Tag Archives: immigration enforcement

When the Border Crosses You

American Indian communities on the Southwest border have become ground zero for immigration enforcement. In many cases border surveillance, checkpoints, and the construction of border fences takes place on their aboriginal homelands. Between the restriction of movement, increased drug trafficking activity, and Border Patrol’s abuse of authority, the consequences of immigration and drug laws threaten traditional lifestyles and cultural identities. In American Indian communities within the borderlands, the nation’s largest law enforcement agency closely resembles yet another occupying force.

Tohono O'odham Nation Map
Tohono O’odham Nation Map. Contemporary reservation in Red, Historical lands in Orange.

Prior to the colonization of the Americas, the Tohono O’odham inhabited what is today considered southern Arizona and northern Sonora, Mexico. The homeland of the Tohono O’odham was split in two in 1853 with the Gadsden Purchase. Though their religious and cultural practices are connected to this geographic location, colonial powers never consulted the tribes when they made the international boundaries. At first, the border was merely symbolic, but as immigration laws changed the O’odham found themselves stopped, searched and sometimes “returned” to Mexico.

With the US-Mexico border cutting their sovereign territory in half, the people of Tohono O’odham are restricted from traveling freely within their own traditional homelands. According to Resolution 98-063 passed by the Tohono legislative council, “enforcement of the U.S. Immigration laws has made it extremely difficult for all Tohono O’odham to continue their sovereign right to pass and re-pass the United States- Mexico border as we have done for centuries as our members are routinely stopped by the U.S. Border when others have been actually ‘returned’ to Mexico even though enrolled”. In addition to the restriction of movement, the occupation of their traditional homelands includes 24-hour border surveillance that uses high-powered lights, drones, and black hawk helicopters.

Border Patrol prohibits tribal members from crossing the border anywhere but the official border crossings, even though some of these routes date back thousands of years and are relevant to their cultural and religious beliefs. The Tohono O’odham nation is the only tribe in the U.S. that grants enrollment to its people who happened to be born in Mexico. Regardless of Mexican citizenship, enrolled tribal members are entitled to health care services provided by the tribe in Arizona. Unfortunately, immigration restrictions have made routine healthcare visits less frequent and more dangerous. For the elders trying to seek medical attention for life threatening diseases, crossing the border often results in returning home if they lack the proper documentation. Enrolled tribal members are supposed to be allowed to freely travel across their land when they present a tribal identification card, birth certificate, or baptismal records. In practice however, this doesn’t always work out, especially for O’Odham elders who were never issued a birth certificate. According to American Indian Policy scholar Eileen Luna-Firebaugh, restrictive border enforcement on tribal land is viewed as an “assault on indigenous sovereignty, as well as an assault on the cultural integrity of native societies.”

Clinton era polices, such as the Southwest Border Strategy, sought to curb unauthorized entries at the busiest illegal crossing points. These policies would force immigrants to enter through the more remote areas or disincentivize immigration all together. One unintended consequence of increased restrictions was that immigrants and drug smugglers started to utilize entry points on tribal land. In 1999 tribal police officers assisted federal border officers with 100 undocumented immigrants per month; by 2002 Tohono O’odham police were assisting with over 800 per month. In 2008, roughly 210,000 pounds of marijuana was confiscated in the territory, increasing to 319,000 pounds in 2009. In 2002 alone, the Tohono O’odham reported about 4 million pounds of trash on tribal lands, as well as 4,500 vehicles abandoned by smugglers or immigrants. Luna-Firebaugh explains that tribes have “been concerned about the degradation of tribal land by federal officials, the cutting of roads in sensitive and/or sacred lands, and high speed pursuits over tribal roads, some of which are unpaved, which endanger tribal members and livestock.”

Within their traditional territory, the Tohono O’odham often encounter desperate immigrants seeking food, water, and shelter. Tribal members are also approached by organized crime. Cartels have been known to approach a Tohono household south of the border with a wad of cash and a bale of marijuana asking that they bring the package up north. The O’odham often worry that if they refuse they will be aggressed against by the cartels. Even without coercion, a poverty rate nearly 3 times that of Arizona creates plenty of incentives for taking advantage of this supplemental income. Many tribal members have been prosecuted for drug smuggling and/ or human trafficking, and in some cases both parents of a household are incarcerated. The problems faced by American Indian communities within the borderlands are a direct consequence of drug prohibition and increased enforcement within the border region. As other contributors to Open Borders have argued, reducing immigration restrictions and ending the war on drugs would weaken criminal gangs that operate within the US-Mexico border region. The tribe is squeezed by organized crime on one hand, and a belligerently unaccountable border patrol on the other.

On the Tohono O’odham nation the Border Patrol routinely violate the rights of American citizens on tribal land. There are countless testimonies by the Tohono O’odham that illustrate the on going abuses ranging from punching, kicking, and/or pepper spraying detainees, to shooting into vehicles. Border Patrol also claims the right to enter onto people’s property- without a warrant- if they are in a “hot pursuit” of an alleged immigrant or drug smuggler. A 2012 report by Amnesty International details how American Indians are subjected to harassment, intimidation, and frequent verbal and physical abuse at the hands of Border Agents.

The Tohono O’odham aren’t the only tribe affected by heightened border security; there are nearly 30 American Indian tribes living with the consequences of border enforcement. The Lipan Apache of the Texas-Mexico border find their property divided by a recently constructed border fence. In 2006, Congress passed the Secure Fence Act, which allowed the government to waive laws that would interfere with the construction of a border fence. Using this law, the DHS waived a total of 36 federal and state laws including laws protecting indigenous territory and environmental protection regulations. A recent report on the Racially Discriminatory Impact of the Border Wall on the Lipan Apache People of Texas outlines the injustices that the Lipan Apache endure within the borderlands such as restricted access to traditional lands, resources, sacred spaces, the abuse of eminent domain, and the construction of the border wall on the burial ground of Apache elders.

The current situation faced by communities like the Tohono O’odham demonstrates the unintended consequences of poorly constructed policies. On American Indian land within the border regions we find the bloody intersection of the war on drugs, restrictive immigration policies, and the politics of manifest destiny. A policy of open borders would reduce the inadvertent damage done to indigenous people and land while strengthening tribes’ ability to assert sovereignty and self-determination.

Related reading

Immigration Restrictions Enable Abuse

The writers at openborders.info frequently describe how immigration restrictions are immoral in the context of official policy.  Governments, in an effort to keep most people from immigrating to their countries, prevent would-be immigrants from entering their territories and detain and deport those who have managed to penetrate their borders; ending these official actions is our overarching goal.  The evils of restrictions are not limited to official government policies, however.  Immigration restrictions make immigrants and would-be immigrants vulnerable to mistreatment by individuals in myriad ways.

Before detailing this mistreatment, it is helpful to consider a similar dynamic in African-American history.  Ta-Nehisi Coates has described in the Atlantic how many whites in America have taken advantage of blacks in the context of government and societal discrimination.  He refers to “.. the marking of whole communities as beyond the protection of the state and thus subject to the purview of outlaws and predators.”  For example, Mr. Coates relates how an African-American sharecropping family in Jim Crow Mississippi, whose landlord was supposed to split the profits from the cotton with them, would lose most of the money to him. The father in the family told his son not to resist this situation “‘because they’ll come and kill us all.’”  In another example described by Mr. Coates, African Americans from the 1930s through the 1960s “were largely cut out of the legitimate home-mortgage market,” to a large extent due to Federal Housing Administration policy, which made black neighborhoods usually “ineligible for FHA backing.” As a result, “blacks were herded into the sights of unscrupulous lenders who took them for money and for sport.”

Borrowing terms from Mr. Coates, restrictions herd immigrants into the sights of the unscrupulous. To begin with, migrants crossing borders illegally, by attempting to evade government authorities, are put at risk of being robbed (or worse). A Mexican man who crossed illegally into the U.S. recalled that he was robbed two times that evening. Before he and the other immigrants in his group even crossed the border, they were ambushed by bandits who threaten them with ice picks. He was forced to strip and was robbed of $40. Then, approaching the border wall, another group of robbers approached with guns, but after the immigrants explained they had already been robbed, the second group left them alone. Soon after crawling under the wall into the U.S., they were approached by yet another group of robbers with ice picks. The man was forced to give up his tennis shoes and in return was given a pair of old, used shoes. (Cristine Gonzalez, “Journey to Wenatchee,” The Oregonian, 6/15/07) The New York Times reported that “illegal immigrants crossing the Mexican border often encounter bandits, armed civilian patrols and rival smugglers bent on robbing or stopping them.” In February of 2007, men with rifles robbed 18 immigrants who had crossed into Arizona. A day later, a group of undocumented immigrants from Guatemala were traveling in a vehicle along a known smuggling route when gunmen fired on the vehicle, which then crashed. Three of the immigrants were killed, three were wounded, and several others were kidnapped. An official with the Pima County Sheriff’s Department said, “’There have been similar cases where undocumented migrants have been taken to a location and relatives in Mexico contacted and extortion took place.’”

Immigrants from Central America who cross Mexico on their way to the U.S. border are exposed to danger even before they reach it. It is easy to cross into Mexico from Guatemala, but, as reported in National Geographic, “it is at the southern Mexican border where the perils begin—the thugs, the drug runners, the extortionists in official uniforms, the police and migration agents who pack undocumented migrants into detention facilities before forcing them onto buses to be deported.” The Central American migrants in a Mexican city near the Guatemalan border “… because they’re isolated, vulnerable, and likely to be carrying money—attract assailants whose toxic presence alarms everybody in town.” The article adds that migrants who ride freight trains north through Mexico are sometimes accosted at stops by locals who beat and rob them, “sometimes with police watching or joining in.”

When undocumented immigrants make it in the U.S., their desperation to have legal residency and their vulnerability to deportation make them targets of other types of theft.  Some attorneys have reportedly defrauded immigrants.  A director of an immigrant advocacy group stated, “Immigrants are easy prey for unscrupulous attorneys, and they are often unwilling and unable to complain because they are likely to be deported if they do.”  People who are not attorneys similarly take advantage of the undocumented.  The New York Times reported several years ago that over a hundred undocumented immigrants in the New York area were cheated out of almost a million dollars by two men who had set up a church in Queens, New York. The immigrants were told that green cards were available through churches. They were also told to pay a fee in cash ranging from $6000 to $10,000. The immigrants drained their savings and/or borrowed money from others to cover the fees. After months had passed and the green cards did not appear, the immigrants began asking for refunds. After first threatening to report the immigrants to authorities, one of the schemers simply stopped answering calls and closed the church. “Many of the immigrants say they find themselves in deep financial holes at a time when work is scarce. Officials can offer only limited hope: Full restitution for victims is often difficult in cases of financial fraud, especially in immigration-related cases, which almost always involve cash transactions.” (See also here.)

Beyond enabling the fleecing of immigrants, restrictions also make immigrants vulnerable to sexual assault. The National Geographic article on Central Americans crossing Mexico refers to sexual assaults on migrants. In addition, a report by groups that monitor the U.S.-Mexico border states that “smugglers have been regularly accused of coercion, rape, and forced servitude…” (p. 13) The undocumented are also vulnerable to sexual assault when they work. According to an article on the Public Broadcasting Service site, a study of hundreds of low-wage employees working illegally in the U.S. “found that 64 percent of the janitors surveyed had been cheated out of pay or suffered some other labor violation. About one-third said they’d been forced to work against their will, and 17 percent of that group said they’d experienced some kind of physical threat, including sexual violence…” Immigrant agricultural workers are also abused, according to another article on the PBS website: “The combination of financial desperation and tenuous immigration status make agricultural workers vulnerable to workplace violence and less inclined to report crimes.”

Immigration agents themselves have mistreated immigrants beyond their official duties of stopping illegal immigration.  This should not be surprising, given the results of the Stanford Prison Experiment, in which volunteers assumed the roles of either guards or inmates.  Soon after the experiment began, the guards began to mistreat the prisoners.  The experiment was shut down early because of the suffering that was occurring. (“The Slippery Slope of Evil,” Mother Jones, July/August, 2015, p. 56)

Restrictions make immigration agents the “guards” and undocumented immigrants the “prisoners.”  Along the U.S.-Mexico border, each year there are hundreds of thousands of apprehensions of undocumented immigrants by armed immigration agents, so it is not shocking that, according to a 2008 report by groups that monitor the border, “in a very small but extremely important set of cases, Homeland Security officers (including Border Patrol officers) have used lethal force. The wider pattern of abuses includes pointing guns at immigrants, wrongful detention, excessive use of force, and verbal and psychological abuse.” (p. 15) In one case, an immigrant reported that on December 19, 2007, “I crossed the border and almost immediately an agent was upon me with his flashlight drawn like a weapon. I turned to run back to the Mexican side, he tackled me and pulled my feet and then there was another agent hitting me. Even though I had reached the Mexican side, the agent pulled me back and the other continued to hit me, and jumped on my back. My chest, hand and leg were hurt, and my body had cuts all over. The agent that was hitting me also pointed his gun at my head and was yelling at me. After I was taken to the border patrol station, an ambulance was called and I was taken to a hospital. After I was released and taken to the detention facility, I had to go back to the hospital two more times because of my injuries.” (Also see here, pp. 9-10)

Luis Alberto Urrea, author of The Devil’s Highway, notes that as part of writing the book (on the deadly crossing of Arizona’s desert undertaken by a group of undocumented immigrants in 2001) he spent hours in Border Patrol stations and trucks. He reveals some Border Patrol views of undocumented immigrants. “Illegal aliens, dying of thirst more often than not, are called ‘wets’ by agents… ‘Wets’ are also called ‘tonks,’ but the Border Patrol tries hard to keep that bon mot from civilians. It’s a nasty habit in the ranks. Only a fellow border cop could appreciate the humor of calling people a name based on the stark sound of flashlight breaking over a human head.” (p. 16) And this: “There are other games the Border Patrol guys like to play. Sometimes they toss a recently shot rattlesnake, dead but still writhing and rattling, into the cage with the captured wets. Ha ha—that’s a funny sight, watching them go apeshit in the back of the truck.” (p. 27)

In addition, hundreds of thousands of immigrants are literally prisoners in detention facilities in the U.S. each year.  Some are in state and county criminal jails, while others are in facilities run by immigration authorities or private contractors. Amnesty International reports “pervasive problems with conditions of detention, such as commingling of immigration detainees with individuals convicted of criminal offenses; inappropriate and excessive use of restraints; inadequate access to healthcare, including mental health services; and inadequate access to exercise.” (p. 7) The New York Times has described the immigrant detention system as “a sprawling network of ill-managed prisons rife with reports of abuse, injury and preventable death… a system that puts little children in prison scrubs, that regularly denies detainees basic needs, like contact with lawyers and loved ones, like soap and sanitary napkins. It is a system where people who are not dangerous criminals by any definition get injured, sick and die without timely medical care.” A recent report from The Center for Migration Services and The United States Conference of Catholic Bishops noted that “attorneys and pastoral workers from Catholic agencies have learned first-hand of the sexual abuse of women detainees, women forced to deliver babies in restraints, frequent hunger strikes, suicides…” (p. 15)

The role of smugglers and employers in the exploitation of  undocumented immigrants is more ambiguous.  There have been cases where smugglers and employers have clearly mistreated undocumented immigrants.  I earlier noted reports of sexual assault on immigrants by employers and smugglers.  In addition, in at least one case smugglers of Chinese migrants had enforcers extort more resources from them during the voyage. (Peter Kwong, Forbidden Workers: Illegal Chinese Immigrants and American Labor, 1997, p. 80) When smuggled Chinese migrants arrived in America, they would sometimes be tortured to force the migrants’ relatives to pay off the smuggling fees and would even be forced to work without pay. Migrants from Syria and Eritrea often are smuggled across the Sudanese portion of the Sahara Desert on their way to the Libyan coast (and then on to Europe). An article in the Guardian states that “All must brave the desert – and not everyone makes it. At every stage, migrants are at the mercy of the smugglers in that particular area; kidnappings for ransom or for slave labour are common. There are stories of smugglers abandoning their clients in the dunes and of dozens dying of thirst.” Some of those who make it to Libya “are essentially kidnapped by smugglers or even local businessmen… whoever is doing it seems to be holding migrants in warehouses, or treating them as slave labour, until they pay what they owe.” In addition, “there are reports of beatings to extract more money from people while they wait” to begin the trip to Europe.

Employers can use immigration agents as a way of exploiting their immigrant workers. A report relates a situation in Louisiana in which
immigrants working to clean and repair an apartment complex damaged by Hurricane Katrina labored long hours, lived in moldy apartments in the complex, and were owed 15 weeks of unpaid wages. “The employer regularly threatened to call immigration authorities in response to workers’ demands for their pay.” A few days after an attorney sent a letter in 2008 to the employers on behalf of the workers demanding payment, ICE “agents arrived at the exact time and place that the immigrant workers were required to check in for the day, and arrested seven of the workers who had sought back pay.” At least two workers have been deported to Honduras. “As has been the case with many raids conducted by ICE, none of these workers had committed crimes, and the employer was not charged with anything or held liable for its abuse of the workers.” (“Raids on Workers: Destroying Our Rights,” Report of The National Commission on ICE Misconduct and Violations of 4th Amendment Rights, 2009, pp. 40-41) Another report stated that “in raids documented by NNIRR’s HURRICANE initiative in 2008, where employers cooperated fully with ICE’s enforcement operation, employers were subjecting workers to egregious labor rights violations. This included not paying minimum wage, non-payment of wages, including overtime work, threats of deportation, denying access to or not providing safety equipment and not meeting safety standards, sexual and verbal abuse and harassment by immediate supervisors.”

Notwithstanding these cases of abuse by smugglers and employers, on balance I agree with Vipul that “helping illegal immigrants by smuggling them or employing them, even when done for selfish reasons, is a good thing (if nobody were willing to smuggle people across the border, or employ them once they were on the other side, this wouldn’t be good for the immigrants).” (See here and here for Vipul’s elaboration of this perspective.)

The exploitation and abuse of undocumented immigrants described in this post is not a complete survey of all the suffering inflicted by immigration restrictions.  I did not explore the suffering and death from exposure to the environment in an attempt to evade immigration authorities, whether that involves crossing a desert or a long stretch of sea.  I did not relate the suffering caused by deportation and raids and the “normal” suffering associated with detention, such as separation from loved ones.  I did not address the lost opportunities for those prevented from migrating to a different country.  It should be kept in mind that the mistreatment discussed in the post accounts for only part of the suffering associated with restrictions.

It also needs reemphasizing that the ultimate responsibility for the mistreatment related in this post should be assigned to the people who create the laws that restrict immigration (and, in democracies, the citizenry that elects them). The immediate perpetrators of misdeeds against immigrants, whether they are border agents, robbers, swindlers, or prison guards, certainly bear responsibility for their actions, but they have been enabled by the policies that make immigrants vulnerable to their depredations. When immigration restrictions disappear (while keeping limited restrictions such as the exclusion of terrorists) and open borders are realized, the ability of people to abuse immigrants should dissipate.

Related reading

If you liked this post, you might also find the following relevant:

How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910)

On May 29, 2013, co-blogger Chris Hendrix started off a very promising post series to explore the origins of immigration restrictions, the rationales used when introducing them, and how they were gradually modified into their present form. His first post in the series took an in-depth look at the Chinese Exclusion Act of 1882, the first large-scale restriction of immigration to the United States after nearly a century with nearly unrestricted migration. Chris went into considerable detail into the rationales proffered for the law, and found them flawed in light of both the evidence available at the time and the evidence that would accumulate over the coming decades.

With Chris’s permission, I’m taking this very important series over from him. This post will look at the Chinese Exclusion Act, but from a different angle: how was it implemented? As the United States’ first foray into a systematic control of a border, what legal ambiguities did it give rise to, and how were those resolved? What aspects of the modern immigration control regime, in the US and elsewhere around the world, can be traced to the way these ambiguities were resolved?

Let’s first get an idea of the sort of world that existed at the time.

A different world

Migration back in the day was qualitatively similar to South-South migration today: relatively unregulated and unprotected. But this is part of a broader feature of society back then: goverment was less centralized and far less powerful and all-knowing than it is today:

  • Passports did exist, but most people didn’t bother to get them.
  • Social Security, and Social Security Numbers, didn’t exist.
  • There was no federal income tax.
  • Since there was no tax withholding, employers had no federal reporting requirements, and they didn’t have reporting requirements in most states either. In other words, the state didn’t have a reason to record most work activity.
  • There was no Green Card, or Green Card-equivalent. Non-citizen permanent residents had no document that directly established that status for them.
  • There was no nation-wide interior enforcement for immigration law.
  • Entry by land from Mexico and Canada was largely unrestricted.

So what did exist?

  • Ports of inspection for people and goods coming by sea, from the Atlantic or the Pacific. These ports were not intended primarily for immigration enforcement, but were mainly used for customs enforcement. At the time of the Chinese Exclusion Act, there were, as far as I am aware, no designated ports on the West Coast exclusively for immigration enforcement. Angel Island, the main such port, would become active only in 1910. The corresponding port in the East Coast, Ellis Island, would open only in 1892, though there were other immigrant processing stations before that on the East Coast, such as Castle Garden.
  • City officials in various cities could act as de facto immigration enforcement. They could ask residents of the area for documentation proving that they were citizens (this would typically involve a birth certificate that would need to match with the city’s records, or a demonstration that the parents were US citizens, or a proof of naturalization). Enforcement would therefore be zealous only in places where the natives and the officials representing them cared enough about the matter. In practice, therefore, immigration enforcement followed the principle of subsidiarity — even though the legislation was determined at the federal level, interior enforcement was largely a local matter.

Racism, citizenism, territorialism, and high versus low skill

All the elements found in the modern border control regime could be glimpsed in the Chinese Exclusion Act as it played out. First off, the act was overtly discriminatory in a racial and ethnic sense. It could be argued that many immigration laws today are racist, albeit in many cases they are not overtly so. But the racial/ethnic component to the Chinese Exclusion Act was both more morally acceptable and palatable and more practically enforceable.

If you are trying to enforce immigration law, that requires a lot of potential violations of civil liberties, not only for the immigrants, but also for people who might be suspected of being immigrants. The Chinese Exclusion Act explicitly restricted itself only to targeting (a subset of) the ethnic Chinese. This subpopulation was sufficiently distinctive in appearance, customs, and linguistic habits. Thus, the collateral damage inflicted by the law on those not in violation of immigration law was limited to other ethnic Chinese.

In today’s world, it is possible (though still far from easy) to carry out some semblance of border and interior enforcement targeted at potential immigrants that has minimal collateral damage for citizens, without being so explicitly racially targeted. For this, we can thank (or blame) the record-keeping surveillance state that can track people much better. At the same time, it is somewhat harder to use explicit racial/ethnic targeting, because of greater levels of ethnic mixing. People of different national origins no longer look so obviously different, thanks to some degree of global convergence in culture, and also (to a less extent) greater interbreeding leading to many many more intermediate forms of physical appearance.

The racism of the law was therefore necessary for it to get off the ground, and for immigration enforcement to get an early testing bed while leaving the majority of the population unaffected. Just as the income tax started out as a tax on the super-rich and gradually grew to cover a majority of income-earners in the United States (and most other countries) immigration enforcement sharpened its ax on a relatively vulnerable, distinctive, and reviled population before spreading its wings to society at large. As they say, First they came for the Chinese. As history.com puts it:

American experience with Chinese exclusion spurred later movements for immigration restriction against other “undesirable” groups such as Middle Easterners, Hindu and East Indians, and the Japanese. The Chinese themselves remained ineligible for citizenship until 1943.

The second interesting emergent feature of the law, as it came into practice, was its citizenism, in more senses than one. First, as Chris described at greater length in his post, the law was justified in terms of citizenist premises, though there was the occasional nod to how it would be good for China as well to keep all its population within. Second, those Chinese who were already citizens continued to enjoy citizenship — at least in principle. They still were at greater risk of getting into trouble (because they were in the ethnic group suspected of harboring illegal immigrants) and they often couldn’t bring family members in, but they still enjoyed the constitutional rights of citizens. They could leave the country and return as they pleased (provided the officer at the port of entry was convinced they were actually citizens, and there were sometimes messups).

Third, the implementation of the law provided the early contours of territorialism: Chinese who had immigrated but not naturalized prior to the passage of the Act were not allowed to naturalize, but they were not required to leave the country. As long as they were physically present in the country, they enjoyed the rights of non-citizens (subject to the caveat of being harassed due to the suspicion). However, if they left the country and tried to return, they could be denied entry. This was formalized in the Scott Act of 1888 discussed later in the post. This was an early precedent for the current regime that distinguishes between entry visas and authorized stays.

Fourth, the high versus low skill distinction emerged in the law. The law banned the migration of skilled and unskilled laborers, but allowed for the migration of people in white-collar professions, if they could get documentation from the Chinese government to that effect, and could convince the officer at the port of entry. In practice, many people in white-collar professions also found it hard to enter due to lack of adequate documentation. This again resembles the current system, where high-skilled immigrants need to, and often fail to, jump through the many hoops needed to demonstrate their high skills.

Continue reading “How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910)” »

Carry your Green Card at all times: the why and how

The Green Card, originally called the Alien Registration Receipt Card, is a card possessed by non-citizen Lawful Permanent Residents (LPRs) in the United States. You can read about the history and color of the card here and here. The card, first introduced in 1940 as part of the Alien Registration Act of 1940 (aka the Smith Act), carries with it an interesting regulation — those having the card are required to carry it with them at all times. Here’s how the USCIS puts it:

A green card is issued to all permanent residents as proof that they are authorized to live and work in the United States. If you are a permanent resident age 18 or older, you are required to have a valid green card in your possession at all times.

As far as I can make out, there is no obligation to carry documentation of citizenship status with one at all times, nor are non-citizens who are not permanent residents obliged to carry their identifying document (such as the Employment Authorization Document (EAD) card) with them at all times. What accounts for the apparently unique status of the Green Card?

This post explores the origins of the regulation, how it was somewhat practical back in the day, and whether it can still be enforced.

Puzzling aspects of enforcement

Today, enforcement of the Green Card regulation would be difficult because there is no easy way of identifying the category of people who should carry Green Cards (i.e., Lawful Permanent Residents, or LPRs) from:

  • US citizens, who have no legal obligation to carry identifying documentation proving their citizen status, and most of them do not carry around such documentation (a large number of them carry driving licenses or state ID cards but, in many states, these cards do not include information about citizenship or immigration status).
  • Those on authorized non-immigrant statuses, such as short-term business/tourism visas (B1/B2), student visas (F), and temporary worker visas (H). Those whose visas allow for employment do need to have an Employment Authorization Document (EAD) but, as noted above, are not required to carry it with them at all times.

So an obvious problem with enforcing the Green Card regulation is that somebody, asked to produce a Green Card, could simply claim to not be a LPR but instead be a US citizen or authorized under a non-immigrant status. Since those statuses don’t carry any requirement, how can anybody intent on enforcing the Green Card regulation push forward? You could argue that:

  • The Green Card regulation is still helpful in cases where people are trying to access benefits (such as welfare benefits) only eligible to citizens and LPRs. But there aren’t any welfare benefits accessible to LPRs and not to citizens. And in any case, government offices have their own requirement for documentation you are supposed to bring, and being required to carry your Green Card at all times is unnecessary for that purpose.
  • It still doesn’t make sense for a person to lie to an official enforcing the Green Card regulation about whether he or she is a LPR, because the officer can investigate the person and know if he or she is lying. But to the extent this is true, it also renders somewhat superfluous the requirement to always carry the Green Card — if officers can investigate you anyway, why do you need to carry the card?

Current enforcement

Though about half of Green Card holders I personally know are aware of this regulation, many people have been skeptical of whether it can actually be enforced. Here’s what online law resource NOLO has to say:

If you are 18 or older, you do have to carry your green card with you. Section 264(e) of the Immigration and Nationality Act (I.N.A.) requires all lawful permanent residents (LPRs) to have “at all times” official evidence of LPR status.

Failing to have your green card with you is a misdemeanor and if you are found guilty you can be fined up to $100 and put in jail for up to 30 days. (I.N.A. Section 264(e).) A copy is not good enough, because the law does not use the word “copy” or refer to “other evidence” of LPR status.

The official evidence of LPR status that most people eventually receive is an “alien registration receipt card,” also known as Form I-551 or, more commonly, a “green card.” Sometimes, people do not have their green card, but are already LPRs. For example, when somebody first arrives in the U.S. with an immigrant visa, they first receive an “I-551 stamp” in their passport. Weeks later, they receive the actual green card in the mail. In the time before receiving the green card in the mail, the LPR would have to carry his or her passport “at all times” or risk breaking the law.

If you decide to carry a copy of your green card instead of the original because you want to keep the original safe, you will be violating the law. Will you actually be stopped by immigration, prosecuted and fined or jailed for not having your original green card with you? It’s unlikely. Like any other government agency, immigration authorities have limited resources and cannot spend precious government time and money on prosecuting people for not carrying their green card “at all times.”

But there have been cases where LPRs are detained or arrested during workplace enforcement actions for not having their green card on them. So to be on the safe side, and obey the law, you should actually carry your green card with you everywhere you go. And it probably goes without saying that if you will be traveling internationally, you should take your original green card with you to board a plane or boat back to the U.S. and to reenter the U.S. as an LPR.

You might also be interested in discussion of the issue at ImmiHelp, Immigration Road, and Immigration Forums. Here’s an excerpt from the latter:

> When there are 20 million illegals easily walking in the streets of USA we the law abiding ones should not have issues.

When the law says you have to carry it with you and you don’t carry it with you, then how can you be a law abiding one?

I believe you cannot apply the photo-copy-is-okay argument to a green card, like you do for approval notices or certificates. Green card is obviously different with the magnetic stripe and stuff.

If we can say photo-copy is sufficient, then we can logically extend the argument to drivers license and start carrying a xerox copy of our drivers license with us instead of the original.

We have to accept what the law says and have to learn to live with it even though it may not be to our liking.

In an Open Borders Action Group post discussing the issue, it was pointed out that immigration regulations in the United States can only be enforced by federal immigration enforcement authorities, and these are active generally only at airports and close to the border, so in practice this does not affect most people. There is much truth to this, but some important caveats:

Do not ask for whom the bell tolls, for it tolls for thee! If you, or people at your workplace, are non-citizen LPRs of the United States, then a federal immigration raid of your workplace could lead to you or your co-workers getting arrested for a month. Is this likely to happen? Probably not — arresting people for not carrying Green Cards is a “low priority” for the ICE because they have so many bigger fish to fry (such as deporting illegal immigrants). Still, better be careful! The law is the law.

Historical enforcement

The Green Card began after World War II. Althogh the Smith Act was passed in 1940, cards began to be issued only after the War. 1950 saw an important step in the formal codification of the idea that non-citizens had a burden of proof of responsibility in maintaining documentation to demonstrate legal status. As Citizen Path puts it:

The Internal Security Act of 1950 increased the value of Form 151, Alien Registration Receipt Card. Effective April 17, 1951, aliens holding AR-3 cards could replace them with a new Form I-151. However, only those with legal status could replace their AR-3. What’s more, aliens who could not prove their legal admission into the United States were subject to prosecution for violating U.S. immigration laws.

As a result, the Form I-151 card represented security to its holder. It indicated the right to live and work in the United States permanently and instantly communicated that right to law enforcement officials. Because of the card’s cumbersome official name – Alien Registration Receipt Card – immigrants, attorneys, and INS workers came to refer to it by its color, calling it the “green card.”

So having a Green Card was a way of getting around an otherwise capricious and uncertain law enforcement process. Mandating that people carry it could be considered a form of libertarian paternalism — nudging people in the direction of doing something they should want to do anyway.

Historically, the Green Card regulation was important because of two salient differences with the present.

First, in response to the present difficulty of distinguishing between citizens and non-citizen LPRs: a foreign-born person in the United States could not be a citizen unless that person was “white” (as defined by the Naturalization Act of 1790) or of African ancestry (this change was made in the Naturalization Act of 1870, as part of the process of post-Civil War rectification of racial injustice). Note that birthright citizenship existed even for people of other races and ethnicities, but the foreign-born of these races were not formally eligible for (or at least had no official process for) acquiring citizenship. This would change with the Immigration and Nationality Act of 1965. But it does mean that back in the day, if somebody looked neither white nor black, you could have high confidence the person wasn’t a US citizen. (It was still conceivable the person was born in the US and therefore a US citizen, but given that this was about a decade after the Immigration and Nationality Act of 1924, that effectively closed the US border to Asians and East Europeans, there would be very few children of immigrants among the population anyway).

So, back in the day, ethnicity as a statistical discriminator allowed almost all US citizens to avoid getting harassed by immigration enforcement (and the few who did get harassed were anyway from an ethnic group that didn’t enjoy a lot of broad support and sympathy). Thus, the regulation was enforcible.

What about my second point about the difficulty of current enforcement, i.e., the fact that people on temporary statuses aren’t required to carry documentation at all times? It’s important to remember that the landscape of temporary statuses and related regulations has changed a lot since that time. The H visas, including the H-1B and the H-2, didn’t exist back then — they were created by the Immigration and Nationality Act of 1965. There did exist a Bracero Program for temporary agricultural labor, and deportation also started becoming a systematic operation with Operation Wetback. The primarily Mexican people in these situations may not have been required to carry green cards, but they had bigger problems and fewer legal protections overall.

Why hasn’t the regulation been repealed?

If the requirement to carry a Green Card is no longer practical to enforce, why is it still on the books? This is best understood in terms of the principle that laws are hard to repeal, particularly if they give power and authority to vested interests in government. Even if immigration enforcement officials do not generally use this regulation, the existence of this regulation gives them more power — power that they can use as and when they see fit. In general, any source of power will be liked by those wielding it, and they will not easily give up.

This ratchet effect is observed everywhere, but is particularly likely in situations where the people enforcing the law do not have direct accountability to the people affected. Non-citizens can’t vote, so getting rid of clauses that could be used against them doesn’t have a strong political constituency.

Featured image credit: Jason Scott, licensed under CC-BY 2.0, via Flickr

UPDATE: Rob Zidar writes in with a personal anecdote:

I’ve been here legally (from Canada – my wife is American) for 25 years. My last GC renewal took 1.5 years, 5 trips to Newark and I was actually illegal for a few weeks between extensions. The reason for the snafu was primarily that when I originally went in for the renewal, my card was cracked from having been in my wallet for 10 years. Because it was cracked, the would not put a sticker on it to serve as the normal extension. I had to apply for a separate in-person meeting to request an extension, which took weeks. Months later, my replacement card was lost in the mail (I’m guessing it was stolen) and the window for my fingerprints being valid had expired. I had to restart the whole application process.

I understand that it is a law that people carry their GC at all times, but I think the law is unpractical and probably toothless. I’ll keep mine with my passport in a safe place from now on.

US immigrant processing: funded by user fees since 1882

The first piece of US federal legislation detailing procedures for immigration enforcement was the Immigration Act of 1882 (passed at about the same time as, though distinct from, the Chinese Exclusion Act of 1882).

The first component of the act, as described by Wikipedia, was its self-financed nature:

The first was to create a “head tax” that would be imposed upon certain immigrants entering the country. The Act states that “There shall be levied, collected and paid a duty of fifty cents for each and every passenger not a citizen of the United States who shall come by steam or sail vessel from a foreign port to any port within the United States.” This money would be paid into the United States Treasury and “shall constitute a fund called the immigration fund.” These funds would be used to “defray the expense of regulating immigration under this act.” Scholar Roger Daniels commented that the head tax eventually “would rise, in stages, to eight dollars by 1917. In most years the government collected more in head taxes than it spent on administration.”

The fact that the costs of immigration administration are largely borne by user fees, unlike most other government agencies, continues to be true today. For instance, Wikipedia says:

Unlike most other federal agencies, USCIS is funded almost entirely by user fees. Under President George W. Bush’s FY2008 budget request, direct congressional appropriations made about 1% of the USCIS budget and about 99% of the budget was funded through fees. The total USCIS FY2008 budget was projected to be $2.6 billion.

This is true not only of the USCIS as a whole but also of incremental programs. For instance, co-blogger Michelangelo notes that Deferred Action for Childhood Arrivals (DACA), announced by Barack Obama in June 2012, is funded by user fees:

Even if DACA explained the recent surge, Senator Cruz should be aware that no federal funds go towards the management of the DACA program. The DACA program is funded by user fees; currently set at $465. The United States Citizenship and Immigration Services (USCIS), which administers DACA, is unique in being funded almost entirely by user fees. If only that were the case with the rest of the federal government!

Similarly, when, after September 11, 2001, people on student and exchange visitor visas were required to go through a criminal background check in order to be able to get a visa (the so-called “SEVIS record”) that cost was also “user-financed” — recipients had to pay $100 in order to have a background check run on them.

Angelo Paparelli notes that Obama’s November 2014 deferred action proposals would also be financed by user fees:

Understandably, public and media attention since then has focused on the four to five million people who soon may come out from hiding in plain sight. Parents of citizens and permanent residents, and an expanded class of DREAMers, will be given deferred action and work and travel permits. U.S. Citizenship and Immigration Services (USCIS) is now preparing to accept and decide a flood of new applications, all of which will be funded by user fees.

It should be noted that the “funded by user fees” applies specifically to the USCIS, the branch of immigration enforcement that deals specifically with processing immigrant applications, and not to the other branches of immigration enforcement, namely U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). ICE and CBP, focused as they are on interior and border enforcement of immigration and customs laws, don’t really have “customers” — and they cost the taxpayers a decent chunk of money (though still chump change relative to the overall US federal budget). [The SEVIS fee alluded to above is an exception, since the Student and Exchange Visitor Program is managed by ICE rather than USCIS. It is somewhat of an exception to the general rule that status processing is managed by USCIS.] Here are the approximate budgets:

  • USCIS: About $3.2 billion, about 99% funded by user fees.
  • ICE: About $5.3 billion, negligible user fees funding.
  • CBP: About $12.9 billion, negligible user fees funding.

These numbers suggest that liberalizing migration, raising user fees somewhat (cf. immigration tariffs), and cutting down on some enforcement functions would probably lead to significant budgetary savings in the short run. However, all these numbers are small relative to the lifetime economic or fiscal effects of immigrants (even though the signs of the fiscal effects are much disputed, their magnitudes are likely to be at least one order of magnitude greater). This is one reason why “save the costs of border enforcement” is not an argument made prominently on this site or by open borders advocates in general. But in the narrowest sense, the fiscal cost of immigration enforcement arises not from immigrants (who seem to be bearing their share of the burden) but on those who seek to keep them out.

Some might object that illegal immigrants don’t pay any user fees. This is technically true, but they pay amounts that are far greater in fees to human smugglers. And when given the opportunity to regularize their status by paying user fees, as happened with DACA, many avail of the opportunity. Those who don’t are deterred not so much by the cost as by the uncertainty of whether registering themselves with the federal government might endanger them.

PS: See this Open Borders Action Group post where the relative costs of the immigration enforcement agencies and their extent of user funding are discussed.