The story of
the virtual
enslavement
of dozens of deaf
Mexicans in two
houses in Queens
made national and
international headline
icans were forced to
the New York City s
and sell at least $100
dollar trinkets per day
ishment or even bea
employers. While the
this case was well place
is not a unique one. I
workers are routinel
forms both dramati
though usually invisib
The legal vulnerabi
umented workers deri
Rutgers Law Scho
Linda Bosniak has al
ized as the contradi
American law’s “incl
dency, which provi
Mexican flower vendors demand the right to have licenses and protest police abuse. Although they are undocumented, they are members of the International Ladies Garment Workers’ Union (ILGWU).
es. The Mex- mented immigrants with certain barred anyone
rudge through legal rights, such as protection being in the Ui
ubway system under labor laws, and its “exclu- for more than
worth of one- sionary” tendency, which exposes entry for ten
y, or face pun- undocumented immigrants to de- debate, Congre
tings by their portation if they come forth and promise measu
outrage over claim those rights. Despite a hand- temporarily ext
ced, their story ful of compromise measures passed 1998 section
JUndocumented by the U.S. Congress over the past gration and Na
y exploited in six months that restore some rights allows undocu
c and banal, and privileges to undocumented as to pay a $1,00(
ily. well as legal immigrants, a series of the United Sta
lity of undoc- provisions passed by Congress over citizen or permit
ves from what the past two years have systemati- petitions to a
ol Professor cally strengthened the exclusionary Congress also
ptly character- tendency in ways that diminish the November gn
action between minimal legal protections afforded undocumented
usionary” ten- to undocumented immigrants and Cubans who
ides undocu- the rights of legal immigrants and United States
U.S. citizens as well. 1995, while off
professor of One of the measures that arrangement tc
?ge. Congress backpedaled on was a Salvadorans wl
proposal to signifi-
cantly raise the
penalties for re-
maining in the
United States ille-
gally. This pro-
posal would have
who is deported after
nited States illegally
one year from re-
years. After heated
ss approved a com-
re last November to
end until January 14,
245(i) of the Immi-
tionality Act, which
mented immigrants
0 fine and remain in
tes while their U.S.
inent-resident spouse
adjust their status.
approved a deal in
wanting amnesty to
Nicaraguans and
have been in the
since December 1,
ering a less generous
o Guatemalans and
ho have been in the
NACIA REPORT ON THE AMERICAS
Robert Smith is assistant sociology at Barnard Colle
6UPDATE / IMMIGRATION
country since 1990 or 1991. Rather
than showing “extreme and excep-
tional hardship” to avoid deporta-
tion, as the 1996 Illegal Immi-
gration Reform and Immigrant
Responsibility Act (IIRAIRA) re-
quires, they may apply for a suspen-
sion of deportation under the pre-
1996 IIRAIRA rules, which only
requires that they show “hardship.”
And back in August, Congress
voted to restore benefits to legal
immigrants and refugees that had
been stripped away under the
IIRAIRA, including access to
Supplemental Security Income for
legal immigrants and Medicaid for
refugees.
These measures are consistent
with the inclusionary side of U.S.
immigration history, and move away
from the harsh, anti-immigrant poli-
cies of the previous Congress. Yet
many of those policies remain in-
tact, buttressing the exclusionary
tendency in American law through
provisions that are likely to have
unintended consequences. Over the
past two years, for example,
Congress increased the number of
programs and the circumstances
under which local or state authori-
ties must report undocumented
aliens who become known to them.
Perhaps more importantly, it nulli-
fied local and state policies that pro-
hibit the sharing of information with
the Immigration and Naturalization
Service (INS). This effectively
overturns the so-called municipal
“sanctuary” laws in New York,
Jersey City, Chicago, Oakland and
other cities, which explicitly for-
bade municipal employees such as
police and teachers from sharing
information regarding a person’s
immigration status, except in the
context of a criminal investigation,
or as required in connection with
certain federal programs.
Congress has also made it illegal
for agencies receiving Legal
Services Corporation funds to use
private money to represent undocu-
mented workers (the Reagan
Administration already banned this
use of federal funds for such pur-
poses in 1980), or to engage in
class-action suits for citizens or
immigrants. It also prohibited the
use of state money for such pur-
poses. The Legal Services Corpor-
ation, a government-funded agency
that provides funding for groups
offering legal services to the poor, is
the largest provider of legal services
to poor people, citizens and immi-
grants alike–one of the few that
uses public money to do so. Much
of the pressure to restrict the Legal
Services Corporation’s activities
came from politicians beholden to
agri-business, which was often
vexed by Legal Services Corpora-
tion’s attempts to make them pay
legal wages, obey labor laws, or
provide toilets and drinking water
for their workers. Agro-industries
have been legally
required to provide
such services since
the early 1990s, after Undocu
resisting such mea- immiJ sures for decades. By
denying legal repre- often d.
sentation to undocu- the mented workers, mak-
ing them effectively remec
defenseless, the posi-
tion of citizens and le- which 1
gal immigrants work- entitled ing in these industries
is also undermined. of dep
Finally, section 505 and lac
of the IIRAIRA makes
undocumented immi- that At grants ineligible for
residency-based in- law will
state tuition rates that th4
would be denied to a
U.S. citizen who is
not a state resident.
While regulations to enforce this
that they have lived and worked
within a state long enough to estab-
lish residency, unless they also end
differential tuition rates for all U.S.
citizens, regardless of their resi-
dency status.
Taken together, these moves
attempt to discourage undocu-
mented immigration by raising the
costs of getting caught and making
life here more difficult. They seem
highly unlikely to achieve this goal,
given the combination of popula-
tion and labor-market pressures in
Mexico, Central America, the Carib-
bean and other sending countries,
and the broad use and acceptance of
immigrant labor in many sectors of
the U.S. economy. Ironically, these
measures not only make undocu-
mented workers more vulnerable in
ways that may affect public health,
safety and welfare, but also increase
the demand for them.
ven before Con-
Jmented gress passed
L these recent in-
grants itiatives, the contra-
dictory tendencies in o not use American law created
legal
dies to
they are
for fear
ortation
Sof faith
merican
I protect
em.
vulnerable workers.
While engaged in
fieldwork in the north-
east, I met un-
documented Guate-
malan farm workers
who often hid in corn-
fields all night be-
cause their alcoholic
crew chief shot at
them. My offers to
translate to a state
trooper who came into
the camp investigat-
ing another matter so
that he would arrest
the crew chief were
refused by the workers. They were
provision have not yet been written, afraid that the trooper would ask for
its apparent intent is to make it ille- documents and call the INS. They
gal for colleges and universities to also feared that if the crew chief
grant in-state tuition to undocu- were arrested, they would never be
mented immigrants who can show paid the money he owed them.
Vol XXXI, No 4 JAN/FEB 1998 7UPDATE / IMMIGRATION
In another case, a young Mexican
woman who was a live-in domestic
worker for a wealthy family in New
Jersey was simply not being paid
for her labor. She could not leave
the family’s home because they
would not allow her to use the tele-
phone and she did not know where
she was. She was threatened and
lived in fear for her safety. In a sim-
ilar case, another domestic worker
whose documents were “held” by
her employer-ostensibly so they
would not get lost, but really so she
could not leave-was paid only
$200 for six months of work. Day
laborers hired by con-
struction contractors
are promised they
will be paid next
week, but many never
receive their wages.
When one crew quits,
the contractor hires
another and does not
pay them either.
In all these cases,
undocumented work-
ers refused to use the
legal remedies to
which they were enti-
tled for fear of depor-
tation and a lack of
faith that American
when it targets an industry that is
known to widely use undocumented
workers. With about 6.5 million
employers in the United States, the
Department inspects about 30,000
to 40,000 per year-meaning that
employers face little real chance of
being penalized for such violations.
The exclusionary measures
passed by Congress embrace two
disturbing aspects of the current
debate, which are at odds with tradi-
tionally tolerant American views on
immigration. First, “illegal aliens”
are increasingly blamed for many of
our most pressing social problems–
Making
undocumented
workers more
defenseless
makes them
more desirable
to those who
seek to exploit
them.
law would protect
them. “If the person is
illegal,” one employer
told me, “you do not
have to pay them.” This is untrue–
the U.S. Constitution and most
labor laws protect all “persons,” not
just all “citizens.” But in practice,
this unscrupulous employer was
correct. The fact is that most un-
documented workers never recover
unpaid wages, and their employers
usually suffer no consequences.
Indeed, after not paying her employ-
ees, one deadbeat boss re-opened
her factory on another floor of the
same building. The Department of
Labor carries out wage, hour and
work authorization inspections of
only about 5% of employers, even
from unemployment,
to crime, to the ero-
sion of a common
moral and cultural
fabric in the United
States. Many Am-
ericans have come to
believe that these
problems can be
solved, or at least
greatly alleviated, by
stopping undocu-
mented immigration.
But accepting this
argument diverts our
attention from search-
ing for other causes of
the social ills that
bedevil U.S. society.
While the presence of
undocumented immi-
grants may adversely
affect the wages and working condi-
tions of some U.S. workers, for
example, the real culprit lies in the
perverse structure of our economy.
The market-based economy pro-
duces much wealth, but it also cre-
ates huge inequalities. Corporate
executives make hundreds or thou-
sands of times more than their
workers, and corporations are
rewarded with surging stock prices
and huge profits for “downsizing”
their labor force.
Second, many Americans believe
that our borders are “out of control”
and that the United States is being
overrun by undocumented immi-
grants. In fact, only about 100,000
to 300,000 undocumented immi-
grants settle in the United States
each year, and there are only three
to four million undocumented
immigrants within a U.S. popula-
tion of more than 260 million.
Approximately half of these do not
even cross the border, but rather
overstay their visas. Were our bor-
ders out of control in the way some
argue, the number of undocumented
immigrants would be much higher.
Most potential immigrants are
deterred by existing controls that
deny them a visa in their home
countries.
All this is not to deny that undoc-
umented immigrants put heavier
burdens on some localities, such as
Los Angeles and New York, partic-
ularly in demands for public ser-
vices such as schools. But these bur-
dens must be evaluated in context.
One recent study claimed that Los
Angeles County receives far less tax
revenue from undocumented immi-
grants than it pays out for services
to them. Yet the fact is that all
Angelinos-citizens and legal
immigrants included–receive simi-
larly more in benefits than they pay
in taxes to the county because most
taxes go to the state and federal
government, while many services
are provided by local governments.
This is not an issue of immigration
status, but of the structure of the tax
system itself.
The first step in remedying the
restrictive measures against
undocumented immigrants is
to remove the restrictions on the
ability of the Legal Services Cor-
poration to defend undocumented
workers and other immigrants and
to engage in class-action suits.
Prohibiting class-action suits hurts
poor citizens as well as immigrants.
It can also be seen as a form of labor
control directed at the most vulner-
able workers, since it effectively
8NMILA REPORT ON THE AMERICAS 8 NACIA REPORT ON THE AMERICASUPDATE / IMMIGRATION
deprives them of the
ability to act as a
group in court and
forces them to negoti-
ate one-on-one, as
legal “equals,” with
the huge corporations
that employ them. To
the objection that pub-
lic money should not
be spent defending
“lawbreakers”-i.e.
the undocumented–
one answer is that
allowing abuse of their
rights adversely affects
those of their U.S. citi-
zen co-workers by
weakening their abil-
ity to make demands
as a group or a class.
The only time most
undocumented work-
A border patrol agent keeps watch over undocumented caught trying to cross the border in Nogales, Arizona.
ers break the law, moreover, is in
entering the country illegally. Once
here, they work hard and are
respectful of the law. And they con-
tinue to come because U.S. citizens
continue to employ them for jobs
that most Americans will not take.
Making undocumented workers
more defenseless makes them more
desirable as workers to those who
seek to exploit them.
Second, the government should
clearly separate the public safety
activities of the police, public health
officials and other government
agencies from the activities of the
INS. The Attorney General has said
that programs “necessary for the
protection of life and safety” will
not be required to verify the legal
status of those who seek them out.
This is encouraging, but more is
needed. The government must
establish a strict policy that those en-
gaged in protecting or assisting the
public cannot share information
about the immigration status of
those who seek their help. The new
policy increases the risk of im-
migrants who are victimized by
crime but are afraid to go the police,
or ill with disease but afraid to go to
the hospital. This was the case in the
death of a child of undocumented
immigrants in California who was
not brought to the hospital for fear of
INS exposure after the passage of
Proposition 187. But separating
police and immigration functions
alone is not enough. After all, the
exploitation of the deaf Mexicans
occurred in New York City, which
has such a policy. What is also
required is a broad public education
campaign about immigrant rights
that promotes stronger relations
between immigrants and public offi-
cials, and that guarantees that police
will not share information with the
INS except in the context of crimi-
nal investigations.
Third, section 505 of the IIRAIRA
should be amended. Charging in-
state tuition to undocumented
immigrants, who must demonstrate
their residency and work history in
a particular city or state in order to
be eligible for lower tuition rates, is
a fair policy because these immi-
grants work and pay the same local
taxes as citizens and legal residents.
Self-interest, at least, compels us to
immigrants
encourage young un- documented immi-
grants to get a post-
secondary education.
More educated people
make more money,
pay more in taxes, and
are more able to pro-
vide well for their chil-
dren. The effects of
section 505 could be
quite far reaching. By
effectively denying
these low-income im-
migrants access to
higher education that
they pay for them-
selves, Congress se-
verely and needlessly
limits the life chances
of their U.S.-citizen
children. At the City
University of New
York, about half of all students are
immigrants, and officials informally
estimate that about one of every ten
students is undocumented. As a for-
mer professor at City College, I see
a cruel irony in raising the barriers
to higher education for such stu-
dents, who demonstrate precisely
those virtues invoked by the phrase
“immigrant responsibility”: they are
self-reliant, they work hard, and
they attend college without public
loans or grants of any kind.
Finally, the federal government
should direct increased federal
funds towards areas of unusually
high immigration for programs that
facilitate settlement and successful
incorporation into social and eco-
nomic life. Our recent history sug-
gests that the groups that have been
most welcomed, like the Cubans,
have done well, while those that
have not, like the Haitians, have
fared very poorly. The conse-
quences of how immigrants are
received, moreover, can be cumula-
tive. We need an immigrant policy
that promotes successful integra-
tion, not just an immigration policy
that regulates who gets in.
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