By Dean Kevin R. Johnson
Consideration of the intersection of race and class in American social life is timely in light of the 2008 Presidential election, which undeniably focused national attention on both race (with the first African American elected President) and class (with the nation reeling from the devastating impacts of the worst economic downturn in the U.S. economy since the Great Depression). In my estimation, there is no better body of law to illustrate the close nexus between race and class than U.S. immigration law and its enforcement. Put simply, U.S. immigration law historically has operated — and continues to operate — to prevent many poor and working noncitizens of color from migrating to, and harshly treating those living in, the United States.
As in many areas of law, matters of race and class in the U.S. immigration laws are unquestionably more complicated today than in the past. Fortunately, express racial exclusions can no longer be found in the immigration laws. A by-product of the civil-rights movement of the 1960s, the Immigration Act of 1965[1] abolished the racially discriminatory national origins quotas system that had remained a bulwark of U.S. immigration law since 1924.
Although Congress eliminated the racial exclusions, provisions of the current U.S. immigration laws regulating entry into the United States, such as economic litmus tests[2] and arbitrary annual limits on the number of immigrants per country,[3] have racially disparate impacts. All else being equal, people from the developing world — predominantly “people of color” as that category is popularly understood in the United States — find it much more difficult to migrate lawfully to this country than similarly situated noncitizens from the developed, and predominantly white, world. Nonetheless, because of the consistently high demand among people in the developing world to migrate to the United States, people of color dominate the stream of immigrants to this country.
Although racial exclusions are something of the past, the express — and aggressive –exclusion of poor and working people remains a fundamental function of modern U.S. immigration law, embodied in the provisions of the omnibus Immigration and Nationality Act of 1952. This express discrimination against poor and working immigrants by the U.S. immigration laws in operation has disparate national origin and racial impacts, especially on prospective migrants from Mexico.
This paper offers concrete recent examples of the clear intersection of race and class in immigration law and its enforcement in the United States, with a focus on state and local efforts to regulate immigration. Previously on this website, Professor Bill Hing analyzed the racial impacts of Arizona’s efforts to regulate immigration through a controversial measure known popularly as SB 1070. Unfortunately, Arizona is not the only state or local jurisdiction that has entered the realm of immigration regulation.
Today’s Immigrant Demons for All Seasons
Because some of the American public believe that they have negative impacts on U.S. society, Mexican and other Hispanic immigrants, particularly those who are undocumented, are among the most disfavored immigrants in modern times. Their current demonization fits into a long history of discrimination against immigrants from Mexico and, more generally, all persons of Mexican ancestry in the United States. To be clear, this history of discrimination is not limited to “aliens” or “illegal aliens,” but extends to all persons of Mexican ancestry.
Anti-Mexican sentiment, often combined with class-based bias, has long been prevalent in American social life. Persons of Mexican ancestry are often stereotyped as “peasants” who undercut the wage scale of “American” workers because of their willingness to work for “inhuman” wages. The debates over the ever-expanding fence along the U.S.-Mexico border and border enforcement generally, the proliferation of state and local immigration-enforcement measures, and the fear that some Americans express of the “Hispanization” of the United States, reveal both anti-Mexican and anti-immigrant sentiment, as well as antipathy for poor and working class people.
Modern State and Local Efforts to Regulate Immigration
The conventional wisdom has been that federal power over immigration is exclusive, with little room for state and local immigration and immigrant regulation. Nonetheless, in the last few years, a number of state and local governments, frustrated by the failure of Congress to enact comprehensive immigration reform, and uneasy with the real and imagined changes brought by new immigrants – and Latina/os generally — to their communities, have adopted measures that purport to address undocumented immigration and immigrants. Concerns about the race and class of today’s immigrants have unquestionably contributed to the passage of these measures.
Prince William County, Virginia
In 2007, Prince William County, Virginia, responded to an increase of Latina/os settling in the community by adopting a measure that required police officers to check the immigration status of any person accused of breaking the law, whether for speeding or shoplifting, if the officer believed for some reason that the person was in the country unlawfully. This, of course, is reminiscent of Arizona’s SB 1070. Affording such broad discretion to law enforcement officers unfortunately creates the serious potential for racial profiling and related abuses.
Fearful of the impacts of the enforcement of the new law, Latina/o immigrants and U.S. citizens reportedly moved out of Prince William County. Supporters of the local immigration measures have contended that the law will promote “self?deportation” of undocumented immigrants. However, Latina/os fleeing the county appear to be moving to neighboring localities and states rather than returning to their native countries.
Escondido, California
In the last few years, the city of Escondido, California, located north of San Diego not far from the U.S.-Mexico border, has tried to discourage undocumented immigrants from being visible in the city limits through a number of aggressive means, including passing an ordinance –which the city later rescinded in the face of a legal challenge — barring landlords from renting to undocumented immigrants, implementing immigration sweeps, and pursuing aggressive enforcement of other laws.
Escondido has attacked undocumented immigration indirectly by, among other things, increasingly citing residents for code violations such as garage conversions, graffiti, and junk cars. City officials considered a policy restricting drivers from picking up day laborers. The local police department targeted unlicensed drivers in traffic checkpoints, which disparately affected undocumented immigrants who are ineligible for driver’s licenses in California and most other states. A retired sheriff contended that Escondido is in fact “`looking for a way to reduce the number of brown people’” in town.[4]
Escondido’s approach has been described as a method to encourage undocumented immigrants to “self-deport” and return home. However, achieving that goal seems unlikely, given that residence is possible in other nearby jurisdictions in the United States.
The New “Sundown Towns”
The end result of local immigration measures like those in Prince William County and Escondido may well be modern-day variants of the old “sundown towns” in the United States. Emerging in the North after the Civil War when many freed slaves migrated from the South in search of employment, sundown towns systematically excluded African Americans after sunset.[5] As a result, workers of color provided much-needed labor to the townspeople but without the ability to live in town.
As we saw, there is little indication that the labor provided by immigrants in cities with ordinances and policies like Prince William County and Escondido will not be in demand to maintain the homes and yards of city residents, to provide child care and household services, and to sustain restaurants, hotels, construction, and service industries in those municipalities. The laws would not likely reduce, much less eliminate, the informal labor market that exists to satisfy the economy’s thirst for inexpensive labor. The “new” sundown town, it appears, will have unskilled Latina/o immigrant workers by day but will be white?dominated by night.
Federal Immigration Enforcement Through Raids: Postville, Iowa, 2008—A Case Study
As Congress debated comprehensive immigration reform, the Bush administration increasingly employed immigration raids in the interior of the United States in an effort to demonstrate the federal government’s commitment to immigration enforcement. These raids — as well as less sensational enforcement measures pursued by the Obama administration — have had racial and class impacts on particular subgroups of immigrant workers, namely low-skilled Latina/o immigrants.
The May 2008 raid of a meatpacking plant in Postville, Iowa, constituted one of the largest raids on undocumented workers at a single site in American history. With a massive show of force that included helicopters, buses, and vans, federal agents surrounded the Agriprocessors plant in Postville, the nation’s largest kosher slaughterhouse. The officers arrested hundreds of suspected undocumented workers and detained them at the National Cattle Congress grounds, a cattle fairground seventy-five miles from Postville.[6] All but a few of the workers were from Guatemala and Mexico.
More than three hundred of those arrested in the Postville raid faced criminal charges for identity theft and related crimes. Most of the Guatemalans could not read or write and many reportedly failed to understand that they were charged with criminal offenses rather than mere civil violations of the immigration laws. Rather than facing simple deportation, these immigrants stood accused of serious criminal charges that would subject them to imprisonment and make it difficult, if not impossible, for them to ever immigrate lawfully to the United States.
Previously, the U.S. government generally had sought to swiftly deport noncitizens arrested after workplace raids and had not pursued immigration-related criminal prosecutions. Many of the undocumented workers apprehended in the Postville raid quickly accepted plea bargains on the criminal charges, with hopes of faster release and immediate deportation.
The Postville raids unquestionably were directed at and affected unskilled Latina/o immigrant workers, who are among the most vulnerable laborers in U.S. society. To this point, the United States unfortunately has not addressed the root cause of undocumented immigration: the more general problem with the U.S. immigration laws being out of synch with the nation’s labor needs and the lack of legal ways for many low- and moderately-skilled workers to lawfully come to the United States.
Conclusion
The U.S. immigration laws aim to keep poor and working people of color out of the United States. Those who suffer the brunt of immigration enforcement are most often poor and working noncitizens of color. Almost all of those who die on a daily basis in the desert and mountains — a nightmare that continues daily along the U.S.-Mexico border — on the arduous journey through the desert to the United States are poor and working people of color. Moreover, local immigration enforcement measures, such as those adopted by Prince William County, Virginia, and Escondido, California, target poor and working immigrants of color, as did the federal government’s spring 2008 immigration raid in Postville, Iowa.
The experiences of Latina/o immigrants provide a stark example of the intersection of race and class in the operation of U.S. immigration law and its enforcement. One could look at noncitizens of many different nationalities who suffer as a result at the intersection of race and class in the operation of U.S. immigration law. Africans and Haitians seeking to come to the United States, for example, historically have been subject to particularly harsh treatment by the U.S. government.
The United States frequently claims that it is a “nation of immigrants.” It has always held itself out embracing the “huddled masses” of the world. It is about time that the U.S. immigration laws live up to the nation’s lofty ideals.
Dean Kevin R. Johnson is the Dean of the U.C. Davis School of Law. This is an abbreviated and adapted version of Kevin R. Johnson, The Intersection of Race and Class in U.S. and Immigration Law and Enforcement, 72 Law & Contemporary Problems 1 (2009).
[1] Pub. L. No. 89-236, 79 Stat. 911 (1965).
[2] Immigration & Nationality Act § 212 (c)(4)(A), 8 U.S. C. § 1182 (a)(4)(A) (“Any alien who . . . is likely at any time to become a public charge is inadmissible.”).
[3] INA § 201 (b)(2)(A)(i), 8 U.S.C. § 201 (b)(2)(A)(i) (limiting generally number of immigrants from any country to 26,000 a year).
[4] Steve Lopez, Migrant Has Tough Message to Others, L.A. Times, July 20, 2008, at B1 (quoting Bill Flores, retired sheriff).
[5] See generally James W. Loewen, Sundown Towns: A Hidden Dimension of American Racism (2005).
[6] For a detailed account of the Postville operation, see Erik Camayd-Freixas, Interpreting After the Largest ICE Raid in U.S. History: A Personal Account 1 (June 13, 2008) (unpublished essay, on file with The New York Times), available at http://graphics8.nytimes.com/images/2008/07/14/opinion/14ed-camayd.pdf.
