Illegality and Immigration – Comprehensive Study Notes

Perceptions of Legality vs. Reality

• Most citizens imagine a sharp line between “legal” and “illegal,” yet the lived experience of undocumented immigrants is located in a vast gray zone.

• $\approx 11\text{ million}$ undocumented people reside in the United States; $86\%$ have lived in the country for more than $7$ years (only $14\%$ arrived after $01/01/2005$).

• Jose Antonio Vargas: “Everyday life … means a constant search for loopholes and back doors.”

• Undocumented status is socially imposed: how authorities perceive a person literally “brings it into being.”

• Racialization: Mexicans = $58\%$ of the undocumented but $70\%$ of deportees – “being Mexican makes you more undocumented.”

Historical Policy Landmarks & Their Arbitrary Cut-Offs

1986 Immigration Reform and Control Act (IRCA)

• Offered amnesty but only to those present continuously since $01/01/1982$.

• Central Americans arriving post-1982 excluded; of $500{,}000\text{–}850{,}000$ Salvadorans, only $146{,}000$ qualified.

1990: Two Divergent Pathways

• American Baptist Churches v. Thornburgh (ABC) reopened asylum claims for Salvadorans & Guatemalans → agonizingly slow; applicants renewed work permits every $18$ months.

• Immigration Act of 1990 (IMMACT) invented Temporary Protected Status (TPS) for war- or disaster-torn countries.

  • Salvadorans granted TPS; Guatemalans excluded despite similar civil war.

TPS Timeline

• Extended repeatedly, ended $1995$ with Salvadoran peace accord.

  • $\approx1{,}000{,}000$ Salvadorans in U.S.; $90{,}000\text{–}190{,}000$ held TPS (many of original $200{,}000$ applications lapsed during renewals).

• New TPS waves: Salvadorans $2001$, Haitians $2011$ – always temporary & revocable.

1997 NACARA (Nicaraguan Adjustment & Central American Relief Act)

• Aimed to clear asylum backlog; privileged Cubans & Nicaraguans, kept many Salvadorans/Guatemalans in limbo.

• $\approx300{,}000$ Central American cases estimated to take “$\le 20\text{ years}$” to finish (INS, $2001$).

• Asylum approval rates $1999\text{–}2003$: Salvadorans/Guatemalans $7\%\text{–}11\%$ vs. other nationalities $33\%\text{–}44\%$.

Deferred Action for Childhood Arrivals (DACA, $2012$)

• Two-year reprieve + work permit for eligible youth; no promise beyond that.

“Permanent Temporariness” / “Liminal Legality”

• Endless cycles of applications, renewals, fees, fingerprints → anxiety & a booming cottage industry of notaries/document-preparers.

• Deadlines become crises; some families have lived in this state >20 years.

• Ethical tension: forced to break work laws yet striving to appear “law-abiding” (e.g., acquiring ITINs, paying taxes, showing up in traffic court).

The Maze of Social Services

• Patchwork of eligibility: even lawful permanent residents stripped of benefits since $1996$ welfare reforms.

• Mixed-status families = different rules for each member.

• Examples:

  • Pregnant women eligible for WIC but not SNAP.

  • Undocumented kids: public K-12 & Head Start = yes; public college aid = state-dependent.

  • Affordable Care Act: explicitly bars undocumented, yet hospitals must treat emergencies.

• Result: undocumented generally cost the public less; fiscal deficits tied to low education/income, not service use (Center for Immigration Studies).

The Underground Document Economy

Social Security Numbers (SSNs)

• First item sought: counterfeit SSN ($\approx\$100\text{–}\$300$).

• Post E-Verify → higher demand for numbers matching a real name.

• Sources: friends, deceased persons, black-market identities from Puerto Rico (prompting $2010$ island-wide re-issuance of birth certificates).

• Distinction:

  • Using false SSN → wages go to IRS “Earnings Suspense File,” no harm to owner.

  • Identity theft → exploiting accounts/credit of victim (felony).

• Obama-era DACA guidance: false SSN use not disqualifying.

Marrying for Papers

• Spectrum from legitimate love to pure business transaction.

• Only explicitly illegal when marriage is arranged solely for immigration benefit & evidence shows fraud; ICE prosecutes.

Driver’s Licenses & REAL ID

• Pre-9/11: most states issued licenses regardless of status.

• REAL ID Act $2005$: national standards; proof of lawful presence required; transforms license into de-facto national ID.

• Work-arounds:

  • Black-market licenses.

  • State innovations: Utah “driver privilege card” ($2005$); NM & WA still license undocumented → “residency tourism.”

  • Some states let foreign licenses suffice temporarily.

• Legislative blind spots: e.g., Texas $2007$ law ignored TPS & asylum-pending categories → many legally present workers denied licenses.

• Enforcement discrepancies: fine vs. impound vs. jail/deportation; $2010$ estimate: $4.5\text{ million}$ undocumented drivers, $\approx30{,}000$ deported for routine traffic stops.

Defining Illegality in Law

• Criminal acts

  1. Entry without inspection → misdemeanor, $\le6$ months prison.

  2. Re-entry after deportation → felony, $\le2$ years prison.

• Civil violation: simply being present unlawfully → addressed by removal, not criminal court.

• Government prefers civil route: lower evidentiary burden; criminal standards costly.

• Options upon apprehension:

  • Voluntary departure/return (commonly at border) – no formal order; easier future legal entry.

  • Formal removal – requires judge; creates $10$-year bar; re-entry becomes felony.

Trends $2006\text{–}2011$

• Voluntary departures fell from >1{,}000{,}000/\text{yr} to $323{,}000$.

• Removals rose to $\approx400{,}000/\text{yr}$.

• Border Patrol grew: $9{,}000$ agents ($2001$) → $21{,}000$ ($2012$); CBP budget doubled $\$6 \text{B} → \$11 \text{B}$ ($2004\text{–}2009$).

• Interior enforcement surged under Obama; share of deportees with >1 year U.S. residence climbed from $5\%$ ($\le2005$) to $\approx50\%$ ($2011$).

Operation Streamline (launched $2005$)

• Shifts border crossers into criminal court → mass guilty pleas, “time served,” then ICE civil removal.

• By $2012$: all border sectors participating; $\approx55{,}000$ prosecutions/yr; $\$5.5 \text{B}$ spent on private prison contracts since launch.

• Judge Sam Sparks: costs “mind-boggling … neither meritorious nor reasonable.”

Detention: Scale & Rights Vacuum

• Detention beds: <6{,}300 ($1996$) → $33,400$ capacity ($2011$).

• DHS detained $363,000$ immigrants in $2010$ across >250 facilities.

• ICE detention budget: $\$864 \text{M}$ ($2005$) → >\$2 \text{B} ($2012$).

• Average stay $10$ months; some cases $\le4$ years.

• Rights gaps:

  • No public defender; $84\%$ unrepresented.

  • Limited/no bail.

  • Many accept voluntary departure to escape prolonged limbo.

Criminal + Immigration (“Crimmigration”)

• >96\% of federal defendants pled guilty ($2011$) – plea bargains often oblivious to deportation triggers.

• Green-card holders also deportable post-conviction, even retroactively for offenses later re-classified as “aggravated felonies.”

• Over-worked public defenders seldom consult immigration experts.

Quotas & Secure Communities

• ICE internal memo (Feb $2010$) set goal $400,000$ removals/yr; urged surge of non-criminal arrests to hit numbers.

• Secure Communities (rolled out nationwide $2008\text{–}2013$): automatic fingerprint sharing.

  • $83\%$ of arrestees transferred to ICE detention; $93\%$ Latino.

  • Only $\approx50\%$ had non-traffic criminal convictions.

  • $226,694$ immigrants funneled to ICE by late $2011$.

Detention, Inc. – Private-Prison Incentives

• Industry held $\approx50\%$ of ICE detainees by $2010s$ (vs. $25\%$ in $2000$).

• Corrections Corporation of America (CCA) to shareholders: decriminalization of drugs/immigration = threat to profits.

• $2011$: U.S. prison system employees $800{,}000$; cost $\$74 \text{B}$/yr.

Political & Cultural Payoffs of Illegality

• Employers gain cheap, compliant labor; consumers enjoy lower prices; Social Security gains $\$\text{billions}$ from payroll taxes never claimed.

• Politicians/media exploit the “Latino Threat Narrative” (Leo Chavez): portray Mexicans/Latinos as invaders, non-assimilators, security risk → deflect public anxiety over inequality, recession, and eroding services.

• Anti-immigrant rhetoric = votes/ratings; sustains punitive policy cycle.

Everyday Consequences & Coping

• “Veneer of ordinary life undergirded by permanent uncertainty.” (film El Norte anecdote)

• Strategy = survive day-to-day; policies appear irrational (“Don’t try to understand the gringos … it will drive you crazy”).

• Undocumented immigrants juggle: work, taxes, schooling kids, medical emergencies, traffic laws, document renewals, constant fear of detention/deportation.