Undocumented : How Immigration Became Illegal (9780807001684) (22 page)

The numbers arriving at the US border reveal only part of the magnitude of the problem, since the Mexican government also reported a doubling in the numbers of detentions of Central American children traveling through that country in 2012.
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Perhaps only half of the children who leave Central America even make it to the US border. Along the way, they face the same hazards that older migrants face: injury or death on the train, kidnapping, rape, torture, coercion.

It is clear that conditions for children detained crossing the border have greatly improved in the past decade. It’s also clear, though, that a situation in which tens of thousands of children flee their homelands in Mexico and Central America each year is a desperate one. It’s not enough to suggest that those countries need to solve their own problems. The United States has a long history of military, political, and economic involvement in the region, including overthrowing and establishing governments. It continues to provide economic and military support for policies and programs that is has designed and approved. These policies and programs provide enormous profits and cheap products for US citizens and corporations, while exacerbating the very social crises that underlie the out-migration. Those of us in the United States need to seek deeper solutions that go beyond offering humane treatment and social services to these children after they cross the border.

LOSING THEIR PARENTS

Even children who are American citizens are at risk of losing undocumented parents to deportation. Although the Obama administration announced early on that immigration detention and deportation would focus on individuals who had committed crimes or were a threat to national security, deportations increased dramatically under his watch, to four hundred thousand a year. Almost all of those deported were, like most undocumented immigrants, members of communities with jobs, homes, and families. Their lives intersected every day with those of US citizens. In many cases, they were the parents of US citizens.

As with the number of children crossing the border, the number of children losing their parents to deportation has also been rising. From 1998 to 2007, some 8 percent of those removed from the country were parents of US citizens; in 2011, it was 22 percent of a much larger number of removals. During the first half of 2011, over forty-six thousand parents of US-citizen children were deported. The Applied Research Center estimated that as of 2011, there were over five thousand US citizen children living in foster care because their parents were either in immigration detention or had been deported. Some were put up for adoption as incarcerated or deported parents lacked the resources to enforce their parental rights.
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The term “anchor baby” is frequently thrown around in these discussions, with the implication that giving birth to a child in the United States gives the parent some special rights or privileges. It doesn’t. The child, as a US citizen, has the right to all of the benefits that citizenship offers, including a US passport, freedom to remain in or leave the country, and access to work and social services. The undocumented status of the parent, however, is not ameliorated in any way by the existence of the so-called anchor baby. Parents of citizens can be, and are, deported on a regular basis.

The Obama administration’s 2010 and 2011 Morton Memos on prosecutorial discretion, issued by ICE director John Morton to revise agency policy, acknowledged the hardships caused for children when their parents were detained or deported. The first memo suggested that ICE “should not expend detention resources on aliens who are known to be suffering from serious physical or mental illness, or who are disabled, elderly, pregnant, or nursing, o
r demonstrate that they are primary caretakers of children
or an infirm person.” Unfortunately, the new guidelines did not significantly reduce the numbers of parents separated from their children by ICE.
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The 2011 memo went somewhat further, specifically mentioning that one factor that ICE should take into consideration when deciding whether to prosecute a case was the immigrant’s relationship to US citizens. Still, this was one on a list of suggestions rather than a specific mandate.
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Consider the case of Sandra Molina, an undocumented immigrant from Guatemala. She married an immigrant with legal status, who became a citizen in 2009. They had two children, both US citizens. When her husband became a citizen, they decided that Sandra should return to Guatemala so that he could sponsor her to come legally to the United States. Even in the case of the spouse of a US citizen, however, there is no guarantee that legal permission will be granted. In Sandra’s case, it was denied, even though she had no criminal record or other apparent obstacle to legal entry.

She then attempted to cross the border illegally to reunite with her family, but was caught and returned to Guatemala. Now, legal entry became even more complicated. Reentry after deportation is a felony, punishable with jail time, and one of the Obama administration’s priorities for deportation is those who reentered after being deported. In Mexico, Sandra “says she feels so hopeless about her life that she has thought about ending it. ‘I just want to be forgiven,’ she said, sobbing on the phone. ‘I feel I am about to go crazy, I miss my children so much. They are all I have. I cannot go on without them.’ Back home in Stamford, her children are suffering too. The youngest cried constantly, the eldest became angry and withdrawn. Though their plight is documented in thick files that include testimony from psychologists and counselors about their need for their mother, appeals for humanitarian relief were denied.”
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The case of an undocumented Ecuadorian immigrant who was detained with her fifteen-year-old son illustrates the contradictions as different government agencies pursue conflicting goals. The mother had lived in the United States for four years and had a one-year-old daughter born here. She sent for her fifteen-year-old son, who was detained crossing the border and placed in DUCS custody. Following DUCS policy, she was called and her son was released to her. “I received a call to come pick him up,” she explained from her prison cell, “so I left my daughter with my friend who lived next door, and took a bus to Arizona to get him. I picked up my son and we went straight to the bus. At the bus station, I was approached by some officers and they detained both of us. I have been here for nine months without seeing my baby girl. She was only one year old when I left her with my friend. I don’t know what is happening with her.”
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When parents disappear into the immigration system like this, they run the risk of losing custody of their children.
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Courts may terminate parental rights after parents are deported or detained. In the criminal justice system, prisoners have guaranteed certain rights and access to services. Immigrant detainees, though, fall into a sort of constitutional and legal netherworld. The circumstances of their detention often make it impossible for them to comply with requirements for retaining custody of their children. Relatives who could care for a child in the parent’s absence may be afraid to identify themselves because they too are undocumented. From the perspective of child welfare services, the system of detention and deportation can create insuperable obstacles to the goal of enabling parents to care for their children.
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“In the child welfare system, immigrant parents are at risk of losing their children without the same constitutional due process protections in place that other parents receive.”
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An unknown number of those children are being put up for adoption against the wishes of their parents, who, once deported, are often helpless to fight when a US judge decides that their children are better off here.

In a 2007 case, an undocumented Guatemalan woman was arrested during a raid at the chicken plant where she worked in Missouri. While she was in detention, her six-month-old son was taken from her custody and put up for adoption. The judge ruled that “smuggling herself into a country illegally and committing crimes in this country is not a lifestyle that can provide any stability for a child.” Her parental rights were terminated and the infant was adopted. Although the Missouri Supreme Court overturned the judge’s decision in 2011, that ruling was in turn overturned by a judge who ruled that she had “effectively abandoned her son.” The mother was deported, leaving the child with his adoptive parents in Missouri.
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LEARNING TO BE UNDOCUMENTED

Other undocumented children, some of the most politically active today, were brought or sent here by their parents at a young age. The United States is now raising a generation of children without documents, and the legal proposals to address their status, ranging from in-state tuition to the DREAM (Development, Relief, and Education for Alien Minors) Act, reveal the discomfort that their existence poses. “They are Americans in their heart, in their minds, in every single way but one: on paper,” President Obama declared.
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As one undocumented student put it, “I breathe, eat, and live in America and have done so since I can remember.”
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The president’s remarks remind us that a person’s birthplace is an almost entirely arbitrary fact. Should it really be used to determine his or her subsequent life chances?

Children, of course, don’t usually know much about status and immigration law unless their parents choose to explain the status issue to them. Generally their main interaction with state authority is through school, and since 1982, schools have been required to treat all children equally, regardless of status. In that year, the US Supreme Court’s
Plyler v. Doe
decision struck down a Texas law that allowed local school districts to deny entry to children who lacked legal documentation and withheld state funds for their education if local districts did choose to enroll them. The court ruled that to deny children access to education not only violated the Equal Protection Clause of the Fourteenth Amendment, but would impose an unwarranted, lifetime hardship on them and bring no benefit to the state.
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Thus, children may never confront the issue of documentation in their daily lives.

Most citizens become aware of the importance of identification documents when they are teenagers and apply for a driver’s license or for their first formal job. For the first time, they may be required to dig up a birth certificate or a Social Security card to prove their citizenship status. Jose Antonio Vargas, an undocumented immigrant from the Philippines, described the shock that many undocumented youth experience when they first become aware that there is something about their legal status that divides them from their peers. Vargas joined and propelled a growing movement among undocumented youth to break the silence, come out of the shadows, and openly challenge the system that excludes them.

In the summer of 2011, Vargas published a daring exposé of his own life story in the
New York Times
Magazine
. He began by recounting how his mother sent him, at age twelve, to live with his grandparents in Mountain View, California, and how he struggled to learn English and excel at school.

The Philippines offers a particularly convoluted case of the meaning of immigration, citizenship, and documents, since it was a US colony for the first half of the twentieth century and Filipinos were unilaterally deemed to be US nationals who could travel freely to the mainland until 1934. (The category “national” was created early in the twentieth century to apply to people who lived in newly acquired US territories in the Caribbean and the Pacific. They were essentially stateless people, with no country and no citizenship.) Tens of thousands of Filipinos were recruited legally to the United States through nursing and military exchange programs after that, while the United States maintained an enormous military presence there. Vargas’s migration was a product of this history, as well as the twists and turns of US immigration law.

In the Philippines, Vargas’s great aunt married a Filipino American who was serving in the US military, starting a family chain of migration. Using the family preferences built into the law, she petitioned for her brother and his wife (Vargas’s grandparents), who entered the country on immigrant visas in 1984 and later became naturalized citizens. The grandfather then petitioned for his two children. Citizens, however, can only sponsor children who are unmarried. Vargas’s mother was single; she and her husband had separated almost a decade earlier. But fearing that immigration would consider the petition fraudulent based on her previous marriage, the grandfather decided to withdraw it.