Undocumented and Undeportable

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jess-and-tania.jpgThe Obama administration has criticized the GOP's "attrition through enforcement" immigration policy framework while adopting it in practice. Undocumented activists have reduced their reliance on politicians and the advocacy community by strategically creating a quasi-legal status for people who publicly identify themselves as undocumented.

Attrition Through Enforcement

Immigration restrictionists have promoted an "attrition through enforcement" policy as a purportedly more humane alternative to mass incarceration and deportation. Instead of identifying, arresting, imprisoning, and deporting every undocumented immigrant in the U.S., the objective of attrition through enforcement is to make life in the U.S. so miserable for undocumented immigrants that they leave on their own. An aggressive campaign to deport all 11 million undocumented immigrants estimated to live in the U.S. would be logistically and fiscally unworkable and would necessitate massive human rights violations.

Imagine armies of tens of thousands of immigration enforcement agents scouring the country for people unable to produce papers, internment camps set up to house millions of immigrants awaiting deportation, and millions of U.S. citizen children left parentless overnight. This would be the administration's current enforcement policy implemented on a much larger scale, causing severe economic and social disruption that would extend far beyond the immigrant community.

Restrictionists understand that the domestic and international public backlash from such a campaign would undermine their long-term goal of reducing overall immigration to the U.S. Restrictionists know it is impossible to fully enforce the laws they wrote and shepherded through Congress. Attrition through enforcement aims instead to drive out immigrants by creating a climate of fear and by steadily eroding basic rights. The concept is as pragmatic as it is reprehensible.

The most visible manifestations of attrition through enforcement are state anti-immigrant laws like those passed in Arizona, Georgia, and Alabama. However, policies that promote attrition through enforcement have been embraced on the federal level by the Obama administration, including militarization of the border, the racial profiling Secure Communities program, "silent raid" employer audits, and the annual 400,000 deportation quota handed down to Immigration and Customs Enforcement (ICE) by the White House. Republican presidential candidate Mitt Romney endorsed the idea of creating such hostile conditions that immigrants "self deport." Democrats criticized Romney but not President Obama, who is actively implementing attrition through enforcement policies.

Who Is Undocumented?

There is a wide spectrum of immigration statuses, from undocumented on one end to U.S. citizen on the other. Public misconceptions about immigration law abound. For example, undocumented people cannot simply fill out a form and take a test to apply for citizenship. The vast majority have no way to apply for legal status of any kind, much less citizenship, and had no way to enter lawfully or maintain lawful status through existing channels. There is no "line" for them to get into, and in most cases, there never was.

There are variations of status even within the category of "undocumented." Undocumented people who have previously been deported or have felony convictions have very limited defenses against deportation. Some undocumented immigrants are eligible to gain lawful status through U.S. citizen immediate family members, though this process is not automatic and excludes those who crossed the border--which describes the vast majority of undocumented Mexicans and Central Americans. A small number of undocumented people can gain legal status after winning "cancellation of removal" in immigration court. Nationwide, grants of "cancellation" are statutorily limited to 4,000 each year, equivalent to 1% of total annual deportations and 0.036% of the total undocumented population. Some undocumented victims of serious crimes or domestic violence have a path to lawful status. Some people the government claims are undocumented are actually U.S. citizens but don't know it or can't meet the government's unreasonable standard of proof.

The laws of immigration and citizenship are shifting, complex, and poorly understood. Often it is not easy to ascertain who is or is not undocumented. Is someone with Temporary Protected Status or a work permit undocumented? What about deferred action status or withholding of removal? This sprawling and incoherent legal regime could work in favor of undocumented immigrants if the Obama administration weren't intent on pushing deportation levels to historic highs. Regardless, it is possible to create new forms of status within the existing system without wholesale legislative reform.

"The more public we are, the safer we are."

By any metric, Democrats have not been reliable allies to undocumented immigrants, and Barack Obama has been the most anti-immigrant president in the last 50 years. Broad legalization or legal recognition of basic human rights of undocumented immigrants are not going to happen in the near term. In the meantime, a paradigm is emerging to compete with attrition through enforcement: "undocumented and undeportable."

Through determined activism and organizing over the last few years, some undocumented youth have carved out a safe space for themselves. Those who are public about their undocumented status and connected to the growing support network of undocumented youth and allies have become de facto undeportable. Rooted in a pragmatic understanding of current political realities, "undocumented and undeportable" is the immigrant community's answer to attrition through enforcement.

In light of six years of failure of citizen-led advocacy groups to pass the DREAM Act, undocumented youth began in 2007 to lobby independently for the bill. In collaboration with allies and advocates, undocumented organizers began systematically stopping deportations of their peers in 2009 in "Education Not Deportation" cases that reached a certain threshold of public support and media coverage. In 2010, four activists, three of them undocumented, completed a trek from Florida to Washington, D.C.--the Trail of Dreams--to raise awareness of the challenges faced by the undocumented community and to promote the DREAM Act. ICE left them alone despite--or because of--increasing news coverage as they made their way north.

Later that year, undocumented activists affiliated with the DreamIsComing project committed civil disobedience actions in congressional offices in Arizona and Washington, D.C. For the first time, undocumented people intentionally risked deportation and permanent exile from the U.S. by being arrested to protest unjust laws. Afraid of alienating Latino voters, the White House directed ICE to stay away from undocumented youth arrested in public civil disobedience actions.

Due largely to a series of actions targeting Senator Harry Reid, including a civil disobedience action in his D.C. office, he brought the DREAM Act up for a vote separate from comprehensive reform legislation to secure the Latino vote in his tough 2010 re-election campaign. The strategy paid off for Reid, and, to a lesser extent, for undocumented activists, as the DREAM Act came closer to passing than ever before.

At each of these connected points of escalation, undocumented youth moved away from the false safety of quietly passing as citizens. They took control over advocacy efforts previously directed by citizen allies. The risks were greater, but so were the rewards.

Realizing that organizers were not going to be placated by sporadic relief in isolated END cases and under pressure from immigrant rights advocacy groups, the administration expanded the scope of discretionary relief to the broader undocumented community. (In practice, however, this "prosecutorial discretion" relief has been much more limited than the administration and its proxies have claimed.)

Once some form of protection from deportation is achieved, the status quo is altered and institutional incentives shift. Affected groups become better able to advocate for continued protection. Temporary Protected Status, once granted, is rarely revoked. The Obama administration will face fierce public opposition if it attempts to detain and deport the public undocumented activists who have emerged as leaders of the immigrant rights movement. This will be true even under a Romney administration.

The courage of these activists is inspiring and contagious. Undocumented youth have explicitly adopted the LGBT movement's tactic of "coming out" to educate the public and build support. Seeing activists publicly identify themselves as undocumented encourages others to come out of the shadows themselves. Coming out creates a virtuous cycle, strengthening the network and making those who are already public safer.

Most stories of undocumented immigrants, when told, are sympathetically received by the public. ICE selectively releases negative information to mislead the public about undocumented immigrants and to justify its enforcement actions. The more the public understands that the stories they read in the paper--both about immigrants struggling to succeed and human rights violations by ICE--are not the exception but the rule, the more they will support changes in the law to benefit undocumented people. The immigrant experience appeals to Americans' conception of a good and fair society, and there are 11 million compelling stories to be told.

While the achievements of undocumented activists are undeniable, the term "undocumented and undeportable" has its limitations. Anyone who can't prove lawful immigration status can be deported. ICE deports as many people as it can, regardless of whether they fall within the government's stated enforcement priorities. The protection afforded publicly undocumented people by the immigrant rights network may not be permanent. Once a person is public about their status, it is hard to go back into hiding.

However, "undocumented and undeportable" reflects the bold, unapologetic nature of the undocumented rights movement. And at least for now, organizers are right when they say, "The more public we are, the safer we are."

PR as Policy

The Obama administration's fragmented immigration policy attempts to incorporate both the attrition through enforcement and undocumented and undeportable paradigms. The approach rests on the false dichotomy of "good immigrants" and "bad immigrants." In the absence of a coherent legal regime, the administration uses the criminal justice system as a substitute for principled immigration policy. Those with any contact with the criminal justice system are "bad immigrants" and should be deported, notwithstanding President Obama's implicit acknowledgement in other contexts of systemic racial imbalances in the criminal system. Those without criminal convictions or prior contact with the immigration system are "good immigrants" who merit protection from deportation in the government's sole discretion.

This attempt to satisfy every political constituency has instead made everyone unhappy. Despite extensive Spanish-language media coverage of the system-wide prosecutorial discretion review of immigration court cases, only 1% of all cases have been closed under the program. ICE continues to deport the vast majority of DREAM-eligible youth it encounters, notwithstanding claims to the contrary coming from the administration and its spokespersons in the Democratic Party.

The administration has stumbled from one crisis to the next, hoping to keep public attention focused on the pending Arizona litigation and praying Univision continues to obscure the administration's attrition through enforcement policies. With one hand, DHS deports undocumented youth; with the other, it stops deportations in cases with media coverage. ICE's response to civil disobedience actions has become increasingly absurd. In November, the Montgomery Advertiser reported that ICE had told the police in Montgomery, Alabama, that 13 undocumented participants in a civil disobedience action there were all legal residents. (The online version of that article has since been scrubbed, but is referenced here.)

Given the continued failure of citizen-led advocacy groups, Democrats in Congress, and national Spanish-language media to accurately inform voters about current immigration policy, it again falls to undocumented activists themselves to hold President Obama accountable for his actions.

Undocumented people shouldn't need to rely on citizen allies to protect them. Undeportable people don't have to.

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About this Entry

This page contains a single entry by David Bennion published on April 15, 2012 4:27 PM.

Towards Better Organizer-Attorney Collaboration on Deportation Defense was the previous entry in this blog.

Prosecutorial Discretion Has Failed is the next entry in this blog.

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