Dehumanization and Criminalization of the Undocumented Worker in the US

“Give Me Your Tired, Your Poor, Your Huddled Masses …

Unless They are From Mexico”

   The Dehumanization and Criminalization of the Undocumented Worker

in the Land of Liberty

Abstract

“Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!” Poem at the base of the Statue of Liberty.

 America’s recent controversial immigration policies have ignited fear and promoted stereotypes that have directly impacted America’s criminal justice system. The anti-immigrant movement has sharply portrayed immigrants from Mexico and Central America as being simultaneously lazy and job stealers, criminals and welfare freeloaders, inflaming the prejudices of some Americans despite statistics that directly refute these false claims.  These negative characterizations and the dehumanization of people as “illegals,” as promoted and encouraged by President Trump, have directly contributed to the criminalization of the undocumented worker – and anyone who looks Mexican or Central American.  However, the economy, stability and prosperity of the United States was built on the backs of immigrants and much of its modern economy is irrefutably dependent on immigration – both legal and illegal.  Accordingly, in order to fulfill the promise of Lady Liberty and continue to be a country that leads the world in innovation and human rights, it is crucial that the United States develop fair and humane immigration policies that keep America safe while upholding basic human rights of dignity and fair justice. 

 “The bosom of America is open to receive not only the Opulent and respected Stranger, but the oppressed and persecuted of all Nations and Religions; whom we shall welcome to a participation of all our rights and privileges…”

– George Washington.

1. Background of Immigration in the United States

Since the inception of the United States, immigration has always played a key role in America’s foundation. However, the fears and prejudices of those who paint a negative image of the undocumented worker has contributed to the criminalization of immigrants. Research has shown that biased policies are not effective in stopping crime, yet the backlash persists and has led to unfair incarceration and unfair treatment.  This paper analyzes a few of the issues that frame the debate on immigration in the United States.  For example, are first generation immigrants and undocumented workers more likely to commit crimes? How are immigrants protected if they can not properly exercise their rights?  Why are cities turning to local police for immigration enforcement? Why is it necessary to separate families at the border? Finally, why should criminalization of the immigrant matter?

The United States has always relied on immigration to grow its economy, from field labor for agriculture, to hospitality services, to highly skilled engineers and researchers. America has created immigration processes and laws to support the necessary migration of immigrants to its shores. However, it has failed to adequately implement legal rules and processes related to immigrants, both legal and undocumented, that commit crimes on its soil. For example, in most circumstances, an immigrant can not utilize the criminal courts, but their cases can not be adequately handled in immigration court where immigrations judges are not familiar with criminal laws. Equally important, these judges and courts do not adequately keep records of allegations of criminal conduct, evidence to support the allegations, pleas, and defenses, to fairly assess how many crimes may be committed by immigrants. The United States’ Bill of Rights proudly boasts that the accused is innocent until proven guilty, yet immigrants are deported without due process.  America’s need for immigrant work will grow going forward, so it’s critical that its systems, laws, administration and record keeping keep pace with the reality of immigration.

B. The Government’s Role in Incarcerating Immigrants – Racial Profiling

Since the Twentieth and into the Twenty-First century, the United States federal government has taken on the task of incarcerating and deporting large numbers of immigrants, particularly those of color.  This practice arguably stems from the common misconception that illegal “aliens” are more likely to commit crimes than native-born citizens. This prejudicial stance has been proven incorrect by numerous studies. In fact, higher immigration is associated with lower crime rates. According to the American Immigration Council, “Between 1990 and 2013, the foreign-born share of the U.S. population grew from 7.9 percent to 13.1 percent and the number of unauthorized immigrants more than tripled from 3.5 million to 11.2 million. During the same period, FBI data indicate that the violent crime rate declined 48 percent; which included falling rates of aggravated assault, robbery, rape, and murder. Likewise, the property crime rate fell 41 percent, including declining rates of motor vehicle theft, larceny robbery, and burglary.”

Despite this evidence, politicians continue to make immigration policies that are based upon stereotypes and prejudices and not the facts. This fans fear among communities and the cry for law enforcement to get involved in detaining immigrant individuals.  For example, in Arizona, Sheriff Joe Arpaio of Maricopa County prided himself on being “tough on immigration.” (NPR May 14, 2016  Racial Profiling Lawsuit).  He single handedly created a policy and practice of requiring his deputies to stop people that looked like undocumented workers and detain them in the name of safety. The arrests were not based on reasonable suspicion or probable cause but a policy that Arpaio boasted was based in get the “illegal” first, crime later.  Sheriff Arpaio was sued multiple times for illegal and discriminatory police racial profiling and finally the Supreme Court of the United States stuck down Arpaio’s policy.  As a result of the ruling, Maricopa County was forced to pay out a settlement of $145 million dollars. (Ortega Melendres, et. al v Arpaio et, al 2017 ACLU) Moreover, famous Joe lost his re-election bid in 2016 as the citizens of Arizona tired of the negative attention they received from his illegal practices and failure to abide by the law.  However, President Donald Trump pardoned Arpaio in 2017, explaining that Joe was unfairly convicted “for doing his job.” 

 Policies like Arpaio’s violate the civil rights of immigrants and leads to unfair and costly  incarceration.  Racial profiling has become a critical and hot political  issue among local law enforcement and government agencies that specialize in immigration. However, the practices become less about protecting the United States against unlawful immigration and more about making arrests based upon skin color, accents, and surrounding geography. As the Supreme Court ruled in Arpaio’s case, this practice  is unconstitutional, unjust, and discriminatory; not to mention costly for the counties and cities to defend.

C. Family Separations at the Border – Trump’s Zero Tolerance Policy 

Some of the United States’ policies contradict the very foundation that this nation was founded on and has increased spending on the separation of families. The seemingly relentless campaign of deportation and unjust discrimination has been justified by the government as war against “Illegality.”  The continued disregard of this unfair and inhumane treatment of immigrants will create more policies at local, state and federal levels that will encourage the marginalization and criminalization of immigrants.

 Last year, the Trump Administration rolled out its “Zero Tolerance Policy” as a form of punishment for illegal immigrants and their young children.  According to the National  Legal Conference on Immigration and Refugee Policy, “more than 2,000 children are being separated from their parents at the U.S. border.” This has created immense funding issues for separating families and for a “400-bed facility at full capacity for one month is more than $5 million.”(Health and Human Services HHS) Not only does Trump’s “Family and Separation Policy” cause more families to suffer the loss and separation of loved ones at the border, it also requires constant spending and funds by the federal government. For last year alone,  the Trump Administration expects to spend “$943 million in grants … to detain and care for the immigrant children, and this number may rise as more children are detained. The government spent $958 million in the entirety of fiscal year 2017.”( National Legal Conference on Immigration and Refugee Policy).

D. Policy Recommendations

The U.S has failed to adequately implement legal rules and processes related to immigrants both legal and illegal. In these cases, whether they have committed crimes or not, an immigrant can not utilize the criminal court systems due to lack of rights and properly being able to exercise their rights. Many policy attempts in recent years have caused major controversy and failure. Trump’s “Zero-Tolerance Policy” has been widely criticized as  “cruel and immoral by both sides of the aisle, but new reports are showing the policy is more than just inhuman—it’s uneconomical too.” (Kerwin, Donald, Immigration Policy).   Here, Trump’s solution was more of a club than a carrot and only satisfied the desire of those who wished to criminalize illegal immigrants. 

Past policies promoted by the federal government as a solution to illegal immigration were merely band-aids on a growing sore in US immigration laws.   For example, Ronald Reagan’s “Amnesty Law of 1986” was supposed to be a great panacea and a compromise between conservatives and progressives.   This law, “was meant to tighten border security and crack down on employers hiring undocumented immigrants, while offering amnesty to those already in the country illegally. Three million immigrants were legalized, but the law did not slow illegal immigration or create a framework to deal with it going forward.” (National Legal Conference, Impacts and Consequences).  Because of its shortcomings, opponents of comprehensive reform have often cited the 1986 legislation as a reason to be concerned. Although many immigrants were legalized under the 1986 amnesty program, there was no framework for border control and certainly no way to stop growing prejudice and resentment against immigrants who were still not legalized.   Accordingly, developing a comprehensive policy that takes into account America’s laws while balancing the need for humane treatment that is not fueled by bigotry and hatred is extremely challenging in today’s political environment.   Therefore, analyzing the successes and failures of other governments may prove to be the best path forward to finding a more just and workable approach. 

Historically, Europe has had one of the best and unmatched immigration policies that give immigrants unparalleled freedoms to relocate between countries, widening the employment pools. For example, Mercosur, a trade bloc in South Africa, “allows people to live outside their home countries for  two years at a time, after which they must apply for permission to stay permanently. (American Immigration Council).   In a system like this one, immigrants looking for work would be able to expand search time longer and maybe expand searches into Canada. However, one of the biggest social and political hurdles is letting go of the war against “Illegality” and becoming aware of the solid economic advantages such a policy would create in the United States for labor and skilled workers.

 A path to a more comprehensive solution must include the softening of the hard line  “Zero Tolerance” stance that embraces racial profiling and inhumane deportation. A shift in civility will arguably positively impact immigrant communities and challenge prejudices. ​ A more humane approach has been promoted by politicians such as Bernie Sanders.   Sanders has claimed that “a political revolution that mobilizes millions of Americans inclusive of Latinos and immigrants will ensure that Congress acts on what the majority of Americans demand – comprehensive and humane immigration reform policies.”  (BernieSanders.com)  He proposes his policy will “…dismantle inhumane deportation programs and detention centers, ease the way for a swift and fair legislative roadmap to citizenship for the eleven million undocumented immigrants, ensure our border remains secure while respecting local communities, regulate the future flow of immigrants by modernizing the visa system and rewriting bad trade agreements, enhance access to justice and reverse the criminalization of immigrants, and establish parameters for independent oversight of key U.S. Department of Homeland Security (DHS) agencies.” (BernieSanders.com)

 It is hard to argue against the fact that the United States was founded by immigrants who understood that strength and growth comes from fair and humane immigration policies.  In today’s climate,  fear and prejudice lead how policies will be shaped and how immigrants from Mexico and Central America will be treated by our criminal justice system.  However, in order to be a country that leads the world, it is crucial that the United States develop fair and humane immigration policies that keep America safe while upholding basic human rights of dignity and fair justice.   The Statue of Liberty’s lamp light should be a beacon for all tired and huddled masses and not extinguished by hatred and policies born out of unsubstantiated claims. 

Appendixes & Bibliography

• National Legal Conference on Immigration and Refugee Policy Washington, D.C.), et al. Immigration and Refugee Policy : Proceedings of the 1983 Annual National Legal Conference on Immigration and Refugee Policy, April 21 and 22, 1983. 1st ed., Center for Migration Studies, 1984.
• National Legal Conference on Immigration and Refugee Policy Washington, D.C.), et al. Impacts and Consequences of Irca : Legalization, Social Services and Health, Irca’s Employer Sanctions Provisions, Legal Immigration Reform, Refugee’s Policy Issues : Proceedings of the 1989 Annual National Legal Conference on Immigration and Refugee Policy. 1st ed., Center for Migration Studies, 1990.
• National Legal Conference on Immigration and Refugee Policy Washington, D.C.), et al. Immigration Reform, Temporary Workers, Supreme Court, Private Sector, Legal Aspects of Detention and Sanctuary Movement, and Comparative Policies on Political Asylum in Europe and North America : Proceedings of the 1986 Annual National Legal Conference on Immigration and Refugee Policy. 1st ed., Center for Migration Studies, 1987.
• National Legal Conference on Immigration and Refugee Policy, and Lydio F Tomasi. Free Trade and Migration, Impact of Healthcare Reform on Undocumented Aliens and Migrant Farmworkers, Impact of the Immigration Act of 1990, Employer Sanctions and National Employment Card, Asylum Reform in Comparative Perspective, International Migration and Security : Proceedings of the 1994 Annual National Legal Conference on Immigration and Refugee Policy. 1st ed., Center for Migration Studies, 1995.
• Kerwin, Donald, et al. Immigration Policy, Law Enforcement and National Security. Center for Migration Studies of New York, 2003.
• Ewing, Walter, et al. “The Criminalization of Immigration in the United States.” American Immigration Council, 29 Nov. 2016, www.americanimmigrationcouncil.org/research/criminalization-immigration-united-states.
• Racial Profiling Lawsuit.  14 May, 2016
• www.npr.org 
• Marginalization and Criminalization of … Anna Kathryn Griffith , 31 Mar. 2018,
• www.oxy.edu/sites/default/files/assets/UEP/Comps/2011/Kathryn
• Griffith_Marginalization and Criminalization of Immigrants.pdf.
• Ortega Melendres, et al v Arpaio, et al
• www.aclu.com 31, September 2017