Undocumented

Arbitrary and precarious. If life for poor people in Mexico and Central America seems to be filled with precarious status and arbitrary events to which they must simply adapt in order to survive, life in the United States continues the pattern. Why do some government agencies welcome the undocumented, while others ignore them, and still others threaten, imprison, and deport them? What really determines their status, and why does it seem to change so frequently and unpredictably? How can they plan for the future or prepare, when everything seems so capricious?

In the minds of most citizens, the terms “legal” and “illegal” are clearly defined and clearly distinguished categories. In real life, though, there is a large gray area between the two ostensibly opposite poles. Most people who are undocumented live ordinary lives and are not immediately distinguishable from immigrants with documents or from citizens. Yet in some ways, hidden to the outside, documented world, their lives are very different. As Jose Antonio Vargas puts it, “Everyday life for an undocumented American means a constant search for loopholes and back doors.”¹

Most of the approximately 11 million undocumented people in the United States have been here for quite a while. As noted earlier, only 14 percent arrived in the country after January 1, 2005, meaning that 86 percent have been in the country for over seven years.² While the law may consider them alien, most of them are people who have deep roots in the United States.

Mexicans are overrepresented among those deported: Mexicans make up 58 percent of the undocumented population, but 70 percent of those deported are Mexican.³ Apparently, being Mexican makes you somehow more undocumented, in the eyes of society and of law enforcement, than others. Since undocumentedness is a socially imposed status, then how you are seen by those in authority is in fact what brings it into being.

Many individuals have experienced being both documented and undocumented. Laws have changed, as in 1986 when many undocumented people were offered the chance to legalize. Individuals who entered the country legally may fall out of status if they violate the terms of their visa in some way, while, more rarely, those who are undocumented may find a way to regularize their status.

The 1986 Immigration Reform and Control Act, the country’s most recent attempt at some sort of supposedly comprehensive immigration reform, exemplified the arbitrary nature of immigration law. In order to qualify for legalization, migrants must have resided in the country continuously since January 1, 1982. This cutoff date meant that the large numbers of Central American immigrants who arrived later were excluded. Of the 500,000 to 850,000 Salvadorans in the country in 1986, only 146,000 qualified.⁴ The American Baptist Churches v. Thornburgh (or ABC) Settlement Agreement in 1990 reopened thousands of political asylum cases, offering a new chance for legal residence for undocumented Salvadorans and Guatemalans. But the process was agonizingly slow, and tens of thousands of Central Americans remained in limbo through the 1990s, renewing their work permits every eighteen months as their cases languished.

The Immigration Act of 1990 (IMMACT)—among many other provisions—created the new category of Temporary Protected Status (TPS), offering temporary protection and work authorization to immigrants from countries affected by war or natural disaster. Salvadorans were granted TPS, based on the state of civil war in the country that made it impossible for them to return. Guatemalans, despite the war in their country, were not included. TPS for Salvadorans was extended several times, but ended in 1995 after a peace agreement ended the war. At that time, some 1 million Salvadorans lived in the United States. Half of them were legal immigrants, and between 90,000 and 190,000 had been protected by TPS.⁵ (Some 200,000 applied originally, but many failed to complete the repeated renewal process.)⁶ When TPS ended, many Salvadorans returned to the stalled asylum process.

The 1997 Nicaraguan Adjustment and Central America Relief Act (NACARA) was an attempt to address the backlog in asylum cases by offering permanent residency to certain asylum seekers. But NACARA too left many Guatemalans and Salvadorans in limbo, as it favored Cuban and Nicaraguan petitioners and continued to be plagued with backlogs. In 2001, the INS estimated that it could take “up to 20 years” to process the pending, almost three hundred thousand Central American applications.⁷ Between 1999 and 2003, the approval rate for Salvadoran and Guatemalan asylum applicants hovered between 7 percent and 11 percent, not much higher than the low rate in the 1980s that had led to the ABC lawsuit. For applicants from other countries, the rate was 33 percent to 44 percent.⁸ Salvadorans and Guatemalans, in the words of Cecilia Menjívar and Leisy Abrego, “have faced being granted only temporary permits, seemingly interminable applications, re-applications, long waiting times for their applications to be processed, and the threat of imminent deportation.” Neither fully legal nor illegal, they exist in a state of “permanent temporariness” or “liminal legality.”⁹

Menjívar describes the experiences of many undocumented Central American immigrants:

Occasionally they are granted temporary relief from deportation with multiple and confusing deadlines for applications and renewals of permits and convoluted application procedures (e.g., fees, forms, photos, fingerprints, proofs of residence, and innumerable caveats and conditions). Indeed, so much work is involved in preparing these applications and information is so difficult to obtain that a veritable industry has developed among document preparers, notaries, and other entrepreneurs (some of whom are not particularly well qualified) to fulfill the needs of Central Americans applying for the different dispensations. This situation creates enormous anxiety, as each deadline accentuates these immigrants’ precarious situation, which for many has gone on for over two decades.¹⁰

Immigration law revisions have continued the pattern of creating new ways of punishing illegality, while concomitantly creating sometimes unexpected and apparently arbitrary new avenues for legalization. A new Temporary Protected Status for Salvadorans (2001) and Haitians (2011) offered undocumented people from those countries a temporary respite, but with the knowledge that it could just as easily be rescinded in the future. President Obama’s June 2012 announcement of Deferred Action for Childhood Arrivals (DACA) granted some youth a similar two-year reprieve during which they could receive temporary documents, including permission to work, but with no prediction about what their status would be at the end of those two years.

Many migrants hope that someday a legal avenue will be opened for them to regularize their status, as occurred in 1986, and do everything possible to improve their chances for obtaining legal status if and when the opportunity arises. Thus, once in the United States, they are constantly torn between laws they feel they have no choice but to violate (for instance, laws that prohibit them from working) and a desire to prove themselves as law abiding and deserving of legal status.

For this reason, many thousands of undocumented immigrants apply for and receive Individual Taxpayer ID Numbers (ITINs) that allow them to file income tax returns each year. They readily appear in court when cited for traffic violations or the more serious charge of driving without a license. Yet they continue to work and drive without official authorization to do so.

The social service network is often a maze of complexity even for citizens and contributes to the arbitrariness that undocumented status entails. Undocumented immigrants are eligible for some types of benefits, while both the undocumented and temporary immigrants with legal documents are restricted from others. Since 1996, even legal permanent residents are excluded from many services. Disentangling what an immigrant is legally eligible for is a complex task. Furthermore, as people often live in mixed-status families, different services may be available to different members. Regulations for welfare, Medicaid, and other types of social services have struggled to parse the categories and decide exactly what “lawfully present” means when determining eligibility. Several pages of the 2011 edition of the United States Code are needed to explain the various legal statuses and determine which qualify a person for different types of benefits.¹¹

The complexity reveals both the legal and moral difficulty of identifying individuals by status and the confusing questions that undocumented immigrants face. Why does one government agency want to help them, while another wants to harm them? Can they be punished for accepting services that are offered to them?

To further confuse the issue, most social service providers are trained and eager to make sure that people obtain access to the services for which they are eligible. Undocumented immigrants may be overwhelmed with phone calls and urgings to accept certain benefits, while finding it impossible to access others that are even more urgently needed. (Of course, this is true for citizens as well.) The patchwork reflects competing interests in the passage of laws and the interests of agencies, but, like status itself, presents a bewildering panorama to those in need.

Immigrants may learn that pregnant women are eligible for the federal Women, Infants, and Children (WIC) food supplementation program, but not for the Supplemental Nutrition Assistance Program (SNAP). One (US-born) child might be eligible for SNAP, while another (foreign-born) child in the same family is not. Undocumented children can go to Head Start and to public schools, but their eligibility for public higher education varies by state. The Affordable Care Act explicitly excludes the undocumented from eligibility, but hospital emergency rooms are still required to provide care for them. They are not eligible for publicly funded housing, but can live in such housing if it’s shared with a qualified family member who is not undocumented.

Because they are ineligible for most publicly funded social services, and because they are generally reluctant to claim even those services for which they may be eligible, the undocumented tend to place fewer costs on the public coffers than would be expected, given their low incomes. In a careful study of the fiscal impact of undocumented immigration, the Center for Immigration Studies concluded that “the primary reason they create a fiscal deficit is their low education levels and resulting low incomes and tax payments, not their legal status or heavy use of most social services.”¹²

Almost all people who are undocumented in fact possess a spectrum of valid and fraudulent papers. They may hold a birth certificate, driver’s license, or passport from their home country, but lack a visa authorizing their presence in the United States or perhaps hold an expired visa.

There are many degrees of fraudulence and many methods for trying to gain access to the documents people need for everyday life. One of the first documents an undocumented immigrant needs upon arrival in the United States is a Social Security card. A thriving underground business in false (and often poorly made) Social Security cards preys on the newly arrived. For a few hundred dollars, the forgers simply place the immigrant’s name—or a false name—along with a random number on a card designed to approximate an actual card.

Since the E-Verify program has become more common in the past decade, more undocumented people are finding that they need a Social Security number with a correctly matched name. Sometimes, an immigrant can borrow a name and number from a friend or relative. Or, for a much higher fee, a forger will sell an immigrant an actual person’s name and Social Security number.

Puerto Rico has been an especially lucrative source for valid birth certificates and Social Security numbers with Spanish names. A person might sell his own documents, those of a child or elder who is not working, or even those of a person who has died. Or the documents could be stolen. The buyer—often an undocumented immigrant in the continental United States—most often just wants a valid Social Security number that matches the name on the card so that he or she can work. In some cases, though, the fraud moves into more aggressive theft, where a person will use the documents to apply for social services that are available only to citizens or to obtain tax refunds, loans, or credit in the other person’s name.¹³

In 2010, the Puerto Rican government responded to the situation by invalidating all Puerto Rican birth certificates and requiring everyone born in Puerto Rico to obtain a new, more secure document. Many were skeptical that this would end the problem. One Puerto Rican citizen explained drily, “Money buys everything. . . . Anyone will do anything for money.”¹⁴

There’s a big difference between using a false number and identity theft. In a case of identity theft, an individual attempts to access someone’s bank account, credit card, or other property to benefit from it. Using a false Social Security number—even if it happens to belong to someone else—does not give you access to anything that actually belongs to that person. Rather, when an employer pays payroll taxes using the false number, the IRS flags the discrepancy and simply transfers the Social Security payments into its Earnings Suspense File.¹⁵ The person to whom the number actually belongs is not affected in any way. In recognition of the ubiquity—and the harmlessness—of the use of false Social Security numbers, the Obama administration clarified that using a false Social Security number would not count against a young person applying for DACA.

Marrying for documents is another strategy that ranges from legal to illegal, with myriad shades of gray in between. Some marriages may be arranged as financial transactions between strangers solely in hopes of obtaining documents. This practice is illegal, and ICE prosecutes people who obtain legal residency through this kind of arranged marriage. But not all marriages of convenience are fraudulent. No laws govern the amount of love a person must feel in order to marry; most people who marry do so for a spectrum of reasons ranging from the emotional to the extremely practical. There is nothing illegal about marrying for security, money, prestige, or power.

During the 1980s and ’90s, most states had no rules preventing the undocumented from obtaining a driver’s license and driving legally. This changed after 9/11, when suddenly driver’s licenses were turned into a matter of national security. Millions of people who had been driving legally, with legitimate licenses, found that driving had become illegal.

The REAL ID Act of 2005, passed as part of the recommendations made by the 9/11 Commission, attempted to set a national standard for driver’s license issuance. Among other things, the act required a birth certificate or passport with a visa that demonstrated that the person was in the country legally. The license would then serve as an electronically readable, federally approved identification card. The Department of Homeland Security would set the standard and approve the cards, essentially turning the state-issued driver’s license into a national identity card.

The act was slated to go into full effect in 2008, but full implementation was postponed several times. By the end of 2012, most states were in compliance. Once fully implemented, a driver’s license from a state not in compliance would not be considered valid identification for travel, opening a bank account, applying for benefits or Social Security, or entry into federal buildings.

Driving is such a basic necessity for adult life in most of the United States that numerous methods have emerged for undocumented immigrants to obtain a license. Like a Social Security card, a false driver’s license can be purchased. A new industry mushroomed, making false driver’s licenses. Some people used licenses from their own countries—legal or falsified. Others traveled to New Mexico or Washington State—two states that still allowed the undocumented to obtain a license—and claimed residence there.

In Utah, the legislature created a “driver privilege card” in 2005 for those unable to obtain a driver’s license because they had no Social Security card. The privilege card cannot serve as official identification, but it does certify that the holder has passed a driving test and entitles him or her to drive. Other states, concerned with the safety problems posed by the proliferation of unlicensed drivers, experimented with other kinds of driving permits that would evade the REAL ID Act. Some allowed noncitizens to use a license from their own country for a limited period of time while in the United States.

Even immigrants legally authorized to work are not always able to obtain the license they need. Part of the problem is legislators’ simple ignorance of the amazing complexity of immigration law and status. The state of Texas, for example, passed legislation in 2007 requiring that, in order to obtain a commercial driver’s license, an applicant must be a citizen, a legal permanent resident, an asylee, or a refugee, or else provide an I-94 form proving that they crossed the border legally. But there are many immigrants who are legally present and have work authorization but don’t fit into those categories.

A large number of Central Americans in Texas have Temporary Protected Status, which authorizes their continued presence and allows them to work even if they were formerly undocumented. Other undocumented immigrants may have received authorization to work while they pursue an asylum case. These statuses do not, however, grant them a permanent status like resident, asylee, or refugee. Nor do they retroactively create an I-94 form making their initial entry legal. They give recipients other legal documentation. When the legislature passed the Transportation Code, however, it failed to take these other categories into account and thus made it impossible for these state residents to obtain or keep their licenses.¹⁶

In the case of the driver’s license, a fraudulent document is not generally of much use. Police are trained and motivated to recognize a fake license, unlike employers, who are usually content to do the minimal inspection required by law. Many undocumented immigrants simply drive without one. The consequences, like so much about immigration law and enforcement, are arbitrary. Depending on the state, or even the community within a state, an undocumented, unlicensed driver who is stopped by police might receive warning or a small fine, or might lose his or her car or be imprisoned and deported. If a jurisdiction is participating in a federal program like ICE 287(g) or Secure Communities, which requires officials to share data on those arrested with ICE, a routine court appearance might end in incarceration and deportation. In 2010, the New York Times estimated that 4.5 million undocumented people were driving, mostly without licenses. That year, some thirty thousand of those stopped for common traffic violations—or even being involved in an accident in which they were not at fault—were deported.¹⁷

Some law enforcement agents support the hard-line position. Republican state senator Chip Rogers of Georgia took a get-tough attitude in promoting the draconian driving laws in that state. “There are certain things you can’t do in the state of Georgia if you are an illegal immigrant,” he said proudly. “One of them is, you can’t drive.”¹⁸ In Los Angeles, however, the police chief joined Mayor Antonio Villaraigosa and the police commission in overturning a rule impounding the car of anyone found driving without a license. The police union protested vociferously, but the conservative city attorney backed the change.¹⁹

Law enforcement agencies have frequently had very mixed reactions to federal efforts to toughen immigration policies. In Framingham, Massachusetts, the police pulled out of the 287(g) Program two years after adopting it. The police chief, Steven Carl, “said he signed up two years ago exclusively to tap into federal databases to investigate crime, and balked when federal officials wanted him to detain immigrants, transport them and even testify in immigration court. Carl said that could hurt the police’s relationship in the community, where 26 percent are immigrants. ‘It doesn’t benefit the police department to engage in deportation and immigration enforcement,’” he explained.²⁰

In contrast, when Massachusetts governor Deval Patrick announced his intention to withdraw Massachusetts from the federal Secure Communities program, the chief of police of Milford, a town not far from Framingham and, like the latter, home to large numbers of immigrants, had the opposite reaction. “It takes an important tool away from police officers, who are trying to perform a difficult job,” the police chief said. “We need to make it clear to (people) who are here improperly, and those who are engaged in employing them, that we need to take this issue seriously.”²¹

It’s illegal to cross the border without inspection and/or without approval from US immigration authorities. As we’ve seen above, about half of the undocumented population entered the country illegally (as opposed to entering with inspection and permission, but overstaying or violating the terms of their visas). Entering the country illegally is a crime, and a person who does so can be subject to up to six months in prison. Entering the country again after being deported is a more serious crime—a felony—punishable by up to two years in prison. Simply being in the country without authorization, though, is not in itself a crime but rather a civil violation, remedied by removal (either voluntary departure or deportation) rather than a criminal penalty. Unlawful presence becomes a criminal offense only “when an alien is found in the United States after having been formally removed or after departing the US while a removal order was outstanding.”²²

Even when a would-be immigrant is apprehended at the time of unlawful entry, neither criminal nor civil immigration charges have generally been pressed. Because the standards for criminal prosecution are much higher than for immigration proceedings, the government has every incentive to keep immigration violations out of the criminal court system. The immigration court system has a backlog of hundreds of thousands of cases, which means that an immigrant sent into that system will likely be subject to a lengthy—and expensive—detention.

Many immigrants who are apprehended are offered voluntary departure or voluntary return, meaning that the person leaves the country without being officially deported. There is no order of removal, but the person tacitly admits to removability, that is, to being present without authorization. Under voluntary departure, the person is given a time limit and permitted to arrange his or her own departure. Mexicans apprehended at the border are usually granted voluntary removal, which means that they are bused back to the border and deposited on the Mexican side.²³ For many immigrants, especially those who have little likelihood of winning an immigration case, voluntary departure is the preferred route, although many who depart voluntarily soon attempt to reenter.

Immigrants apprehended in the interior or those apprehended at the border who do not accept voluntary departure, who are accused of other crimes or infractions, or who are flagged for other reasons may instead be subject to formal (involuntary) removal or deportation. In this case, they must appear before a judge who orders their deportation.²⁴ Those who are removed are not deemed guilty of any crime, and removal is not considered a punishment. Once a person is formally removed, however, attempted reentry becomes a felony, and unlawful presence too becomes criminalized.

For most of the twentieth century, voluntary departures—mostly by people apprehended by the Border Patrol and returned (usually to Mexico) without an official deportation order—were far more numerous than removals. Since 2006, the number of voluntary departures has plummeted, from over a million a year down to only 323,000 in 2011, while the number of removals (mostly people apprehended in the interior) has risen steadily, surpassing 50,000 a year for the first time in 1995 and then rising quickly to almost 400,000 a year since President Obama was elected in 2008.²⁵

Some attribute the decline in border apprehensions to increased enforcement. The Border Patrol, they point out, grew from nine thousand agents in 2001 to twenty thousand by the end of 2009, and twenty-one thousand by 2012, while the Customs and Border Protection budget rose from about $6 billion in 2004 to about $11 billion in 2009. (The Border Patrol accounted for about $1.4 billion of that.) The border wall grew and employed increasingly sophisticated technology. The purpose of all this so-called “enforcement” was to discourage potential border crossers from even trying. Maybe it was working, some argued. Others, though, attribute the decline to the economic downturn in the United States, arguing that fewer people are trying to cross the border, as demand for their labor has declined.²⁶

Meanwhile, the number apprehended by ICE Enforcement and Removal Operations inside the country skyrocketed, principally as the result of the Obama administration’s emphasis on programs for interior enforcement.²⁷ This meant that many more people with jobs, lives, and community ties in the United States were being uprooted and deported. Through 2005, only about 5 percent of Mexicans deported had been in the United States for over a year. In 2010, two years into President Obama’s first term, over a quarter of those deported had been in the United States for over a year; in 2011, it was almost half.²⁸ Meanwhile, in 2010, ICE requested $5.5 billion in discretionary funds for the following year, the majority of which was designated for detention and deportation.²⁹ Enforcing illegality was an expensive operation.

Although illegality resides inherently in the realm of law, it has significant economic implications, as discussed in the next two chapters. Employers of low-wage labor benefit from the illegal status of some workers, as do consumers of low-cost goods and services. State and local budgets face costs that result from the economic marginalization of the undocumented, while federal programs like Social Security benefit handsomely from payments into the system by undocumented workers who will never be eligible for benefits.

Illegality also has significant benefits for the prison system, in particular, the new and mushrooming private prison system. Immigration enforcement creates jobs in the prison industry, which in 2011 employed eight hundred thousand people and cost some $74 billion a year.³⁰

But beyond the economic costs and benefits to different sectors of society, there are other, intangible benefits. Politicians and talk-show hosts have zeroed in on the issue to whip up audiences and support. Anti-immigrant sentiment and, especially, the demonization of the undocumented can bring votes and attention.

What Leo Chavez calls the “Latino threat narrative” overlaps with anti-undocumented sentiment, as “Mexican immigration, the Mexican-origin population, and Latin American immigration in general [came] to be perceived as a national security threat” in the 1990s.³¹ The threat narrative, Chavez explains, has been expressed so repeatedly that its components have become culturally accepted. Mexican immigrants are “illegal aliens” or criminals, the narrative suggests. They want to create a “Quebec” (i.e., a culturally and linguistically distinct region), invade the country, or reconquer the Southwest. They refuse to learn English or assimilate, procreate too rapidly, and threaten national security.³²

In addition to attracting votes or increasing ratings, the Latino threat narrative serves the more subtle purpose of channeling national anxieties about social inequality; environmental crisis; economic downturn; lack of access to jobs, housing, health care, and education; deteriorating social services; and other real issues facing the US population away from their real causes. Those who benefit from the status quo would rather have people blame immigrants than fight for real social and economic change.

According to the American Civil Liberties Union, the detention of immigrants has reached “crisis proportions.” “Over the last 15 years, the detention system more than quintupled in size, growing from less than 6,300 beds in 1996 to the current capacity of 33,400 beds. In 2010, the Department of Homeland Security (DHS) held 363,000 immigrants in detention in over 250 facilities across the country.”³³ Meanwhile, ICE’s detention operations budget jumped from $864 million in 2005 to over $2 billion in 2012.³⁴ According to Amnesty International, the use of detention for immigration violations contradicts international rights law against arbitrary detention. “Everyone has the right to liberty, freedom of movement, and the right not to be arbitrarily detained,” Amnesty explained.³⁵

Immigrant detention sends people into a Kafkaesque netherworld. Immigration court is a separate entity from the criminal justice system; it is an administrative court. This means that the whole body of law designed to protect those accused of crimes and guarantee them a fair trial does not apply. (An immigrant accused of a crime does receive those rights in criminal court, however.) In the immigration detention system, prisoners have few rights and often lack the means to find out what rights they do have or make use of these rights. For example, immigrants have the right to be represented by an attorney, but not at public expense. Many detainees don’t know that they have the right to representation, don’t know how to obtain representation, and/or can’t afford it. For those who do go through deportation hearings, 84 percent lack representation.³⁶

Some detained migrants will choose voluntary departure because it leaves their names clear for a legal entry sometime in the future. Many are unaware of legal provisions that might authorize them to remain in the country and have no way to find out about them, since they have no way to obtain legal counsel. Some choose voluntary departure to escape lengthy detention, even if they are convinced that their case to stay could be won if they were to finally obtain a hearing. Unlike those detained on criminal charges, immigrants have generally been ineligible to be released on bail.³⁷

If they do not choose (or are not offered) voluntary departure, detainees have the right to a hearing before an immigration judge to determine whether they can obtain legal permission to remain in the country. Some detainees may be eligible for political asylum; others, for parole or prosecutorial discretion based on the lack of a criminal record, family relationships to citizens or permanent residents, hardship that would be caused to citizens or permanent residents (e.g., to their children who are citizens) by their removal, or other reasons. But without a lawyer to argue their case, immigrant detainees may have no idea what kinds of arguments could work in their favor.

Moreover, the deportation procedures for those who reject voluntary departure are often quite lengthy. While the proceedings crawl along, the petitioner remains in detention. A study by Amnesty International found that “immigrants and asylum seekers may be detained for months or even years as they go through deportation procedures that will determine whether or not they are eligible to remain in the United States.” The average was ten months, but some individuals remained in detention for up to four years before a decision was reached.³⁸ If the judge who hears the case rules against them, they will be deported and barred from legal reentry, usually for ten years.

A new twist in this system emerged at the border in 2005 with Operation Streamline, described in the introduction, which takes migrants caught at the border out of the civil immigration system and lodges criminal border-crossing charges against them. After a criminal conviction, they are generally sentenced to time served and returned to ICE for civil removal procedures. The program has been expanded along the border, so that by 2012 every border sector participated, with some referring all of those apprehended for criminal prosecution. Tens of thousands of migrants who would have been returned to Mexico are now instead detained, tried, and incarcerated at government expense. While Streamline aims to rush dozens of cases through each court every day, the size of the program—some fifty-five thousand prosecutions a year—still means that the government requires a large amount of short-term space for incarceration.³⁹

Since 2005, the federal government has spent $5.5 billion on private prison contracts for criminal immigration cases, over $1.4 billion in 2011 alone.⁴⁰ At the end of 2011 there were sixty-three thousand Streamline cases in pretrial detention and twenty-five thousand convicted and incarcerated.⁴¹ District Court Judge Sam Sparks of the Western District of Texas protested that “[t]he expenses of prosecuting illegal entry and reentry cases (rather than deportation) on aliens without any significant criminal record is simply mind boggling. The US Attorney’s policy of prosecuting all aliens presents a cost to the American taxpayer that is neither meritorious nor reasonable.”⁴²

Streamline and the overall increase of federal prosecution of immigration violations turned immigration cases into the top federal crime by 2011.⁴³ Immigration is a highly racialized crime: as immigration charges began to take up more and more of the federal criminal caseload, it meant the courts were prosecuting and convicting more and more Latinos. Hispanics made up more than half of those arrested on federal charges in 2011.⁴⁴

Streamline and other criminal prosecutions account for only a fraction of immigration arrests. Most of the 391,953 immigrants removed were apprehended in the interior through ICE enforcement and apprehension operations, and their removal was ordered by immigration judges without any involvement of the criminal justice system. Some of those arrested by ICE enforcement operations inside the country, though, come into ICE custody with current or prior criminal charges.

The intersection of criminal law with civil immigration law creates a web of complexity in which many immigrants and their attorneys become entangled. Increasingly, criminal charges are resolved through plea bargains rather than contested in court. In a plea bargain, the accused agrees to plead guilty to a lesser but still criminal charge in exchange for receiving a lighter sentence, frequently a suspended sentence or probation rather than jail time. Strikingly, more than 96 percent of those arrested on federal charges pled guilty in 2011.⁴⁵

For an immigrant, though, a criminal conviction on even a minor charge can render him or her deportable. Legal permanent residents (green card holders) may also find themselves in immigration detention if they are convicted of a crime. Or if they are discovered by immigration authorities to have previously been convicted of a crime that is a deportable offense. Or even if they are discovered to have been convicted of a crime that was not a deportable offense at the time, but later became one. Even decades-old minor drug-possession convictions have become grounds for deportation.

The public defenders that most poor immigrants rely on in criminal cases generally have little knowledge of immigration law or the possible implications of a guilty plea. One attorney told the American Immigration Lawyers Association (AILA): “On the one hand . . . the immigration matter should not affect the criminal case, and, from an intellectual purity standpoint, that makes a lot of sense. But [for the client], that makes no sense at all. It’s part of their circumstances. . . . I have to be aware of that, and I need to give advice based upon what their circumstances are.” Public defenders, AILA explained, rarely have the time or resources to research the immigration implications of their advice to their clients. Most are juggling twice as many cases as are allowed by the American Bar Association. Less than a third worked with immigration attorneys in their cases involving immigrants, even though their decisions could directly affect their clients’ immigration status.⁴⁶

In early 2010, James Chaparro, director of ICE Detention and Removal Operations (DRO), wrote an internal memo—later obtained by the Washington Post—noting that while the number of removals of criminals so far that year had been satisfactory, the agency’s numbers in removing “non-criminal aliens” were too low. “As of February 15, 2010, DRO removed or returned 60,397 non-criminal aliens which is an average of 437 removals/returns per day. The current non-criminal removal rate projections will result in 159,740 removals at the close of the fiscal year. Coupling this with the projections in criminal removals only gives us a total of just over 310,000 overall removals—well under the Agency’s goal of 400,000.” For the first time, the agency had explicitly acknowledged having an established target.⁴⁷

Chaparro insisted that field agents increase the average daily population in ICE detention facilities to 32,600 and “[i]ncrease the number of Tier One Non-Criminal Fugitive alien arrests along with Tier Two arrests (Re-Entry/Reinstatement) in every field office.” He recommended that each office process thirty to sixty noncriminal cases per day in a “surge” aimed at meeting deportation quotas.⁴⁸ Basically, the memo instructed ICE officers to increase the detention and deportation of noncriminals and of “criminals” whose only offense was reentry into the country, in the interest of meeting the annual deportation goal.⁴⁹

Another program that helped ICE increase its numbers in the Obama years was Secure Communities. Introduced by the Bush administration and piloted in a number of cities around the country in late 2008, Secure Communities requires law enforcement agencies in participating jurisdictions to automatically share with ICE the fingerprints of anybody arrested. If ICE flags the individual as potentially deportable, the agency issues a detainer. When the person is released, he or she is turned over to ICE. The Obama administration initially stated that participation was voluntary, but later announced that the program would be required nationwide by 2013. Eighty-three percent of those who come into ICE custody through Secure Communities are sent to ICE detention centers. Ninety-three percent are Latino.

Promoters touted the program as a way to “remove dangerous criminals from your community.”⁵⁰ However, only about half of those deported through Secure Communities fit the profile of a criminal—that is, had been convicted of a crime other than a traffic or immigration violation. The only violation for 45 percent of those deported was being “present without admission”—that is, being undocumented. Only half of those deported received a hearing before an immigration judge to determine their deportability. The other half were simply deported under ICE administrative procedures or pressured into taking voluntary departure. By late 2011, 226,694 immigrants had come into ICE custody through Secure Communities.⁵¹

In addition to ICE itself, there are powerful interests supporting the detention industry, ranging from private prison companies to elected officials who see prisons as a boost to local economies. The Immigration and Naturalization Service (precursor to today’s ICE) started to contract out its detainees to private prisons in the early 1980s when the detention system started to exceed its capacity of beds. By 1989, the agency was holding about two thousand people a day, with five hundred in private facilities.⁵² Over the past three decades, immigration violations served as a reliably increasing source of revenue for private prisons.⁵³ As ICE detention rates doubled to the current rate of four hundred thousand a year in the first decade of the twenty-first century, the proportion of immigration detainees held in privately run detention facilities also rose, from one-quarter to one-half.⁵⁴ Private prisons specialize disproportionately in detaining immigrants, who tend to be young, healthy, and nonviolent, and therefore among the cheapest and the most profitable inmates to house.⁵⁵

The first private prison company, the Corrections Corporation of America (CCA, founded in 1983), was poised to benefit from and promote the increases in criminal sentencing and immigrant detention in the 1990s. According to Travis Pratt, professor of criminology at Arizona State University, who studied the private prison industry’s lobbying campaigns, “The private prisons industry has a very, very heavy lobby in most states and the federal government to increase sanctions for a number of offenses. They’ve been doing this for a very long time. It’s a multi-million-dollar lobbying effort. . . . And they’ve been exceptionally successful—longer sentences for more types of offenses means more inmates, more inmates means they have to be housed somewhere, which translates to greater profits for that industry. They have a very clear agenda there, and they’ve been unapologetic about it. They haven’t hidden that at all.”⁵⁶ Between 2002 and 2012, private prison companies had spent over $45 million in campaign contributions and lobbying.⁵⁷

The GEO Group (founded in 1984) currently runs 109 facilities in the United States, the United Kingdom, Australia, and South Africa, with 75,000 beds in the United States; CCA has 60 in the United States that can hold 90,000 inmates, and Management and Training Corporation (MTC), founded in 1987, runs 22 prisons in the United States with 29,500 beds.⁵⁸ CCA is the fifth-largest corrections system in the country, following the federal government and three states.⁵⁹ In 2010, GEO and CCA together earned revenues of over $2.9 billion.⁶⁰ They have spent millions of dollars lobbying over the past decade.⁶¹

The private prison industry has a vested interest in increasing both the criminalization of immigrants and the drug wars that criminalize African Americans. “Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities,” CCA explained to its shareholders. “The demand for our facilities and services could be adversely affected by . . . the decriminalization of certain activities that are currently proscribed by our criminal laws.” In particular, CCA warned, “any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.”⁶² Company officials were optimistic, though, that ICE would continue to supply “a significant portion of our revenues.” ⁶³

The Justice Policy Institute concluded in 2011 that “[w]hile private prison companies may try to present themselves as just meeting existing ‘demand’ for prison beds and responding to current ‘market’ conditions, in fact they have worked hard over the past decade to create markets for their product. As revenues of private prison companies have grown over the past decade, the companies have had more resources with which to build political power, and they have used this power to promote policies that lead to higher rates of incarceration.”⁶⁴

One avenue they have used is the American Legislative Exchange Council (ALEC), a “conservative, free-market orientated, limited-government group,” in the words of staff director Michael Hough.⁶⁵ Legislators pay $50 a year to join, while companies pay tens of thousands of dollars for a seat at the table, giving ALEC a total budget of over $6 million a year. ALEC’s main focus is on drafting model legislation. Because it does not officially lobby, it doesn’t have to disclose its activities. Because it’s a nonprofit, corporations can deduct their donations to the organization.⁶⁶

“Is it lobbying when private corporations pay money to sit in a room with state lawmakers to draft legislation that they then introduce back home? [ALEC senior director of policy Michael] Bowman, a former lobbyist, says, ‘No, because we’re not advocating any positions. We don’t tell members to take these bills. We just expose best practices. All we’re really doing is developing policies that are in model bill form.’”⁶⁷

At an ALEC meeting in late 2009, Arizona senator Russell Pearce first presented his proposal for what became the state’s radical anti-immigrant Senate Bill 1070, and a draft for the model legislation was outlined. S.B. 1070 required immigrants to carry proof of their documentation at all times and required local law enforcement officials to detain immigrants unable to produce such documents. After it became law in April 2010, S.B. 1070 became the prototype for anti-immigrant legislation passed in Georgia, Alabama, Indiana, South Carolina, and Utah in the following years.

Two representatives of CCA, which clearly stood to benefit from the bill, sat at the table where the text was agreed upon. “Asked if the private companies usually get to write model bills for the legislators, Hough said, ‘Yeah, that’s the way it’s set up. It’s a public-private partnership. We believe both sides, businesses and lawmakers should be at the same table, together.’” ⁶⁸

ALEC and CCA influence was evident not only in the shaping of the legislation, but in the response among legislators: “As soon as Pearce’s bill hit the Arizona statehouse floor in January . . . thirty-six co-sponsors jumped on, a number almost unheard of in the capitol. . . . Two-thirds of them either went to that December meeting or are ALEC members.” Furthermore, a report continued, “thirty of the 36 co-sponsors received donations over the next six months, from prison lobbyists or prison companies—Corrections Corporation of America, Management and Training Corporation and The Geo Group.” Two of Arizona governor Jan Brewer’s top advisers were former lobbyists for private prison companies.⁶⁹ Referring to the passage of S.B. 1070, the president of GEO Group stated, “I can only believe the opportunities at the federal level are going to continue apace as a result of what’s happening. Those people coming across the border and getting caught are going to have to be detained and that for me, at least I think, there’s going to be enhanced opportunities for what we do.”⁷⁰ Indeed, CCA and GEO Group doubled their revenues from the immigration detention business between 2005 and 2012.⁷¹

Depressed communities can see private prisons as engines of economic opportunity. One such area is Pinal County, Arizona. CCA is the largest employer in the county, where five facilities hold up to three thousand detainees a day.⁷² “The expanding prison populations have allowed small towns to carry budget surpluses in a state that has otherwise been pummeled by the recession,” explains journalist Chris Kirkham. “Prison communities have largely avoided the dire economic straits suffered by Arizona communities in every direction, where the housing bust and subsequent foreclosure crisis have ravaged local government coffers.”

The Pinal County town of Florence, with a population of 7,800, also houses 17,000 detainees. Flush with state revenues from the prison industry—$5.2 million in 2011—the town has been able to offer services and build infrastructure like skate parks, dog parks, and sports fields. Deputy town manager Jess Knudson bragged that Florence was “one of the few towns in Arizona that has been able to stay in the black with this recession.” For Florence, as well as neighboring Eloy and other Arizona communities, “boosting the prison population has emerged as a primary economic development strategy.” The county too has a financial incentive—$2 per day per prisoner, which adds up to over a million dollars a year—and County Sheriff Paul Babeu has been a champion for ramped-up immigrant detentions.⁷³

In rural Irwin County in Georgia, the privately run Irwin Detention Center was the county’s top employer. As the prison population dwindled in 2009, the county teamed up with the company that ran the prison to seek a contract with ICE. Paradoxically, said a report in the Nation, “even as Georgia and Alabama passed harsh new immigration laws last year designed to keep out undocumented immigrants . . . politicians from both states were lobbying hard to bring immigrant detainees in. ICE succumbed to the pressure, sending hundreds of detainees to the financially unstable facility in Georgia that promised to detain immigrants cheaply.”⁷⁴

Undocumented people face a veneer of ordinary life undergirded by permanent uncertainty. In the film El Norte, Nacha, a more seasoned undocumented Mexican woman, tries to convince Rosa, a newly arrived Guatemalan, to sign up for English classes, free and offered by the government. Rosa worries that the school will turn her in to immigration, and Nacha reassures her that it won’t. “Don’t try to understand the gringos,” she laughs. “It will drive you crazy.” Since the situation and the policies are essentially incomprehensible, the best an undocumented person can do is try to survive day by day and hope for the best.

What Part of “Illegal” Do You Understand?