Latino immigrant rights in the shadow of the national security state: responses to domestic preemptive strikes.
THIS ARTICLE GREW OUT OF A JOINT PROJECT ON LEGALIZATION STRATEGIES FOR undocumented immigrants, undertaken by the authors in early 2001--before September 11, 2001. It is part of an ongoing project, and thus hot a finished document; the topic is a "moving target" and key events are changing very rapidly (e.g., the Patriot Act and other legislation affecting migrants). Although the article focuses on Latino immigrants, other immigrant groups also share the conditions and responses described here. We hope that these reflections will stimulate further interest and activism, particularly in the context of the 2004 election in the U.S.
Central to out argument is the notion that the rate of immigrants is key to the future of democracy in the U.S. and the Americas as a hemisphere. Following the passage of Proposition 187 in California and at the height of the immigrant-bashing laws of the mid-1990s in the U.S. Congress, we characterized U.S. immigration policy as being dominated by a national security regime (Jonas, 1999). In the wake of September 11, 2001, with U.S. military action abroad in the name of "fighting terrorism," and the creation of new "national security" laws and infrastructures within the U.S., we are witnessing the establishment of a national security state apparatus that threatens to undermine democracy within the U.S. and abroad. That is the larger backdrop for this article, which aims to reframe the issues and struggles for immigrant rights outside (in opposition to) the U.S.-centric "national security" mentality. We shall examine the following aspects:
* The history of anti-immigrant measures since the mid-1990s and the brief "political opening" for legalization just before September 11, 2001;
* The effects of September 11 on immigrant rights--hence the title, "in the shadow of the national security state." We emphasize the effects of the "Patriot" Act(s) and associated legislation for Latinos, although several other immigrant/non-citizen communities (Arabs, South Asians) were much more heavily affected. That is precisely our point: once the government begins to strip away the rights of the most vulnerable (Arab and Arab-American communities), the "spillover" effect is very rapid and dangerous for all immigrants and other noncitizens--and eventually for U.S. citizens as well;
* Defensive and proactive immigrant rights organizing and legalization strategies within the "spaces" that still exist, from the viewpoint of immigrants themselves;
* Longer-range prospects for issues of immigrant rights, legalization, and citizenship. We shall argue that however bleak their prospects--now and for the immediate future--immigrant rights, legalization, and citizenship are issues that will not disappear. They will remain on the national and hemispheric agendas for reasons having to do with three major factors: immigrant organizing ("agency"), long-range structural considerations in the Americas, and the gradual construction of "international immigrant rights regimes";
* Long-range implications of immigrant rights issues for U.S. society and democracy; in this context, we suggest directions for reconceptualizing full citizenship (including the problem of second-class citizenship) that might guide research and organizing during this difficult and fundamentally anti-immigrant period.
Backdrop: Brief History Since the mid-1990s:
Our starting point is 1996, one of the major turning points in U.S. immigrant regimes in the 20th century. The previous turning points were the 1920s, with their racially driven immigrant quota laws, and the more immigrant-friendly law of 1965, which abolished quotas and instituted family reunification as a major criterion. Signaling concern over the growing presence of undocumented immigrants, Congress passed the Immigrant Reform and Control Act (IRCA) in 1986, after more than a decade of political wrangling and the deliberations of a national commission on sweeping immigration reform. IRCA included a legalization program, but also sanctions for employers who hired undocumented workers, effectively "criminalizing" the workers. A decade later, in 1996, following the 1994 passage and subsequent overturn of Proposition 187 in California (which would have denied all public services to undocumented immigrants), Congress passed a trio of three laws that went far beyond Proposition 187 in their attack on immigrants:
* The Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA) stripped immigrants and asylum seekers of many basic legal rights (including due process rights), and facilitated and stepped up proceedings for exclusion and deportation by eliminating the right of appeal and judicial review of decisions made by one INS agent. In short, the measure's "court-stripping" provisions overhauled the entire infrastructure of immigration proceedings. In addition, it significantly expanded the list of crimes defined as "aggravated felonies" that made legal permanent residents and undocumented immigrants deportable, and in numerous other ways stipulated new grounds for exclusion and deportation ("removal").
* The Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996 was initially adopted to commemorate the victims of the April 1995 bombing of Oklahoma City's Federal Building by a right-wing, native-born Angio-American. Although the bombing was totally unrelated to immigrants, the law, as it emerged from the (Republican-dominated) House-Senate Conference Committee, contained seriously punitive anti-immigrant provisions. President Clinton signed that bill, promising to repeal its anti-immigrant provisions, but never did so. These provisions stipulated mandatory detention of any immigrant--legal or undocumented--who had ever committed a crime (including petty offenses such as minor drug convictions and shoplifting, as well as major felonies) for which the penalty was one year in jail. Worse yet was the law's retroactivity: even if the offense had been committed 15 to 20 years earlier and the immigrant had subsequently lived an exemplary life as a legal resident, (s)he now became deportable. Similarly, noncitizens who had ever supported a group that had at one or another time been on the attorney general's list of "terrorist groups" (e.g., El Salvador's FMLN) now became deportable. In practice, this meant that when any legal permanent resident who had ever violated the law went to the INS to file naturalization papers, (s)he could find him/herself deported instead--a rights denial featured on Ted Koppel's "Nightline," in a program called "Man Without a Country" (November 25, 1998). Beyond the retroactivity, particularly disturbing was the use of secret evidence and the fact that deportation could be automatic--the immigrant would have no hearing or recourse to review the deportation decision, and would not be eligible for release.
* The Personal Responsibility and Work Opportunity Act (PRWOA, more commonly known as the Welfare Reform Act) of 1996 denied public services and benefits to all noncitizens--that is, to long-term legal permanent residents (LPRs) and undocumented immigrants. In this sense, it moved the line far beyond California's Proposition 187, which aimed to deny services "only" to undocumented immigrants, this time excluding all noncitizens.
Other measures accompanied these three bills: militarization of the border with Mexico, curtailment of the definition of "refugee," harsher attitudes against legalization programs, and even such extreme proposals as repeal of the 14th Amendment to the Constitution, which gives citizenship to all who are born on U.S. soil. (In the late 1990s, this last campaign was unsuccessful, but it reappeared in 2003.) Taken together, these bills created a national security regime for immigrants, stripping away their rights punitively and arbitrarily.
The redefinition of immigrants as a "national security threat" went far beyond anti-Communist Cold War definitions and was far more exclusionary, as it included "soft security issues" such as cultural differences, social instability, environmental degradation, population growth, social service cutbacks, and loss of jobs. In short, "national security" was being redefined to include freedom not only from external threats, but also from fear or anxiety concerning perceived economic and/or cultural damage (e.g., job competition) (see Jonas, 1999). Racializing, cultural anti-immigrant arguments (particularly against Mexicans) are being revived in 2004, most notably in the new book by Samuel Huntington, Harvard's leading political scientist, entitled Who Are We?
Social-economic maladies and insecurities have affected the lives of the U.S. population, due mainly to the restructuring and neoliberalization of the U.S. economy since the 1980s ("Reaganomics") and 1990s--i.e., privatization, corporate downsizing, and "outsourcing" of jobs to low-wage labor havens. The end of the Cold War also cost many defense industry workers their jobs. Such middle-class, professional jobs are seldom if ever held by Latino immigrants. California Governor Pete Wilson's successful use of Proposition 187 in his 1994 reelection bid led other politicians to reproduce his message, blaming immigrants for economic and social insecurities, for the loss of jobs and services to native-born Americans. This politically expedient winning strategy is a well-established pattern that has been repeated many times in U.S. history. Hence was (re)born the social construction of undocumented immigrants as "illegal aliens," as if foreign invaders from another planet.
These measures occurred against the background of two realities that contradicted the stated purposes of the anti-immigrant legislation. First, even during recessionary periods, there remained an ongoing (indeed, permanent) need for immigrants as low-wage labor for agriculture, industry, and services; in fact, major business interests had never supported the restrictionist legislation of the 1990s for that reason. In particular, the economies of California and several other states depended on Latino migrant labor (see, for example, Palerm, 1999). Second, these measures did not stem the flow of undocumented migration across the U.S.-Mexico border. This is clear from numerous academic studies (e.g., Massey et al., 2002, Espenshade, 1994), from "apprehension" tables published in the yearly INS (now Homeland Security) Statistical Yearbooks, and from periodic border studies by the U.S. General Accounting Office. Rather than stopping or "restricting" undocumented migration, U.S. policies punished and criminalized those who came, stripping away their rights and making them more vulnerable and the entire immigration system more arbitrary.
Political Opening for Legalization Before September 11, 2001
During the last years of the Clinton administration and the first eight months of the George W. Bush presidency, the political climate surrounding legalization visibly shifted. The AFL-CIO and the big business community, each for its own reasons, supported legalization of undocumented immigrant workers. After several years of increasingly supportive stances on immigrant workers' rights, the AFL-CIO significantly shifted its official policy. In February 2000, the labor federation's Executive Council passed a resolution denouncing employer sanctions and supporting "amnesty" for all undocumented workers in the U.S. This sentiment had been building within the AFL-CIO during the 1990s, as had the AFL-CIO's commitment to organizing undocumented workers in many sectors.
Within the big business community, some organizations went beyond previous stances (of not supporting immigration restrictions), to express support for some form of legalization--particularly in the context of the economic boom and labor shortages of the late 1990s and early 2000s. The Essential Worker Immigration Coalition (EWIC), which represents industry associations and other business community organizations, actively lobbied for a limited legalization program--popularly described as "earned legalization"--as well as for an expansion of temporary worker programs and a repeal of employer sanctions (at www.ewic.org).
The growing presence of Latino voters in a significant number of congressional districts across the country also affected the national discussion on immigration. The Democratic and Republican parties had witnessed the mobilization of the Latino vote subsequent to California's Proposition 187 in 1994 and the visible opposition to the 1996 laws, passed by a Republican-led Congress. In the 1996, 1998, and 2000 elections, the Democrats had been best able to capitalize on the perception that it was the "party of choice" for an increasing percentage of Latino voters, particularly in revoit against the harsh measures identified with the Republican Party. By the 2000 presidential election, the Republicans were looking for ways to overcome the image damage left by their severe anti-immigrant measures of the late 1990s and a threatened backlash (i.e., punishment vote) by Latino voters.
Next, a few Democratic senators and representatives in Congress began to propose measures to "fix '96." These would restore certain social services taken away by the Welfare Reform Act of 1996 to particular constituencies, such as disabled and elderly legal permanent residents. Although the Republican-controlled Congress consistently stonewalled legalization proposals in 2000, Representative Barney Frank (D-Mass.) won unanimous approval in the House for eliminating the "retroactive, automatic-deportation" provisions from the 1996 laws (Boston Phoenix, September 5, 2002). Equally important, in spring 2001, the U.S. Supreme Court, in reviewing a challenge to the 1996 laws, declared the retroactivity and automatic deportation provisions to be unconstitutional.
Finally, during the summer of 2001, President Bush entered negotiations with the Mexican government of President Vicente Fox for a new guest-worker program. In these discussions, the Mexican government (under pressure from Mexican civil society) insisted that any such program had to contain certain rights for guest workers, and even proposed a full-fledged "earned legalization" program. The Bush administration did not commit to any form of legalization, but neither did it openly or flatly denounce the notion. Some Democratic Party leaders, caught off guard by this apparent Republican change of heart, moved the idea of "earned legalization" beyond the negotiations with Mexico. For example, they proposed granting to all Central Americans and Haitians the automatic legalization provisions that had been granted (by the Republican-dominated Congress) to Nicaraguans and Cubans in the 1997 Nicaraguan Adjustment and Central American Relief Act (NACARA). A few openly pro-immigrant rights policymakers, such as Representative Lufs Gutierrez (D-III.), even began to mention the "A-word" (amnesty for all undocumented workers), as proposed by the AFL-CIO.
In short, in the months before September 11, during this brief, apparent "political opening," the political climate for immigrant rights was more favorable (or less unfavorable) than at any other time during the previous decade. There was significant momentum toward some forms of legalization, even though legalization proposals were nowhere close to enactment by Congress.
Effects of September 11 and "Wars Against Terrorism" on Immigrant Rights: In the Shadow of the National Security State
In the aftermath of September 11, many conservative politicians, including Attorney General John Ashcroft and anti-immigrant members of Congress, were determined to use the national emergency to advance their anti-immigration projects and to publicly revive and extend a national security framework. The clearest manifestation was the USA Patriot Act of 2001 ("Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001"), rushed through Congress a few short weeks after September 11 with virtually no public hearings or input. The process left the impression that some of its immigrant-related provisions, at least, had been previously prepared and were taken off the shelf after September 11, when no objections were likely to be raised. Virtually every previously "immigrant-friendly" senator (such as Kennedy and Leahy) and representative voted for the Patriot Act, despite its extremist content. Some legislators pledged to reintroduce legalization proposals, but the subject was scuttled after the Republican victories in the November 2002 elections.
Although most of the Patriot Act's anti-civil liberties provisions were slated for review and possible "sunset" by the end of 2005, the provisions related to immigrants and noncitizens were excluded from such limits. The Bush administration and congressional Republicans have proposed making the entire Patriot Act permanent (New York Times, April 9, 2003; April 18, 2004), but the immigration provisions were intentionally permanent and were the most draconian. To give a few examples:
* Any noncitizens/immigrants (either undocumented or legal permanent residents) suspected of having "terrorist" ties could be detained for seven days without charges or access to a lawyer, much less to a court review (hence violating habeas corpus and continuing the process of "court-stripping" begun in 1996); additionally, once there was a deportation order against them, they could be held indefinitely if it was thought that their release and deportation to their home country might threaten U.S. national security.
* According to a Justice Department regulation, undocumented immigrants and LPRs could be summarily subjected to preventive detentions and deportations, without a judicial hearing or right to appeal--even in the absence of suspicions related to terrorism, i.e., for solely immigration-related violations, such as overstaying visas or undocumented entry into the U.S. (Washington Post, Match 20, 2003)--effectively conflating immigrants with terrorists.
* These detentions and deportations could include "guilt by association" as a rationale; furthermore, deportation hearings could be held in secret (and without access to a lawyer), although several courts have challenged the Justice Department on this issue.
Other measures and practices beyond the Patriot Act were also being implemented. As of 2002, the Board of Immigration Appeals (BIA, which reviews questionable or bad decisions by immigration judges) was being gutted, in accordance with the attorney general's announced reorganization of the INS (Isgro, 2002). With its jurisdiction and powers greatly curtailed, the BIA's ability to conduct meaningful reviews would be diminished. More generally, immigration judges were rendered so marginal under the new regime that they petitioned (unsuccessfully) to be transferred outside the jurisdiction of the Justice Department.
In one of the most dangerous violations of constitutional norms and practices, the Justice Department made proposals and experimented in some states (e.g., Florida) with deputizing local police officers as INS agents. These proposals and practices were highly contested--in many areas by local police forces themselves. Nevertheless, by 2003-2004, the idea was resurrected in a formal congressional proposal, the "Clear Law Enforcement for Criminal Alien Removal Act." The CLEAR Act (which may be too controversial to be passed before the 2004 election) would give state and local police legal authority to enforce federal immigration laws. It encourages collaboration by giving police immunity from lawsuits, access to assets of undocumented immigrants apprehended, and funds for processing and jailing immigrants.
In spring 2003 in the context of the war against Iraq, new provisions were adopted to detain asylum seekers from a long list of countries (primarily from the Middle East and Persian Gulf). College campuses were ordered to turn over information on foreign students--including what courses they were taking--to the Department of Homeland Security, through the Internet-based SEVIS program (Student Exchange Visitor Information System). Before September 11, such regulations existed, but had not been systematically implemented.
In the aftermath of September 11, Supreme Court review of the constitutionality of the 1996 anti-immigrant laws ceased. Court review had been underway in the spring of 2001, but by spring 2002, it issued an anti-immigrant decision in Hoffman Plastic Compounds v. National Labor Relations Board, to the effect that undocumented workers lacked the same rights as citizens and, in particular, would not be eligible to receive back pay from illegal firings for union activity. Since the Hoffman decision delivered a body blow to labor organizing among undocumented workers, it was as much an anti-labor decision as it was anti-immigrant--a reminder that the national security state is a ruling class state.
In November 2001, Congress passed the Aviation and Transportation Security Act, which federalized airport security workers and required them to be U.S. citizens. As a result, thousands of airport screeners, many of whom were legal permanent residents who had worked for years through subcontractors at very low wages, lost their jobs. Although this policy has been highly contested, it remains on the books as of mid-2004.
The Department of Homeland Security (DHS) came into effect on March 1, 2003, incorporating most immigration enforcement and service functions as part of its mandate to protect the national security of the U.S. Under this structure, immigration enforcement-related functions are dispersed into several areas of the huge DHS bureaucracy, with service functions located in a new Bureau of Citizenship and Immigration Services. As a result, there are new chains of command and decision-makers. The reshuffling of functions has raised many concerns about the consistency of policy implementation, adherence to legal standards, accountability, and channels for civil complaints and investigations. Moreover, within the DHS, funding for immigration services is far outstripped by resources dedicated to enforcement--a proposed ratio of nine to one for fiscal year 2004, according to the White House FY 2004 Budget Fact Sheet (October 1, 2003). Deemphasizing resources for services exacerbates backlogs in refugee, green card, and citizenship processing that was already delayed due to enhanced post-September 11 background security checks. In an atmosphere of increased security, immigration officials have rejected more applications for changes in immigration status (e.g., legalization, naturalization), with an increase of 11% in fiscal year 2003 over the previous year (Zeller, 2003).
During the early 2000s, a number of states underwent divisive battles over the issue of permitting undocumented workers to have driver's licenses. Most prominent was the October 2003 California recall election of Governor Gray Davis. A leading promise of Arnold Schwarzenegger's successful campaign was to revoke the law signed by Davis permitting licenses to undocumented workers. One of Governor Schwarzenegger's first measures was to revoke that law. By the end of 2003, a "son of Proposition 187" campaign began, although the initiative received too few signatures to qualify for the November 2004 ballot.
In short, politicians and entire government agencies such as the Justice Department (supported fully by the Bush White House) wielded the anti-immigrant apparatus created by passage of the 1996 laws and in many respects made it far more draconian. Most of this legislation made legal permanent residents and undocumented immigrants equally vulnerable. As such, the line dividing those having and those lacking "rights" shifted from LPRs versus undocumented migrants to citizens versus all noncitizens.
From Court-Stripping to Citizenship-Stripping: The Attempted PATRIOT Act II and Other Preemptive Domestic Strikes
In spring 2003, most likely with the war against Iraq as a rationale, the Justice Department intended to submit a "PATRIOT Act II" (Domestic Security Enhancement Act of 2003). The plan for this sequel to the Patriot Act became publicly known and caused considerable public outcry. Leaked by at least one honest soul in the Justice Department, the plan made it to the Center for Public Integrity and then to "NOW with Bill Moyers" (Public Broadcasting System, February 7, 2003). This sequel sought to extend certain PATRIOT I provisions from the most vulnerable noncitizens to "suspect" full-fledged U.S. citizens, by stripping them of their citizenship and reclassifying them as "enemy combatants" on grounds such as providing support to "terrorist organizations." It uses a much broader definition of groups that could be considered "terrorist" (the ACLU gives Operation Rescue or People for the Ethical Treatment of Animals as examples). Since those stripped of their citizenship have no "home country" to which to be deported, they would presumably be held in indefinite detention, with no habeas corpus or access to legal counsel. The Bush administration did carry out some citizenship-stripping. Jose Padilla, a New York--born Puerto Rican-American suspected of having terrorist ties, was classified as an "enemy combatant" to deprive him of his due process rights. Late in 2003, the U.S. Court of Appeals for the Second Circuit ruled that Padilla could not be held "as an enemy combatant." The Bush administration appealed the ruling to the Supreme Court in spring 2004; meanwhile, Padilla remains incarcerated and only recently has had access to legal counsel.
Beyond civil liberties violations that affect citizens and noncitizens, Patriot II proposed new anti-immigrant provisions, e.g., opening visa files to local police forces for enforcement (a consequence of deputized police); targeting undocumented workers with extended jail terms for common immigration offenses; implementing summary deportations (even lacking evidence of a crime or criminal intent), and extending this extreme measure to LPRs the attorney general has deemed a threat to national security; and abolishing fair hearings for LPRs convicted of criminal offenses through "expedited removal" and preventing any court from questioning these actions by explicitly exempting these cases from habeas corpus.
As with Patriot I, arbitrary actions could be carried out against immigrants with no hard evidence of connections to seriously dangerous terrorist organizations. In late April 2003, Attorney General Ashcroft ruled that undocumented immigrants (including asylum seekers) "who have no known links to terrorist groups can be detained indefinitely" (i.e., without bail) "to address national security concerns" (New York Times, April 26, 2003). This ruling on the case of a Haitian asylum seeker was intended to serve as an instruction to Justice Department immigration judges in all similar cases.
On April 29, the Supreme Court ruled that legal immigrants could be detained indefinitely and without bail during their deportation proceedings, if they had a criminal conviction (no matter how minor) in their background (New York Times, April 30, 2003). In Demore v. Kim, the Court upheld a provision of the 1996 IIRIRA that had been challenged as a violation of due process, denying an individual determination of whether or not detention was necessary. In this case, a Korean immigrant, Hyung Joon Kim, who had been released on bond and was working and going to school, was re-detained after three and one-half years. Such massive expansions of "national security" to include asylum seekers and other immigrants (legal and undocumented) with no ties to terrorist organizations can only be described as a form of preemptive domestic warfare directed against immigrants.
Perhaps Patriot II was a trial balloon to test the limits of what U.S. citizens would tolerate and how many rights they would give up in the name of security. Because it was leaked prematurely, Patriot II was strongly contested and by spring 2004, it had not been formally submitted to Congress. A comprehensive Patriot II Act may not even be needed. After the outcry against it, the Bush administration issued some of its provisions piecemeal, the most dangerous being the CLEAR Act. Other provisions have been attached to unrelated legislation--a kind of "backdoor" or "stealth" implementation of Patriot II in pieces. Perhaps the most blatant case (detailed by David Martin in the San Antonio Current, December 24, 2003) was congressional passage (and signing into law by President Bush on the day he announced Saddam Hussein's capture, December 13, 2003) of legislation permitting the FBI to probe financial records of citizens. This vastly expanded the definition of "financial institutions" to include credit card and insurance companies, jewelers, airlines, casinos, etc. The FBI can also gain access to such records merely through a "National Security Letter," without any demonstration of "probable cause" (link to terrorist or criminal activity) or judicial oversight. Financial institutions are bound by a gag order not to inform clients of records given to the FBI, and the FBI does not have to inform Congress about the usage of NSLs. All of this occurred without public hearings, as it was attached to the 2003 Intelligence Authorization Act--a "constitutional coup" in the words of the San Antonio Current.
Even without a Patriot II Act, the Justice Department used the 1996 Anti-Terrorist Law to successfully prosecute citizens suspected of having terrorist ties (giving "material support," very broadly defined, even if such support was given without the knowledge that the group was on the attorney general's list of terrorist organizations). As the New York Times put it (April 6, 2003), that law became the "Justice Department's Anti-terror Weapon of Choice." The above-mentioned 2003 immigration policies and rulings--unrelated to terrorism--bear this out and demonstrate the infrastructure for political persecution that has been in place since 1996. During the early 2000s, these provisions have been much more intensively used.
Effects Within Immigrant Communities
Beyond the Patriot Act and other restrictive measures, there were numerous high-profile instances at the community level of racist practices, facial profiling, and hate crimes directed against Arab-Americans, Muslims, and South Asians. These communities undoubtedly suffered the worst consequences of the post-September 11 backlash. In this light, we wish to show the ways in which Latinos also experienced the arbitrary effects of the bills and measures noted above. Hence, we shall focus on this "fallout" factor or "spread effect" and give examples of the concrete effects for Latino immigrants and communities.
First, Latino communities have suffered from the notable change in the U.S. public's perception of immigrants. According to an early 2003 poll by the (restrictionist) Center for Immigration Studies, 60% of the U.S. public considered current levels of migration to be "a critical threat" to U.S. national interests (cited in La Opinion, January 17, 2003)--a perception reflected in other polls as well. The net effect of September 11 with regard to immigrants (including Latinos) has been a dehumanizing conflation of immigrants with terrorists, leading to a widespread perception that capturing undocumented immigrants is somehow the same as capturing terrorists, or that exclusions, detentions, or deportations of immigrants somehow protect U.S. citizens from terrorism. This conflation of immigrants with terrorists is ironic since immigration controls are known to be an ineffective means of ensuring real safety and "security" for U.S. citizens and residents. Scholars Donald Kerwin (2002) and Wayne Cornelius (2004) have made this argument and it was noted in the 2004 hearings on September 11 (New York Times, April 17, 2004).
Second, increased enforcement measures post-September 11 fostered an environment of anxiety and fear among immigrant communities. Some immigrant families of September 11 victims were even afraid to come forward for the benefits due to them. This fear was especially heightened near the U.S.-Mexico border, where vigilante groups such as Ranch Rescue and Civil Homeland Defense began to attack immigrants far more aggressively than before, in some cases shooting to kill and engaging in other illegal practices against immigrants. The activist group Border Action Network described the dangerous growth of vigilante activity in southern Arizona in a December 2002 report. It alleged that the region has turned into "a dangerous, lawless battle zone," in which immigrants are surveiled, harassed, intimidated, and stalked.
Third, post-September 11 conditions have greatly increased the difficulty of travel, domestically and abroad. Immigrants whose papers are not in order cannot fly at all. For LPRs and even naturalized citizens, the appearance of being non-Anglo has made them subject to more intensive interrogations and strip-searches at airports--signs of the racialization of "security." Outside the U.S., procedures for gaining visas or being brought to the U.S. (e.g., by immigrant parents who were naturalized citizens) have become exponentially more difficult. They are more bureaucratic, far more expensive, more drawn-out (over years), and have added requirements (including DNA samples to prove family connections), as well as diminished possibilities for success. Highlighting the absurdity of the new regime, under the terms of the Patriot Act, the renowned Artemis String Quartet was denied entry to the U.S. for a concert in 2002 because its German cellist had been fined for a 99-cent shoplifting offense 11 years earlier (New York Times, October 30, 2002). (Coming from a U.S. administration that fiercely protected Iraqi oil wells but ignored its museums, this should come as no surprise.)
Fourth, new requirements for background checks have greatly slowed all immigrant green-card authorizations, refugee applications, legalization, and citizenship processing by the INS and its successor in the Department of Homeland Security (DHS). The situation is particularly bad, since citizenship applications have risen since September 11, while approvals have slowed notably. The servicing components of DHS, including the processing of naturalization applications, remain low on the department's list of priorities for action and resources. With the war against Iraq and certain provisions of the National Defense Authorization Act of fiscal year 2004, the most expeditious way for a Latino immigrant to become a naturalized U.S. citizen has been to join the armed services; those killed in battle are granted citizenship posthumously.
Fifth, the pace of detentions and deportations for immigration violations has been greatly stepped up, with no provision for appeal. As of early 2004, over 60,000 immigrants (mostly legal residents) had been held for over two years, and up to 70% of them were deported for immigration violations unrelated to terrorism. (1) Sixth, beyond the high number of immigrant victims of September 11 fearful of claiming their benefits, many others lost jobs due to September 11, the economic recession, or the war in Iraq, which affected jobs in tourism and travel-related sectors.
Finally, these conditions have nullified any near-term possibility that Congress will pass new legislation for permanent legalization. Legislative proposals on immigration have reemerged in 2003-2004, differing in tone, however, from those considered before September 11. For example, the "AgJobs" bill, negotiated among farm-worker unions, agribusiness interests, and bipartisan supporters in Congress, proposes a limited legalization program for farm workers and would reform the existing guest-worker program to improve worker rights and conditions. President Bush's immigration proposal, announced in January 2004, did not include a legalization component and had not been introduced in Congress by mid-year. It would provide temporary, three-year work visas for undocumented workers already in the U.S., and presumably to other foreign workers, who would be able to travel in and out of the country for visits home. Such visas would potentially be renewable, but would not create a path for legalizing these workers. They would have to stand in a very long line in Mexico to apply for permanent legal status. Immigrant rights advocates have criticized Bush's proposal as being little more than an assured program of low-wage temporary labor.
In May 2004, Democratic Senator Edward Kennedy and Representatives Luis Gutierrez and Bob Menendez (Chair of the House Democratic Caucus) introduced their immigration proposal, the "SOLVE Act" (Safe, Orderly Legal Visas and Enforcement Act), which focused on three elements: (1) a legalization program for undocumented immigrants who had lived and worked in the U.S. for at least rive years and who met other criteria; (2) a resolution of the significant "backlog" problem of immigrants waiting lengthy periods for immigration visas; and (3) a "future migrant" program--essentially a temporary worker proposal that would include labor rights and a path to permanent residency. The fate of this proposal or any similar legislation will be clear only after extended debates, likely lasting years, after the 2004 election.
Immigrant Community "Agency" Responses: Defensive and Proactive Rights and Legalization Strategies
Despite the horrors of the national security state, immigrant rights organizing has increased. Due to these activities (i.e., grass-roots "agency") and to longer-range structural factors, immigrant rights, legalization, and citizenship will remain on the U.S. political agenda. In the short run, lobbying Congress on immigrant rights will be increasingly difficult (especially given the 2004 election year), yet the real challenge lies in strengthening immigrant rights organizations (local institution-building/capacity-building), as well as in greatly increasing the base of support in the communities. The aim is to lessen the gap between a handful of activist organizers and ordinary residents in the communities and to build organic links between activists and communities. (2) Grass-roots campaigns exist to pressure governments in Mexico and many other Latin American/Caribbean countries to protect the rights of their "nationals" through mechanisms such as the matricula consular (an identity card issued by consulates that enables immigrants to open bank accounts and, in a few states, to obtain driver's licenses).
Legislative proposals to provide access to legal permanent residency (and instate tuition) for undocumented immigrant students has inspired active support in nearly every state and has garnered bipartisan support in Congress for bills such as the "DREAM Act." Passage of the legislation is unlikely in an election year, but the proposals should generate ongoing organizing activity in 2004 and beyond. Several states have adopted "in-state" tuition laws that extend to immigrant students the lower college fees available to residents.
In fall 2003, the Immigrant Workers Freedom Ride (IWFR), a labor-initiated campaign, mobilized hundreds of thousands of supporters and participants in a 10-bus caravan across the country to raise awareness about immigrant worker issues and to call for broad legalization and other policies to enhance immigrant rights and protections. This activity was initiated by the Hotel and Restaurant Employees Union (HERE) and subsequently endorsed by the AFL-CIO. It generated coalition-building efforts, as labor and community organizations and activists mobilized bus riders and hosted buses along various routes, with stops in over 100 cities across the country. The campaign was built on a commitment by the AFL-CIO, subsequent to its pro-immigrant resolutions of 2000. Honoring the Freedom Rides of the 1960s Civil Rights Movement, the IWFR sought to build relationships across racial lines and movements; the Houston bus followed a path through the South that included stops at historic sites of the civil rights struggle, a high point of the entire campaign. In Washington, D.C., over 1,000 bus riders and supporters converged on Congress, visiting more than 100 congressional offices, before moving on to New York and a rally of over 100,000 people in Flushing Meadows. The IWFR is transforming itself into an ongoing coalition and is gearing up for a "Freedom Summer." In preparation for the November election, the aim is to mobilize educational and get-out-the-vote action during the summer of 2004 in a few critical states (Florida and Arizona).
In addition, several national initiatives are underway to build momentum for immigration policy changes and to strengthen immigrant community engagement in the 2004 elections. Not only have the traditional immigration advocacy groups stepped up their efforts, but other entities--such as the Center for Community Change, the Industrial Areas Foundation, Association of Community Organizations for Reform Now (ACORN), and the Gamaliel Foundation--have also made immigrant rights a priority or incorporated such organizing into their programs. These organizations, which have emphasized community organizing strategies around a broad range of social and economic justice issues in diverse communities, are now motivated to pay more attention to immigration concerns.
In February 2004, a "summit" meeting of leaders from a variety of Latino nationalities and immigrant rights organizations met in Washington, D.C., to hammer out a unified response to the Bush immigration proposal. At the subsequent meeting of this coalition (the Latino and Caribbean Immigrant Community Summit) in May 2004, agreements and activities ranged from meetings with presidential advisers (to apply pressure on immigration policy) to initiating a coordinated education and advocacy campaign of "civic participation" for the 2004 election and beyond. In March 2004, another grass-roots delegation of largely Latino-based groups organized by the Border Network for Human Rights also converged on Washington to meet with congressional members and advocacy groups to share their proposals for immigration reform. In April, a new entity, the New American Opportunity Campaign, held another meeting in Washington, with the goal of coordinating an immigration reform strategy. In short, efforts to develop a common agenda among grass-roots organizations, national policy advocates, unions, and other sectors are intensifying.
What makes this convergence possible now? Our hypothesis is that, paradoxically, once the initial shock of September 11 wore off, it brought the issue of immigration politics to the forefront and gave it a higher profile. Like Proposition 187 in California, the Patriot Act was a wake-up call; this time, however, not only immigrant rights organizations, but also more mainstream non-immigrant organizations are paying attention. Furthermore, these immigrant networks, especially when grounded in their communities, appear to be strong enough to survive the post-September 11 attacks. Immigrant rights organizing has the greatest potential to unify immigrant communities in the U.S., as its benefits could cut across class, ethnic, and even ideological lines (although this goal is not always achieved in practice). Further, this form of organizing is self-conscious, deliberate ("for-itself") activity, with empowering intentions and consequences, i.e., an expanding sense (or at least expectation) of entitlement, inclusion, and rights.
Equally important, through national and community-based organizations in the U.S., immigrant rights organizing has gained strength by building cross-border, transnational cultural and political ties to "sister" organizations and coalitions in their home ("sending") countries. Such cooperation is not automatic; it can only occur as the result of conscious transnational strategies that are sustained over time and develop real roots in the affected communities in countries of origin, transit, and destination. As will be seen below, working with counterpart organizations and coalitions in the countries of origin is particularly important because their differing worldviews are less permeated by the national security mentality so prevalent in the U.S.
Contradictions of the Preemptive Strike Strategy: Longer-Range Structural Factors
Viewed in terms of their longer-range prospects, immigrant rights and legalization (and ultimately, citizenship) issues will not be won anytime soon, but they will remain a permanent feature, even under the worst of circumstances. Several structural factors counterbalance the negative trends since September 11:
(1) The is a permanent need for low-wage Latino labor in many agricultural and industrial sectors, and throughout the service sector in the U.S., even at a time of immigrant bashing. Just a few months after September 11 (January 2002), Florida growers complained that they had no way to make their harvest without the usual stream of low-wage undocumented labor; similar situations have continued between 2002 and 2004.
(2) A large proportion of Latino voters in the U.S. remain committed to issues of immigrant rights (though support is not automatic and cannot be taken for granted, as the divided Latino vote in California's gubernatorial recall vote of October 2003 illustrated). Current research (e.g., PPIC, 2004; NALEO, 2004) suggests that naturalized Latino citizens (in contrast to U.S.-born Latinos) are most likely to exercise the right to vote and to remain concerned with immigrant rights issues. In the 2004 presidential campaign, Republicans and Democrats will have to compete for those votes, and ultimately address the issue of immigrant rights. Immigrant community advocates and organizers in various communities, not just Latino, are therefore developing serious "civic participation" initiatives in a number of states, involving voter registration, education, and get-out-the-vote activities for the 2004 election and beyond.
(3) Opening borders to capital via extensions of NAFFA--principally, the Central America Free Trade Agreement (CAFTA) and the Free Trade Area of the Americas (FTAA)--almost always leads to increased migration (see research by scholars such as Saskia Sassen and Douglas Massey, among many others). In the short run, these extensions will be designed to follow the NAFTA model of mobility for capital, but not for labor. Over the long run, immigrant rights and labor organizations will push for an alternate model, such as that of the European Union, which includes labor mobility within its free trade area. U.S. pressure is seeking to turn Latin American countries against each other (for example, in "Plan Sur" the U.S. enlists Mexico to carry out migration control on its behalf at Mexico's border with Guatemala). At a structural level, however, a cross-border "Americas" is becoming increasingly consolidated, in large part because of transnational ties among immigrants and their home countries/communities. In short, the United States is becoming the "northern zone" of "the Americas" as a hemispheric entity.
(4) Finally, there is the self-interest of the sending governments. The Bush-Fox meetings just before September 11, 2001, opened the Pandora's box of "earned legalization" as part of any guest worker program. Mexico and other Latin American governments are likely to keep the issue alive, if for no other reason, because their economies require the remittances as an important or the main pillar of economic survival. Politically, sending governments are also under domestic pressure to negotiate more favorable programs with the U.S. In short, these cross-border pressures will intensify over time.
Effects for U.S. Citizens and for "Democracy" in the U.S.
In an ominous foreshadowing of things to come, shortly after September 11, Supreme Court Justice Sandra Day O'Connor told an audience at New York University's law school that, in response to terrorism, "we're likely to experience more restrictions on our personal freedom than has ever been the case in our country" and that this situation "will cause us to reexamine some of our laws pertaining to criminal surveillance, wiretapping, immigration, and so on" (New York Times, September 29, 2001). Since 2001, inside the Justice Department, many service programs have been canceled and many career employees have been replaced by ideologues of the Ashcroft stripe: "He has centralized power among a small inner circle of political appointees, frustrating some career officials and prosecutors in the field, who complain that the attorney general has undercut their authority in order to further his own agenda" (New York Times, March 15, 2003).
We argue that native-born U.S. citizens (including Anglos) should care about the domestic preemptive strikes against immigrants and noncitizens. Self-interest alone is a reason in the face of ongoing attempts to extend the constitutional violations being applied to noncitizens (regarding due process, habeas corpus, etc.) to citizens. There are also broader reasons: the willingness to violate the basic rights of the most vulnerable (immigrants and noncitizens) threatens the quality of democracy for the nation and its citizenry as a body. We will mention a few of the broader violations of civil liberties that are in effect or have been proposed, which would affect citizens and noncitizens alike:
* Operation TIPS (Terrorism Information and Prevention System), proposed by the Justice Department in 2002, would have had neighbors and utility workers report anything "suspicious" in citizens' homes; this proposal was so extreme as to be rejected by the House of Representatives;
* TIA Program (Total Awareness Information System) was a proposal from the Pentagon for a program to consolidate all information on citizens into one super-database; Congress held up implementation of this program, as applied to citizens, but the Bush administration could move it forward anytime on national security grounds (that the halt is endangering U.S. national security). Most frightful of all was the selection of John Poindexter to head the program--a man convicted of lying to Congress during the 1986 Iran-Contra scandal (who now claimed that he would not abuse the massive power he had been given!). Opposition to this proposal led to Poindexter's eventual firing in 2003 and to giving the proposal a more acceptable name, "Terrorist Awareness Information System." Since then, TIA-like "data-mining" programs have sprung up in other agencies (e.g., "MATRIX").
* To gather intelligence on "terrorists," the Patriot Act and other measures gave the FBI power to check records of institutions, ranging from public libraries to scuba diver schools and universities, and to track the use of individual credit cards and the records of "financial institutions," very broadly defined, all without a warrant or a judge's order. Many librarians shredded their records rather than turn them over and some scuba diving schools refused to provide their records (e.g., Miami Herald, March 26, 2003). Beyond such spontaneous resistance, a variety of civil liberties organizations are legally challenging these provisions.
* Under the Patriot Act, the Justice Department has sought (and received authorization for) increasing numbers of secret wiretaps without a warrant, with 2003 requests way up (to 1,727) over the 2002 totals; there would be even more if DOJ requests could be processed more quickly (New York Times, May 3, 2004). In Congress, even "liberar" Democratic Senator Charles Schumer cosponsored a bipartisan measure that would "eliminate the need for federal agents seeking secret surveillance warrants to show that a suspect is affiliated with a foreign power or agent, like a terrorist group" (New York Times, April 9, 2003). Patriot Act Sec. 215 "sneak and peek" warrants grant government agents unlimited access (without notification) to individual and business premises, as well as to their records.
* Since spring 2003, Senate Judiciary Committee Chairman Orrin Hatch and other Republicans have been working with the Bush administration to make all provisions of the Patriot Act permanent--i.e., to repeal the "sunset provision" that was to apply to the provisions affecting U.S. citizens (as contrasted with noncitizens), requiring review/renewal of those provisions by the end of 2005 (Ibid.). In his 2004 State of the Union address and throughout his electoral campaign, Bush has strongly and unequivocally endorsed the idea of making the entire Patriot Act permanent. Furthermore, the White House threatened to veto the Security and Freedom Ensured (SAFE) Act, which has bipartisan support in Congress and was designed to correct excesses of the Patriot Act such as its "sneak and peek" warrants. This entire controversy, likely to remain unresolved until after the 2004 election, remains highly contested, with the (moderate) Republican Chairman of the House Judiciary Committee James Sensenbrenner vowing that such renewals and extensions (of the Patriot Act) would occur "over my dead body."
* Proposed provisions of Patriot Act II--some of which were implemented by other means after the backlash against it--would permit the government to conduct secret detentions, wiretapping, and other forms of intelligence gathering at the sole discretion of the attorney general, and to end most of the previous limits on intelligence-gathering by local police. Patriot II would revive the idea of neighbors and/or businesses calling in their suspicions of someone, and would permit tracking the use of individuals' credit cards, library and internet use, etc.--to mention just a few of the most excessive provisions.
A proposed program (initially called "CAPPS II") would mandate background checks on all airline travelers and the creation of a blacklist to prevent even U.S. citizens on that list from traveling. Signs of a "no-fly" blacklist surfaced in fall 2002, when two San-Francisco-based activists (full citizens) were not allowed to board a plane to Washington D.C., where an anti-globalization demonstration was scheduled. By spring 2004, the program had been expanded to a three-tiered system of rating all passengers, based on information from airlines. Although several airlines have provided information to the government and the program is still being tested, this invasive practice--as well as the Bush administration's refusal to disclose how the program works or whom it affects--is under ACLU challenge.
These and other measures have stiffened opposition to the Patriot Act. So far, some 325 cities (in 41 states)--including Los Angeles--and four states (Maine, Vermont, Hawaii, and Alaska) have passed resolutions opposing the Patriot Act. Furthermore, the anti-Patriot movement (for want of a better term) now includes relatively "mainstream" organizations such as the American Bar Association, the American Immigration Lawyers Association, leaders of several religious denominations, and the American Civil Liberties Union (which has made opposition to the Patriot Act a core campaign). Also taking part are some unlikely conservative/libertarian allies, such as New York Times columnist William Satire, Dick Armey, former Republican House majority leader (also then-Chair of the House Select Committee on Homeland Security, who worked under contract with the ACLU after retiring from the House), and David Keene of the American Conservative Union. In short, there is an increasing level of concern and contestation, now that full citizens are being affected along with the more vulnerable noncitizens and immigrants.
Given these developments, U.S. citizens and U.S. society as a whole are beginning to surfer from the ever-expanding logic that initially targeted the most vulnerable (immigrants and noncitizens). Lani Guinier and Gerald Torres eloquently argue this point in their book, The Miner's Canary: upon the death of the little (vulnerable) canary sent into the mine to detect noxious gasses, miners know they too are vulnerable to being poisoned. Following this metaphor, even full-fledged citizens of a society that institutionalizes violations of basic, constitutionally guaranteed civil liberties against noncitizens (rollback of habeas corpus and due process protections, proposals to repeal the 14th Amendment, etc.) cannot be fully "safe" from arbitrary, antidemocratic abuses.
Beyond citizens' obvious self-interest, the treatment of immigrants and noncitizens affects the quality of democracy in the U.S. It is unhealthy for the fabric of a society to have a rapidly and ever-increasing mass of undocumented or in-limbo migrants who are regarded with suspicion and excluded from its benefits. Many of them have lived and worked here for 15 to 20 years; their children may be citizens and their labor (with or without legal papers) is essential to sustaining our economy and that of their home country. Yet they are unable to participate in U.S. public life, are politically unrepresented, and are denied a path to legalization and eventual naturalization--a situation that would be perpetuated if the 2004 Bush initiative on guest workers from Mexico were to be approved.
As has been seen in other times in other countries, the exclusion of immigrants based on racialization is an inherent affront to democracy. It was impossible to consider South Africa a democracy (even for its white citizens) so long as it was an apartheid regime. In the U.S. today, it is no longer possible to pursue punitive/repressive strategies against Third World immigrants and noncitizens without damaging the quality of democracy for citizens. In short, the challenge of reframing the issues of immigrant rights in the shadow of the national security state is one that should be of concern to all U.S. citizens--and throughout the Americas it will remain on our 21st-century public policy agenda.
On Citizenship and Second-Class Citizenship
An in-depth reconceptualization of citizenship is not possible here, but we believe the task is important to counter the national security mentality--to stretch our minds and think about an alternative worldview--at the theoretical level. Hence, we should at least point to nontraditional approaches to issues of immigrant legalization and citizenship. In our view, the traditional, legal meanings of citizenship (incorporation/inclusion into the dominant receiving society) remain crucial, but should be augmented by more recent, nontraditional literatures that also address participatory and transformative meanings of citizenship. (3)
Not surprisingly, many of these nontraditional conceptions serve as a point of reference for migration activists in the sending and transit countries in the Americas and in other areas of the Third World. Our experience teaches us that cross-border coalitions and institutionalized contacts with activists are important to immigrant rights networks in the U.S. They counter the often-xenophobic assumptions and perspectives that dominate public discourse in the U.S., which eventually form part of a national security political culture and are largely spread via the mainstream mass media.
An alternative approach to citizenship emphasizes the universality of basic human rights (see, for example, Falk, 1993; Dagnino, 1993). For immigrants, citizenship is more than a legal status; it includes the rights and entitlements that accrue to all human beings by virtue of being human beings--and therefore are rights that people carry with them when they cross borders (Jonas, 1999). This approach, which is central to several international conventions concerning immigrant rights (see below), challenges the idea, so widespread in the U.S., that people of color who cross borders without documents or overstay their visas are by definition criminals lacking rights and even the due process protections available to criminals who are U.S. citizens.
This rights-based approach to citizenship is complemented by the literature on cultural citizenship that has emerged from Latino communities and other communities of color (see, for example, Rosaldo, 1994; Flores and Benmayor, 1997). What they refer to as "the process of claiming rights and spaces" goes beyond inclusion in the existing society (legalization and naturalization) to a more proactive transformation of that society and polity in which they will be included. In this sense, it is a struggle for democratization, broadly understood, a proactive conception that also rescues the idea of activity "for-itself."
Undocumented workers are thus ideal protagonists. Many have fled from exclusionary societies, but with a broad agenda of what inclusion should mean. (This is the case with Central Americans--see footnote 2.) Their experiences have given them a transformative worldview or imaginario that projects beyond what exists. During periods in which rights are severely restricted, such as the present, they become oppositional actors. Migrants are the universal transnational citizens of the 21st century, living their lives and making their contributions in more than one country. In this vision, we are building on the well-documented autonomous cross-border initiatives and practices developed by migrants themselves throughout the Americas and the world (see Rodriguez, 1999).
A further problem complicates and compounds the above issues of citizenship for immigrants of color: even if a path toward legalization and eventual citizenship were to be established for a significant number of Latino (and other Third World) migrants in the U.S., they would face the problem of second-class citizenship, due to racialization, that leads them to live under second-class socioeconomic and psycho-cultural conditions. Precedents for this kind of racialized second-class citizenship exist in the post-Civil War history of African Americans, as well as among Latino-American populations within the U.S. (Mexican-Americans in the Southwest since the Mexican-American War of 1846-1848 and Puerto Ricans since the Spanish-American War of 1898). In-depth treatment of this issue remains to be developed in a future article.
International Immigrant Rights Regimes and "Human Security": New Paradigms in Practice
With the U.S. currently under a racist national security regime, reframing the issues of immigrant rights in practice requires that we look far beyond our national borders to incorporate the ideas (many of them from migrant-sending countries) of international immigrant rights regimes. These are based on the idea of accountability of states for their treatment of migrants at borders and across borders. If nation-states claim the sovereign right to regulate the borders (i.e., to determine who can and cannot enter), then we must insist on the right to regulate the regulators. Some elements are already accepted in practice (despite frequent violations), such as the 1951 U.N. Convention Relating to the Status of Refugees. Other elements are being developed now.
The U.N. International Convention for the Protection of Rights of All Migrant Workers and Members of Their Families concerns the rights that workers carry across borders, whatever their status or mode of entry, in opposition to the notion that the undocumented have no rights at all. In a sense, it recognizes the reality of the massive unauthorized movements of workers across borders. The Convention took effect in July 2003, when it achieved the requisite 20 country ratifications. Symbolically, Mexico was second (despite its abuses of transmigrants from other countries), Guatemala was 20th, and El Salvador 21st. With only 25 ratifications to date, the Convention is still far from becoming a truly effective international human rights instrument. Nonetheless, its official U.N. status means a treaty body is being established that will meet regularly to review complaints and reports, and maintain a small staff to oversee its implementation, including working with signatories to synchronize their national legislation with the Convention's guidelines. Nongovernmental organizations are collaborating on the creation of an independent monitoring body to "shadow" the implementation of the convention and to help ensure that the U.N. properly addresses abuses of migrant worker rights.
In recognition of the significant role of migrant workers in the world today, the International Labor Organization's June 2004 conference was dedicated to fairer treatment of migrant workers in the context of globalization. A report prepared for the conference noted that about 86 million people--about hall of all migrants and refugees--are working, including some 10 to 15% who are undocumented, or irregular migrants (ILO, 2004). The report notes that "economic, political, and demographic factors suggest that we are in an age of growing migration pressures," but cautions that the difficult conditions for undocumented migrants are likely to worsen, particularly in the area of rights protections, in the absence of action by the international community.
The Commission on Human Security, an independent panel initiated by Japan and comprised of diverse international experts and dignitaries, published a report in May 2003 calling for a "new paradigm" in the complex matter of national security. It spotlighted the need for security policies to move beyond the traditional role of state security, to embrace security for people--"human security." And it noted the highly vulnerable status of migrants, whose security needs to be ensured through protections and empowerment (see www.humansecurity-chs. org/finalreport/outline.html).
Another international body, the Global Commission on International Migration, supported by an open-ended "Core Group of Government," has been created to study and recommend international policies regarding migration. Studies and proposals are to be solicited on related issues and it is expected to shape proposals on the national, regional, and international governance of migration. It seeks to promote "the positive potential of migration, limit its negative effects, and improve the conditions of the individual migrant." Deliberations are expected to conclude by mid-2005 (see www.gcim.org/GCIM_Mandate.pdf).
In the Western Hemisphere, NAFTA and its upcoming extensions, the Central American Free Trade Agreement and the Free Trade Area of the Americas, have raised obvious demands that cross-border mobility for capital be matched by mobility and rights for labor. Civil society organizations such as the RROCM (Red Regional de Organizaciones Civiles para las Migraciones--Regional Network of Civil Society Organizations for Migration) have expressed such demands. Working parallel to and closely monitoring and pressuring the regional association of governments through the "Puebla Process" (which covers the U.S., Canada, Mexico, Central America, and the Dominican Republic), RROCM has made significant inroads as a network. The coalition's interactive, trans-regional actions, in which the Mexican organization Sin Fronteras plays a central role, will likely be reproduced in other sub-regions of the Americas.
Due to pressure from migrant rights organizations, issues of cross-border rights are beginning to be addressed by para-state institutions such as the Inter-American Court of the Organization of American States. A landmark advisory opinion issued in September 2003 by the Inter-American Court of Human Rights asserted, "countries violate international law when their labor laws discriminate against undocumented workers" (National Employment Law Center, November 2003). The court's statement was a response to Mexico's request concerning the controversial U.S. Supreme Court ruling (Hoffman Plastic Compound v. NLRB) that an undocumented worker, illegally fired for union organizing, had no right to lost wages.
At the moment, these international immigrant rights regimes may seem to be a distant vision. While the national security state apparatus grows in strength in the U.S., this vision is being kept alive most strongly outside its borders. This empowers U.S.-based immigrant rights organizations to be proactive and to defend their rights. Given the changing demographics of the Americas, immigrant rights issues will persist and intensify. They will certainly remain central to the struggle for the soul and the future of the United States nationally and of the Americas as a hemisphere.
Acknowledgment: For assistance with research details, the authors wish to thank the American Civil Liberties Union (its Immigrant Rights Project and its multiple field offices), the National Immigration Project of the National Lawyers Guild, and Arnoldo Garcia of the National Network for Immigrant and Refugee Rights.
(1.) According to Reeves (2004), "few people, beyond immigration lawyers, have noticed a Bush initiative already in full swing--the detention of more that 63,000 immigrants (as of late January 2004) over the past year, mostly legal residents. The Department of Homeland Security says it has already deported as many as 70 percent. These are mostly men and women with green cards who have been in this country from five to 50 years, and who were convicted of a criminal offense, often decades ago." According to Guatemala's leading newspaper, Prensa Libre (March 9, 2003), the U.S. has deported over 6,200 Guatemalans since September 11. Some of them were people who have lived here since the 1980s; at least 300,000 more were at risk of deportation from the U.S. because they were undocumented In addition, 66,857 Guatemalans were deported from Mexico during 2002 alone, highlighting another crucial effect of the post-September 11 hemispheric order: greater collaboration between U.S. and Mexican border, immigration, security, and intelligence agencies, with the Mexican government apparently hoping that such cooperation on its southern border will help its negotiations with the U.S.
(2.) Since the mid-1990s, Central American immigrant rights organizations have worked in their communities to defend and protect their rights through informational campaigns and legal advice. These organizations made an important leap forward with a February 21-23,2003, meeting in Houston, sponsored by the Chicago-based Enlaces America. There, the Coalition of Guatemalan Immigrants Residing in the U.S. (CONGUATE) joined forces with the much stronger and more established Salvadoran American National Network (SANN). The Houston meeting concluded that even if possibilities for immigrant rights legislation in Congress were essentially blocked, a real opportunity existed for these organizations to greatly increase their social base in their communities. Subsequent meetings included networks of other nationalities and eventually evolved into the Latino "Summits" of 2004. They could enrich existing immigrant rights agendas (developed mainly by Mexican-American organizations over decades) from their uniquely Central American perspective. This "uniqueness," resting on the extensive experience of struggle brought to the U.S. by a large number of Guatemalans and Salvadorans, enabled them to break out of political exclusion and achieve substantive democracy. Such experiences could be applied to opening spaces for organizing within a repressive context in the U.S.
(3.) Besides the literature on cross-border citizenship and cultural citizenship, other nontraditional approaches emphasize participatory democracy and the "politics of difference," which have been extensively developed by feminist and indigenous theorists.
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SUSANNE JONAS teaches in Latin American and Latino Studies, University of California, Santa Cruz (Merrill College, Santa Cruz, CA 95064; e-mail: email@example.com) and is a member of the Social Justice Editorial Board. CATHERINE TACTAQUIN is director of the National Network for Immigrant and Refugee Rights (310 8th Street, Ste. 303, Oakland, CA 94607; e-mail: firstname.lastname@example.org). This project was sponsored by the Hemispheric Dialogues II Project at the University of California, Santa Cruz, and funded by the Ford Foundation. The article was refined for a speech given by Susanne Jonas at the Center on Democracy in a Multiracial Society of the University of Illinois, Urbana-Champaign, as part of the Center's conference (April 11-12, 2003) on "Educational Democracy, Citizenship, and the New Immigration."
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|Author:||Jonas, Susanne; Tactaquin, Catherine|
|Date:||Mar 22, 2004|
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