Undocumented : How Immigration Became Illegal (9780807001684) (13 page)

Menjívar describes the experiences of many undocumented Central American immigrants:

Immigration law revisions have continued the pattern of creating new ways of punishing illegality, while concomitantly creating sometimes unexpected and apparently arbitrary new avenues for legalization. A new Temporary Protected Status for Salvadorans (2001) and Haitians (2011) offered undocumented people from those countries a temporary respite, but with the knowledge that it could just as easily be rescinded in the future. President Obama’s June 2012 announcement of Deferred Action for Childhood Arrivals (DACA) granted some youth a similar two-year reprieve during which they could receive temporary documents, including permission to work, but with no prediction about what their status would be at the end of those two years.

Many migrants hope that someday a legal avenue will be opened for them to regularize their status, as occurred in 1986, and do everything possible to improve their chances for obtaining legal status if and when the opportunity arises. Thus, once in the United States, they are constantly torn between laws they feel they have no choice but to violate (for instance, laws that prohibit them from working) and a desire to prove themselves as law abiding and deserving of legal status.

For this reason, many thousands of undocumented immigrants apply for and receive Individual Taxpayer ID Numbers (ITINs) that allow them to file income tax returns each year. They readily appear in court when cited for traffic violations or the more serious charge of driving without a license. Yet they continue to work and drive without official authorization to do so.

SOCIAL SERVICES

The social service network is often a maze of complexity even for citizens and contributes to the arbitrariness that undocumented status entails. Undocumented immigrants are eligible for some types of benefits, while both the undocumented and temporary immigrants with legal documents are restricted from others. Since 1996, even legal permanent residents are excluded from many services. Disentangling what an immigrant is legally eligible for is a complex task. Furthermore, as people often live in mixed-status families, different services may be available to different members. Regulations for welfare, Medicaid, and other types of social services have struggled to parse the categories and decide exactly what “lawfully present” means when determining eligibility. Several pages of the 2011 edition of the United States Code are needed to explain the various legal statuses and determine which qualify a person for different types of benefits.
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The complexity reveals both the legal and moral difficulty of identifying individuals by status and the confusing questions that undocumented immigrants face. Why does one government agency want to help them, while another wants to harm them? Can they be punished for accepting services that are offered to them?

To further confuse the issue, most social service providers are trained and eager to make sure that people obtain access to the services for which they are eligible. Undocumented immigrants may be overwhelmed with phone calls and urgings to accept certain benefits, while finding it impossible to access others that are even more urgently needed. (Of course, this is true for citizens as well.) The patchwork reflects competing interests in the passage of laws and the interests of agencies, but, like status itself, presents a bewildering panorama to those in need.

Immigrants may learn that pregnant women are eligible for the federal Women, Infants, and Children (WIC) food supplementation program, but not for the Supplemental Nutrition Assistance Program (SNAP). One (US-born) child might be eligible for SNAP, while another (foreign-born) child in the same family is not. Undocumented children can go to Head Start and to public schools, but their eligibility for public higher education varies by state. The Affordable Care Act explicitly excludes the undocumented from eligibility, but hospital emergency rooms are still required to provide care for them. They are not eligible for publicly funded housing, but can live in such housing if it’s shared with a qualified family member who is not undocumented.

Because they are ineligible for most publicly funded social services, and because they are generally reluctant to claim even those services for which they may be eligible, the undocumented tend to place fewer costs on the public coffers than would be expected, given their low incomes. In a careful study of the fiscal impact of undocumented immigration, the Center for Immigration Studies concluded that “the primary reason they create a fiscal deficit is their low education levels and resulting low incomes and tax payments, not their legal status or heavy use of most social services.”
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FRAUDULENT DOCUMENTS

Almost all people who are undocumented in fact possess a spectrum of valid and fraudulent papers. They may hold a birth certificate, driver’s license, or passport from their home country, but lack a visa authorizing their presence in the United States or perhaps hold an expired visa.

There are many degrees of fraudulence and many methods for trying to gain access to the documents people need for everyday life. One of the first documents an undocumented immigrant needs upon arrival in the United States is a Social Security card. A thriving underground business in false (and often poorly made) Social Security cards preys on the newly arrived. For a few hundred dollars, the forgers simply place the immigrant’s name—or a false name—along with a random number on a card designed to approximate an actual card.

Since the E-Verify program has become more common in the past decade, more undocumented people are finding that they need a Social Security number with a correctly matched name. Sometimes, an immigrant can borrow a name and number from a friend or relative. Or, for a much higher fee, a forger will sell an immigrant an actual person’s name and Social Security number.

Puerto Rico has been an especially lucrative source for valid birth certificates and Social Security numbers with Spanish names. A person might sell his own documents, those of a child or elder who is not working, or even those of a person who has died. Or the documents could be stolen. The buyer—often an undocumented immigrant in the continental United States—most often just wants a valid Social Security number that matches the name on the card so that he or she can work. In some cases, though, the fraud moves into more aggressive theft, where a person will use the documents to apply for social services that are available only to citizens or to obtain tax refunds, loans, or credit in the other person’s name.
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In 2010, the Puerto Rican government responded to the situation by invalidating all Puerto Rican birth certificates and requiring everyone born in Puerto Rico to obtain a new, more secure document. Many were skeptical that this would end the problem. One Puerto Rican citizen explained drily, “Money buys everything. . . . Anyone will do anything for money.”
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There’s a big difference between using a false number and identity theft. In a case of identity theft, an individual attempts to access someone’s bank account, credit card, or other property to benefit from it. Using a false Social Security number—even if it happens to belong to someone else—does not give you access to anything that actually belongs to that person. Rather, when an employer pays payroll taxes using the false number, the IRS flags the discrepancy and simply transfers the Social Security payments into its Earnings Suspense File.
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The person to whom the number actually belongs is not affected in any way. In recognition of the ubiquity—and the harmlessness—of the use of false Social Security numbers, the Obama administration clarified that using a false Social Security number would not count against a young person applying for DACA.

Marrying for documents is another strategy that ranges from legal to illegal, with myriad shades of gray in between. Some marriages may be arranged as financial transactions between strangers solely in hopes of obtaining documents. This practice is illegal, and ICE prosecutes people who obtain legal residency through this kind of arranged marriage. But not all marriages of convenience are fraudulent. No laws govern the amount of love a person must feel in order to marry; most people who marry do so for a spectrum of reasons ranging from the emotional to the extremely practical. There is nothing illegal about marrying for security, money, prestige, or power.

DRIVING

During the 1980s and ’90s, most states had no rules preventing the undocumented from obtaining a driver’s license and driving legally. This changed after 9/11, when suddenly driver’s licenses were turned into a matter of national security. Millions of people who had been driving legally, with legitimate licenses, found that driving had become illegal.

The REAL ID Act of 2005, passed as part of the recommendations made by the 9/11 Commission, attempted to set a national standard for driver’s license issuance. Among other things, the act required a birth certificate or passport with a visa that demonstrated that the person was in the country legally. The license would then serve as an electronically readable, federally approved identification card. The Department of Homeland Security would set the standard and approve the cards, essentially turning the state-issued driver’s license into a national identity card.

The act was slated to go into full effect in 2008, but full implementation was postponed several times. By the end of 2012, most states were in compliance. Once fully implemented, a driver’s license from a state not in compliance would not be considered valid identification for travel, opening a bank account, applying for benefits or Social Security, or entry into federal buildings.

Driving is such a basic necessity for adult life in most of the United States that numerous methods have emerged for undocumented immigrants to obtain a license. Like a Social Security card, a false driver’s license can be purchased. A new industry mushroomed, making false driver’s licenses. Some people used licenses from their own countries—legal or falsified. Others traveled to New Mexico or Washington State—two states that still allowed the undocumented to obtain a license—and claimed residence there.

In Utah, the legislature created a “driver privilege card” in 2005 for those unable to obtain a driver’s license because they had no Social Security card. The privilege card cannot serve as official identification, but it does certify that the holder has passed a driving test and entitles him or her to drive. Other states, concerned with the safety problems posed by the proliferation of unlicensed drivers, experimented with other kinds of driving permits that would evade the REAL ID Act. Some allowed noncitizens to use a license from their own country for a limited period of time while in the United States.

Even immigrants legally authorized to work are not always able to obtain the license they need. Part of the problem is legislators’ simple ignorance of the amazing complexity of immigration law and status. The state of Texas, for example, passed legislation in 2007 requiring that, in order to obtain a commercial driver’s license, an applicant must be a citizen, a legal permanent resident, an asylee, or a refugee, or else provide an I-94 form proving that they crossed the border legally. But there are many immigrants who are legally present and have work authorization but don’t fit into those categories.

A large number of Central Americans in Texas have Temporary Protected Status, which authorizes their continued presence and allows them to work even if they were formerly undocumented. Other undocumented immigrants may have received authorization to work while they pursue an asylum case. These statuses do not, however, grant them a permanent status like resident, asylee, or refugee. Nor do they retroactively create an I-94 form making their initial entry legal. They give recipients
other
legal documentation. When the legislature passed the Transportation Code, however, it failed to take these other categories into account and thus made it impossible for these state residents to obtain or keep their licenses.
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In the case of the driver’s license, a fraudulent document is not generally of much use. Police are trained and motivated to recognize a fake license, unlike employers, who are usually content to do the minimal inspection required by law. Many undocumented immigrants simply drive without one. The consequences, like so much about immigration law and enforcement, are arbitrary. Depending on the state, or even the community within a state, an undocumented, unlicensed driver who is stopped by police might receive warning or a small fine, or might lose his or her car or be imprisoned and deported. If a jurisdiction is participating in a federal program like ICE 287(g) or Secure Communities, which requires officials to share data on those arrested with ICE, a routine court appearance might end in incarceration and deportation. In 2010, the
New York Times
estimated that 4.5 million undocumented people were driving, mostly without licenses. That year, some thirty thousand of those stopped for common traffic violations—or even being involved in an accident in which they were not at fault—were deported.
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Some law enforcement agents support the hard-line position. Republican state senator Chip Rogers of Georgia took a get-tough attitude in promoting the draconian driving laws in that state. “There are certain things you can’t do in the state of Georgia if you are an illegal immigrant,” he said proudly. “One of them is, you can’t drive.”
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In Los Angeles, however, the police chief joined Mayor Antonio Villaraigosa and the police commission in overturning a rule impounding the car of anyone found driving without a license. The police union protested vociferously, but the conservative city attorney backed the change.
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