Handling Immigration Matters "With Discretion"

Being an undocumented immigrant in America (or "looking like one") carries scores of dangers to which most folks in the US are blissfully immune.

Among these threats might be simply getting to the US, from arriving at the border to traversing it (be that through deadly deserts, where enforcement decisions have knowingly forced crossings to take place, or via the wicked ruses of human traffickers); I think occasionally about how Leo turned his ankle early in the trek but thanks to dumb luck, the machismo of a boy in his early 20s, and a painkiller from a Panamanian also making the walk, he continued on for several days -- all of the way to Texas -- before it became so maddeningly inflamed that he couldn't stand up any longer.

Once they arrive, undocumented immigrants work the most dangerous jobs (often made more so by employers who treat them as disposable or force them to work as subcontractors to avoid responsibility). Leo's boss was marginally more responsible but no less of an asshole; he refused to pay workers' compensation for the Brazilians in his company but made them buy their own.

They are vulnerable to the environmental hazards rampant in poorer communities and communities of color as well as on the job. And it's a good thing that immigrants tend to arrive in the US in better health than the average American because the medical care they receive (when they can get it) runs the gamut from outright inhumane to appallingly sub-standard and exploitative. (For instance, one of the few occasions that Leo saw any sort of medical professional in the US was when he went to the dentist to get a tooth fixed. After the dentist did half of the job -- filling the tooth but not shaping it to fit in Leo's mouth -- he demanded a few thousand dollars to finish the work. One of Leo's molars now looks more like a little ceramic table than a tooth.) The subsequent decline in immigrant health should be no surprise, especially when coupled with other risk factors responsible for the shameful disparities in the American health system.

Undocumented immigrants also don't enjoy the protection of police against crime and domestic abuse and are regularly the targets opportunists preying on their vulnerability and fear of going to the cops (like a handful of documented Brazilians who offered to "help" Leo right after his arrival).

Hate crimes are also not uncommon and are on the rise. The story of David Ritcheson, a 16-year-old Latino from Texas, should scare the shit straight out of you: in 2006, he was "attacked by racist skinheads at a house party after supposedly trying to kiss a white girl."

Read that again: after supposedly trying to kiss a white girl. That must be among one of the most infamous phrases to echo across the sordid history of race in America.

What followed for David was a lynching; he may have valiantly survived the attack ("the two attackers burn Ritcheson with cigarettes, kick him with steel-toed boots, attempt to carve a swastika into his chest, pour bleach on him and finally violently sodomize him with a patio umbrella pole") and physical recovery ("It takes 30 surgeries before Ritcheson, confined to a wheelchair and wearing a colostomy bag, is able to return to school"), but it was nothing short of a lynching in the end; the attack left other fatal injuries ("Less than three months [after Congressional testimony on the attack], the teenager commits suicide, jumping from a cruise ship into the Gulf of Mexico").

Thank God the violence against undocumented immigrants (and by extension, those who share a language, heritage, skin color, etc...) doesn't usually reach such a vicious and deplorable pitch, but the rhetoric absolutely does.

Besides, one should never underestimate the slow, continuous drip of "was it or wasn't it?" -isms, which poisons rather than inoculates.

Leo and I were familiar with the compounding stresses of being overworked, under appreciated, and "you don't have documents, so what are you going to do about it?" Rather, Leo was familiar with them; I wanted more than anything to lighten the load, knowing full well that every time I tried, I was drawing attention to a "border" running through our marriage that neither of us could cross.

But in the end, we (he) escaped the many much bigger dangers. We were lucky.

And yet for all of the terrible things that can (and absolutely do) happen to undocumented immigrants as they are forced to eke out a living on the margins, the thing that seemed to terrify most people I knew was not crime, labor violations, exposure to toxins in the environment, poor medical care (or a lack of medical care), or any of the many other hazards implicit in the undocumented "lifestyle."

What I saw was a tendency to endure all of these dangers quietly because there was one thing that scared folks even more: deportation.

And that's why cars are the most dangerous places for immigrants in America.

For undocumented immigrants, getting pulled over (and harassed for driving without a license) is simultaneously routine and potentially life-changing (or -threatening). Everyone drives because essentially all of the jobs that undocumented immigrants do – from house cleaning to construction to house painting and gardening – require that they drive from job site to job site. At least in Massachusetts, immigrants can buy insurance (indeed they are required to do so) and register their cars, but they are not legally allowed to drive because they can’t get a US license (which isn’t to say that they don’t have licenses issued by jurisdiction within their countries of origin).

But for undocumented immigrants, a simple traffic stop can be the beginning of a family frayed, the beginning of a long journey thousands of miles away.

When we lived in the US, if Leo was in a car (which he was Monday through Friday, driving hundreds of miles between job sites in any one of the 4 different states where his company had contracts), I would have a feeling in my gut like I'd swallowed a molten pebble.

I still have "flashbacks" if I know he's on the road. This is stupid, of course. We've got documents here in Canada, and he even has a British Columbia license, yet just the thought of him behind the wheel still send volts of anxiety coursing through me. When I'm making dinner and waiting for him to get home, I develop a fascination with the clock over the stove, trying to imagine his commute. Weirder still, it now extends to when I'm sitting in the passenger's seat and he's driving; I count cop cars the whole way, bark at him the moment the speedometer inches over 50 kph, and generally micromanage everything about his totally unremarkable driving habits. I also did whatever I could to keep him out of our car for the first 4 or 5 months after he arrived. It annoys him to no end, but I can't shake the fear.

I've written about this before in relation to 287(g)s here and here, and I've written about how an overzealous cop almost derailed our bid for a life anywhere in North America here, here, here, here, and here. And this is finally a topic that is getting attention in mainstream news sources, largely thanks to the Secure Communities program, which is doing its damnedest to protect America from the scourge of broken blinkers and rusted-out mufflers -- anything to make a stop, arrest, and eventual deportation for "driving while immigrant."

I've seen local PDs end more dreams of a better life than I care to recount. It almost ended ours. But let's get one thing straight:

Secure Communities -- awful and idiotic though it is -- should not shoulder the blame for skyrocketing deportations . It's a program that has failed to hit its intended target and that has left massive collateral damage in its wake, but the real culprit here is a whole system running on bad compromises, salvaged junk policy, and sheer malice.

For instance, before Secure Communities came to Massachusetts, there were (and still are in some spots) the 287(g) MOAs. As far as I'm concerned, using 287(g)s to deport non-criminals is absolutely no different than using Secure Communities to deport non-criminals. The only difference is that Secure Communities provides less opportunity for officer and department discretion. It has been getting a lot more attention simply because of forced compliance.

Politicians can make a stink about Secure Communities, but it's all a lot of bark and bluster without systemic readjustments. In the mean time, with or without the program, "driving while immigrant" is like being a beetle on the floor at a tap-dance recital; if you don't get squished by this heel, you'll be crushed by that toe, and either way, you're are at the mercy of something much bigger and stronger -- and that rarely bothers to look where its stepping.

In the absence of real reform on the horizon-- or even an effort to scrap the bad programs for better ones -- there's been a move toward "discretion."

Now, I'm delighted that there's an attempt underway to put a little give in the system. This is a hell of a lot better, certainly, than "Operation Endgame," which was ICE's 2003 to 2012 operating plan. They explain their "endgame" thus: "as the title implies, DRO provides the endgame to immigration enforcement, and that is the removal of all removable aliens. This is also the essence of our mission statement and the 'golden measure' of success... We must strive for 100% removal rate."

Ok, "Endgame?" I can think of one of two responses: 1) they were disappointed to see that "Final Solution" was already taken (yeah, I made a Hitler reference. Sorry Jon Stewart. I'm not saying ICE is the SS -- even though I don't think that dehumanization comes on a sliding scale; what I am saying is rather that ICE is moving into dangerous territory with frightening nonchalance); and 2) that this dangerous territory is proof positive that "ICE" (as if we needed further proof after their little foray into acronyms) suffers a collective disillusion of operating in an action flick rather than the real world.

(Note: please see the comments section for an important intervention from a reader, -k-, who expressed disappointment with the Nazi parallels drawn in the above paragraph; in response to those concerns, I tried to more satisfactorily explain in the comments section why I made the choice to include that sentence. I do appreciate being held accountable -- civilly -- for what I write, so thank you, -k-!)

So compared to directives such as that, I suppose that the Morton memo and other recent moves toward case-by-case evaluation of deportation is a somewhat positive development, but it's far from a cause for celebration:

"Discretion" has never offered much solace. More often than not, I've seen discretion operate more like impunity; I know folks whose American Dreams were ended by encounters with enterprising officers whose cell phones had ICE on speed dial. So forgive me if I don't feel all that much better about prosecutors (maybe) also being given a bit more "professional" leeway (not to actually grant status, mind you, but to decide not to pursue a deportation). They're not saying that "Fulano" can stay; they're saying that if they feel like it, they'll busy themselves with other "priorities" for now.

The system up until now might have been a one-way ticket to a one-way ticket in a large majority of cases, but at least that ticket wasn't written by a prosecutor's indigestion, childhood drama involving a kid named Diego, or general dislike of Mondays. I'm not saying that these folks aren't professionals, but I am saying that they're human even on their good days.

Moreover, if we could find perfect saints or sinners on this funny little chunk of rock and water, I would bet that about 6 of 6,000,000,000 would qualify. The rest of us reside somewhere in the middle, having committed a hodgepodge of countless heroic, hateful, and utterly unremarkable acts over the course of our lives. Who should be Saint Peter and have the "discretion" to decide how those moments shake out in immigration proceedings? Among the "low-priority" deportations, who will be selected to lose everything and who will be selected to wait on pins and needles -- safe for now?

Yes, ICE has promised "details to follow" so that prosecutors will be able to maintain a measure of legitimacy, but mark my words: discretion will not result in fairness, even as it creates a lifeline where none previously existed. That's because "low-priority" will never mean "immune from deportation." At last count, more than half of the 400,000 estimated deportations in 2010 were from this "low-priority" segment (as were a whopping 79% of Secure Communities deportations). Failing to protect DREAMers and take (baby) steps toward immigration reform would be fatal to support for Obama among the Latino voters who elected him, but he also doesn't have the political capital to halt all "low-priority deportations," dropping the total to pre-9/11 levels.

So someone will lose and will lose everything, and since legal representation isn't a right for immigration cases, I would guess that it will be the already most marginalized who get deported -- whether or not they have a strong case. The ones most unable to fight for relief will be the ones that most need it.

The ones who might get a (temporary?) reprieve will be the DREAMers and potentially those of us in mixed-status households -- the ones most able to fight the system through petitions, assistance from elected officials, legal help, media attention, and the like. Now, I am in awe of the movement that the DREAMers have built; these are truly exceptional young folks whose American identity should be backed by documentation. I'm also quite partial to those of us who live(d) in mixed-status limbo. But even I don't want to say who among us does and does not "deserve" a little more breathing room.

We shouldn't fight injustice with unfairness. The discretion that might allow one person to reach their dreams can be applied just as easily to make someone else's life into a complete nightmare.

Do I think that DREAMers should be given documents? Absolutely. But I also believe that documents should go to the kid who dropped out of high school at 16 because he/she knew that his/her American dream as an undocumented youth would cap out pretty quickly. Do I want my friends and fellow bloggers in mixed-status relationships to be able to live free from fear in the country where most of them met, married, and started a family? Without a doubt. (That one would extend to us as well.) But I also want it for my undocumented friends who still play important roles in their American communities without an American-born spouse.

More discretion at the expense of comprehensive reforms makes a piecemeal system even more so -- and adds to the perceived mystique of the process -- instead of constructing a functional system with opportunities to adjust status for those already there; mechanisms allowing for immigration from diverse economic backgrounds for those who would like to go; a legal process that is clear, accessible, and equitable throughout; and discretion in only the most difficult of cases (it should not be among the primary methods of deciding who can stay "for now" -- and with an actually working system, it wouldn't be).

And it turns out that immigrants would rather not risk life and limb to get to the US and work there if they don't have to; when opportunities are found "closer to home," they're willing to "go back" or stay put. So it seems like if Americans are really serious about "keeping immigrants out," increasing educational and economic opportunities in Latin America (or just taking a break from actively undermining Latin American economies and governance) is a pretty effective method.

(But for an aging US population unable to pay its own entitlements and very much in need of immigrant tax dollars, it might be the end of an America to which anyone would want to immigrate.)