The “Poli-Migra”

What Do We Know “About” the Current Immigration Regime?

First, I would like to call attention to the multilayered enforcement regime we have today, by which I mean the federal, state, and local level laws and ordinances and the various enforcement strategies, acting all at once and often in highly articulated fashion (see Møller, in press), exacerbating the effects of each layer on the everyday lives of immigrants. Historically, the U.S. Congress left states and localities the task of controlling their own immigration (Klebaner, 1958). However, with the Immigration Act of 1891 the federal government assumed control of inspecting and admitting immigrants, but also barred certain classes of inadmissible individuals (U.S. Citizenship and Immigration Services [USCIS], n.d.). The 1891 Act created the Office of the Superintendent of Immigration, which was located within the Treasury Department, to oversee the enforcement of increasingly complex laws. This office was moved to the then Department of Commerce and Labor in 1903 and then to the Department of Labor in 1913, as its primary responsibility was to protect U.S. workers and wages. The office evolved, grew, and was moved from the Department of Labor to the Department of Justice in 1940, when the threat of war brought concerns about immigration in connection to national security. This office has continued to evolve and has been moved over the years. Since 2003 it has been located in the Department of Homeland Security and it comprises three bureaus (Customs and Border Patrol [CBP], Immigration and Customs Enforcement [ICE], and USCIS). Its location today reflects new concerns that once again link immigration and national security. Through all these changes and shifts in location within the federal government—moves that have reflected the particular concerns of the specific historical moment—the federal office in charge of immigration has remained under the control of Congress to exert control of immigration policy—determining the number of arrivals, who can come in, and creating policies to guarantee the enforcement of federal law.

However, recently, since the early 2000, states have increasingly attempted to create their own legislation to address issues arising from increased immigration to their locales (see, e.g., Armenta, 2012; Leitner, 2012; Sabia, 2010; Singer, Wilson, & DeRenzis, 2009; Steil & Ridgley, 2012; Stewart, 2012). ² Thus, geographers who use the lens of scales in their analysis of geopolitical power have called attention to this “devolution of federal powers” in immigration law (Coleman & Kocher, 2011) or the “devolution of personhood” (Varsanyi, 2008b), with varying degrees by region of the country (Coleman, 2012) and attention to enforcement practices (Coleman, 2007), through which states have designed their own immigrant policy (Varsanyi, 2008a). ³ It has been well documented that this intense legislative activity has generated thousands of bills and laws. Thus, for example, according to the National Conference on State Legislatures, while in 2005 state legislators throughout the country introduced 300 bills and enacted 38 immigration-related laws, by 2007 the numbers had increased to a staggering 1,562 bills and 240 laws, and as of 2009 state legislators had enacted 222 laws and adopted 132 resolutions in 48 states. ⁴ In the period between May 2006 and September 2007 alone, 131 cities and counties in 30 states considered legislation targeting undocumented immigrants (Esbenshade & Obzurt, 2008). These numbers decreased in the latter years of the 2000s, but seem to be on the rise again in the face of perceived inaction on the part of Congress to pass comprehensive immigration reform. ⁵ However, as Møller (in press) argues, such legislative activity is not simply a response to perceived inaction on the part of the federal government to deal with undocumented immigration as the federal government already has significantly intensified its own enforcement strategies through beefing up border and interior enforcement.

These pieces of state-level legislation are not uniform in terms of intensity and/or reach across the various locales (Decker, Lewis, Provine, & Varsanyi, 2009; Steil & Ridgley, 2012), as regional racial demographics intersect differently with new national anxieties with varying effects in the localities in which they are enacted (see Winders, 2007; and also Møller, in press; Rodriguez, 2008). But as Esbenshade and Obzurt (2008) observe, such laws and ordinances, with a focus on imposing harsh sanctions that target undocumented immigrants, contribute to blur the lines among the different overlapping populations of Latinos. Therefore, such legislation is likely to create conditions for discrimination against Latinos in general, which has led to a general concern with current immigration legislation and enforcement among Latinos in particular (but it also has created divisions) (see Lopez, Morin, & Taylor, 2010).

The flurry of laws that counties and cities have proposed and enacted range from the mislabeled “sanctuary” policies to those designed to exclude (Walker & Leitner, 2011) to presumably eliminate the magnet that attracts (undocumented) immigrants and to make these contexts so inhospitable that these immigrants will self-deport. Local-level legislation therefore has sometimes countered the impact of federal-level policies, but at times it has exacerbated its negative effects (see Wells, 2004). Thus, there have been state-level laws that have facilitated access to social services (Marrow, 2012), to drivers’ licenses (for instance, in California, Illinois, and Washington, DC), to in-state tuition for college students (15 states now offer it), such as AB 540 in California (Abrego, 2008) and even financial aid for these students (Murphy, 2013). A pattern seems to appear in the passing of these laws: inclusionary laws were passed earlier, in the 1980s, 1990s, and early 2000s, whereas a substantial portion of recent legislative activity has focused on exclusionary legislation; localities that have experienced rapid growth of their foreign-born population are more likely to introduce exclusionary policies (Walker & Leitner, 2011); and exclusionary laws have tended to be passed in new destinations, particularly in the south (Leerkes, Leach, & Bachmeier, 2012), while at the same time inclusionary measures have been introduced in long-established large immigrant populations (Møller, in press). And in contrast to inclusionary resolutions, recent measures designed to limit immigrants’ access to social services, to make the lives of immigrants difficult, and to create a hostile climate for immigrants with an aim at enforcement (see Cleaveland & Ihara, 2012) constitute a form of immigration law (Møller, in press). Indeed, Møller (in press) argues that inclusionary measures do not aim to protect immigrants from federal enforcement strategies but rather to ensure that undocumented immigrants cooperate with the police in the reporting of crimes, thus amounting to “community policing” policies (see also Tramonte, 2011).

From the work included in this special issue, we know what these state and local-level ordinances and laws can translate into in immigrants’ everyday lives in states that have enacted such exclusionary legislation. In my own work, I have examined the effects that specific pieces of legislation have had on various aspects of life among a wide range of immigrants living in Phoenix. This is the case of the middle-school students in a school-based survey that my colleague Carlos Santos and I have conducted in the Phoenix metro area (Santos & Menjívar, 2013; Santos, Menjívar, & Godfrey, 2013). Our findings indicate that simply awareness of SB 1070 had a small but significant negative association with youth’s sense of being American, and that this weakened sense of American identity resulted in a small but meaningful reduction in psychological well-being (i.e., lower levels of self-esteem). A key finding from our study is that this negative association was not moderated by race/ethnicity; we detected the same negative associations between awareness of SB 1070, American identity, and self-esteem in our entire sample of racially and ethnically diverse youth—including White youth who attend highly diverse schools (see also Filindra, Blanding, & Garcia Coll, 2011). On the one hand, this is not surprising given that these youth live in environments where their peers are Latinos, who, implicitly or explicitly, are the target of this type of legislation. On the other hand, it is striking that SB 1070’s negative psychological consequences were also detected among a diverse group of children as it reveals the law’s reach beyond those who belong to groups that it directly targets.

Furthermore, a study conducted in the Phoenix metro area found that adolescent mothers reported declines in the utilization of public assistance and were less likely to take their babies to the doctor after SB 1070 passed (Toomey, Umaña-Taylor, Williams, Updegraff, & Jahromi, 2014). In the same study, mother figures were also less likely to utilize public assistance after SB 1070, even if these women were born in the United States. Thus, in Arizona, as well as in other destinations, we are detecting negative effects of these laws that reach beyond undocumented immigrants to affect all Latinos, documented, undocumented, or U.S. born, and even the native White population. ⁶ This spillover effect to other groups needs to be examined more closely.

However, state-level laws and ordinances are only one layer in today’s multipronged immigration regime; they have created a system of “borders beyond borders” (Leerkes et al., 2012). Indeed, state and local-level legislation amplify the effects of federal laws, creating a “force multiplier,” as advocates for the increased participation of states in these matters have labeled this multipronged approach (see Waslin, 2010), or the “poli-migra,” as a community organizer referred to the current immigration regime, noting the multiple “migras” that seem to coexist everywhere today. At the federal government level, beginning with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, life changed significantly for immigrants—undocumented, documented, and semidocumented alike, all over the country, regardless of what individual states do. ⁷ This law, together with the Antiterrorism and Effective Death Penalty Act (AEDPA), also of 1996, has radically altered and expanded grounds of exclusion and deportation; retroactively expanded many criminal grounds of deportation; eliminated some and limited other discretionary waivers of deportability that affect even permanent legal residents; expedited deportation procedures for certain types of cases; vastly increased possible state and local law enforcement involvement in deportation through the creation of Section 287(g); and created a new type of streamlined “removal” proceeding—permitting the use of secret evidence—for noncitizens accused of “terrorist” activity (Menjívar & Kanstroom, 2014). ⁸

These changes at the federal level have led to historically high numbers of detentions, deportations, and overall criminalization of immigrants through the expansion of the category of “criminal alien.” ⁹ These legislative changes have pushed the convergence of immigration and criminal law into what Stumpf (2006) has called the “crimigration” that characterizes the current historical moment (see also Chacon, 2009; Dowling & Inda, 2013). In addition to legislative changes, we must note the vast state technology that complements and enables the merging of civil and immigration law for the twin projects of border and interior enforcement control (see Kanstroom, 2007). This formidable regime ¹⁰ has facilitated the approximately 400,000 annual deportations as well as the detention of 429,000 people (in 2011), another new record, meaning that there are over 31,000 individuals in detention at any one day at more than 300 facilities across the country and its territories (Menjívar & Kanstroom, 2014). And the great majority of deportees and detainees are Latinos; according to Golash-Boza and Hondagneu-Sotelo (2013), most of these detainees and deportees are working-class Latino men. Thus, the current enforcement system has become a gendered (Golash-Boza & Hondagneu-Sotelo, 2013) and racial removal project of the state (Møller, in press), which curtails the social reproduction of Latino immigrant communities (Das Gupta, 2013).

In addition to these visible and often talked-about consequences of current immigration policies in the form of removals and detentions, there is also federal legislation that we do not talk about in the context of exclusionary practices. This is the case of family reunification laws. Family unity has long been a foundation of U.S. immigration policy. Immigration law gives prominence to family members when allocating visas for entry to the United States. In fact, the two major immigration categories under which lawful permanent residence in the United States is granted are immediate relatives of U.S. citizens and family-sponsored preference. However, laws that appear to benefit immigrants with the opportunity to reunite with their families in the current context may end up having the opposite effect. With Maria Enchautegui (Enchautegui & Menjívar, n.d.), I have examined family reunification laws and their effects on Latinos and have found that paradoxically, this family-based system actually keeps many families apart and uncertain of if or when family reunification will take place. Through various mechanisms, such as the limited number of visas available and long-waiting lines due to long backlogs, bars to reentry in place since 2001, and requirements of incomes 125% above the poverty line to sponsor a relative, these laws make it nearly impossible for many Latino immigrants to reunite with their families (Enchautegui & Menjívar, n.d.).

We have learned and continue to learn a great deal about how this multilayered immigration system affects the lives of Latino immigrants, their families, mixed status families, the schools they attend, and communities in which they live.

What Can We Learn From the Study of the Multilayered Immigration System?

Michael Burawoy (1991) notes that “we are interested not only in learning about a specific social situation, but also in learning from that social situation. We want to be able to make claims that have validity beyond the situation we study” (Burawoy, 1991, p. 7). “Here is where we turn observations into explanations, data into theory” (Burawoy, 1991, p. 8). This is a useful lens that helps us to discern several lessons from the accumulated knowledge we have about the effects of the current immigration regime. Such lessons are relevant for theorizing as well as for informing policy, which can lead us to reconceptualize or to refine certain long-held assumptions in immigration scholarship. I will only refer to a couple—one dealing with policy and the other with long-term consequences of the current immigration regime.

Before I begin, I would like to point out some contradictions inherent in today’s system that can inform nuanced understandings of immigrant incorporation with consequences for policy. The multilevel immigration regime has created two key contradictions: It has turned legal status into a critical resource for most (if not all) endeavors in which immigrants engage and, in some cases, it is simply vital for survival. At the same time, however, the same system has contributed to devalue legal status, as the experience of the thousands of permanent legal residents who have been deported shows (see Golash-Boza, 2014); permanent legal residence is no longer that “permanent” and these immigrants can now lose their legality more easily. And second, this system seeks to punish a variety of immigrants’ behaviors and practices, and thus immigrants live highly regulated lives. At the same time, however, it pushes them to spaces outside the law. This contradictory goal makes immigrants simultaneously accountable to the law but also excluded from legal protections or rights; in Chavez’s (2008) conceptualization, it forces them to live in the nation but not be perceived as part of the nation.

Surely immigrants in the past suffered, were discriminated against, and expelled. In fact, as Kanstroom (2007) has observed, there have been immigrants deemed criminals or seen as posing a threat since the foundation of the nation; they have been deemed inadmissible or banished. But the regime today may be different in key respects. Today immigrants face a system of enforcement that includes an exterior component in the form of a militarized zone and an interior one in the form of multiple internal borders; we have federal and state and local levels of control as well, facilitated by sophisticated technology and a vast state apparatus. We have legislation that far from promoting family reunification actually contributes to keep immigrant families apart. We have a regime that Massey and Sánchez (2010) describe as “characterized by an exceptional degree of anti-immigrant framing and immigrant isolating-boundary work” (p. 24). Thus, with regard to policy, this multipronged, multilevel regime may call for a reexamination of the literature on the effectiveness of border enforcement for various groups of immigrants. In general, this literature tells us that border enforcement has, for the most part, been ineffective in keeping immigrants out; border enforcement policies have not been very effective at deterrence (Cornelius & Salehyan, 2007; Massey, 2013). At the same time, Mexican migration has declined to “net zero” since 2008 (Passel, Cohn, & Gonzalez-Barrera, 2012). But not all entries of Latino immigrants follow the pattern of the Mexican flows, as Mexican migration is by far the largest and has the longest history, and Mexico and the United States share a 2,000-mile-long border that has created a specific set of cultural and historical ties. Thus, whereas Mexican immigration has declined, the immigration rates for Central Americans seem to have continued unabated and even showed a slight increase (González & Ortega, 2013). Indeed, it has been observed that the rise in the size of the undocumented population in the United States from the estimated 11.4 in 2010 to 11.7 million in 2012 is largely due to the growth in migrants from Central America, who are also the fastest growing group of undocumented immigrants in the country (Passel, Cohn, & Gonzalez-Barrera, 2013). In this light, we need to attend to the nuanced effects of border controls, as they do not affect all immigrants or all Latinos in the same way.

A second point deals with the short- and long-term effects of the current immigration regime. In the short term, immigrants are adopting and adapting behaviors in direct response to exclusionary laws. Among undocumented immigrants, as the articles in this issue demonstrate, this has meant altering routines, changing driving habits, constraining daily life in order to avoid detection (see Gonzales & Chavez, 2012) and internalizing fears, indeed, generating conditions that Leisy Abrego and I have referred to as “legal violence” (Menjívar & Abrego, 2012) because of the social suffering these laws make possible. But those immigrants who are in the legalization process—through a relative or an employer who can petition for their visas—also alter their behaviors, only in this case to make themselves visible and highlight their deservingness. In recent work (Menjívar & Morando, n.d.), we have examined how immigrants who have entered the legalization process marry long-term partners, divorce current ones, decide to have children or postpone childbearing, or engage in a series of civic engagement projects in efforts to strengthen their cases and prove themselves as deserving of legalization. In doing so, these immigrants unwillingly contribute to define the characteristics of a “good immigrant” that this society rewards. Through these processes, these immigrants are becoming incorporated and exercising various forms of membership in the midst of a deeply inhospitable anti-immigrant context. Thus, in the end, the exclusionary laws that seem to multiply up and down the scales of government are pushing immigrants not only to seek formal citizenship but also to adopt the behaviors that will bolster their positions in various strands of citizenship and as full members of society.

Whereas it is important to attend to the new behaviors and practices immigrants adopt in order to avoid detection, detention, or deportation, at the same time, we also need to look beyond the everyday, to the longer term consequences of the present system of laws. Legal status is becoming a new form of social stratification, with similar effects to those of other social markers in its effects on immigrants’ life chances and paths to mobility (Bean et al., 2013; Massey, 2007; Menjívar & Kanstroom, 2014). And when proposals to withdraw birthright citizenship to children of undocumented parents are debated in various legislatures, Leo Chavez (2014) observes, we are getting dangerously close to creating a new caste of stigmatized citizens with unclear rights to belonging. Furthermore, a Pew Hispanic Center study (Lopez et al., 2010) found that of the various factors that can lead to discrimination, 36% of Latino respondents ranked immigration status as the most important, outranking skin color (21%), language skills (20%), and income and education (17%). Thus, in my view, legal status needs to be theorized in new ways, not only as an individual attribute or variable that can affect wages or access to resources but as a status conferred by the legal regime today, as a juridical status and a sociopolitical condition, as Sarah Willen has noted in her critical phenomenology of illegality (Willen, 2007).

Final Thoughts: A Quick Comment on Comprehensive Immigration Reform

Even though federal preemption on immigration issues has been upheld consistently (Rodriguez, Chishti, & Nortman, 2010), laws at the state and local levels serve to blur lines between what the federal government does and what localities do, thus positioning states and local communities as de facto enforcers of immigration (Waslin, 2010). This blurring of lines is experienced on the ground as well, as immigrants who live in the contexts where laws at various governmental levels are in place do not pause to differentiate which governmental-level policy is being applied when they drive in fear of being stopped and detained, when workplaces are investigated (in “silent raids”), when they or loved ones end up in detention, or when they leave home on a routine errand wondering if they will ever return.

Based on extant knowledge about the effects of the contemporary immigration regime, we know that laws and enforcement practices are detrimental to immigrants in the short and long term. Knowing that they (or their families, friends, coworkers, etc.) can be detained or deported has immediate effects for immigrants, such as those manifested in anxiety, depression, and lowered self-esteem. But these experiences have long-term repercussions as well, especially when legal status prevents access to educational, health, and other resources that shape life chances and integration in U.S. society. And the reality today is that undocumented immigrants are here to stay; they have families born or raised in the United States, are integrated socially in multiple ways and are helping to build communities, and are needed in workplaces in several vital economic sectors, to name a few of their deep connections to U.S. society. Two thirds of the approximately 11 million undocumented immigrants today have been in the country for more than 10 years, with a full one third having resided in the country for 15 years or longer (Taylor, Lopez, Passel, & Motel, 2011). Given this reality, the current immigration system needs an overhaul that responds in appropriate, dignified ways, providing opportunities for immigrants to remain and acquire “the right to have rights.” ¹¹

Thus, although much attention, discussion, and resources are devoted for border enforcement and security, to the enforcement of the law through workplace inspections and ID checks, and to the creation of programs to expel immigrants, a fundamental component of immigration reform remains creating a path to legalization for the undocumented immigrants in the country today (see also Massey, 2013). Although the current proposal for comprehensive immigration reform from the U.S. Senate represents a much-needed relief from the immediate threat of deportation, it is nonetheless a problematic solution. Requiring immigrants to remain in “registered provisional immigration status” for a minimum of 10 years before seeking permanent legal status and then requiring them to go “to the back of the line” (meaning that their applications for permanent legal residence will only be considered when the U.S. Secretary of State clears the backlog of visas requested prior to the enactment of the new immigration legislation) will only contribute to keep these immigrants in “liminal legality” (Menjívar, 2006) for at least a decade, but likely much longer. These kinds of responses to the demographic shift that is well under way in the United States today may create more problems than they solve in the long run.