IMMIGRATION LAW TEACHERS WORKSHOP 2010
Kevin R. Johnson May 25, 2010
DRAFT
My remarks focus on the human consequences of the enforcement of the U.S. immigration laws. In discussing the need for ever-greater immigration enforcement, these consequences often are ignored. Specifically, I want to highlight: (1) deaths on the U.S./Mexico border resulting from increased border enforcement; (2) human trafficking resulting from increased border enforcement; and (3) other significant impacts on immigrant and Latino communities resulting from increased border enforcement.
We all are aware that increased enforcement is part of virtually any proposed “comprehensive immigration reform” proposal, running the gamut from biometric employment cards to the extension of the U.S./Mexico border fence. Indeed, enhanced enforcement measures may be the most politically popular component of any reform proposal. Along these lines, some have claimed that the nation must prove that immigration enforcement is effective before any other immigration reforms, such as legalization or guest worker programs, are even considered. Along these lines, I suspect that we have seen an increase in enforcement activity both in the later years of the Bush administration and the early years of the Obama administration to make other components of reform more palatable.
In evaluating future enforcement measures, we should consider the effectiveness of the increased enforcement measures over the past 15+ years. The criminalization of the U.S. immigration laws, which we will hear about later, combined with increased--indeed record--removals of “criminal aliens,” has been much discussed in immigration law scholarship. The focus on “criminal aliens” has resulted in record levels of removals.
2009 387,790 (11-12 million undocumented)
2001 189,026
1990 30,039 5-6 million undocumented
Thus, the United States has increased the number of removals by 10 times in less than 20 years; over the same time period, the undocumented population has roughly doubled. Keep in mind that deportations deeply affect families and children, including many U.S. citizen children who may be effectively deported when one or both parents are. Judge Pregerson of the Ninth Circuit has often emphasized this effect of removals and has called for enactment of a law referred to tongue-in-cheek as “The No Child Left Behind Act.”
To this point, many knowledgeable observers have viewed the immigration policies of the Obama administration as leaning toward the enforcement side of the spectrum. While increasing enforcement, the administration has dangled the promise of comprehensive immigration reform.
The Arizona law is the latest example of enforcement oriented approaches adopted by a state. Other states have their own immigration and immigrant regulation measures.
With all the fervor for enforcement, we should consider the impacts of those efforts to this point. Employer sanctions created by the Immigration Reform and Control Act of 1986, have not been successful at deterring the employment of undocumented labor. Along employment enforcement lines, years of efforts to create a computer system that accurately verifies the employment eligibility of persons have yet to yield one with an error rate sufficiently low to survive legal challenge.
Despite record setting removals, an estimated 12 million undocumented immigrants today live in the United States. Even with ever-increasing interior enforcement and skyrocketing border enforcement budgets, the undocumented population has more than doubled. Enforcement measures, including workplace raids and 300,000+ removals a year, although causing much human suffering and misery, have put nothing more than a dent in the size of the undocumented population. Indeed, many of the removals have been of lawful permanent residents with criminal convictions.
Border fences, record numbers of deportations year after year, dramatically increased use of detention, the criminalization, along with heightened prosecution, of immigration offenses, and vastly expanded enforcement efforts, have failed to meaningfully reduce undocumented immigration. We all know that the employment of undocumented workers is commonplace. Day laborer pick up points can be found on streets throughout the United States. Nor, as high level governmental officials have admitted, does the United States have the resources and commitment necessary to engage in a massive campaign, which would cost billions of dollars, to remove 12 million undocumented immigrants from the country (and millions of workers from the U.S. economy).
With the limited time available this morning, I want to highlight some of the human costs of enforcement, which we all know about but which often are little discussed in the public debate about immigration.
DEATHS ON THE BORDER
Put bluntly, more border enforcement has meant more deaths of migrants along the U.S./Mexico border. A rough low-end estimate is that we are losing one person a day. Border enforcement operations, such as Operation Gatekeeper and Operation Hold the Line, have redirected migrants from crossing in urban areas, such as San Diego and El Paso, to more isolated and dangerous locations, including the deserts of southern Arizona. Migrants are dying. At the same time, the undocumented population in the United States has increased. When discussing border enforcement, we tend not to discuss the rising death toll.
HUMAN TRAFFICKING
As many, including our moderator, have written, the trafficking of human beings across international borders for profit has been on the rise in recent years. More border enforcement has resulted in increased smuggling fees--from a few hundred dollars per crossing in the early 1990s to thousands of dollars today. We also have seen increasing reports of indentured and involuntary servitude as migrants “work off” their smuggling debts.
IMPACTS ON IMMIGRANT AND LATINO COMMUNITIES
The current immigration system has contributed to the creation of dual labor markets with a racial caste quality to them. One job market is comprised of undocumented workers, many of whom are Latina/o, with workers often paid less than the minimum wage and enjoying few health and safety protections. Leticia Saucedo has dubbed this the “brown collar” market. The other labor market is comprised of U.S. citizens and lawful immigrants, with the workers enjoying the full (if not fully enforced) protections of the law. Those in one market are exploited while workers in the other market experience shrinking job opportunities as employers shift jobs from the “legal” (more expensive) to “illegal” (and less expensive) markets.
To many observers, several aspects of the current immigration laws have particularly unfair impacts on the immigrant community. Abuses in immigrant detention often make the news. Deportations of generally law-abiding long-term residents also frequently make the news. The public regularly hears sad stories of undocumented students who face nearly insurmountable barriers to attending colleges and universities. Michael Olivas has written influential scholarship about the legal and political terrain affecting these students.
But the costs are even greater and even more divisive. Racial profiling remains an endemic problem for ordinary immigration enforcement. This practice has a huge impact on U.S. citizens as well as lawful immigrants of Mexican and other ancestries. Concerns with profiling are one reason that the Arizona immigration law struck a raw nerve with Latinos across the United States. In addition, the rise in hate crimes against Latinos and immigrants in recent years correlates closely to the nation’s contentious debate over immigration and immigration reform. You no doubt have heard of the more spectacular cases, like the killings of Latino men in Shenandoah, PA (near Hazleton, PA) and Long Island, NY (site of a local immigration controversy). FBI statistics indicate that hate crimes directed at Latina/os rose 40 percent from 2003 to 2007.
In conclusion, border enforcement has human consequences. Increased enforcement increases those consequences. I do not advocate the elimination of all immigration and border enforcement. However, any increased enforcement should be carefully scrutinized to ensure that its costs – including the human costs -- are outweighed by the benefits. It is difficult to justify the human costs even if the benefits outweigh the costs. But it is next to impossible to justify the human consequences if there is no enforcement benefit.
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