The disappearing rights of unauthorized

immigrants in the United State

Doris Marie ProvineJustice Studies, School of Social Transformation

Arizona State UniversityTempe, Arizona, USA

The problem: How to help undocumented immigrants

claim membership with deportation on the rise.

In an increasingly transnational world, nation states continue to jealously control de jure citizenship and rights.

Public opinion is hostile.

Are de facto rights possible?

Can this political project gain traction?

The trend in the US – multi-level exclusion:

Municipal ordinances denying access to public services, e.g. library cards, bus passes.

State laws restricting driver’s licenses, requiring verification to work, mandating local police assist in immigration enforcement.

Federal stepped up enforcement, including 287g and now Secure Communities. 400,000 deportations per year.

Crimmigration – immigration offenses treated as crimes with fewer procedural protections – biggest federal crime

A small counter-trend,some examples

Non-citizen voting in municipal elections

Recognition of foreign identification as valid (example: Matricula consular)

Municipal identification cards

In-state (reduced) tuition for undocumented resident students

Construction of day-labor centers

In the US, emergence of a multi-jurisdictional patchwork with conflicts across levels

Today’s presentation has 3 goals:

1.Re-frame past capacities of undocumented residents as rights.

2.Critically examine role of states in denying these rights.

3.Explore links to broader social trends.

Goal 1: Re-framing rights

Avoid the top-down trap of describing rights exclusively as constitutional and statutory grants and protections.

Embrace also rights in action, quasi-common-law approach.

Define rights as capacities that have been available to undocumented immigrants.

Frame the present as living with a contradiction: rights and deportation.

Some rights undocumented residents

have enjoyed: To buy and sell property, sign leases, own real estate

To contract labor services, employ people, open stores

To write wills, marry, divorce

To sue for damages, negotiate settlements

To rent equipment, cars, boats

To move freely in the community

To campaign, protest, boycott

To go to school, including college and graduate school

But undocumented immigrants now live with the rights/deportation contradiction:

2 examplesPostville Iowa, before and after the federal raid

New Mexico Governor Susana Martinez’s undocumented grandparents

The (past) reality of rights should frame the discussion of (current)

state-imposed restrictions on these

rights

2. The role of the US states in maintaining/containing the

rights/deportation contradiction

US Constitution gives plenary immigration enforcement power to the federal government.

States can however regulate licensing and benefits, requiring legal status in some cases. Limits unclear.

States are the primary locus of immigrant integration.

Until recently their immigration policy efforts were rare.

The new state-level policy activism

2006 2007 2008 2009 2010

Bills introduced

570 1,562 1,305 1,500 1,400

Laws enacted

84 240 206 222 208

Resolutions adopted

12 50 64 131 138

Rights scorecardEnacted laws that affect significant

numbers of undocumented

residents:2006 2008 2010

Removes rights

3321 participate

3520 participate

4425 participate

Protectsrights

64 participate

76 participate

12 9 participate

Protection vetoed

1 0 5

Major players:defined here as at least 2 enacted

statutes

States that reduce rights: 2006: Arizona, Colorado, Georgia, Virginia, 2008: Arizona, Colorado, Georgia, Virginia 2010: Arizona,……………………… Virginia and for

the first time: Minnesota, Nebraska, West Virginia

States that protect rights: 2006: Colorado and Virginia 2008: Colorado 2010: none (California, 3 statutes, all vetoed).

Rights that have been reduced, aggregated by

year:

Em-ploy-ment

Education Health Driving/ID Firearms Law Enfor. Public Benefits

Omnibus0

5

10

15

20

25

30

35

40

45

201020082006

Rights that have been protected (some vetoed)

Employ

men

t

Educ

ation

Health

Driver

s L/ID

Law e

nfor

ce

Public

Benef

.0

1

2

3

4

5

6

7

201020082006

Trends in state-level legislation:

Enacted statutes much fewer than proposals, and not all are broadly relevant.

# of states participating is growing.

More protective legislation is being enacted, but it is often vetoed.

Some restrictive states also protect.

Foci shift: Employment steady, high restrictive Voting died after 2006 Law enforce down, but omnibus laws replace these Driver’s licenses are steady and restrictive Others are small and no pattern

Omnibus laws send a stronger message, vis

Alabama:

Makes working undocumented, renting, failing to comply with federal registration laws state crimes.

Knowing hiring -> loss of business license.

Public schools must report immigration status of their students.

Counseling, harboring, or shielding an undocumented immigrant is a crime.

3. State restrictions link to broader social trends:

Crime-immigration nexus – political identification of crime with immigrants and immigration as a crime (Hagan, Levi and Dinovitzer 2008).

New destinations and racial threat hypothesis – increasing numbers and new settlement sites create public anxiety -> legislation (Singer et al.)

Politicized places – national partisanship politicizes immigrant increases (Hopkins 2010)

Membership theory (Stumpf 2006)

Stumpf notes evidence of increasing exclusivity of

membership rules:

Rejection of rehabilitation as goal of punishment (since 1970s). Ex-cons as quasi-citizens.

Hardening of federal immigration law (since 1996). Enforcement trumps integration.

Rise of “suspicious” immigrants (since 2001). Justifies detention and removals.

She does not note, but could have, the restrictive trend in state legislation since 2005

Angry outlier states push for “attrition through enforcement.”

Populist anti-immigrant rhetoric is accommodated with bills and some resolutions. More states participating.

Extreme omnibus bills (and laws) are on the rise.

But membership also has its advocates:

In ambitious cosmopolitan cities that seek to extend membership for economic reasons.

In religious communities linked by human rights concerns.

Within local law enforcement to enhance public safety.

In the Obama administration for political reasons.

In some state legislatures – vis protective legislation.

And, hopefully, among scholars who frame the legislative trend for what it is – a massive, radical denial of rights long accepted and valued in communities that affects us all.