AALS NEW YORK—IMMIGRATION REFORM



Immigration Reform: Color-Blindness in U.S. Immigration Law -- The Maskingof Race and Class ImpactsThis panel is entitled “Interventions: The Possibilities & Limitations of Law.” My thesis is that immigration law provides color-blind, facially neutral proxies that often are employed by groups that, among other things, seek to target for immigration investigation, enforcement, and prosecution of persons of particular races and classes, in particular working class Latinos and Asians. I will focus on two examples of this phenomenon at work (1) the recent Arizona immigration law; and (2) comprehensive immigration reform.Arizona Immigration LawBackground “Comprehensive” immigration reform has been discussed in Congress for most of the 21st century. Debate over immigration continues across the United States, not just the West and llo report suspected undocumented immigrants to federal authorities, local emplloyees ncies in arizona,arge urban cities. Those who support increased immigration enforcement of many different types often claim that they are not anti-immigrant, anti-Mexican, or racist but simply anti-“illegal” immigrant. This is often buttressed with the common rebuke to any claim of justice for undocumented immigrants, “what part of illegal don’t you understand.” At the same time, Latinos have strenuously advocated for immigration reform. The reason is simple: Latinos are disparately affected directly and indirectly by immigration enforcement and, for similar reasons, the passage or failure of immigration reform.The Conventional WisdomImmigration law and enforcement generally speaking is the exclusive province of the federal government; state and local governments cannot regulate immigration. A famous example of a state impermissibly seeking to regulate immigration is Proposition 187 in California, which was struck down for intruding on the federal power to regulate immigration.Change in the Winds?Recent years have seen a rise in state and local efforts to regulate immigration. One reason is the changing national distribution of immigrants; new immigrant communities have emerged in parts of the United States, such as Arkansas, South Carolina, Iowa, Nebraska, and rural areas of the Midwest and South that had not previously seen large numbers of immigrants. This does not explain the recent immigration blow up in Arizona, but I think that it helps explain legal responses to immigrants in Oklahoma, Pennsylvania, New York, and Georgia. During the same basic time period, the nation has seen an increase in racism and hate crimes in some of these new destinations for Mexican immigrants.The Arizona Immigration LawAt least initially, both proponents and opponents of the Arizona law agree that it is the most enforcement-oriented state or local immigration measure out there. The Preamble to the law states that “The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens . . . . ” “Aliens” is a term of art borrowed from federal law that, in the context of the demographics of Arizona, is thinly veiled code for Mexican and Central American immigrants. Previous code used in state alien land laws, for example, was immigrants ineligible for citiznship, at a time when it was necessary to be white to be eligible for naturalization. The Arizona law specifically would make criminal the status of being undocumented. The most controversial aspect of the Arizona law is the requirement that local police must verify the immigration status of persons of whom they have a “reasonable suspicion” are undocumented. Many Latinos – about one-third of Arizona is Latino, including many U.S. citizens and legal immigrants -- have expressed fears of racial profiling by local police.The defenses to claims that the Arizona law is racially discriminatory and nativists are revealing of the role of color-blindness in the debate.The law is not racially discriminatory because racial profiling is against the law. That is not so.The Supreme Court has stated that “Mexican appearance” may be one of many factors justifying an immigration stop. Racial profiling has been a long time problem with the Border Patrol. It is a likely problem with state and local law enforcement officers, especially if not trained in immigration enforcement. Moreover, as a practical matter, state and local law enforcement in Arizona already are inundated with complaints of discrimination against Latinos and African Americans. See, e.g., Joe Arpaio; Chandler in 1990s. The Arizona law simply mirrors federal law. This also is not true.The Arizona law criminalizes conduct not criminalized by federal law; more importantly in my view, the law gives state and local governments enforcement authority over immigration laws. To the extent that parts of the Arizona law borrows from federal law, the state law builds on federal law that is replete with racial and class impacts resulting from generally facially neutral language.prehensive Immigration ReformGenerally, most comprehensive reform proposals include three componentsMore enforcement – Least controversial politically. Removals and border apprehensions fall squarely on Latinos. Many Mexican citizens have died along U.S./Mexico border due to increased enforcement efforts. Race neutrality has contributed to segmented labor markets with a racial caste quality.Guest worker program and/or other provisions addressing U.S. labor needs. 60 percent of the undocumented population is of Mexican origin.Path to Legalization/Amnesty—Most controversial politically. Not coincidentally, legalization would benefit many Latinos.Series of Events relating to comprehensive immigration reform12/2005 – Sensenbrenner Bill led to mass marches in spring 2006A more moderate comprehensive immigration reform bill in the Senate failed in 2006. In 2008, President Obama was elected. Some immigrant rights advocates expressed optimism. Senator Obama had supported driver’s licenses for the undocumented and the DREAM Act. These are important issues to many Latinos because of the impact on Latinos. However, President Obama appointed Janet Napolitano, the former Governor of Arizona, to head the U.S. Department of Homeland Security; she has focused on enforcement, with the promise of future positive improvements for immigrants through immigration reform. As mentioned previously, disparate negative impacts on Latinos – deaths on the border, increases in human trafficking, racial profiling, etc. The latest enforcement move was to send more than a thousand National Guard to the U.S./Mexico border.Two proposals currently are on the table in the U.S. Congress, one in the House and one in the Senate.Claim of color-blindness are employed in attempts to hide the impacts of comprehensive immigration reform, as well as its failure, on communities of color. The same is true with respect to the Arizona law.Conclusion – Color-blindness is an effective tool for restrictionists and others seeking to limit immigration from Mexico, as well as Latin America generally and Asia and Africa. Immigration reform is important to many U.S. citizens who are of Latino descent. Immigration is viewed by many Latinos and U.S. citizens as a civil rights issue, touching deeply on race and class. Color-blind approach to facially neutral U.S. immigration lawsProvide plausible deniability to claims of racism. Both for defenders of Arizona law and opponents of comprehensive immigration reform.While allowing racially disparate impacts to continue and to pursue discriminatory ends.3.Solutions? ................
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