Finding Political Openings in a Hostile Country

1 Finding Political Openings in a Hostile Country

The immigrant rights movement emerged in the late 1980s and 1990s during a time of great hostility toward immigrants. By that time, anti- immigration advocates had become more sophisticated, national, and legitimate. They included well-respected politicians such as Pete Wilson, scholars such as Samuel Huntington, and sophisticated grassroots activists with national-level reach such as John Tanton and Roy Beck. Many like them argued that immigrants posed an economic problem to the country, but even more importantly, they argued that their inherent culture posed an existential threat to national institutions and identity. Anti-immigra- tion advocates in the 1990s had not only been successful in pushing the idea of the immigrant as a central threat to the country, but they also succeeded in persuading President Clinton and the Republican-controlled Congress to pass laws that rolled back rights, sharply expanded border enforcement, and required local and state officials to deny basic services to immigrants. Most politicians embraced the anti-immigrant ferment and accepted sealing borders and deporting settled undocumented immi- grants as common-sense policy responses to this so-called threat. The “war on terror” only augmented hostility and reinforced the “border first” and enforcement instincts of political officials.

Facing greater penalties, restrictions, and surveillance, all undoc- umented immigrants encountered considerable risks to come out in

C o p y r i g h t 2 0 1 3 . S t a n f o r d U n i v e r s i t y P r e s s .

A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .

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22 Finding Political Openings in a Hostile Country

public, protest, and make rights claims. How was it possible, in that environment, for undocumented youths to emerge and establish them- selves as a prominent group in national immigration debates?

In a rather paradoxical way, the more the government pushed to seal the borders, the more ambiguities and cracks surfaced in the country’s immigration system. Repressive measures ran up against liberal legal norms, economic needs of employers, the resource constraints of law enforcement agencies, and humanitarian and moral concerns of the public. A politi- cal landscape characterized by general hostility and many cracks provided narrow openings for undocumented groups like refugees, farmworkers, children, and young adults to make claims for basic rights and legalization. While the inhospitable environment reduced the possibilities for big and sweeping immigration reforms, small niche openings provided footholds to push for the legalization of some groups of immigrants. This resulted in an immigrant rights movement characterized by narrower mobilizations and campaigns (from El Salvadoran refugees in the 1990s to the DREAM campaign in the 2000s) aimed at pushing smaller measures that would benefit particular groups of immigrants.

The years 2006–7 marked an important shift in this political envi- ronment. After a decade of enacting one restrictive measure after another, the population of undocumented immigrants had grown dramatically and the cracks and contradictions in the country’s immigration system had become unavoidable. In response to these problems and the political concerns of top Republican strategists, the Bush administration initiated an effort to pass reforms to fix what many believed to be a broken system. For many immigrant rights advocates, this new opportunity required them to rethink the past strategy of small mobilizations pushing piece- meal reforms. Even though these first efforts to pass comprehensive reform failed, immigrant rights advocates believed that they could pass comprehensive immigration bill in a friendlier Congress if the move- ment centralized its efforts, both organizationally and strategically, and focused exclusively on securing the 279 congressional votes needed to pass a bill (that is, 219 House votes and 60 Senate votes).4 The DREAM Act would be part of comprehensive reform and the DREAMers would serve as an important group in driving this collective effort forward. Thus, in response to the new openings of 2006, the leading immigrant

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Finding Political Openings in a Hostile Country 23

rights associations began a long effort to centralize and exert control over the many different parts of the movement, hoping that would allow them to focus their energies on pushing through a sweeping law that would benefit most undocumented immigrants once and for all.

The Hostile 1990s Immigrants and immigrant rights advocates in the 1990s faced an

extremely hostile discursive and political environment.5 Anti-immigrant forces had begun to produce compelling messages for why federal and state governments should strip immigrants of all rights (social, political, and civil) and forcefully remove them from the country. Immigrants were presented as a core threat to national stability, both economically and cul- turally. They were viewed as transforming large parts of urban and sub- urban landscapes into ethnic spaces, making Americans into foreigners in their own country. Immigrants were accused of competing for jobs and being welfare cheats. They drove down the wages of the American working class while bankrupting the welfare state. Anti-immigrant forces argued that even if some immigrants might have sympathetic stories, it would be impossible to grant them basic rights because that would open the “flood- gates” for more immigrants. In order to sustain the integrity of the nation in these global times, tight border restrictions should be put into place and no rights should be given to “illegals.” This overall argument was framed as a matter of life or death for the country.

Where earlier anti-immigrant mobilizations had largely been local and fragmented,6 in the late 1980s and early 1990s, anti-immigrant activ- ists began to deliver their message on the national stage through the increased prominence of large and professional anti-immigration asso- ciations (for example, Federation for American Immigration Reform, Americans for Immigration Control, Numbers USA, U.S. Inc., among others).7 These national organizations served as important vehicles for presenting a strong and compelling anti-immigration message to the media and Congress. Meanwhile, a new generation of public intellectuals began to articulate a coherent discourse that painted immigrants, par- ticularly Latino immigrants, as a cultural threat, not simply an economic one, to the nation.8 They claimed that Latinos failed to become a part of

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24 Finding Political Openings in a Hostile Country

the national fabric, and because of their inability to assimilate, these immi- grants threatened the cultural coherence of the country. In 1996 Stanford historian David Kennedy wrote in an Atlantic Monthly essay, “They [Lati- nos] can challenge the existing cultural, political, legal, commercial, and educational systems to change fundamentally not only the language but also the very institutions in which they do business. . . . In the process, Americans can be pitched into a soul-searching redefinition of fundamen- tal ideas such as the meaning of citizenship and national identity.”9 Latino immigrants were, in short, irreducibly different from “normal” Americans. This assertion was coupled with the argument that some Latinos sought to reconquer the American Southwest (la Reconquista), with prominent commentators like Patrick Buchanan arguing that Mexicans were a fifth column in the country. According to Leo Chavez, the immigrant threat discourse therefore rested on three major themes: Latinos as competitors for scarce resources; Latinos as irreducibly other; and Latinos as a political force seeking the territorial dissolution of the nation.

Framed in these ways, immigration was an existential problem that required some kind of action by local, state, and national gov- ernment officials. Anti-immigrant advocates presented a zero-tolerance line, arguing that recognizing even the most basic right of the most innocent immigrant introduced major risks to the national commu- nity. When governments recognized the rights of seemingly sympa- thetic and innocent undocumented immigrants for limited services, immigrants would use this as a toehold to make additional rights claims. This would allow them to accumulate a range of additional rights and privileges in a slow and incremental way. For instance, once primary education was provided to seemingly innocent undocumented children as the result of the Supreme Court ruling Plyler v. Doe in 1982, the children graduated from high school and expected the right to attend higher education and work in the country.10 Granting these rights and privileges would eventually result in the de facto legaliza- tion of the population at best, a broad amnesty at worst. Additionally, anti-immigration advocates argued that recognizing basic rights served as a magnet for further rounds of immigration. Recognizing the rights of children born in the United States, who were called “anchor babies,” opened the door to legalizing the status of parents, grandparents,

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Finding Political Openings in a Hostile Country 25

aunts, uncles, and cousins through family reunification laws. Each immigrant, no matter how innocent or deserving, was conceived as a virus that threatened to spread and eventually drain life from the national host. The aim of anti-immigration advocates was therefore not only to enhance border protections and aggressively strip immi- grants of all basic rights but also to apply severe restrictions equally to all undocumented groups. By building a strong and impenetrable wall through border security, enforcement, and the rollback of basic rights, undocumented immigrants would not be able to implant themselves in localities and spread to communities across America. This idea and its associated policy proposals came to be known as “attrition through enforcement” or “self-deportation.”

These arguments achieved great resonance in the public sphere and helped structure the media’s framing of the immigration issue.11 National magazines including US News and World Report, Time, Newsweek, Busi- ness Week, and others employed the “Latino threat” discourse to frame reporting and editorials on the subject of immigration.12 As the discourse was diffused through the media, it helped shape public perceptions on immigration. Massey and Pren note, “The relentless propagandizing that accompanied the shift had a pervasive effect on public opinion, turning it decidedly more conservative on issues of immigration even as it was turning more conservative with respect to social issues more generally.”13 The effects of media on public perceptions were most powerful in areas undergoing rapid demographic changes: “Sudden demographic changes generate uncertainty and attention. Coverage of immigration in the media can inform people about demographic changes and can politicize those changes in people’s minds. Acting in tandem, local demographics and nationally salient issues can produce anti-immigrant attitudes and outcomes.”14

In the 1990s these arguments were bolstered by the support of key politicians with national reach. Governor Pete Wilson of Califor- nia played a particularly important role in 1994. Entering an election year with low levels of voter satisfaction, the one-time moderate Repub- lican took a strong anti-immigration position in his bid for reelection and expressed strong support for Proposition 187 (known as the Save Our State [SOS] initiative). This measure aimed to deny undocumented

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26 Finding Political Openings in a Hostile Country

immigrants the right to key social services and undocumented children the right to attend primary and secondary schools.15 Wilson became one of the first national-level politicians to use publicly the term “self-depor- tation,” and he held up Proposition 187 as a model policy to achieve these ends.16 His overwhelming reelection was attributed to his support of the measure, giving state and local politicians around the country a blue- print to win campaigns. Proposition 187 won with 59 percent of the vote, only to be deemed unconstitutional by several federal courts.

Seeking to preempt a patchwork of local and state-level variants of Proposition 187, the Clinton administration introduced measures to enhance border security. In 1994, the government introduced Opera- tion Gatekeeper, which reinforced the southern border by expanding the number of border agents by 1,000 per year until 2001, reinforcing the border fence, and bolstering other surveillance methods.17 In 1996, the Clinton administration supported the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which allocated more resources to border-enforcement and deterrence measures.18 In addition to allo- cating more money to border protection, IIRIRA expanded monitoring of immigrant entry and exit data, expedited deportations by lowering the threshold of deportable offenses, restricted judicial discretion dur- ing deportation proceedings, and extended periods of admissibility for deported immigrants, among other things. According to Durand and Massey, between 1996 and 1998 the budget of the Immigration and Nat- uralization Service grew by eight times and the budget of the Border Patrol by six.19 In this very short period, the latter agency was trans- formed from one of the most insignificant federal law enforcement agen- cies in the country into the most funded and best armed.

The heavy emphasis on border enforcement had important effects, but decreasing the number of undocumented immigrants was not one of them.20 Between 1988 and 2002, border crossings shifted from tra- ditional points around San Diego, California, to nontraditional areas in the eastern desert. Arizona increasingly became an entryway for unauthorized border crossings. The increased risks of crossing the bor- der raised the monetary costs of migration, which in turn favored the expansion of the human-smuggling industry. The death rate of unau- thorized border crossings also tripled as immigrants were compelled to

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Finding Political Openings in a Hostile Country 27

pass through dangerous desert terrain. The growing costs and risks of crossing resulted in a lower return rate for migrants, decreasing from approximately 50 percent in 1986 to 25 percent in 2007.21 As immigra- tion rates continued to hold steady and return rates plummeted, more immigrants permanently settled in the country, which contributed to the rapid growth of the undocumented population. The population of undocumented immigrants, in other words, grew as a direct response to border enforcement, growing from an estimated 7 million in 1997 to 10 million in 2002 and then to 11.9 million in 2008.

Border enforcement encouraged not only permanent settlement but also families to take hold inside the country. As border enforcement raised the costs and risks of circular migration, migrants were encour- aged to raise their families in the United States.22 By 2008 nearly half of undocumented immigrant households were couples with children.23 While 73 percent of the children of undocumented immigrants were cit- izens by birth, approximately 1.5 million children were undocumented. This came to account for approximately 16 percent of the total undoc- umented population.24 The unanticipated consequence of restrictive immigration has therefore been to accelerate family settlement, which has given rise to households with very mixed legal statuses ranging from citizens, permanent residents, temporary residents, to unauthor- ized migrants and a large population of undocumented children. These undocumented children would eventually fill the ranks of the DREAM mobilizations of the 2000s.

While the population of undocumented immigrants grew and became much more complex, it faced increasingly hostile environments as rights and privileges were rolled back and better enforcement mea- sures were developed to detect and extract immigrants.25 In addition to expanding external border security, IIRIRA created a memorandum of understanding called the 287(g) agreements between federal immigration and local police agencies. These agreements empowered local authorities to enforce federal immigration laws. They also provided local police offi- cials important levels of financial support and training to take on these additional responsibilities. While this program was voluntary, it pro- vided strong incentives for local police agencies to assume a direct role in detecting and removing undocumented immigrants residing in their

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28 Finding Political Openings in a Hostile Country

jurisdictions.26 Congress, with the support of President Clinton, also passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PROWARA). This law introduced key restrictions on welfare support for permanent and undocumented immigrants.27 This measure made permanent immigrants ineligible for a range of benefits, including food stamps, Supplementary Security Income, welfare, and nonemergency Medicaid for the first five years of their residency in the United States. Undocumented immigrants were made ineligible for publicly funded state and local services. States were permitted to provide undocumented immi- grants with in-state services, including in-state tuition for higher educa- tion, only if they passed a law that explicitly stated the law’s support of this population.28 These measures therefore enhanced the enforcement capaci- ties of the federal government by integrating state and local government officials into its efforts. Local and state officials were now required to use the immigration status of residents as a criterion of detecting whether peo- ple belonged in their communities and whether they merited basic rights and privileges.29

Many states and municipalities not only fulfilled their new respon- sibilities to fight unauthorized migration, but also the new laws increased their leeway to enact their own anti-immigration laws and ordinances. Beginning in the late 1990s and early 2000s, municipalities across the country passed ordinances that specifically targeted the legal status of residents. Some of these ordinances fined landlords and businesses that entered contracts with undocumented immigrants. Other municipalities devised housing regulations to minimize immigrant residency and banned public assembly associated with day-laborer hiring sites.30 These local mea- sures went on to inspire exclusionary state laws beginning with the pas- sage of Arizona’s S.B. 1070 in 2010.31 These state enforcement policies were legally premised on the grounds that they complemented federal author- ity, rather than supplemented it, and were essentially extensions of fed- eral partnership programs like 287(g) and its follow-up measure, “Secure Communities.” These federal measures provided Arizona and other states and localities with the legal opening needed to create their own enforce- ment policies. Localities were incorporated into federal enforcement mea- sures, and they also began to devise their own restrictive measures to deter the settlement of immigrants within their jurisdictions. As the population

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Finding Political Openings in a Hostile Country 29

and complexity of undocumented communities grew in response to border security, members of these communities faced increased restrictions, risks, repression, and surveillance in towns and cities across the country.32 Not all undocumented immigrants, however, have been equally exposed to this hostility.33 Adults and recent migrants were most exposed because they sought work without legal documentation, faced police stops and check- points during their daily commutes, bore visible signs of “foreignness” (for example, language, clothing), and were asked for legal identification in daily transactions. Adults were compelled to negotiate and think about their “illegality” as part of everyday living. Undocumented children have been partially shielded because of their cultural assimilation, and their lives have centered on the relatively protected institution of the school. The Supreme Court’s Plyler v. Doe ruling of 1982 recognized the right of all children, irrespective of legal status, to attend public schools. This ruling barred school officials from inquiring into the legal status of children and from using such status to deny children the right to an education. As a consequence, undocumented children had a space of relative refuge where they did not have to concern themselves with the implications of their legal status on a daily basis. The issue of their own legality would become a more central issue in their lives as they moved into adulthood and faced increased demands for legal documentation.34

Niche Openings in Hostile Lands The hostile context of the 1990s and early 2000s put most immi-

grant rights advocates on the defensive. The near-universal hostility of national politicians in the late 1990s, Democrats and Republicans alike, toward immigration reduced the political possibilities of a national measure for comprehensive immigration reform or an amnesty for undocumented immigrants. Moreover, growing restrictions and stigma directed at undocumented immigrants reduced the willingness of most immigrants to mobilize publicly and make claims for residency status or other basic rights. In this context, rights advocates identified niche openings and pushed for smaller measures that stood a greater likelihood of success. While these measures would not benefit most undocumented immigrants, they would at least provide some groups with additional

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30 Finding Political Openings in a Hostile Country

protections and rights. These smaller wins were seen by many to be step- ping stones that would permit the extension of additional rights and protections further down the road.

There were certain immigrant groups that were well placed to respond to niche openings. In 1990, advocates took advantage of the legal and moral ambiguities regarding the case of El Salvadoran immi- grants.35 While government officials recognized that El Salvadorans would qualify for refugee status under the United Nations Convention Relating to the Status of Refugees of 1951, admitting so would make the United States recognize the war and make it complicit in supporting a human rights-violating regime.36 This ambiguity provided immigrant rights advocates an opening to make demands. One participant in this campaign remembered it in the following way: “The US never wanted to admit that they were funding and training the military in El Salvador. They were involved but they didn’t want to admit that there was a war. So they said: ‘Okay, we understand that people cannot be sent back, but we also cannot recognize this war. So we are going to give them Tempo- rary Protective Status.’”37 Responding to this opening, a concerted effort was made by immigrant rights activists in the late 1980s and early 1990s to represent these immigrants as “deserving refugees.”38 They did this by recruiting immigrants with the appropriate legal and cultural attributes, developing frames and stories that stressed these unique attributes, and training immigrants to tell their stories of political persecution and flight to different publics across the country.

Efforts to respond to niche openings continued throughout the decade. Farmworkers enjoyed the support of large growers associations, some Republican politicians, unions, and large segments of the public.39 This particular group of immigrants was not only presented as contributing an important economic function to the country, but it also had developed a compelling story that dated back to the struggles of the United Farm Work- ers in the 1970s. In another instance, El Salvadorans and Guatemalans saw their temporary status threatened after the passage IIRIRA in 1996. During this time, Congress was also preparing to pass a measure that would legalize asylum-seekers of left-wing regimes in Nicaragua and Cuba (Nicaraguan Adjustment Central American Responsibility Act). Immigrant advocates again saw a niche opening resulting from the legal and moral

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