Download AALS New York Immigration Reform[2]

IMMIGRATION REFORM: COLOR-BLINDNESS IN U.S. IMMIGRATION LAW -- THE MASKING
OF RACE AND CLASS IMPACTS
This panel is entitled “Interventions: The Possibilities & Limitations of Law.” My thesis is
that immigration law provides color-blind, facially neutral proxies that often are employed by
groups that, among other things, seek to target for immigration investigation, enforcement, and
prosecution of persons of particular races and classes, in particular working class Latinos and
Asians. I will focus on two examples of this phenomenon at work (1) the recent Arizona
immigration law; and (2) comprehensive immigration reform.
I.
Arizona Immigration Law
A. Background
“Comprehensive” immigration reform has been discussed in Congress for most of the 21st
century. Debate over immigration continues across the United States, not just the West and large
urban cities. Those who support increased immigration enforcement of many different types
often claim that they are not anti-immigrant, anti-Mexican, or racist but simply anti-“illegal”
immigrant. This is often buttressed with the common rebuke to any claim of justice for
undocumented immigrants, “what part of illegal don’t you understand.” At the same time,
Latinos have strenuously advocated for immigration reform. The reason is simple: Latinos are
disparately affected directly and indirectly by immigration enforcement and, for similar reasons,
the passage or failure of immigration reform.
B. The Conventional Wisdom
Immigration law and enforcement generally speaking is the exclusive province of the federal
government; state and local governments cannot regulate immigration. A famous example of a
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state impermissibly seeking to regulate immigration is Proposition 187 in California, which was
struck down for intruding on the federal power to regulate immigration.
C. Change in the Winds?
Recent years have seen a rise in state and local efforts to regulate immigration. One reason is
the changing national distribution of immigrants; new immigrant communities have emerged in
parts of the United States, such as Arkansas, South Carolina, Iowa, Nebraska, and rural areas of
the Midwest and South that had not previously seen large numbers of immigrants. This does not
explain the recent immigration blow up in Arizona, but I think that it helps explain legal
responses to immigrants in Oklahoma, Pennsylvania, New York, and Georgia. During the same
basic time period, the nation has seen an increase in racism and hate crimes in some of these new
destinations for Mexican immigrants.
D. The Arizona Immigration Law
At least initially, both proponents and opponents of the Arizona law agree that it is the most
enforcement-oriented state or local immigration measure out there. The Preamble to the law
states that “The provisions of this act are intended to work together to discourage and deter the
unlawful entry and presence of aliens . . . . ” “Aliens” is a term of art borrowed from federal law
that, in the context of the demographics of Arizona, is thinly veiled code for Mexican and
Central American immigrants. Previous code used in state alien land laws, for example, was
immigrants ineligible for citiznship, at a time when it was necessary to be white to be eligible for
naturalization. The Arizona law specifically would make criminal the status of being
undocumented. The most controversial aspect of the Arizona law is the requirement that local
police must verify the immigration status of persons of whom they have a “reasonable suspicion”
are undocumented. Many Latinos – about one-third of Arizona is Latino, including many U.S.
citizens and legal immigrants -- have expressed fears of racial profiling by local police.
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E. The defenses to claims that the Arizona law is racially discriminatory and nativists are
revealing of the role of color-blindness in the debate.
1. The law is not racially discriminatory because racial profiling is against the law. That
is not so.
The Supreme Court has stated that “Mexican appearance” may be one of many factors
justifying an immigration stop. Racial profiling has been a long time problem with the Border
Patrol. It is a likely problem with state and local law enforcement officers, especially if not
trained in immigration enforcement. Moreover, as a practical matter, state and local law
enforcement in Arizona already are inundated with complaints of discrimination against Latinos
and African Americans. See, e.g., Joe Arpaio; Chandler in 1990s.
2. The Arizona law simply mirrors federal law. This also is not true.
The Arizona law criminalizes conduct not criminalized by federal law; more importantly
in my view, the law gives state and local governments enforcement authority over immigration
laws. To the extent that parts of the Arizona law borrows from federal law, the state law builds
on federal law that is replete with racial and class impacts resulting from generally facially
neutral language.
II.
Comprehensive Immigration Reform
A. Generally, most comprehensive reform proposals include three components
1. More enforcement – Least controversial politically. Removals and border
apprehensions fall squarely on Latinos. Many Mexican citizens have died
along U.S./Mexico border due to increased enforcement efforts. Race
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neutrality has contributed to segmented labor markets with a racial caste
quality.
2. Guest worker program and/or other provisions addressing U.S. labor needs.
60 percent of the undocumented population is of Mexican origin.
3. Path to Legalization/Amnesty—Most controversial politically. Not
coincidentally, legalization would benefit many Latinos.
B. Series of Events relating to comprehensive immigration reform
1. 12/2005 – Sensenbrenner Bill led to mass marches in spring 2006
2. A more moderate comprehensive immigration reform bill in the Senate failed
in 2006. In 2008, President Obama was elected. Some immigrant rights
advocates expressed optimism. Senator Obama had supported driver’s
licenses for the undocumented and the DREAM Act. These are important
issues to many Latinos because of the impact on Latinos. However, President
Obama appointed Janet Napolitano, the former Governor of Arizona, to head
the U.S. Department of Homeland Security; she has focused on enforcement,
with the promise of future positive improvements for immigrants through
immigration reform. As mentioned previously, disparate negative impacts on
Latinos – deaths on the border, increases in human trafficking, racial profiling,
etc. The latest enforcement move was to send more than a thousand National
Guard to the U.S./Mexico border.
3. Two proposals currently are on the table in the U.S. Congress, one in the
House and one in the Senate.
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C. Claim of color-blindness are employed in attempts to hide the impacts of
comprehensive immigration reform, as well as its failure, on communities of color.
The same is true with respect to the Arizona law.
Conclusion – Color-blindness is an effective tool for restrictionists and others seeking to limit
immigration from Mexico, as well as Latin America generally and Asia and Africa. Immigration
reform is important to many U.S. citizens who are of Latino descent. Immigration is viewed by
many Latinos and U.S. citizens as a civil rights issue, touching deeply on race and class. Colorblind approach to facially neutral U.S. immigration laws
a.
Provide plausible deniability to claims of racism. Both for defenders of
Arizona law and opponents of comprehensive immigration reform.
b.
While allowing racially disparate impacts to continue and to pursue
discriminatory ends.
3.
Solutions?
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