ruling on asylum requests often take jobs and meld into the underground economy.
Since the 1970s, all workers, regardless of immigration status, have been entitled to the same labor protections and remedies.
But despite these protections, illegal aliens are discriminated against in countless ways. “In theory,” says attorney Nancy
Cervantes, “undocumented workers are protected under labor laws. But in reality they have to put up with all kinds of
discrimination. Without working papers, they are pushed out of the conventional work force.”
Fears of workplace discrimination have intensified since IRCA was passed in 1986. Because the law makes it illegal to hire
undocumented workers, some employers argue that federal labor legislation, including Title VII of the 1964 Civil Rights Act and the
Fair Labor Standards Act, no longer covers illegal workers. Thus far, the courts have rejected this argument and held that
undocumented workers can bring lawsuits against employers.(12)
For many illegals, however, that’s a hollow victory. In order to exercise legal rights, an individual usually has to hire a
lawyer. Although most illegal immigrant claims are paid on a contingency basis, problems arise when claims involve subtle
discrimination or relatively minor physical injuries, such as broken limbs. “Who’s going to take on a $1,000 claim?” asks Cervantes.
“Not very many lawyers I know.”
Most undocumented workers are not likely to persue their legal rights in any case. “If [illegals] make a claim against an
employer, they fear they will be turned over to the INS,” Cervantes says. “But even more important, they are afraid they’ll lose
their jobs.”
Ultimately, most experts agree, the real danger for illegals is that they may become a permanent servant class–latter-day
indentured servants needed for their labor but living as fearful, second-class citizens on the margins of society. This may not be
bad for the economy, but many believe it corrodes the polity. As Lawrence Fuchs puts it: “We’d be a healthier society if the 14th
Amendment covered everybody.”
Background: Half-Open Door
Despite the generous words inscribed on the pedestal of the Statue of Liberty–”Give me your tired, your poor, your huddled
masses yearning to breathe free….”–America has vacillated between welcoming immigrants and resenting them.
Thousands of Chinese laborers were brought to this country to build the railroads in the 19th century, and then excluded in a
wave of anti-Chinese hysteria. The Chinese Exclusion Act of 1882 and its extensions effectively ended immigration of Chinese to the
United States for over half a century. Other Asian groups were restricted through legislation passed in 1917 that created “barred
zones” for Asian immigrants.(13)
Of course, the racist undertones of U.S. immigration policy were by no means reserved for Asians. Singling out Italians and the
Irish as “wretched beings,” THE NEW YORK TIMES sounded the alarm in an editorial on May 15, 1880: “There is a limit to our powers of
assimilation, and when it is exceeded the country suffers from something very like indigestion.” A decade later, Francis Walker, who
was then director of the Census Bureau, cited data in support of the argument that the United States was being overrun by “less
desirable” immigrants, including newcomers from Southern and Eastern Europe who he described as “beaten men from beaten races.”
In the 1920s, public concern about the nation’s changing ethnic makeup prompted Congress to set up the national-origins quota
system, limiting immigration. Measures passed in 1921, 1924 and 1929 were designed not only to restrict overall immigration but also
to limit immigration from certain areas. Quotas were based on the share of the U.S. population having similar ancestry, effectively
closing the door to Asians and Southern Europeans.
Quotas, of course, didn’t stop the desperate. Legal barriers served to swell the ranks of those who came illegally–
particularly Mexicans, whose only physical obstacle was to wade the Rio Grande River. The outbreak of the Mexican Revolution
(1910-17) provided additional incentives to those considering a flight to the north. To help stem the flow, the United States in
1924 created the U.S. Border Patrol, the enforcement arm of the INS, which guards the 6,000 miles of U.S. land bordering Canada and
Mexico.
Immigration and Nationality Act
Economic and political realities during the early 1940s forced the United States to relax its immigration policies. In 1941
China became a wartime ally against Japan, and two years later the Chinese exclusion laws were repealed. Moreover, partly to relieve
U.S. wartime labor shortages and partly to legalize and control the flow of Mexican agricultural workers into the country, the
United States in 1942 began the Bracero (”laborer”) guest-worker program. Through a series of bilateral agreements primarily with
Mexico but also including several Caribbean countries, Washington admitted temporary workers to pick crops in Western states.
Shortly thereafter, there was pressure to codify the scores of immigration laws that had evolved over the years. The result was
the 1952 Immigration and Nationality Act, which despite numerous revisions still underpins much of U.S. immigration policy. That
legislation, also known as the McCarren-Walter Act, retained the basic quota system favoring skilled workers and relatives of U.S.
citizens, but also removed all racial prohibitions against naturalization and immigration.
`Operation Wetback’
Legal immigration, however, was no longer the principal issue for many government officials. Its cumulative impact had become
overshadowed by the flood of illegals circumventing legal immigration channels. “Before 1944, the illegal traffic on the Mexican
border…was never overwhelming,” the President’s Commission on Migratory Labor noted in 1951, but in the past seven years, “the
wetback traffic has reached entirely new levels…. In its newly achieved proportions, it is virtually an invasion.”(14)
In a desperate attempt to reverse the tide, the U.S. Border Patrol in 1954 launched “Operation Wetback.” Nearly 500 INS
officers were transferred from the Canadian perimeter and from large cities in the U.S. interior, joining some 250 patrol agents
already along the U.S.-Mexican border. Agents swooped down on factories and farms, arresting any Hispanic-looking people who
appeared not to belong. More than 1 million undocumented Mexican migrants, together with some U.S. citizens, were summarily
deported.
Although Operation Wetback enjoyed popular support and served to bolster the prestige–and budget–of the INS, it exposed an
inherent contradiction in U.S. immigration policy. The 1952 law contained a gaping loophole, known as the Texas Proviso, an obvious
concession to Texas agricultural interests who relied upon cheap labor.
“The Texas Proviso said companies or farms could knowingly hire illegal immigrants, but they couldn’t harbor them,” says
Brandeis’ Lawrence Fuchs. “It was a duplicitous policy. We never really intended to prevent illegals from coming.”
Immigration Reform
U.S. immigration policy has undergone three important changes since the mid-1960s. The first involved increases in legal
immigration brought about by the passage of the 1965 amendments to the Immigration and Nationality Act of 1952. By scrapping the
by-then notorious system of national-origin quotas and by giving priority to family reunification as a basis for immigration
admission, the amendments repaired “a deep and painful flaw in the fabric of American justice,” President Lyndon B. Johnson declared
at the time.
The second major change consisted of a shift in the national origin composition of immigrants. During the 1950s, nearly 70
percent of immigrants came from European countries or Canada. This figure dropped to about 20 percent during the 1970s and then to
about 14 percent during the ’80s. The percentage coming from Asian, Central American or Caribbean countries increased from about 30
percent during the 1950s to about 75 percent during the ’70s.
The third important shift was related to the resurgence in illegal immigration that began in 1964 when the Bracero program
ended. The program was terminated largely because of public opposition to conditions under which migrant workers lived–and
effective lobbying of labor, church and ethnic groups. But having opened the spigot, letting in millions of temporary Mexican
laborers, officials found it impossible to stop the torrent. The number of illegal migrants coming from Mexico began to rise
precipitously. At the same time, the number of persons who entered the country legally but stayed beyond their visa- expiration
dates also began to escalate.
Partly in response to these trends, the Select Commission on Immigration and Refugee Policy was established in 1978 to study
all aspects of U.S. immigration policy. The commission concluded in its final report that “one issue has emerged as most pressing
–that of undocumented illegal immigration.”(15) This perception came to be shared by the general public. Eighty-seven percent of
respondents in an early 1980s survey in Southern California thought that “the illegal immigration situation” was either “somewhat
serious” or “very serious.” The number of apprehensions on the border peaked in 1986 at 1.7 million, driven in part by the deepening
economic crisis in Mexico.
“The simple truth is that we’ve lost control of our own borders,” declared President Ronald Reagan, “and no nation can do that
and survive.”(16) The president may have been overstating the case, but a compelling argument could be made that the decade-long
increase in illegal immigration extracted a burdensome price on society–and on the public conscience. At a minimum, the illegal
influx seemed unfair at a time when tens of thousands of legal petitioners were waiting to obtain entry visas. “What right do these
people have to jump the queue?” many citizens asked.
Immigration Reform and Control Act
All of these factors contributed to a movement to do something about illegal immigration. On Capitol Hill, the debate was
marked by cross-party alliances that Sen. Alan K. Simpson, R- Wyo., described as “the goofiest ideological-bedfellow activity I’ve
ever seen.”(17) Conservative anti-immigration think tanks teamed up with liberal labor unions and environmentalists favoring tighter
immigration restrictions, while pro-growth groups and business interests joined forces with their frequent adversaries in the
Hispanic and civil rights communities in opposing such legislation.
After several false starts, Congress passed the Immigration Reform and Control Act (IRCA) in October 1986. The legislation was
signed into law the following month. The new law was a compromise that contained something for everyone to hate. Its basic trade-off
was a crackdown on the U.S. job market to make it much harder for illegal aliens to find work in exchange for a limited amnesty that
would allow millions of illegals living in the country to become legal residents.
IRCA constituted the most sweeping revision of U.S. immigration policy in more than two decades. For the first time, the
business community faced sanctions for hiring illegals. Employers found guilty of breaking the law can be assessed fines of up to
$2,000 per worker and given jail terms for repeated offenses. The law also included a commitment to beef up enforcement along the
2,000-mile U.S.-Mexican border.
Since 1987, IRCA has allowed 3.1 million undocumented aliens to obtain legal status. Within two years, the number of aliens
captured each year at the border fell by half, from a peak of more than 1.7 million in 1986 to fewer than 900,000 in 1989, leading
some to proclaim the law a success. Said former INS Commissioner Alan Nelson in 1985: “Once word spreads along the border that there
are no jobs for illegals in the U.S., the magnet no longer exists.”
Politics vs. Economics
These days, illegal migrants come not only from neighboring countries but from far afield, some from halfway around the world.
In February, U.S. officials seized a 150-foot Taiwan- registered trawler off the coast of California, carrying 84 men from China who
had survived 50 days in the vessel’s fetid hold. Five ships carrying a total of about 600 people have been discovered since January,
and as many as a dozen more are being monitored by the INS.
Experts say roughly 40 percent of the 200,000 to 300,000 people who become permanent illegal residents each year are actually
people who overstay visas. The INS suspects that over the past two years, the number of visa overstayers from Ireland and Eastern
Europe may have tripled. They get less attention because they are more difficult to track–and much harder politically to deal with.
“To enforce immigration laws internally runs afoul of American citizens, they get all bent out of shape,” says sociologist Douglas
Massey. “Apprehending Mexicans at the border is easier. They’ll voluntarily go home–and you generate apprehension numbers to
justify the policy.”
Even more important from a policy standpoint, the intellectual distinction between a political refugee, the unhappy victim
escaping persecution, and an economic migrant, the enterprising fellow who sets off for greener pastures, is becoming more difficult
to draw in practice. The distinction is more than academic. Historically, U.S. immigration law has been more receptive to political
refugees, defined as anyone who is politically persecuted. In the past, this usually meant coming from communist countries. To open
the door to economic migrants, officials reasoned, would be to invite a deluge.* (*Economic migrants can apply to emigrate, but
their chances of acceptance are virtually nil, unless they have family in the United States or can offer special skills.)
“It used to be clear,” says the Carnegie Endowment’s Meissner. “Mexicans were economic, Cubans and Vietnamese were political.
That changed when the Haitian boat people started coming in the 1970s. Their reasons for leaving were both political and economic.
Are they any less endangered than Cubans? Possibly not.”
Treatment of Haitians and Central Americans
Yet in contrast to Cubans, who were granted immediate asylum once they reached U.S. shores, Haitians received–and continue to
receive–a uniquely fierce rebuff. In the 1970s, they were routinely imprisoned while their applications were processed. In 1981,
with the agreement of the Haitian government, the Reagan administration decided it would be simpler to intercept the Haitians’ boats
on the high seas and tow them back to Haiti.
The situation was further exacerbated during the 1980s by the increasing number of Central American refugees seeking political
asylum in the United States. Since the vast majority were fleeing war-torn lands governed by non-communist regimes– notably El
Salvador and Guatemala–their chances of obtaining political asylum were limited. So, like so many Mexicans, they came illegally.
For many human rights advocates, the plight of Central American refugees–like that of Haitian boat people–raised issues not
only of asylum rights but of possible discrimination. From 1981 through 1986, the federal government deported nearly 18,000
Salvadoran escapees while granting permanent-resident status to only 598.(18) Meanwhile, during the same time period, half of the
Poles who applied were granted asylum.
“Whereas traditionally Cubans and Poles were accepted without significant questioning,” says Ernesto Rodriguez, an immigration
expert at the University of Houston, “Central Americans were grilled and usually not accepted despite the fact that lives were
endangered. [Polish President] Lech Walesa would never have survived in Guatemala.”
Concerned about the obvious inequities, churches and certain U.S. communities–Berkeley, Los Angeles, Chicago and others–
began offering asylum to Central American refugees. By 1985, the sanctuary movement had spread to more than 200 parishes of
virtually all denominations. Several leaders of that movement were put on trial in 1985 and accused of being “part of an alien
smuggling conspiracy.” Four years later, the sanctuary movement was vindicated when the U.S. government (in settling a lawsuit filed
by a coalition of religious and refugee
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