In a November 13 speech to the center for American Progress in Washington, Secretary of Homeland Security Janet Napolitano made clear that President Obama’s administration intends to move forward soon on legislation that would create “an immigration system that works.” The administration, she promised, “will pursue reforms” true to the United States’ identity as “both a nation of immigrants and a nation of laws.” In this way, Napolitano asserted, Congress and the White House would avoid the pitfalls of the “one-sided” reforms of the 1986 Immigration and Reform Control Act. “The enforcement part of the equation was promised,” she said, referring to portrayals of the 1986 legislation by its proponents as acceptably tough on border security, “but it didn’t materialize.”1
Napolitano’s announcement seems contrary to much of the conventional wisdom in Washington, and even that of the White House chief of staff, Rahm Emanuel, who let it be known that immigration reform—what he has called the “third rail” of U.S. politics—would be off the table during Obama’s first four years. According to this view, the administration would likely wait at least until after the midterm elections, if not until a second Obama term, before moving on the matter for fear that the political fallout would hurt the electoral prospects of Democrats.
The administration’s apparent new willingness to take on immigration reform might seem like a ray of light in an increasingly bleak landscape for immigrants, especially of the unauthorized variety. But at a time of deep economic downturn, and with anti-immigrant sentiment strongly in the air, the chances are slim, to say the least, that Congress will pass legislation aimed at easing the repressive laws and exclusion endured by immigrants.
Among the most obvious signs of continuing anti-immigrant sentiment are the so-called Birthers, who regard Obama as an “illegal alien” of sorts, born outside the United States and thus ineligible to stand as president; South Carolina representative Joe Wilson’s shout of “You lie!” in response to Obama’s assertion during his State of the Union address that proposed health reforms would not insure unauthorized immigrants; and the continuing rants about the country’s “broken borders” on right-wing radio and television.
A political environment in no small part constructed by nativists and xenophobes undoubtedly constrains those who advocate “comprehensive immigration reform”—shorthand for a wide variety of often disparate positions that at a minimum endorse regularizing the status of “illegal” immigrants and changing enforcement practices (ranging from the more draconian to the relatively humane). But the hostile, anti-immigrant environment alone does not explain why achieving immigration reform is so difficult. In fact, in a number of ways the biggest obstacles to reform, especially of the progressive variety, are to be found in the political mainstream, in the Democratically controlled Congress, and in the Obama White House itself.
National Journal characterized Obama as the most liberal member of the Senate in 2007, and U.S. Border Control labeled him an “open-border” advocate (receiving a mark of only 8% on the organization’s voting litmus test in 2005–6).2 But such labels are misleading in terms of his actual voting record on immigration and boundary enforcement. According to the restrictionist Federation for American Immigration Reform (FAIR), Obama voted seven times in line with FAIR’s position during the 110th Congress (2007–09), out of a total of 15 such opportunities, while not casting a vote on four of them.
Since assuming the presidency, Obama has offered few specifics on how he views immigration reform. The rather vague vision laid out during his campaign—securing the border, increasing legal migration to unify families and satisfy employers, and providing a path to citizenship for un-authorized migrants in otherwise good standing—and Napolitano’s November speech are as specific as it has gotten.3 But more important than his words, his Senate voting record, and the policies and practices carried out by his administration, show that Obama falls within the broad center of a political spectrum that is remarkably narrow on matters of immigration and boundary enforcement. With few exceptions—Obama not being one of them—both sides of the proverbial aisle now embrace a “security first” position that prioritizes strengthening the enforcement apparatus above all else. In this regard, the similarities of Obama’s policies vis-à-vis those of his Republican predecessor are far more significant than the points of divergence.
The first sign that Obama had failed to break out of this narrow view was his selection of Napolitano to head the Department of Homeland Security in November 2008. As governor of Arizona, Napolitano declared a state of emergency along the state’s boundary with Mexico in 2005, saying that “the federal government has failed to secure our border,” which, she said, threatened the well-being of all Arizonans. The move freed up $1.5 million for Arizona border counties so as to, in Napolitano’s words, “provide our law enforcement community with another valuable tool to fight crime related to illegal immigration.”4 The following year, she deployed the state’s National Guard along the divide in support of the Border Patrol, the growth of which she has long supported.
The second sign was in May, when Obama submitted his first budget proposal as president, maintaining a force of 20,000 Border Patrol agents for fiscal year 2010.5 Few have grasped how conservative—and simultaneously radical—such a proposal is compared with border policy in the recent past. It was not until 1976–77 that the total number of Border Patrol agents surpassed 2,000, more than 50 years after the agency was created. In 2009, the Obama administration championed funding ten times that number as the federal government’s task for a single year. By contrast, Bill Clinton’s first budget proposal (released in early 1993) actually called for a reduction of 93 agents in the Border Patrol.6 Around the same time, the Office of Management and Budget told the Border Patrol it would have to “do more with less” in the future.7
Of course, the Clinton administration ended up bestowing huge amounts of resources on the border-enforcement apparatus after the national political environment changed in the early to mid-1990s. Today, Obama’s very suggestion to preserve such a large number of Border Patrol agents reflects the dramatic growth in the boundary and immigration enforcement apparatus since the early years of the Clinton presidency. Between fiscal year 1994 and the end of fiscal year 2000, for example, the number of Border Patrol agents more than doubled, from 4,200 to 9,212. Since then, the amount has again more than doubled: There were 20,000 agents by the end of fiscal year 2009. Together with new walls, fences, and barricades along the U.S.-Mexico boundary, now totaling more than 600 miles in length, and a more than threefold increase in the number of migrants held in detention since the mid-1990s, the ballooning Border Patrol agency is a manifestation of a new boundary- and immigration-enforcement complex.
More than anything, this institutional monster helps to (mis)shape federal policies and priorities, as well as public and official perceptions of enforcement, “homeland security,” and the law.8 Its growth reflects an ideological hardening and an intensifying preoccupation with unauthorized migrants and boundary enforcement, one that—at least in a sustained manner with widespread popular support—is relatively new. The national platform of the Republican Party, for example, did not refer to immigration enforcement for the first time until 1980, and it was not until four years later that the party affirmed the right of the United States to control its boundaries and voiced concern about unauthorized immigration. In like fashion, the Democratic Party’s national platform did not even mention extralegal immigration until 1996, when it took a similar stand to that of the Republicans. That is not to say that unauthorized immigration had not hitherto been of any concern. What is striking is how relatively shallow and ephemeral that concern has been until not so long ago.
The roots of “security-first” logic, while emanating most recently and memorably from the George W. Bush administration and right-wing pundits, goes back at least to 1978, when the Carter administration established the U.S. Select Commission on Immigration and Refugee Policy (also known as the Hesburgh commission). The commission’s final report, released in 1981, called for a substantial increase in resources for boundary policing and interior enforcement, the passage of legislation making it illegal for employers to hire unauthorized migrants, and the establishment of a program to legalize those residing in the United States. Enhanced boundary enforcement efforts were, according to the commission, a necessary precondition for implementing a legalization program; otherwise it “could serve as an inducement for further illegal immigration.”9
This thinking has become commonsensical and now reigns supreme in Washington. At an April press conference, for example, Obama contended that political pragmatism necessitates prioritizing enforcement. “If the American people don’t feel like you can secure the borders, then it’s hard to strike a deal that would get people out of the shadows and on a pathway to citizenship who are already here,” he stated, “because the attitude of the average American is going to be, ‘Well, you’re just going to have hundreds of thousands of more coming in each year.’ ”10
Whether Obama was simply echoing what he perceives as “the attitude of the average American” or actually believes in the position is not clear. What is clear is that his administration’s immigration and border policies have thus far differed little in many key ways from those of his infamous Republican predecessor—notwithstanding Napolitano’s claim in an August speech in El Paso that the administration’s “overall approach” is “very, very different” from what it inherited.11 By the time of that speech, the Immigration and Customs Enforcement (ICE) agency had under her leadership arrested more than 181,000 “illegal nationals”—6% more than the same period two years earlier—and had “removed” (deported) almost 215,000 unauthorized migrants, a 25% increase, as she proudly reported.
The increase has taken place despite the administration’s having put an end to the high-profile workplace raids that the Department of Homeland Security conducted under Bush. Thus the changes put into place under Obama involve tactics, not strategy. Saving itself from embarrassing images and an accompanying outcry from civil libertarians and immigrant advocates that would belie its “kinder, gentler” image, the Obama administration has opted instead for quietly forcing employers to fire unauthorized immigrants.
In September, for instance, the American Apparel company in Los Angeles was forced by the Department of Homeland Security to fire about 1,800 employees—about a quarter of its workforce—after federal authorities found problems with their identity documents.12 This incident of quiet violence dwarfs the size of any of the raids for which the Bush administration was so heavily criticized, like the one that took place at the kosher meatpacking plant in Postville, Iowa, in May 2008 (389 arrests), or in August that same year at an electrical-equipment factory in Laurel, Mississippi, which was the largest workplace raid in U.S. history (595 arrests).
But violent raids have not been stopped altogether, since the Obama administration promised to focus on finding and apprehending “criminal aliens,” an ever-inclusive category given that many former misdemeanors—shoplifting that results in a one-year suspended sentence, for example—have become aggravated felonies.13 The focus on so-called criminal aliens involves, among other things, raids on private homes, along with the abuses and “collateral damage” that accompany them. According to a study by the Immigration Justice Law Clinic at the Benjamin N. Cardozo Law School, hundreds of such raids in New York and New Jersey during the Bush administration’s final two years entailed widespread misconduct. The wrongdoing included entering homes without legal authority; arresting innocent, non-targeted individuals in their bedrooms; searching homes without a warrant or consent; and seizing individuals on the basis of ethno-racial appearance or limited English proficiency.
Legal residents and citizens were sometimes forcibly detained as the authorities searched their homes for incriminating evidence. Although the stated purpose of the raids was to arrest and deport high-priority, dangerous persons who represent threats to society, two thirds of those arrested did not fit this category. Instead, they had merely violated civil immigration law and had the misfortune to be in the vicinity of the raid.14 While the Obama administration has voiced its commitment to institute accountability mechanisms to reduce the abuses that took place during the Bush years, such efforts can have only a limited impact given the inherently brutal nature of immigration policing.
The raids targeting “criminal aliens” are part of the growing deportation dragnet launched against not only unauthorized immigrants, but also legal residents who have been stripped of their residency status because they were convicted for legal transgressions. U.S. officials typically highlight the link between violent crime and deportees, be they legal residents or not. But, like the prisoners languishing in state and federal prisons throughout the United States, most of the deportees are nonviolent offenders—72% of them fit this description between 1997 and 2007. (For non-citizens stripped of their residency and deported, the figure during the same period is even higher, 77%.)15
This dragnet also profoundly affects U.S. nationals. Deportations almost inevitably divide families, given that most migrant households are of “mixed status”—about 85% of families with at least one noncitizen parent include at least one child who is a U.S. citizen.16 Between fiscal years 1998 and 2007, the United States deported almost 108,500 parents of U.S. citizen children, and separated more than 1 million family members in the United States from a parent or spouse. Although U.S. immigration law allows migrants to appeal deportation orders, the standards are such that obtaining relief is almost impossible, according to a March 2009 report by Dorsey and Whitney LLP for the Urban Institute. The result is that “citizen children increasingly find themselves separated from one or both parents, or effectively deported with their parents.”17
In both cases, the deportation apparatus compels deportee parents to make a heart-wrenching choice: divide the family by keeping their children in the United States, or keep the family together by uprooting their children from a community and lifestyle that is all they have ever known. Either way, families are effectively turned into refugees: By deporting parents and, often by extension, their children, the federal government is driving them from what is, for all intents and purposes, their homeland. Nothing that the Obama administration has said or done thus far suggests that these family-damaging deportations will diminish. Nor is there any indication that it will work to restore discretion to immigration judges (taken away by legislation implemented during the Clinton years), so that they take into consideration children’s best interests in deportation cases.
Meanwhile, the Obama administration has increased the threat of arresting immigrants living and working in communities throughout the United States by expanding a much criticized ICE program called 287(g), which establishes formal cooperation between federal authorities and state and local police departments, allowing the latter to enforce federal immigration laws.18 The program has resulted in widespread insecurity within targeted communities, since many are loathe to contact the police, lest the authorities get involved in immigration matters. Blurring the divide between the policing of criminal issues and civil ones (like immigration) drives unauthorized immigrants and their families—or authorized ones who have had run-ins with the law—further into the shadows.19
In sum, the Obama administration seems locked into a law-and-order mentality in which unauthorized immigrants simply deserve nothing—regardless of what they have contributed or their ties to U.S. society. Even those who might be eligible for some sort regularization of status under would-be immigration reform will, according to Napolitano’s November speech, have to successfully negotiate a “tough and fair pathway to earned legal status” in which they have to “meet a number of requirements—including registering, paying a fine, passing a criminal background check, fully paying all taxes and learning English.” This is the third “leg” of the “three-legged stool”—the other two being “serious and effective enforcement” and “improved legal flows for families and workers”—that Napolitano presented as the administration’s definition of immigration reform.
The ongoing deportations of individuals convicted of minor transgressions, and the administration’s support for an amendment to the health care bill that would bar unauthorized migrants from even buying insurance through an “exchange” to be established, are just two indications of how limited the “pathway to legal status” might be.
The debate in Congress will likely revolve around two bills, one introduced in the House by Luis Gutierrez (D-Ill.) and another in the Senate by Charles Schumer (D-N.Y.), the Immigration Subcommittee chairman. For his part, Gutierrez has embraced strong worker rights, family unification, and the DREAM Act—which would allow some undocumented immigrants who arrived in the country as children to acquire a bachelor’s degree or serve in the military to gain permanent residency—as the main principles of comprehensive immigration reform. At the same time, his bill has less stringent criteria for regularizing status than what seems to be envisioned by the Obama administration. Yet his bill does little to significantly challenge the repressive enforcement apparatus.
Schumer’s bill is likely to be markedly more restrictionist, since he has consistently emphasized the need for “law and order” in reshaping the U.S. immigration regime. In a June 24 speech, for instance, Schumer asserted that “the American people will never accept immigration reform unless they truly believe that their government is committed to ending future illegal immigration—and any successful comprehensive immigration reform bill must recognize this fact.”20
The position of Schumer is much closer to the administration’s than that of Gutierrez. That, together with sure-to-intensify pressure from the restrictionist right, means that if any reform legislation with even a narrow pathway to citizenship is to pass both houses of Congress, it will likely also include funding for an ever more repressive enforcement apparatus.
Thus what is called comprehensive immigration reform is a highly dubious project from a human and immigrant rights perspective, given that it embraces the very enforcement buildup (and more of it) that has been so damaging to immigrant families and communities. While holding out the promise of regularizing status (or a very long “path to citizenship”) for many, but very far from all, unauthorized immigrants present in the United States, it would make the same tradeoff as the 1986 Immigration Reform and Control Act (IRCA) did: a “carrot” in the form of legalization for (some of) those already past the gate, and a “stick” in the form of ever more formidable enforcement at the border and within.
But when the IRCA-like legislation passes this time, the carrot will not be as generous as it was in 1986, and the punishment of the stick will be more cruel. Mainstream immigration reformists will fail to address the underlying dynamics that drive, facilitate, and attract immigration, or to consider far-reaching alternatives that reject the view that immigration is a law-and-order problem. Because of this, “reform”—whenever it passes Congress—will surely help give rise to another alleged crisis in immigration and “broken borders” in the years ahead. Progressive forces in the immigrant rights movement certainly have their work cut out for them. Although this has long been the case, given the size and power of the apparatus of exclusion and control, the challenges facing the movement are perhaps greater than ever.
Joseph Nevins teaches geography at Vassar College. He is the author of Dying to Live: A Story of U.S Immigration in an Age of Global Apartheid (City Lights Books, 2008), and Operation Gatekeeper and Beyond: The War on “Illegals” and the Remaking of the U.S.-Mexico Boundary (Routledge, 2010).
1. “Prepared Remarks by Secretary Napolitano on Immigration Reform at the Center for American Progress,” transcript, November 13, 2009; see also Tom Barry, “Rahm Emanuel’s Political Pragmatism on Immigration,” Counterpunch.org, November 14–16, 2008.
2. See “Barack Obama on Immigration,” at ontheissues.org.
3. See barackobama.com/issues/immigration/index_campaign.php.
4. Mike Sunnucks, “Arizona Governor Declares State of Emergency Along Mexican Border,” Phoenix Business Journal, August 16, 2005.
5. The California Institute for Federal Policy Research, “Quick Look: California Perspectives on the President’s FY 2010 Budget Request—May 8 2009.”
6. Fred Barnes, “No Entry: The Republicans’ Immigration War,” The New Republic, November 8, 1993: 10+.
7. Author interview with T.J. Walters, associate chief, United States Border Patrol, INS Headquarters, Washington, June 2, 1997.
8. For an analysis of the complex, see Tom Barry, Border Lines (blog, TransBorder Project, Center for International Policy), borderlinesblog.blogspot.com.
9. U.S. Select Commission on Immigration and Refugee Policy, U.S. Immigration Policy and the National Interest: The Final Report and Recommendations of the Select Commission on Immigration and Refugee Policy With Supplemental Views by Commissioners, March 1, 1981 (Washington, D.C.: The Commission, 1981), 60, 82.
10. Quoted in Anna Gorman and Peter Nicholas, “Obama Budget Puts Security First at the Border,” Los Angeles Times, May 6, 2009.
11. “Remarks by Secretary Napolitano at the Border Security Conference,” transcript, August 11, 2009.
12. Julia Preston, “Immigration Crackdown with Firings, Not Raids,” The New York Times, September 30, 2009.
13. See Nancy Morawetz, “Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms,” Harvard Law Review 113, no. 8 (June 2000): 1936–62.
14. Bess Chiu, Lynly Egyes, Peter L. Markowitz, and Jaya Vasadani, Constitution on ICE: A Report on Immigration Home Raids (New York: Cardozo Immigration Justice Clinic, Benjamin N. Cardozo School of Law at Yeshiva University, July 2009).
15. Human Rights Watch, Forced Apart by the Numbers: Non-citizens Deported Mostly for Nonviolent Offenses (April 2009): 2.
16. Michael Fix and Wendy Zimmerman, All Under One Roof: Mixed Status Families in an Era of Reform (Washington, DC: Urban Institute, 1999).
17. James D. Kremer, Kathleen A. Moccio, and James W. Hammell, Severing a Lifeline: The Neglect of Citizen Children in America’s Immigration Enforcement Policy, a report by Dorsey and Whitney LLP for the Urban Institute (Minneapolis: Dorsey and Whitney LLP, March 2009).
18. On the program’s expansion: “Secretary Napolitano Announces New Agreement for State and Local Immigration Enforcement Partnerships & Adds 11 New Agreements,” transcript, July 10, 2009.
19. See Aarti Shahani and Judith Greene, Local Democracy on ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement (New York: Justice Strategies, February 2009); available online at justicestrategies.org.
20. “Remarks by U.S. Senator Charles Schumer, 6th Annual Immigration Law and Policy Conference,” transcript, Migration Policy Institute, June 24, 2009.