What Rights For The Undocumented?

September 25, 2007

Undocumented immigrants are prehaps the most powerless of any group of workers in this country––a permanent feature of the much talked about “underclass” of U.S. society. Over the last 15 years, their rights have been under constant assault. Anti-immigrant hype, restrictive immigration legislation, broad attacks on civil rights, and the worsening conditions of the poor have all served to further isolate the undocumented.

At the same time, the undocumented have become increasingly adept at defending their rights both in the workplace and in the community at large. Numerous legal and political campaigns–– waged by community groups, labor unions, immigrant and refugee rights advocates, civil rights and religious organizations, and even local governments––have managed to ameliorate some of the more repressive aspects of laws and policies pertaining to people without legal status. Occasionally, these battles have even resulted in an expansion of the limited rights of the undocumented.

Most current assessments place the number of undocumented in the United States at somewhere between 2.5 and four million.[1] The number has always been hard to gauge, because this is a “shadow” population, often without the “official” recognition other residents take for granted. A great many undocumented are seasonal workers, here for a few months at a time; some come and go at the beginning and end of the workweek. While those wanting to restrict immigration often quote much higher figures, a number of experts agree that the undocumented population grows between 200,000 and 300,000 a year, about 40% of whom enter legally and overstay their visas. Among these are refugees from turbulent political situations and civil war who have not been granted official refugee status.

Current public concern over the influx of undocumented immigrants dates from the post-Vietnam war recession of the 1970s, when politicians launched appeals to save U.S. jobs for “Americans.” The Immigration and Naturalization Service (INS) obligingly initiated massive raids on immigrant communities, deporting hundreds of thousands of undocumented Mexicans and provoking a heated response from immigrants and their advocates. In 1978, pledging tomakca serious study of the immigration debate, President Carter created the Select Commission on Immigration and Refugee Policy.

The commission’s report, “Immigration Policy and the National Interest,” was released in 1981, after President Reagan had made his own appointments to the commission. The report recommended a token amnesty program for long-residing undocumented immigrants, employer sanctions, and major funding increases for border enforcement and for the creation of immigrant detention centers. These elements formed the basis of sweeping immigration legislation introduced the following year by Republican Sen. Alan Simpson and Democratic Rep. Romano Mazzoli.

The fundamental promise that the undocumented were taking jobs away from U.S. workers continued to frame the immigration debate. An aggressive campaign by the Reagan Administration painted pictures of a “border out of control” and an invasion by “hordes of feet people” to prompt audiences once more to scapegoat “foreigners” for an unstable U.S. economy.

The Immigration Reform and Control Act (IRCA) became law in November 1986. Although it sparked a fairly wide-ranging movement for immigrant and refugee rights, IRCA’s passage was widely recognized as a major blow not only to the immigrant communities, but also to labor and civil rights.

Many studies since have found that large numbers of employers fearing the “employer sanctions” provision of IRCA, which imposes civil and criminal penalties on those who continuously hire undocumented workers, will discriminate against those who appear or sound “foreign” to them––namely, racial minorities and the foreign born.[2]

The impact of sanctions on the undocumented is even more severe. Prior to the passage of IRCA, entering or remaining in the United States without immigration papers was illegal, but working without papers was not a crime. Undocumented workers were considered employees with the same rights as other non-immigrant workers, a definition which was upheld in court.[3] The introduction of employer sanctions essentially redefined the labor rights of the undocumented, “criminalizing” workers without papers. A number of cases have been brought in which an employer challenged a worker’s right to even file a claim because the worker was undocumented. While the courts seem to agree that claims may be filed, there is still considerable disagreement about whether reinstatement and/or back pay should be allowed as remedies in the case of an undocumented worker.[4]

After nine years of litigation, a settlement was finally reached last November in the case Pearl Meadow Mushroom Inc. v. Nelson, which will provide, in Northern California, some protection for immigrant and other minority workers against arbitrary workplace raids by the INS. Plaintiffs in the case had claimed that the INS raided job sites and detained or arrested workers just because they looked Latino.

The attacks on workplace rights due to IRCA have created an increased awareness in some parts of the labor movement about the importance and complexity of organizing immigrant workers. The California Immigrant Workers’ Association (CIWA), launched as an associate member organization of the AFL-CIO in Los Angeles/Orange County, seeks to organize immigrant workers, many of whom are undocumented. With the assistance of CIWA, the International Association of Machinists persuaded workers to unionize at an auto-racing equipment factory in Los Angeles last year––the biggest manufacturing election victory since 1964. The workers at the plant were almost all Mexican and Salvadoran immigrants.

Many undocumented do not, however, have regular work, and are not affiliated with unions. “Street-corner” labor, in which immigrants and non-immigrants alike are hired by the day, is now commonplace in cities and towns across the United States. Particularly with the rise in unemployment, more and more citizens have joined the undocumented in search any kind of work that offers a day’s wage.

The passage of IRCA significantly increased the number of undocumented workers forced to stand on street corners advertising their services for the cheapest wage. In many cases, workers report that they are paid below the agreed-upon wage, or not at all. They are also often exposed to poor or hazardous working conditions. Because work-permit verification (required by IRCA of all employees hired after November 6,1986) is not required for people who work “irregularly,” “sporadically” or on an “intermittent basis,” employers of day labor are generally not targets of employer-sanctions enforcement.[5]

The response to the growing phenomenon of day labor has been mixed––in a number of cities, residents have organized to “get them out of the neighborhood,” claiming the workers are a public nuisance. Others have responded more symnpathetically, working with unions and cities to create day-labor hiring halls and programs that provide language training and “know-your-rights” outreach.

In San Francisco, the city-sponsored Day Labor Program has yielded another important outgrowth: the Asociación de Trabajadores Latinos––the Latino Workers Association. The member-run organization provides mutual assistance, organizes know-your-rights presentations, and has even agreed to seek a minimum wage of $6.25 an hour.[6]

Another form of “organized” casual labor is the “cooperative,” in which members are essentially independent contractors, and do not have an employer/employee relationship with the person for whom they provide services. In the San Francisco Bay Area, there are a number of immigrant-based cooperatives, including “Heaven Sent,” a housecleaning cooperative in East Palo Alto. Heaven Sent provides training and job referrals, and participants pay monthly dues.

Manos, in Alameda and Contra Costa counties, provides job placement for Latino immigrants. Initially organized through the Diocese of Oakland in the mid-1980s, it has helped to launch similar projects in other areas and has grown to include two job-referral collectives, and home-care and janitorial cooperatives. Employers contact the organizations for referrals, pay the workers directly, and make a donation to the organization for overhead costs.

Of course the impact of IRCA on undocumented rights also reaches beyond the workplace. For example, even though an estimated 70% of undocumented workers pay taxes, they are not eligible for most federal benefits. Because of IRCA, even access to those benefits and services for which they are eligible is constantly being challenged. For instance, immigrants have been denied access to housing because they were suspected of being undocumented. In some cities, the right of undocumented children to attend public schools has been questioned, even though this right was clearly established by the courts.

IRCA and employer sanctions have caused particular problems for undocumented immigrant women. Like other women, they may remain trapped in abusive relationships because they fear being unable to support themselves (and often their children). But they also fear deportation if they have no papers, or if their legal status is tied to remaining in a valid marriage for a minimum of two years. Advocates have fought for a “battered women waiver” to the 1986 Immigrant Marriage Fraud Act, in order to provide immigrant women in abusive relationships an opportunity to gain legal status if they leave their battering spouses.

Several organizations have sprung up around the country to address the particular needs of undocumented women. Mujeres Unidas y Activas in San Francisco, for example, conducts know-your-rights outreach, offers leadership training, language classes and domestic violence counseling, and serves as a support network for immigrant women. La Mujer Obrera organizes immigrant women, including many who are undocumented, in the garment factories in EI Paso. Their hunger strikes and organizing campaigns have gained national attention, since they target some of the country’s leading manufacturers who contract with local sweatshops at poverty wages.

Hundreds of thousands of “unofficial” refugees are counted among the undocumented. Largely from Central America and Haiti, these people have escaped conditions of political turmoil and civil war only to be rejected by the United States. Central Americans have found some safety from deportation through two programs. After seeking support for safe-haven measures in Congress for several years, in 1990 Salvadorans gained “Temporary Protected Status” or TPS. TPS provided an 18-month period of protection from deportation (and work authorization) for Salvadoran refugees who registered with the INS. President Bush recently announced that TPS participants would continue to enjoy that benefit for at least another year, although TPS is not being officially extended.[7]

Guatemalans did not receive any deportation protection, but they, along with Salvadorans, also gained some relief through the settlement of a class action suit filed by the American Baptist Church in 1985. The “ABC” settlement resulted in re-adjudication for over 150,000 political asylum cases that had been denied Salvadoran and Guatemalan applicants. In the suit, the plaintiffs claimed that foreign-policy biases, instead of the merit of individual cases, had resulted in the overwhelming denial of political-asylum petitions. Ninety-seven percent had been denied; in contrast, 84% of 1987 asylum claims from anti-Sandinista Nicaraguans were approved.[8] In the 1990 settlement, plaintiffs gained the right to have their cases re-examined under revised rules, and could get work authorization while their cases were pending.

IRCA seems to have given added license to the Border Patrol and to racist hate groups to commit crimes against undocumented immigrants. Throughout the U.S.-Mexico border area, harassment and physical violence have increased dramatically. Community activists and immigrant and refugee rights advocates are lobbying for a variety of measures to protect basic human rights. These measures include: local, state and federal investigation, monitoring, and prosecution of anti-immigrant activity; reform of INS regulations governing the use of deadly force and instituting some form of civilian review of Border Patrol practices; and an end to Border Patrol highspeed chases of suspected undocumented immigrants in the border area, which have resulted in numerous fatalities in recent years. They have also created an “Immigrant Rights Urgent Response Network” to coordinate efforts among local and national organizations to press for action on critical issues of abuse.

A recent court settlement stipulates that undocumented immigrants in detention should be informed of their legal rights, and should have the opportunity to consult with a lawyer. The settlement stems from a case filed 14 years ago on behalf of a Mexican citizen, Rosa Melchor López, and several other immigrant workers who had been arrested in an INS raid at a Los Angeles shoe factory in 1979. They claimed they were not allowed to talk to a lawyer, were forced to sign a waiver of their rights, and were to be deported.

Expansion of undocumented rights has also been pursued in a number of other areas that are indicative of the integration of the undocumented into broader society. For example, in Takoma Park, Maryland, the “Share-the-Vote” campaign resulted in a successful non-binding referendum providing non-citizens with the right to vote in local elections, and even to run for office. “This is really a civil rights challenge that’s facing the next generation,” George Leventhal, who headed the campaign, told the press. “When you broaden the electoral pool, everyone wins.” The City Council is to follow up with a binding ordinance.

The issue sparked considerable controversy around the country. The anti-immigrant Federation for American Immigration Reform (FAIR) argued that the proposed ordinance would “undermine the value of U.S. citizenship” and might create another “magnet” for unlawful immigration.[10] Yet others favor the idea, citing numerous examples where non-citizens are permitted to vote in local elections (like New York’s community school boards). They note that local voting by non-citizens was a common practice in the nineteenth century and into the twentieth.[11]

Undocumented immigrants have also become part of the environmental movement, joining with other minority community activists to charge that “toxic racism” is responsible for an alarming rate of disabilities and fatalities from exposure to dangerous pesticides, waste dumps and incinerators. Particularly in the Southwest, immigrant communities, including sizeable undocumented populations, have experienced “cancer clusters,” babies born without brains or with other deformities, psychological changes, and fertility and reproduction problems which experts say can be largely traced to environmental hazards. Farmworkers are especially vulnerable to pesticides, as are their children, who must often accompany parents in the fields.[12] In the small Latino town of Kettleman City, in south-central California, residents fought one of the country’s largest waste disposal and treatment companies, Chemical Waste Management, to block construction of a toxic waste incinerator.

The number of local and national organizing efforts to protect and expand the rights of the undocumented have significantly increased over the last ten years. Nonetheless, community and other immigrant rights advocates feel their efforts have not kept pace with the impact of U.S. economic and foreign policies which continue to spur all types of immigration, and of domestic policies which lead to greater impoverishment and restriction of rights. Perhaps, as many now believe, nothing less than the repeal of employer sanctions will prevent further deterioration of rights.

ABOUT THE AUTHOR Cathi Tactaquin is director of the National Network for Immigrant and Refugee Rights in Oakland.

NOTES 1. Rodman Griffin, “Illegal Immigration,” CQ Researcher, Vol. 2, No. 16. 2. Patterns of widespread discrimination have been found in both government and independent studies. See General Accounting Office, “Immigration Reform: Employer Sanctions and the Question of Discrimination” (March 1990), and “Employer Sanctions––A Costly Experiment,” a 1990 summary report of findings by immigration organizations (available from the Center for Immigrant Rights, 48 St. Marks Place, New York, NY 10003). 3. For a fuller discussion of the legal and labor rights of the undocumented after IRCA, see Linda S. Bosmak, “Exclusion and Membership: The Dual Identify of the Undocumented Worker under United States Law,” Wisconsin Law Review (1988), pp. 955-1042, and Robin Alexander, “Labor Rights Protections After IRCA,” Immigration Newsletter, Vol. 17, No. 1. 4. In the case of EEOC & Castrejón v. Tortillería “La Mejor,” a federal judge ruled on March 6, 1991 that undocumented workers could file lawsuits under title VII of the 1964 Civil Rights Act. Castrejón, a Mexican immigrant, wanted to file a pregnancy discrimination suit against her employer; the employer churned that IRCA’s purpose would be undermined if she were entitled to file the suit. Various examples are discussed in María Blanco and Pauline Kim, “How Employer Sanctions Undermine the Enforcement of Federal Labor Laws,” published by Equal Rights Advocates, 1663 Mission Street, Suite 550, San Francisco, CA 94103. 5. “Alternative Employment Strategies for lmmigrants and Refugees,” pp. 8 and 13, published by the Coalition for Immigrant and Refugee Rights and Services, 995 Market Street, Suite 1108, San Francisco, CA 94103. 6. For more information on programs in Los Angeles, San Francisco and New York, see Network News, Vol. V, No. 3, published by the National Network for Immigrant and Refugee Rights, 310 8th St., Ste. 307, Oakland, CA 94607. 7. See Interpreter Releases, Vol. 69, No. 19, pp. 600-601. 8. San Francisco Examiner, Dec. 20, 1990. 9. Quoted in Detroit News, Jan. 3, 1992. 10. Ibid. 11. Gerald M. Rosberg, “Aliens and Equal Protection: Why Not the Right to Vote?” Michigan Lucy Review (April-May 1977). 12. San Francisco Examiner, May 4, 1991.

Tags: US immigration, Immigration Policy, human rights, IRCA, Undocumented

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