Undocumented

There are two main ways to become undocumented in the United States. About half of the undocumented population enters without inspection. They may have attempted to obtain a visa and been denied. More likely, they either knew that such an attempt was hopeless or did not even know that such a process existed and didn’t try at all. So they crossed somehow, usually by land but sometimes by sea, through a border that may have been unmarked, invisible, or at least unpatrolled. Thus, they were not inspected by any official from Immigration and Customs Enforcement (ICE) when they entered. This means that while they may have many kinds of identification documents, they have none that specifically authorizes their entry into the United States.

The other portion of the undocumented population entered with inspection, usually with a visa of some sort or with a Border Crossing Card. One US government estimate calculates that between 30 percent and 60 percent of the undocumented became so through visa overstays, meaning that though they were initially authorized entry, they neglected to leave in the designated time frame.¹

Millions of Mexicans obtain tourist visas every year, and the number has been rising steadily, from about 4 million a year at the beginning of the 2000s to almost 13 million in 2010.² However, the vast majority of Mexicans who obtain tourist visas do not overstay their visas and become “illegal.” Most Mexicans who are undocumented became so by crossing the border without inspection, and most people who become undocumented through visa overstays are not Mexican.

Under today’s immigration laws, citizens of most countries must request a visa in their home country before traveling to the United States. Europeans, as always, are privileged: the Visa Waiver Program allows most of them to enter as tourists (but not to work) without a visa. Some Mexicans are eligible for Border Crossing Cards that allow them to travel for a specified period of time in the border region. Border Crossing Cards are like tourist or visitors’ visas: they authorize entry into the United States, but they don’t authorize the holder to work. People who enter with these kinds of permission can become undocumented if they either overstay their visa or violate its terms in some other way, including, for Border Card holders, leaving the twenty-five-mile border zone. Because nonimmigrant visas are temporary permits with specific conditions attached to them, ordinary activities that are not in themselves illegal can still constitute visa violations. In some cases, there are lies or questionable and illegal activities involved in obtaining the visa itself.

In 2011, 159 million nonimmigrant visitors entered the United States with some kind of legal permission. Thirty-three percent or 53.1 million of them were I-94 card holders, meaning that they either had obtained a nonimmigrant (temporary) visa or were admitted under the Visa Waiver Program. The largest source of I-94 admissions was Mexico, with 33 percent of the total. (The next largest source was United Kingdom, with only 8.6 percent.) Eighty-seven percent of these visa holders had visitors’ or tourist visas that allowed them to travel for business or pleasure. The others held student, temporary worker, or other kinds of visas.³ Some one hundred thousand were H-2 guest workers, some 80 percent of them Mexican. Most of the other two-thirds of inspected entries were Mexicans and Canadians with Border Crossing Cards.⁴

For all categories of nonimmigrant travel, then—as visitors or temporary workers with a visa, with a Border Crossing Card, or as undocumented entries—Mexicans constitute the largest numbers. Of the 11.5 million or so undocumented immigrants in 2006, some 4–5.5 million had entered with visitor or tourist visas, and another 250,000–500,000 entered with Border Crossing Cards. The other 6–7 million entered without inspection.⁵

Although evading ICE inspection points and the Border Patrol is a common method of illegal entry, it’s not the only one. The head of Customs and Border Protection (CBP) explained to researcher Lynnaire Sheridan that before resorting to a dangerous crossing through the desert, migrants could attempt to borrow, purchase, or steal an authentic US passport or permanent resident card. Absent that possibility, they might obtain a false document or alter a document themselves by inserting their own photograph. If they could not access any documents, they might hide in a vehicle and cross at night.⁶ The professional cross-border smugglers Sheridan interviewed offered a rather similar assessment. They told her that the safest way to cross was to obtain a tourist visa or, if that was not possible, to use a valid visa belonging to a family member. A bit riskier was the use of false or altered documents. The most dangerous method was to attempt to cross without being seen, generally in isolated areas with little Border Patrol presence.⁷

Sheridan interviewed many families that had crossed illegally multiple times. They corroborated this assessment. They listed their preferred options as, first, crossing with a tourist visa and overstaying it; second, using someone else’s documents; third, using false documents; and last, attempting to cross without being discovered. If the latter was the only option, they emphasized that the more isolated the area, the more dangerous the crossing.

Cost was also a factor. The safest options were the most expensive. Sometimes families would pay more to have their young children, for example, cross with false papers (perhaps accompanying adults with valid documents), while the adults would opt for a dangerous clandestine crossing.⁸

Another method of crossing the border is with a temporary work visa, generally through the H-2A (agricultural) or H-2B (nonagricultural) programs. (There are other categories of temporary work visas, but most require specific types and levels of skills and don’t apply in most situations.) But with the H-2 program, as with the Bracero Program before it, paperwork and requirements are so bureaucratic and onerous that many employers and potential workers find the program not worth the effort.⁹ There is also a lot of room for illegal and unfair maneuvering within the H-2 system.

US employers begin by requesting authorization to recruit H-2 workers from the Department of Labor. Once an employer receives authorization, they generally turn to a US contracting agency, which in turn contracts with a Mexican recruiting agency to find available workers. Opportunities for abuse within the system abound.

The complexity of the H-2 program and the gap between the overwhelming demand on both sides and the small number of visas actually available make the program ripe for fraud and exploitation. “Illegality” enters the system in numerous ways, as uncovered by a 2010 United States Government Accountability Office (GAO) report. In six cases that the GAO reviewed, “employers charged their H-2B workers fees that were for the benefit of the employer or charged excessive fees that brought employees’ wages below the hourly federal minimum wage. These charges included visa processing fees far above actual costs, rent in overcrowded apartments that drastically exceeded market value, and transportation charges subject to arbitrary ‘late fees.’ Workers left the United States in greater debt than when they arrived. In one case, these fees reduced employees’ paychecks to as little as $48 for a 2-week period.” In eight cases, “employers were alleged to have submitted fraudulent documentation to Labor, USCIS, and State to either exploit their H-2B employees or hire more employees than needed. Employers and recruiters misclassified employee duties on Labor certification applications to pay lower prevailing wages; used shell companies to file fraudulent labor certification applications for unneeded employees, then leased the additional employees to businesses not on the visa petitions; and preferentially hired H-2B employees over American workers in violation of federal law.”¹⁰

Eighty percent of H-2A and H-2B visa requests in Mexico are processed at the US consulate in Monterrey. The director of the Mexican Oficina de Atención al Migrante in that city has filed complaints about “hundreds of cases of fraud” in which unscrupulous agents charge would-be migrants illicit fees in exchange for promises of access to the coveted visa.¹¹ “In practice, nobody can hope to obtain one of these visas if they don’t use the intermediaries. Otherwise how will they find out about the opportunities that exist?”¹² From the perspective of the Mexican worker, working through the H-2 program might be almost indistinguishable from crossing without inspection to work. Both involve relying on shady networks for information, paying exorbitant fees, and working under poor conditions and at wage rates that are frequently “illegal” as well as exploitative.

In 2004, the Farm Labor Organizing Committee or FLOC, a farm-workers’ union in the United States, negotiated an agreement with North Carolina growers that allowed the workers to bypass the contractors. The organization opened an office in Monterrey to monitor the recruitment process there. On September 9, 2007, the director of the FLOC office, Santiago Rafael Cruz, was found tied up, tortured, and murdered. The union suspected that local labor contractors were behind the murder. As FLOC president Baldemar Velázquez explained, “FLOC’s agreement eliminated the extortion of illegal fees from workers by criminal elements. They have been unhappy with the union taking away their goldmine. We disrupted not only the recruiters working for growers in North Carolina, but all the recruiters who recruit workers for all the other states: from Florida and Georgia, through South Carolina and Virginia, all the way up to Pennsylvania and New York.” Labor journalist Dan LaBotz added that “FLOC’s presence in Mexico meant that the racketeers were losing hundreds of thousands of dollars in exorbitant fees and bribes.”¹³

The chains reach deep into Guatemala. Some twelve hundred workers recruited by Mexican agency Job Consultoría paid from $1,000 to $3,000 for supposed access to a visa. In Amatitlán, Guatemala, 370 men and their families attacked local resident Pablo Roberto Valencia in late 2011 when they learned that the money they had given him to pay for their visas had disappeared.¹⁴ According to the Southern Poverty Law Center, workers generally arrive in the United States with debts between $500 and $10,000 owed—illegally—to recruiters.¹⁵

While these workers do enter with visas that authorize their presence and permit them to work in the United States, the process that connects them with these visas violates US, Mexican, and sometimes other countries’ laws. It frequently involves threats, violence, extortion, and debt peonage. These violations are generally met with impunity, however. In fact, the violations are built into the system itself; they are integral to its functioning and to the arrival of officially legal H-2 workers to the United States.

Although the majority of uninspected border crossers are Mexican, others are Central and South Americans. Today, Central Americans often travel a perilous land journey from their homes across one or more countries and through Mexico. A century ago, excluded people like the Chinese entered through Mexico, because of the openness of that border.

While the number of Mexicans crossing illegally has declined in recent years, the number of Central Americans has been steadily increasing. The economic crisis in the United States meant that some sectors, like construction, that had traditionally attracted Mexican migrants, were not hiring. Some experts have also suggested that increased deportation rates, violence along the border, and a declining birthrate in Mexico have contributed to a slowing of Mexican crossings.¹⁶

In Central America, though, economic stagnation and horrific levels of violence, especially in Guatemala, El Salvador, and Honduras, have meant that the numbers crossing into the United States continue to increase. Somewhere between 150,000 (according to the Mexican government) and 400,000 (according to advocacy organizations) undocumented migrants were entering Mexico each year as of 2010, mostly from Central America.¹⁷ In 2011, 46,997 non-Mexicans, mostly Central Americans, were detained at the border; in 2012, the figure more than doubled, to 94,532.¹⁸ While still much fewer than the 188,467 Mexicans detained during the 2011–2012 fiscal year, the trend was clear: the number of Mexicans was decreasing, while that of Central Americans was increasing.¹⁹

Although in even smaller numbers, South Americans also cross the border by land, first traveling by plane to Mexico. In Montevideo, one travel agency offered a choice of a tourist visa and a ticket to New York or a ticket to Mexico and a connection to a coyote who would arrange an illegal land crossing, depending on how much the traveler was willing to pay.²⁰ Similarly in Brazil, travel agents sell package deals that include airfare to Mexico City, a guide to Tijuana, and a coyote for crossing the border. In New York, Maxine Margolis found that only 3 percent of Brazilians in her sample had crossed the Mexican border, but in Framingham, Massachusetts, another study found that 43 percent had. Wealthier Brazilians were more likely to be able to obtain the tourist visa, while those who were poorer and less educated were more likely to have to resort to the Mexican route.²¹

When US consulates in the Dominican Republic began to reduce the number of tourist visas they granted, informal visa brokers began to offer their clients other, more expensive routes. Migrants were sent to Puerto Rico by boat or to Mexico to cross the land border. A market sprang up in forged or false papers. Samuel Martinez noted that while Dominicans saw some modes of entry as preferable to others, the relative illegality was not their prime concern. It was just how the system worked: rich people got preferred access to visas; poor people had to pay huge sums for the same privilege. “‘Legal’ and ‘illegal’ modes of entry are viewed by Caribbean people more as bureaucratic obstacles to circumvent than as immutable law,” he concluded.²²

Eugenia Georges’ research on emigration from the Dominican Republic noted the same pattern of poorer immigrants having to take more costly and dangerous routes. In the town she studied, richer residents—those who owned land or businesses—could usually get tourist visas and fly directly to the United States, since, as property owners, they could convince US consular officials that they would return home after their tourist excursions. Poorer, landless Dominicans had to resort to the more expensive, riskier, indirect route via Mexico.²³

In the case of Central Americans, almost all of those trying to migrate are poor, and their journey through Mexico is a perilous one. In 2001, Mexico—under pressure from the Bush administration—began to implement what it called “Plan Sur” to secure its southern border, while Guatemala countered with “Venceremos 2001” to control exit traffic from its own country. The militarization of this border mirrored what had begun a decade earlier on the US-Mexico border, and the results were also similar. Official statistics showed migration numbers slowing. But migrants and human rights organizations pointed out that these statistics were deceptive. Many migrants shifted away from the newly enforced and militarized checkpoints into more remote areas. As crossing became more difficult and more dangerous, it also became more criminalized, as gangs, drug traffickers, and professional smugglers became involved.²⁴ Deportations also rose, but much more slowly than the migrant stream. Between January and November 2010, the Mexican National Institute of Migration (INAMI) deported 49,143 Central Americans: 19,876 Hondurans, 8,263 Salvadorans, 20,354 Guatemalans, and 646 Nicaraguans.²⁵ Another 40,971 Central Americans were detained in Mexico in 2012.²⁶

Many Central Americans attempt to cross Mexico by stowing away on the freight trains that run from Chiapas on the Mexico-Guatemala border up to Mexico City and then on to the US border. The journey can take days or weeks, as migrants slip from train to train. Up to fifteen hundred Central Americans attempt to board La Bestia or the Beast—also known as “The Train of Death”—every day. Thousands have been killed or maimed in the process.²⁷

Because migrants carry money for their trip and because most of them have relatives working in the United States who are helping to pay for them and can be extorted for ransom money, the kidnapping of migrants has become a regular occurrence on their trip through Mexico. In just six months between September 2008 and February 2009, the Mexican National Human Rights Commission uncovered cases of almost 10,000 migrants kidnapped.²⁸ From April to September 2010, the commission found 11,333 kidnapping cases. “This figure reflects the fact that there have not been sufficient government efforts to lower the rates of kidnapping affecting the migrant population,” the commission declared. Most of the cases discovered by the commission were Hondurans (44.3 percent), followed by Salvadorans, Guatemalans, Mexicans, and small numbers of Cubans, Nicaraguans, Colombians, and Ecuadorians.²⁹

Although various social actors—including Mexican police and other government officials—participate in kidnapping and extortion networks, their modus operandi is similar: migrants are captured and tortured to force them to reveal contacts in their home country or in the United States. The kidnappers then call these relatives or friends and demand payment, threatening to kill the migrant if they don’t comply.³⁰ The majority of kidnappings take place along the train route or on the trains themselves.

Kidnapping is only part of the story. A Mexican church-based human rights coalition decried a broad spectrum of “human rights violations committed by public servants and federal, state, and municipal police. This criminalization of undocumented migration sets the stage for physical, psychological, and sexual aggression, and human trafficking.”³¹

The emergence of the Zetas cartel in 2002 greatly worsened the situation just as the numbers of Central American migrants passing through Mexico was increasing. According to Mexico’s Assistant Attorney General’s Office for Special Investigations on Organized Crime, “its main activities include extortion and sale of protection services, carrying out assassinations, holding and selling drugs, piracy, gasoline sales, and the capture and ransom of hostages.” According to victims, the Zetas are the main perpetrators of migrant kidnappings.³²

The Zetas use a strategy of displacing and taking control of small communities. They terrorize and extort the local population and co-opt individuals who belong to gangs or small local bands, training them to carry out actions like surveillance of trains, apprehension of migrants, transferring and overseeing migrants in safe houses, making telephone calls for the purpose of extortion, and receiving the ransom. These delinquent groups, made up mostly of young people, are popularly known as the “Zetitas.” In every kidnapping case they also commit serious crimes like assassination, sexual exploitation, and human trafficking. In its first two years, the Zetas cartel succeeded in establishing itself all along the routes traveled by migrants.³³

As the flow of Central American migrants increased, so did cases of kidnapping, especially after 2007.³⁴ In one notorious case, in August 2010, seventy-two migrants from El Salvador, Honduras, Guatemala, Ecuador, and Brazil were victims of a massacre as they passed through Tamaulipas on their way to the border. Their captors—members of a drug gang, possibly the Zetas—demanded that they pay ransom or agree to work as couriers. When the migrants refused, they were slaughtered. A lone survivor managed to reach a nearby military base and tell the story of what had transpired. A year later, a young member of the Zetas confessed to the crime.³⁵ In another massacre, in May 2012, forty-nine mutilated bodies of supposed migrants were found dumped along a highway near Monterrey. “Because of the number of people, it appears that they could be passengers from a bus full of illegals; it could be a case in which organized delinquents [i.e., drug cartels] were extorting the coyote, since they have now taken over this illegal business,” a Mexican government representative explained.³⁶

According to the Human Rights Coalition report, “Migrants are typically captured on the trains themselves, or while waiting along the tracks. Groups of heavily armed persons approach the migrants, force them onto pickup trucks, and take them to safe houses. The kidnappings are carried out with unremitting brutality. In the ‘safe houses’ where they are held they suffer all kinds of tortures, cruel and inhuman treatment, and physical and psychological punishments, until their family in the United States (or in Central America) collects the money for their ransom.”³⁷

Mexican government officials have also been heavily implicated in these abuses. The Mexican INAMI and state security forces carry out “migration verification operations” on the trains, sometimes using electric shock instruments. They detain some migrants, leaving others in the hands of the gangs or armed groups.³⁸

While it might be tempting to simply blame this violence against migrants on Mexican actors, the situation really can’t be separated from its larger context: the criminalization of migrants by the United States, and its pressure on Mexico to enforce similar policies. While Mexico has publicly denounced US anti-immigrant policies, its government has also collaborated in many ways. US policies create a political context—illegality—that legitimizes abuses against migrants. The Bishop of Saltillo in northern Mexico articulated what many Mexicans and Central Americans believe: “My conclusion is that the Mexican government’s migration policies are aimed at preventing migrants from crossing into the United States. It is abundantly clear that the impunity enjoyed by organized crime, like that previously enjoyed by gangs, is a policy of terror.”³⁹ A policy of terror that thrives in and serves the climate of criminalization of immigrants in their destination.

Crossing the US-Mexico border used to be a rather mundane affair, as described in earlier chapters. With politicians pandering to (and fanning the flames of) the rising anti-immigrant climate inside the United States in the early 1990s, the border changed dramatically. Operation Hold the Line in El Paso in 1993 and Operation Gatekeeper in California in 1994 began today’s still-ongoing obsession with the border.⁴⁰ In September 1993, the Border Patrol chief of the El Paso Sector, Silvestre Reyes, launched his new policy, a “highly visible show of force along a 20-mile section of the boundary dividing El Paso from Ciudad Juárez. Inspections at official ports of entry also intensified. The strategy represented a radical departure from the prior Border Patrol strategy of pursuing and apprehending unauthorized immigrants after they had crossed the boundary into the El Paso area.” Apprehensions quickly fell in this sector, not because overall border crossings declined, but because migrants simply shifted to new crossing points.⁴¹

Likewise, Operation Gatekeeper in California succeeded in deflecting migrant traffic away from the sixty-six-mile stretch known as the San Diego Sector of the border. Operation Gatekeeper included construction of a wall, massive deployment of Border Patrol agents along the border, stadium lighting, vehicles, sensors, and other equipment. Beginning at the Imperial Beach Station in the west and moving east, the Border Patrol hoped to bring the entire San Diego Sector “under full control” within five years.⁴² As in Texas, “control” did not mean that migrants stopped coming; they simply moved to other, much more treacherous entry points.

In 2009, the American Civil Liberties Union and Mexico’s National Human Rights Commission on accused the US government of causing thousands of deaths at the border. “This report is the sounding of an alarm for a humanitarian crisis that has led to the death of more than 5,000 human beings,” they declared. The crisis was a direct result, they said, of US decisions: “The deaths of unauthorized migrants have been a predictable and inhumane outcome of border security policies on the US-Mexico border over the last fifteen years.” The new policies implemented by Gatekeeper, militarizing the more populated San Diego Sector, “intentionally forc[ed] undocumented immigrants to extreme environments and natural barriers that the government anticipated would increase the likelihood of injury and death.”⁴³ To reach safety, migrants had to hike for miles over treacherous desert terrain, enduring the extreme heat of the days and cold of the nights. Few were able to carry enough water. As the death rate rose precipitously, “the chief cause of death shifted . . . from traffic fatalities to deaths from hypothermia, dehydration, and drowning.”⁴⁴

The Arizona-based Coalición de Derechos Humanos has tallied the dead in the Arizona sector since 2000. Basing its figures on recovered remains, the organization noted that at least 100 to 300 have died each year, with the highest number, 282, being reached in 2006. Since many remains are not recovered, the actual death rates are considerably higher. The organization attributes the slight decline after that (down to 179 in 2011–2012) to lower numbers of total crossings.⁴⁵ A GAO investigation in 2006 found that border-crossing deaths had doubled in the past decade, to a high of 472 in 2006. Three-quarters of the increase was due to rising death rates in the Tucson sector, and most were due to heat-related exposure.⁴⁶ The Pima County, Arizona, medical examiner’s office took custody of the remains of 1,915 migrants who died in the desert between 2001 and 2010.⁴⁷ The Border Patrol’s own figures corroborated the high (492) in fiscal year 2005 and show that despite a slight drop after that, numbers rose again, to 483 in fiscal year 2012.⁴⁸

Even as the total number of people crossing may have declined after 2006, the process became increasingly dangerous. The Arizona Daily Star noted that the ratio of known deaths per apprehensions rose from three per one hundred thousand in 1998 to thirty-nine in 2004 and eighty-eight in 2009. “That means the risk of dying is more than twice as high today compared with five years ago and nearly 30 times greater than in 1998,” the newspaper reported at the end of 2009. “Border-county law enforcement, Mexican Consulate officials, Tohono O’odham tribal officials and humanitarian groups say the increase in fencing, technology and agents has caused illegal border crossers to walk longer distances in more treacherous terrain, increasing the likelihood that people will get hurt or fatigued and left behind to die.”⁴⁹

In response to the growing death rate and the outcry it provoked, the Border Patrol initiated the Border Safety Initiative in 1998 and formed BORSTAR to train agents in search, trauma, and rescue. The goal was to address the humanitarian crisis created by the United States’ own new border policies. Border Patrol agents did provide life-saving aid to hundreds of migrants in the years since the program was initiated. But “while the Tucson Sector BORSTAR unit routinely provided search, rescue, and medical intervention to undocumented immigrants under harsh conditions, the number of times it responded was insignificant in comparison to the volume of Border Patrol law enforcement activities.”⁵⁰ Soon, other, independent church-based and grassroots organizations began to form to try to respond to the issue.

The laws that allow or disallow entry into the United States are and have always been arbitrary and discriminatory. One set of laws, primarily for Europeans and for the wealthy, allows freedom of travel. Another set, for Latin Americans and the poor, creates a labyrinth of enticements and obstacles.

The Las Americas Premium Outlets complex on the US side the Tijuana–San Ysidro crossing just south of San Diego symbolizes the contradiction. Looming over the border, the 125 outlet stores beckon to tourists from the Mexican side, offering them a consumer mecca if they cross to shop. “The big fence surrounding the outlets and the Mexican flag [just beyond the complex, on the other side of the border] was a bit distracting,” wrote one US reviewer on the popular website Yelp.com.⁵¹ Between the mall and the flag are the imposing border wall and the security apparatus that sustains it, reminding Mexicans that their welcome is decidedly conditional.

Myriad historical and economic factors draw and sometimes force migrants from their homes into the US economy. Many of these factors are the result of deliberate decisions implemented by US employers, investors, and government. At the same time, increasingly convoluted webs of laws, restrictions, and discrimination ensure that migrants remain in a subject position, exploitable and exploited. Today, the system works by drawing or forcing them into a status deemed illegality.

The borders that divide immigrants from the United States are not just physical. Once inside the country—whether by means of a traumatic border crossing or a simple visa overstay—people without documents live behind another kind of border, a baffling and sometimes terrifying border that separates them from those around them and the country and society in which they live. These internal borders are the subject of the next chapter.

Becoming Illegal