An Immigration Policy Based on Human Rights
by David Bacon
From the introduction of the original Simpson-Mazzoli Bill in the mid-1970s, the key provisions of U.S. anti-immigrant legislation have been directed at undocumented immigrants. After a decade-and-a-half of repeated efforts, the Immigration Reform and Control Act of 1986finally made employer sanctions, the heart of the act, part of federal law. This watershed action formalized and codified what has been national policy toward undocumented immigration - the creation of a special category of residents of the United States who have significantly fewer rights than the population as a whole, who cannot legally work or receive social benefits, and who can be apprehended, incarcerated and deported at any time.
The creation of this special category has had widespread ramifications. It has influenced the wage levels and vulnerability of immigrant labor itself. It has spawned other proposals for the denial of rights, such as the right to education or medical care. The original premise that undocumented immigrants have no right to work or earn a living has been broadened to include the denial of rights to most other basic elements of normal life, including the right to be a part of a community and live in the U.S. at all. It has led to the demonizing and dehumanizing of undocumented immigrants in public debate and political life.
In the years which followed the passage of the Immigration Reform and Control Act, dozens of anti-immigrant bills were introduced, first into the California state legislature, and then into legislatures in other states. In 1994, California voters passed Proposition 187, an extreme measure to disqualify undocumented immigrants from education and health care services. Again other states took up similar measures.
Finally, in the spring of 1996 Congress debated and passed some of the most extensive and repressive immigration legislation in its history. A 187-like provision, an amendment introduced by southern California Congressmember Elton Gallegly to bar undocumented children from attending school, was included in the bill as it was originally passed by the House of Representatives. Predictably, what started as an attack against the most vulnerable group of immigrants, the undocumented, was broadened into a generalized campaign to cut legal immigration quotas, and disqualify even permanent legal residents from a wide variety of social benefits.
In the face of this onslaught, groups which have traditionally defended the rights of immigrants in the U.S. have become divided over the need and ability to defend the rights of the undocumented. Faced with a Republican majority in Congress, and Republican candidates who seek to whip up widespread anti-immigrant hysteria throughout the country, some organizations now advocate the defense of legal immigration, but also support many measures directed against undocumented immigrants.
The essence of the distinction between legal and undocumented immigration, elaborated by these political leaders, was expressed succinctly by a Washington DC-based lobbying organization in its guide for lobbying on the House and Senate bills, written at the end of 1995. It took the position that "legal immigration is not the same as illegal immigration," and that "the American people want the federal government to take decisive and effective action to control illegal immigration."
The "Problem" of "Illegal" Immigration
In making the distinction between legal and illegal immigration, proponents argue that, although legal immigration has socially beneficial effects, the entry of undocumented people into the U.S. has a negative effect on society. Therefore, following this logic, government should control or halt it. The logic both supports the view that undocumented immigration is out of control, or in danger of becoming so, and also reduces the argument about undocumented immigration to one over tactics for suppressing it. Is it better to halt or control it by denying medical care and education for undocumented children, or by prohibiting undocumented immigrants from working, or by militarizing the border, or by increasing the number of Border Patrol raids and deportations?
And this is, in fact, the terrain of debate between the Democratic administration and its Republican opponents. Republicans argue for the most extreme measures, including Proposition 187, and a national identification card and database which employers can use to screen job applicants. The administration instead beefs up the budget of the Border Patrol to its highest level in decades, sends soldiers to patrol the border as though we were at war with Mexico, or at least with Mexicans, and unleashes a wave of immigration raids and deportations in major cities from coast to coast.
But in what sense is undocumented immigration a problem? What kind of problem is it?
The Urban Institute estimated in its May, 1994 report, Immigration and Immigrants, Setting the Record Straight, that the undocumented population of the U.S stood between 2.5 and 3.5 million people in 1980, and rose to between 3 and 5 million just before the passage of the Immigration Reform and Control Act. After IRCA's amnesty program, which allowed undocumented people to normalize their immigration status, the population fell to 1.8 to 3 million, and had risen to 2.7 to 3.7 million by 1992, roughly the same level it was 12 years earlier.
Despite the much-publicized efforts which have as their announced purpose the halt of the flow of undocumented immigrants across the border, this is the description of a stable process and section of the U.S. population, both in terms of relative size and constancy. This undocumented population constitutes about 1 percent of the total population of the country.
According to the National Immigration Forum, undocumented immigrants pay about $7 billion annually in taxes. Some taxes paid by the undocumented, including $2.7 billion annually to Social Security, and $168 million into state unemployment benefit funds, are direct subsidies to these systems, since undocumented workers cannot by law collect any benefits for their contributions.
In the state of California alone, which accounts for about 43 percent of the nation's undocumented population, undocumented immigrants pay an additional $732 million in state and local taxes, in addition to federal payroll and social security taxes. The state, in turn, according to the Urban Institute, spends $1.3 billion on education for undocumented children, and $166 million for emergency medical care for their families (the only kind of state-provided medical care for which they qualify.)
It is difficult to make the case that expenditures on the education of undocumented children, or on emergency medical care for their families, is a net economic drain, given the gross overpayment of benefits in many other areas.
In fact, tax payments and payroll deductions by undocumented immigrants, for which they cannot collect services, subsidize the tax cuts promised by politicians to middle- and upper-class voters. Proposition 187 and similar federal proposals would shift the tax burden even further.
According to a UCLA study, undocumented workers contribute approximately 7 percent of the $900 billion gross economic product of the state of California, or $63 billion. The Urban Institute estimates that California accounts for 43 percent of the nation's undocumented population, or about 1.4 million people. The gross economic contribution by each undocumented immigrant to the California economy is therefore about $45,000, including children, the unemployed, and those too old or ill to work. While no statistical surveys have determined the average wage of undocumented workers, their precarious status keeps their wages near, and sometimes even below, the legal minimum, which at $4.25 per hour equals an annual income of $8840.
It is clear that the labor of undocumented workers not only pumps tens of billions of dollars into the state's economy, but that the workers themselves receive only a small percentage of it, a much smaller percentage of the value which they produce than that received by workers who are either citizens or legal residents. That difference in the rate of exploitation is a source of extra profit for those industries which are dependent on a workforce made up largely of undocumented workers.
The industries are not hard to identify. They include agriculture and food processing, land development (including the residential construction and building services industries), tourism (including the hotel and restaurant industries), garment production and light manufacturing, transportation, retail trade, healthcare and domestic services.
In an economy in which whole industries depend on an abundant supply of immigrant labor, maintaining a subclass of undocumented workers with fewer rights and less access to benefits is an important source of profit. And when that workforce is made more vulnerable by immigration legislation, it also becomes cheaper for employers.
An undocumented worker, for instance, considering whether to organize a union to win better wages, has to take into account the possibility of being fired. Other workers also risk being fired in similar situations, an important obstacle to all union organizing efforts. But undocumented workers must also weigh employer sanctions in the balance. Sanctions make finding another job much harder and riskier. The period of unemployment is likely to be longer. Because sanctions also disqualify a fired worker from unemployment benefits, food stamps or other sources of income, a fired worker will be forced to take whatever job available, at whatever wage. And under National Labor Relations Board rulings, if an employer shows that a worker fired for union activity is undocumented, they are not obligated to rehire her or him.
This same set of choices also confronts undocumented workers who consider filing complaints about unpaid wages, unpaid overtime, wages below the minimum, violations of health and safety laws, sexual harassment, and violations of other basic legal protections for workers. In fact, labor standards inspectors from the Department of Labor are required to verify workers' immigration status in their investigations, and report the undocumented, in essence protecting sweatshop employers.
When it becomes harder and riskier for them to make demands for social services, or to assert their rights at work or in the community, the social cost and the price of their labor drops.
As a consequence, immigrant wages are already depressed, and getting worse. According to UCLA professor Goetz Wolff, in women's apparel in Los Angeles, the average hourly wage fell from $6.37 to $5.62 between 1988 and 1993. Some 120,000 people work in LA's garment sweatshops, almost all immigrants, mostly undocumented.
Wages are also falling in paper recycling, plastics manufacturing, textiles and food processing - all industries with an immigrant, largely undocumented workforce. By contrast, the average wage in aircraft production, employing a mostly-unionized and native-born workforce, is over $20/hour, and rising slightly despite layoffs and recession.
Undocumented Workers - Not Content to be Victims
Despite these obstacles, or perhaps because of them, in the last decade in California immigrant workers have been the backbone of strike after strike, in some of the hardest-fought labor struggles since the farm workers' battles of the late 1960s Over 20,000 immigrant workers have walked off their jobs, or participated in organizing campaigns, since 1990. Throughout the southwest, factories and workplaces have become pressure cookers, provoking strikes among drywallers, framers, grape pickers, janitors, garment workers, electronics assemblers, foundry and metal workers, and others. These conflicts are signs of pressure building from below, as the growing dissatisfaction of immigrant workers meets an increasingly hard line taken by employers.
The history of the union struggles of immigrant workers in Los Angeles and Southern California is by-and-large a history of success. According to veteran union organizer Peter Olney, "they force unions to discard tired old tactics, and re-look at the whole question of what organizing means."
Joel Ochoa, another veteran organizer, says that "the immigrant community is looking for ties with labor. People are coming here from Mexico and all over Latin America, with a tradition and culture that gives them a rich repertoire of tactics for fighting the companies."
The Justice for Janitors strategy of the Service Employees International Union, understanding the potential of this immigrant upsurge, has rebuilt building service unions in cities throughout the west and southwest, including Denver, San Jose, Los Angeles, San Diego and elsewhere. When John Sweeney, then head of SEIU, campaigned for presidency of the AFL-CIO in 1995, he used the LA Justice for Janitors campaign as a symbol of the need for a commitment to organizing immigrants, workers of color, and low-wage workers.
One of the most important of the immigrant rebellions was the yearlong strike by southern California drywallers, who put up the interior walls in new homes. In 1992 and 93, from the Mexican border north to Santa Barbara, an area of 5000 square miles, these mostly-Mexican immigrants were able to stop all home construction. Workers ran their movement democratically, from the bottom up. They defied the police and the Border Patrol, blockading freeways when their car caravans were rousted as they traveled to construction sites.
When the drywallers picketed, their lines often numbered in the hundreds, walking onto construction sites and talking non-striking workers into putting down their tools. In a world where workers and unions have become hamstrung following routine procedures, they had faith in the power of their numbers, in direct action, and in the common culture of their immigrant communities. In 1992, they finally forced building contractors to sign the first agreements covering their work in decades - the first union contracts won by a grassroots organizing effort in the building trades anywhere in the country since the 1930's.
In this labor upsurge, documented and undocumented workers participate on an equal basis. In unions which are seeking to build their strength through an alliance with this movement, organizers have to acquire a basic understanding of immigration law. Unions and community allies often distribute business cards which advise workers of their rights if they're stopped by the Border Patrol. In union meetings, workers ask questions about legal status, not only to get information, but also to test the union to see if it is really committed to defending undocumented as well as legal immigrants.
The defense of the rights of all immigrants, including the undocumented, has become a survival issue. Employers routinely use the threat of immigration raids to intimidate workers. Employer sanctions have provided them a legally unchallengable way of conducting mass firings when faced with organizing activity. The normal legal remedy of reinstatement and backpay cannot be enforced for the undocumented. This is especially true following the Montero decision in New York City in mid-1997, in which Federal courts held that employers could legally provoke INS raids against union supporters during organizing drives.
Immigrant-based labor struggles have reinforced thinking in the labor movement which sees unions as social movements, as the United Farm Workers was at its height in the 1960s and 70s. In the eyes of many active and progressive unionists, this upsurge contributes new ideas and tactics and an increased sense of militancy. It helps ground unions in local communities, and is making them more democratic. Unions involved in this movement don't see the changing demographics in the workforce as a cultural threat, but as a source of new traditions and new strength.
Experiences in organizing and representing undocumented immigrants first convinced the two garment worker unions (since merged into the Union of Needletrades, Industrial and Textile Employees) to call for the repeal of employer sanctions in the late 1980s. The California Labor Federation later took the same position. They were followed by the Service Employees, whose past president, John Sweeney, is now president of the AFL-CIO
Under its old leadership, the AFL-CIO supported employer sanctions during the debate over the 1986 Immigration Reform and Control Act. But the direction of movement in the AFL-CIO is away from this position, towards defending the undocumented against rising anti-immigrant hysteria. California labor was a strong backer of the campaign against Proposition 187. In many areas of the state, janitors' and garment workers' union halls became anti-187 campaign offices. Unions were some of the main organizers of the huge 150,000-strong march of immigrant workers in Los Angeles in the weeks before Proposition 187 passed.
In the short term the AFL-CIO seems to have begun devoting serious resources to organizing drives among immigrant workers. Nevertheless, it has not become an active opponent of employer sanctions as a political policy. While Sweeney's new administration stated its intention of convening an immigration committee of the federation's executive council to develop a new policy on immigration, that committee has yet to meet. During the 1996 debate over immigration reform in Congress, the federation urged "effective control of illegal immigration," including an additional 700 Border Patrol agents. It objected to most of the bill's provisions, however, including the national ID card, unrestricted immigration raids in the fields, asylum restrictions, and the disqualification of legal immigrants from public benefits.
The position of the AFL-CIO seems caught in the transition from the policies of its old leaders, to those which might be expected from its new ones.
Immigration and the Global Economy
The U.S. border with Mexico has always been relatively permeable. Many Mexican immigrants in the U.S. describe a long period in which they came and went, to and from Mexico, relatively frequently. Despite the efforts to build fences, and now steel walls, along the border in major cities, vast sections of the border are still unfenced, and even unmarked, and have always been so. In small towns along the border, it is not uncommon to find families with members who live on both sides, passing back and forth every day.
In the years before the current wave of anti-immigrant hysteria, only rarely were these described as the characteristics of a border "out of control."
In California's Imperial Valley, the vast bulk of the agricultural workforce lives in the city of Mexicali just south of the border, which now boasts over 600,000 inhabitants. By contrast, Imperial Valley towns are much smaller. Workers commute every morning across the border to their jobs in one of the most productive agricultural areas in the world, and return home at night, during times of peak harvest. Workers prefer to live in Mexico, not only for cultural and historical reasons, but because the cost of living is much less. On the other hand, a job in the U.S. pays much more than a farm labor job in the Mexicali Valley. Increasing and militarizing border enforcement makes this flow more difficult, in essence trapping a growing number of people on the U.S. side.
But as the border becomes less permeable for people, it has become more permeable for the movement of capital, production and commodities.
The North American Free Trade Agreement accelerated and made easier the movement of goods and investment capital. On the other hand, its promised protections for workers and the environment proved toothless and ineffective. But NAFTA is only a part of the growth of free-trade, neo-liberal economic policies. These emphasize the creation of favorable conditions for private investment, at the cost of declining living standards for the vast majority of the population in the countries where they are imposed.
The growth of the global system of free trade parallels a similar growth in a worldwide migration of the economically dispossessed. Mass human migration is a new international fact of life in an increasingly global economic system
In the Dominican Republic, for instance, a major source of immigrants to the U.S., the connection is clear between immigration and U.S. government policies which encourage U.S. corporate investment. Between 1980 and 1992, U.S. aid to the Dominican Republic totaled $840 million. None of this money was spent on public health or education. Instead, 97% went to the private sector, most of it to assist the construction of free trade zones for U.S. companies and their Dominican partners.
Yet while the minimum cost of living in 1993 for a Dominican family of four was calculated at $276/month by the Center for Economic Investigation of the Caribbean, the average wage paid by Westinghouse and other employers in the Dominican free trade zones was $99/month. From 1980 to 1992, real wages declined 46% under austerity policies designed by the IMF and USAID.
Dominican workers met repression when they tried to organize unions to raise wages in the free trade zones. Some of those efforts were cooperative ones between Dominican unions and the U.S. Union of Needletrades, Industrial and Textile Employees. In February, 1991, Westinghouse fired the leaders of a union trying to organize the company's Dominican plants.
In 1979, 17,000 Dominicans immigrated to the U.S. By 1992, the figure had grown to 41,000.
In Mexico, the scale of the economic changes which seek to create favorable investment conditions for U.S. corporations dwarf those in the Dominican Republic. The impact of those changes produces many times the number of immigrants than those arriving from the Caribbean.
In the 1970's technocrats favoring foreign investment took over Mexico's ruling party, the PRI. Prior to that takeover, despite problems of corruption and lack of democracy, Mexican economic policies were based on protecting the country's economic independence from outside ownership, particularly U.S. interests. Big industries and banks were nationalized. Land reform created ejidos, where farmers held land in common. On paper, workers enjoyed extensive labor rights, including housing and healthcare, while practices like strikebreaking were prohibited by law.
Under the impact of its rising foreign debt, owed mostly to U.S. banks, the Mexican government began to change these policies. Economic reforms were introduced to create attractive conditions for the investment of foreign capital. They included selling national enterprises to private investors, removing restrictions on foreign ownership, disbanding land reform, ending the subsidies on food and services for the poor, and restricting the rights of unions.
Between 1980 and 1990, the average wage of Mexican workers lost 60% of its buying power. Even before the peso's devaluation in December 1994, over 40% of Mexican workers earned less than the minimum wage of about $4 per day. Since then, prices have skyrocketed, while wage increases have been held back. It takes a worker in the Maxcell factory in Tijuana, earning 38 pesos a day, half a day's labor to earn the 17.50 pesos required to buy a gallon of milk.
Neither border enforcement nor the desperation of immigrants inside the U.S., has changed the reasons why people leave their countries of origin in the first place.
The growth of free trade policies has created a wave of migration of people, which has become a globalized phenomenon. According to the U.N., 75-80 million people across the globe have been forced to leave their countries of origin, and live as immigrants elsewhere. Some 20 million are refugees. The rest have left home because of economic dislocation. The greatest number, 20 million, live in Europe, while 16-20 million live in Africa. North America comes in third, with 15-17 million. Immigrants constitute about 1.5% of the world's population.
Without a radical reordering of the world's economic system, raising the standards of living from country to country and equalizing them at the highest level rather than the lowest, the movement of people will continue. Immigration policy, therefore, must be examined, not in terms of which measure can halt the flow. None of them can. Their crucial effects are on people once they are here.
For an Immigration Policy Based on Human Rights
The consequences of reinforcing and defending the distinction between legal and illegal immigrants are not hard to predict. Making undocumented workers more socially vulnerable will produce greater exploitation of workers themselves, and greater social unrest as they challenge it. As authorities keep the lid on this unrest, repression will also increase.
Hysteria against the undocumented feeds a legacy of discrimination which affects immigrants and people of color in general. "Once you say that illegal immigration is a problem, and only struggle over the means of solving it, you feed this hysteria," says Susan Alva, an attorney for the Coalition for Humane Immigrant Rights in Los Angeles (CHIRLA). "You have to tell the truth, even if it's not politically popular or runs against racist stereotypes."
Proposition 187 "transformed everyday life for Latinos of every status," a CHIRLA report concluded, "including those born here, and many whose ancestors had lived in the U.S. for generations. "Not only Latinos suffered. "There is abundant evidence of anti-Asian hate activity which has been extensively documented," it added.
The alternative to further anti-immigrant policies, especially those directed against the undocumented, must be a policy based on equal rights for all people who live in the U.S.
In 1994, a document was prepared by the International Labor Organization and the U.N. High Commission for Refugees. It advocates increasing the opportunities for legal immigration to deal with the problem of illegal immigration. In addition, it calls for supplying immigrants with realistic information about conditions in destination countries, to counter myths and illusions about the kind of lives immigrant workers actually face. It proposes programs to support migrants who want to return home voluntarily.
The U.N. Convention on the Protection of the Rights of Migrants and their Families is the starting point for protecting migrants' rights. It extends basic human rights without distinction to all migrant workers and members of their families, documented or undocumented. It supports the right of family reunification, establishes the principle of "equality of treatment" with citizens of the host country in relation to employment and education, protects migrants against collective deportation, and makes both sending and receiving countries responsible for protecting these rights.
The Convention clearly does not answer all the questions posed by immigration in the context of a world economic system. But it takes two basic steps forward, while the debate in the U.S. remains paralyzed. It recognizes the global scale of the migration of peoples, and its permanence. And its starting point is the protection of the rights of people, especially those with the least power - immigrants themselves.
Ultimately, anti-immigrant hysteria, and repressive legislation based on it, cannot be fought in isolation from overall U.S. economic and social policies, both international and domestic.
Rather than supporting increased border enforcement, immigrant advocates in Washington, including labor, must call for an end to U.S. government support for structural adjustment and austerity policies worldwide, especially in countries which are a source of immigration.
It is impossible to fight against the use of the undocumented as scapegoats for the problems of job flight and insecurity without calling for limitations on the ability of transnational corporations to move capital and production at will. Anti-immigrant domestic policies and free-trade policies abroad are interconnected and mutually supportive.
Similarly, immigrants are scapegoated for declining social services, rather than continual budget cuts. Competition over declining resources can't be eliminated without demanding that all people share equal access to social benefits, and that the cost of the benefits be paid through taxes on corporations and the wealthy.
Fighting against competition over jobs means fighting for a full employment economy, instead of one in which hundred of thousands lose their jobs in corporate downsizing and layoffs, and high levels of permanent unemployment are treated as normal and necessary, especially in black and brown communities. The struggle for immigrant rights is linked to that for a shorter workweek, and for governmental programs to create jobs. When the movement for jobs makes progress, both immigrants and non-immigrants benefit. Similarly, when workers fight for a higher minimum wage, or for increased labor rights, both immigrant and non-immigrant communities benefit.
The defense of the rights of immigrants is, in fact, part of a broader social struggle over the distribution of wealth, the protection of the rights of all working people and people of color, and the ending of all forms of social discrimination. It is a fight over political power - who holds it and in whose interest it is exercised.
Global economic and social problems must find global solutions, based on social justice, a respect for the rights of all people, and a course of economic development which benefits the working people and poor of all countries.
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