Immigration policies during the Obama administration

The US has an age-old ambivalence about immigrants. It proclaims the human rights of all citizens of the Union, but denies to others the citizenship associated with those rights. The country needs immigrants to fill jobs, and they’re given work, but at the same time they’re denied their papers. The Obama government’s paralysis isn’t for lack of policy. The immigration policies during Obama’s time crudely express this ambivalence.

José Luis Rocha

The only point of consensus regarding the Comprehensive Immigration Reform Act of 2007 S 1348), a federal compromise bill touted as both smoothing the way for illegal immigrants already inside the country to get citizenship and beefing up control of the southern border, was the haste to get funding to complete the border wall and increase its surveillance, plastering over its porosity once and for all. The failure to get cloture after a month of debate effectively sparked a free-for-all on immigration policy by state legislators. Thousands of overlapping and competing bills appeared in the following years, one on top of the other.

The starting point for S 1348 was the building of a dyke to contain the seemingly uncontrollable flow of immigrants and impose some order in a house where many felt there were no longer enough beds for so many people. But what to do with all those already ensconced on the living room couch watching the Oprah Winfrey Show, mowing the lawn in the backyard, browning some enchiladas on the grill with that abominable barbecue sauce and reading John Dewey and José Martí on the porch?

Tolerance of and adversity to the “invaders”

The most tolerant leaned toward pragmatic coexistence with what already amounted to a fait accompli; their views ran—and still runs—the range from certain forms of “immigrophilia” to an intelligent and selfish calculation of the role immigrants play in the US economy. Without exhausting the list, we could include countless activists among the former group, while the latter contains those businesspeople who are somewhat satisfied with the meager temporary migration quotas and criteria allowed by the Department of Homeland Security.

Those most adverse to the “invaders” saw Congressman James Sensenbrenner (R-WI) and his anti-immigrant HR 4437 bill (Border Protection, Anti-terrorism, and Illegal Immigration Control Act of 2005) as their Moses and Torah, respectively. That bill, submitted to the House of Representatives two years earlier, was a xenophobes’ paradise: a 1,120-kilometer wall along the US border with Mexico at the points where most undocumented immigrants cross; giving the federal government custody of illegal aliens detained by local authorities; employers having to verify their workers’ legal status through electronic media, with reports sent to Congress to ensure that such verifications are being carried out; the elimination of “sanctuary cities” such as Chicago and New York—which ignore the more restrictive stipulations; incorporation of satellite communications for immigration officials; deportable immigrants having to provide US$3,000 toward their “voluntary” repatriation; a minimum of 10 years in jail for carrying false documents; the obligation of any foreigner applying for legal status to produce a criminal record guaranteeing that they are not on the terrorist list; three years in prison for anyone lodging undocumented immigrants, etc., etc. The House approved HR 4437 by 239 votes, with 182 opposed, but the Senate rejected it.

The Arizona law:
Slight changes to the text, not the spirit

In sum, none of the federal proposals, whether “immigrophilic” or “immigrophobic,” generated consensus, resulting in the contest passing to the arena of the country’s 50 states. In the first quarter of last year alone, 1,538 bills and resolutions were introduced. Immigration super-conservatives were the most active lobbyists: offense is the best form of defense has always been the creed of the bullies of history. Xenophobia—an ancient phenomenon with renewed sex appeal—won the day in various southern states.

In July 2010, Arizona, which would appear not to be in its appropriate geographic zone, unveiled the Support Our Law Enforcement and Safe Neighborhoods Act (introduced as Arizona Senate Bill 1070 and thus often referred to as Arizona SB 1070). It contained a wealth of demands for documents, fines and the jailing of immigrants and anyone who lodges, employs or transports them. Jan Brewer, the governor who signed the act into law, and Sheriff Joe Arpaio, who is willing to apply the law in all of its and his coarseness—became something akin to Hollywood personalities, competing in popularity, media effectiveness and roughness with John Wayne and Margaret Hamilton (the Wicked Witch of the West in the “Wizard of Oz”).

Although approved to great acclaim in public opinion, SB 1070 also kicked up a lot of opposition. The original proposal was modified by Arizona House Bill 2162, and the state congress people had no option but to sugar the bitter pill with it. This hurried modification suppresses SB 1070’s most clearly racist traits. For example, the original says that “A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.”

The amended version removed the word “solely,” but while this recurring statement therefore moderates the new kind of racism involved in even considering “race, color or national origin” in such situations, it tacitly recognizes and thus still authorizes any form of racism that might already be established in either the US or Arizona Constitution. The reform also specifies that an alien’s immigration status may only be determined by law enforcement officers federally authorized to do so. Jail sentences for first offenses—particularly those applicable to employers—were reduced by half or even eliminated altogether. In short, certain words and figures were changed but the bill’s savage spirit was preserved.

These slight amendments, however, did not placate the opposition. On July 28, 2010, just 24 hours before the law was to come into force, US District Judge Susan Bolton in Phoenix issued a temporary injunction against its most controversial clauses. According to the Christian Science Monitor, Bolton embraced arguments by Justice Department lawyers, who challenged the law’s constitutionality and compliance with civil rights, and by the Obama administration that SB 1070 is preempted because it interfered with executive branch control over immigration policy. Arizona’s Ninth Circuit Court of Appeals upheld Judge Bolton’s suspension of the most egregious stipulations.

The boycott of Arizona
causes million-dollar losses

Politicians from other states decided to attack Arizona’s shameless racism. As early as June 15, 2010, the Sacramento California City Council issued Resolution 2010 Opposing Arizona SB 1070 and HB 2162 and calling for a boycott of the State of Arizona and Arizona-headquartered businesses. One of the reasons mentioned in the resolution was that “Sacramento has historically supported policies that prohibit discrimination based on race, national origin, religion, gender, sexual orientation and disability and has been proclaimed the most ‘diverse and integrated’ city in the United States.”

The measures adopted by the City Council, which would remain in effect until such time as Arizona repeals or a court nullifies SB 1070 and HB 2162, include the following: no city official or employee shall attend a conference in or travel to an Arizona destination at city expense or with city resources; where practicable and where there is no significant additional cost to the city, the city of Sacramento shall not enter into any new, amended, extended or supplemental contracts to purchase or procure goods or services from any business or entity headquartered in Arizona; and the city manager shall direct staff to review existing contracts for the purchase of goods and services with businesses or entities headquartered in Arizona and to explore opportunities to lawfully terminate those contracts consistent with their terms, if practicable and if there are no significant additional costs to the city.

Indifferent to—or even encouraged by—the flurry of anti-HB 2162 reactions, the never sufficiently defamed Joe Arpaio, Sheriff of Arizona’s Maricopa County, has continued making his arrests. The recent legislation, Arpaio’s fame and the slew of antibodies both have generated have cut both ways for Arizona. The number of undocumented immigrants dropped by 100,000 in 2010 alone—not because they were captured but because they fled—but so did the number employed, which led to a fall in the volume of buyers, sales, dividends and taxes. While Republican Senator Russell Pearce, who backed SB 1070, trumpeted that the exodus of undocumented immigrants has been the biggest victory in reducing the costs of the health and education services provided to the US-born children of undocumented immigrants, the Center for American Progress (CAP), a progressive think-tank, contrasted the current policy and its results with an opposing approach: the act’s application could lead to a 17.2% drop in employment and cause losses to the state economy of up to US$48.8 billion, while legalizing undocumented immigrants could generate a 7.7% increase in employment and increased tax revenue of $1.86 billion.

At the beginning of 2011, the business community pointed out that the boycott against Arizona had already cost the conference industry $140 million in losses. Their lobbying was effective, promptly leading the Arizona Senate to reject various legislative proposals that would have further hit immigrants. One of them would have denied US nationality to the Arizona-born children of undocumented immigrants, even though jus soli (the principle that a person’s nationality at birth is determined by the place of birth) has always applied without restrictions in the United States.

Arizona is like a laboratory
for anti-immigrant laws

The challenges to such xenophobic policies are still like isolated swallows: they don’t yet make a summer. This spectacular defeat is demonstrated by the results of a nationwide survey conducted by Angus Reid Public Opinion in the period between the Arizona act’s approval and its entry into force. According to that survey, “71% of respondents are in favor of both requiring state and local police to determine the status of a person if there is ‘reasonable suspicion’ that they are illegal immigrants and arresting people who are unable to provide documentation to prove they are in the U.S. legally.” Meanwhile, 64% believed that immigration was having a negative effect in the US, 58% that undocumented immigrants take jobs away from US workers and 45% that all undocumented workers in the United States should be pulled from their jobs and massively deported. Only 16% would allow them to work on a temporary basis, and not many more (28%) would allow them to stay in the US and eventually apply for citizenship. Midwest respondents tended to give the responses most adverse to immigration.

Arizona’s law thus triggered what was most feared: a demonstration effect; the imitation of worst practices; the opening of a Pandora’s Box full of laws, decrees, operatives and other gadflies of the most repressive immigration policies. Arizona became the anti-immigrant laboratory, from whence laws started to be exported to many states of the Union.

Florida: In March 2011, Florida representatives introduced HB 7089, which would make the federal E-Verify program (an internet-based system that allows businesses to determine the eligibility of their employees to work in the United States) obligatory, while SB 2040, a more comprehensive and controversial crackdown bill, was introduced into the Senate the previous month. On May 5, with no debate whatsoever, the senators voted in favor of SB 2040 by 23 to 16, but only after having opposed an amendment that pushed for broader use of the E-Verify system, thus shooting down its obligatory nature. The bill did, however, authorize the police to verify migratory status, even in the case of minor offenses, and turn undocumented immigrants over to the immigration authorities. The House bill was withdrawn two days later.

Another brick was laid in the anti-immigrant wall by the Florida Senate’s Higher Education Committee, by rejecting SB 1018, which would have allowed access to public higher education by US-born children of undocumented immigrants. Sen. René García of Miami, who backed the bill, told the committee “This is not an immigration issue. This is an issue of inequality among US citizens.” Despite the bitterness of this defeat, activists rallied to ensure that the Florida House rejected HB 7089—made in the image and likeness of the Arizona Act.

Georgia: In mid-May 2011, only weeks after the District Appeals Court in Arizona upheld the striking down of certain stipulations in the Arizona Act, Georgia representatives approved HB 87—also a photocopy of that law—by 112 to 59 just a few hours after it was approved by the Senate. By the time it went into effect on July 1, 2011, Special US District Court Judge Thomas Thrash “neutered” key elements in it as well, although some of its hardest hitting clauses were retained: those authorizing the local police to verify the migratory status of suspected illegal immigrants and penalization of people who transport or shelter them.

Tireless in combat and enraged by their partial defeat, Georgia’s Republican state senators presented SB 458 this February to force all public universities to verify their students’ immigration status using a federal database and deny access to anyone who cannot demonstrate that he or she is in the country legally. It’s not enough for them that undocumented immigrants, even if admitted due to excellent qualifications, are ineligible for either federal or state financial aid and must pay the fees assigned to out-of-state students even if they are residents of Georgia.

Alabama: Georgia’s western neighbor didn’t want to be left behind. Since September 2011, Alabama’s HB 56 has imposed detention of undocumented immigrants even for mere traffic infractions, made it impossible for businesses to declare wages paid to them as expenses and extended E-Verify to schoolchildren. Paraphrasing the bill’s Republican backers, American Civil Liberties Union lawyer André Segura called the law a new version of the Arizona law, “but with an Alabama flavor.” In reaction, a wave of immigrants immediately headed off to law firms to accredit third parties as responsible for their children and material goods.

Activists have challenged the constitutionality of this anti-immigrant law and declared that half a century after the civil rights movement of the sixties, Alabama has once more become “ground zero” in the fight for civil liberties. Retired Judge U.W. Clemon, who was a civil rights activist alongside Martin Luther King and the first African-American federal judge, appointed in 1980 by President Jimmy Carter, condemned the law as a product of ignorance and of those who continue to believe, even in the 21st century, that whites are superior to all others. He lamented that it took us back to the state’s racist past.

What is being called the “One Family, One Alabama” campaign, aimed at repealing HB 56, was launched by the 16th Street Baptist Church, Birmingham’s first black church, and the site of a bombing by the Ku Klux Klan on September 15, 1973, that killed four girls. Academics have also added their voice to the struggle, with the University of Alabama warning that the act will cause the exodus of 70-140,000 employees from the state, reduce the demand for goods and services, shrink tax income by between $56.7 million and $264.5 million and cause the state economic losses of between $2.3 billion and $10.8 billion (1-6% of the GDP).

Texas: Republican State Senator Rick Perry promoted a bill that was approved in June 2011 by 19 votes to 12, demanding that police officers interrogate detainees about their immigration status, regardless of how insignificant the reason for their detention. In the same state, Republican Representative Debbie Riddle presented a bill to penalize the hiring of undocumented immigrants, with the exception of domestic workers, nannies and gardeners.

Democrats accused Riddle of hypocrisy in trying to get rid of all illegal immigrants… unless they are nannies working for her friends. To Riddle’s great surprise, the San Antonio Immigrant Youth Movement, mainly made up of undocumented youths, is defending the right of young people without documents to study at university. Bills such as Riddle’s, inspired by the Florida ones, threaten 16,500 undocumented university students who until now have had the right to pay the same fees as citizens and/or residents and were promised that their situation would be normalized.

Kansas: In a state where wild hogs are shot by gunmen in helicopters, Republican Representative Virgil Peck voiced what some considered an irresistible invitation: “Looks like to me, if shooting these immigrating feral hogs works, maybe we have found a solution to our illegal immigration problem.” Activists charge that such outrageous declarations have sparked a 40% rise in hate crimes against Latinos, also citing a study by the Southern Poverty Law Center showing that in 2010 the number of racial hate groups in the USA topped 1,000 for the first time since the Center began counting them in the 1980s, a 7.5% increase just since 2009.

Questioned immediately, he made light of his remark. “I was just speaking like a southeast Kansas person,” he said, but that drew fire from two other southeast Kansas legislators, one of whom said “I have no intention of letting Representative Peck brand me with his own extremist views just because I live in the same region.” The pressure from activists was so strong and so immediate that Governor Sam Brownback and the Republican leadership of Kansas called on him to apologize. “My statements yesterday were regrettable,” he said. “Please accept my apology.” Hardly mollified, the League of United Latin American Citizens the largest and oldest Hispanic civil rights organization called on Peck to resign immediately from office.

The anti-immigrant tide
reaches New Mexico, Utah and Washington

Businesspeople in both Kansas and Oklahoma opposed importing the Arizona legislation, arguing that such measures would put their states at a disadvantage compared to those that continued allowing undocumented labor. There were also failed attempts to mount similar legislations in Colorado and Nebraska.

But the tides of penalizing undocumented immigrants did reach three relatively tolerant states: New Mexico, Washington and Utah, the only three where driving licenses are issued without discriminating by immigration status. The license issuers say there are 83,000 undocumented immigrants driving in New Mexico. Although Republican legislators tried to make distinctions in between licenses for undocumented immigrants and those for documented ones, activists called it a positive sign that licenses are granted to people who live, work and pay taxes in our states, regardless of their immigration status. The debate was particularly fierce in Washington state, but was resolved for economic reasons: the technology to verify applicants’ immigration status would cost $1.5 million a year.

In Utah, HB 497 gives the police authorization to check the immigration status of people suspected of committing a serious crime or displaying notably bad driving, but not in the case of minor infringements. But there again concessions were made to employers: a bill that would create a labor commission to recruit workers in the Mexican state of Nuevo León, and another to create a temporary worker program in 2013, which commits the governor and district attorney to negotiate with the federal government a special license that would allow Utah employers to hire undocumented workers.

“Reinforce the border”… but then what?

Are any better winds blowing in the broad federal arena? Since its stuttering creation following the 9/11 attacks, the Department of Homeland Security (DHS) has assiduously responded to the anti-immigrant forces’ demand for a federal government commitment to restrict irregular immigration.

Early in President G.W. Bush’s second term, the champions of a hermetically sealed border and an armed immigration policy fed atavistic fears with the new, ubiquitous anti-terrorist ideology that was applicable both beyond and within the country’s borders.

Conservatives and restrictionists ticked off the DHS work agenda in a chorus that displayed little discord. On January 19, 2006, some prominent conservatives—many of them elderly senators and representatives—sent an open letter to President Bush somewhat pretentiously titled “First Things First on Immigration,” in which they fervently argued that “border and interior enforcement must be funded, opera-tional, implemented and proven successful—and only then can we debate the status of current illegal immigrants, or the need for new guest worker programs.”

The letter, whose signatories included current Republican presidential pre-candidate Newt Gingrich, was organized by the ultra-conservative Hudson Institute and contained a consensus among traditional conservatives, immigration restrictionists, social policy conservatives, neoconservatives and Republican political leaders.

“It’s all about security”

The most unexpected addition to this xenophobic melting-pot was the neoconservatives who occupied important foreign affairs posts in the Bush administration. Led by Jews of recent immigrant descent, they had tended to provide a pro-immigrant voice until the 9/11 attacks on the twin towers, but in this new context dominated by national security ideology, they joined the growing anti-immigrant chorus.

In subsequent years, the “First, reinforce the border” position grew in force even among Republicans who had been most sympathetic to comprehensive immigration reform. Ignoring the obvious political opportunism of this proposal—which will probably be followed by “Second, reinforce the border and clean house”—many moderate and even liberal Democrats took the bait and are joining up with this position.

Under Michael Chertoff and Janet Napolitano, the DHS has pledged to reinforce the border. Even when President Barack Obama offered to seek a liberal immigration reform that would include both legalization and new programs for legal foreign workers, Napolitano, enthroned as DHS director, said it would apply the law with no palliatives, arguing that her institution is responsible for applying the law, not changing it. In late March 2009, Napolitano told CNN that her administration would spend $700 million on border security: “It’s all about border safety and security and making sure that spillover violence doesn’t erupt in our own country.”

“Safe communities” or ethnic cleansing?

Going a step beyond the slogan “First, reinforce the border,” imbued with the at-home version of the fight against terrorism ideology, Napolitano boasted that the “Safe Communities” program—a pretentious label for what is really an ethnic cleansing operation—had produced the record figure of 195,000 deportees with criminal records in 2010. The expansion of the program from 14 jurisdictions in 2008 to over 1,000 in 2011—with the southwest border as the favorite target—was responsible for this huge figure, which has affected many immigrants with only minor offenses. In South Carolina alone, the program identified 3,800 undocumented immigrants.

Napolitano also lauded the fact that, since 2009, Immigration and Customs Enforcement (ICE) has audited over 3,600 employers suspected of the abominable crime of giving work to undocumented immigrants, suspending the licenses of 260 businesses and individuals and reaping $56 million in fines. Napolitano also reported that more than 249,000 employers are using the voluntary E-Verify program.

Obama promised openings,
Napolitano closed them up

“Safe Communities” could extend its tentacles given that the US House Judiciary Committee approved the program’s obligatory nature for every state, although this is still pending approval by the House plenary. For those who defend this expansion, it’s all about benefiting the 23 million “native” unemployed people in a country in which 7 million people work illegally doing jobs and at wages well below the level of most of today’s unemployed. As is to be expected, businesspeople from the agricultural sector, who want even more cheap labor, are fighting it tooth and nail.

In her only visit to Central America—to Guatemala on February 27—Janet Napolitano met with Guatemala’s new President, Otto Pérez Molina, and his foreign minister, Harold Caballeros, to address two issues: the fight against drugs and temporary protection status for Guatemalans living in the United States. Drugs and immigrants were thus served up on the same menu, with the former as the main course and the latter as the kind of dessert that can be refused due to its high calorie content.

While Napolitano, the DHS under her leadership and, for that matter, the Central American governments find nothing scandalous about this combination, we can’t expect the reform pushed by the “liberals” to be what immigrants want. What we can expect is the DHS conception and structure ending up conditioning the migration agendas of Central America’s governments, in which they trade the repression of drug trafficking for ephemeral temporary protection agreements that are basically nothing more than a moratorium on deportations, as their name openly admits.

Obama ran down his term in office promising a reform of immigration legislation that turned out to be another of those good intentions that pave the road to hell. Instead of pushing the promised reform, which could be imposed and superimposed over all state legislation given that immigration regulations correspond to the federal level, he limited himself to media-focused, pettifogging shows of appeals and challenges to the Arizona and Alabama acts, served up with a spoonful of sugar.

They were mere delaying tactics aimed at winning time while Janet Napolitano cleaned up the house and damped down expectations and animosity, dishing up deportations in big spoonfuls. While the invisible hand of the comprehensive reform promised by Obama also grew intangible and was ever less mentioned, Napolitano’s energetic hand cleared out and dusted the corners and gave clear signs that the Obama administration was committed to restrictive policies. Meanwhile, in their own sphere, the individual states filled the vacuum created by the federal legislative paralysis with an ominous and confused mosaic of state laws, as seen above.

The first reason for the legislative paralysis:
The kind of politician Obama is

There are three reasons behind this legislative paralysis. The first, which is most rooted in the current situation, is Barack Obama’s particular political character as someone who avoids producing conflicts and runs from any that arrive at his door. The Republican steamroller in the lower house has boycotted all of Obama’s initiatives with hardly a protest from the White House. On a number of occasions, Obama could have highlighted the damage such Republican intransigence was doing to the country, but he opted to take the blow, breathe deeply and smile his disarming smile.

US social scientist James McGregor Burns distinguishes between two kinds of presidential leadership: “Transactional leaders who thrive on bargaining, accommodating and manipulating within a given system” and “transforming leaders who respond to fundamental human needs and wants, hopes and expectations, and who may transcend and even seek to reconstruct the political system rather than simply to operate within it.”

Franklin Delano Roosevelt was a transforming leader and is still proclaimed as such by sustained acclamation. He was the visible head of the New Deal that pulled the United States out of the great collapse of the 1930s. Obama is the archetypal transactional leader, to the benefit of the Republicans and the loss of the immigrants. Obama will not dare to use the instruments at his disposal to liberalize immigration policy—or even water down its repression—without the Republicans’ seal of approval. As a result, Janet Napolitano goes about her business with exemplary dedication, filling up her pages… with the names of “deportables.” Obama the accommodator will continue allowing big sticks and baby carrots to rain down on the immigrants.

“Obama’s not one of us”

In his presidential campaign, and even earlier in his autobiographical book The Audacity of Hope, Obama presented himself as a man of principles but one seeking unity, a discourse he used to disarm and defeat a gratuitously confrontational Hillary Clinton. But his Republican rivals have done nothing more than see signs of weakness in and exploit that obsession for consensus. The result is an Obama much less independent of the Republicans than he might wish.

His other means of support—including his inevitable hallmark, the fact that he was black—slipped through his fingers. Precisely due to his talent as a peacemaker come hell or high water, Obama launched a speech that aimed to abolish differences: “There is not a Black America and a White America and Latino America and Asian America—there is the United States of America.” Crass error. There may be one America on the utopian horizon, but denying its fragmentation is to refuse to correct the discriminations jumping out at you. Immediately a harmonious black chorus reposted: “He isn’t black enough,” “He’s not one of us.”

He was stripped of the medal of being the first black President of the United States, ironically enough, by African-American activists. US essayist Debra Dickerson argued in 2010 that “‘Black,’ in our political and social reality, means those descended from West African slaves. Voluntary immigrants of African descent (even those descended from West Indian slaves) are just that, voluntary immigrants of African descent with markedly different outlooks on the role of race in their lives and in politics. At a minimum, it can’t be assumed that a Nigerian cabdriver and a third-generation Harlemite have more in common than the fact that a cop won’t bother to make the distinction. They’re both ‘black’ as a matter of skin color and DNA, but only the Harlemite, for better or worse, is politically and culturally black, as we use the term.”

A series of unfortunate events have deepened Obama’s dependence on the Republicans. The first was the attempt to push through a health system reform hand in hand with the insurance companies and the pharmaceutical industry, which alienated a large part of the soft progressives who supported his campaign. That unsuccessful attempt earned him condemnation from both camps.

The second reason: The economic crisis
and immigrants as scapegoats

The second part of the paralysis is the economic crisis. It started as a Republican Party catastrophe and was recognized as such, but Obama made it his own when he cloned the Republican’s policy of saving the guilty, i.e. the financial filibusters.

No other results could reasonably have been expected, bearing in mind the conditions: his economic team consisted of veterans from the Bush and Clinton Cabinets. As US researcher Robert Kuttner lists, these are the very same people whose deregulation policy generated the financial collapse in the first place. Lawrence Summers, Clinton’s former treasury secretary, became an economic adviser; Ben Bernanke, the former president of Bush’s Economic Advisers’ Council, continued to head the Federal Reserve, having been designated by Bush himself; and Timothy Geithner was named treasury secretary, having served as an assistant secretary under Summers and subsequently as president of the Federal Reserve Bank of New York with Bernanke. These castling moves—creating a new economic chess board but using the same old pieces and foxy, silver-haired players—sent out a distressing signal to anyone expecting an about turn.

Unemployment continued to grow during Obama’s mandate. It is currently over 9% and some analysts insist that it may be as high as 16% if we include those who have already stopped looking for work or can’t find a regular job. The value of houses and retirement savings have evaporated and the banking system is still just as fragile. In this context, how can immigration policy be addressed? It’s not just a question of other issues ranking higher in the priorities of both voters and politicians; there’s also the fact that crises provide the conditions for immigrants to be scapegoated. If there’s unemployment, it’s because immigrant labor is competing with and ends up displacing native labor. And if people wonder why access to health services isn’t universal or why public spending can’t be expanded in that area, they are shown the answer in the parks and poor neighborhoods of Hialeah, Los Angeles and Houston: those lay-about Latinos are overburdening public spending because they’re being catered to in jail while their women—who can’t stop giving birth—saturate the schools with children whose studies are paid for out of the public coffers.

Obama didn’t just sit back with his arms folded. He didn’t get his immigration reform, but he did do what the perverse Republicans would have done: he dedicated himself to throwing out of the country those overburdening the state services. He pointed out the “guilty” ones without actually naming them.

The third reason: The eternal ambivalence of
giving them jobs and denying them papers

A third element, which from our limited perspective looks structural, is the ambivalence of US immigration policies. Worker mobility worries both the leaders of countries that receive immigrants and part of their populations.

This is happening in many countries. The United States is simply a paradigmatic scenario: the invader is invaded; the colonizer is subject to colonization without epaulettes or arms. Those “few” can become “many” and transform the country. Those few, frequently perceived as threatening, have shown themselves to be essential. That’s why the waves of immigration have activated the ambivalent reactions with which a society tries, through its ideological production and state coercion, to absorb them. The society produces both temporary protection status and roundups while business¬people demand both immigrant labor and border patrols. Then there’s both the applause for Latinos-turned-artists and the stigmatizing stereotypes.

The ambivalence is maintained because it’s a mechanism that allows the irregular recruitment of labor in the economic field to become parasitic. Providing jobs while denying papers produces the citizenship-deprived work force that satisfies the system. Workers who aren’t accredited as such work harder and more diligently than submissive legal workers. Many industries want them and prosper at their expense.

What California strawberries can tell us

Back in the early fifties, California produced only a third of US strawberries. Today it produces four fifths, a volume that generates $840 million a year. The strawberry yields per hectare can be higher than those of any other crop except marihuana. As the demand for strawberries rises, so does the number of workers required to harvest them. There are towns where over 85% of the strawberry pickers are Latinos, and most of them are undocumented. Depending on the crop in question, 30-60% of the immigrants currently residing in California don’t have their papers. There’s always work for them, and the fact that they’re undocumented allows the boss to pay them less than the minimum wage.

The ambivalence also allows the welfare state to feed off the precarious situation of the 12 million unauthorized immigrants, many of whom have $2,450 deducted every year in social security contributions. It’s calculated that undocumented immigrants contribute no less than $7 billion a year, but they receive no benefit from their contributions as they aren’t registered citizens. The system has turned them into invisible providers of a generous subsidy.

How is this system perpetuated? How is the ambivalence institutionalized? That’s where the politicians and laws come into play. The two houses of Congress debated for months to achieve a law that would maintain the ambivalence, but unquestionably favored a drastic barrier to immigration: it contained an amnesty for those who had already entered and reinforced the filters that detain those at the gates. The idea was to keep the ones who are useful, but stop the possibility of excess labor. The proposals of the multilateral organizations and their circular migration programs had a similar purpose, with the circles ending up back at the country of origin. In other words, they seek the return of the workers to their home country, thus discarding the worker-merchandise after a certain period of time.

Human rights proclaimed,
but denied to non-citizens

With the stagnation of a possible federal reform, the debate shifted to the colorful arena of the state and local legislatures, moving the ambivalence to the idiosyncratic geographic terrain, to the celebration of multiculturality in some cases and to rank racism in others, with some states and cities recognized as immigrant paradises and others extremely repressive. I tried above to summarize those that climbed on the immigration legislation bandwagon with the most zeal.

Human rights defenders can also fall into the system’s viscous ambivalence. They applauded in September 2007 when the DHS decided to apply a stipulation that Congress had established in 2000: the U Visa, a new immigration status created as part of the law for victims of trafficking and the prevention of violence, will be automatically granted to women and child victims of domestic violence and places the holder on the path to permanent residence. But given the limited number of interracial marriages, particularly among undocumented immigrants, we can presume that most of those charged will also be undocumented immigrants, so each denunciation will also produce an expedited deportation. It adds up to a good cause inserted, or at least at the service of, a political program with atrocious purposes.

The issue of immigrants in the United States has been compared with the Civil Rights Act, which unleashed so many debates in the fifties and sixties. Another criminal ambiguity emerges here: in their speeches Obama, Bush Jr., Clinton and Bush Sr. have all passionately defended human rights while at the same time applying policies that have trampled on immigrants’ rights.

In this case, the ambivalence consists of endorsing civil rights, but limiting them to the citizens of a given nation and denying human rights recognized as universal to everyone else. The slippery part is that the rights aren’t denied in themselves, the problem is rather denial of the citizenship associated with given rights. The criminality of this ambivalence in all fields—legal, economic, political—means the United States is backing off from its project of being a multiethnic nation, a melting pot, turning itself instead into a kind of quilt of juxtaposed patches in which different kinds of citizenships are segmented by an unequal access to rights. The paralysis of the Obama administration isn’t a symptom of the absence of policy. It’s a functional continuation of a long tradition: the fixed ambivalence of the immigration nation/deportation nation.

The Californian oasis shows that
another immigration policy is possible

But not everything is so grim. Some interesting bills that slipped through the cracks of that ambivalence have turned California into an oasis in the desert formed by the latest state immigration reforms.

California Governor Jerry Brown, who is leading what is currently the world’s eighth largest economy, has maintained a continuous run of ratifying laws benefiting immigrants. AB 130—the first part of what’s known as the California “Dream Act”—allows undocumented students to receive economic aid for their university education from private funds. AB 131—the second part of the Dream Act—authorizes undocumented university students to apply for state scholarships and will benefit some 2,500 pupils currently without residency status by permitting them to receive public aid.

Meanwhile, AB 1236 prohibits cities and counties from approving laws that oblige employers to use the E-verify program to determine their employees’ immigration status. AB 207 unifies the requirements for entering public schools, regardless of the student’s immigration status, and AB 353 restricts the authorities’ capacity to impound vehicles driven by people without a license and facilitates their return. California is swimming against the tide, but might be establishing precedents that could be imitated in the medium term. In the least optimistic of cases, California has demonstrated that another way of treating immigrants is possible and that their human rights can prevail.

What will happen after November’s elections?

The beginnings of the election campaign have placed the debate back in the federal arena, where we are seeing new onslaughts from old proposals. In the most recent episode, Republican presidential hopeful Newt Gingrich promised a very idiosyncratic package: including Mexico among the countries supervised by the Southern Command; implementing strategies to ensure that Fidel Castro is the last dictator in Cuba; being more aggressive with Chávez to “save” Venezuelans and “free” the USA from an anti-US President, rather than leaving the job to cancer; and doing away with unauthorized immigration in five years by having local authorities review each case of irregular immigration and making the visa-granting system more flexible.

We can detect in these proposals a curious mix of extreme conservatism and conscious awareness that Latinos are an important electoral quarry. Could it be an ultra-conservative hand that unties the Gordian knot of immigration? For the moment, all we know is that conservatives and liberals have been equally ineffective at the federal level. The immigration reform is still pending, while that curious mix has failed to pass from rhetoric to practice under the most recent Presidents.

Obama came to power with the support of 67% of the country’s Latinos, while only 31% voted for McCain. Did they get it right or did they waste an opportunity? In an atmosphere thick with suspicion, one has to ask: would things have been different for immigrants if McCain had won?

Obama’s policies for undocumented immigrants—which basically add up to more of the same that was dished out by the Republicans—appears to confirm Gore Vidal’s lucid analysis of the 1970s: “There is only one party in the United States, the Property Party… and it has two right wings: Republican and Democrat. Republicans are a bit stupider, more rigid, more doctrinaire in their capitalism than the Democrats, who are cuter, prettier, a bit more corrupt—until recently… and more willing than the Republicans to make small adjustments when the poor, the black, the anti-imperialists get out of hand. But, essentially, there is no difference between the two parties.”

José Luis Rocha is a researcher for the Jesuit Service for Migrants of Central America (SJM) and a member of the envío editorial council.

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