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.
