United States: Increased criminalizing of undocumented migration after 9/11

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by Robyn M. Rodriguez

In 2006, international media attention focused on the May 1st mobilizations of immigrants, as well as their supporters, in the streets of major U.S. cities, including New York, Chicago and Los Angeles. The protests were amongst the largest in U.S. history, dwarfing recent mobilizations against the war in Iraq and rivaling the civil rights mobilizations of the 1960s. The protesters were reacting specifically to the successful passage, by the U.S. House of Representatives, of H.R. 4437, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of December 2005.

HR 4437: Controlling immigration from within and outside

Some of the key provisions of H.R. 4437 included the intensive militarization of the U.S.-Mexican border and the expansion of technologies for policing immigrants already living, working, and in many cases, settled in the United States. One of the most problematic provisions of the bill, from the perspective of most self-organized immigrants and their supporters, was the criminalization of undocumented immigrants. This portion of the bill stipulated that immigrants found to be without documentation, would be charged as having committed a criminal offense. In such cases, the undocumented immigrant would either have to serve a jail sentence of one year or more or pay a fine before being deported.

Moreover, deported immigrants would most likely be barred from ever entering the United States again. This bill also sanctioned local authorities to carry out immigration enforcement; a task, that in the United States, is supposed to be primarily in the hands of the federal or national government. Yet another problematic provision of the bill was that it also seeked to criminalize individuals or organizations who provide help, support, or advocate on behalf of undocumented immigrants. Fortunately, H.R. 4437 never became law.

H.R. 4437, along with the protests against it, placed the topic of undocumented immigration highly on the political agenda; thus compelling other U.S. law-makers to introduce their own proposals for immigration policy reform. In the U.S. Senate, a bill was introduced that proposed different routes by which undocumented immigrants could legalize their status. Moreover, it recommended a temporary worker program, which favoured making it easier for immigrants to legally enter the U.S. to work, albeit on a temporary basis.

Self-organized immigrant groups and their advocates, while enthusiastic about the prospect of legalization, worried that the proposed pathways were not comprehensive enough. Indeed, they would have created a hierarchy amongst undocumented immigrants, as under the bill those who had lived in the U.S. for a longer period of time would have been more eligible for legalization than those living in the U.S. for a shorter period of time. Also, immigrants and their advocates were wary of the temporary work program, as it may not have guaranteed workers their full employment rights. The Senate’s proposal also failed to become law.

Why did both proposals not become law? According to U.S. policy procedures, until both the House of Representatives and the Senate can compromise on a single legislation, no immigration reform is possible. Indeed, it appears that no agreement will be made in the very near future; rather, it is likely that debates around immigration reform will continue to rage until the next major national election.

Impacts of 9/11 on undocumented immigrants

Though no new immigration reforms have yet been passed, the fact is, immigration legislation passed in the wake of the 9/11 attacks on the World Trade Center in New York continue to have profound impacts on the everyday lives of immigrants. Almost immediately after the bombings, the U.S. government introduced laws which increased restrictions on foreigners attempting to enter the country. Additionally, further laws aimed to increase the enforcement of immigration policy against those immigrants (legal and undocumented) already residing in the United States. Amongst the most significant is the USA Patriot Act which was signed just weeks after 9/11 on October 26, 2001. The act enhances the surveillance of immigrants living in the United States and expands the processes by which even legal immigrants can be rendered “illegal” and, therefore, deportable. Immigrants who are merely suspected of being linked to terrorist activities or designated terrorist organizations can be expelled from the United States; they are also denied any chance to call for judicial review.

Almost one year later, the Homeland Security Act was passed on November 25, 2002 which led to the dismantling of the Immigration and Naturalization Service (INS) and the establishment, instead, of the Department of Homeland Security (DHS). The DHS focuses significantly on immigration policing and enforcement, both at borders and in the interior. Furthermore, the Homeland Security Act has enhanced cooperation between local police units and federal agencies, thereby extending immigration enforcement even further.

You can never feel secure: Fearing deportation

A key impact of this post-9/11 immigration regime is increasing deportation (or other forms of expulsion), as well as the generalized threat of deportability. All immigrants, regardless of their legal status and their ethnic, racial or religious background, have become increasingly insecure about whether they can continue to live the lives they have built for themselves and their families. All immigrants face new conditions of insecurity.

For instance, immigrants residing in Jersey City, New Jersey, which lies just across the river from the World Trade Center site, have started calling their city “Terror City” to describe the widespread fear of deportation and detention many community members feel as a consequence of the government’s local anti-terror campaigns. According to one report, immediately after the 9/11 attacks, military helicopters hovered over Jersey City’s Journal Square, as FBI agents forced their way into an apartment building close by to arrest Muslim immigrant men living there. While the government admits that most of the immigrants arrested in the anti-terror sweeps that occurred in the New York and New Jersey area in the immediate wake of the attacks, do not have links to terrorist groups, the detention and deportation of immigrants has persisted. In the years since 2001, immigrants of all backgrounds living in Jersey City continue to fear that their lives will be destroyed by homeland security policies.

Raids on immigrants’ residences, like those in Jersey City, are becoming increasingly commonplace throughout the state of New Jersey, and indeed, throughout the country. At the end of the 2005 fiscal year alone, the New Jersey office of the Department of Homeland Security’s Immigration and Customs Enforcement (ICE), reported that it had successfully arrested and deported over five thousand immigrants over the course of the year. Indeed, local newspapers frequently feature articles about local raids being conducted by the ICE’s Fugitive Operations teams, whose objective is to track down out-of-status and undocumented immigrants. In Middlesex County, New Jersey, for instance, pre-dawn raids in May 2006 led to the arrest of 32 undocumented Indonesian immigrants in Woodbridge, Edison and Metuchen. An additional 12 Indonesian immigrants were given notices to appear before immigration judges because they were unable to provide ICE agents with adequate proof of legal residence.

Criminalization becomes reality

As the Department of Homeland Security’s (DHS) immigration enforcement has also increased within the interior of the U.S., its detention facilities have become overpopulated. Consequently, since 2001, the DHS has increasingly had to contract out the detention of immigrants to county jails. Notably, organizers of the New Jersey Civil Rights Defense Committee (NJCRDC), who work directly with immigrant detainees in New Jersey county jails, have learned that many immigrants were placed in detention after encountering local, not federal, enforcement agencies (i.e. during routine traffic stops, etc.). The detainment of immigrant detainees within the same facilities as criminals, is evidence of the criminalization of immigrants more broadly. In letters written by detainees to NJCRDC activists, immigrants describe their treatment at the hands of prison wardens.

A Cuban detainee describes how, “All ten men…commenced to hit me, slapping me in the face, pulling me by the beard, punching and kicking me, then finally the [police] dog was unleashed and clamped down on my left forearm for what seemed an eternity.” (Correspondence between Rosendo Lewis and NJ Civil Rights Defense Committee, page 20). Lawyer Bryan Lonegan, who has assisted the NJCRDC, notes that legal distinctions between immigrants and the jails’ regular inmates should be maintained.  He states that:
“One is in detention for criminal reasons: when someone commits a crime, they plead guilty, they’re sentenced. That’s punishment. But when immigration takes them into custody, their current detention is not a punishment, their current detention is not a sentence; they’re being held so the United States government knows where they are”. (read more)

While detention and deportation have long been areas of concern for German and European human rights organizations, they are rather new for those in the United States. Moreover, national immigrant rights organizations have been less vocal about this matter than other sets of issues.

Anti-immigrant policy on the municipal level

The failure of national immigration policy reform has emboldened local government officials to introduce stringent anti-immigrant policies at the municipal level. These local ordinances draw on some of the provisions of post-9/11 immigration legislation, in particular, they take advantage of mechanisms that allow local police to participate in immigration enforcement. In Morristown, New Jersey, for instance, Mayor Donald Creitello has openly called for “vigilant enforcement” of immigration law within Morristown and has pledged to include federal authorities in his plans. Though initially cast as an attempt to enforce the town’s laws against overcrowding in rental properties, as well as an effort to organize the procurement of day laborers away from the town’s train station, Creitello has since been more explicit about his aims to crackdown on undocumented immigrants living in the community.

Meanwhile, throughout the state of New Jersey, chapters of the New Jersey Citizens for Immigration Control have been forming. The group aims not only to support anti-immigration federal legislators and legislation, but also to limit state and local benefits for immigrants. Their website declares:

The Migration Policy Institute reports that it costs New Jersey taxpayers about $400 million annually to support illegals with public benefits! Help us fight free hospital care, disability, and other benefits for illegals. We also oppose legislative proposals to give them favorable in-state college tuition and driving ‘privileges.

Fighting back: First achievements…

In spite of the sets of challenges immigrants face in their everyday lives, they have persisted in collectively mobilizing to fight for their rights. Since the May Day rallies of 2006, immigrants in the U.S. have participated in additional mobilizations. More importantly, immigrants are building new kinds of linkages across ethnic, racial, and religious boundaries.

In New Jersey, for example, immigrants are attempting to build a so-called Rapid Response Network to directly respond to immigration raids. The idea is that immigrants being threatened by authorities will call on their neighbors and friends to support them by forming a physical barrier between them and the authorities. As the convergence of community members puts the authorities under incredible public scrutiny, it is hoped that this kind of grassroot-pressure will deter immigration authorities from conducting mass arrests.

Other immigrant activists have been struggling to get their municipalities to pledge to refuse to cooperate with federal immigration authorities in matters of immigration enforcement within municipal borders, thus creating immigrant “safe-havens”. Throughout the state of New Jersey immigrants have been successful in creating “havens” for themselves, even as some cities have attempted to exclude them. As the next major national election in the United States rapidly approaches, and as immigration reform continues to be debated by the American public, immigrants are vigilantly monitoring political developments and have revitalized organizations to represent their rights and interests.


Robyn M. Rodriguez is Assistant Professor in Sociology at Rutgers University in the United States. Besides her research on global labour migrations, she conducted a study on the impact of 9/11 on immigrant communities in New Jersey.