As we’ve seen, the history of our country has included many laws that today look unjust and discriminatory. The original laws of this country upheld slavery and limited citizenship to white men. Later laws justified lynching and segregation. When we look back at history, we generally honor the people who broke those laws. Rosa Parks broke the law when she refused to move to the back of the bus. Harriet Tubman broke the law when she fled slavery and helped to create the Underground Railroad.
Immigration laws are very different from the laws that we usually have in mind when we talk about people breaking the law. “Breaking the law” conjures up images of assaults, thefts, murders—violations of laws that were created to protect people from harm.
Like other discriminatory legislation in our country’s history, immigration laws define and differentiate legal status on the basis of arbitrary attributes. Immigration laws create unequal rights. People who break immigration laws don’t cause harm or even potential harm (unlike, for example, drunk driving, which creates the potential for harm even if no accident occurs). Rather, people who break immigration laws do things that are perfectly legal for others, but denied to them—like cross a border or, even more commonly, simply exist.
Some undocumented immigrants crossed the border “illegally,” but many in fact obtained legal permission to cross the border and entered the country on visas that allowed them to stay temporarily. When the visa expired, they became “illegal” overnight.
Some citizens wonder why immigrants don’t simply “follow the rules” and do the appropriate paperwork, or renew their visas, or become citizens, thus becoming “legal.” The reason they don’t is the same as the reason that Rosa Parks didn’t sit “legally” in the front of the bus, or Harriet Tubman didn’t “legally” emancipate herself from slavery: because the law was designed not to allow certain groups of people to have the rights that others enjoy.
“If I had the resources and the connections to apply to come legally,” one undocumented Mexican immigrant explained, “I wouldn’t need to leave Mexico to work in this country.” Or, in the words of Pew Hispanic Center demographer Jeffrey Passel, “For most Mexicans, there is no line to get in.”1
For would-be immigrants from the Philippines, for example, the U.S. government was, as of mid-2006, granting visas to people who applied as long ago as 1984. The way the preference system works, if a Filipino has no immediate family in the United States, he or she basically can’t even get in line to wait for a visa. For people in the “fourth preference” category—brothers and sisters of U.S. citizens—visas were just being made available for those who applied in 1984. If you fell into the “first preference”—unmarried children of U.S. citizens, including minor children—Immigration Services was, in 2006, allocating visas to those who applied in 1992.2
What happened to an eighty-one-year-old Haitian Baptist pastor, Joseph Dantica, can help to illustrate the strange netherworld dividing “legal” from “illegal” immigrants. Dantica held a valid multiple-entry visa to the United States. In October 2004, armed Haitian gangs attacked his home and his church in a poor neighborhood of Port-au-Prince, threatening to kill him if he did not give them money they demanded. After going into hiding for several days, Dantica used his visa to get on a flight to the United States, where several of his family members lived.
When he went through immigration in Miami, his visa was approved and stamped for entry. Then the immigration official asked him how long he intended to stay in the United States. When he said that he was planning to ask for political asylum, fearing that he’d be killed if he returned to Haiti, he was arrested.
The law permitted his entrance into the United States on a tourist visa. The law also permitted him to ask for asylum in the United States. But the law also said that he would be arrested for doing these things. Haitians who request asylum from inside the United States are considered guilty until proven innocent.
In Dantica’s case, immigration officials confiscated his medications when they jailed him, and after four days he died in the Krome Detention Center. Family members in the United States were denied the right to see him as he lay dying.3
Technically, the law authorized Dantica’s arrest. If he had been Cuban, instead of Haitian, he would not have been arrested. Under the 1995 “wet foot, dry foot” policy, Cubans are automatically eligible for asylum if they set foot on U.S. territory. That’s why author Tom Miller, commenting on the immigrants’ rights demonstrations in 2006, suggested that “what they really want is to be treated like Cubans … [Cubans] don’t need to wade the Rio Grande or walk the Sonoran Desert—they can simply stroll up to any port of entry along the two-thousand-mile border and say to the U.S. immigration inspector, ‘Soy cubana. ¿me permite entrar?’ I’m Cuban, mind if I come in? And the answer is almost always, ‘come on in!’ ”4
Dantica is only one out of tens of thousands of immigrants each year who commit a victimless crime that is illegal because of who they are, not because of what they did. Mexicans cross the border “illegally” because they are not allowed to cross the border legally. The law discriminates by making it illegal for some people to do what is perfectly legal for others.