Undocumented : How Immigration Became Illegal (9780807001684) (3 page)

Agriculture continues to employ large numbers of undocumented workers in the twenty-first century, as farmers and their organizations throughout the United States have publicly acknowledged. Larry Wooten, the president of the North Carolina Farm Bureau, explained at an agricultural summit in Atlanta in 2012 that “agricultural employers who advertise jobs—as is required for those who are part of the federal guest worker program—for nearly two months get little to no response. ‘We have no choice,’ Wooten said. ‘We must use immigrants.’”
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Since the 1980s, economic restructuring in the United States has created some huge new demands for extra-legal workers who will contribute to the economy for low wages and few benefits. Many undocumented people today work at jobs that have been in-sourced. While most of us are familiar with outsourcing—when jobs, from manufacturing to call centers, are shifted overseas—in-sourcing is less well known. The phrase can refer to a company’s decision to carry out internally those tasks that were previously contracted out, or it can mean that a company brings back a job that had been outsourced abroad. Here, though, I’m referring to a particular kind of in-sourcing: when a company closes down an operation in order to move it somewhere else inside the United States where it will have access to cheaper (often immigrant) workers, lower taxes, fewer environmental or health and safety regulations, or other financial incentives.

Almost everybody in the United States benefits from that labor in one way or another, because it underlies almost all of the goods and services we use. Whether they work in agriculture or in-sourced industries like meatpacking, or whether they work in landscaping, newspaper delivery, or cleanup after environmental disasters, the invisible labor of undocumented workers sustains the economy. Moreover, the presence of these migrants also serves to create more jobs. By living in the United States, by spending money and consuming goods and services themselves, they sustain the jobs of other workers.

The work that undocumented migrants do is essential to the functioning of the economy and to the comfort of citizens. The system is also, however, fundamentally unjust. By creating a necessarily subordinate workforce without legal status, we maintain a system of legalized inequality. It’s a domestic reproduction of a global system. The border is used to rationalize the system globally; it makes it seem right and natural that exploited workers in one place should produce cheap goods and services for consumers in another place. Illegality replicates the rationale domestically: it makes it seem right and natural that a legally marginalized group of workers should produce cheap goods and services for another group defined as legally superior.

STATUS, RACE, AND THE NEW JIM CROWS

At the same time that these big economic shifts were occurring, other political, social, and cultural changes were happening globally. After World War II, overt racism and white supremacy began to lose ground. Europe slowly and painfully let go of most of its colonies, and the number of independent countries proliferated. Almost all of the new independent countries were run by people of color. In the United States, civil rights movements fought to dismantle legalized discrimination. South Africa became an international pariah and finally ended apartheid.

In an important book published in 2010, though, Michelle Alexander argues that the racial caste system that United States has maintained since the days of slavery did not end with the passage of civil rights legislation in the 1950s and ’60s. Rather, a new system of legalized discrimination developed to replace the old Jim Crow system. The new system, she writes, is mass incarceration. Black people—and, as I argue here, Mexicans and other Latin Americans as well—were systematically criminalized. Although, on the surface, the system is color-blind, in fact, it targets people of color. But it works better in this supposedly postracial age, because it never uses race directly to discriminate. Instead, it criminalizes people of color and then discriminates on the basis of their criminal status.

Most citizens who rail against the undocumented insist that their opposition is based solely on technical, legal grounds: they oppose people who broke the law. But becoming undocumented is a highly racialized crime. Nationality itself has its origins in racial thinking and still bases itself on birth and origin in ways that echo racialism. The categories “Mexican” and “Latino” have been racialized in the United States, and the category of illegality is heavily associated with the category “Mexican,” whether this is understood as a nationality, an ethnicity, or a race. In 2011, 93 percent of federal immigration crimes were committed by noncitizens, and 89.3 percent of them were committed by Hispanics.
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Another way to look at the racialized nature of undocumentedness is to compare the criminalization of immigrants (especially Latino immigrants) in the post–civil rights era with the criminalization of blacks. Alexander argues that laws passed and implemented in the aftermath of the civil rights movement and legislation that accompanied it effectively countered the gains made in the 1950s and ’60s. “We have not ended racial caste in America,” she writes, “we have merely redesigned it.”
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The new system, mass incarceration, consists of “not only . . . the criminal justice system but also . . . the larger web of laws, rules, policies, and customs that control those labeled criminals both in and out of prison.” Once caught in the web, former prisoners are in it forever. They “enter a hidden underworld of legalized discrimination and permanent social exclusion. . . . The current system of control permanently locks a huge percentage of the African American community out of the mainstream society and economy.”
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Alexander focuses not only on incarceration itself, but on what happens after release. “Once [prisoners] are released, they are often denied the right to vote, excluded from juries, and relegated to a racially segregated and subordinated existence. . . . They are legally denied the ability to obtain employment, housing, and public benefits.”
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Possession of a felony conviction, then, replicates the very legal restrictions that used to be enforced by Jim Crow.

In the ideology and culture of exclusion, as well as in the laws and mechanics of its implementation, the arguments Alexander makes about African Americans have a parallel in the situation of immigrants. Like the African Americans that Alexander studies, large portions of the Latin American immigrant population have also been permanently criminalized and legally excluded. As with African Americans, undocumented immigrants are criminalized by a system that is superficially race-blind and defended on that basis.

Just as African Americans have become stigmatized in the post–civil rights era through criminalization, so have immigrants. Before, legal discrimination could be based explicitly on race. When race-based discrimination was outlawed, a new system emerged: turn people of color into criminals. Then you can discriminate against them because of their criminality, rather than because of their race. A new legitimacy for discrimination was thus born.
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Alexander meticulously details the ways in which criminal status follows black people into every area of life. With minor drug charges turned into felonies and defendants urged to plea bargain, huge numbers of black men become permanent “felons”:

Like convicted felons—mostly African Americans—the undocumented live in a strange world of internal exile or civic death. While physically present, they are legally excluded by an official status that has been ascribed to them. They can’t vote, serve on a jury, work, live in public housing, or receive public benefits. These exclusions apply equally to those, mostly blacks, with a criminal record and those, mostly Mexican, who are undocumented. Stigmatization and exclusion create a vicious circle of further stigmatization and exclusion.

“In the era of colorblindness,” Alexander writes, “it is no longer permissible to hate blacks, but we can hate criminals.”
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The same argument could be made for Mexicans and criminalized immigrants. Anti-immigrant blogs, commentaries, and general opinion frequently emphasize the legalistic nature of their anti-immigrant sentiment: “They broke the law!” But it’s a law that, in design and in fact, is aimed at one, racially defined, sector of society.

Another aspect that links the criminalization of blacks and of Hispanics is the enormous rise in detention and what some have termed the “prison-industrial complex.”
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The Supreme Court commented in 2010 on the dramatic changes in federal immigration law over the previous ninety years. “While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation.” As criminal convictions of people of color for minor offenses have risen, so have the consequences of these convictions. Now, even legal permanent residents can be deported for minor convictions, well after the fact.
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PUTTING IT ALL TOGETHER

This new criminalization of African Americans and Latinos relates to their different places in a changing labor market. Alexander points out that earlier racial caste systems (slavery and Jim Crow) served to keep African Americans as an exploitable labor force. Now, the criminalization of African Americans has coincided with their removal from the labor force. With the collapse of the urban manufacturing sector, their labor was no longer necessary. They have become a surplus population, to be warehoused in the prison system.

The criminalization of Mexican immigrants, however, underlies their increasingly important role in the economy. The language and ideology are similar: fear, marginalization, and exclusion are based upon the supposed criminality of the objects of hatred and justified with repeated invocations of the color-blind nature of modern US society. But in the case of immigrants, the criminalization
justifies
their location in the lowest ranks of the labor force.

Like Alexander, Nicholas De Genova argues that changes in the law deliberately criminalized a group that could no longer be legally defined by race. Illegality, he writes, is not “a mere fact of life, the presumably transparent consequence of unauthorized border crossing or some other violation of immigration law.” Instead, he argues, laws themselves were written with the express purpose of creating this new status of illegality, because it served the purpose of keeping workers exploitable.
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At an even deeper level, anti-undocumented sentiment plays into deeply held beliefs and fears about the state, the nation, and sovereignty. The world’s wealthy nations have created islands of prosperity and privilege, and those who live in these islands have an interest in preserving them—and in justifying their own access to them. Illegality is the flip side of inequality. It serves to preserve the privileged spaces for those deemed citizens and justify their privilege by creating a legal apparatus to sustain it. Heightened panic about “illegality” coincides with growing global inequality and the dependence of the privileged on the labor of the excluded.

The idea that countries are such discrete entities is inherently flawed. As every Mexican is aware, the contemporary US-Mexico border is an arbitrary product of the US invasion of Mexico from 1846 to 1848, and the subsequent demand that a huge segment of Mexico’s territory be ceded to the United States. As the descendants of the Mexican population living in what is now the southwestern United States like to remind us, “We didn’t cross the border; the border crossed us.”

Even since the creation of this new border, in the case of the United States, Mexico, and Central America, the histories, economies, politics, and militaries of these countries are so deeply intermeshed that each would be totally different without its relationship with the others. Without Mexican and Central American labor, and the consumer goods and profits that come from that labor, US prosperity would look entirely different. And without US military, political, and economic intervention, Mexico and Central America would be quite different as well. A person might be a citizen of, and live inside the borders of, a single country. But the social and economic systems that structure our lives go well beyond the borders of any country.

Also worth considering, for a moment, is what it means to criminalize movement or presence. While we are accustomed to a global order in which nation-states define their sovereignty in part by their ability to control movement in and out of their territories, we should also be capable of critiquing this equation and imagining different definitions of sovereignty. Is it necessary to rely on a legal order that forces people to remain inside the political unit into which they were born and makes unlawful their presence outside of that political unit? With a bit of critical distance, the notion appears more and more absurd.

OUTLINE OF THE BOOK