Undocumented : How Immigration Became Illegal (9780807001684) (9 page)

THE 1965 IMMIGRATION LAW AND THE INVENTION OF ILLEGALITY

During the two major waves of deportation/repatriation of Mexicans before 1965—during the Depression of the 1930s and in the mid-1950s—undocumentedness as we know it today was not the rationale used to justify deportation. As entry to the country was restricted on the grounds of indigence or the probability of becoming a public charge, the vague “likely to become a public charge” accusation was harnessed to justify the deportations of Mexicans during the Depression.
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During the 1950s, many people mounted arguments against both illegal immigrants—then accorded the insulting moniker wetback—and the Bracero Program, regardless of the fact that one was technically legal and the other illegal. Even as Operation Wetback targeted the supposedly illegal, the INS offered multiple methods for legalization. Mexican American organizations like LULAC and the American GI Forum campaigned equally against both the Bracero Program and the “wetback tide,” both of which they believed to be harmful to the efforts of Mexican Americans to assimilate into white US society.
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The Immigration and Nationality Act of 1965 for the first time ever placed numerical limits on Mexican migration, just as the Bracero Program was being shut down. Suddenly, legal migration for Mexicans, after so many years of being encouraged, was closed off. But the demand for Mexican labor, and Mexican workers’ need for jobs, continued. A smaller guest-worker program, the H-2 program, remained and was expanded over the following decades, but came nowhere near to filling the demand.

The abolition of the Bracero Program was supposed to create better, more equal treatment for Mexicans in the United States, in keeping with the civil rights movements of the era, including a growing farm-worker movement. It failed miserably. Unlike the European countries, which legalized their guest workers when they ended similar programs around the same time, the United States simply illegalized its Mexican workers. “In essence, in 1965 the United States shifted from a de jure guestworker program based on the circulation of bracero migrants to a de facto program based on the circulation of undocumented migrants.”
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The visa cap for Mexicans was far below the number who had been migrating as braceros in previous years. Thus, the law “intensified the institutional framework that further enabled the codification of Mexicans as ‘illegals.’” And the newly created problem of illegality became the rationale for a huge increase in apprehensions and deportations.
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The number of Mexican migrants who lacked the green card and were therefore deportable rose from 88,823 in 1961 to over a million a year by the mid-1970s.
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Still, writes Oscar Martínez, “because of leniency on the part of US authorities at the time, undocumented commuters found it rather easy to cross the border.”
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As the Mexican government pointed out, many of the undocumented were part of a “seasonal, temporary, and circular” migration.
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With the “relatively open” border between 1965 and 1985, “85 percent of undocumented entries were offset by departures, yielding a relatively modest net increment to the US population.”
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Still, Douglas Massey wrote that “never before have so many immigrants been placed in such a vulnerable position and subject to such high levels of official exclusion and discrimination.”
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The US government acknowledged the contradictions of this new situation in 1986, when the Immigration Reform and Control Act (IRCA) allowed Mexicans in the country illegally to regularize their status. The concept was not new; earlier European immigrants became exempt from deportation and were allowed to become citizens after they had established roots in the country. Some 2.3 million Mexican immigrants (and 700,000 non-Mexicans) were able to become legal under the IRCA’s provisions.
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To do so, though, they needed documents: documents proving their continuous presence in the country since 1982, or documents demonstrating that they had been involved in seasonal agricultural work. A small industry grew manufacturing false documents. The ever-fuzzy line between legal and illegal remained, as many were able to legalize illegally with fraudulent documents.

When the IRCA was passed, the Department of Agriculture estimated that some 350,000 undocumented migrants were working in agriculture and would be eligible for Seasonal Agricultural Worker (SAW) status. However, some 1.3 million applied—almost as many as applied for status under the four-years-of-continuous-residence provisions. In California, with an estimated two hundred thousand undocumented agricultural workers, some seven hundred thousand applied. By early 1992, the INS had approved 88 percent of these applications, or over a million nationwide.
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But independent studies carried out in Mexico, among migrants who had applied for the SAW provision, showed that only 60–70 percent of those who applied were actually eligible.
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Thus, the IRCA contributed to what could perhaps be called illegal legalizations—people using false documents attesting to their status as agricultural workers to apply for, and obtain, legal status in the United States—and what Philip Martin called “documented illegal aliens.” In an article in the
New York Times
, Robert Suro claimed there had been “fraud on a huge scale.”
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Yet fraud or no fraud, people became officially legal. Moreover, the whole process may have actually spurred further undocumented immigration by “spreading work authorization documents and knowledge about them to very poor and unsophisticated rural Mexicans and Central Americans, encouraging first-time entrants from these areas.”
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The 1986 law also for the first time made it illegal to employ a worker without proper documents. Employer sanctions created an enormous and costly illegal infrastructure that migrants had to navigate to obtain false documents in order to work, but did little to reduce the numbers of undocumented workers. Moreover, the law left employers virtually immune to prosecution, and with even greater ability to exploit their now more legally vulnerable workers.
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The 1986 IRCA was ostensibly aimed at ending illegality by legalizing many resident Mexicans and discouraging new arrivals through increased border controls and employer sanctions that criminalized work. However, it had exactly the opposite effect. Mexicans who obtained legal status under the amnesty were able to leave the more marginalized sectors of the labor market. But these traditional sectors, like agriculture, plus newly emerging sectors (discussed in
Chapters 5
and
6
) only increased their demand for workers. Some developed new strategies of subcontracting to evade the law. Meanwhile undocumented migrants, once in the country, began to extend their stays and send for their families, since the long-standing circular migration patterns were disrupted by the border militarization.
⁷⁸

Until the 1990s, what migration scholars call the “traditional” or central-west region of Mexico, including Jalisco, had been the source of the majority of migrants.
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Since the 1990s, the proportion from that region has shrunk considerably and that from the south-southeast region has increased. Migrants from the traditional sending regions were primarily Spanish-speaking
mestizos
.
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Since the 1980s, though, a series of blows, including the 1982 peso crisis, the debt crisis that followed it, and neoliberal restructuring in the 1990s and components of the North American Free Trade Agreement in 1994, have severely affected indigenous communities in southern Mexico. Over a million families lost their land as a result of these changes. The result was that new areas started their own massive out-migration to the North, greatly diversifying the Mexican population in the United States.
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CASE STUDY: THE HERNáNDEZ CRUZ FAMILY

One family’s story can illustrate the various and contradictory ways that people become illegal in the contemporary United States. Consider the case of the Hernández Cruz family of Irapuato, Mexico. The father, Juan Miguel Hernández Pérez, began the family’s migration tradition in the middle of the century, when he was recruited to work in the Bracero Program. But if the program created a legal means to initiate a migrant stream from 1942 to 1964, the termination of the program did not end either the demand for migrants’ labor nor their desire to work in the United States. When Juan Miguel’s son Juan Hernández Cruz left Irapuato to work in the fields of California in 1981, “he was following his father’s footsteps but, unlike his father, who had been a registered worker under the Bracero Program, Juan would be crossing as an unauthorized migrant.”
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Juan Hernández Cruz’s younger sister, Samantha, followed her brother in 1988, bringing their seriously ill mother with her. First they tried to enter without inspection, crossing “through the back hills of San Ysidro many times without success.” Finally, “the coyote suggested they get false papers instead. . . . By using someone else’s papers, altered to include their photos, they found it easy to cross via the San Ysidro US Port of Entry.”

Meanwhile, Juan was working to regularize his and his sister’s status using the Seasonal Agricultural Worker provision of the 1986 IRCA. “Through friends, they were connected with a farmer in the United States who signed all the documents they required for $800 each. They both received a letter that they had worked on a farm for the required number of years and were both granted permanent residency.”
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Legally, but on the basis of false documents.

The ins and outs of this family’s immigration history are more typical than unusual for Mexican migrants. Their story, and the long history behind it, helps to explain why Mexicans supposedly choose to come to the United States “illegally.” From the railroads, to the various maneuvers in US immigration policy over the past century, to the current neoliberal regime in Mexico, structural factors have created what is today called Mexican illegality.
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GUATEMALAN MAYANS: A HISTORY OF MIGRATION

Central Americans, coming primarily from Honduras, El Salvador, and Guatemala, comprise the second-largest group of undocumented people in the United States. My focus here is on one group of Central Americans, indigenous rural Mayans from Guatemala’s highlands. The history of today’s Mayan migration to the United States began over five hundred years ago.

While we have little evidence about Mayan migration patterns prior to the Spanish conquest in the 1500s, patterns of coerced and voluntary migration clearly characterized the colonial period. The Spanish concentrated the indigenous in new communities to better implement political, religious, and economic control. They imposed various systems of coerced labor that forced people out of their communities for weeks or months at a time to work in colonial mines, plantations, and factories. Mayans also fled from their communities to avoid forced labor demands.
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The coffee plantation system that grew in Guatemala after independence led to new forced labor demands and displacements. Historians have documented the fearful violence involved with dispossessing large numbers of indigenous peoples from their lands and forcing them into labor on the new plantations. They estimate that one in five of the highland Indian population migrated seasonally to work in the coffee fields in the 1880s.
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The numbers increased after the overthrow of the brief revolutionary experiment in the 1950s: Christopher Lutz and George Lovell calculate some two hundred thousand Mayan labor migrants a year in the 1950s, three hundred thousand in the 1960s, and five hundred thousand in the 1970s.
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Guatemalan Indian activist Rigoberta Menchu described her initiation into migration to coffee and cotton plantations as a child. Migration to work was simply a fact of life, not to be questioned.