or technology. This creates a high demand for international students who receive these degrees in the United States and abroad. NATIONAL SECURITY Homeland security issues have also impacted international student recruitment with discriminatory ramifications. The New York Times reported that after 9/11, “thousands of legitimate international students are being denied entry into the United States” (Gates, 2004). In addition, a Muslim scholar, Tariq Ramadan, was refused entry to teach at a U.S. university, without clear explanation. Two successive years of increase have brought the number of international students nearly back to the 2002 peak. University recruitment, an increase in the number of students studying abroad, and government efforts to improve visa application processing contributed to this. Universities were asked whether their new international student enrollment had increased or declined. Among 702 institutions responding, 55 percent showed an increase and 19 percent reported a decline. Among institutions reporting a decline, 22 percent indicated the visa application process with delays and turn-downs impacted the decline. Sixteen percent reported that tuition and fees were a factor in decisions not to attend (McCormack et al. 2007). The efficiency of the immigration bureaucracy is an issue. The United States suffered great losses in international enrollment after the 9/11 changes in visa procedures. Worldwide, 1.7 million students were seeking international degrees in 1999. This number has increased to 2.5 million in 2005, but Japanese and European universities have absorbed most of this increased demand (McCormack

458

|

International Students in Higher Education

et al., 2007). Problems with the visa process and a perception that the United States is a tough country to enter have contributed to loss of ability to compete for the expanding international-student market. CONCLUSION The United States, other developed countries, and developing countries are in a competition for the best and brightest minds—particularly in challenging fields of study. Whether the sojourns or permanent immigration of international professionals is only a boon for the United States or an emergent and positive linkage for both the receiving and sending country is in dispute. Globalization’s implication for establishing permanent economic linkages via immigrant professional graduates is subject to change—for better or worse. Fortunately, international students (and graduates) are generally well received in the United States for their contributions to its national economy, and in some cases, simultaneously, to their countries of origin’s economies. However, their high level of human capital does not completely immunize them from discriminatory treatment in the United States. Perhaps the greatest economic challenge will be U.S. recruitment of international students due to tightening of entry requirements after 9/11. The interests of national security may not coincide with U.S. interests in bringing students who subsequently become professionals in highly challenging fields. This issue will remain important because the United States could lose its competitive edge and the possible benefits of the international economic linkages U.S. educated professionals create. References: Chakravartty, Paula. “Symbolic Analysts or Indentured Servants? Indian HighTech Migrants in America’s Information Economy.” Knowledge, Technology and Policy 19, no. 3 (2006):27–43; Finn, Michael G. “Stay Rates of Foreign Doctorate Recipients from U.S. Universities, 2003.” Oak Ridge Institute for Science and Education. 2005. http://www.orau.gov/orise/pubs/stayrate03.pdf; Gates, Robert M. “International Relations 101.” The New York Times. March 31, 2004. http://www.udel.edu/iepmedia/edito rial_gates.html; Koh Chin, Hey-Kyung. “The New Landscape of International Student Mobility.” International Higher Education 43(2006):9–11; Koh Chin, Hey-Kyung, and Bhandari Rajika. Open Doors 2006: Report on International Educational Exchange. New York: Institute of International Education, 2006; Koh Chin, Hey-Kyung, and Bhandari Rajika. Open Doors 2007: Report on International Educational Exchange. New York: Institute of International Education, 2008; Malone, Noran, Kaari F. Baluja, Joseph M. Costanzo, and Cynthia J. Davis. The Foreign-Born Population 2000: Census 2000 Brief. Washington D.C.: U.S. Department of Commerce and U.S. Census Bureau, 2003; McCormack, Eugene, Shalaija Neelakantan, and Martha Ann Overland. “The Number of Foreign Students Bounces Back to Near Record High.” Chronicle of Higher Education 2007. chronicle.com/temp/reprint.php?id=093bff w3v5pc6vg5537181wvxhzrmqmn; Saxenian, AnnaLee. The New Argonauts: Regional Advantage in a Global Economy. Cambridge, MA: Harvard University Press, 2006; Secor, Laura. “Destination: College, U.S.A.; Foreign Relations.” The New York Times. January 13, 2002, http://query.nytimes.com/ gst/fullpage.html?res=9C02E4DE1E30F930A25752C0A9649C8B63; Szelenyi, Katalin. “Students without Borders? Migratory Decision-Making among International Graduate

Iraq War and Population Displacement | 459 Students in the U.S.” In The Human Face of Global Mobility: International Highly Skilled Migration in Europe, North America and the Asia-Pacific, edited by Michael Peter Smith and Adrian Favell. New Brunswick: Transaction Publishers, 2006; U.S. Department of Homeland Security, Office of Immigration Statistics. “Annual Flow Report.” Washington D.C.: DHS Office of Immigration Statistics, 2007; Zimmerman, Carle. “Review: Brain Drain Controversy and International Students by Man Singh Das.” International Migration Review 8, no. 3 (1974):440–441.

Masayo Nishida IRAQ WAR AND POPULATION DISPLACEMENT The American public has second-guessed the 2003 Iraq War and the American occupation of Iraq. The Iraq War has lasted longer than expected due to civil unrest and the development of al Qaeda–terrorist-related activity. While the public debates whether to stay or leave, there are millions of displaced Iraqis who have already left. Currently, these Iraqi nationals are refugees, often in neighboring countries, or asylum seekers. Important humanitarian questions are being asked about whether and when this population can return to a peaceful homeland. Although the United States presents itself as the world’s leading democracy, it has been slow to respond to the ethical issues presented by Iraqi refugees. Technically, the United States has been in conflict in Iraq and there are nationalsecurity issues about accepting Iraqi refugees and asylum seekers. For some Americans, humanitarian concerns are most important while for others reduction of any terrorist threat is most important. The United States has accepted only a limited number of refugees and asylum seekers, raising the question of what steps, as the aggressor nation along with Great Britain, the United States should take to deal with Iraqi population displacement. BACKGROUND The United States has a history of first helping Saddam Hussein to fight a war against Iran and then supporting United Nations (UN) sanctions against Iraq, including bombing the country and fighting two wars. The Persian Gulf War lasted from August 2, 1990 to February 28, 1991. It was fought by the United States and an allied coalition of 34 nations to remove Saddam Hussein’s troops that had occupied Kuwait. In the aftermath, Hussein took reprisals against his own people. As a result, in 1996, the U.S. military removed over 6,000 Iraqis, mostly Kurds, whose lives were threatened, and flew them to the U.S. military base in Guam. In Guam, over 1,000 U.S. soldiers, diplomats, and aid workers processed the group. They were given asylum screening and matched with sponsors if approved. Almost all were relocated to the United States in seven months, and the action was applauded as a successful humanitarian effort. In 2003, the United States began the War in Iraq based on intelligence that Iraq possessed weapons of mass destruction. These weapons, including active biological cultures and chemicals, were never found. After the United States occupied Iraq, conflict between the Sunni Muslims who had been prominent in

460

|

Iraq War and Population Displacement

Saddam Hussein’s government and the Shiite Muslim majority occurred. Even al Qaeda became prominent as a terrorist organizer in the country, further contributing to Iraq and regional instability. The United States is considered by many pundits and politicians to have made policy errors after invading Iraq and continued U.S. military presence is controversial with a segment of the American public. The 2003 Iraq War took place in Iraq’s territory instead of Kuwait and was a unilateral action supported by Great Britain but not the UN. The U.S. occupation that followed has not successfully installed a permanent democratic government in a nation divided between Sunni and Shia Muslims. The United States attempted to apportion power to the traditional Islamic Shia majority while removing the progressive Sunni Muslims from power. Because the traditional Shia and Sunni did not have a history of positive relations with the United States and U.S. economic sanctions and bombing had caused great harm, it should not be a surprise that establishing a peaceful democracy has been a challenge. The United States is alleged to have made many mistakes in their attempt to establish a new government, and al Qaeda terrorists became involved. The anti-war opposition in the United States criticized these actions. It is likely, but not certain, that the United States will withdraw although no timetable has ever been agreed upon. If the United States withdraws in a situation of political instability, the Iraqis, including translators, drivers, and other personnel helping the United States, will be in jeopardy. The news has carried many accounts of Iraqis aiding the United States who have been kidnapped or murdered in Iraq during the occupation. The United States, however, has acted very slowly in dealing with the safety of Iraqis aligned with the United States.

AN IRAQI WIDOW One family forced to flee Iraq is headed by a widow, blinded by untreated high blood pressure. She lives with her large family in Amman Jordan in a small apartment with no heating. Her husband, a medical pathologist, was kidnapped, tortured, and then murdered. Her daughter was raped and tortured. She, her two daughters, their husbands, and several children endure freezing conditions in their apartment and get food aid because none of them have a work permit. Source: International Rescue Committee. Five Years Later, A Hidden Crisis: Report of the IRC Commission on Iraqi Refugees (New York: International Rescue Committee, 2008).

The Extent of Iraq War Displacement: A Hidden Problem The Iraq refugee and asylum problem has not been taken as seriously as it should because refugee camps have not formed and individuals and families have not tended to travel as part of a large group drawing attention to themselves. The International Rescue Committee maintains that media reporting about the

Iraq War and Population Displacement | 461

return of Iraqi refugees has been incorrect. In 2008, the displaced population was neither wealthy nor beginning to return because the crisis was over. The United Nations estimates that more than 5.5 million Iraqi refugees have fled the country. The vast majority of these displaced Iraqis are now living in Syria. The United Nations also estimates that 50,000 Iraqis flee their homeland every month. The United States has agreed to take 25,000 refugees, a small total in relation to the problem. The geographic dispersion of the Iraqi refugees is a diaspora (exile of a racial or ethnic group) that makes their situation different from refugees with established camps for eight reasons established by the Iraqi Rescue Commission. First, Iraqi refugees are hidden in urban centers rather than located in centralized camps. Second, because refugees fear deportation, they are in hiding and not easy to reach and help. Third, camps receive aid from international organizations but dispersed refugees do not. Fourth, camps register refugees for international relocation, but Iraqi refugees have been relatively unwilling to register. Fifth, camp surveys provide accurate data while estimates of the dispersed Iraqi population are not accurate and range from conservative lows to high numbers. Sixth, in a camp the host countries assist while in a dispersed situation they do not and tend to have a negative attitude toward the refugees. Seventh and most important, camps provide refugees with information on their rights of resettlement while dispersed Iraqi refugees have only informal means of communication, including cell phone and email. Reasons for Fleeing. Certain individuals began fleeing Iraq before the fall of Saddam Hussein. Since 2003, Iraq has had lawless and unsecured areas in which sectarian violence is common. Many Iraqis fled to neighboring countries or were internally displaced persons (IDPs) in Iraq. There have been many reasons for persecution: (1) political beliefs, (2) ethnicity, such as being Kurdish, (3) religious affiliation, such as being either a Shia or Sunni Muslim, and (4) occupation and lifestyle. Many are in danger simply because they helped the American media, humanitarian nongovernmental organizations, or the U.S military and its contractors. An event that contributed to Iraqi fear was the February 2006 bombing of the al-Askari Mosque in Samarra. Refugees in Neighboring Countries. The United Nations High Commission on Refugees (UNHCR) estimates that there are between 1.5 and 2.1 million refugees from Iraq in neighboring countries. Although the dispersion of this population makes exact estimation difficult, UNHCR estimates that there are: (1) 1 to 1.5 million refugees in Syria, only 165,000 of whom are registered with international humanitarian organizations. Among registered Iraqis in Syria seeking resettlement there are 39,096 cases pending with an average case size of 3.5; (2) 450,000 to 500,000 refugees fled to Jordan, of whom 51,559 are registered, with 24, 232 cases pending and an average case size of 2; (3) 50,000 refugees are in Lebanon with 9,950 registered, 5,418 cases, and an average case size of 1.9; (4) 20,000 to 40,000 refugees are in Egypt, of whom 10,633 are registered with an average case size of 2.5; and (5) 5,000 to 10,000 refugees are in Turkey, of whom 5,128 are registered with an average case size of two. These numbers constitute six percent of Syria’s population and eight percent of Jordan’s, which suggest

462

|

Iraq War and Population Displacement

a disproportionate burden sharing by these developing nations (International Rescue Committee 2008). Refugee’s Survival Issues Trauma. A UNHCR convenience survey found high rates of anxiety and depression among Iraqi refugees in Syria. A larger survey indicated 77 percent had been frightened by air bombardments, rocket attacks, and shelling. Eighty percent had witnessed a shooting, and 68 percent had been interrogated or otherwise harassed including having their life threatened by militias or other groups; while 22 percent had been beaten by these groups. Many reported kidnappings, and 72 percent had seen a car bombing. Seventy-five percent stated that someone close to them had been murdered or killed. Iraqi refugees in Jordan reported similar issues (International Rescue Committee 2008). Healthcare. Jordanian and Syrian national health clinics do not have the capacity to provide basic healthcare and medicine for refugees. Refugees with diabetes, cardiovascular disease, or cancer do not have much access to needed healthcare. Lack of housing and residence in leaky or unheated buildings has contributed to poor health. Education. Education is available in Syria and Jordan, but many Iraqis do not send their children to be registered for fear of deportation. Some Iraqi families have no transportation to get children to school. Iraqi children report being illtreated by other children. Jobs. Some Iraqi refugees are well-educated professionals, but only Lebanon permits them to work. Most refugees are in extreme poverty and wasting their working years. Undocumented workers fear being detained or deported. Exploitation has resulted when some employers refuse to pay them and threaten deportation. Women and children try to earn money in the informal economy where they may be sexually abused. In effect, lack of legal status is associated with the same types of exploitation that undocumented workers face in the United States. Money. Some refugees receive remittances (monetary payments) from relatives but any savings are being depleted. The displaced population is trying to survive with very limited, if any, assistance from the host countries and international organizations. Crime and Violence against Women. Being unable to self support, refugees may commit crimes to survive, including petty theft and prostitution—forced or semi-voluntary. Domestic violence is common, and forced marriage (marriage without a woman’s consent) is occurring. REPATRIATION MYTH The U.S. surge strategy is reported to have brought some degree of control over violence in Iraq and intergroup cooperation. If these reports are true, one would expect refugees to return, but the repatriation myth is causing harm. The media may report that it is safe, but the refugees do not believe in any safe

Iraq War and Population Displacement | 463

return. The UNHCR reported few families returned from Jordan or Syria. The Iraqi government was offering an $800 payment for return and gave information that the surge was working, but few took up the offer; buses to bring them back are no longer running (International Rescue Committee 2008). The U.S. Response to Iraqi Displacement Bureaucratic and Security Issues in Visa Application. The United States refused to process applications for special immigration visas in Baghdad’s green zone. The reason given is security. Petitioners need to go to the U.S. Embassy in Amman, Jordan by using their own resources and lying about the reason they are visiting Jordan. Jordanian border guards are often Sunnis who respected Saddam Hussein and hold the U.S. occupation of Iraq in contempt. Jordanian Guards will turn back Iraqis who admit to helping the United States. U.S. troops are sympathetic, and one U.S. brigade has set up an underground railroad (refugee smuggling network) to get endangered U.S. collaborators to Jordan. The Bush presidency made no effort to airlift Iraqi collaborators to a location like Guam. It is clear that accepting Iraqis is viewed as a security risk because jihadists might be accepted. A neutral territory would allow for security checks and for appeals to be heard. In 2007, the Bush administration appointed two senior officials to manage the Iraqi refugee situation. James Foley was appointed senior coordinator and Lori Scialabba was appointed senior advisor. The New York Times claims that the United Nations has submitted more than 9,000 Iraqis to the United States for consideration. The Bush administration set up a special program for a small number of Iraqis that gives preferential selection to full-time American Embassy employees. There are about 125 of these employees in Baghdad and 500 interpreters who would be allowed to skip the lengthy UN refugee process once they leave Iraq. Yet thousands of Iraqis work for the United States through contractors and subcontractors. These include Titan, DynCorp International, and Parsons Corporations. In addition, Iraqis that work as drivers, cleaners, and so on do not qualify for this special program (International Rescue Committee 2008). It is believed that the U.S. refugee policy is not being relaxed to a large extent because of security issues. This idea is purported by the State Department. Iraqis with ties to the United States are at a greater risk of injury or death than Iraqis who have not worked for the United States. These Iraqis are given less priority than embassy workers, but they are still hunted by Iraqi militants. The United States has experienced many delays in the processing of Iraqi refugees partly because of its strained relationship with Syria. Syria has refused visas for Department of Homeland Security officials who need to interview Iraqi refugees to consider them for admission. Syria has the largest population of Iraqi refugees. Resettlement Rate is Declining. Between 2003 and 2006, the UNHCR resettlement rate actually dropped. Far greater numbers of refugees are referred than are accepted. The United States called the UNHCR referrals stagnant, but the

464

|

Iraq War and Population Displacement

truth is that the United States does not accept refugees at a very fast rate. If U.S. acceptance rates are significantly below referrals, it gives refugees false hope (International Rescue Committee 2008). The 2008 National Defense Authorization Act contains the 2007 Refugee Crisis in Iraq Act, often referred to as the Kennedy bill because it was authored by Massachusetts Senator Edward Kennedy. This bill expanded Iraqi eligibility for admission as refuges but did not specify a number. At an unspecified date, special immigrant visas (SIVs) will be authorized for 5,000 Iraqis and their families (10,000–12,000 people) and could increase admissions to 25,000, but that assumes that the U.S. immigration bureaucracy is capable of handling this number. On World Refugee Day in 2008, congressional Democrats, including Senator Hillary Clinton, sent President George W. Bush a letter on behalf of the U.S. Helsinki Commission requesting that he solve the external and internal population displacement problem in Iraq. The stress was placed upon assisting Iraqis who helped the United States and had a credible fear of persecution after the U.S. withdrawal. The letter noted that since March 2003, the United States has accepted less than 8,000 Iraqi refugees. In 2008, the United States agreed to accept 12,000 refugees but only 6,000 have been resettled, indicating the goal is unlikely to be met (CBS News 2008). Lack of Resettlement Aid. In Fiscal Year 2007, it is estimated that U.S. spending was $8 billion a month on the Iraq war. In response to the refugee problem, the U.S. State Department plans to spend $200 million more. It is estimated that the United States needs to expand the budget at least $250 million in FY 2008 to maintain credibility; because internationally, it is estimated that $800 is needed. In 2007 the European Community Humanitarian Aid Office provided $60 million and the European Commission provided $40 million. Although Europe has contributed money, it is neutral towards the Iraqi refugee crisis, which it views as caused unilaterally by the United States and Great Britain who should carry the responsibility. European approval rates for Iraqis vary from 1 percent to 80 percent. Iraqi Asylum in Sweden. Sweden is becoming the country with the largest Iraqi refugee population. Sweden took in 12,259 Iraqis between January and August of 2007. They expected 20,000 for all of 2007. In the same January to August period, the United States admitted 685 refugees according to the U.S. State Department. Sweden is a country of 9 million versus the U.S. population of 300 million. Iraqis reaching Sweden are mostly asylum seekers while the Iraqis reaching the United States are refugees. Middle Eastern Destabilization The number of refugees, asylum seekers, and displaced persons threatens the stability of the Middle East. The Iraq Study Group concluded that widespread suffering is ensuing. Fiscal pressure and undue burden sharing is being placed on countries neighboring Iraq. In time, social pressure from progressively poorer undocumented Iraqis who have fled could cause disturbances in those countries and threaten the region.

Iraq War and Population Displacement | 465 AN IRAQI REFUGEE FAMILY’S FEAR OF DEPORTATION Remarkably, the world immigration regime socially isolates refugees similar to the way undocumented workers are treated in the United States. Jamail was an unregistered Iraqi refugee who, as an undocumented person, feared deportation. Faced with a need to provide food for his family and no money, he decided to register along with his wife, a teenage son, two daughters and a grandson. A singer, Jamail had worked throughout the Middle East and had traveled in Europe and North America. He has three other sons, two still in Iraq, but he fled because one son who had worked as a Baghdad policeman was accused of being a U.S. collaborator and was murdered by a militia. His other sons, with one exception, are missing. Jamail and his family came to Amman Jordan with $21,000, and he is an asylum seeker. Asylum applicants are not allowed to work in the formal economy. Low on money, he takes medication for depression and posttraumatic stress disorder (PTSD) while his wife often cries. His remaining son has been out of school and fears attending because poor Jordanians view Iraqis as displacing them. This family fears that their neighbors would turn them in for deportation, although this is rare. In addition, they do not trust Iraqi compatriots who might have a different ethnic or religious affiliations. They live in social isolation and fear with no help to deal with their grief. Source: International Rescue Committee. Five Years Later, A Hidden Crisis: Report of the IRC Commission on Iraqi Refugees (New York: 2008).

DOES THE UNITED STATES HAVE A MAJOR RESPONSIBILITY TO RESETTLE IRAQI REFUGEES? Many Americans do not believe they are responsible for Iraqi refugees and place the safety of their country above all else. Reducing immigration, which is at all time high, is a major issue, and accepting refugees and asylees contributes to related population growth. The millions of refugees and displaced population inside Iraq are more than the United States can deal with. When nations have been at war, it has been atypical to help foreign nationals on the opposite side. It has been the case that populations persecuted by the opposing side have often been given refugee status and aid. An example is assistance to Jewish refugees in Europe after World War II. Another example is the U.S. evacuation of Vietnamese that was connected to ending the war effort after the decision to leave Vietnam, and its continued acceptance of refugees afterward, including boat people. The Vietnam refugee decision shows a willingness to help collaborators in the event of military withdrawal. If the President of the United States declares assisting Iraqi refugees to be a priority, it indicates acceptance that the United States placed Iraqi lives in danger because significant Iraqi groups are violently opposed to the U.S. presence. In other words, it would indicate that despite news spin, the surge did not end the Iraqi insurgency. It would be an admission of U.S. defeat, but a timeline for

466

|

Iraq War and Population Displacement

withdrawal has not been established in the hope that the United States can establish a degree of peace in the country. Potential refugees include elite Iraqis who would lose a future in their country of national origin. In addition, Iraqis who assisted the American military, diplomats, and social aid personnel have a place in their homeland until it is determined that the United States cannot establish a peaceful transition or anti-war opposition brings the troops home. In effect, too early a decision to grant refugee status and asylum would remove the Iraqi people who have helped and supported us—leaving Iraq to those who violently oppose us. Even if the United States withdraws from Iraq without establishing a stable pro-U.S. government, there are issues connected to national security in accepting Iraqi refugees. Iraq hosts political groups that are hostile to the United States and terrorist organizations. al Qaeda in Iraq has been responsible for a portion of the insurgency. When accepting Iraqi nationals for refugee and asylee status, despite all of the security check systems implemented after 9/11, it would be possible to inadvertently admit terrorists. This presents a national-security threat that the United States must not accept. A better policy would be to support military actions to bring stability to Iraq so that refugees and displaced persons could return in safety. In the interim, support for refugees in neighboring countries and displaced populations in Iraqi would help to prepare for their return after a stable government is achieved. In that way, the United States can continue its policy of fighting the war on terrorism abroad and avoid admitting terrorists through the refugee and asylee processes of the immigration system. Assistance to refugees is a major humanitarian dilemma. If the United States had not chosen to invade Iraq, substantial population displacement would not have occurred. Some Americans feel obligated to the Iraqi people for having invaded their country and putting their lives at a greater risk. Refugees are a human cost of war and the United States is obligated to deal with the situation it created. The United States should assist in temporary relief and resettlement even if that resettlement means eventual repatriation in a stable Iraq. Neighboring countries that have accepted refugees are under financial stress and many do not have developed economies capable of absorbing this cost over time; Iraq’s refugees are not typically housed in camps but are trying to survive in urban areas. They have to pay for food and shelter and they must rely on host governments for any additional support. One response has been to close the borders of neighboring countries where they might seek refuge. Men, women, and children are displaced within Iraq and subject to violence. Failing to help Iraqis whose lives are in danger is a failure of conscience. The United States has not responded effectively to the needs of refugees and displaced persons in danger. The degree of population displacement threatens to destabilize the region. The United States High Commission on Refugees requires the United States to accept refugees and asylees with fear of persecution. Iraqis who collaborated with the United States are a group exposed to violence and candidates for political asylum. It is against international law to practice refoulement, returning refugees to a country in which they may be harmed. Yet

Iraq War and Population Displacement | 467

the United States and many European nations have a slow and poor record on acceptance of Iraqis. One reason is that Iraqis are viewed as a national security threat. Iraqi refugees should not all bear the stigmatization of jihad. The stereotype of Iraqis as a national-security threat because of al Qaeda operations in the country hurts families and children. It is a part of the post-9/11 fear of jihad terrorism that has spread among developed nations. Muslim and Arab immigrants to these countries have been scapegoated (blamed for events beyond their control) and mistreated in disproportion to the mere 19 men who carried out the air hijackings and destruction. The more the world assumes that Arabs and Muslims are jihadists, the greater the degree of social exclusion that will develop and the greater the likelihood that jihad will get recruits. Currently, Syria (a relatively poor country) estimates that it is spending $1 billion on Iraqi refugees while Jordanian claims range from $1–2 billion. Th ese are not wealthy developed countries, and the United States and other nations are allowing them to shoulder an unfair burden. As costs grow and refugees run out of money, crime may increase, and Iraqi refugees may become a nationalsecurity risk. The president of Syria has asked that the United States send financial assistance not troops while Jordan insists that both the Iraqi and Jordanian poor should be helped. The International Rescue Committee (IRC) believes that the United States and Iraq have the principle responsibility for assistance. They argue that the United States should provide $1.5 billion to $2 billion per year and that the international community should bring the total to $4 billion, including contributions from oil-producing states that benefit from regional stability. This support is for the purpose of maintaining refugees in neighboring countries until they can safely return. Despite the fact that the United States and Great Britain went into Iraq without the support of the United Nations and the European Union, international cooperation will help to resolve this situation. The United Nations, developing countries adjacent to Iraq, and the developed nations can work together to aid refugees and asylees. Senator Edward Kennedy suggested an international conference be held on Iraq’s refugees and internally displaced population. The United Nations and countries in the region could be sponsors. Despite the United States’ tenuous ties with many Middle Eastern countries and because of regional tensions, the United States needs to participate in such a conference and provide fiscal help for refugees, internally displaced persons, and neighboring countries hosting refugees instead of doing little and basically overlooking the problem. CONCLUSION Middle Eastern stability cannot be achieved without resolution of the war in Iraq. Whether that means long-term military activity or a withdrawal is contingent on the diverse opinions of the American public and how they vote. Although Americans are aware of soldiers’ lives lost and violence and very

468

|

Iraq War and Population Displacement

concerned about the health of their oil-dependent economy, they are not aware of the hidden Iraqi refugee crisis. They do not think in terms of the social harm in Iraq or the lives that undocumented refugees are leading. Helping Americans in Iraq has been one of the refugees’ biggest problems. The United States acted with compassion after its withdrawal from Vietnam, taking over one million refugees from southeast Asia. Because Arabs and Muslims are both classified and stereotyped as a national-security threat, the prospect of massive refugee entrance is not even considered while the lives of those who assisted the United States are lost. Instead, the world community hopes for a massive repatriation to Iraqi, illustrating the damage that jihadists have inflicted on their own people in a struggle for global power and influence. References: Kennedy, Edward M. “We Can’t Ignore Iraq’s Refugees.” Washington Post. December 30, 2006:A21. http://www.washingtonpost.com/wp-hyn/content/article/2006/12/29/ AR2006122901066.html; Grim, Ryan. “Clinton Signs Letter to President on Iraqi Refugees.” CBS News. June 20, 2008. http://www.cbsnews.com/stories/2006/06/20/politics/ politico/thecrypt/main/4198664/.shtml; International Rescue Committee. Five Years Later, A Hidden Crisis: Report of the IRC Commission on Iraqi Refugees. New York: International Rescue Committee, 2008; Kapan, Fred. “Let Them In: Bush’s Outrageous Neglect of Iraqi Refugees.” http://www.slate.com/id/2178067/; Packer. George. “Betrayed: The Iraqis Who Trusted the U.S. the Most.” New Yorker. http://www.newyorker.com/ reporting/2007/03/26/070326fa_fact_packer

Judith Ann Warner and Erin Nieto-Salinas

L LEGAL IMMIGRATION SYSTEM Although public attention focuses on undocumented immigration and control of the nation’s borders, the United States receives both permanent and temporary residents in the hundreds of thousands each year. They enter through a legal immigration system governed by a complicated preference ranking based on family reunification, skilled-labor market needs, and diversity in countries of origin. This immigration bureaucracy is understaffed and has a massive backlog of applications it is unable to handle. Repeated attempts have been made to introduce immigration reform legislation, but recent bills have failed to be ratified by both the Senate and the House of Representatives. Both anti-immigrant and proimmigrant advocates feel the system is broken. The major legal immigration reform debate is focused on whether it is desirable to weigh a preference for family reunification more highly than for skilled professionals that meet labor market needs. The preference system created by the Immigration and Nationality Act of 1965 (INA) has been repeatedly modified; there are currently 24 major categories of visas and 70 subcategories. This complexity has allowed employers to sponsor temporary professional workers and their families ahead of other overseas employment preference applicants. In the meantime, family-reunification applicants from certain Latin American and Asian countries have long waits ranging from 11 to 16 years before they will be accepted for entrance under national-origin quotas. This may prompt attempts to reunite without formal paperwork, increasing the unauthorized population. It is not certain if the interests of anti-immigration advocates, employers, and immigrant-advocacy organizations that demand action can be reconciled.

469

470

|

Legal Immigration System

BACKGROUND The 1965 Immigration and Nationality Act (INA) revised the racial and national-origin discrimination established by the 1924 Johnson-Reed Act. The Act had limited quotas for many Southeastern European nations and essentially blocked other Eastern hemisphere immigration. In 1965, all of these countries were given an immigrant quota and the social categories of family reunification and employment preference were used to rank applicants from specific countries. Immigration legislation has repeatedly modified INA. In 1976, the Western hemisphere, then the major sending region for immigrants, was incorporated into the quota system. Currently, quotas do not accommodate the demand and are a factor in undocumented immigration. Immigrant Selection Bureaucracy Prior to the 9/11 terrorist attacks, the immigration system operated as a separate bureaucratic entity, the Immigration and Naturalization Service (INS). When the Department of Homeland Security was created, the INS was absorbed and divided into separate agencies: Citizenship and Immigration Services (CIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE). The CIS is responsible for processing applications for the legal immigration system. ICE investigates immigration and customs violations, handles deportation, and directs individuals into detention or the criminal justice system, depending on the type of violation. The Department of State works in conjunction with CIS by issuing nonimmigrant visas at its consulates overseas. In addition, after CIS processes petitions for permanent residency, it issues the official immigrant visa. The Department of Labor (DOL) is involved in certification of labor shortage when there is a lack of citizens available to enter an occupation, establishing employment preferences for skilled migration, and authorizing temporary work permits. The DOL is mandated to maintain the current wage level in an occupation to protect workers who are citizens. Decisions regarding deportation, exclusion from entering the United States, asylum proceedings, and CIS-decision appeals are handled by immigration courts. These cases are given to the internal Bureau of Immigration Appeals in the Department of Justice. Rarely, under extenuating circumstances, federal courts may review immigration cases.

LEGAL IMMIGRATION PREFERENCE SYSTEM The Independent Task Force on Immigration and America’s Future (ITFIAF) brought together experts including Doris Meisser, a former commissioner of the U.S. Immigration and Naturalization Service, now Citizenship and Immigration Services (CIS) and Immigration and Customs Enforcement (ICE) within the Department of Homeland Security. These experts suggest that the legal immigration system does not work because the government and employers do not

Legal Immigration System

always follow the rules. Legal immigration is governed by statutory ceilings— otherwise referred to as quotas or caps. The system is set up to admit people under country quotas, Eastern and Western hemispheric quotas, and a familyreunification and skills-based preference system. On paper it looks impressive, but in reality, the system fails. The system begins to fail when immigrants and lawyers start to navigate the complicated CIS website to apply for legal residency as green card work permit recipients or temporary entrants. The original legalpreference system and its quotas do not meet the external demand of individuals who wish to immigrate or employer’s internal labor demand. National-Origin Immigrant Numerical Caps The Eastern and Western hemispheres have a cap on the maximum number of immigrants allowed. Within these hemispheres, specific countries have a maximum cap on immigrant applications, which may mean that people who want to emigrate (particularly family-reunification applicants) are placed on a waiting list. For various reasons, legal entrance applications from most countries in the world are backed up in processing. The system is very behind on handling applications from the People’s Republic of China, Mexico, and the Philippines, depending on the type of immigration preference category. Family-Reunification and Employment-Preference Subsystems Approximately 600,000 of new permanent residents admitted each year are close relatives by marriage or kinship of United States citizens and permanent resident aliens. The family reunification system itself is divided into categories in which immediate relatives are ranked. There is unlimited entrance for spouses and minor children of U.S. citizens. Further, if there are more than 254,000 applying for family reunification, the cap may be lifted. A separate quota system is used for ranked employment categories, which are capped at 140,000, but because spouses and children may accompany a skilled worker under that preference, the number of actual-skilled workers admitted is lower. Finally, this preference system is complicated by a numerical limit of 480,000 that can be placed on all legal immigration. Family-Reunification-Preference Ranking Family reunification is the most important principle of the contemporary legal immigration system. There is a worldwide cap of 226,000 on family-related admittance, which the government can increase, if deemed necessary. Needless to say, all applicants must be sponsored by a U.S. family member. The family preferences are ranked, in terms of speed of processing applications and visa numbers, as follows: (1) unmarried adult sons and daughters of citizens, (2) spouses and children of legal permanent residents or unmarried adult sons and daughters of legal permanent residents, (3) married adult sons and daughters of citizens, and (4) siblings of adult (age 21 and over) U.S. citizens. Typically,

| 471

472

|

Legal Immigration System

there is a higher ranking for individuals related to naturalized immigrants and native-born citizens. The United States has the goal of equitably distributing permanent-resident visas among countries regardless of race, ethnicity, religion, or other social categorization. In reality, some nations contribute more immigrants than others. The manner in which family reunification works favors nations with long established traditions of immigration since residents sponsor their relatives. This type of ranking, however, can actually serve to limit further family reunification from countries with extensive populations in the United States by creating a demand greater than the country quota. There is a waiting period for family-reunification applicants, even first preference applicants, if they are from Mexico or the Philippines, which makes it obvious that the system is bogged down. First-preference entrants from most countries have applications that are backed up since March 8, 2002. Applicants from Mexico have been waiting for up to 16 years, while Filipinos have been waiting for 15 years. Second-preference spouses and children have been waiting for five years, except for Mexicans who have been held up for six years. Secondpreference adult son’s and daughter’s applications have been waiting for processing for nine years with the exception of Mexico (16 years) and the Philippines (11 years). Applicants with third-preference have been waiting for eight years, again, with the exception of Mexico (16 years) and the Philippines (15 years). Individuals with fourth-preference have been waiting for 11 years, with the exception of Mexico (14 years), the Philippines (22 years), India (11 years), and mainland China (11 years). Congress has not been able to agree on legislation to speed up the backlog of applications of relatives or to make spouse and children’s reunification with green-card holders faster. This could be done by making them exempt from the 1965 statutory caps. The United States has meant to recognize the meaningfulness of family values and ties, but permits extreme waiting periods to occur. This may encourage undocumented immigration to reunify family members. This weakens the nation’s ability to keep track of the overall immigrant population. Individuals who are weathering long waits from Mexico, China, India, and the Philippines are not being rewarded for waiting to come legally. Instead, they see undocumented immigrants arrive faster and may be aware of ways in which the rules have been bent in the legal admissions system to permit temporary workers and their families to make a transition to permanent residents. Individuals enduring long waits will not be able to come to the United States in the most productive years of their lives. Employment-Preference Ranking The employment-preference system is geared toward drawing highly educated or otherwise skilled workers rather than the less educated. In order to qualify, an individual has to be sponsored by an employer. Overall, immigration in this category is capped at 140,000, but unused family-preference visas can be re-allotted to this group. First preference is given to individuals of extraordinary ability in the arts, science, education, business, or athletics; outstanding

Legal Immigration System

college professors and researchers; and multinational executives and managers who meet certain specifications. Second preference is given to those who have advanced degrees or exceptional ability in the sciences, arts, or business. A third preference is given to skilled workers in an area of shortage with at least two years’ training or experience or a college bachelor’s degree. Fourth preference is for special individuals, including religious ministers and those who work for them, people who worked for the U.S. government abroad, and other categories. The fifth preference is for individuals with over one million dollars available for investment in areas of high unemployment or rural regions to create businesses that will employ at least ten individuals. This employment-preference ranking is further complicated because certain occupations, such as software engineering and computer technology, need to be certified by the Department of Labor as lacking American workers at the current wage rate. On occasion, there are U.S. residents who could do the work based on skills and preparation, but employers often manipulate the system to gain foreign employees. The employment-preference system works far better in processing applications than the family-reunification system. It is a deliberate effort to recruit highly educated and skilled labor, including foreign students who graduate with degrees in science and technology. The system is current for the first, fourth, and fifth-preference categories, reflecting a national priority to recruit individuals of demonstrated ability. The second-preference category is backed up for China and India, whose applicants have been waiting three years. Only the third preference is completely backed up, and that is because of both prioritization, over-application, and legal constraints. Only 5,000 of 140,000 work-related visas are allocated to unskilled/less-educated workers. The original limit was 10,000, but 5,000 visas have been removed to use for the Nicaraguan Adjustment and Central American Relief Act (NACARA) until all applicants are processed. All countries have an unskilled-worker application back-up of two years with the exception of India (seven years), Mexico (six years), and mainland China (five years). Only 5,000 visas are allocated for unskilled workers, yet it is estimated that up to 400,000 undocumented migrants enter the United States each year, many seeking such jobs. Diversity Lottery The diversity lottery is an annual event in which 50,000 visas are given to regions and countries that are under-represented in the legal admission preference system. The primary beneficiaries have been from Africa, Southeast Asia, and Eastern Europe. Certain public figures feel the diversity lottery has already served its purpose of establishing immigrant sending networks in countries with less representation, and they promote dismantling it. Temporary-Worker Categories Temporary workers are not typically the guest workers that the public thinks about (primarily Mexican). Instead these visas for limited stays to work often

| 473

474

|

Legal Immigration System

allow the immigration of skilled professionals and their families. The employer demand for skilled workers exceeds the statutory cap of 140,000 of the employment-preference system of the Immigration and Nationality Act of 1965. Over time, various types of temporary-worker visas that were meant to accommodate immediate need have been established by legislation. Most temporary workers are admitted on H-1B specialty occupation visas, H-2A agricultural worker visas, H-2B nonagricultural worker visas, or as the spouses or children of these temporary workers. Additional temporary workers include intracompany transferees and their families, R visas for religious workers and their families, V visas for families of workers about to be granted a green card, and TN visas for NAFTA workers and their families. Other Admittance Categories K-1 visas bring fiancés and fiancées of U.S. citizens. K-3 visas are for spouses of U.S. Citizens, and K-2 and K-4 visas are for their children. In 2004, 33,061 people entered with K visas. Students and their spouses, with F-1 and F-2 visas, respectively, accounted for 613,221 of those given temporary entrance in Fiscal Year (FY) 2004. Students and their spouses are another category of individual more likely to adjust to permanent status if they study in a high-demand occupation such as science or technology. Finally, there are the following very specific visa categories listed with the number entering in FY 2004: (1) employees of international organizations (IMF, IPIC, OAS, IRC, etc),109,335 in FY 2004; (2) I-1 international media representatives and their families, 37,108 in FY 2004; and (3) J-1 exchange visitors (au pairs, postdoctoral medical trainees, practical training students, college professors and researchers, short-term scholars, camp counselors, and their spouses (J-2), 360, 777 in FY 2004. This does not exhaust the list of visa categories but presents categories of individuals who may be able to adjust their status from temporary to permanent. Adjustment of Status Although the immigration system appears to favor new entrants, temporary visa holders can apply to adjust their status. For example, when a foreign student completes her or his PhD in a high-demand scientific or high-technology field, she or he may have an employer waiting to sponsor them. More than half of immigrants who become permanent residents are status adjusters, this impacts those who have been waiting and raises questions about how the system operates. REFUGEE AND ASYLEE ADMISSIONS Refugee and asylee admissions are governed by a different legal immigration framework that is separate from the statutory caps of the permanent legal

Legal Immigration System

immigration system. Refugees are given advance permission to enter because the United States government has determined they are in danger of persecution. Refugees are able to gain permanent entrance outside of the immigration quota system. Asylees come without prior permission and upon entering an airport, seaport, or being taken into custody by the U.S. Border Patrol or U.S. Coast Guard, are placed in detention while their case is considered. Individual asylees may gain temporary entrance and protection from an immigration court and some gain permanent residence, depending on assessment of their case and whether their homeland conditions change. The laws and judicial rulings that have shaped the refugee and asylee admittance process are not absolute, but subject to political interpretation. The ratings of nations with potential refugees and asylees by category and degree of persecution and even the judicial evaluation of asylees in the immigration system are subject to political concerns. During the Cold War and other conflicts between the United States and Communist countries (declared or undeclared) refugees were admitted from Cuba, Vietnam, Cambodia, Laos, Eastern Europe, and the Soviet Union. Although the United States had indirect involvement in Central American wars, Nicaraguans, Guatemalans, and El Salvadorians were originally labeled as economic migrants rather than political refugees. This demonstrates how those fleeing the actions of political opponents of the United States are favored while friendly-nations are not. As a result of the Central American situation, immigrant-advocates entered into a long legal action that led to changes in the treatment of those who fled civil war. At present, 70,000 refugee visas are allocated by Congress each year—a vast shortage in relation to those endangered worldwide. The U.S. Department of State maintains a Bureau of Population, Refugees and Migration. For example, the U.S. war in Iraq has displaced hundreds of thousands of Iraqis. In FY 2007, 1,608 Iraqis were accepted for permanent residency. By February, 2008, 1,646 of a projected 12,000 refugees authorized for FY 2007–2008 had arrived. It should be noted that the United States has chosen to financially assist Iraqi refugees to find shelter in neighboring countries: Jordan, Egypt, Syria, and Turkey. It is projected that $197 million will be allocated for this purpose in 2008.

UNEXPECTED PREFERENCE SYSTEM CONSEQUENCES Family Reunification The INA legislators never anticipated the consequences of attaching large quotas to family reunification. The prioritization of family reunification created a snowball effect whose extent is debated. It is not necessary for a large immigrant population to be present in the United States to create chain migration, in which a single immigrant initiates a chain, through the preference system in which spouses, children, and other relatives can repeatedly sponsor individuals connected by kinship. Specifically, Hispanic and Asian immigrants are strongly connected to extended families that value solidarity and cross-family obligations. Americans value the nuclear family, a household comprised of the

| 475

476

|

Legal Immigration System

parents and children, and legislators overlooked the significance of extendedfamily relations when creating INA. In the 1980s, the Federation for Immigration Reform (FAIR) and other antiimmigrant advocacy groups began to criticize the never-ending chain of migration connected to these household kinship networks. The goal had been to re-establish a household, not to foster systems of interconnected households. Although the General Accounting Office and social-science researchers have found that the chain-migration effect is not as large or catastrophic as suggested, by the late 1980s, the public had become alarmed and there were attempts to restrict family reunification to the nuclear family. In turn, Hispanics, Asians, civil-liberties organizations, and proimmigration advocacy groups, including churches, decried the label for chain migration, called the snowball effect, and stressed the strong ties among brothers and sisters of these immigrants. They saw reunion as a human right and thought that denying it was a form of race discrimination. The family reunification preference remains unchanged. Employment Preference versus Family Reunification In the 1980s, the numbers of people applying for family reunification far exceeded the approximately 10 percent receiving Department of Labor certification for permanent residency due to employment-preference. National-origin immigration was dominated by groups that had previously arrived in the United States, and certain groups were being excluded. Western Europeans, who were originally expected to be the major beneficiaries of the quota system had not applied and were being shut out. Irish Americans spoke out against how the quota system had impacted Irish immigration during a time of severe conflict in Northern Ireland. Anti-immigration groups and businesses looking for skilled labor began to criticize the education and skills of family-reunification immigrants. Economists began to publish studies indicating that high family-reunification quotas were reducing the skill level of immigrants. At the same time, the accusation was made that family-reunification immigrants would place a burden on social services and public benefits. This issue was partially resolved by the Immigration Act of 1990. It separated family reunification immigrants from independent arrivals and created a diversification category for under-represented countries: the diversity lottery. The issue of the balance between family-reunification and employment-preferences remains at the heart of many Congressional debates about the legal quota system. In 2007, the Senate attempted to pass a bill, the Comprehensive Immigration Reform Act of 2007 (S. 1369), which would have created a point system giving more weight to education, job skills, and training and reducing the weight allocated to family reunification. Employers have advocated admitting both more high-skilled and unskilled workers. The current system requires an employer to sponsor a worker while the point system would have let workers enter based on ranking of qualifications only. Businesses countered that this did not match the qualifications of entering workers

Legal Immigration System

with actual labor demand. The merit-based system would have placed the federal government, not employers, in the position of determining which workers would gain permanent entrance and receive green cards. Certain employers were concerned that the bill would have continued to restrict the entrance of unskilled workers. The Essential Worker Employment Commission, a business-related immigration-advocacy group argued that the bill would limit workers for construction, hotels, restaurants, nursing homes, and hospitals. Temporary Workers Employers in need of certain highly educated or professional workers appear to have found a way around the system of employment preferences. A major issue with the current system and its waiting lists is that temporary workers can apply to adjust their status, and that they come with their families who are also able to adjust to permanent residency. Their entrance uses a portion of the quota for the entrance of workers and they may later apply for permanent residency, bumping people who have been previously waiting in line. In addition, many of these temporary residents, such as foreign firm managers and religious workers, may remain in the United States on a quasi-permanent basis. The Independent Task Force on Immigration and America’s Future believes that permanent immigration has become “a ratification of decisions already made in the marketplace” (2006, 24).

CRITICISM OF THE PREFERENCE SYSTEM Categorical Complexity and Statutory Caps The complexity of the current immigration preference system’s 24 major categories and 70 sub-categories has allowed employers to circumvent the rules and make temporary professional workers and their families into permanent residents. It is clear that the nation needs workers skilled in science and technology, but there has been no attempt to alter the statutory caps on employment since the failed Senate Bill 1369 in May 2007. In the meantime, highly educated or skilled workers admitted on temporary visas are being admitted, with their families, in the employment preference category, potentially displacing other workers. Skilled-Labor Shortage Senate bill 1369, the Comprehensive Immigration Reform Act of 2007, which was not passed, contained the Securing Knowledge, Innovation, and Leadership Act of 2007 (SKIL). It attempted to address the issue of conversion of skilled professionals in the country from temporary to permanent status by removing the visa cap for any potential immigrant earning a masters degree or higher from an accredited U.S. university and those awarded a medical specialty certification through postdoctoral training and experience in the United States. This would

| 477

478

|

Legal Immigration System

have partially resolved the use of the current employment-preference quota for temporary workers if they received their degree in the United States. Unskilled Labor: Immigrants or the Native Born It is unclear if there is a lack of less-educated, lower-skilled citizens to fill the jobs often taken by unskilled immigrants. Less-educated African Americans may still experience job discrimination. Employers may have a preference for the work ethic of undocumented immigrants and a prejudice against hiring high school dropouts of any ethnicity as well as citizens with criminal records. What is clear is that undocumented immigrants find their way to willing employers, with or without their families. Less-educated native-born workers may be less willing to disrupt their families, less able to pool money from their households to support geographic migration for work, and less integrated within the national job market. More importantly, the native-born may be unmotivated to work for minimum wage without benefits or to do hard and dirty work unless they are in desperate circumstances. On the other hand, the presence of undocumented labor may foster low wages, lack of benefits, and even hazardous working conditions in jobs that the native-born are less likely to take. Ultimately, the number of legal and undocumented workers in the population make it difficult to calculate the impact on less-educated native-born workers, although lower prices for goods are passed on to all. Unskilled Labor Demand Regardless of whether less skilled native-born workers are part-time workers or unemployed, companies want to bring in less-skilled labor. The Department of Labor estimates that 37 percent of new jobs created over the next decade will be for individuals who have not finished high school or stopped at high school with no college education. The top ten growth occupations include only two that necessitate a college degree. There will be a great deal of work that necessitates only on-the-job training, including home health aides, retail sales clerks, and food service workers. In May 2007, House Senate Bill 1369 addressed the question of unskilled labor in two ways. The first method was by proposing an especially severe legalization program that would require applicants to pay a fine, return to Mexico, and pay any back taxes before becoming permanent residents. The second method was to create a new category of temporary worker, a guest-worker program in which the participants would only be allowed to work up to three years. Given the manner in which employers use temporary worker visas to acquire skilled labor, one has to wonder if any guest-worker program truly lacks permanency. It is a legal way to enter the country and then be sponsored by an employer. Alternately, once in the country a worker may choose to enter the undocumented population without returning and may even bring other unauthorized family members later. It is likely that employers are correct about adjusting the current statutory cap of 5,000 visas for unskilled workers, but negative public opinion

Legal Immigration System

| 479

about taking jobs away from the native-born curbs the enthusiasm of savvy politicians who wish to push for statutory cap changes. UNSKILLED PRIVATE HOUSEHOLD WORKERS Extreme limitations on the entry of unskilled labor make it difficult to hire legal permanent residents for certain occupations. There is great demand for in-home housekeepers, maids, and childcare workers, but these jobs are classified as unskilled labor. Because of this, the demand is primarily met by undocumented women working off the books. If this area of need were to be recognized, only households above a certain income level would be likely to hire these women. Middle class families economically benefit from the low wages, lack of federal tax and Social Security payments, and failure to provide benefits such as health insurance. In short, they can’t afford these workers if they are legal. There have been many government scandals involving presidential nominees and high officials such as Zoe Baird (Attorney General—Clinton administration), Kimba Wood (Attorney General—Clinton Administration), and Linda Chavez (Secretary of Labor—Bush administration). These women are alleged to have had undocumented workers employed in their households and withdrew from the nomination process. It is possible that they were unable to find but able to pay for legal workers to do this low-wage labor. Limiting unskilled-worker visas for women who would work in the home creates a shortage of legal workers for upperincome households and makes the search for women to work in middle-class and workingclass households harder. Creating visas for this category of worker is unlikely to completely solve the problem because some households cannot afford the costs of a regular wage and other households that can afford it may not want to pay it because there is a low-skilled labor supply of undocumented immigrant women that has been continually replenished.

FLAWS IN THE IMMIGRATION SYSTEM Long Waits The 1965 Immigration and Nationality Act created a set of rules that does not meet current demand either for rapid family reunification or approval of skilled workers. Anti-immigrant organizations claim that immigrants do not want to come legally and that the system does not work. Immigrant advocates feel the system is broken because the rules are ineffective in meeting demand. Any category of immigrant, family or skill based, is held back by rules that limit specific countries to no more than seven percent of applicants (25,600) as well as the actual numerical caps on specific categories. The purpose of these caps is to prevent a group of countries from dominating the legal immigration process, even if they have more people who want to come as skilled workers or relatives. The length of time to wait for a visa to be approved, for instance 14 years for an unmarried child from Mexico, may prompt certain migrants to come illegally. The Independent Task Force on Immigration and America’s Future expressed concern that the waits are inhumane and place constraints on this country’s

480

|

Legal Immigration System

potential benefit from skilled immigrants during their most productive working years. The skilled immigrant category clearly does not meet employer demand. The inflexible hemispheric, country, and preference-category ceilings make for a wait for workers from certain countries or regions. As a result, in terms of meeting labor market demand, skilled workers and professionals with a job offer may have to wait five years for a visa. Southeast Asian Indians may have to wait three years even if they have exceptional ability. H.R. 4437, the Border Protection, Anti-Terrorism and Illegal Immigration Control Act of 2005, was passed by the House of Representatives in December 2006 but never ratified by the Senate. This act addressed the immigration backlog by requiring that additional staffing and resources be provided to CIS. Senate Bill 1369, the Comprehensive Immigration Reform Act of 2007, which was also not passed, provided for numerous types of processing backlogs including family reunification, employment, national origin, minor children, and shortage occupations. Lack of legislative action preserves these ineffectual long waits. Complex Paperwork To navigate becoming a legal permanent resident, immigrants must have applications processed in three separate agencies: Citizenship and Immigration Services (CIS) in the Department of Homeland Security, the Department of Labor (DOL), and the Bureau of Consular Affairs at the Department of State. Each separate agency has specialized application forms, processing requirements, fees, information tracking, and data systems as well as backlogs. Losing Records. The INS, now CIS, has a history of losing the records of immigration applicants. The United States government is far more likely to hire employees for enforcement, and CIS (INS) workers have a history of feeling under-staffed, being discouraged, and having to deal with excessive workloads with limited resources. Past attempts to reform this increasingly complex, records-based bureaucracy have failed. CIS workers have the job of dealing with public scrutiny of immigration applications for fraud. Becoming a legal U.S. resident is treated as a scare commodity in danger of being stolen and awarded to the wrong people. In this atmosphere of suspicion, CIS workers need to please politicians, the proimmigrant lobby, employers, and other special interests that favor immigration— both legal, and, depending on circumstances—undocumented. The result of the complexity of visa issuance in the U.S. immigration system is a failure to maintain a smooth-running bureaucracy. Since the events of 9/11, the pressure for scrutiny is even greater, and the system is not managing to meet demand. Corruption H.R. 4437, the Border Protection, Anti-Terrorism and Illegal Immigration Control Act of 2005 identified corruption within Citizenship and Immigration Services (CIS) as a problem to be addressed. Although the act was not ratified by

Legal Immigration System

the Senate, it established that the House is concerned about internal corruption in CIS and immigration benefit fraud. The House referred to a backlog of complaints against CIS employees and asked that they be investigated and that CIS hold internal audits. When CIS was separated from customs and border protection, H.R. 4437 specified that it did not mean for it to give up a law enforcement function. In other words, the House requested that CIS police the validity of immigrant applications and examine its own employees for any evidence of corrupt actions. A BROKEN LEGAL IMMIGRATION SYSTEM The Independent Task Force on Immigration and America’s Future purports that the legal immigration system has lost its integrity. The quotas for legal immigrants to enter do not accommodate the volume of requests, which date back up to sixteen years. Given the very human tendency for families to want to reside together, it is not surprising that some pursue undocumented immigration in order to reunify in advance of the paperwork while others who wait for legal entrance are kept apart. It is also not surprising that some employers hire unauthorized workers because they would have to wait too long to receive clearance for legal workers or even risk denial if they want a permanent lowskilled worker. The Senate and House of Representatives have the authority to change this system with the cooperation of the President. There is so much concern about undocumented immigration that the problems of the legal system are on the back burner. The inability of Congress to reach agreement is illustrated by the concentration of S. 1369 on issues such as legalization, guest workers, and admittance of highly educated immigrants along with certain border enforcement provisions. In contrast, H.R. 4437 was an effort to control unauthorized immigration, but did not address reforming the legal system. Members of Congress contended that the borders must be controlled before reforming the legal immigration system. LIMITING OR EXPANDING IMMIGRANT ADMISSIONS It is over-simplified to look at immigration control in terms of setting a numerical limit on admissions per year. There are many qualifiers and numerical quotas in place for most categories of immigrants. Nevertheless, legal immigrant admissions are at a high point. The number of immigrants in the United States is approaching a level unknown since the 1880s because the number of undocumented immigrants augments the legal permanent-resident population. As a result, there are opposing viewpoints on what should be done about the number of immigrants admitted. It should be understood that this debate is partially driven by the growth in the undocumented population because it places pressure to accommodate cultural diversity and economic integration. Surfing the internet uncovers the diversity of views of conservative and liberal organizations, think tanks, and citizens’ groups. Many of them will state

| 481

482

|

Legal Immigration System

that they are nonpartisan, but they often lean one direction or the other. As an example, the Federation for American Immigration Reform (FAIR) advocates a very conservative agenda that would dramatically curtail legal and undocumented admission. In conjunction with Congressmen Tom Tancredo of New Mexico, FAIR wants a moratorium on legal immigrant admission with the exception of the spouses and minor children of U.S. citizens to occur while border control is intensified. They argue that it is not possible to properly screen potential immigrants and end undocumented immigration because the system is over-loaded. There are four reasons given for their position: (1) protecting the jobs of citizens, (2) necessity of controlling the borders for national security and terrorism prevention, (3) preservation of social cohesion on the basis of a common culture, and (4) limiting population growth. Liberal viewpoints on immigration emphasize that people come to the United States to pursue the American Dream and that the U.S. economy is increasingly integrated into a global economy. Kevin Johnson, an academician, compares the way that immigration law operates to the manner in which the anti-alcohol prohibition laws of the 1920s failed. The social and economic reality is that citizen employers and undocumented immigrants may not comply with the law. Although anti-immigrant sentiment is high, the counter proposal is that increasing the number of legal immigrants would reduce the number who are undocumented. The European Union has moved toward an open, permeable border system that allows workers to move as freely as goods and economic capital. Increasing legal entry creates a fear of opening the floodgates among those who would restrict immigration, although they may be open to admitting skilled professionals. Because the American public is very concerned about the extent of immigration, controlling the borders and homeland security appear to have displaced debates about legal immigration, preference categories, and statutory caps. CONCLUSION Understanding legal immigration is more than just counting the number of immigrants present. It involves a complicated system of laws about admissions preferences and quotas. Nevertheless, the basic debate often emphasizes either limiting all immigration, limiting legal immigration to counteract the impact of undocumented immigration, or pushing for border control and an end to undocumented immigration. The fate of legal immigrant applications is tied to an extremely volatile debate about the who, what, when, and why of any foreign presence in our society. The need for education for cultural integration of legal permanent residents is an underlying issue in how to maintain cultural cohesion and facilitate prosperity. It is likely that the newly elected president will pursue a new agenda on immigration. Since the passage of INA in 1965, the United States has pursued liberal policies despite conservative agendas. Because of homeland security, it is likely that a conservative border-enforcement agenda will continue while the question of legal immigration will continue to be debated.

Legalization Programs

See also Asylum and Human Rights; Domestic Workers in the Private Household Economy; Economy; Guest Worker Programs; Legalization Programs; Population Trends; Race and Ethnic Population Trends; Refugees; Temporary Workers; Undocumented Immigration Policy References: Daniel, Dominique. “Family Reunification.” In Immigration in America Today: An Encyclopedia, edited by James Loucky, Jeanne Armstrong, and Larry J. Estrada, 114–119. Westport, CT: Greenwood Press, 2006; General Accounting Office. Immigration: The Future Flow of Legal Immigration to the United States. Washington D.C.: U.S. Government Printing Office, 1988; Heyman, Joshua McC. “Putting Power Into the Anthropology of Bureaucracy: The Immigration and Naturalization Service at the United States Border.” Current Anthropology 36, no. 2 (1995):261–287; Independent Task Force on Immigration and America’s Future (ITFIAF). Immigration and America’s Future: A New Chapter. New York: Migration Policy Institute, 2006; Palmer, Stacey, and Wayne Lutton. The Immigration Time Bomb. Monterrey, VA: American Immigration Control Foundation, 1988; Pear, Robert. “Critics in Senate Vow to Alter Immigration Bill: Employers Cite Problem With Immigration Bill After Crafting It.” New York Times. http:// www.nytimes.com/2007/05/22/washington/22immig.html?ex=1337486400&.

Judith Ann Warner LEGALIZATION PROGRAMS Amnesty is a binational issue involving the United States and Mexico. It is the subject of intense political, civil, and human rights debate. Legalization of unauthorized immigrants in the United States has polarized businesses and the public. Clashing views concern the social impact of legalizing people who immigrated without border inspection and are deportable. There has been a deadlock on congressional amnesty legislation as politicians experience cross-fire from their constituencies. Currently, public attitudes are changing as Senate legislation advocating legalization confronts House legislation that would make it a felony to be in the United States without documented entry. BACKGROUND Amnesty, the legalization of undocumented immigrants already present in the United States, is a political issue that has polarized the government. Amnesty is a hot topic on television talk shows, in Internet chat rooms, in closed door meetings between the Senate and House of Representatives, and on the street. The federal government regulates immigration and the president and Congress advocate for and control legislation on the topic. Both pro- and anti-immigrant lobbies and public opinion impact their choices. Legalization is especially important for binational relations between the United States and Mexico because the majority of undocumented persons came from Mexico across the 1,951-mile shared border. Legalization is treated as a moral issue because entering the United States without papers is viewed as an illegal action. It is a race and ethnic relations issue because of the cultural diversity of the new immigration and the Mexican

| 483

484

|

Legalization Programs

majority in the estimated unauthorized population. Furthermore, it is a human rights issue because of its implications for loss of human freedom. Proponents of amnesty view international geographic mobility as an individual right and think that no human being can be illegal. Opponents of an amnesty view it as condoning illegal behavior and argue that effectively enforcing immigration law through deportation or oversight of employers would be sufficient to control the social problem. Why is this issue so controversial? Supporters of amnesty are often employers from an elite segment of the population while opponents are native-born workers who are threatened by increasing cultural diversity and concerned that immigrants may take their jobs. Because the public responds to opinion polls and goes to the ballot box, a politician needs to balance pressures from those with money to contribute to campaigns against the will of a divided people. What Is Amnesty? Amnesty refers to granting unauthorized immigrants the legal right to remain in the United States. There are three ways in which immigrants gain unauthorized status. The first is by crossing a land, sea, or air border without paperwork. The second involves having a legitimate visa, overstaying the time limit, and disappearing into the population. The third way is to obtain a fraudulent copy of a visa, enter with the purpose of remaining, and not maintain contact with the government regarding immigration status. Amnesty would involve a paperwork application and fee given to the Citizenship and Immigration Service (CIS) in the Department of Homeland Security to document that an individual has been living in the United States for a period of time regulated by a cut-off date. The CIS would process the paperwork and certify prior residence or reject the application. Immigrant rights are impacted by laws and policies that have both civil and criminal consequences. There are different procedures being debated that can be undertaken to give an immigrant legal status. CIS application could lead to temporary or permanent legal status sanctioned by the federal government. Permanent-resident aliens would be eligible for many government services, benefits, and protections provided for individuals and families. The United States is now in its third wave (1965 to the present) of extensive immigration, and citizenship is a core societal institution connected to social cohesion and stability. The right to become a naturalized citizen is connected to a civics educational exam and a pledge of allegiance ceremony performed in public. Undocumented immigrants, by definition, cannot be legally incorporated into this society unless their status is changed by law, a process referred to as amnesty or legalization. Amnesty is a term that is understood in immigrant communities but arouses the ire of the American public. Conservatives have generated public resentment of the term and its implied process of acceptance of illegal behavior. Legalization is often used as a more neutral term and a proposed Senate plan has stringent requirements for provision of temporary and then permanent legal status. In 2006, President Bush (2000–2008) rejected the use of the term

Legalization Programs

amnesty, referring to it as an “automatic path to citizenship,” while advocating a legal status for former undocumented immigrants (Bush 2007). Practically, there was little difference between amnesty and legalization until the proposed Comprehensive Immigration Act of 2007 (CIRA) initiated new requirements for legalization requiring payment of back taxes and a return of heads of household to the immigrant’s country or origin (referred to as touchback) before applying for legalization (Martin 2007). At present, many politicians avoid using the term amnesty because it is seen as insufficiently punitive while legalization proposals emphasize that unauthorized entry should carry penalties if a person is to be legally admitted afterward. Undocumented Population The United States, as a high-income country, attracts more immigrants from low-income countries than legal immigration quotas permit. Mexico, a middleincome country, has high levels of underemployment and unemployment and a tradition of immigration to the United States. Many other middle and low-income countries are a source of migrants looking for jobs. As a result, the U.S.-Mexico border and all sea and air routes are a source of entry for individuals with legitimate visas who overstay as well as individuals without papers who cross over. Although the Immigration Reform and Control Act of 1986 made it a civil and criminal offense for employers to hire undocumented workers, there have been many loopholes in enforcement. Employers are not required to investigate whether the individuals they hire have legal or fraudulent documents purchased on the black market. Businesses can also evade the necessity of certifying workers through utilizing subcontractors. Finally, criminal penalties against employers for hiring unauthorized workers have only recently been implemented and the rate of application of civil penalties, in the form of fines, had dropped after 9/11 due to other enforcement priorities. In Fiscal Year (FY) 2003, only 124 cases resulted in fines, down from a peak of almost 1,000 in 1991 (Brownell 2005). In short, the lack of an operational system to verify documentation greatly neutralized this effort and when enforcement has been intense, employers have lobbied that they need these workers and that the pressure should be removed. Since 2006, Immigration and Customs Enforcement (ICE) has greatly stepped up immigration raids and is detaining and then deporting unauthorized workers while arresting and levying fines against employers. WHO WOULD RECEIVE AMNESTY? Estimates of the undocumented population are unreliable due to the fear that individuals have of being located and deported. It should be understood that these figures are based on complex statistical calculations that may contain inaccuracies. Many politicians have made negative use of the immigration issue to capture voters. These politicians may use high estimates of the size of the unauthorized population to scare voters while the U.S. Census and other statisticians may offer a range of estimates due to the underground status of this group.

| 485

486

|

Legalization Programs

Based on the Current Population Survey for 2002, it was estimated that there were 9.3 million undocumented immigrants in the United States representing 26 percent of the foreign-born population. Mexicans made up 57 percent (5.3 million) of undocumented immigrants and typically entered across the U.S.-Mexico border. Twenty-three percent were from Latin American countries, 10 percent were from Asian countries, five percent were from Europe and Canada, and five percent were from other nations. Sixty-five percent of the undocumented population resided in only six states: California (27%), Texas (13%), New York (8%), Florida (7%), Illinois (6%), and New Jersey (4%). There has been an extensive increase in undocumented immigrants in the Rocky Mountains, Midwest, and Southeast. Six million undocumented workers represented five percent of the total U.S. labor force. Ninety-six percent of undocumented men worked, reflecting that they were young and not likely to be disabled or in school. Sixty-two percent of undocumented women were employed. Women of child-rearing age often stayed at home with children. Although the public believes that unauthorized immigrants are primarily men, 41 percent (3.2 million) were women. A substantial component of undocumented immigration is connected to family formation. Children comprised 1.6 million of the unauthorized population. There are another 3 million children born to undocumented parents in the United States. When a family is comprised of both unauthorized and U.S.-born members, it is referred to as of mixed status. Because most federal proposals for legalization are aimed at workers, stay-athome mothers and children (both citizen and undocumented) would be subjected to instability if workers and, presumably, their families had to return to their home countries for a period of time. For many of these children, it would mean relocation to a foreign culture and country. The Current Population Survey for 2002 indicated that undocumented individuals constituted only 10 percent of all low-wage workers in the United States. This population supports families in other countries through the sending of remittances (money) and/or families they have established in the United States. It is important to understand that two-thirds of these workers earn less than two times the minimum wage as compared to one-third of American workers. These individuals and families are primarily low income and parents must practice self sacrifice for the sake of their children’s future. SUPPORTERS OF LEGALIZATION As House Representative Charles Rangel of New York describes America, it has changed from a land that welcomed immigrants who fled persecution to one that persecutes people looking for a better quality of life. As early as 1981, a majority of the members of the Select Commission on Immigration gave reasons for establishing an earlier amnesty; those reasons are still applicable today. First, qualified individuals are able to contribute more to the American economy when they work in the open, not the shadows. Undocumented immigrants tend to be hard workers who are productive and already contribute their labor and taxes.

Legalization Programs

Second, legalizing people without papers would give them the protection of U.S. labor laws and improve wages and working conditions for all. This is because they would no longer exert a downward impact on wages. Third, legalization would allow the ICE to concentrate on prevention and enforcement at the borders rather than tracking down people in the interior. Fourth, legalization would provide accurate statistical information on the undocumented population. Additional reasons include that, historically, the United States had a responsibility for the presence of undocumented people because it did not penalize its own citizens, the employers who hired them, and that, under such a circumstance, deportation would be unfair to noncitizens. The Select Commission on Immigration recommendations preceded by five years the adoption of employer sanctions and an amnesty. Politicians who support a legalization stress that it would reduce pressure on the nation’s borders by permitting immigrants with legal papers to freely cross. Rarely will a politician express humanitarian concern about individuals separated from their families while they work undercover, families forced to live undercover, or workers subject to exploitation by unscrupulous employers. Regardless, the federal government still has a responsibility toward undocumented workers because it has not fully enforced the criminal or civil penalties of employer sanctions. Historically, it did not take a steadfast course toward finding and prosecuting employers in violation of the law. Although anti-immigration advocates view the presence of undocumented people in the United States as immoral because it is illegal, one can question this view. Public policy, ever changeable, decides who is legal and who is not. Proimmigrant and minority group advocacy organizations view amnesty as a human rights solution. The media, certain corporate contributors who fund campaigns such as agribusiness, and other employers support legalization for workers that they believe the nation needs. Catholic bishops, the Protestant evangelical World Relief and National Hispanic Christian Leadership conferences, and major Protestant religious denominations have all endorsed amnesty as a Christian solution. In particular, Hispanics would gain the largest component of a legalizing population, and they are a very important voting bloc courted by both the Republicans and Democrats. Mexican nationals make up the majority of unauthorized immigrants, an estimated 3.9 to 4.5 million, and would be incorporated, over time, into the Mexican American and Hispanic pan-ethnic population, now the largest minority group in the country (Passel et al. 2004). The National Council of La Raza, the Mexican American Legal Defense Fund (MALDEF), and other citizen and immigrant ethnic organizations show strong support for amnesty. Finally, a series of mass protests by immigrant workers and their supporters rocked the nation in the spring of 2006 as they asked for their rights. OPPONENTS OF AMNESTY Legalization has been attacked as a way of rewarding people who break the law. Tom Tancredo, a congressional representative from Colorado, thinks that amnesty is a moral insult to legal immigrants. It places people who came without

| 487

488

|

Legalization Programs

papers ahead of lawful immigration applicants, many of whom have been waiting for years for permanent-residency authorization. Politicians against legalization remind the public that the United States has a history of having granted amnesty to approximately three million undocumented immigrants when they passed the Immigration Reform and Control Act of 1986. Amnesty and increased border control was supposed to eliminate undocumented entry, but the presence of an estimated 7 to 8.5 million unauthorized immigrants, in their eyes, refutes the idea that amnesty stabilizes the immigrant population and stops additional unauthorized entry. Economists Orrenius and Zavodny found that the Immigration Reform and Control Act of 1986 (IRCA) did not motivate foreign nationals to quickly cross the borders to apply for amnesty. Instead, the concern exists that more unauthorized entrants have immigrated because they believed a series of amnesties would occur, but no evidence exists to support such an assertion. Although not widely known in the United States, many European countries including France and Germany, have offered a series of amnesties in response to continued unauthorized immigration. As in the United States, unauthorized entrance was not appreciably impacted by amnesty but followed a pattern in which the undocumented population increased over time due to legal entry enforcement issues. Politicians who are against legalization cross party lines; they can be either Democrats or Republicans and are heavily influenced by public opinion. The sector of voters most opposed to amnesty are predominately white males without a college education, a group vulnerable to labor-market competition, 50 percent of whom are registered Republicans. They comprise 20 to 25 percent of all voters and are an important voting bloc—as important as Hispanics.

AMNESTY AND PUBLIC FREEDOM The ability to come out from the shadows had poignant effects on the successful IRCA amnesty applicants. Many were very proud to attend English and civics education classes and openly embraced becoming American. The pressures of having to hide to make a living or raise a family are very hard on individuals, and interviews with 1986 amnesty recipients can bring one to tears as they describe their past experience and fear of the migra (a Spanish term used to refer to the Border Patrol).

STATE RESPONSES AND FEDERAL RESPONSES The two states with the highest level of undocumented population, California and Texas, have a history of anti-immigrant initiatives. In the case of Texas, in 1982 the Supreme Court in Plyler v. Doe found an attempt to exclude undocumented children from public education unconstitutional. In 1994, California voters passed Proposition 187. It excluded undocumented immigrant adults and children from use of public schools and all social services save emergency

Legalization Programs

medical care. Prior to the election, Latinos staged a massive protest of Proposition 187 in downtown Los Angeles; however, many (but not a majority) of Latino citizens voted for it. The constitutionality of this law was immediately challenged. On November 11, 1994, federal judge Matthew Bryne issued a restraining order on the grounds that immigration regulation is not a matter of states’ rights but subject to federal authority. This case was active in the courts until 1998, when the newly elected governor, Gray Davis, who had opposed the initiative, ended the appeals process thereby rejecting the law. In effect, states have been unable to regulate undocumented immigration because it falls under federal jurisdiction although some opponents of undocumented immigration thought that the Proposition 187 case might have resulted in overturning Plyler v. Doe. At present, there are hundreds of pieces of legislation being considered by states that have anti-undocumented immigrant features, many aimed at enforcement, but some of which continue to have features that challenge federal control of immigration. In Arizona, Proposition 200 passed denying many services to undocumented immigrants and is being challenged concerning its constitutionality. There is an active dispute about states’ rights to regulate the undocumented. President Bush (2000–2008) and former Mexican President Vincente Fox (2000–2006) discussed a new amnesty in 2001. This was before 9/11 changed perspectives on border control and shifted concerns to counter-terrorism. Amnesty has been a consistent issue for Mexican presidents. After numerous homeland-security and immigration-related initiatives were passed in response to 9/11, from 2005 to 2006 the House of Representatives and the Senate debated two different versions of an immigration reform bill that includes an amnesty. H.R. 4437, which passed 239–182 on December 16, 2005, did not include an amnesty provision, but proposed increased border enforcement and making first-time unauthorized entrance a criminal felony. Senate Bill 2611, in line with former President Bush’s proposed immigration policy, would have legalized up to 12 million illegal immigrants. The Senate bill was sponsored by three Republican Senators (Arlen Spector, John McCain, and Mel Martinez) and one Democratic Senator (Ted Kennedy). S.B. 2611 would have established a three-tier eligibility program. Legalization would have been extended to individuals who had been in the United States for five years or longer and would be subject to the following provisions: (1) continued employment in the United States for six years prior to eligibility for permanent status, (2) payment of any back taxes, (3) payment of $3,250 in fines and fees, and (4) learning the English language. Individuals in the United States for a period of two to five years would be expected to go to a point of entry at the border (referred to as touchback) and apply to enter legally as guest workers. Individuals in the United States for less than two years would be excluded and expected to voluntarily return to their home countries or be deported. Since the House legislation contained no provision for unauthorized residents to apply for legal status and instead made unauthorized status a criminal felony, an agreement is not likely. A compromise suggested by Mike Pence, a Republican Congressman was that to avoid amnesty, all unauthorized immigrants

| 489

490

|

Legalization Programs

should be mandated to return to their home country for one week and then return to their jobs as guest workers. He also suggested that any legalization be delayed until the president certifies that the border is secure. Although President Bush and Senate Republications were major sponsors of legalization, most Republicans in the Senate and Congress did not support it and negatively targeted Democrats as supporters of amnesty in 2006 races for key seats. The current president of Mexico, Felipe Calderon (2006-present) supports amnesty and an opening of the U.S. border to Mexicans. In 2006 the United States saw a wave of protests in support of amnesty involving tens of thousands of supporters culminating in the May 1, 2006 nation-wide walk-outs. In view of the 2006 immigration deadlock, the Manhattan Institute and the National Immigration Forum asked the following poll question: “Which would you prefer: Congress does nothing about immigration reform this year or Congress passes an immigration reform bill that provides for increased border security and tougher enforcement but also contains things you do not like, such as amnesty for current illegal immigrants?” Fifty-five percent of likely voters favored immigration reform with amnesty over no change in the situation. Republicans were especially likely to favor change, but 33 percent favored no action. Gallup, Washington Post/ABC News, Time, NBC News/Wall Street Journal, and CNN polls found that from 2/3 to 3/4 of respondents would favor eventual legalization if requirements such as learning English and paying back taxes were met. HISTORICAL BACKGROUND TO AMNESTY The hotly debated IRCA included the original amnesty to eliminate the undocumented population without deportation. Restrictions on proof of qualification made the process frightening and arduous for a population that had tried to hide. IRCA legalized two groups of workers: (1) individuals who could provide proof that they had resided in the United States prior to January 1, 1982, a five year requirement for residency; and (2) Special Agricultural Workers (SAWs) who could prove farm-related employment for 90 days or longer in a one year period that began on May 1, 1986. It was much easier to legalize unskilled labor to produce the nation’s food than workers in any other economic sector. Because of concerns about absorbing potential citizens who could assimilate to an English-speaking society, IRCA had two additional provisions. Applicants had to meet an English-language and civics requirement through examination or taking 40 hours of classes. Both the Immigration and Naturalization Service (INS) and Qualified Designated Entities, social service and church organizations, helped unauthorized immigrants to file. Many immigrants were frightened of the INS because of their prior status as an adversary trying to deport them. Ultimately, about 1.6 million people were legalized under pre-1982 residency requirements, and an additional 1 million were legalized as a part of the SAW program. IRCA, because of its emphasis on employability, resulted in legalization of more undocumented males than females. The vast majority of legalized men were employed but issues of family unification or reunification were not addressed in

Legalization Programs

IRCA. One result was that these men sent for unauthorized family members ahead of provisions to re-unify their families. Due to backlogs in applications in the legal immigration system, it is probable that attempts to legally reunify would have resulted in lengthy waits. The group legalized by IRCA was less educated than the U.S. population. Although English-language and civics classes were embraced by amnesty recipients, the classes were not funded for an extensive-enough period of time to result in substantial English acquisition. The goal was not to achieve functional competency in English, but some limited understanding. Subsequently, many legalized immigrants have sought additional English-language instruction. Lack of English language proficiency was the greatest obstacle to achieving social mobility for the amnesty recipients. The SAW program had been meant to provide agricultural workers, but many of these male amnesty recipients sought better urban jobs even before legalization in construction, industry, and the service sector. Examples of jobs taken as a step up included production supervisor, brick mason, carpenter, and brick mason. Nevertheless, there was only a limited number of opportunities for these less-educated workers to change jobs. Typically, undocumented workers try to leave jobs with a higher probability of apprehension and deportation or that pay a very low wage. In the unauthorized-employment sector, education, prior work experience, and even English-language proficiency are not conventionally associated with worker mobility. Amnesty provided for the integration of unauthorized workers into the tax and Social Security system. Previously, federal taxes and Social Security were often taken out and deposited with federal authorities. These funds were problematic to access due to unauthorized status or withheld and never deposited by unscrupulous employers and labor contractors. Legalization did provide some worker protection from exploitation, but it did nothing to help the new population of undocumented immigrants who came after. In addition, unskilled workers, male or female, who had limited English proficiency remained in low-pay work. The IRCA amnesty recipients received higher wages after legalization, which suggests that undocumented workers are hired into low-wage jobs and that legitimacy increases opportunity. As a less-educated population, unauthorized immigrants still tend to earn less than native-born workers. After IRCA, the slowly building new population of undocumented workers, augmented by those who could not qualify for amnesty, faced lower wages and poor working condition. In agriculture, a primary employer of undocumented workers, wages are thought to have declined 33 percent (Phillips and Massey 1999). After the Immigration Reform and Control Act of 1986 legalized workers departed to better occupations and a new undocumented population willing to work for low wages under poor working conditions began to arrive. Employers were able to get around employer sanctions and continued to use undocumented status as a wedge for paying low wages. As a result, IRCA did not function to relieve problems associated with an undocumented population. IRCA sought to increase the social integration of a shadow labor force, but the economic focus of past and current legalization initiatives overlooked the

| 491

492

|

Legalization Programs

importance of social ties among families. In 1986, an important reason to apply for amnesty was to gain the freedom to cross international borders to visit family. Amnesty recipients could also apply for visas and permanent residency status for relatives. An unexpected consequence of the IRCA amnesty was to strengthen ties between newly legalized persons and their families in the sending countries. Those who were legalized also became aware of their rights as workers and permanent legal residents. Legalization works to promote permanent settlement of amnesty applicants and their spouses and children. The fostering of continued immigration for family reunification is an unexpected by-product of legalization that will continue to influence and strengthen immigrant communities in the United States in the foreseeable future. The IRCA amnesty was designed to eliminate fraud. Yet it is possible that agricultural business owners colluded with unauthorized workers and massive fraud in submitting SAW applications without having worked in agriculture subsequently occurred. If the goal of the IRCA amnesty was to eliminate the undocumented population, then it was a spectacular failure. Census 2000 estimated that there were 8.5 million unauthorized immigrants in the United States. Although apprehensions of individuals trying to illegally cross the U.S.-Mexico border declined immediately after IRCA’s passage, they rebounded during the amnesty application period and thereafter. A key concern is that by granting amnesty, IRCA created a precedent that other undocumented immigrants hoped could be repeated. The current debate suggests this possibility, however, the conditions for legalization have changed toward greater punitiveness. CONCLUSION The debate over amnesty or legalization will not easily be resolved. Even if a new process of legalization is put into place, the porosity of the nation’s land, sea, and air borders will allow future undocumented entrants. Opponents of legalization argue, based on the failure of the IRCA amnesty, that there can be no legalization of the unauthorized population without massive changes in enforcement. Pressures caused by the size of the undocumented population could result in a continued debate over amnesty and legalization. It is very likely that, whatever the process is called, amnesty or legalization, a process of incorporation will be established. The debate will then continue if the U.S. economy continues to attract more unauthorized immigrants, employers hire them, and the population increases in size again prompting more concern about incorporation. Changes in legislation permitting more immigrants to come as permanent residents, eliminating the authorization issue, is highly unlikely given negative public opinion about the economic consequences and cultural diversity of the new immigration. Politicians will continue to attract popular support for federal agendas to secure the borders, making repeated legalization a possibility. The inability to fully control all borders, the desirability of these workers for employers, and a lack of

Legalization Programs

resolve in sufficiently targeting employers for interior enforcement make additional acts of legalization likely. See also Global Economy and Migrant Control; Congressional Reform Legislation; Employer Sanctions References: Baker, Susan Gonzalez. “The Amnesty Aftermath: Current Policy Issues Stemming From the Legalization Programs of the 1986 Immigration Reform and Control Act.” International Migration Review 31(1)(1997):5–27; Brownell, Peter. The Declining Enforcement of Employer Sanctions. Washington D.C.: Migration Information Source, Migration Policy Institute. http://www.migrationinformation.org /Feature/display.cfm?ID=332; Bush, George W. President Bush’s Plan for Comprehensive Immigration Reform. State of the Union Policy Initiatives. 2007. http://www.whitehouse.gov/stateoftheunion/2007/initia tives/immigration.html; Chacon, Justin Akers, and Mike Davis. No One is Illegal: Fighting Racism and State Violence on the U.S. Mexico Border. Chicago, IL: Haymarket Books, 2006; Hing, Bill Ong. Defining America Through Immigration Policy. Philadelphia, PA: Temple University Press, 2004; Martin, Philip. “Senate: Immigration Reform Stalls.” Migration News 13, no. 3 (2007). http://migration.ucdavis.edu /mn/more.php?id=3294_0_2_0; Orrenius, Pia M., and Madeline Zavodny. “Do Amnesty Programs Reduce Undocumented Immigration? Evidence from IRCA.” Demography 40(3)(2003): 437–450; Passel, Jeffrey S., Randy Caps, and Michael Fix. Undocumented Immigrants: Facts and Figures. Washington D.C.: Urban Institute. http://www.urban.org /publications/1000587.html; Phillips, Julie A., and Douglas S. Massey. “The New Labor Market: Immigrants and Wages After IRCA.” Demography 36(2)(1999):233–246.

Judith Ann Warner

| 493

This page intentionally left blank

BATTLEGROUND IMMIGRATION

This page intentionally left blank

BATTLEGROUND I M M I G R AT I O N VOLUME 2 (M–Z)

Edited by Judith Ann Warner

GREENWOOD PRESS Westport, Connecticut • London

Library of Congress Cataloging-in-Publication Data Battleground immigration / edited by Judith Ann Warner. p. cm. Includes bibliographical references and index. ISBN 978–0–313–34413–8 (set : alk. paper) — ISBN 978–0–313–34415–2 (vol. 1 : alk. paper) — ISBN 978–0–313–34417–6 (vol. 2 : alk. paper) 1. United States—Emigration and immigration—Encyclopedias. JV6465.B38 2009 325.7303—dc22 2008038758 British Library Cataloguing in Publication Data is available. Copyright © 2009 by Judith Ann Warner All rights reserved. No portion of this book may be reproduced, by any process or technique, without the express written consent of the publisher. Library of Congress Catalog Card Number: 2008038758 ISBN: 978–0–313–34413–8 (set) 978–0–313–34415–2 (vol. 1) 978–0–313–34417–6 (vol. 2) First published in 2009 Greenwood Press, 88 Post Road West, Westport, CT 06881 An imprint of Greenwood Publishing Group, Inc. www.greenwood.com Printed in the United States of America

The paper used in this book complies with the Permanent Paper Standard issued by the National Information Standards Organization (Z39.48–1984). 10 9 8 7 6 5 4 3 2 1

I. Warner, Judith.

CONTENTS Guide to Related Topics Series Foreword [Volume 1] Introduction [Volume 1]

ix xiii xv

Entries: Anti-Terrorism Policy and Immigrant Communities

1

Asylum and Human Rights

6

Attitudes toward Undocumented Immigrants

21

Bilingual Education

25

Bilingualism

37

Birthright Citizenship

49

Border Deterrence Strategy

57

Border Fence

63

Border Patrol and Human Rights Violations

69

Border Patrol, Bureaucracy, and Expansion

74

Brain Drain and Immigrant Professionals

81

Canadian Border

87

Civic Incorporation

94

v

vi

|

Contents

Coercion and Migration

104

Congressional Reform Legislation

118

Contact and Immigrant Attitude Formation

126

Counterterrorism and Immigrant Profiling

131

Crime and Youth Gangs

142

Cultural Assimilation

155

Department of Homeland Security (DHS) and Immigration Enforcement

169

Detention Conditions

175

Diversity, Racism, and Xenophobia

186

Domestic Violence and Victim Rights

199

Domestic Workers in the Private Household Economy

211

Drug Trafficking

218

Dual Citizenship

229

Economy

239

Education

254

Education Costs

267

Electronic Eavesdropping

274

Employer Sanctions

277

Enslavement

287

Ethnic Identity across Generations

298

Expedited Removal

301

Female Genital Mutilation and Asylum

309

Financial Costs and Contributions

314

Gender and Family Formation

323

Global Economy and Migrant Control

338

Guest Worker Programs

352

Hate Crimes

365

Health and Fiscal Costs

375

Health and Residential Segregation

386

Hispanic Migrants in Children’s Literature

394

Human Trafficking

404

Contents | vii

Identification Cards

417

Identity Theft

423

Immigration Law and Exclusion

430

Indefinite Detention

441

International Students in Higher Education

452

Iraq War and Population Displacement

459

Legal Immigration System

469

Legalization Programs

483

Media Representation

495

Mental Health Needs and Services

504

Migrant Deaths on U.S.-Mexico Border

516

Militarization of the U.S.-Mexico Border

531

Minimum Wage

541

National Guard and Border Control

549

National Origin and Religion Profiling

554

National Security and Community Policing

565

Nativism and Terrorism

567

Naturalization and Immigrant Loyalty

574

Neighborhood Social Control, Culture, and Crime Prevention

582

New Asian Immigration

589

9/11 Commission

594

Official English Movement

609

Open Border Initiative

620

Organized Crime

624

Police Relations

637

Political Perspectives

653

Population Trends

665

Port Security

674

Public Health

679

Racial and Ethnic Population Trends

691

Raids

701

viii

| Contents

Refugees

710

Remittances

722

Residential Segregation

725

Rights of the Undocumented

731

Sanctuary Policy

739

Scapegoating of Arab and Muslim Americans

750

September 11: Policies of Immigrant Exclusion

757

Social Mobility

771

Social Security and Baby Boomers

782

State Laws and Immigration

785

Statelessness

797

Substance Abuse

805

Sweatshop Labor

812

Symbolic Security

819

Taxation

835

Temporary Workers

840

Terrorism and National Security

846

Underground Economy

865

Undocumented Children and the Schools

871

Undocumented Immigration Policy

878

U.S.-Mexico Border Violence

898

US-VISIT

909

USA PATRIOT Act

917

Vigilante Groups

927

Voting and Political Activism

940

Welfare Costs

953

Bibliography

963

About the Editor and Contributors

971

Index

979

GUIDE TO RELATED TOPICS advocacy Asylum and Human Rights Domestic Violence and Victim Rights Female Genital Mutilation and Asylum Political Perspectives Voting and Political Activism Rights of the Undocumented

citizenship rights Birthright Citizenship Civic Incorporation Dual Citizenship Naturalization and Immigrant Loyalty Voting and Political Activism

culture Cultural Assimilation Ethnicity Across Three Generations Neighborhood Social Control, Culture, and Crime Prevention

deportation and detention Expedited Removal Detention Conditions Indefinite Detention

ix

x

| Guide to Related Topics

discrimination and exploitation Coercion and Migration Enslavement Human Trafficking Sweatshop Labor Underground Economy

health Public Health Health and Residential Segregation Mental Health Needs and Services Substance Abuse

interior enforcement Department of Homeland Security (DHS) and Immigration Enforcement Employer Sanctions Identification Cards Identity Theft Raids

international aspects Brain Drain and Immigrant Professionals Canadian Border Dual Citizenship Global Economy and Migrant Control International Students in Higher Education New Asian Immigration Remittances

labor and employment Economy Domestic Workers in the Private Household Economy Guest Worker Programs Minimum Wage Social Mobility Sweatshops Temporary Workers Underground Economy

language and schooling Bilingualism Bilingual Education Education Official English Movement Undocumented Immigrants and the Schools

Guide to Related Topics |

policing Police Relations National Origin and Religion Profiling Anti-Terrorism Policy and Immigrant Communities Counterterrorism and Immigrant Profiling

population displacement and resettlement Asylum and Human Rights Expedited Removal Female Genital Mutilation and Asylum Iraq War and Population Displacement Refugees Statelessness

reforms and laws Congressional Reform Legislation Immigration Law and Exclusion Guest Worker Programs Legalization Programs Political Perspectives Open Border Initiative September 11: Policies of Immigrant Exclusion State Laws and Immigration Sanctuary Policy

social costs and benefits Financial Costs and Contributions Education Costs Health and Fiscal Costs Social Security and Baby Boomers Taxation Welfare Costs

social demography Population Trends New Asian Immigration Gender and Family Formation Ethnicity Across Three Generations Race and Ethnic Population Trends Residential Segregation Undocumented Immigration Policy and Trends

social issues Crime Domestic Violence and Victim Rights Drug Trafficking

xi

xii

| Guide to Related Topics

Gender and Family Formation Organized Crime Residential Segregation Neighborhood Social Control, Culture, and Crime Prevention Social Mobility

stereotyping Attitudes Toward Undocumented Immigration Contact and Immigrant Attitude Formation Diversity, Racism, and Xenophobia Hate Crimes Hispanic Migrants in Children’s Literature Media Representation Nativism and Terrorism Scapegoating of Arab and Muslim Americans Vigilante Groups

terrorism Anti-Terrorism Policy and Immigrant Communities Electronic Eavesdropping Nativism and Terrorism 9/11 Commission Recommendations Port Security Symbolic Security Terrorism and National Security USA PATRIOT Act U.S.-VISIT

u.s.-mexico border Border Patrol, Bureaucracy, and Expansion Border Deterrence Strategy Border Fence Border Patrol and Human Rights Violations Migrant Deaths Militarization of the U.S.-Mexico Border National Guard and Border Control U.S.-Mexico Border Violence Vigilante Groups

visas Identification Card Immigration System International Students in Higher Education Temporary Workers U.S.-VISIT

M MEDIA REPRESENTATION Immigration is a hot issue and legislation to restrict undocumented immigration has been repeatedly introduced. How people react in the debate is impacted by mass media representations of people who immigrate to the United States, particularly in television and the movies. Specifically, are immigrants being singled out for unfair stereotyping in the media, or are media depictions fair? Could stereotyped depictions of immigrants in the media be reflective of actual cultural differences, or do they signify an unfair prejudice with little basis? In attempting to deal with this controversy, the media itself can have a positive role to play by examining itself and attempting to represent immigrants and long-term American ethnic groups in scenarios of cooperation. Is the media willing to do that, or do stereotypes drive the ratings? The debate about immigrants and the media will continue until society reaches a new consensus about immigrants and who we are as a nation. WHAT IS A STEREOTYPE? A Stereotype is a description of a group (e.g., ethnicity, gender, religion, immigration status, etc.) wherein it is suggested that most or all members of that group share a particular trait or set of traits. Stereotypes are thus used to prejudge members of that group rather than evaluating them on their individual characteristics. Although stereotypes are generally considered a negative phenomenon, the traits themselves may either be positive or negative. Examples of stereotypes range from positive stereotypes such as all Asian people are good at math to negative stereotypes such as all Irish people are alcoholics. It is possible

495

496

|

Media Representation

that stereotypes may, at times, be based on actual group differences, but they tend to be over-generalized and are used to make judgments about members of the group in the absence of supporting evidence for those judgments. For example, because of recent waves of immigration from Middle Eastern regions dominated by Arabic people, it may be true that a larger proportion of Arabic Americans are recent immigrants than is true for other groups such as Caucasians or African Americans. However, stereotyping all Arabic Americans as immigrants may lead to awkward moments when answers such as “New Jersey” are replied to polite inquires as to country of origin. Similarly, negative stereotypes may have some basis in reality. For example, men are stereotyped as aggressive and/or violent in comparison to women. Indeed men are responsible for 88 percent of homicides and tend also to dominate aggressive or extreme sports (FBI 2006). However using this stereotype to judge individual men is unlikely to be reliable, as many men (indeed likely the majority) do not fit this stereotype of being violent or harmful. WHAT IS PREJUDICE? The term prejudice is used in media theory and research to indicate an attitude based on stereotype that is specifically intended to portray a group of individuals in an unfairly unfavorable light. Prejudice may often be used to promote a hostile social agenda such as racism, sexism, or religious prejudice. Examples include nineteenth-century European views of the white man’s burden to rule over native nonwhites who were viewed as less intelligent and less civilized, discussions of Jewish conspiracies to rule the world (or interestingly enough, the media) that promote anti-Semitism and violence against Jews, and portrayals of women as weak-willed and irrational (or men as dumb immoral oafs) that promote sexism. The essence of prejudice is that the belief is not only negative but unfair, that is to say, not based on any observable independent reality. For example, unlike the stereotype of men as aggressive, which has some empirical basis although as a stereotype it is over-generalized, the prejudice that individuals from non-European cultures are less intelligent than Europeans has no basis in empirical fact. BACKGROUND The 2000 U.S. Census indicated that approximately thirty-one million people living in the United States, representing 11 percent of the total population, are foreign-born individuals. People from Latin America make up over half (52%) of these individuals, with significant groups from Asia (26%) and Europe (16%). Individuals from Mexico alone accounted for 9.2 million foreign-born residents of the United States, approximately 30 percent of the total foreign-born U.S. population (U.S. Census Bureau 2000). A significant minority of individuals currently living in the United States has migrated from other nations. Following the terrorist attacks of 9/11, concerns over immigration and illegal immigration in particular have been heightened. Public agenda polls on attitudes toward immigration demonstrate a hardening of American attitudes toward immigration following the terrorist strikes. Although it is debatable

Media Representation | 497

whether tightening immigration laws would effectively prevent further terrorist attacks by foreign-born nationals, this reaction is, perhaps, not unexpected. Terror management theory, for instance, predicts that individuals (of all cultures) will be more openly hostile to those of other cultures when presented with threats to their own mortality. Similar debates over immigration are waged in other countries where immigration is common, particularly in the nations of Europe such as England, Spain, and the Netherlands. Each of these nations has also seen terrorist activity at the hands of persons of recent foreign descent, although in the case of the London bombings, the perpetrators were themselves born in England. Thus the issue of immigration also involves the integration of foreign-born or descended communities into the larger national community. For example, the 2005 riots in France largely involved North African immigrant communities who had high unemployment rates and had not been integrated well into the larger French community. In discussing recent terrorist incidents in the United States and Europe it is necessary to point out that the vast majority of immigrants are not involved in violent acts against their host country, and native (a term used broadly here) populations are not themselves immune to self-inflicted violence, as the 1995 Oklahoma City bombing exemplified. That having been said, Americans generally as a group remain positive about immigration. A recent Gallup Poll (June 2006) indicated that two-thirds of Americans felt that immigration remained a good thing for the United States. Concerns about the use of government resources by illegal immigrants remain, however. Thus it may be fair to say that American opinions about immigration are divided between an acknowledgement that immigration overall remains positive for the country, tempered by concerns over terrorism and concerns that government revenues may be drained by illegal immigrants’ use of public services. Perhaps this duality of perspective, or ambivalence, toward immigration was evident in recent (April 2006) protests over immigration legislation. These protests reflected a very complicated national attitude toward immigration; many individuals acknowledged the benefits of immigration yet also expressed concern for the observance of the nation’s immigration laws. Given a national attitude toward immigration that is mixed, how is this reflected in media portrayals of immigrants themselves? Arguably, it has become common in academic circles to discuss the media as a tool of socialization in which persons behave in a manner consistent with models they view on television. However, a review of the literature on media effects suggests that the research is often flawed, inconsistent, and at best, produces only weak effect sizes. Thus, this assessment of controversy will begin with several assumptions about the media. 1. Media reflects societal views rather than creating them. 2. Media portrayals of phenomena, in this case immigration and immigrants, are typically not consistent. 3. The media has no motive behind its portrayals other than to sell tickets, products, or advertisement space and time.

498

|

Media Representation

These assumptions may be controversial, but for purposes of this discussion, they remove the focus from the somewhat-convoluted debate on media socialization to what media portrayals say about the society itself, particularly immigrants. Stereotypical Media Representation of Immigrants The debate over media representation of immigrants concerns the degree to which they are portrayed in a way that would reflect group prejudice. Certainly the media tends to represent groups of people in ways that are largely consistent with the broader society’s view of those groups. As such, the media may represent a public face of the biases, concerns, and worries of the general social group from whom the media expects to extract its funding. The social concerns of a particular era may thus be reflected in the prevailing themes in the media. For example, during the Reagan era of the 1980s when cold-war tension had reached a new peak, Russians were frequently portrayed in the media as authoritarian, aggressive, and technologically advanced. Examples of this include movies such as Red Dawn, in which the Warsaw Pact successfully invades the United States; Rocky IV, which featured the tag-line “Get ready for the next world war”; and television miniseries such as The Day After and Amerika. These examples from the cold war indeed exemplify how stereotypes can be both accurate (in part at least) and inaccurate. By and large, the Soviet Union did have a history of authoritarianism and aggressiveness but with the end of the cold war, proved to be economically and technologically struggling in comparison with marketeconomies of the West. Naturally with the end of the cold war, such depictions of Russians in the media have largely evaporated, perhaps replaced with other stereotypical depictions, such as Russian-immigrant organized crime figures. Issues of immigration and immigration reform remain in the public consciousness, particularly after the foreign-based terrorism incident of 9/11. Given that American society is wrestling with and ambivalent about the role of immigration in the future, there is the risk that immigrants themselves may be portrayed in an unfairly negative light, reflecting these anxieties and mixed feelings. It is possible then that media depictions of immigrant groups may move beyond realistic (although perhaps over-generalized) depictions of actual group differences and extend to prejudice against immigrant groups that is reflective of social hostility toward these groups. As noted earlier, the largest proportion of immigrants coming to the United States currently is coming from Latin America. Similarly, much of the recent controversy on immigration has focused on immigration from Latin America, particularly through the border of Mexico. Although Americans are divided in their opinions on such immigration, it is possible that ambivalent feelings may spill over into negative portrayals of Hispanics/Latinos in the media. Latinos generally remain underrepresented in the media. For example, during the 2003–2004 television season, about 6.5 percent of characters were identified as Latino. This is approximately half of the proportion of Latinos in the U.S. population (U.S. Census Bureau 2003). Although it is possible that part of

Media Representation | 499

this discrepancy may be due to characters on television that are of ambiguous ancestry (meaning that the proportion of characters that are clearly identified as one ethnicity or another may not add up to 100 percent), it appears that the television media is under-focused on Latino characters. Many academics who study media presentations of ethnic minorities suggest that Latinos continue to be more often presented as being perpetrators of crime, earning low incomes, functioning in less prestigious jobs, and speaking with thick accents more often than Caucasian characters. Thus the portrayal of Latino Americans on television tends to be more negative than that of European Americans. Other ethnic groups have expressed similar concerns ranging from portrayals of Muslim women as passive and uneducated, Russians as involved in criminal mafias, and Southeast Asians as rude and relegated to careers at convenience stores, such as the character of Apu on The Simpsons. Common to all of these concerns is that these stereotypes are being used as part of a hostile movement which does not view immigrants as having the ability to integrate fully as equal members of American (or European) society. One concern is that negative portrayals of immigrants in the media may work to harm the self-image and self-esteem of individuals from those ethnic backgrounds. However, perceptions of whether a character portrayal is negative or not can be subjective. George Lopez’s portrayal of Mexican Americans can be viewed as negative and prejudicial. Another viewer may find the stereotypical depictions as playful or even empowering. Similarly, the movie Braveheart may be said to play upon stereotypes of the Scots as poor, primitive, kilt-wearing warriors, but the movie is generally considered a positive portrayal of Scottish independence. Perceptions of whether a portrayal of an individual immigrant in the media is negative or positive are subjective; quantifying the degree to which the media indulges in negative portrayals can be quite daunting. Indeed, results may largely depend upon who you ask. Some academic and special-interest groups may be highly sensitive to perceived ethnic stereotypes and quick to label them as negative. On the other side of the spectrum, media executives themselves may tend to be comparatively insensitive to how media depictions may be perceived. In between, the viewing public (immigrant and nonimmigrant alike) may have a wide range of perceptions regarding the degree of prejudice and offensiveness seen in media depictions of immigrants. For example, even children’s cartoons such as Powerpuff Girls can be viewed either as promoting strong positive images of ethnic minorities (and females) or as promoting gender and ethnic prejudice. Although much of the concern about media portrayals of immigrant populations focuses on Latino Americans, as this population is most prevalent in current immigration patterns, even subgroups of the dominant Anglo-American culture complain about media portrayals. Most notably Italian American groups continue to express concern over depictions of Italians as mafia-related criminals in movies and television shows such as The Sopranos. While acknowledging that such stereotypes have a historical basis, it can be argued that their overuse in the media continues to distort public perceptions of Italians in American society. Despite membership in the ethnic Caucasian category, Italians are

500

|

Media Representation

stigmatized and experience prejudice much like other nonmajority ethnic groups (Messina 2004). Similar concerns could be expressed about American Jews in the media, although again whether shows such as Will & Grace that portray Jewish stereotypes for laughs are promoting negative images or empowering Jews by parodying those stereotypes is largely subjective. Even the banned episode of The Family Guy in which the lead (cartoon) character sings a song in which he references the Jews of Palestine as responsible for the death of Christ raises arguments over whether the comment is genuinely anti-Semitic or intended as parody. Ultimately proponents of this position see negative portrayals of immigrants in the media as harmful in several ways. First, as mentioned earlier, such portrayals may decrease immigrants’ self-perceptions and self-esteem. This may be offset somewhat when programming is available in the immigrants’ native language or from their native country. For example, Mexican Americans and other Latinos may benefit from the availability of Spanish-language channels commonly available in the United States (particularly on cable). Another concern is that negative portrayals of immigrants in the media may either promote prejudice against immigrants or may simply fail to challenge those prejudices that are already held among the greater populace. The hope is that by increasing positive portrayals of immigrants in the media, nonimmigrants may become more aware of and concerned for the issues that face immigrants in the United States and may be more open to the integration of immigrant populations into American culture. On the other hand, stereotypical immigrant media representation could reflect actual differences between groups rather than prejudice. Put another way, the media portrays groups of people differently because those groups actually are qualitatively different. To use an extreme example, few would argue that the depictions of Nazi war-crime perpetrators such as seen in Schindler’s List constituted an unfair portrayal of Nazis as bigots and murderers. In this case, Nazis have a verified record of committing atrocities (despite the claims of Holocaust deniers), and thus their portrayal in the media as vicious war criminals has been earned through their collective group behavior. Although it may be true that some members of the Nazi party may have been genuinely kind, compassionate individuals (for example, perhaps Albert Speer’s public disavowal of his Nazi past redeems him somewhat), it is difficult to imagine that the common portrayals of Nazis in the media represents a prejudice toward Nazis. Less extreme, but along the same logic, proponents of this alternate view argue that although different groups may be indeed represented differently in the media, the representations are based on actual group differences. Such presentations may indeed be stereotypical, but stereotypes based on reality not prejudices. Put bluntly, proponents of this view argue that, for example, if Russians (and Italians) are portrayed as being involved with the mafia, it is because the Russian Mafia has become a considerable problem of interest relative to the criminal activities of other ethnic groups. Given that media portrayals of any group are not consistent, this group difference is likely an overall frequency difference rather than a consistent and reliable one. In other words, if one compared Russian immigrants to, say, Pakistani immigrants, Russian immigrants

Media Representation | 501

may be portrayed as criminals more often than Pakistani immigrants. However there is, nonetheless, an abundance of media portrayals of Russians that do not involve crime, and at least some portrayals of Pakistanis that do. Any frequency difference noted in the media is merely reflective of a frequency difference in real life. For example, proponents of this alternate view of the media and immigration would suggest that the stereotypical portrayals of racial and ethnic groups have less to do with prejudice toward them in the media and more to do with actual social problems they face. Many immigrant groups receive low-waged work, live in high crime rate neighborhoods, and experience stress in the cultural assimilation process. Proponents of this view might suggest that these portrayals reflect the lives of unskilled and less educated recent immigrants. Many immigrant cultures across history (Irish, Italians, Poles, Chinese, etc.) have experienced many of the same stressors during early phases of immigration, and once several generations of immigrants have acculturated to the United States, these stressors will likely diminish. It should be noted, however, that it is possible that these stereotypes, although initially based upon reality, may harden in the public consciousness and prove immutable even after the social circumstances that gave rise to them have changed. This is essentially the argument that is made in regard to Italians (Messina 2004). Namely, that there may be some historical truth to the Italian Mafioso stereotype; the Italian Syndicate has long since diminished in stature, and so few Italians have any connection with the Mafia in current times that the stereotype has devolved into a full prejudice. This phenomenon, perhaps, is one serious risk of tolerating stereotypes and leaving them unchallenged; what begins as a neutral observation may become distorted over time and eventually be used to oppress groups of people. Another risk comes when relatively neutral observations of group differences are assigned value labels by other cultures that are then used to judge them negatively. For instance, as noted earlier, Arabic women are often portrayed as submissive and oppressed by their Arabic husbands. This stereotype may have its origins in actual cultural differences between Arabic and European Americans, but it also may have been misinterpreted unfavorably in the mainstream American culture. Specifically, Arabic women tend to address conflict with their husbands in a more indirect and subtle manner than is common for European American women. Thus, what is, in effect, diplomacy may be construed as passivity by another culture. Indeed, Arabic women often view themselves as the familial decision makers and diplomacy merely as a task of convincing the husband to agree to (or trick into thinking he came up with) a course of action that the wife has already set upon. This is not to say that male oppression and domestic violence are not issues for Arabic women (as indeed honor killings and female circumcision make clear), but rather that these cultural issues are often more complex than is commonly perceived by other cultures (indeed many honor killings and female circumcisions are initiated by family matriarchs as well as by male family members). Naturally, male oppression and violence against women is also an issue for mainstream Americans.

502

|

Media Representation

Finally it should be noted that it is possible that negative stereotypes may indeed be based on actual group differences. However, were the media to portray these negative differences yet fail to portray positive differences, this in and of itself would be an unfair and prejudicial portrayal of immigrant groups. Thus, the argument that media stereotypes of immigrants are based on actual group differences can only be considered nonprejudicial if the media is presenting the cultural group in a well-rounded fashion. For example in regards to Latinos, does the media also portray the remarkable faith, cultural pride, and strong family ties that are common among Latinos, or are only the social difficulties faced by Latino immigrants presented. In the absence of quantified data (and few studies examine the frequency of positive stereotypes in the media) this issue unfortunately remains subjective. Using the Media to Reduce Prejudice In a classic experiment, named Robber’s Cave after its location, Sherif and colleagues randomized young boys to one of two summer camps. Initially the two groups of boys had no contact with each other, and each group was encouraged to develop a group identity, name for the group, and so on. When the groups came together for competitive activities, a great deal of hostility and prejudice were evidenced, even though the two groups were essentially identical. However, the groups were indeed in competition over resources, particularly the rewards from the competitions. In essence, the Robbers’ Cave experiment demonstrated that prejudice can result when groups of people are put in a position of conflict over finite resources. This is not entirely dissimilar from many of the concerns expressed in current U.S. immigration debates. Because of the degree to which U.S.-born individuals and non-U.S.-born immigrants are seen as competing for limited resources in the United States, prejudice may continue to be a concern. In the Robbers’ Cave experiment, prejudice was eventually reduced by setting up circumstances in which the two groups of boys had to cooperate to overcome mutual challenges, such as pushing a broken truck full of food into the camps. The same is likely true for U.S.-born and immigrant populations in the United States. Increasing the degree to which these populations are seen as cooperating on matters of mutual interest is likely to bear the best results in regards to reducing prejudice. Too often however, differences and conflict are emphasized, as was the case during recent protests over immigration reform in which some protesters flew foreign flags and parties on all sides of the debate highlighted differences between people rather than similarities. Ambivalence toward immigrant groups in the U.S.-born population is likely to be reduced to the degree that immigrant groups are seen to be working toward the same goals as the U.S.-born population. Media outlets can play a role in fostering positive views of immigrant populations. Specifically, programming in which U.S.-born individuals and foreignborn individuals are portrayed as working cooperatively toward a mutual goal are likely to be most useful in promoting positive views of people of all backgrounds. By contrast, programming that emphasizes groups’ differences (even

Media Representation | 503

if of a satirical nature or with the intent of portraying immigrant groups in a positive light and US-born populations in a negative light) are likely to foster ill feelings rather than positive ones. Portrayals of individuals from immigrant groups that emphasize their similarities to U.S.-born individuals and portray them as advocating social views advocated by American culture (at least in a broad sense) are most likely to be helpful in reducing prejudice. To that extent, focusing on individuals as individuals rather than representations of their cultures may be helpful. Stereotypes presented in the media may not necessarily be as biased as some academics suggest, but neither are they likely to foster increased assimilation and cooperation among immigrant groups. Ultimately, the presentation of stereotypes in the media is most likely to decline when public interest in viewing those stereotypes declines.

CONCLUSION Opposing views on media representations of immigrant populations make clear that a part of the issue is that the definition of the term stereotype is subjective. In order to avoid the issue of whether the media purposefully propagates stereotypes of immigrant groups, an assumption can be made for the purpose of debate that the media is reflective of societal attitudes (which may be confused and ambiguous rather than consistent). In attempting to answer the question of whether media portrayals of immigrants are reflective of actual group differences or prejudicial in nature, the simple answer is that in all likelihood there are examples of both in the media. Certainly, historically, the media has at times presented blatantly prejudicial and inflammatory presentations of African Americans, Native Americans, and other (nonimmigrant) ethnicities although these portrayals were themselves reflective of a less ethnically sensitive cultural past. In response to changes in American culture over the past forty years, and criticisms from academia, the media has made strides toward presenting a more diversified view of American culture. Undoubtedly, however, more progress is desirable. This is particularly true for the issue of immigration, which remains ambiguous in the public opinion. Stereotypical depictions of immigrant populations in the media are a risk-fraught area in which prejudices may inadvertently be furthered. Even if the media is not necessarily responsible for the development of prejudice in American culture (prejudice is by no means a uniquely American or Western phenomenon) it can be argued that the media could be used as a force for positive change. At the very least, by avoiding unfair prejudicial depictions and presenting immigrant populations as well rounded cultural groups, the media may be capable of providing a positive arena for diversity, cultural exchange, and acculturation. The media will likely respond with such programming only when the vast majority of viewers insist upon it. As a result, continued controversy over media representation of immigrants is inevitable. See also Contact and Immigrant Attitude Formation; Diversity, Racism and Xenophobia; Hate Crimes; Scapegoating of Arab and Muslim Americans

504

|

Mental Health Needs and Services References: Children Now. Fall Colors: Prime Time Diversity Report 2003–2004. Oakland, CA: Children Now, 2004; Federal Bureau of Investigation (FBI). Supplementary Homicide Reports, 1976–2005. Washington DC: United States Government Printing Office; Ferguson, C. Arab Americans: Acculturation and Prejudice in an Era of International Conflict. In Cross-Cultural Psychotherapy: Toward a Critical Understanding of Diverse Client Populations, edited by C. Negy, 265–280. Reno, NV: Bent Tree Press, 2004; Ferguson, C. J. “Media Violence: Miscast Causality.” American Psychologist 57, nos. 6–7 (2002):446–447; Freedman, J. Media Violence and its Effect on Aggression: Assessing the Scientific Evidence. Toronto: University of Toronto Press, 2002; Gallup. American’s Views of Immigration Growing More Positive. 2006. http://www.gallup.com/poll/23623/ Americans-Views-Immigration-Growing-More-Positive.aspx; Messina, E. “Psychological Perspectives on the Stigmatization of Italian Americans in the American Media.” In Saints and Rogues: Conflicts and Convergence in Psychotherapy, edited by R. Marchesani and M. Stern, 87–121. New York: Haworth, 2004; Redding, R. “Sociopolitical Diversity in Psychology.” American Psychologist 56(2001):205–215; Rivadeneyra, R. “Do You See What I See? Latino Americans’ Perceptions of the Images on Television.” Journal of Adolescent Research 21 (2006):393–414; U.S. Census Bureau. Census 2000 Gateway. 2000. http://www.census.gov/main/www/cen2000.html.

Christopher J. Ferguson MENTAL HEALTH NEEDS AND SERVICES Taxpayers have reacted negatively to paying for mental health services for permanent-resident immigrants and especially undocumented immigrants. It is generally assumed that immigrants will have the same rate of mental health problems as the native-born population, but this is not fact. Many immigrant groups have lower rates, but this does not mean that they will not face problems accessing mental health services, paying for these services, overcoming restrictions, and navigating issues of cultural competency among service providers. It is necessary to question whether immigrants, especially undocumented immigrants, can access, afford, and receive culturally competent services in the United States. There is a movement to provide more culturally sensitive services and counter discrimination by mental health professionals, but it may not surmount the cost issue and legislative barriers to access that the native-born have fought. Should a mentally ill adult or a disturbed child be denied mental health services simply because they were born in another country? BACKGROUND Defining Mental Health Mental health can be defined as “the condition of being sound mentally and emotionally that is characterized by the absence of mental disorder (as neurosis or psychosis) and by adequate adjustment especially as reflected in feeling comfortable about oneself, positive feelings about others, and ability to meet the demands of life; also: the field of mental health” (Meriam Webster’s Online Medical Dictionary 2007). This is a very broad definition.

Mental Health Needs and Services

Immigrant Mental Health Surprisingly, certain immigrant groups have better mental health than the native-born. Subsequent generations of those immigrants, however, tend to be equally at risk of poor mental health as the native born. Perhaps because most immigrants to the United States become members of racial and ethnic minorities. Nevertheless, the supplement to the Surgeon General’s report on mental health states that one of five people in the United States suffers from a mental health problem and that this number varies little across minorities (Department of Health and Human Services [DHHS] 2001). This same report also points out the added stressors that minorities face in the United States that might lead them to require mental health services as well as the racial or ethnic discrepancies in the mental health system that provides such services. Some immigrant groups tend not to access outpatient mental health treatment because of cultural factors, which may lead to serious mental health conditions. One example is that Mexican immigrants are less likely to use counselors or family practitioners when compared to their U.S.-born counterparts. Similarly, the Department of Health and Human Services (DHHS) stated in Asian and Pacific Islander Women’s Health FAQ that these groups of immigrants have higher rates of suicide for women aged 15 to 24 and for women over 65 years of age, possibly because of cultural barriers to accessing treatment (DHHS). Problems Accessing Mental Health Services Despite all the stressors involved in the process of immigration to the land of the free and the home of the brave, those immigrants in need of services are often faced with a dysfunctional mental health system. Mental health services remain fragmented and disorganized in most of the country. Mental health, particularly public mental health, is plagued by issues regarding barriers to accessing services, budgetary restrictions, lack of professional staff, and differential treatment of minorities. Immigrants encounter additional challenges involving a need for practitioner cultural competency and socioeconomic obstacles to accessing mental health services. Ultimately, the positive outcomes of immigrant mental health are generally lower than those in the native-born population. Undocumented immigrants have the least access and many times the highest need for mental health services. Fragmentation of Mental Health Services Public mental health, the primary source of care for immigrants, remains fragmented even to this day. A case in point is that mental health and substance abuse have been perceived until recently, by most states, as separate issues. The Substance Abuse and Mental Health Services Administration (SAMHSA) reported to the U.S. Congress that mental illness and substance abuse problems do, in fact, co-occur. SAMHSA pointed out that patients with bipolar disorder

| 505

506

|

Mental Health Needs and Services

and schizophrenia had 67 percent and 47 percent higher chances, respectively, than the general population to have a substance-abuse problem (2002). Yet, public Mental Health and Mental Retardation (MHMR) services generally do not treat substance abusers, and substance-abuse treatment programs do not generally treat people with mental illness. There does not seem to be a one-stop shop for these services that only appear to be mutually exclusive (SAMHSA, 2002). This separation can be seen between mental health and juvenile justice, criminal justice, the education system, and family protective services, despite the fact that they are often working with the same families in any given community. Categorically interconnected funding is the culprit for services that are conditional on participation in multiple programs. It causes gaps to be created in the mental health system. Because of these gaps, both immigrant and nativeborn patients fall through the cracks; the problem is especially severe for undocumented residents. It has been extensively documented that immigrant groups comprised of labor migrants, such as Latinos, generally have less education and are at a lower socioeconomic level because they only gain access to lower-paying jobs with no fringe benefits. Once a family member enters the system of care, simultaneous entry into several other systems is often required, which taxes the stability of parental employment, especially in female-headed households. To illustrate this point, let us examine a hypothetical case. A 13-year-old Hispanic female is displaying impulsive behavior and inattention at school. She has been skipping school to use cocaine with her friends in order to calm down and focus. She was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and sent to Juvenile Justice for truancy. Next, her single mother is referred to take her child to see the psychiatrist, find counseling services, receive parenting classes, and attend an Admission, Review and Dismissal (ARD) meeting at school. The mother of this child only has a few days to take off from work before her income is impacted or her job jeopardized, yet she is being asked to meet with a psychiatrist (if she can afford one), probation officer, counselor, teachers, and to take parenting classes. Most of these are weekly appointments at different times during the work week and different places. This is how the current mental health system works, and if the mother does not show up for appointments, she is branded as noncompliant, which leads to harsher treatment and discontinuity in services. Navigating fragmented services is often overwhelming for someone who is foreign to the culture and language of mainstream America. Access to Services People often resort to family, friends, and clergy in times of trouble. Mental health services are initially no where on the radar screen of most individuals and families because of the stigma associated with mental illness. Many times the efforts to make services available to immigrants are frustrated by the small number of people that actually seek these services. This is particularly true among Hispanic and Asian immigrants because they tend to first access services and supports after suggestions in informal settings within their families and among friends.

Mental Health Needs and Services

The increasing cost of mental health is often prohibitive for those who do not have medical insurance or Medicaid. Those who would like to have better services but cannot afford them are the working poor—people who work enough to be disqualified from Medicaid but do not hold a job with fringe benefits. Many times these individuals are expected to pay out of pocket for services that they receive. Mexican immigrants have the lowest rates of accessing mental health, and when they do access services, it is usually through a general practitioner in a public health setting. Of those Mexican immigrants, 80 percent never receive either formal or informal treatment (Vega et al. 2001). Children of Mexican immigrants have lower rates of health-insurance coverage and lower utilization of healthcare (Hamilton et al. 2006). On the other hand, efforts are being made to provide these services on sliding fee scales covered by programs like the Texas Children’s Health Insurance Program (CHIP). Mental Healthcare for Undocumented Immigrants U.S. law does not prohibit undocumented immigrants from receiving mental health services, but many services are not made available for undocumented immigrants. They are forced to overcome their fear of deportation in order to access the system. The Texas State Comptroller, Carole Keeton Strayhorn, found that $3,750,650 was spent on undocumented immigrant mental health care in Texas in Fiscal Year (FY) 2005. This represented 1.7 percent of an overall budget of $250,650,365 (Strayhorn 2006). Unlike Medicaid, Texas mental health is not means based but rather based on three criteria: (1) diagnosis, (2) severity of symptoms, and (3) availability of funding. Undocumented immigrants often do not have access any type of mental health services except the type of counseling provided by churches because of fear of being deported. Unfortunately, most pastors and priests are not trained thoroughly in clinical issues that require specific interventions or referrals to specialist professionals who can prescribe medication. Another way for undocumented immigrants to access mental health services, with the added benefit of legalizing their stay in the United States, is through programs funded by the Violence Against Women Act (VAWA). Texas and other states have such programs in which undocumented immigrant survivors of violence perpetrated by a permanent resident alien or U.S. citizen can obtain benefits. The District Attorney’s Office helps in obtaining rights to certain services for the victim and assists with accessing supports pertinent to her or his recovery and childcare. Budgetary Constraints Increased demand for mental health services and evaporating dollars to fund programs have led to severe budgetary constraints that ultimately affect clients in desperate need of services. These constraints reduce the capacity of the system and the number of trained professionals any given agency can afford, which can produce long waiting lists. It is not uncommon to see public agencies, the primary access point to mental healthcare for immigrants and providers of

| 507

508

|

Mental Health Needs and Services

services for the addicted and the mentally ill, with two or three-month waiting lists. To add insult to injury, some states have instituted priority populations in which cases are triaged and moved to the waiting list according to their designated level of need. In Texas, the priority population in mental health services is comprised of individuals with severe major depressive disorder, bipolar disorder, and schizophrenia. In the substance-abuse treatment field, priority populations include those who are pregnant and using drugs, intravenous users, users that are attempting to recover the custody of their children, and using females with children (Texas Health and Human Services Commission). Although this makes sense theoretically, from a managerial perspective, it does not make sense to turn away a mother whose child is only snorting cocaine’ but is not an IV user. For example, it is not unknown for cities to have a crisis of availability of beds for addicted adolescent males, native-born and immigrant. Cultural Competency Issues Traditional immigrant ethnic culture is quite different from American mainstream culture. As a result, a number of issues requiring cultural competency on the part of mental health professionals have been identified. The most important barrier to communication is language, but differences in nonverbal communication styles and the degree to which American culture is strongly individualistic impact treatment as well. Language Barriers. Language barriers encountered by immigrants reduce accessibility to much-needed mental health and addiction services. If the person can not communicate with a mental health professional, then trust and rapport are not built with the professional. One of the most significant predictors of the outcome of therapy is the degree of communicative understanding perceived by the client in the relationship with the therapist. Despite efforts to have trained translators available to provide assistance with immigrants, the outcome still leaves much to be desired. Nonverbal Communication Issues. If the mental health professional is of a different culture than the client, establishing a relationship is more of an uphill battle because of culturally specific, nonverbal communication styles. Usually, highly educated professionals are anchored in mainstream culture and not the culture of the client. For example, when counseling a client who is a Japanese immigrant, the counselor might notice that the client tends to avoid eye contact. An untrained counselor could construe this as the client hiding something instead of understanding that the client is purposely avoiding direct eye contact as a sign of respect. Problems with Individually Focused Therapy. Classical psychological therapies such as Person-Centered therapy, Gestalt therapy, and all other therapies that focus on an egocentric philosophy, in other words on the differentiation of the individual from the family, are compatible with the core beliefs of mainstream American culture. It would be insensitive to assume that they should be applied to immigrant ethnic-cultural clients. For example, Hispanic clients do not tend to value individualism because it is looked down upon in their culture

Mental Health Needs and Services

as selfishness. European Americans, with an egocentric point of reference, tend to view the family-centered Hispanic culture as enmeshed and undifferentiated. The same is true for many traditional cultures including those of Asian and Middle Eastern immigrants, such as Vietnamese and Iraqis. The situation may be exemplified in this hypothetical situation: an unprepared counselor is counseling a young Vietnamese college freshman that has just moved to the United States with her family. The presenting problem is that she wishes to pursue a career in medicine, however, her father, whom she respects greatly, strongly opposes this idea because he wishes her to study international relations. The counselor then, following a classic Western theory, encourages the student to verbally confront her father about her wishes in order to differentiate as an individual. Unbeknownst to the counselor, such an action could possibly damage the relationship between the client and her father permanently (Corey, Corey, and Callanan 2007). Cultural Competency Training. Fortunately, licensing boards are currently demanding increasing cultural competence of mental health professionals. Universities are including more courses in cultural diversity in their curricula to prepare future mental health practitioners. Acquiring a multicultural perspective has been the goal of many continuing education seminars at most mental health symposia. These efforts should result in better-equipped professionals who will ultimately impact the field of mental health for immigrants. A major issue in cultural competency is understanding the process of cultural change in immigrant families after arrival in the United States. While the first generation remains essentially monocultural and does not assimilate, the second generation is often bicultural. In other words, the original immigrants tend to retain greater amounts of the original culture such as language, traditions, worldview, and beliefs; while the subsequent generations assimilate English as well as their original language and begin to absorb to some degree the traditions, worldviews, and beliefs of mainstream America. An immigrant family may encompass two languages and traditional ethnic and American mainstream cultural values; its members also may display differences in the degree of cultural assimilation or development of bicultural competency. An example of applied biculturalism could be explained through the counseling phenomenon of code-switching. Emotions are seated in the primary language of the individual; therefore, if a bilingual and bicultural client wants to avoid the intensity of the issues being discussed, they will unconsciously change to the second language as a form of avoidance (Aycicegi and Harris 2004). A good bilingual, bicultural counselor should take notice of such a change and gently encourage the client to go back to his or her original language to experience catharsis. Discrimination In the field of mental health and child welfare, institutionalized discrimination and differential treatment are evident in research findings. The Surgeon General’s supplemental mental health report states that there are four identified

| 509

510

|

Mental Health Needs and Services

areas of disparity in the mental health system for minorities. First, minorities do not have the same access to mental heath services as European Americans. Sometimes these services are not only less accessible, but there are fewer services available for these minorities. Second, people of minority populations generally receive fewer needed mental health services when compared to European Americans. Third, when members of minority populations do receive mental health services, they are of typically of poorer quality than those received by their counterparts. Fourth and finally, there is not enough research conducted on the mental health of minorities. Furthermore, the Surgeon General posits that the discrimination and racism experienced by minorities affects their mental health, which consequently affects their political and socioeconomic conditions. Institutionalized discrimination refers to patterns of disparate treatment that are due to organizational policy rather than intentionally racist actions. Covert discrimination could result from either organizational practice or subtle discrimination on the part of mental health practitioners. The substitution of covert discrimination for overt discrimination in mental health has depressing effects on Korean immigrants. Their findings indicate that differential treatment, although modified, is still alive and well in present day America. Racism has the same depressive effects on children of victimized African Americans (O’Brien Caughty, Campo, and Muntaner 2004). A United Kingdom study found that those at greatest risk for mental health were ethnic minorities who reported unfair treatment (Bhui et al. 2005). Hispanic foster children are usually younger and generally enter care because of abuse. Evidence indicates that Hispanic children are often labeled. In order to systemically combat institutional discrimination in healthcare, there must be a system in place that demands accountability and equality both in the social arena and within the service delivery system (Griffith et al. 2007). Obviously, there is a great deal of discrimination still taking place in our communities that is making the need for mental health greater among immigrants. Fortunately, there are new, relatively untapped alternative models, piloted in the child welfare system that contrast with the traditional approach to mental health and are more comprehensive, more culturally relevant, have far better outcomes, and (at least in the long run) are far more cost effective. Alternative Models for Mental Health in Child Welfare Child welfare, a field closely associated with mental health, has become increasingly aware that the current services are sometimes culturally insensitive or not appropriate for the families being served. As a result, they have developed alternative models that empower families and are more sensitive to the cultural and individual needs of families. Some of the models reviewed here are Family Group Decision Making, and Wraparound. These models view mental health as broadly defined and multi-systemic in nature and are very well suited for meeting the complex needs of immigrants seeking mental health services. Family Group Decision Making. Family Group Decision Making (FGDM) is an innovative approach to delivering services to the families involved in child

Mental Health Needs and Services

welfare. Child welfare agencies have traditionally employed linearly progressive, deficit-based models of services in which families are told what to do by socalled experts. This has resulted in a lack of compliance by the families involved and an increase in the number of children placed in foster care. FGDM recognizes that families, rather than the individual, are emphasized in many traditional immigrant ethnic cultures. FGDM is a process in which families are allowed to work collaboratively with child welfare staff and other community members in order to develop a plan that will ensure the safety and well being of their children. FGDM is a general term to describe and classify similar models. They all are similar in the process of supporting and preparing the family for developing a plan of service. Although all at the FGDM meeting must approve the plan, it is the family that has the most influence in its development. Working in this manner allows the family to reconnect to the immigrant co-ethnic community and vice versa. There are two leading models of FGDM used in the United States—Family Group Conferences and Family Unity Meetings. Combinations of the two models are also used in the United States and other countries. In the latter part of the 1980s, in response to the above mentioned conditions, child welfare agencies began to utilize new methods to make the most of families’ inherent wisdom and strengths. An example of utilizing immigrant family strength would be harnessing the cultural value of familismo, family cohesiveness, in order to place a removed child with relatives instead of in foster care thus, keeping the child within her or his original family and culture rather than separated and placed with strangers, often of a different culture. FGDM is a term coined in the United States to describe a variety of models of family meetings for the purpose of keeping children safe (Alvarado, 2003). FGDM gained popularity as child welfare began to explore new, more effective, ways of serving families. Additionally, FGDM was a good fit for what child welfare was looking for because it stresses collaboration among child welfare agencies, the families, and their communities. The federal government and state mandates were also slowly moving towards utilizing kinship care (placement with relatives) as an alternative to foster care, and that is one of the usual results of FGDM. Family Group Conferencing. The Maori ethnic group developed the Family Group Conferencing model in New Zealand. Its development was due to concern that the child welfare system was removing a great deal of Maori children and placing them away from their homes and cultural roots. Because this approach was so successful, the practice expanded to Australia, the United Kingdom, Canada, and the United States. The underlying principle of Family Group Conferencing is the belief that extended families possess all the resources, commitment, and capacity to formulate sound plans for the safety of their children. Extended family is broadly defined and can include relatives such as uncles, aunts, second cousins, and grand aunts. In addition to relatives, extended family may include nonrelatives such as significant others, for instance a girlfriend or boyfriend; anyone that the family has a significant relationship with, like their neighbors, tribal leaders, or pastors; and any committed citizen willing to help in

| 511

512

|

Mental Health Needs and Services

meeting a need of the family, such as the neighborhood mechanic who is willing to let the client intern at his shop for community hours and job skills training. These people, of course, are chosen by the family. The distinguishing characteristic of Family Group Conferencing when compared to other FGDM models is the use of private family time. That is, the family is allowed time alone in order to develop their safety plan for the children. Once the plan is complete, the rest of the team of nonfamily (i.e. professional staff ) joins in to revise and ratify the finalized plan with the guidance of the family. In addition to safety, the plan is also designed to meet the attachment and other permanency needs of the children. This process allows the family to use its strengths to meet the children’s needs. Oregon Family Unity Model. Family Unity Meetings were developed in Oregon in 1990 and were pioneered by the Oregon Children Services Division. They were primarily utilized as a family preservation strategy and method of collaboration with families. Unlike Family Group Conferencing, the Family Unity Meeting does not include private family time. The entire meeting includes professionals who guide and facilitate the meeting. This does not mean the Family Unity Meetings direct the family from above; the family remains in control and actively decides what actions to include in the care plan until a consensus is reached between the professionals and the family. For instance, it is the family who selects the members of the Family Unity Meeting team, both professional and family. This approach is also more inclusive of extended family membership than Family Group Conferencing. Another trademark of the Family Unity Meeting is the structured facilitation during the early stages of the meeting designed to highlight the strengths of the family. This process also gives the families an opportunity to identify qualities, values, and strengths that can be utilized to satisfy the identified unmet needs. Wraparound. Wraparound’s theoretical orientation is multi-systemic. This approach combines natural supports and formal supports together into one team. There is a great deal of philosophical of similarity between FGDM and Wraparound. Natural supports are those supports that humans have been relying on for millennia—family, friends, and clergy. Formal supports are those professionals who help other people—counselors, psychologists, caseworkers, teachers, nurses, etc. The result of this integration is a solid support system for the individual or family. Another important part of Wraparound’s theoretical orientation is the integration of multiple service systems that are usually fragmented and/or inaccessible to individuals such as mental health, child welfare, juvenile justice, housing, health and human services, the workforce, and so on. Helping the client meet her or his needs in all systems and in all life domains provides a better chance of success than utilizing traditional approaches that only work with one aspect of the complete person. This gathering of representatives of each system at one place and time addressed the above mentioned issues of service fragmentation and accessibility. The strength-based approach is another component of Wraparound’s theoretical orientation. Issues are reframed from a strength-based prospective, which identifies commonalities not deviance. Since each person’s strengths are unique,

Mental Health Needs and Services

the plan formulated for each individual or family is unique. Wraparound strengths are functional, not simply a nice smile or a good personality but things such as drive for a better future, loyalty to family and friends, ability to persevere, and resiliency. Further, individuals and families are viewed as resources not as problems to be fixed as in most traditional approaches. Wraparound is needs driven. The individual or family, instead of the therapist, defines the needs. Also, it is important to remember that needs are not equivalent to services. Needs are things such as housing, transportation, relationships, belongingness, etc. Services are things such as food stamps, Medicaid, and residential treatment centers. The confusion of needs and services severely curtails the divergent thinking that can be used to meet those needs. Nevertheless, the wraparound coordinator is well trained to identify needs and strengths and is able to reframe and explain them to the family and team for consideration, thus addressing this confusion. A core component of Wraparound is a person-centered approach. The individual or family is in control of the team and all decisions made. The individual must approve the Wraparound plan during all stages of construction. This creates ownership of the plan, which in turn eliminates noncompliance by the individual or family. In other words, because the family is an integral and key part of developing the Wraparound plan, they are more likely to follow and value it as well as put it into action. Unconditional care is another trademark of Wraparound. This means that the client is not discharged for failing to comply. If the plan does not work out, it is redrafted and updated. If it fails to meet the needs of the family again, the process is repeated until the plan is adequate for the family. The responsibility for success is placed on the team and not on a single individual. Wraparound is not therapy; nevertheless, there is a great potential for therapeutic effects of the process itself. There are studies that point out that the theoretical approach to counseling, for example Freudian Psychoanalysis, Person Centered Therapy, or Cognitive-Behavioral Therapy, is irrelevant to the successful outcome of therapy. It is the perceived relationship between the client family and the therapist that makes a difference. Most of the improvement in the family is accounted for by the client’s informal support system. This informal support system is built into the Wraparound approach, thereby insuring a greater possibility for family improvement. CONCLUSION The issue of immigration and mental health will continue to be controversial. Financially, despite the government and public agencies’ best intentions, the lack of funding dollars for services will always pose a problem. When there is competition for valuable resources, one group or several will have a smaller share of what is available. Undocumented immigrants are currently and will continue to be a considerable issue to be addressed. Despite the considerable time and effort that has been invested in developing alternative models, implementation is always extremely difficult because of the

| 513

514

|

Mental Health Needs and Services

level of collaboration required between historically territorial agencies. What is more difficult still is having the tenacity and patience to educate the personnel and administration of other agencies in the philosophy of systems of care approaches. Some agencies tend to add the required philosophy of systems of care to their existing philosophies rather than replacing them, undermining the fundamental components of the theory. Culturally, the immigrant service issue will continue to be a controversy because according to census data, the number of immigrants will continue to increase. As the United States becomes increasingly diversified, the needs of all the elements of our cultural salad bowl will only become more apparent. Education of mental health professionals, legislators, and their constituencies is, in this author’s opinion, the most effective way to combat cultural irrelevancy in the field. Finally, there is a great deal of research that needs to be conducted in this area since many of the findings are preliminary and need different methods of collecting and analyzing data. References: Altarriva, Jeanette, and Azara Santiago-Rivera. “Current Perspectives on Using Linguistic and Cultural Factors in Counseling the Hispanic Client.” Professional Psychology Research and Practice 25, no. 4 (1994):388–397; Alvarado, Mia. Family Group Decision Making Briefing Book. Paper presented at the Family Group Decision Making Peer Technical Assistance Meeting, Austin, TX, March 2003; Aycicegi, Ayse, and Catherine Harris. “Bilinguals’ Recall and Recognition of Emotion Words.” Cognition and Emotion 18, no. 7 (2004):977–987; Bhui, Kamaldeep, Stephen Standsfield, McKenzie Kwame, Saffron Karlsen, James Nazroo, and Scott Weich. “Racial/Ethnic Discrimination and Common Mental Disorders Among Workers: Findings from the EMPIRIC Study of Ethnic Minority Groups in the United Kingdom.” American Journal of Public Health 95, no. 3 (2005):496–501; Breslau, Joshua, Sergio Aguilar-Gaxiola, Guilherme Borges, Kenneth S. Kendler, Maxwell Su, and Ronald. C. Kessler. “Risk for Psychiatric Disorder Among Immigrants and Their U.S.-Born Descendants: Evidence from the National Comorbidity Survey.” Journal of Nervous and Mental Disease 195, no. 3 (2007):189–195; Burchard, John. D, and Richard T. Clarke. “The Role of Individualized Care in a Service Delivery System for Children and Adolescents with Severely Maladjusted Behavior.” The Journal of Mental Health Administration 17(1990):48–60; Center for the Study of Social Policy. Bringing Families to the Table: A Comparative Guide to Family Meeting in Child Welfare. Washington, D.C.: Center for the Study of Social Policy, 2002; Corey, Gerald, Marianne Scneider Corey, and Patrick Callanan. Issues and Ethics in the Helping Profession, 7th ed. Belmont, CA: Thomson, Brooks/Cole, 2007; Department of Health and Human Services. Asian American and Pacific Islander Women’s Health FAQ. Washington DC: U.S. Government Printing Office, 2002; Department of Health and Human Services. Mental Health: Culture, Race, and Ethnicity. A Supplement to Mental Health: A Report of the Surgeon General. Washington DC: U.S. Government Printing Office, 2002; Dysart-Gale, Deborah. “Clinicians and Medical Interpreters: Negotiating Culturally Appropriate Care for Patients with Limited English Ability.” Family Community Health 30, no. 3 (2007):237–246; Eber, Lucille, C. Michael Nelson, and Patricia Miles. “School-Based Wraparound for Students with Emotional and Behavioral Challenges.” Exceptional Children 63(1997):539–555; Flemming, Janetta. L., and Lisa E. Monda-Amaya. “Process Variables Critical for Team Effectiveness.” Remedial and Special

Mental Health Needs and Services Education 22, no. 3 (2001):158–171; Griffith, Derek M., Mondi Mason, Michael Yonas, Eugenia Eng, Vanessa Jeffries, Suzanne Plihcik, and Barton Parks. “Dismantling Institutionalized Racism: Theory and Action.” American Journal of Community Psychology 39, no. 34 (2007):381–392; Hamilton, Erin R., Robert. A. Hummer, Xiuhong. H. You, and Yolanda C. Padilla. “Health Insurance and Health-Care Utilization of U.S. Born Mexican American Children.” Social Science Quarterly 87, no. 5 (2006):1280–1294; Hodas, Gordon R. “What Makes Wraparound Special: Understanding and Creating a Unique Experience for Their Families.” http://pacassp.psych.psu.edu/publications/wraparound. htm; Kirmayer, Laurence. J., Morton Weinfeld, Giovani Burgos, Guillaume Galbaud Du Fort, Jean-Claude Lasry, and Allan Young. “Use of Health Care Services for Psychological Distress by Immigrants in an Urban Multicultural Milieu.” The Canadian Journal of Psychology 52, no. 5 (2007):295–304; Konrad, Ellen L. “A Multidimensional Framework for Conceptualizing Human Services Integration Initiatives.” New Directions for Evaluation 69(1996):5–20; Lambert, Michael. J. “Implications and Outcome of Research for Psychotherapy Integration.” In Handbook of psychotherapy integration, edited by J.C. Norcross and M.R. Goldfield, 94–129. New York: Basic Book, 1992; Merkel-Holguin, Lisa. “Putting Families Back in to Child Protection Partnership: Family Group Decision Making.” http://www.americanhumane.org/site/PageServer?pagename=pc_fgdm_what_ is; Merkel-Holguin, Lisa., and Paul Nixon. “Learning with Families: A Synopsis of FGDM Research and Evaluation in Child Welfare” Protecting Children 18, no. 1 (2002):2–11; Merriam Webster’s Online Medical Dictionary. http://www.merriam-webster.com/dic tionary; Miller, Scott. D., Barry L. Duncan, and Mark. A. Hubble. Escape from Babel. New York: Norton, 1997; Noh, Samuel., Violet Kaspar, and K. A. S. Wikarma. “Overt and Subtle Racial Discrimination and Mental Health: Preliminary Findings for Korean Immigrants.” American Journal of Public Health 99, no. 7 (2007):1269–1274; O’Brien Caughy, Margeret, Patricia J. O’Campo, and Carlos Muntaner. “Experiences of Racism Among African American Parents and the Mental Health to Their Preschool-Ages Children.” American Journal of Public Health 94, no. 12 (2004): 2118–2124; Piña, Vera. Wraparound Facilitation Training. Paper presented at the meeting of the Laredo Community Building Initiative, Laredo, TX, October 2001; Strayhorn, Carol Keeton. “Undocumented Immigrants in Texas: A Financial Analysis of the Impact to the State Budget and Economy.” Office of the Texas Comptroller of Public Accounts. 2006. www.cpa.state.tx.us/special rpt/undocumented/4health.html; Stroul, Beth. A., and Robert. M. Friedman. A System of Care for Severely Emotionally Disturbed Children and Youth. Washington D.C.: Child and Adolescent Service System Program Technical Assistance Center, Georgetown University Child Development Center, 1986; Substance Abuse and Mental Health Services Administration (SAMHSA). Report to Congress on the Prevention and Treatment of CoOccurring Substance Abuse Disorders and Mental Health Disorders. Substance Abuse and Mental Health Services Administration, 2002; Texas Health and Human Service Commission “Texas Health and Human Services Commission: Program Descriptions.” www.senate.state.tx.us/75r/Senate/Commit/c540/downloads/HHS_Appendix.pdf; VanDenBerg, John. E. “Integration of Individualized Mental Health Services into the System of Care for Children and Adolescents.” Administration and Policy in Mental Health 20(1993):247–257; VanDenBerg, John. E., and E. Mary Grealish. “Individualized Services and Supports Through the Wraparound Process: Philosophy and Procedures.” Journal of Child and Family Studies 5, no. 1 (1996):7–21; Vega, William A., Bohdan Kolody, and Sergio Aguilar-Gaxiola. “Help Seeking for Mental Health Problems among Mexican Americans.” Journal of Immigrant Health 3, no. 3 (2001):133–140.

Gilberto Salinas

| 515

516

|

Migrant Deaths on U.S.-Mexico Border

MIGRANT DEATHS ON U.S.-MEXICO BORDER U.S. citizens are very angry over undocumented migrants crossing the southern border. Since the intensification of U.S. Border Patrol enforcement and fencing of more urbanized areas of the U.S.-Mexico border, people are funneled into more dangerous regions and the migrant death rate has more than doubled. One reaction is to spare no expense to close off the entire border. Another reaction is to express compassion for successful crossers and sorrow for the dead. The conflict has become so intense that those without sympathy blame either the smugglers who guide them or the migrants for their own injuries or deaths. In effect, this dehumanizes the migrants. As intensified border enforcement has increased casualties, humanitarian groups have sought to aid border crossers and advocate opening the border. Humanitarian rescue efforts such as providing water stations in deserts have been misunderstood and condemned. The U.S. Border Patrol is involved in harm-reduction strategies for migrant death prevention. They have joined a bilateral Border Safety Initiative with Mexico and established the BORSTAR rescue team. Despite these efforts, deaths continue to increase; one way to preserve intensified border enforcement could be to use situational crime prevention strategies adapted to try and prevent deaths. There are some who see these efforts as aiding undocumented migrants who cross into the United States instead of trying to save lives. To reason through this issue, it is necessary to examine the motives of both the U.S. Border Patrol and humanitarian groups seeking to help. It is possible to prevent the deaths, but U.S.-Mexico border policy should be reexamined from both criminal-justice and humanitarian viewpoints. BACKGROUND Migrant Victims An important issue concerns how we represent the migrants who cross the U.S.-Mexico border. Are they faceless criminals or are they people who have lives and families? Often, the smuggler, or coyote, is seen as the offender. The migrants who hire the smuggler are the victims. They are often left behind if the coyote runs in trouble during crossing. Those who go without a coyote and perish are still victims. This view is opposed by those who indicate that migrants have responsibility for their actions as moral agents and may jeopardize their children in risky crossings. To put that risk into context, however, it is necessary to understand that migrants guided by coyotes are more likely to survive. The most criminal action is, without doubt, when a smuggler abandons a migrant in distress and does not go for help. Despite the likelihood of arrest and imprisonment for a smuggler, abandonment is an act that approaches unpremeditated murder. One position on the issue is to view the migrant as committing a lesser offense than the smuggler.

Migrant Deaths on U.S.-Mexico Border | 517

Certain smugglers have led migrants into lethal situations, although Peter Andreas, a political scientist, indicates that providing a successful service for payment is good business for smugglers. Rob T. Guerette, a criminal justice scholar, and other researchers argue that because smugglers lead migrants in groups, the physical problems of one migrant can be counterproductive to meeting a pick-up agent and avoiding the U.S. Border Patrol. Smugglers may refuse to seek help or tell those left behind to wait for medical attention. The time delay often results in migrant death, but leaving behind one or more individuals ensures payment by the rest of the group. The Mexican government is now circulating a guide to migrants warning that polleros (smugglers) may lead them into hazardous situations. Deterrence In criminology, the classic theory of deterrence predicts that increasing the risk and amount of punishment and decreasing the reward will reduce traditional criminal behavior. The crime-fighting principle of prevention through deterrence has been used in border-control strategy although first-time border crossing without documents is only a civil offense in violation of national sovereignty. The deterrence approach has required increased hiring of U.S. Border Patrol officers, fencing in of traditional urban crossing zones, new fortified checkpoints, high-technology sensing devices, and special operations. Specifically, major urban crossing points such as San Diego, California and El Paso, Texas were made much more impermeable. Raquel Rubio-Goldsmith, a Binational Migration Institute researcher at the University of Arizona, and her colleagues have referred to the impact of relative closure of urban crossings as a funnel effect because migrants are increasingly crossing in riskier areas, particularly the Arizona desert, where thousands have died. Rubio-Goldsmith and her colleagues, Wayne Cornelius (a sociologist at the University of San Diego), and the Government Accountability Office (GAO) all agree that intensified border enforcement has caused an unprecedented series of migrant deaths. Death Estimates Migrant deaths along the U.S.-Mexico border have become a major publichealth issue. Since 1995, it is estimated that between 2,000 and 3,000 men, women, and children have died trying to cross the U.S.-Mexico border and/or make their way into the interior (Sapkota et al. 2006). Wayne Cornelius estimates that from 1994 to 2004, 2,978 border migrants died attempting to cross the border or make their way into the interior. Cornelius states, “To put this death toll in perspective, the fortified U.S. border with Mexico has been more than ten times deadlier to migrants from Mexico during the last nine years than the Berlin Wall was to East Germans throughout its twenty-eight year existence” (Cornelius 2006, 784).

518

|

Migrant Deaths on U.S.-Mexico Border

Approximately 1,000 migrants are estimated to have died in Arizona. Raquel Rubio-Goldsmith and her research associates studied all cases of unauthorized border-crosser deaths examined by the Pima County Medical Examiner’s Office from 1990 to 2005. During this time 927 bodies were examined. GAO estimates are that Arizona accounted for 78 percent of the increase in all U.S.-Mexico border deaths from 1990 to 2003. Over 80 percent of deaths were individuals under age 40, but there was an upward trend in deaths of individuals under age 18. Furthering concern over this issue, the U.S. Border Patrol has criteria for being included in the death estimate that result in an undercount. For example, deaths on the Tohono O’odham reservation are not handled by the U.S. Border Patrol or included in the count. In addition, many bodies are never found due to the remoteness of the region. In addition, if a train or vehicle death occurs in the U.S. interior, it is not enumerated. U.S.-Mexico Plan of Action for Cooperation on Border Safety In 1998, border deaths became recognized as an extreme issue and the United States and Mexico began the Border Safety Initiative (BSI). The United States and Mexico have agreed to cooperate in a campaign to alert potential migrants of border-crossing risks, increase rescue efforts in high risk areas, and to take into custody smugglers and human traffickers on both sides of the border. This plan can be located on the Internet at http://www.state.gov/r/pa/prs/ps/2001/3733.htm. The Border Safety Initiative (BSI) is a harm reduction policing initiative. One action taken to prevent deaths was to place 30-foot towers with strobe lights at several locations. A button on the tower allows a migrant to make contact for rescue. An unmanned aerial device also flies along the border to look for migrants, including those in need of rescue. There are four elements of the border safety plan: 1. Prevention through public media campaigns emphasizing risk and the posting of signage about remote terrain crossing hazards 2. Search and rescue operations conducted by specially trained Border Search, Trauma and Rescue teams (BORSTAR) 3. Training for U.S. Border Patrol officers in techniques of rescue and life saving 4. Data tracking of migrant deaths to pinpoint areas of high risk Opposition to Intensified Enforcement Since the 1970s, the American public has consistently made stopping undocumented immigration an issue. Politicians have repeatedly campaigned with the conservative theme of strengthening border enforcement. In the 1990s, Congress responded with a series of new initiatives to change the pattern of undocumented immigration. Intensive enforcement began with Operation Hold the Line in El Paso (1993) and the construction of fencing. Currently, these operations have been extended with Operation Gatekeeper in San Diego (1994),

Migrant Deaths on U.S.-Mexico Border | 519

Operation Rio Grande (1997) in McAllen, Texas and Laredo, Texas, and Operation Border Safeguard (2003) in Tucson, Arizona. Together, all of these intensified enforcement efforts in and around urban centers have been referred to as the Gatekeeper Complex. Opposition to border fortification has come from humanitarian groups, which can be religious or secular. While conservatives would emphasize making life-saving activities integral to the policing effort, a liberal perspective would advocate modifying border enforcement policy, or—at the extreme—opening the border. Increasingly, academicians are improving death count statistics and arguing against funneling migrants away from fortified urban areas. A series of research papers has documented the increase in the death rate over time and made a strong connection between intensified enforcement, the funnel effect, and migrant deaths. Sociologist Joseph Nevins (2006) states, “it is the very presence of the Border Patrol and its policing apparatus that put migrants in harm’s way. After all, they wouldn’t have to trek through the desert if they could just walk through a port of entry in a safe, dignified and legal manner.” When criticism comes from within the government via the General Accountability Office (GAO) and testimony before the House Subcommittee on Immigration, Border Security and Claims of the Committee of the Judiciary (2003), it means that there is internal opposition to border policy. GAO research indicates that intensified enforcement is the reason for a massive increase in migrant deaths. Using Border Safety Initiative migrant-death data, the GAO found that from 1985 to the early 1990s, migrant deaths declined. In the late 1990s through 2005, the number of deaths approximately doubled. In 1999, there were 241 deaths while 476 were recorded in 2005. National Center for Health Statistics data indicate that three quarters of 1990–2003 increases in migrant death were primarily confined to the Tucson, Arizona Border Patrol Sector. Deaths due to heat-exposure increased while traffic fatalities, the major cause of death in the 1990s, declined. The GAO concluded that after the 1994 implementation of the Southwest Border Strategy, migrant border crossing shifted from urban San Diego and El Paso into the Arizona desert. HUMAN RIGHTS AND LAW ENFORCEMENT Rob Guerette, a criminal justice faculty member at Florida International University, has addressed the policing ethics of the duty to save human life. While humanitarian aid is often associated with voluntary groups, it is integral to law enforcement as well. Officers are trained in “first responder” life-saving methods. In 1948 the United Nations issued a Universal Declaration of Human Rights, which includes the right to life, dignity, privacy, self-determination liberty, and freedom of movement. It is negative policy to allow the deaths of citizens of a neighboring country and the United States took some responsibility by joining the Border Safety Initiative in an effort to control bad publicity. Humanitarian organizations have placed pressure on the U.S. Border Patrol and the Department of Homeland Security as well.

520

|

Migrant Deaths on U.S.-Mexico Border

Smuggler Responsibility and Migrant Victims The Border Safety Initiative has emphasized the role of the smuggler in guiding migrants into high-risk regions. By shifting the blame to the smuggler, migrants can be viewed as victims. This has been done in situations involving criminal activities in which one party has greater responsibility. For example, the primary responsibility for drug abuse can be viewed as belonging with the dealer rather than the physically addicted. Representing the migrant as a victim allows a change in perspective that valorizes saving human life while situating the smuggler as the primary offender. U.S. Border Patrol involvement in preservation of human life is a standard principle found in all public service agencies. MIGRANT DEATH PREVENTION POLICY AND EFFORT Border Patrol Search, Trauma, and Rescue (BORSTAR) Since BSI, the U.S. Border Patrol has trained officers in rescue and life-saving techniques. BORSTAR is a specialized unit for search and rescue under hazardous conditions including swift water, mountain, and desert rescue. A study was made on the impact of response by a BORSTAR team as opposed to a regular U.S. Border Patrol officer in the Tucson, Arizona sector, where BORSTAR was implemented. The results showed that in 2003, BORSTAR agents effected a 93 percent (260 people) success rate and that only 18 people (7%) died when BORSTAR was involved. In contrast, only 53 percent (76 people) of U.S. Border Patrol officers were successful at rescue. Statistical analysis showed that the likelihood of death was reduced 84 percent when a BORSTAR agent responded. Lest this make U.S. Border Patrol officers sound ineffectual, it should be remembered that BORSTAR agents have special training and medical equipment that increase their success. Lateral Repatriation Program In 2003, the U.S. Border Patrol began the Lateral Repatriation Program (LRP), which involved releasing migrant detainees from the west desert area of the Tucson sector into the South Texas sector. Prior to the end of the catch and release policy in 2006, migrants were immediately returned to Mexico in the sector from which they had tried to cross. LRP, a $1,352,080 program, operated for 23 days and relocated 6,200 migrants. It was periodically enacted at times of high risk in hot, arid crossing regions. A statistical analysis was performed on LRP effectiveness comparing the Tucson sector, where migrants were repatriated to southern Texas-Mexico border cities, to the El Centro sector where they were not. When these sectors were compared, Tucson-sector deaths were lower. An examination was made of the South Texas sectors where the migrants were repatriated to Mexico to see if there was a migrant death displacement effect. There was no evidence of a displacement effect in the South Texas Border Patrol sectors.

Migrant Deaths on U.S.-Mexico Border | 521

Claudia Smith, the Border Project Director of the California Rural Legal Assistance Foundation, has criticized the LRP for moving migrants away from the risks of a desert crossing only to face the risks of a South Texas crossing. She notes that the U.S. Border Patrol only enumerates deaths within its sectors near the line and does not count suffocation deaths, such as the 19 people who died inside a truck in May 2003. Migrants face drowning or suffocation and accidental injury or death in high-speed motor chases in the LRP receiving zones. In addition, women have been repatriated without contacts to Ciudad Juarez, Mexico where hundreds of women have been raped and murdered in unsolved cases in recent years. The U.S. Border Patrol should also enumerate migrant deaths that occur from motor vehicle and train accidents outside its jurisdiction. Any positive impact of saving lives in the Tucson sector could be better evaluated. Indeed, analysis shows that despite BORSTAR and the LPR, migrant deaths have increased.

SITUATIONAL CRIME PREVENTION AND MIGRANT DEATH Situational crime prevention is an approach that seeks to understand the landscape in which unwanted behavior occurs and to change it with proactive preventive solutions. The first step in the case of migration is to collect information on the types of migrant death and the conditions and types of situations likely to result in death. U.S. Border Patrol data from 1999 to 2003 has identified heat-exposure, drowning, and motor vehicle accidents as the three major causes of death. If migrants are being funneled into increasingly riskier regions, then there are steps that can be taken by law enforcement before, during, and after life threatening events.

Pre-Life-Threatening-Event Migrant Death Prevention The initial stage for intervening with migrants is simply thought to be deterrence through intensified border enforcement. A publicity campaign should be undertaken to make potential migrants aware of the number of deaths and their causes. Deterrence has pushed migrants into a more dangerous funnel where they take the risk of perishing, but many do make it through harsh conditions. Apparently, this is enough to defeat the idea of deterrence for many would-be migrants. The next step is to find ways to save migrant lives. Rob Guerette employs situational crime prevention theory to suggest a series of ways to prevent death events and reduce the degree of health consequences during and after an event. In the pre-life-threatening–event-stage, Guerette thinks the following can alter the conditions under which the actions of a migrant (victim) and coyote (offender) in an environment endanger human lives.

migrant and coyote behavior 1. Design and position a hazardous-condition alert system.

522

|

Migrant Deaths on U.S.-Mexico Border

migrant behavior 1. Distribute information about problems with heat exposure in Mexico with a special warning for women, who have an increased likelihood of perishing.

environmental conditions 1. Use spatial concentration statistics to pinpoint areas in which deaths are more likely to occur. 2. Place barricades at the border-crossing points known to carry higher risk. 3. Position Spanish and English warning signs in higher-risk areas. Each of these strategies can be situationally deployed to reduce migrant deaths. They do not end border enforcement. They seek to protect human life. MIGRANT DEATH PREVENTION PRIOR TO AND DURING LIFETHREATENING EVENTS In order to facilitate an understanding of how migrants can be saved during distressing events, information must be presented on migrant social characteristics, causes of migrant death, timing of migrant death, and location of discovery in each type of situational policing intervention. In this way, tragic events are paired with proactive responses to lower the death rate.

MIGRANT DEATH: CAUSATION AND INTERVENTIONS Primary Causes of Death There are three primary cause of death among migrants: (1) heat exposure, (2) drowning, and (3) motor vehicle accidents. From 1999 to 2003, Guerette found that 35 percent of deaths were due to heat exposure, 21 percent were due to drowning, and 11 percent were due to motor vehicle accidents (Guerette 2007a). Situational Interventions. There are many ways of decreasing high-risk situations. In Mexican towns where migrants gather prior to crossing, instructions for dealing with life-threatening events should be handed out. Information on what to take besides water in order to deal with heat stroke would be invaluable. This information can be tailored to each border sector by addressing the specific types of risk that might be faced.

Primary Locations and Geographical Concentration of Deaths Heat exposure deaths are most likely to occur in the Tucson, Arizona; Del Rio, Texas; Laredo, Texas; and Yuma, Arizona Border Patrol sectors. The funnel effect steered migrants towards crossing very hot and remote desert regions with infrequent water sources and landscapes in which it is easy to get lost. Drowning is the primary form of death in the McAllen, Texas; El Paso, Texas; and El

Migrant Deaths on U.S.-Mexico Border | 523

Centro, California Border Patrol sectors, which border the Rio Grande River or Colorado River and are irrigation areas. Motor vehicle deaths are common only in San Diego, California with its freeway system and deaths caused by vehicles hitting migrants are now greatly reduced under Operation Gatekeeper. Nevertheless, deaths have been displaced and increased. Migrants seek to evade areas of intensified enforcement and the Tucson, Arizona and El Centro, California sectors experience a disproportionate concentration of deaths: 54 percent (Guerette 2007a). This could imply that the funnel effect primarily impacted individuals who might have entered through San Diego, California in the past. Situational Interventions. In areas at high risk for heat exposure deaths, signage should warn migrants and penalties for coyotes who abandon migrants should be posted. Guerette suggests that knowledge of prior migrant death locations allows for expansion of human and electronic resources for death prevention. The Tucson, Arizona and El Centro, California areas are high-risk area for migrants, and additional resources could direct the migrants away from these areas. A list of possible proactive responses includes public awareness prevention campaigns, additional temporary or permanent barriers, electronic surveillance of hot locations, and even tactical operations in elevated heat that have an element of rescue. Although border fencing is controversial, the placement of local barricades has diverted migrants to other areas. Because of this, Guerette advocates placing barricades in high risk areas. Barricades present issues, however, because a part of the border is adjacent to Indian reservations, privately-owned land, or regions with migratory wildlife and protected plants and animals. Because of the concerns of conservation groups and other impacted parties, Guerette suggests that these barricades should be put up during the hot summer months in heavily impacted sectors such as Tucson, Arizona and El Centro, California. Timing of Deaths The summer is very hot in the desert regions of Arizona and California. Fiftyfive percent of migrant deaths in these areas occurred during the summer in May, June, July, and August (Guerette 2007a). Situational Interventions. A weather warning system should be established in sectors with high temperatures. This information can also be made available in Mexico where migrants gather to cross. A secondary intervention would be to warn of times of year in which migrants are liable to encounter freezing temperatures, frostbite, and death in mountainous regions. Who Discovers Deaths In 55 percent of cases, the U.S. Border Patrol found the victim; government agencies discovered 19 percent of deaths and citizens discovered 14 percent. Despite the repeated buildup of U.S. Border Patrol officers, the region the migrants are funneled toward is vast and sometimes only a skeleton is found.

524

|

Migrant Deaths on U.S.-Mexico Border

Situational Intervention. A Report a Migrant Campaign should be initiated. Community policing seeks to involve neighbors with police to prevent crime. In the case of the U.S. Border Patrol, involvement of the public can increase surveillance and capable guardianship. Guerette suggests using report–a-migrant stickers and pins and putting road signs in hazardous areas asking drivers to report viewing migrants. Please not that this is different from citizen patrols carrying guns—it is just citizen cooperation through surveillance. Social Characteristics in Migrant Death Young, Male, Mexican Victims. In 2003, 82 percent of deceased migrants were male; 76 percent were from the bordering country of Mexico, and 64 percent were under thirty (Guerette 2007a). The youth of the deceased implies that they died under very harsh conditions. Situational Intervention: Young Mexican and Central American males should be made aware that it is possible to die in elevated-risk areas regardless of age.

TRUCKING SUFFOCATION DEATHS OF MAY 13, 2003 On the humid night of May 13, 2003, 19 migrants died of asphyxiation, heat exposure, and dehydration while crowded into the back of a tractor trailer in Victoria, Texas. When the truck was opened, 73 migrants were found, but there may have been more who escaped into the night. The known migrants were from Mexico (48), Honduras (15), El Salvador (8), Nicaragua (1), and the Dominican Republic (1). The details of the incident establish that the migrants were effectively trapped inside the truck with limited communication from the outside.

Inside the Trailer The First Hour. From the time the migrants entered the truck in Harlingen, they were sweating. Trucks are not designed for human cargo, and metal bars in the floor made it painful for some to sit; people squatted, and some stood and leaned against the walls. The migrants experienced dizziness and nausea. Their hearts started to beat more rapidly and they felt disoriented in the heat. Two men responded by breaking through the taillights on the back of the truck with bloodied hands, but it did not provide sufficient air. The Second Hour. The humidity was 93 percent on that hot night. The elderly and children were among the first to succumb to heat exposure, and Marco Antonio Villasenor, a five year old boy, was taken to the back of the truck by his father. The migrants were scared, and many began to hyperventilate. Some people lost consciousness and others began to vomit. Driving slowly to avoid attention, the driver had not reached the U.S. Border Patrol checkpoint. The migrants began to discuss crying out for help to be let out versus staying quiet in the hopes of getting through to the U.S. interior. At the Sarita checkpoint, no one noticed the broken taillights on the back of the truck, which is pointedly odd. Inside the truck, a Honduran woman with a cell phone tried to call for help but was not successfully transferred to a Spanish speaking operator, ending hope for safety.

Migrant Deaths on U.S.-Mexico Border | 525 The driver of the truck, Tyrone Williams, thought that he was being paid to take them through the Sarita checkpoint and to the Kingsville/Robstown area, not the Victoria/ Houston destination. Tyrone was promised $3,500 for taking them to the original destination, but the smugglers called and offered him an additional $2,500 to go all the way to Houston. As they drove through Kingsville, the migrants began to believe they would die and prayed. They shouted through the back tail light holes and threw clothing out into the dark to get attention. One person saw this and called the police, but it was not treated as an emergency. The Third Hour. During this hour, some people began to die of heat exposure and suffocation. There was no water in the back of the truck—the only liquid was sweat and urine. The migrants beat against the driver’s cab and called out with no response. The Final Hour. Finally, the truck air conditioner was turned on, but it takes several hours for people to recover from heat exposure. This was not enough. In Victoria, Tyrone Williams finally noticed a problem with the tail light and stopped the truck at a gas station. Williams heard the shouting and opened the doors. He and his companion, Fatima Holloway, went in and bought water, which they distributed. Williams then panicked and fled after detaching the semi from the cargo carrier. It was too late for 19 victims. The five-year-old child and his father died in each other’s arms.

Blaming Smugglers This incident set a precedent for the possibility of sentencing human traffickers to death. Jorge Ramos does not set responsibility solely upon the truck driver and the coyotes involved. He believes that the economic disparities between the United States and Mexico and U.S. immigration policy figure into this tragedy. Both the United States and Mexico blamed the coyotes. The tragedy did prompt a House Subcommittee on Immigration, Border Security and Claims hearing (2003) on the “Deadly Consequences of Alien Smuggling.”

Judicial Response Tyrone Williams was found guilty of transporting undocumented migrants and then fleeing without seeking aid. The Justice Department sought the death penalty for Tyrone Williams. He admitted that he heard the migrants being loaded onto the truck but not that he heard the migrants crying out in distress. Williams pled guilty in exchange for a reduced sentence. Karla Chavez was identified as connected to a trafficking operation and, after being tracked down in Central America, was brought to the United States and indicted on 56 counts, including the death of 19 migrants. Fourteen other traffickers were identified during the investigation due to linkages with Karla Chavez, but none were assigned the death penalty because of insufficient evidence as to how the operation had been organized. Karla had 55 charges dismissed and was given a lighter sentence in return for testifying against other trafficking defendants.

526

|

Migrant Deaths on U.S.-Mexico Border

MIGRANT VICTIMS Period of Discovery for Heat-Exposure Victims In 2003, out of 122 incidents 74 percent of people died of heat exposure and dehydration (Guerette 2007a). In 8 percent of the incidents, another migrant went for help that did not arrive in time. In 9 percent of incidents, the U.S. Border Patrol did not arrive prior to death. Situational Interventions. Operations should be targeted in high-heat conditions to locate migrants at risk. These efforts should not be publicized as it might encourage migrants to try to cross in the belief that they will be rescued.

Situational Factors of Heat-Exposure Victims Guerette found three factors that contribute to heat-exposure deaths: (1) going without a guide and losing direction or lack of food and water, (2) being abandoned by a guide, and (3) having a guide who is not willing to wait and or go for help to aid the victim. Situational Interventions. Migrants in Mexico should be made aware of the number of deaths and the risk of getting lost or abandoned prior to trying to cross.

Temperature and Heat-Exposure Victims Seventy-four percent of heat exposure deaths occurred when temperatures were above 105 degrees Fahrenheit (Guerette 2007a). Situational Intervention: Periodically post temperatures and warnings about elevated risk in times of high temperature and make such information available in staging towns in Mexico.

Female Heat-Exposure Victims Guerette (2007a) controlled for a variety of situational variables (age, nationality, size of the group of migrants, and level of U.S. Border Patrol activity) and found that women were 29 percent more likely to die of heat and dehydration than males. Situational Intervention: Make literature available for women in staging towns in Mexico that specifies the conditions under which heat stroke can occur and vulnerabilities for heat stroke, such as pregnancy, obesity, and heart or respiratory conditions. Guerette suggests posting signs in staging towns and at the U.S. and Mexican Consulates. Information on the quantity of water and what is needed for protection could be distributed. In addition, if coyotes become subject to additional penalties for smuggling women, they should be notified to discourage them.

Migrant Deaths on U.S.-Mexico Border | 527

Locating Heat-Exposure Victims The desert terrain has few discernible landmarks, and the U.S. Border Patrol is often unable to find victims in time. Individuals often cannot provide a geographical feature or coordinate of the distressed person. Situational Intervention: Provide a desert marking system that would allow migrants to identify the relative position of a distressed person when they go for help. Drowning Victims Situational Factors of Drowning Victims. It might be logical to expect that victims would drown at a time of flood waters. Instead 62 percent of drowning deaths occurred at normal flows of 40,000 to 90,000 feet (Guerette 2007a). Situational Intervention: Certain sectors of the Rio Grande and its aqueducts already have hazardous warning signs. Rivers at normal flow can have hidden currents or sudden deep spots that can capsize a person who believes it is an easy swim or that it is possible to wade across. These signs should be placed at all points where there is a drowning risk. In addition, heavy rainfall up river can cause the river to crest, or a release of water from reservoirs can increase the flow. Knowledge of what is happening up river should be made available. Locating Drowning Victims. In 88 percent of drowning deaths, a U.S. Border Patrol officer was not present to try and assist the victim. Bodies are found floating in the river. Five percent of the time, a U.S. Border Patrol officer is present and too distant to get there in time or unable to come to help (Guerette 2007a). It helps to remember that the migrant is trying to evade the U.S. Border Patrol rather than considering that they could aid them in a catastrophic situation. Vehicular and Train Accident Victims Motor Vehicle Victims. About 44 percent of the 32 incidents in 2003 involved migrants in high speed collisions when the U.S. Border Patrol was present— whether or not the officer was aware of undocumented migrants in the vehicle (Guerette 2007a). Forty-one percent of incidents occurred without U.S. Border Patrol presence. Train Victims. Migrants may try to board or situate themselves when the train is in motion and fall off. Of six train-related deaths, three involved falling off and three involved falling asleep on the tracks waiting for a train and getting hit (Guerette 2007a). Situational Intervention: Migrants should be warned prior to crossing and tracks should be posted regarding train-related hazards. In San Diego, a threemile highway barrier resulted in a 54 percent decrease in migrant deaths caused by highway accidents (Eschbach et al. 2001). Guerette’s research does not focus on suffocation as a cause of death although multiple migrant deaths have occurred in motor vehicles, overheated box cars, and trucks. The migrants should have more information than the smuggler will

528

|

Migrant Deaths on U.S.-Mexico Border

provide about the risks of suffocation, and this can be distributed in the staging communities in Mexico. Mary F. Lumpkin and a group of physicians studied motor vehicle accidents from 1998 to 2003 along the 281 mile Arizona-Mexico border that were reported in newspapers. The accidents studied involved poorly maintained vehicles that went out of control on bad tires and rolled over while packed with migrants. Thirty-eight crashes involved at least 663 passengers, about 17 per vehicle, of which 49 percent sustained injuries and 9 percent were killed. Seventeen (5%) of 325 serious injuries and three (5%) of 59 fatalities were children under the age of 12. Lumpkin and the medical doctors and personnel who studied this injury and death pattern feel that smugglers disregard human life in their desire to avoid arrest. Even bystanders have been killed. The total number of accidents is underestimated, and the total number of passengers cannot be fully determined as many try to escape into the desert. A case from March 14, 2002, demonstrates the magnitude of threat to life and limb. On that day, a 1986 Ford F380 pick-up truck was carrying 16 people in the double cab and 25 in the cargo bed when it rolled over in a high-speed chase. The passengers ranged in age from infancy to late life. The driver maintained speeds of up to 100 miles per hour and ran three stop signs at 60 miles per hour, forcing three cars off the road in the process. A shredded tire caused the driver to lose control and roll over. This accident caused thirty injuries. Smuggling vehicles are modified in a way that increases injuries. Seat belts are often broken or missing and entire seats may be taken out in order to transport more people. They are driven at night at high speed over rough terrain. After an accident, passengers become scattered and may become dehydrated and suffer from exposure. POSTLIFETHREATENINGEVENT INTERVENTIONS In relation to the number of incidents, the number of BORSTAR units is very small. Guerette recommends increasing BORSTAR staffing and considering a desert marking system that would also help to save lives. This marking system would assist both the U.S. Border Patrol and migrants in need of assistance as it would provide clear coordinates as to where a distressed person is positioned. Finally, Guerette recommends the creation of a task force on prosecution of coyotes to consider enhanced penalties in cases of abandoned migrants and negligence leading to death. HUMANITARIAN EFFORTS FOR MIGRANT SAFETY Although the Minutemen and other citizen volunteer groups seek to locate and apprehend migrants, there are humanitarian groups in opposition to this practice who seek to help migrants. Border Angels maintains 340 water stations in the El Centro, California Border Patrol sector. Paisanos al Rescate (Countrymen to the Rescue) looks for migrants in distress by air. Humane Borders maintains 65-gallon water stations with flags that fly 20 feet in the air. These humanitarian

Migrant Deaths on U.S.-Mexico Border | 529

activities are not conducted in secret. Links to humanitarian groups aiding migrants can be found at www.nomoredeaths.org. Legal scholar David A. Scharf indicates that allowing these groups to operate acknowledges that the United States knows that the lives of migrants have been placed in danger although the inhumane character of its operations is underplayed. The U.S. Border Patrol actually cooperates, through a gentleman’s agreement, not to stake out water stations placed by Humane Borders. Ironically, humane groups who aid migrant survival are aiding and abetting people who have broken the law. Reverend Robin Hoover, founder of Humane Borders, believes that the U.S. Border Patrol “cannot encourage death. [ The Border Patrol is] losing the P.R. war.” Reverend Hoover continues, “Their only other option is to say: ‘We like death, let’s have some more’ ” (qtd. in Scharf 2006, 167).

Migrant Deaths in Other Locations Many migrants die attempting to cross the Caribbean by boat, but they receive little attention. Guerette and Clarke note that Spain, Italy, France, and Australia have borders with hazards where migrants die attempting to enter without documents. Knowledge about migrant death prevention would be furthered by understanding the commonalities and differences in migrant death and smuggling in those locations. In the United States, maritime smuggling and boat people are often overlooked as sources of migrant death.

Mixed Messages and Border Policy The United States policy of taking steps to prevent border crossing in urban areas is in direct contradiction to its lack of action taken against citizens who employ undocumented workers. There has been a small increase in enforcement actions. Yet the number of personnel dedicated to interior enforcement is minor compared to the number of U.S. Border Patrol officers deployed at the border. In the controversy about the impact of heightened border enforcement on migrant deaths, the presence of a double standard is overlooked. Those who employ migrants who survive the trek north are under-enforced while efforts are concentrated upon preventing noncitizens from entering. CONCLUSION Intensified border enforcement is clearly associated with increased migrant deaths. The price of safety is as high or higher than the cost of enforcement because it involves additional staffing, training, operations, and public-safety campaigns. Whether it is smugglers who are to blame, as the government implies, or migrants who are to blame, as groups like the Minutemen imply, or immigration policy which is to blame, it is clear that people are paying with their lives. The situational harm-reduction approach presents a way to improve the death toll but presents an additional investment besides fortification. Citizens,

530

|

Migrant Deaths on U.S.-Mexico Border

especially employers, are seldom blamed for providing opportunities after migrants make it to the interior and become undocumented immigrants. While introducing community policing activities to the U.S. Border Patrol is a positive step, policy makers need to rethink both who they criminalize and who they choose to prosecute. Not all civilians are innocent, and migrants are paying with their lives. See also Border Deterrence Strategy; Employer Sanctions; Human Trafficking; Open Border Initiative; Undocumented Immigration Policy; Vigilante Groups References: Andreas, Peter. Border Games: Policing the U.S.-Mexico Divide. Ithaca, NY: Cornell University Press, 2001; Chardry, A. “Migrants Stopped at Sea Most in 10 Years.” The Miami Herald, January 19, 2005; Clarke, Ronald V., ed. Situational Crime Prevention: Successful Case Studies. Second edition. Guilderland, NY: Harrow and Heston Publishers, 1997; Cornelius, Wayne A. “Controlling ‘Unwanted Immigration:’ Lessons From the United States. 1993–2004.” Journal of Ethnic and Migration Studies 31, no. 4 (2006):775–794; Echsbach, Karl, Jacqueline Hagan, and Nestor Rodriguez. “Death at the Border.” International Migration Review 33, no. 2 (1999):430–454; Echsbach, Karl, Jacqueline Hagan, and Nestor Rodriguez. Causes and Trends in Migrant Deaths Along the U.S.-Mexico Border, 1985–1988. Houston, TX: University of Houston Center for Immigration Research, 2001; Government Accountability Office. Border Crossing Deaths Have Doubled Since 1995; Border Patrol’s Efforts to Prevent Deaths Have Not Been Fully Evaluated. Washington D.C.: U.S. Government Printing Office, 2006; Guerette, Rob T. Migrant Death: Border Safety and Situational Crime Prevention on the U.S.-Mexico Divide. New York: LFB Scholarly Publishing, 2007a; Guerette, Rob T. “Immigration Policy, Border Security, and Migrant Deaths: An Impact Evaluation of Life-Saving Efforts Under the Border Safety Initiative.” Criminology and Public Policy 6, no. 2 (2007b):245–266; Guerette, Rob T. Migrant Death and the Border Safety Initiative: An Application of Situational Crime Prevention to Inform Policy and Practice (Doctoral Dissertation). Newark, NJ: Rutgers University, 2004; Guerette, Rob T, and Ronald V. Clarke. “Border Enforcement, Organized Crime, and Deaths of Smuggled Immigrants on the United States-Mexico Border.” European Journal on Criminal Policy and Research 11(2005):159–174; House Subcommittee on Immigration, Border Security and Claims of the Committee of the Judiciary. Hearing on Deadly Consequences of Alien Smuggling. Washington, DC: U.S. Government Printing Office, 2003; Kirkorian, Mark. “Long Hot Summer: Border Enforcement and the Deaths of Illegal Immigrants.” National Review Online, June 6, 2006. http://www.cis.org/articles/2006/mskoped060906.html; Lumpkin, Mary F., Dan Judkins, John M. Porter, Rifat Latifi, and Mark D. Williams. “Overcrowded Motor Vehicle Trauma From the Smuggling of Illegal Immigrants in the Desert of the Southwest.” The American Surgeon 70 (2004):1078–1082; McKinley, J. C. “A Guide for the Illegal Migrant.” New York Times Week in Review, January 9, 2005; Nevins, Joseph. “Collateral Damage on the Mexican Border.” New American Media. 2006. http://www. alternet.org/story/39833/; Nevens, Joseph. Operation Gatekeeper: The Rise of the “Illegal Alien” and the Remaking of the U.S.-Mexico Boundary. New York: Routledge, 2001; Ramos, Jorge. Dying to Cross: The Worst Immigrant Tragedy in American History. New York: Harper, 2005; Reyes, Belinda I., Hans P. Johnson, and Richard Van Swearingen. Holding the Line? The Effect of the Recent Border Buildup on Unauthorized Immigration. San Francisco, CA: Public Policy Institute of California. http://www.ppic.org/content/ pubs/report/R_702BRR.pdf; Rubio-Goldsmith, Raquel, M. Melissa McCormick, Daniel Martinez, and Inez Magdelena Duarte. The “Funnel Effect” and Recovered Bodies of

Militarization of the U.S.-Mexico Border Unauthorized Immigrants Processed by the Pima County Office of the Medical Examiner, 1990–2005. (Report Submitted to the Pima County Board of Supervisors). Tucson, AZ: Binational Immigration Institute, Mexican American Research and Studies Center, University of Arizona, 2006; Rubio-Goldsmith, Raquel, M. Melissa McCormick, Daniel Martinez, and Inez Magdelena Duarte. A Humanitarian Crisis at the Border: New Estimates of Deaths Among Undocumented Immigrants. Washington, D.C.: Immigration Policy Center, 2007; Scharf, David A. “For Humane Borders: Two Decades of Death and Illegal Activity in the Sonoran Desert.” Case Western Reserve Journal of International Law 38(2006):141–172; Smith, Claudia. “Border Enforcement: Deadlier Than Ever and Ineffective as Always.” Latino Studies 2(2004):111–114; Spakota, Sanjeeb, Harold W. Kohl III, Julie Gilchrist, Jay McAuliffe, Bruce Parks, Bob England, Tim Flood, Mark Sewell, Dennis Perrota, Miguel Escobedo, Corrine E. Stern, David Zane, and Kurt B. Nolte. “Unauthorized Border Crossings and Migrant Deaths: Arizona, New Mexico, and El Paso, Texas, 2002–2003.” American Journal of Public Health 96, no. 7 (2006):1282–1287; United Nations. Universal Declaration of Human Rights. Adopted and proclaimed by General Assembly Resolution 217 A (III) of December 10, 1948.

Judith Ann Warner

MILITARIZATION OF THE U.S.-MEXICO BORDER The term militarization of the border is controversial in and of itself because it is meant to refer to the use of paramilitary techniques against the citizens of friendly nations who attempt to cross the border without papers as well as criminals such as drug traffickers and human smugglers. The debate about militarization concerns life and death issues related to the U.S. Border Patrol’s increasing assistance by the military, including deployment of thousands of the National Guard soldiers. Militarization is associated with increased migrant deaths in remote areas, development of a culture of suspicion, intensification of paramilitary activity by drug cartels in response to escalation of conflict, and human rights violations. The use of low-intensity conflict tactics to control unauthorized immigration, combat drug smuggling, and detect terrorist incursion has cost the nation billions and produced an uncertain outcome that is still being debated in Congress. WHAT IS MILITARIZATION OF THE BORDER? Timothy Dunn originated the concept of the militarization of the U.S.-Mexico border by theorizing that the doctrine of low-intensity conflict was being applied there. Low-intensity conflict doctrine was developed by the U.S. militarysecurity bureaucracy as a response to revolutionary insurgency in Latin America. It is an unusually subtle form of militarization directed at targeted civilian populations. While a low-intensity conflict may have violent and severe consequences for a nation, it is a preemptive strategy for preventing more severe conflict in a foreign country without extensive involvement of U.S. troops. Dunn thinks that low-intensity-conflict military strategies have been used at the southern border over a long period of time without the conscious intentions of policy makers or

| 531

532

|

Militarization of the U.S.-Mexico Border

the U.S. Border Patrol and that the result is de facto (in practice) militarization of the U.S.-Mexico border. The application of low-intensity-conflict strategies for border control has included the use of military high-tech surveillance equipment, coordination of police actions with the military, military training for the U.S. Border Patrol and local policing units, military training exercises in the border region, and an emphasis on intelligence gathering. After 9/11, the militarization of the border was intensified through the integration of the U.S. Border Patrol into the Department of Homeland Security. Periodically, the National Guard and the military have cooperated with the U.S. Border Patrol; Dunn characterizes this cooperation as a high level of militarization. BACKGROUND Beginning with the Reagan administration and continuing throughout the Bush administration, there is a history of repeated efforts to secure the U.S.Mexico border using low–intensity-conflict operational measures. During this period, U.S. Border Patrol administration, agents, and resources have been repeatedly increased. U.S. Border Patrol expenditures increased mildly after 1965 and then explosively after 1993; since 9/11, there has been continuous expansion of allocation. While a portion of the expense has been to increase personnel, a great deal has been spent on military high technology. This de facto militarization strategy is targeted at undocumented populations, human and drug smugglers, terrorists and those who are profiled as likely to be in these categories: Mexicans, Central and South Americans, and individuals from countries known to harbor terrorists. At first, the public focus of this heightened enforcement was connected to increased detainment of Mexicans, Central American, and other unauthorized entrants, but another primary target has been apprehending drug smugglers. In the 1980s, a multi-agency federal task force called the Alien Border Control Committee developed plans for a mass sweep targeting undocumented immigrants; the intended result was a sealed border. Through successive presidencies, there have been attempts to merge the activities of the military and the police by modifying legal restrictions, particularly for anti-drug trafficking operations. In 1986, Operation Alliance joined federal and state law enforcement agencies and the military to counter drug-smuggling operations. Since the 1980s, the military has provided the U.S. Border Patrol with training in intelligence gathering and small unit tactics. Drug enforcement has involved the military in repeated off base operational missions along the border. The southwest border strategy expresses three aspects of low intensity conflict doctrine: (1) use of military strategy and tactics by border law enforcement, (2) joint operations by the police and military, and (3) use of military high technology for surveillance. A common theme of this effort is intensive social control of the U.S.-Mexico border and the surrounding region. A symbol of this intensified control is the construction of chain link and thin steel walls in key trafficking areas of the border.

Militarization of the U.S.-Mexico Border

The emphasis on securitization of the U.S.-Mexico border led to the development of the Southwest Border Intelligence Task Force, which was originally focused on drug trafficking enforcement but now includes counter-terrorism. This securitization was augmented by the extensive adoption of military equipment and technology for use by the U.S. Border Patrol and the Drug Enforcement Agency. The specific elements of militarization include both ground and hightechnology response operations. On the ground, checkpoints stop all traffic, intelligence-driven special operations occur, and patrols are sent to specific target areas through rapid response that includes technology originally developed for military use. Military high technology deployed includes night vision equipment, high intensity stadium lighting, electronic and magnetic intrusion ground detection sensing systems, remote controlled 24-hour video surveillance and sensing (RVSS) cameras, unmanned video towers, helicopters, air support, and unmanned aerial vehicles (drones). Communications utilize land mobile radio, cellular coverage, and satellite communication. Mobile computers will access law enforcement databases. A specifically terrorist-prompted objective is the use of radiation detection equipment to look for materials related to use of dirty bombs. Ground sensors are a major paramilitary surveillance strategy. When an individual on foot or a vehicle triggers a sensor, a signal is sent to a dispatcher. The dispatcher is a link who notifies the U.S. Border Patrol officer. It takes at least five minutes for the U.S. Border Patrol unit(s) to respond and, in that period of time, a smuggler can move individuals a distance, making them difficult to locate. Increased militarization involves a level of cooperation between the U.S. Border Patrol and the military in which the distinction between the two is blurred. An example of this level of militarization of the border is when the Marines at the Barry M. Goldwater Range located in the desert near Yuma, Arizona deployed a ground surveillance system that tracks movement and locates vehicles, relaying Global Positioning System (GPS) coordinates to the U.S. Border Patrol. This type of technology is considered more effective than building fences and is referred to as a virtual wall. Another innovation, the IDENT system is a computerized database system with photos, fingerprints, and personal identification information on apprehended unauthorized migrants. This system is being upgraded in its capacity to obtain, store, and share biometric data. IDENT detects repeated crossers who are then reclassified as human smugglers. Prior to the end of the catch and release migrant policy, fewer than four percent of migrants were detained because it costs $90 a day to detain them and bed space is limited. The catch and release program principle was used to voluntarily repatriate migrants to Mexico if they were willing to sign an authorization document. After release, migrants often tried again, IDENT made repeated unsuccessful trips an identifier for the mandatory detainment in effect since mid-2006. Militarization of the border was further expanded after 9/11, when the U.S. Border Patrol was integrated into the Department of Homeland Security, and intelligence gathering has become a major part of Immigration and Customs Enforcement (ICE) operations. There are ICE agents deployed to Mexico and

| 533

534

|

Militarization of the U.S.-Mexico Border

Central America to gain information on corridors used by the undocumented. This intelligence was previously shared, to a limited degree, by the Immigration and Naturalization Service (now ICE), the Central Intelligence Agency (CIA), DIA, and the State Department. Now this information is shared by these agencies within the Department of Homeland Security, with the exception of the State Department, which is given intelligence but is outside this organization. In 2006, further escalation occurred when National Guard troops were deployed to monitor surveillance equipment and free up U.S. Border Patrol agents to be active in locating, detaining, and deporting unauthorized entrants. Although bills have been continually presented in Congress, the final steps of militarization have never passed. These final steps in militarization would involve massive military deployment in which troops are given search, arrest, and seizure powers. This escalation stage has its advocates. A key issue is the number of U.S. Border Patrol officers it takes to fully cover an extensive land border and how much supplementation is needed. Officers routinely are given line watch duty sitting in sports utility vehicles (SUVs) monitoring activity. Yet the entire border is not watched or keep fortified with ready response units. This is the reason given for consistent effort to increase the size of the U.S. Border Patrol or to support it with military or National Guard troops. The primary objective of the Border Patrol remains to catch and deport unauthorized entrants, their smugglers, and drug traffickers, but the ability to conduct other types of law enforcement operations has been extended to the U.S. Border Patrol. Since 9/11, the U.S. Border Patrol has recognized that groups of undocumented crossers and human or drug smuggling operation infrastructure could be used by individual terrorists or small groups of terrorists to enter the United States. The U.S. Border Patrol is expanding militarization through additional roads, lighting, fences, use of high technology and intelligence gathering at the southern border. Prior to 9/11, the U.S.-Canada border had been, to a great extent, unmonitored. As a result, the process of militarization of the northern U.S. border is in its initial stages. There is an effort to identify high threat-areas, acquire communication and data infrastructure, and deploy military high tech detection technology and regions for sensor platforms. Because both Canada and the United States are high income countries, the monitoring of the border is likely to be more easily a joint action than the southern border. Supporters of Militarization of the Border There have been repeated calls for escalation of surveillance and a military presence at the U.S.-Mexico border. Proponents of militarization practice an escalatory policy and never look back. Caspar Weinburger, Defense Secretary for President Reagan in the 1980s, wrote a book called The Next War that predicted that the United States would be at war with Mexico in 2003. The declaration of war has never materialized, but the border has reached a high level of application of low-intensity-conflict doctrine.

Militarization of the U.S.-Mexico Border

President Bush (2000–2008) wanted greater federal authority and greater military involvement along the border and was an indirect advocate of escalation of militarization of the border. It is Congress, however, that has passed bills escalating militarization; these bills have not been approved by the Senate, but there are particular Congressmen who are outspoken advocates for this policy. J. D. Hayworth, a former member of the House of Representatives, views the U.S.-Mexico border as a security threat because it is the primary site for entrance of undocumented immigrants He thinks that 10,000 new U.S. Border Patrol agents are needed (the current force is 12,000) which would mean almost doubling its size. New technology advocated includes drones (unmanned aerial vehicles), poles and surveillance cameras, fencing, radar and increased ground sensors. These are examples of militarization through cooperation of the U.S. Border Patrol with the military. Hayworth would allow the secretary of defense to place Army, Navy, Air Force, and Marine Corp personnel to assist the U.S. Border Patrol. Hayworth advocates this despite the Posse Comitatus Act that prevents the military from enforcing civilian law without an act of Congress. National Guard troops are not subject to this act unless they are federalized. The United States Senate has repeatedly voted down recent measures that would, in effect, complete the militarization of the border. Tom Tancredo, a Congressional representative from Colorado, is a key proponent of militarization and has brought up many issues in the House of Representatives. He has given press releases and written about incursion into U.S. territory by the Mexican military and Mexican law enforcement agencies. Since 1996, the Department of Homeland Security has reported 231 excursions by Mexico into the U.S. It is thought that the majority of incursions are accidental but present risk of injury or loss of life due to incidents created when national sovereignty is violated. In return, the U.S. Border Patrol does not always recognize the site of the actual border and has sometimes crossed into Mexico during a pursuit. The chief concern is intentional incursions by drug smugglers accompanied by Mexican police, Mexican military or individuals disguised as Mexican police or military. As in the United States, but too a greater extent, there are law enforcement and military who become corrupted, and cooperation between Mexican military, police and drug smugglers is known to occur frequently. Currently, the United States practices restraint when these incidents occur, but there is a potential for violence. It has been suggested that drug smugglers may disguise personnel in military or police uniforms to discourage the U.S. Border Patrol from intervening, but this is not verified. Acts of violence against U.S. Border Patrol officers are another reason cited for bringing in the military. Between 2004 and 2005, violent attacks on U.S. Border Patrol agents increased 108 percent. Given the number of apprehensions, which has been over a million a year, this is actually a very low rate of violence. There have been 92 assaults with rocks, 47 physical assaults, 15 vehicle assaults, and 19 firearms assaults. All of these categories of assault are serious and the firearm assaults imply a high level of escalation in reaction to increased border enforcement in isolated incidents. An argument in favor of increased militarization is that it would back up U.S. Border Patrol agents and reduce their

| 535

536

|

Militarization of the U.S.-Mexico Border

vulnerability to the violent incidents that are increasing parallel to escalation of militarization. From 2004 to 2005, Department of Homeland Security Secretary Michael Chertoff indicated that some U.S. Border Patrol officers had been shot at, pelted with large stones and stones covered with cloth, and doused with a flammable liquid and set ablaze. From October 2005 through February 2006 there were 190 attacks. Most occurred near San Diego, California, but some occurred near Laredo and McAllen, Texas. In Fiscal Year (FY) 2005 there were 778 attacks, an increase from 374 the prior fiscal year. An example of a violent border incident related to drug smuggling occurred on January 26, 2006. Military-appearing humvees equipped with .50 caliber weapons escorted three SUVs that were transporting drugs across the Rio Grande at the shallow Healey Crossing in Hudspeth County, Texas. Sheriffs, the Texas Department of Public Safety, and the U.S. Border Patrol followed the humvees and one SUV until they crossed back into Mexico. One SUV became mired in the river, and while the U.S. Border Patrol and local law enforcement watched, the marijuana was unloaded by armed men and the SUV was destroyed. One SUV was confiscated and found to be loaded with 1,400 pounds of marijuana. The smugglers were able to avoid arrest by seeking safe haven in Mexico. To prevent such incidents from re-occurring, a higher level of cooperation is needed with the Mexican government and law enforcement, but this cooperation has not been realized. Tom Tancredo believes that the U.S. escalation in border enforcement has been matched by drug cartels adapting through paramilitary training. The Zetas, a group of former Mexican military Special Forces members, are thought to have been recruited by the drug cartels and to have a paramilitary training camp below the Brownsville, USA and Matamoros, Mexico twin city complex. The Zetas are believed to monitor U.S. Border Patrol activity and to have the capacity to smuggle either drugs or terrorists. Arab and Asian nationals may have had contact with the Zeta camp. In addition, unverified reports indicate that Mexican officials may have taken into custody hundreds of suspected terrorists and held them or turned them over to U.S. law enforcement. Because of incursions and an increase in violent incidents along the southern border, Congressman Tancredo advocates allowing the U.S. Border Patrol to return fire and engage with smugglers on American territory. It is understood among the U.S. Border Patrol, Federal Bureau of Investigation, Drug Enforcement Agency, and local law enforcement officers that high-ranking Mexican military officers have been bribed to assist in drug cartel operations. In Mexico, police officers and military commanders who do not cooperate are targets for violence and assassination. Firing on Mexican and other foreign nationals would be a significant escalation in militarization. While it would prevent drug smugglers from being able to flee, it would expose the U.S. Border Patrol, law enforcement, and potentially civilians to a heightened and regularized level of violence not previously a feature of the U.S.-Mexico border. Two factors drive the increase in lethal firepower along the southern border. First, drug smugglers have adapted paramilitary tactics including use of high-tech weaponry to move their loads. Second, drug cartels vie for control

Militarization of the U.S.-Mexico Border

of territories, including the very profitable I-35 interstate highway which runs from Laredo, Texas on the Rio Grande River to the city of Chicago, Illinois. In 2005–2006, there was a conflict between the Gulf Cartel and the Sinaloa Cartel that resulted in shoot-outs and deaths in Nuevo Laredo, Mexico, the twin city of Laredo, Texas. Violence in Nuevo Laredo was extreme and former Mexican President Vincente Fox (2000–2006) called in Mexican troops. In 2006, a substantial cache of weaponry was seized near Laredo. “two completed bombs and materials for thirty-three more, three hundred primers, almost 4,000 rounds of ammunition, five grenade shells, nine pipe bombs with end caps, twenty-six grenade triggers, thirty-one grenade spoons, forty grenade pins, nineteen blackpowder casings, ninety-one firearm magazines, four silencers, six kits of unassembled automatic weapons, twenty assembled firearms (including AK-47s and AR-15s), two Uzzi assault weapons, two bulletproof vests, sniper scopes, police scanners, pinhole cameras, and other pistols and rifles” (Tancredo 2006, 150). In addition, drugs and money were found. Drug cartels arm themselves in the same manner as terrorists, and this type of violence is a border threat. Tom Tancredo feels that armed drug cartel members and terrorists present an equal degree of threat of violence at the border. A final justification given by Congressman Tancredo for escalation of militarization of the border is a group that he calls the madrinas. Madrina means godmother in Spanish, but the Madrinas are said to be a shadow group who wear uniforms and carry government identification but are not officially recognized or on a payroll. Madrinas are paid through mordidas (bribes) and funnel some of that money back to a sponsoring authority while that official is able to effectively deny their existence. Because madrinas are paid through bribes, they are criminals, and they operate as intermediaries between officials and drug cartels. Madrinas are a possible source of border incursions, but reliable intelligence indicates that many have been made by the official Mexican military. Along the U.S.-Mexico border, considered the back door for terrorists, there has been limited activity, but any activity is of concern because 9/11 demonstrated that the actions of a very few can result in massive damage. The Department of Homeland Security announced that by December 2005, 51 nationals from countries known to harbor terrorists had been arrested by the U.S. Border Patrol and other organizations in the Joint Terrorism Task Force (JTTF). They came from Egypt, Lebanon, Iran, Iraq, Syria, and Pakistan. These suspected terrorists were arrested for crimes ranging from weapons smuggling to wiring large sums of money. In November 2005 an Iraqi al Qaeda operative was arrested and detained at the border. In 2006, Robert Mueller Jr. indicated that Hezbollah had sent operatives across the U.S.-Mexico border for purposes of terrorism and that the FBI had arrested and broken up a ring. When examining the debate points about militarization of the border, it is clear that the Congressional push to bring military troops to the border is based on estimation that it will equal the firepower of the drug cartels, madrinas and any Mexican military involved in smuggling. It represents an additional step in escalating violence in areas being used to smuggle drugs. Ostensibly, these measures are to prevent undocumented immigration, but violence is an especial

| 537

538

|

Militarization of the U.S.-Mexico Border

threat connected to narco-traffickers. Border control which results in apprehension of terrorists trying to enter the United States is an added benefit of escalating attempts to control the national boundary. Opponents of Militarization of the Border Military involvement in border policing deprives individuals of their human rights. Human rights are an extra-governmental, international conception about what constitutes respect for human dignity and life. Nation-states can have policies, institutions and procedures that violate international standards. Timothy Dunn, an academician, is concerned that the United States has created a bureaucratic border-security apparatus that combines the U.S. Border Patrol with the military and is repressive. Mexicans and other foreign nationals crossing the border to look for work and income originate from socially marginal populations. Those who are most scrutinized are poor migrants and impoverished individuals, known as mules, who have been enticed into transporting small amounts of drugs. Mexicans and Mexican Americans are profiled as being undocumented or smugglers and are the most likely to have their human rights violated. All border residents, however, have experienced being stopped at inspection checkpoints, and in remote border areas, anyone with a large covered vehicle such as a van may be subject to repeated stops and questioning. Van, SUVs and trucks are profiled as vehicles that could be used to smuggle migrants. Dunn believes military involvement carries the greatest risk of human rights violation. An extremely negative consequence of border militarization is civilians caught in the crossfire. In May, 1997 a U.S. Marine Corporal, Clemente Banuelos, deployed in a clandestine joint U.S. Border Patrol/military surveillance operation shot and killed 18-year-old Esequiel Hernandez Jr. while he was herding goats in Redford, Texas near the southern border. This sad incident is related to how the military is trained. Troops are trained to seek out and destroy an enemy while law enforcement is trained to capture a suspect observing due process in order to detain them and bring their case to the attention of the legal system. A Grand Jury declined to bring charges for the death of Esquievel, and the Pentagon defended the action as reflecting the duty of engagement. Another issue related to the effectiveness of militarization in certain border sectors has been the attempts by migrants to cross in remote desert and mountainous regions that are hazardous. From 2000 to 2005, more than 3,000 migrants are known to have died and almost certainly more deaths are undiscovered. These deaths do not occur as a result of direct contact with the U.S. Border Patrol or the military units assisting them. They occur because migrants are desperate to cross and willing to risk death. If the United States had attempted to handle immigration by increasing legal ways of entry or attending more to economic development of the nations involved, presumably this crisis would not be occurring. A majority of U.S. Border Patrol incidents involve unauthorized entrants. Contact with armed drug traffickers is less frequent. Timothy Dunn questions

Militarization of the U.S.-Mexico Border

whether certain military training and intelligence support is appropriate for border law enforcement. He does not think that military interrogation techniques, raids, or intelligence-gathering procedures are consistent with law enforcement procedures that protect suspect rights. When immigration and drug control are viewed as security matters, human rights become a secondary concern. The tragic killing of Esequiel Hernandez by a Marine on patrol resulted in a brief public debate about militarization of the border. Dunn predicted that homeland defense could someday become an aspect of border enforcement. The war on terror has encompassed the southern border and compromised civil liberties due to provisions in the USA PATRIOT Act. Dunn suggested that public reporting and prohibiting the most severe forms of militarization are human rights remedies, but instead there has been escalation. U.S. violation of human rights and disregard for the concerns of Mexico and Central and Latin American nations has repercussions. At present, Mexicans are potentially capable of supporting a movement in opposition to the United States. Mexicans express great concern about U.S. border militarization and immigrants in the U.S. from Mexico and Central and South America have organized protest demonstrations including school walk-outs and parades. In the interim, border residents are carrying the burden of dealing with fencing and escalation of border control. People who legitimately cross the border from either side consider Immigration and Customs Enforcement (ICE) scrutiny to be necessary but are mindful of any acts perceived as harassment. The persons chosen to be inspected are afraid of arbitrariness and believe that inspection choices are made based on stereotyped perceptions of clothing and/or nonverbal aspects of self presentation. Those who are detained while attempting legal crossing are not told why they are being questioned. This is an Orwellian interrogation experience that can last for hours during which the individual is repeatedly made subject to accusations of criminal wrong-doing. Payson fears that a culture of suspicion has been created and that legitimate crossers feel harshly treated. Escalation of the militarization of the border is often matched by escalation of the degree of force exercised by human and especially drug smugglers. In 2006, incursions rose in association with an increase in agents and improvements in technology. If it takes weaponry to smuggle, criminal organizations will use Mexican-type military practices. Frequent encounters have resulted in issuing the SALUTE card with a list of recommended procedures to use when uniformed Mexican personnel are found in the U.S. The card is primarily oriented towards identifying the details of the incursion but it also states: “Remember, Mexican army personnel are trained to evade, escape, and counter-ambush, if necessary to escape.” The U.S.-Mexico border has always been a symbolic target of an effort to increase surveillance and create a fortress America. After 9/11, it was established that the World Trade Center hijackers had all entered on visas through other ports of entry. Mexico does not contain a substantial Muslim population and the border is not known as a terrorist crossing. Attempted entrance by terrorists has occurred at the Canadian border, which is relatively unsecured, and there have

| 539

540

|

Militarization of the U.S.-Mexico Border

been acts of terrorism in Canada since 9/11. The public is encouraged to be concerned about the southern border and the issue of controlling undocumented immigration has been joined to combating terrorism. A reason behind this dual treatment is that Mexico and Central and Latin America are economically underdeveloped while Canada is not. Although there is greater evidence of terrorist threat from Canada, the United States is not able to risk damaging diplomatic ties to the extent taken against more vulnerable nations. The military securitization of the U.S.-Mexico Border is a social symbol of the political and economic division between a prosperous high income nation, the United States, and a struggling, middle-income nation, Mexico. Timothy Dunn believes that the border becomes a signifier of the degree of unequal power stratification between the two. This creates a social reality in which the increasing economic integration of Mexico and the United States brought about by the North American Free Trade Agreement is matched by efforts to make ports of entry the only way to enter the United States by closing off the rest of the border. This effort is not just to ensure national sovereignty but may keep relations between the two countries unequal. Another implied negative consequence of the militarization of the border is that it is in the economic interests of the United States to keep Mexico’s population within its boundaries to work in the industrial programs relocated to Mexico, the maquiladoras, at low wages. Militarization has been associated with corporate investment and high profits. The use of low-wage Mexicans disciplines or controls labor demands for a greater share in both Mexico and the United States and generates high profits and shrinkage of the better paid skilled working class. For those who still enter the United States without documents, denying them legal entry makes them an exploitable population willing to receive lower wages. It is possible that the new surveillance helped to shape the entering migrant stream and to reinforce nonlegal status of those who enter without inspection. Border militarization has the impact of gaining more social control over a region of great strategic importance that is potentially unstable. It is a rapidly growing industrial region with symbiotic economic growth on both sides of the border. Nevertheless, a significant component of the population lives in poverty, and while the Mexican population may earn higher wages on the border than in the interior, wages are still not high enough to meet living expenses. Militarization secures an economically strategic area that is vulnerable to instability. A further concern is whether or not it is in the interest of transnational human and drug smuggling organizations to cooperate with terrorists. Human smugglers are willing to move a diverse international clientele of economic migrants, primarily from Spanish-speaking countries. It remains to be seen if they would be willing to be linked to terrorism because it would intensify law enforcement effort further. Similarly, drug smugglers operate within the Southern and North American hemisphere and are dependent on the United States and Canada to provide a clientele to generate profits; undermining the country through acts of mass destruction would not serve their primary economic interest and would increase the level of surveillance and enforcement operations against them.

Minimum Wage |

CONCLUSION The adoption of low intensity conflict methods has not encouraged American citizens to believe that undocumented immigration is controlled, that drug smuggling is under control, or that terrorists can be stopped from entering. Yet many Americans believe in further militarization of the situation by sending the military to the border. The migrant death rate, deaths and shooting of American citizens, and increased violence directed at U.S. Border Patrol officers are all ugly consequences of this paramilitary escalation. Politicians, government officials, and the public are all convinced that the biggest national security problem is the southern border with Mexico; they advocate tactics that have upset Mexico and prompted immigrants to demonstrate in the United States in favor of more migrant-friendly policies. One must ask, given the prior failure of this solution, whether it can ever work. When is a border buildup ever going to be enough? In the meantime, human rights advocates, immigrants, and the international community are examining the United States for both unacceptable levels of human rights violations and any weakness that can be exploited on the world stage. References: Dunn, Timothy. “Border Militarization Through Drug and Immigration Enforcement: Human Rights Implications,” Social Justice 28, no. 2 (2001):7–30; Dunn, Timothy. The Militarization of the Border, 1978–1992: Low Intensity Conflict Doctrine Comes Home. Austin, TX: CMAS Books, Center for Mexican American Studies, University of Texas, 1996; Hayworth, J. D., and Joseph J. Eule. Whatever it Takes: Illegal Immigration, Border Security, and the War on Terror. Washington D.C.: Regnery Publishing, 2006; Office of Border Patrol. National Border Patrol Strategy. Washington D.C.: U.S. Customs and Border Protection, 2006; Payson, Tony. The Three U.S.-Mexico Border Wars: Drugs, Immigration and Homeland Security. Westport, CT: Praeger Security International, 2006; Tancredo, Tom. In Mortal Danger: The Battle for America’s Border and Security. Nashville, Tennessee: WND, 2006.

Judith Ann Warner

MINIMUM WAGE The general public fears wage competition from unskilled immigrants and believes that the undocumented will work for subminimum pay and place downward pressure on wages. The minimum wage is a social tool used to make sure people earn enough to cover the basic necessities of life. Raising the minimum wage is viewed by the public as a way to help people avoid poverty when prices are more than their pay. Conversely, an employer’s goal is to maximize profits and the minimum wage is a way of limiting workers’ pay as well as stabilizing productivity and rewarding work. If federal or state government raises the minimum wage, low-skilled workers, whether native-born citizens or immigrants, may lose work hours or their job. Teenagers are especially vulnerable to this phenomenon. This job loss occurs if employers can’t afford or won’t pay the increase. Undocumented workers are

541

542

|

Minimum Wage

extra-legal. A social concern exists that they will work for less than minimum wage, undermining the wages of all workers. Employers who break the law can threaten to or actually deport these workers if they complain about their wage. The United States is viewed as a land of opportunity where immigrants can realize the American dream regardless of their skill level. Yet economic fluctuations, uncertain need for unskilled immigrant labor, and uneducated nativeborn workers in need of a living wage have caused an uproar about the impact of illegal immigrants on the minimum wage. BACKGROUND In 1997, the federal minimum wage was increased to $5.15 an hour and then remained stable for ten years, over which time the cost of living changed. In July 2007, the federal minimum wage was increased to $5.85. It will increase by two $0.70 increments until it becomes $7.25 per hour in July 2009. Because the federal minimum wage did not provide sufficiently for workers, states took action. Since 1997, 29 states and the District of Columbia passed minimum wage increases to assist with the cost of living. States exceeding the federal minimum wage included: Alaska (1997–2006), California (1997–2007), Connecticut (1997–2007), Delaware (1999–2006), Hawaii (1997–2007), Illinois (2004–2006), Maine (2002–2006), Massachusetts (1997–2007), Minnesota (2005–2006), New Jersey (2005–2006), New York (2005–2006), Oregon (1997–2005, 2007), Rhode Island (1999–2007), Vermont (1997–2007), Washington (1997–2007), and Wisconsin (2005–2006). After the July 2007 increase, the following states still had minimums higher than federal level: California, Connecticut, Hawaii, Massachusetts, Oregon, Rhode Island, Vermont, and Washington. Higher State Minimum Wages and Immigrants The minimum wage exists to prevent native or foreign-born workers from living in poverty. While the level of the federal minimum wage may not always permit this, immigrant destinations such as California and New York have had higher minimums. When a state raises its minimum wage, it helps to keep workers, including low-skill immigrants, from relying on public services by passing costs onto the employer. How far the minimum wage goes in keeping a family from poverty depends on the number of adult workers and children. Immigrant and minority households tend to be larger and more in need of an economically realistic minimum wage. Minority women-headed households are the most in need of federal programs such as food stamps, and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). Only after five years in the United States, can legal immigrants request these benefits—if they don’t fear deportation for asking. Immigrants who do make these requests do so on behalf of U.S.-born children. Regardless of nation of birth, to the degree that a state ensures that minimum wages meet household economic needs, it saves money for the state and federal government.

Minimum Wage |

Labor Affordability The minimum wage impacts worker’s standard of living and the capability of employers to afford to hire people. Traditionally, economists theorized that an increase in the minimum wage would reduce employment, especially of teenage and low-skilled workers. Economic research has not shown this to be the case among native-born workers. Some explanations are that labor markets may not be as competitive as thought, employers may decrease hours per employee instead of reducing employees or that they may hire more skilled workers at the new wage, which would not reduce the number of workers. Less agreeable possibilities are that employers force their employees to work more “under the table” for the wage increase or that some workers are never impacted because they are already working under cover for sub-minimum wages, as might be the case for some undocumented immigrants. Teenaged and Less-Educated Native-Born Workers The minimum wage provides a beginner’s pay, and native-born teenagers are the most likely social category of worker to earn it. There is evidence that when the federal or state minimum wage increases, both teenagers and low skilled immigrant workers can earn more. Nevertheless, less educated male native-born workers have an 18 percent higher unemployment rate than similar unskilled immigrants. Yet evidence indicates that a rise in minimum wage does not impact them. The reasons why native-born males who do not have a high school degree are not benefiting are unknown. Low-Skilled Immigrant Labor Immigrants are the fastest growing group of low skill labor in the United States. The U.S. Census Bureau indicated that in 2005, 32 percent of immigrants over age 25 had less than a high school education. Two thirds of those with less than a 5th grade education were foreign-born as were 50 percent of those with less than an eighth-grade participation. Workers who are paid less are considered to have lower productivity, but that is not the case with immigrants. Lowskilled immigrants typically earned 14 percent less than native-born workers with less than a high school education. Citizens who were high school graduates earned 18 percent more than immigrants on average. These immigrants often have less proficiency in speaking English than native-born workers at similar education levels and less experience in the U.S. labor market. Because the Latino and Asian new immigration is partly composed of ethnic groups that arrive with a low skill level, it has been predicted that minimum wage increases would adversely impact their ability to find or keep jobs. A higher proportion of such groups as Mexicans, Central Americans, and South Asian refugees are low skilled, and any negative impact of increasing the minimum wage would be expected to disproportionately impact these foreign-born employees.

543

544

|

Minimum Wage

Sub-Minimum Wage Employment One negative impact of being an undocumented worker is that employers may not feel that they have to pay minimum wage, especially if these workers are handled off the books by a labor subcontractor. Labor subcontractors distance businesses from the direct negative consequences of paying sub-minimum wages. A subcontractor can falsify their own books, protecting a dishonest employer. Another way to get around the minimum wage is paying by the item—so-called piece work. For example, an immigrant woman who sews one part of a garment, such as a sleeve, may not be able to sew enough sleeves at 10 cents per sleeve to make minimum wage per hour. If the woman is undocumented, complaining is an option that could lead to deportation. There are both immigrant and native-born workers who earn less than minimum wage. Those immigrants who earn less than minimum wage place the most constraint on wage stability or growth. In 2004, less than 9 percent of male foreignborn workers earned less than the minimum wage of $5.15 while 13 percent of female immigrants earned less than this amount. Among native-born workers, 7 percent of women and 10 percent of men earned less than minimum wage. Minimum Wage and Gender Data indicates that 35 percent of male foreign-born workers and 21 percent of male native-born workers earned the minimum wage or up to approximately double the minimum wage. Thirty-eight percent of female immigrants and 30 percent of native-born women earned the minimum wage or up to 199 percent of it. Because American society has gender inequality, both foreign and native-born women were more likely than men to earn below the minimum wage or up to 199 percent of minimum wage. Native-born women were the most likely to earn at this low-wage level. Undocumented immigrants are thought to increase subminimum wage violations among the foreign-born, although that is hard to prove because it involves discovering criminal activity. For immigrants, particularly those without legal paperwork, raising the minimum wage may have no impact if they already work for less than that wage. Certain employers, who are already breaking the minimum wage law or avoiding the law through subcontracting, aren’t likely to comply. These immigrants have difficulty challenging employers because if they ask for the minimum, they risk being deported. An unscrupulous employer or labor contractor can simply call Immigration and Customs Enforcement and have them removed. It is difficult for them to find someone to trust in order to ask for a lawful wage although there are immigrant advocacy lawyers who will help. Increasing State and Federal Minimum Wages Low-skilled immigrant workers’ earnings are limited by having less than a high school education, not being proficient in English, and having less social

Minimum Wage |

capital such as network ties to other workers. Economists believe an increase in the federal minimum wage will reduce the hours or likelihood that these workers will be employed. Current Population survey data from 1994–2005 indicates that minimum wage increases at the federal level do not reduce low skilled immigrant’s employment or lead to reductions in the number of hours worked. When states increase their minimum wages, however, low skilled immigrants may be less likely to settle in those locations or to move to other locations—an immigrant displacement effect. Low-skilled adult immigrants are less likely to live in a state with a higher minimum wage than the federal wage. Low skilled native-born workers are more likely to live in such states. Either less-educated citizen move away from areas with a greater number of low-skilled immigrant workers or state legislatures raise the minimum wage past the federal level when they have an increased population of less-educated citizens. Conversely, when a state raises its minimum wage, more immigrants with at least a high school education are likely to move there. The reason why less educated immigrants may leave states with higher minimum wages may be due to business decisions. Low-wage industries may prefer to relocate to states with wages at the federal minimum to save on costs. Otherwise, it could be that employers place pressure on states not to raise the minimum wage to preserve their profit margin. From 1994 to 2005, North Carolina and Georgia became major immigrant receiving destinations and did not raise the state minimum. This may have attracted both low wage industries and immigrants and placed pressure on less-educated native-born minority workers.

Teenage Work Displacement Although teenagers may benefit from increased earnings when the minimum wage is increased, they are somewhat more likely to lose their jobs. They may be the primary group of native-born workers impacted by competition from low skill immigrants. Males are more likely than females to be adversely impacted. Economists estimate that a 10 percent increase in minimum wage reduces teen employment by 1.9 percent. In contrast, female teens may have their hours cut. Perhaps beginners are considered to be more expendable by employers because they are part of a household. Unfortunately, teen earnings are important in meeting the cost of living in poorer households.

Wage Compression Wage compression refers to pay inequities caused by new employees asking for higher wages than current employees. It is thought that unskilled immigrant labor is more subject to wage compression, which can be caused by raising the minimum wage, than native-born workers. International economic research indicates that immigrant men and women are more likely to receive less work when wages are higher and when countries have more labor regulation laws.

545

546

|

Minimum Wage

Low-Skilled Immigrant Safety Net When Americans think about a safety net, they associate it with public benefits for those who become unemployed as adults, especially individuals with children to support. A safety net does not have to come from the government. In developing countries and among immigrants, the pooled income of a household and social network ties can provide protection from income loss. A household with two working parents and adult working children can sustain a period of partial member unemployment better than a household with one earner. Immigrants can also use ties with other immigrants to find alternate work. Finally, although intensified border enforcement has made undocumented immigrants less likely to return to the home country in an economic downturn, both legal and undocumented immigrants can return home in the absence of work. It is more likely, given the costs of going home and trying to return, that they can move to another state. In the 1990s to the present, research on undocumented workers showed they were more likely to move across states than return home. Reluctant or Criminal Employers Whether employers want to pay the newly increased federal minimum wage is an issue. Noncitizen immigrant workers who are undocumented and legal permanent residents lower the cost of domestic work, construction, and food. The assumption is made that lower-cost unskilled immigrant workers permit higher-cost native born workers to contribute to economic production that is more affordable for all Americans. Ironically, if employers refuse immigrants the wages they are due, all consumers will benefit from costs that are not passed on. Nevertheless, this may have a later impact when communities, states, and even the federal government raise various taxes—for everybody. CONCLUSION The minimum wage is supposed to meet the basic economic needs of either native-born or foreign-born households. The oil shock and housing bubble of the first decade of the twenty-first century may make these wage increases somewhat ineffective, but they will help some low-income households. Lowskilled immigrant households have not been shown to be significantly impacted by changes in the federal minimum wage, but that is not true for state minimum wages, which may cause interstate migration by both less-educated immigrants and low-wage businesses in response to higher minimums. The three step transition in raising the federal minimum wage will impact less-educated immigrants and citizens in all states. This could make it harder for low wage industries to escape a higher minimum wage by relocating. By creating a higher wage, it is possible that some less-educated immigrants or native-born teens will lose their jobs or that there could be an increase in illegal employer and labor subcontracting activity as a way of keeping wages lower and maintaining profit levels. The failure of the federal and state governments to effectively

Minimum Wage |

enforce labor-law violations will allow criminal employers to act at will. Immigrant fear of deportation will keep them from complaining. As a result, the public will continue to question the wisdom of lawmakers in their regulation of immigration and the minimum wage. See also Domestic Workers in the Private Household Economy; Economy; Raids; Social Mobility, Sweatshop Labor, Underground Economy References: Capps, Randy, Michael Fix, Jeffrey S. Passel, Jason Ost, and Dan Perez-Lopez. A Profile of the Low Wage Immigrant Work Force. October 27, 2003. Washington, D.C.: The Urban Institute. http://www.urban.org/UploadedPDF/310880_lowwage_immig.wkfc.pdf; Chiswick, Barry R., Anh T. Le, and Paul W. Miller. “How Immigrants Fare Across the Earnings Distribution: International Analyses.” IZA Discussion Paper No. 2405, 2006; Council of Economic Advisors. Economic Report of the President. Executive Office of the President, Washington D.C., 2005; Jean, Sebastien. “The Labor Market Integration of Immigrants in OECD Countries, 2006”; OECD Working Party 1 manuscript: www.oecd.org/data oecd/25/14/36789352.ppt; Orrenius, Pia. M., and Madeline Zavodny. The Effect of Minimum Wages on Immigrants. Dallas, TX: Federal Reserve Bank of Dallas. http://business. baylor.edu/Susan_Armstrong/Orrenious.pdf; U.S. Census Bureau. Educational Attainment in the United States: 2005, 2006. http://www.census.gov/population/www/socdemo/ education/cps2005.html.

Judith Ann Warner

547

This page intentionally left blank

N NATIONAL GUARD AND BORDER CONTROL Since 9/11, the government has continued to increase the number of military personnel, specifically National Guard members, working with the U.S. Border Patrol (USBP) in the U.S.-Mexico border region. Promilitarization advocates argue a military presence is necessary at the southern border of the United States because it is so porous terrorists could easily slip through. A military presence also curbs the flow of illegal drugs and undocumented Mexican migrants. Antimilitarization advocates argue militarization does little to stop terrorists, illegal drugs, and undocumented immigration but does jeopardize the constitutional and human rights of migrants and citizens. Another issue concerns how the National Guard or other military personnel impact the citizen population. Trained combatants have a different mindset than domestic law enforcement. Finally, involving the military in border enforcement and domestic security is against the way the U.S. government was set up and threatens to politicize the military. The military has been an international offensive and defense force subject only to domestic service in times of disaster such as hurricanes and 9/11. Positioning the National Guard for long periods of time at the border involves the military in domestic law enforcement and raises constitutional issues. BACKGROUND Military involvement on the U.S.-Mexico border is not recent. The most intense buildup occurred between 1978 and 1992. During this period, the United States escalated its drug war. Part of the plan involved focusing on supply. If the United States could cut off drug users from their suppliers, the drug problem

549

550

|

National Guard and Border Control

supposedly would lessen. Anti-drug campaigns in foreign countries involved the use of U.S. military technology and manpower. They also involved use of military force in fighting against groups involved with production and distribution of illegal drugs. With drug operations disrupted, in the 1980s large supplies started coming across the U.S.-Mexico border. Simultaneously, the increasing immigration of undocumented Mexican nationals and Central Americans became a domestic issue. Some undocumented immigrants from Mexico were coming to the United States for a better life, but certain individuals were also transporting drugs. National Guard The National Guard is the oldest branch of the U.S. military; it originated in the militias of the earliest colonies. It is a federal and state force primarily used by the states. Its state mission is to provide trained and disciplined troops for state emergencies. Federally, these troops are available for wartime mobilization or national emergencies. In states, the National Guard serves by order of governors in times of unrest or disaster. For example, the National Guard patrolled in New Orleans after the Hurricane Katrina disaster. They gave humanitarian relief, assisted local law enforcement, and secured infrastructure important for the city and homeland security. Since the 1970s, the National Guard has been involved in border control to prevent drug trafficking and, later, to support airport security and cargo handling. Another example is the deployment of the National Guard after 9/11 at airports and train stations to protect the public. Currently, National Guard units in border states are providing surveillance and intelligence support for the U.S. Border Patrol. Approximately 6,000 National Guard members stationed in border states are providing assistance to the U.S. Border Patrol in Operation Jump Start. National Guard Function The United States uses the military, especially the National Guard, to control undocumented immigration. It allows the United States to maintain a symbolic power hold. The border has been in transition since the North American Free Trade agreement (NAFTA). NAFTA facilitated the dissolution of political boundaries. With it, the free flow of consumer goods was encouraged, but the free flow of citizens in a conjoined labor market was not. A military presence may strike fear into the heart of unuathorized entrants more than the USBP does. INCREASED NATIONAL GUARD INVOLVEMENT AT THE BORDER IS NECESSARY Supporters of National Guard involvement bypass the Posse Comitatus Act. It precludes military involvement in enforcing civilian laws. If the National Guard is under the control of a state governor, it does not violate this law. If a National

National Guard and Border Control

Guard unit is federalized, it has authorization to provide training and equipment for law enforcement in matters related to drugs and immigration. Increasing violence and need for more support for the U.S. Border Patrol are arguments for involving the National Guard. Mexican Military and Drug Cartel Violence Promilitarization advocates believe a military presence, both federal and National Guard troops at the border, is important because the area is becoming more violent. The violence is not just coming from unauthorized Mexican nationals smuggling people but from the Mexican military as well. In January 2007, people with military uniforms fired a machine gun at Texas police officers. From 1996 to 2007, 216 confirmed incursions by the Mexican military occurred. Suspicions are that these incursions are related to drug smuggling. While the Mexican government denies involvement, reports show 50 percent of drugs shipped into this country come across the Arizona border—a hotbed for known Mexican military incursions. Without military involvement at the border, the USBP is out-gunned. The increased power of drug gangs is an important issue. Ruthless drug cartels not only target rivals, but law enforcement as well. If the military is not involved more, drug violence will keep spreading. For example, suring 2007 assaults on USBP agents doubled, primarily due to violent drug cartels. Supplemental Assistance Some promilitarization advocates simply want an increase in National Guard activities. They purport the military does not police the border. The USBP does. Military duties, in reality, just involve the operation of military equipment, such as surveillance systems. INCREASED NATIONAL GUARD INVOLVEMENT AT THE BORDER IS UNNECESSARY Political Pandering Anti-militarization advocates argue military buildup at the border is not about the protection of citizens and the deterrence of illegal drugs, undocumented migrants, and terrorists. It is about political pandering. For example, in 2006, President George W. Bush called for a National Guard buildup at the border while he only had a 9 percent approval rating for his handling of border issues. Coincidentally, at the same time, 62 percent of U.S. citizens supported using the military at the border. Constitutional Rights and Mission Creep Of greater concern is whether the National Guard could enforce immigration law without abridging the constitutional rights of citizens and legal

| 551

552

|

National Guard and Border Control

permanent-resident immigrants or the human rights of undocumented immigrants. Rough treatment of civilians is particularly feared. Once the National Guard is mobilized, however, mission creep, in which actions on the ground can over-step the boundaries assigned, is a possible occurrence. A key issue concerns the primary military function of the National Guard and other troops. It is thought that police work and military action require different mindsets. Military personnel are not trained to de-escalate encounters with civilians and/or migrants but to use force and act reflexively in combat. Although the USBP is trained in civilian protection techniques, they are not and would need this training before being put on active duty. Esequiel Hernandez Shooting as a Red Flag The case of Esequiel Hernandez Jr. is an important example of militarization gone awry. In May 1997, the 18 year old was herding goats on his farm in Redford, Texas. A Marine with an eager trigger finger working with the USBP shot Hernandez suspecting he was a smuggler. The case highlights why a military mindset may not be appropriate for border situations. Regardless, people continue to debate the necessity of the military at the border. They also debate if militarization has an impact on reducing unauthorized migration. Problems with Military Policing of Civilians History shows that problems can occur when the military is involved in the policing of civilians. During the 1992 Los Angeles Riots, the Marines were deployed to restore order. In response to a police request for cover at a home, Marines fired birdshot rounds into a home through the door albeit without injury. Children were in the back of that house. After Hurricane Katrina, the National Guard patrolled with weapons, often unloaded, to control looters because they generate civilian fear. Militarism and Migrant Death Increased border enforcement allows the United States to control undocumented migration patterns. Threats of military force push migrants into hazardous crossing patterns. Immigrants unfortunately attempt to cross the border in geographically unforgiving areas such as the Arizona desert at the peak of summer heat and end up dead. Business Interest in Selling Militarism Anti-militarization advocates believe business interests drive both military involvement and border policy. In 2007, the USBP received newly designed uniforms. They looked more military-oriented than ever. Designing and producing uniforms costs money, and it seems that with every threat increase the United States experiences, an increase of money goes to for-profit contracts. In 1986,

National Guard and Border Control

the USBP spent $151 million. In 2002, it spent $1.6 billion. Much of the new money was spent on military technology and surveillance towers managed by Boeing. Politicization of the Military An even more important issue is the politicization of the military, which has been kept separate from civilian policing. The president and Congress are primarily responsible for the military. Civilian control of the military is basic to American democracy. Involving the military in border control and other domestic security could result in military commands becoming vested in debates about the use of internal resources. Military officers are professionals who are supposed to remain neutral in political debate. Using the National Guard or any military force on a regular basis for domestic security undermines the constitutional ideal of keeping the military separate from civilian society. Americans are anti-militarist. Events that regularly occur in autocratic societies such as military coups are restricted by this separation of civilian and military powers. To allow the military a visible and institutionalized function in border enforcement or domestic homeland security threatens the freedom, individual rights, and civil liberties of the public. COMPROMISE: LIMITATIONS ON GUARD INVOLVEMENT Present National Guard involvement involves compromise. The National Guard operates much of the surveillance and high technology equipment in order to give U.S. Border Patrol officers the freedom to pursue drug and human trafficking suspects or migrants. The National Guard has a low profile and it has been suggested that they confine their operations to outside urban areas. Training could include information on how to interact with civilian populations without violation of constitutional rights and how to avoid national-origin or racial profiling. If National Guard units were given the power to take individuals into custody, it has been suggested that each unit should include a military police platoon. Military police are trained in appropriate methods of prisoner handling and could process and transport prisoners. CONCLUSION Arguments for increased militarization at the U.S.-Mexico Border may be losing merit. Interestingly, the rate of undocumented immigration dipped slightly after 9/11 but has otherwise remained consistent. In addition, the focus may be on the wrong border. In late 2007, the U.S. government conducted a test on the Canadian border. Agents carried nuclear items such as enriched uranium into the United States. Border security only detected one of four smuggling runs. Public concern about drugs and undocumented immigration creates focus on the southern border while the northern border is relatively unguarded.

| 553

554

|

National Origin and Religion Profiling

Regardless, the Cato Institute argues many military-border arguments are misguided. The U.S. military is the most effective fighting force in the history of the world. Faith in that effectiveness may be leading U.S. policymakers astray. Whether it is the drug war, immigration, or domestic security, the military may not be the best solution. As with the Hernandez case, when dealing with undocumented immigrants in citizen and civilian regions, it may not be a good idea to utilize people trained to be combatants. See also Border Deterrence Strategy; Border Fence; Drug Trafficking; Migrant Deaths on U.S.-Mexico Border; Militarization of the U.S.-Mexico Border; National Origin and Religion Profiling; U.S. Border Patrol, Bureaucracy, and Expansion; U.S.-Mexico Border Violence References: Brooks, Rita A. “The Military and Homeland Security.” Public Administration and Management 10, no. 2 (2005):130–152. http://www.pamij.com/v10n2/pam10–2— brooks.pdf; Bryne, Sean J. “Defending Soveriegnty: Domestic Operations and Legal Precedents.” Military Review 100, nos. 1/2 (1999):45–53; Cockburn, Andrew. “The Border Boondoggle.” Washington Post, September 2, 2007:B1; Cornelius, Wayne. “Death at the Border: Efficacy and Unintended Consequences of U.S. Immigration Control Policy.” Population and Development Review 27, no. 4 (2001):661–685; Dinan, Stephen, and Rowan Scarborough. “Bush Eyes Role for Military.” Washington Times, May 13, 2006: A1; Dunn, Timothy J. The Militarization of the U.S.-Mexico Border, 1978–1992. Austin, TX: University of Austin Press, 1996; Hall, Mimi. “Guard Troops to Have Limited Role.” USA Today, May 16, 2006:4A; Healy, Gene. “Don’t Militarize the Borders.” Cato Institute Editorial Collection, February 24, 2003; Macleod, Ian. “Smuggling Nukes via Canada Easier than Through Mexico.” The Gazette (Montreal), November 17, 2007:A12; National Guard Bureau. National Guard. www.ngb.army.mil/; Palafox, Jose. “Opening Up Borderland Studies: A Review of U.S.-Mexico Border Discourse.” Social Justice 27, no. 3 (2000):56–72; Seper, Jerry. “U.S. Agents Fired at on Mexico Border.” Washington Times, September 7, 2007:A3; Seper, Jerry. “Officers Outgunned on U.S. Border; Violence Surge Unprecedented.” Washington Times, March 9, 2007:A1; Stone, David. “Sealing the Border with Mexico: A Military Option.” USAWC Strategy Research Projects. Carlisle Barracks, PN: U.S. Army War College, 2004; Stone, David. “Lawmaker Hits Incursions by Mexico Military.” Washington Times, January 19, 2006:A1; Wallace-Wells, Ben. “How America Lost the War on Drugs.” Rolling Stone, December 13, 2007:90–119.

Jason S. Ulsperger NATIONAL ORIGIN AND RELIGION PROFILING Should a person who appears to be racially different or of different national origin be stopped by law enforcement or questioned in public or in their homes? Many undocumented entrants and permanent resident aliens, on the surface, appear to be racially different or stand out because of ethnic cultural differences. As a result, law enforcement has practiced racial and national-origin profiling in seeking out undocumented immigrants for deportation or making stops on the basis of suspicion of committing a crime. Singling out an individual on the basis of race for law enforcement scrutiny is called racial profiling. Profiling refers to criteria police use for traffic stops but some definitions expand it to any police

National Origin and Religion Profiling

contact on the basis of suspicion in public spaces, and it is now being applied to examination of immigration enforcement. The way in which the war on terror has affected the treatment of immigrants suggests that noncitizens experience profiling in both public and the private space of homes. Since 9/11, immigrants have been singled out because of their national origins from terrorist-harboring nations or because they believe in Islam. This is called racial profiling but it is actually national-origin, ethnic, or religious profiling. All are controversial law-enforcement practices because they discriminate against the targeted groups. Profiling can be seen as a form of harassment of targeted immigrant communities. It is viewed as a discriminatory cause of differential crime rates between groups because people from profiled groups are more likely to be stopped by the U.S. Border Patrol or arrested by law enforcement. Nevertheless, law enforcement needs to identify undocumented entrants and criminal suspects. How this is done is a subject of great controversy. Although racial profiling of citizens by police has been questioned, race, national-origin and religious profiling of noncitizens has been a tool used in the war on terror and legitimated by the Supreme Court. At the same time, few citizens are aware of the extent to which their own rights are curtailed within 100 miles of a national border or by legislation passed to fight the war on terror. Are we all suspects now? BACKGROUND After passage of the 1965 Immigration and Nationality Act, the number and the racial-ethnic diversity of entrants to the United States increased. Race is now understood to be a cultural idea, rather than a biological reality, based on DNA research showing 99 percent similarity between groups. Although race is a social concept that was constructed to justify hierarchical rankings between groups as ‘natural,’ many Americans still differentiate between racial groups based on skin color and other misleading observations. As a result, many white Americans have reacted very negatively to perceived racial and cultural differences of the incoming new immigrant population. These negative perceptions led to a tolerance of the use of racial profiling in policing and immigration enforcement. In Whren v. United States, 517 U.S. 806 (1996) the Supreme Court ruled that stopping vehicles on the pretext of traffic violations for purposes of further investigation is legal. The issue was that the police are more likely to stop racially profiled individuals. This has happened so often in traffic that it is referred to as driving while black. Skin color is a very dubious basis for making a traffic stop. Many African American professionals driving more expensive cars get stopped because a police officer suspects that their car is stolen. This is experienced as both harassment and a form of discrimination against African Americans. Law enforcement policies have been adopted to reduce these incidents, but African Americans are citizens while many new immigrants are not. Permanent resident aliens and undocumented immigrants have no protection from profiling. Thus, there is a spate of associated terms: driving while brown, driving while immigrant and, most recently, driving while Arab. On the other hand, non-Hispanic

| 555

556

|

National Origin and Religion Profiling

white Americans are privileged to receive less police attention and are less likely to be caught for drug possession at a traffic stop. The U.S. Department of Justice issued voluntary guidelines for collecting racial profiling data in 2000. This data is collected by the Racial Profiling Data Resource Center at Northeastern University. At present, at least 27 states are participating. The U.S. Department of Justice, Bureau of Statistics (2006) has demonstrated that young male African Americans (22%) and Latinos (17%) are more likely to be searched than non-Latino whites (8%). African Americans and Latinos are three times as likely as non-Latino whites to be threatened with force during a police stop. In Rhode Island, research indicated that minority members were twice as likely as whites to be searched during a traffic stop, but less likely to be in possession of prohibited drugs (U.S. Department of Justice, Bureau of Statistics 2005). This reaffirms New Jersey research that showed that African Americans and Latinos were the profiled targets of 75 percent of traffic stops resulting in a search in New Jersey. Nevertheless, racial profiling was treated as more of an issue prior to 9/11 and the retraction of civil liberties in the war on terror. During the Bush-Gore presidential election, candidate Al Gore introduced the topic of racial profiling and both Bush and Cheney also came out against it. Conservative pundits continued to advocate it. John Derbyshire (2001) in the National Review defended racial profiling as an efficient police technique based on probability that best makes use of limited resources. George Will writing in the Washington Post purports that using race as a basis for a traffic stop is reasonable as long as it is part of a group of risk factors used in assessing suspect behavior. He distinguished between hard profiling (race as the target characteristic) and soft profiling (race as part of a profile indicating suspicion). In addition, Will indicated that other factors might be the reason that minority drivers are more likely to be stopped: vehicle defects, etc. In 2000, the Gallup public opinion poll showed that 81 percent of Americans were in favor of ending racial profiling. In February 2001, President Bush stated that racial profiling “is wrong and we will end it in America” (U.S. Department of Justice, Civil Rights Division 2003). Attorney General John Ashcroft took it as a charge from the president. Congress moved toward generation of legislation to this effect. Next, the attacks of 9/11 created insecurity, and a rollback began on the push for the right of minorities not to be profiled. Nevertheless, immigrants and citizens have always been profiled in border regions and in the interior because of the undocumented entrant issue. INS/ICE Racial Profiling of Immigrants The U.S. Border Patrol and the Immigration and Naturalization Service (INS), now the Bureau of immigration and Customs Enforcement (ICE), were the originators of racial and national-origin profiling of immigrants. In the U.S.Mexico border region, there are many Mexican American citizens and Mexican permanent-resident aliens. Because many attempting undocumented entry over the border are Latino, Mexican citizens and legal Latino residents are more likely

National Origin and Religion Profiling

to be stopped than individuals of other nationality. This is a historical practice. In the 1950s, Operation Wetback targeted Mexicans, and in 1986 when undocumented farm workers were eligible for legalization, there was a series of U.S. Border Patrol sweeps to confiscate their documents and deport them until this practice was contested by protestors and the media. The INS/ICE has pursued a very anti-immigrant enforcement strategy that is only partially controlled by immigrant advocates and media publicity. In 1975, the Supreme Court decided in United States v. Brignoni-Ponce, 422 U.S. 873 that since Mexicans were estimated to be 85 percent of undocumented entrants, an officer could use Mexican appearance as a relevant factor for investigation, provided it was not the only grounds for suspicion. One result has been that Mexicans and now Central Americans have been more likely to be deported than their statistical frequency in the undocumented population would merit. Immigration profiling has an adverse impact on the legal resident population. If Mexican profiling occurs, then Latino citizens, permanent-resident aliens, and individuals with visas may be stopped, interrogated, and detained as well as individuals of other ethnicity who are mistaken as Latino. Kevin Johnson, a legal scholar, alleges that this policy places an unfair burden on the legal Latino population, which has greatly grown in size since 1973. He points out that the estimate that undocumented entrants are 85 percent Mexican was always over-inclusive and that current estimates place Mexicans at only 50 percent of the undocumented population. The harms that result from this policy include the embarrassment and humiliation of being stopped, emotional stress, and sometimes even verbal and physical abuse may occur. Even more importantly, Mexican profiling undermines the status of Latinos in American society and encourages a stereotype of all Latinos as foreigners. This practice has even led to the unlawful arrest and deportation of legal permanent residents and citizens. Latinos have become doubly suspect; they may be racially profiled as a potential criminal or as a potential undocumented entrant. Driving While Immigrant David Cole (2003), a lawyer and immigrant advocate, coined the phrase “driving while immigrant” to refer to police traffic stops based on immigrant racial profiling. Mexicans have been a major focus of the debate on profiling undocumented immigrants. The stereotype that Latinos are illegal can result in unrefined decisions to stop a person because they look Mexican that can be justified after the fact. The very low reasonable suspicion standard augments this. The U.S. Border Patrol often refers to this as ‘canned probable cause.’ David A. Harris, a legal scholar, believes immigrants are judged guilty on sight and disproportionately stopped; their crime or deportation rate will be elevated because non-Latino whites are less likely to be stopped. Driving while brown, even though Latinos are racially classified as white, is no longer a Supreme Court criteria for stop and search in immigration enforcement. In 2000, the U.S. Court of Appeals for the 9th Circuit disregarded the United States v. Brignoni-Ponce ruling and stated in United States v. Montero-Camargo

| 557

558

|

National Origin and Religion Profiling

(177 F.3d 1113, 1118 9th Cir. 1999) that “Hispanic appearance is not a lawful basis for making a stop because it is a ‘weak proxy’ for undocumented status.” The court opinion stated. “we conclude at this point in our nation’s history, and given the continuing changes in our racial and ethnic composition, Latino appearance is, in general, of such little probative value that it may not be considered as a relevant factor where particularized or individualized suspicion is required. Moreover, we conclude, for the reasons that we have indicated that it is also not an appropriate factor.”

RACIAL PROFILING OF A HISPANIC JUDGE: FILEMON VELA David Haris, professor of law, attests to how the Latino U.S. District Judge for South Texas, Filemon Vela, was stopped by the U.S. Border Patrol in 1999 while on his way to hold court in Laredo, Texas. When asked why his Ford Explorer was stopped, he was told there were too many people in the vehicle—although it could have held more. Judge Vela questioned whether the U.S. Border Patrol had the legal authority to stop him. Afterwards, his secretary made a complaint about the policies that resulted in an unjustified stop. The U.S. Border Patrol indicated that it would provide more information for officers so that only legal stops would occur. In 2000, when Judge Vela was a passenger in another vehicle, he was stopped again. This time the reason given was that the car had tinted windows. These incidents convinced Judge Vela that all Hispanics are profiled to be stopped. Observation has been made that in any area designated as a border, whether an international airport or a highway close to the U.S.-Mexico border, government agents can stop and search people without a warrant, probable cause, or even a reasonable suspicion. The Supreme Court permits this on the basis of national sovereignty. The Court maintains that border stops and searches are legal because they are at the border. Farther inland at checkpoints located away from a geographical border, the U.S. Border Patrol has wide discretion to act, including on the basis of Mexican physical appearance, as one of multiple factors.

Racial Profiling in U.S. Border Patrol Sweeps There has been a long history of U.S. Border Patrol sweeps using physical appearance. In 1997, the Chandler police cooperated in stopping, detaining and questioning residents using skin color as one cue. In 2001 the New York Times reported that INS/ICE officers in New York relied on racial and ethnic physical and social characteristics and accents to profile undocumented entrants. Relying on group probability as the basis for immigration enforcement, rather than individual suspicion, violates the provision for equal protection under the law provided by the 14th Amendment. There was pressure to end this profiling but then terrorist catastrophe resulted in a retraction of civil rights, especially for noncitizens.

National Origin and Religion Profiling

Pressure on the U.S. Border Patrol is intense because conservatives demand more action while targeted groups, including Latinos, claim civil rights violations. In 2004, the Temecula Border Patrol conducted inland sweeps in Norco, Corona and Escondido, California. Complaints resulted in the Department of Homeland Security denying that it gave authorization for the sweeps. Hispanic protests of immigrant sweeps occurred all over California. The Los Angeles Times indicated that more than 150 undocumented immigrants were arrested in San Bernadino and Riverside County, California. In 2004, a presidential election year, the Latino vote was considered crucial and these sweeps were curtailed. The sweeps frighten legal immigrants and foreign-born citizens. Post-9/11 sweeps of undocumented immigrants are less open to public scrutiny because of the secrecy provisions allowed by the USA PATRIOT Act of 2001. To understand the level of public fear that can be generated, it must be understood that in the 2004 California sweeps, the U.S. Border Patrol questioned 9, 972 people on trolleys, at bus stops, train stations, other public transportation sites, and on the streets. They arrested 291 people, a very low strike rate for the degree of public scrutiny involved (Wilson and Murillo 2004). After 9/11, U.S. Border Patrol efforts were expanded to include sweeps near the Canadian Border. The community of Havre, Montana considers the train inspections that occur now to be a sign of patriotic defense. Northern U.S. Border Patrol installation has been expensive and their captures include visa-overstaying tourists, undocumented Latinos looking for work, and potential asylum seekers and refugees—no individuals connected to terrorism. Abramsky, writing in The Nation, thinks these activities give a false picture of counterterrorism security. Nevertheless, a series of Supreme Court rulings has given the right to demand ID to law enforcement officers and limited the probable cause requirements for search and interrogation of individuals within 100 miles of the two international borders with Canada and Mexico. In 2005, the 9th Circuit Court of Appeals ruled in U.S. v. Cervantes-Flores, 04–50113, that U.S. Border Patrol questions can be asked about citizenship, immigration status, and suspicious activities. Any additional search or detention, however, must be justified by either consent or probable cause. Under provisions of post-9/11 legislation, however, the U.S. Border Patrol has been given additional powers.

Pre-9/11 Terrorist Profiling The history of terrorist suspicion and profiling began with airline bombings such as the Pan Am Flight 103 over Lockerbie, Scotland. Terrorist hijackings and bombings have been associated with Arabs and Muslims. In the mid-1990s, airports began profiling darker-skinned individuals who spoke Arabic or English with an Arabic accent. In the mid-1990s, airport stops and searches of Arab and Muslim Americans become routine. Arab and Muslim Americans began to be stigmatized. After the pre-9/11 TWA Flight 800 crash, Arab Americans began to be very harshly treated at airports. President Clinton appointed a commission

| 559

560

|

National Origin and Religion Profiling

to study airport security. The result was Computer Assisted Passenger Screening (CAPS) that selects passengers to screen based on their current reservation and not on their race, nationality, ethnicity or religion. Passengers are selected at random. USA PATRIOT Act: National-Origin and Religion Profiling After 9/11 both President Bush and Attorney General Ashcroft adopted terrorist profiling on the basis of national origin and religion. Subsequently, Congress approved the USA PATRIOT Act of 2001. This act allowed the INS unlimited power to detain noncitizens who the Attorney General thought may have a connection to terrorism. A ruling by Attorney General John Ashcroft allowed ICE to suspend a judge’s release order in immigrant cases. Proof of a link to terrorism or crime was not needed to detain noncitizens. In 2006, a federal judge ruled that immigration law could be used to detain noncitizens due to race, religion, or national origin. This measure supported racial, national-origin and religious profiling of noncitizens. It was made in reaction to a legal case involving the post-9/11 sweeps of Muslim immigrants, the vast majority of whom were not linked to terrorism. In particular, a sweep had been conducted in New York City, the site of the former World Trade Center. The INS and FBI with assistance of New York City Police profiled and arrested Muslim Middle Eastern and Southeast Asian immigrants. Many were detained and then deported if immigration violations were discovered. Many noncitizens were arrested without knowing their rights and were denied due process of the law under the Illegal Immigration Reform and Individual Responsibility Act of 1996 (IIRIRA). The grounds for deportation established by IIRIRA provide for mandatory detention and deportation of permanent resident aliens who commit crimes classified as aggravated felonies. In other words, immigration law was used in a mostly fruitless search for terrorists which resulted in many national origin or religiously profiled arrests and deportation. Deepa Fernandes states that INS and FBI agents did not identify themselves or show credentials before asking to see a profiled person’s ID, often in their own homes. Immigrants were arrested if they could not provide documentation. These mass arrests were conducted secretly under the terrorist-investigation secrecy provision of the USA PATRIOT Act. Attorney General John Ashcroft authorized mass arrest of Arab, Southeast Asian, and Muslim men. The noncitizens profiled