T HURGOOD MARSHALL
EST. 1970
LAW REVIEW
VOLUME 41
ONLINE
ISSUE 2
BROKEN: THE SOCIAL, P OLITICAL, AND LEGAL IMPLICATIONS
OF AMERICA’ S IMMIGRATION DILEMMA
Jay Garza
A Publication of
Thurgood Marshall School of Law
THURGOOD MARSHALL LAW REVIEW ONLINE
VOLUME 41
FALL 2015—SPRING 2016
ISSUE 2
EDITORIAL BOARD
EDITOR-IN-CHIEF
MATTHEW W. BOURDA
EXECUTIVE EDITOR
KIERA WELCH
LEAD ARTICLES EDITOR
ASHLEY TIZENO
MANAGING EDITOR
RICARDO HERNANDEZ
SYMPOSIUM EDITOR
SEDRICK STAGG
ARTICLES EDITORS
ASHLEY DEHART
TAYLOR FELTON
LEAH D. PINKARD
BUSINESS EDITORS
JULIANA SHAW
ROBEN WEST
DIGITAL CONTENT EDITOR
JAY GARZA
RESEARCH EDITOR
BRITTANY POTVIN-GREEN
EDITOR-IN-CHIEF EMERITUS
ALAINA KING BENFORD
SENIOR EDITORS
BELINDA ERTEL
NICOLE HERRON
TRE MEREDITH
ROBERTO QUIJANO
CORNELL HAMILTON-PAUL
CRYSTAL NDIDI IBE
JASON MILLER
KRISTINGAIL ROBINSON
PILAR HASTINGS-SMITH
MONICA LOPEZ
OMONIYI OLAYIWOLA
JOSE RODRIGUEZ
ASSOCIATE EDITORS
NEKKETTA ARCHIE
OSCAR CARRILLO
CAITLIN HODGE
MYA JOHNSON
DIVYA RAJ
BALTAZAR SALAZAR
ROBERT BROWN II
KIMBRELY DANDRIDGE
SOLOMON HOLNESS
DANA NAZAROVA
WHITTNEY RICHARDSON
NICHOLAS SARANTO
EBONY YOUNG
DOMINIQUE CALHOUN
AMY GREENBAUM
KARINA JIMENEZ
KELECHI ONWUMERE
MELISSA RICHÁRD
SEKEIA WYATT
FACULTY ADVISOR
PROFESSOR THOMAS KLEVEN
MEMBER, NATIONAL CONFERENCE OF LAW REVIEWS
CITE AS: 41 T. MARSHALL L. REV. ONLINE 92 (2015).
© JAY GARZA
BROKEN: THE SOCIAL, POLITICAL, AND LEGAL IMPLICATIONS OF
AMERICA’S IMMIGRATION DILEMMA
JAY GARZA
92
INTRODUCTION
“[T]he authority to control immigration is . . . vested solely in the
Federal Government, rather than the States . . .”1
This paper focuses on the social, legal, and political impact of America’s growing
immigration problem. Additionally, it is an effort to expand awareness of the overall
impact of the inconsistency and inability of the federal government to compromise on an
issue that has led to disparaging consequences; i.e. the enactment of the draconian
policies of some state legislatures such as Arizona’s Senate Bill 1070 (“S.B. 1070”).2
The enactment of such laws among various states is an example of the corresponding
explicit impact of the failure by the federal government to compromise on a resolution for
this issue.3 Although many local and state officials around the country are debating the
details about immigration reform, the problem is that many of these entities do not have
the authority to enact or regulate such policy.4 This is due to the fact that power held by
state governments is largely limited.5 “[P]ower resides in Washington,” rather than the
states.6
Recently, some states have attempted to obtain immigration control from the
federal government. 7 Concurrently, the federal government has incorporated itself in
many state and local law enforcement agencies in order to enforce immigration initiatives
1
Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21 (1976) (citing Truax v. Raich, 239 U.S. 33, 42
(1915)).
2
Randal C. Archibold, Arizona Enacts Stringent Law on Immigration, N.Y. TIMES (Apr. 23, 2010),
http://www.nytimes.com/2010/04/24/us/politics/24immig.html?_r=0.
3
Chantelle Janelle, Study: Lack of US Immigration Reform Forcing States to Act, WISTV (Dec. 5, 2006,
8:58 PM), http://www.wistv.com/story/5774453/study-lack-of-us-immigration-reform-forcing-states-to-act.
4
Eliot Spitzer, A Driver’s License Policy to Make New York Safer (Oct. 19, 2007) (transcript available at
http://worldcat.org/arcviewer/1/AO%23/2008/03/17/0000083244/viewer/file452.html).
5
Id.
6
Id.
7
Legislative Priorities for Immigration Reform, NAT’L IMMIGR. L. CTR.,
http://www.nilc.org/nilcirpriorities2013.html (last visited Jan. 5, 2015).
93
such as “Secure Communities.” 8 However, due to unforeseen consequences, such as
lawsuits, several states have commenced to back down; consequently, forcing the federal
government to unilaterally enforce immigration laws.9
Despite these unforeseen consequences, states and local entities have continued
to move ahead with their own immigration laws. For example, in the year 2005, twentytwo states evaluated legislation concerning undocumented immigration.10 Subsequently,
these numbers have substantially grown with other states, such as Arizona and Alabama,
which have also created policy in the recent years. 11 In the year 2013 alone, an
astounding forty-five states, including the District of Columbia, enacted legislation
regarding undocumented immigration. 12 Such legalization encompasses many areas
including “workplace requirements, access to public benefits, driver’s licensure,
identification cards, voter registration requirements, college tuition standards, and law
enforcement issues.”13
The enactment of these state laws and the impasse of the federal government have
evolved into the disaster that has become known as immigration reform. Frustration and
the failed actions by our leaders on immigration reform are the heads of the monster that
have spurred anger and frustration in the citizens of the United States.14 Even though
8
Id.
Spencer Amdur, How Local Governments Are Hacking Immigration Reform, THE ATLANTIC (May 13,
2014), http://www.theatlantic.com/politics/archive/2014/05/state-and-local-governments-make-their-ownimmigration-reform/362823/.
10
Unauthorized Immigrants Briefing Paper, UTAH GOV. ST. LEGIS. 4
http://le.utah.gov/lrgc/briefings/IMMIGRATION%20BRIEFING%20PAPERI.pdf (last visited Jan. 1,
2015).
11
State Laws Related to Immigration and Immigrants, NCSL (Jan. 7, 2015),
http://www.ncsl.org/research/immigration/state-laws-related-to-immigration-and-immigrants.aspx.
12
Id.
13
Unauthorized Immigrant Briefing Paper, supra note 10.
14
Andrea Christina Nill, Article: Arizona S.B. 1070: Comment: Latinos and S.B. 1070: Demonization,
Dehumanization, and Disenfranchisement, 14 HARV. LATINO L. REV. 35, 35 (2011).
9
94
politicians, scholars, and citizens differ greatly on the solution to immigration reform, the
American public can agree that the immigration policies of the United States require
intervention.15 As stated above, the impasse and lack of action by the federal government
has led to states, counties, cities, schools, and even law-abiding citizens to take matters
into their own hands. For example, cities like Chicago, Philadelphia, Baltimore, and San
Diego have all started to refuse regulating undocumented immigration, due to the costly
impact on the municipalities’ financial resources.16
Due to these costly effects, cities across the United States have enacted new
policies, which force the federal government to conduct and manage undocumented
immigration deportation proceedings for themselves.17 This approach, which seems to be
gaining momentum throughout the United States in recent years, is one way that “local
governments dismayed by a broken federal immigration system have found . . . to
undermine it.”18
United States citizens along the United States-Mexico border are also taking the
matters into their own hands; they have resorted to taking up arms and stationing
themselves along popular crossing areas, in an attempt to deter the influx of immigrants
crossing into the country.19 Such action interferes with border patrol’s daily activities,
15
Katherine Fennelly, The Congressional Stalemate on Immigration Reform, SCHOLAR STRATEGY
NETWORK, (Apr. 5, 2012), http://www.scholarsstrategynetwork.org/content/congressional-stalemateimmigration-reform.
16
Emily Badger, Why More and More Cities Are Refusing to Help the Government Deport Immigrants,
WASH. POST (Oct. 8, 2014), http://www.washingtonpost.com/blogs/wonkblog/wp/2014/10/08/why-moreand-more-cities-are-refusing-to-help-the-government-deport-immigrants/.
17
Id.
18
Id.
19
Lomi Kriel, Anti-Illegal Immigration Groups Resurge on Border, HOUS. CHRON. (Jan. 5, 2015 8:15 PM),
http://www.houstonchronicle.com/news/houston-texas/houston/article/Anti-illegal-immigration-groupsresurge-on-border-5995324.php?t=8771200f39&cmpid=twitter-premium#/0.
95
and creates an even bigger problem.20 For example, in some reported instances, border
patrol officials have encountered violent confrontations with such groups as they patrol
the United States-Mexico border.21 One of those instances occurred in the border city of
Brownsville, Texas. 22
In this case, a border patrol agent encountered an armed
militiaman wearing a uniform; the agent felt threatened and discharged his weapon
toward the militiaman who was purportedly protecting the border. 23
Unregulated
protectors of the border have caused much distress for the law enforcement community.24
The problems are clearly illustrated.
This past summer alone, Texas saw a
substantial increase in the number of undocumented children (“UC”) crossing into the
United States from Mexico and other South American countries. 25 “United States
Customs and Border Protection (“CBP”) apprehensions in the RGV [Rio Grande
Valley]—a sector containing just 320 miles of our 2,000 mile border with Mexico—
accounted for 72.8 percent of the” unaccompanied children in the fiscal year of 2014.26
Additionally, “76.2 percent of the family units apprehended in FY [fiscal year] 2014.”27
The influx led to shelter, hygiene, and feeding dilemmas, as the overwhelming numbers
left the federal government and state agencies exhausting resources to try and
20
David Neiwert, Border Militiamen Complicate an Already Volatile Situation along the Border, SPLC
(Sept. 3, 2014, 1:04 PM), http://www.splcenter.org/blog/2014/09/03/border-militiamen-complicate-analready-volatile-situation-along-the-border/.
21
Id.
22
James Queally, Border Patrol Agent Shoots at Armed Militia Member in Texas, L.A. TIMES (Aug. 30,
2014, 2:48 PM), http://www.latimes.com/nation/nationnow/la-na-nn-border-patrol-shooting-20140830story.html.
23
Id.
24
Id.
25
FY 2014 ICE Immigration Removals, U.S. IMMIGR. AND CUSTOMS ENF’T, http://www.ice.gov/removalstatistics (last visited Jan. 10, 2015).
26
Id.
27
Id.
96
accommodate the countless number of undocumented immigrants.28 As I have briefly
illustrated, immigration problems have a domino effect on multiple avenues in the United
States. In this comment, I will provide an in-depth look into the (1) social, (2) political,
and (3) legal aspects of the effects undocumented immigration has in the United States
and what can possibly be done to quell this problem.
I.
SOCIAL
A. Hispanics as the New Enemy
It’s certainly not the first time the scapegoated group has been immigrants. But
the sustained attack that was first launched in the mid-1990s has been in effect for
over fifteen years now, and it could have decisive consequences for society as a
whole and particularly for Latinos, the country’s fastest growing minority group.29
The misconceptions and myths that are engrained in society regarding
undocumented immigration have been in existence for centuries, from the first Irish and
German immigrants in the 1800’s, to the large population of Hispanics in our present day
society.30 “Undocumented immigrants bring crime”; undocumented immigrants take jobs
that belong to hard-working Americans; undocumented immigrants get rewarded for
entering the country by receiving benefits; and worst of all, they do not pay taxes.31 All
of these myths contribute to the fear and confusion that is coupled with undocumented
immigrants entering into the United States. These myths and misconceptions are
28
Moni Basu, Daniel’s Journey: How Thousands of Children Are Creating a Crisis in America, CNN (June
19, 2014, 5:42 PM), http://www.cnn.com/2014/06/13/us/immigration-undocumented-children-explainer/.
29
PILAR MARRERO, KILLING THE AMERICAN DREAM: HOW ANTI-IMMIGRATION EXTREMISTS ARE
DESTROYING THE NATION, 125 (2012).
30
10 Myths About Immigration, TEACHING TOLERANCE, http://www.tolerance.org/immigration-myths (last
visited Jan. 10, 2015).
31
Id.
97
abundant and misleading.32 Nonetheless, how are these misconceptions affecting how
American society views undocumented immigrants?
At this time in our nation’s history, we have been at war in the Middle East for
over a decade. Our country is recovering from one of the greatest recessions since “[t]he
Great Depression,” and our federal government is in a major deficit; why shouldn't we
blame undocumented immigrants for America's societal tribulations? Before September
11, 2001, most Americans viewed immigrants as beneficial to American life.33 However,
shortly after the attacks on the World Trade Center, American ideology changed, and set
into motion a new trend of disdain and negative attitudes towards immigrants.34 This
trend caused policymakers, candidates running for office, and incumbent politicians to
also change their views. 35 For example, In Texas (during his candidacy), Lieutenant
Governor Dan Patrick referred to the flood of undocumented immigrants “as an ‘illegal
invasion’.” 36
Prominent political scientist, Samuel Huntington also wrote, “The
persistent inflow of Hispanic immigrants threatens to divide the United States into two
peoples, two cultures, and two languages. Unlike past immigrant groups, Mexicans and
other Latinos have not assimilated into mainstream U.S. culture . . .” 37 Conservative
political commentator Ann Coulter even described Mexican culture as “deficient,” and
32
See id.
Stephanie A. Fryberg, et al., How the Media Frames the Immigration Debate: The Critical Role of
Location and Politics, WILEY ONLINE LIBR. 99 (July 13, 2011),
http://onlinelibrary.wiley.com/doi/10.1111/j.1530-2415.2011.01259.x/pdf.
34
Id. at 98-99.
35
Id. at 99.
36
Alexa Ura & Morgan Smith, ‘Invasion’ Remarks Fuel a Heated Debate in a G.O.P. Race, N.Y. TIMES
(Feb. 6, 2014), http://www.nytimes.com/2014/02/07/us/invasion-remarks-fuel-a-heated-debate-in-a-goprace.html.
37
See Samuel P. Huntington, The Hispanic Challenge, FOREIGN POL’Y (Oct. 28, 2009),
http://foreignpolicy.com/2009/10/28/the-hispanic-challenge/.
33
98
stated that Americans should "fear immigrants from Mexico more than ISIS,” a terrorist
group that kills innocent people.38
This form of anti-immigration rhetoric has had a profound impact on the general
population. For instance, in the year 2000 a minority of Americans believed that
immigrants were a problem in the United States; however, what can possibly be
attributed to anti-immigration rhetoric after the September 11 attacks, in the year 2006
more than half of the general population at fifty-two percent now agreed.39
As illustrated, anti-immigration rhetoric by politicians, scholars, and experts can
substantially affect American ideology and can depict Hispanics as a threat to American
society. More importantly, it puts Latinos and Hispanic Americans in a negative view in
the public eye. In extreme cases, all Latinos, whether or not they are American citizens,
began being grouped into one category and labeled as “illegal.” In a story reported by
NBC Latino, a poll published by the National Hispanic Media Coalition and Latino
Decisions, “finds over 30 percent of non-Hispanics believe a majority (over half) of
Hispanics are undocumented.”40 Not only is this article alarming, but it is the essence of
the consequences of anti-immigration rhetoric on society as a whole.
Unquestionably, the social impact on undocumented immigration is much larger
than public opinion; such that it has even entered the realm of violence in society.
Current data suggests that hate crimes against the respective group are on the rise. Some
38
Selena Hill, Ann Coulter Says Mexican Culture 'Obviously Deficient’ Refuses to Hug Undocumented
Immigrant During Fusion Interview, LATIN POST (May 30, 2015, 4:00 PM),
http://www.latinpost.com/articles/56503/20150530/ann-coulter-says-mexican-culture-is-obviouslydeficient-refuses-to-hug-undocumented-immigrant-during-fusion-interview-watch.htm.
39
See, No Consensus on Immigration Problem or Proposed Fixes: America’s Immigration Quandary, PEW
RES. CTR. 15 (Mar. 30, 2006), http://www.pewhispanic.org/files/reports/63.pdf.
40
Sandra Lilley, Poll: 1 out of 3 Americans Inaccurately Think Most Hispanics Are Undocumented, NBC
LATINO (Sept. 12, 2012, 1:37 PM), http://nbclatino.com/2012/09/12/poll-1-out-of-3-americans-think-mosthispanics-are-undocumented/.
99
of these crimes are even committed by groups who claim to be helping the effort to curve
undocumented immigration, most notably minutemen vigilantes. 41 As reported in the
Huffington Post, in 2009, vigilantes killed Mexican-American nine-year-old, Brisenia
Flores, and her father, Raul Flores, during a home invasion.42 Statistics show, in the five
years of 2003-2007 the number of hate crimes against undocumented immigrants has
increased by forty percent and a strong correlation to anti-immigration rhetoric.43 The
data and news reports confirm that hate crimes against Hispanics are on the rise around
America, and it seems to be correlated with anti-immigration rhetoric.
The lack of federal action to quell the broken immigration system in America has
created a domino effect within multiple avenues of American society.
This anti-
immigration rhetoric has turned Latinos into public enemy number one and the target of
vicious and violent attacks.
44
The negative attributes that are coupled with
undocumented immigration in society are a result of the undocumented immigration
rhetoric within all levels of American society.45 Frustration with the federal government
has created a conduit of undocumented immigrants for extremists to voice their antiimmigration rhetoric to the public, creating anger and resentment towards this
41
Cristina Costantini, Anti-Latino Hate Crimes Rise as Immigration Debate Intensifies, HUFFINGTON POST
(Apr. 3, 2013, 1:26 PM), http://www.huffingtonpost.com/2011/10/17/anti-latino-hate-crimes-riseimmigration_n_1015668.html.
42
Id.
43
The State of Hate: Escalating Hate Violence Against Immigrants, THE LEADERSHIP CONF.,
http://www.civilrights.org/publications/hatecrimes/escalating-violence.html (last visited Jan. 3, 2015).
44
Brentin Mock, Hate Crimes Against Latinos Rising Nationwide, SPLC (Nov. 28, 2007),
http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2007/winter/immigrationbacklash.
45
Oscar Lopez, 10 Obama Quotes on Immigration Reform to Celebrate His Birthday, LATIN TIMES (Aug.
4, 2014, 12:29 PM), http://www.latintimes.com/10-obama-quotes-immigration-reform-celebrate-hisbirthday-197421.
100
aforementioned group.46 This demonization of people has created a monster, which is
vividly illustrated by the rise of hate groups and violence against Latinos.47
The overwhelming influx of border officials in recent years has created
minutemen vigilantes, believing that taking the immigration fight into their own hands is
an appropriate course of action. Undoubtedly, no matter which side of the debate,
Americans have the right to be angry, because the federal government has failed to create
legislation and enforce the current immigration laws of the United States. This lack of
federal action, in regards to this ever-growing problem, seems to be closely correlated
with the growth of border vigilantes, hate groups, and crime against Latinos in society.
This gridlock is creating even more frustration and anger due to the lack of action by our
federal government to resolve the immigration dilemma.48
II.
LEGAL
A. Inhumane Conditions
The Department of Homeland Security assumes that mass detention is the key to
immigration enforcement. But in fact, our detention system locks up hundreds of
thousands of immigrants unnecessarily every year, exposing detainees to brutal
and inhuman conditions of confinement at massive costs to American taxpayers . .
. 49
Every day, over 30,000 undocumented immigrants are detained across the United
States.50 In the year 2011, alone, a record breaking 429,000 undocumented immigrants
46
See Mock, supra note 44.
The State of Hate: Escalating Hate Violence Against Immigrants, supra note 43.
48
See Nash Jenkins, As Time Runs Out, Congress Is Gridlocked on Immigration Reform, TIME (Aug. 1,
2014), http://time.com/3069047/as-time-runs-out-congress-is-gridlocked-on-immigration-reform/.
49
Will Matthews, Immigration Detention: A Death Sentence for Far Too Many, ACLU (Oct. 24, 2011),
https://www.aclu.org/blog/immigration-detention-death-sentence-far-too-many.
49
Alejandra Marchevsky & Beth Baker, Why Has President Obama Deported More Immigrants Than Any
President in US History, THE NATION (Mar. 31, 2014), http://www.thenation.com/article/why-haspresident-obama-deported-more-immigrants-any-president-us-history/.
47
101
were detained throughout the United States.51 Many of these undocumented immigrants
were not detained under humane conditions.52 Consequently, a continuous amount of
detainees are exposed to an increasing number of violent attacks and sexual assaults in
the course of their detention.53 Additionally, due to overcrowding, many detainees lack
adequate shelter, hygienic conditions, food, and medical supplies in order to sustain life.54
For example, in Arizona, many undocumented detainees are “corralled behind chain
fences topped off with barbed wire links and given blankets.”55 In the city of McAllen,
Texas, the Border Patrol holding station houses up to 300 detainees.56 Yet, Border Patrol
agents, in one day, “detained roughly 1,000 people . . . at the McAllen Station, severely
overcrowding the modest building on Military Highway.”57 Due to overcrowding, the
border patrol agents temporarily detained countless undocumented immigrants “who
entered into the United States inside the McAllen Stations ‘Sally Port’”, which is
“basically a gated garage.”58
51
John Simanski & Lesley M. Sapp, Immigration Enforcement Actions: 2011, U.S. DEP’T. OF HOMELAND
SEC. ANN. REP. (Sept. 2012), http://www.dhs.gov/sites/default/files/publications/immigrationstatistics/enforcement_ar_2011.pdf.
52
Immigrants’ Rights and Detention, ACLU, https://www.aclu.org/issues/immigrants-rights/immigrantsrights-and-detention?redirect=immigrants-rights/detention (last visited Aug. 26, 2015).
53
Id.
54
Molly Hennessy-Fiske & Cindy Carcamo, Overcrowded, Unsanitary Conditions Seen at Immigrant
Detention Centers, L.A. TIMES (June 18, 2014, 7:24 PM), http://www.latimes.com/nation/nationnow/la-nann-texas-immigrant-children-20140618-story.html#page=1.
55
Id.
56
Dave Hendricks, Border Patrol Detains 1,000 People at McAllen Station, Agents Warn About
Overcrowding, THE MONITOR (May 21, 2014, 9:53 PM), http://www.themonitor.com/news/local/borderpatrol-detains-people-at-mcallen-station-agents-warn-about/article_39e3117c-e15c-11e3-9cb10017a43b2370.html.
57
Id.
58
Id.
102
Millions of taxpayers’ dollars are spent on these detention centers in order to
confine people. 59 Many of these detentions do not even serve a purpose; some are
violations of our basic human rights; some centers deny detainees Due Process of the
law.60 Many undocumented immigrants who enter into the United States are detained;
however, many succumb to the harsh terrain of the United States-Mexico border.61 In
Brooks County, Texas, a reported 445 deaths were reported by the United States Border
Patrol in 2013.62 Brooks County officials have so many bodies of dead immigrants on
their hands, Baylor and Indiana University have intervened in order to help exhume and
identify the deceased immigrants. 63
B. Effect on the States
Undocumented immigration has taken a toll on the local and state law
enforcement agencies. “Immigration and Customs Enforcement (‘ICE’) leans heavily on
local law enforcement” agencies throughout the country to detect and arrest
undocumented immigrants. 64 However, this joint effort between federal and local
agencies has currently been halted due to lawsuits, lack of manpower to complete the
task, budgetary cuts, and restraints at the state level.65
59
No End in Sight: Immigrants Locked up for Years Without Hearings, ACLU,
https://www.aclu.org/immigrants-rights/no-end-sight-immigrants-locked-years-without-hearings (last
visited Jan. 10, 2015).
60
Id.
61
Miguel Almaguer, Tracy Connor & Olivia Santini, Texas’ Brooks County is ‘Death Valley’ for Migrants,
NBC NEWS (July 9, 2014, 7:25 PM), http://www.nbcnews.com/storyline/immigration-border-crisis/texasbrooks-county-death-valley-migrants-n152121.
62
Id.
63
Ildefonso Ortiz, Group tries to Identify Unknown Immigrants in Brooks County Cemetery, THE MONITOR
(May 22, 2013 5:05 AM), http://www.themonitor.com/news/local/group-tries-to-identify-unknownimmigrants-in-brooks-county-cemetery/article_d3c52db4-c27e-11e2-83ae-001a4bcf6878.html.
64
Amdur, supra note 9.
65
Id.
103
Holding undocumented immigrants is expensive and many local agencies have
seen no reimbursement from the federal government for detaining them.66 In 2009, the
county of Santa Clara, California, sought reimbursement with futile results.
67
Furthermore, in a common occurring situation, federal agencies mistakenly issue
immigration holds on American citizens. 68 This repeated inaccuracy by the federal
government has attributed to the costly effects on local and state agencies.
These
agencies have been the target of lawsuits, because the federal courts have ruled that local
municipalities can be held liable, since holding these detainees is a voluntary action.69
Efforts to curb undocumented immigration have led to devastating consequences.
Local municipalities “in Oregon, Washington, California, and Colorado,” are among a
few states that have initiated a halt on attempts to detain, or participate in, undocumented
immigration matters.
70
In conjunction with these efforts, “the mayor of
Philadelphia signed an executive order that refuses all compliance with detainers unless
supported by a judicial warrant.”71
Brook County, Texas is stretched thin combating the overwhelming influx of
undocumented immigrants entering into the United States. 72
The undersized law
enforcement agency of Brooks County has spent almost every penny trying to curb the
66
Id.
Id.
68
Id.
69
Id.
70
Id.
71
Id.
72
Chuck Ross, Texas Sheriffs Speak Out On Damage from Illegal Immigration, DAILY CALLER (July 29,
2014, 3:30 PM), http://dailycaller.com/2014/07/29/texas-sheriffs-speak-out-on-damage-from-illegalimmigration/.
67
104
influx of undocumented immigrants and deaths along the United States-Mexico border, in
Texas.73
On the other hand, a minority of states, such as Alabama and Arizona, have made
several attempts to become more active in the fight against undocumented immigration.74
Despite Arizona’s punitive legislation, S.B. 1070, much of this legislation has been
barred from enforcement by federal courts.75
Growing unresolved issues amongst federal and state agencies have forced some
states and local municipalities to halt combating illegal immigration due to costly and
legal issues that arise.76 On the other hand, the overwhelming influx on undocumented
immigrants has forced states to act and create legislation with futile results.77 Due to the
aforementioned issues, the states illustrated are in a legal limbo, as to whether or not they
should participate in undocumented immigration enforcement.
It seems that until
immigration reform is created and enforced by the federal government, the confusion and
frustration among the state and local municipalities will not dissipate. It should be the
federal government’s responsibility to make and resolve the difficult decisions regarding
undocumented immigration.78
73
Id.
Amdur, supra note 9.
75
Id.
76
Id.
77
Id.
78
Id.
74
105
III.
POLITICAL
A. Undocumented Immigration & Politics
The system isn't working when 12 million people live in hiding, and hundreds of
thousands cross our borders illegally each year; when companies hire
undocumented immigrants instead of legal citizens . . . when communities are
terrorized by ICE immigration raids—when nursing mothers are torn from their
babies, when children come home from school to find their parents missing . . .
When all that's happening, the system just isn't working.79
The effects of undocumented immigration have affected many avenues of
American society. The two questions that need to be addressed are: what federal
programs have been enacted to control the influx of undocumented immigrants and what
is the future of immigration reform? It seems that American politics have entered into a
deadlock of competitive rhetoric in order to gain an electoral and policy advantage over
one group or the other.80 Undocumented immigration has a profound impact on a large
portion of American life and is a serious issue that needs to be addressed, rather than be
used as a political conduit for candidates to juggle and lean on to win elections.81 For
example, before the 2014 November midterm election, some Senators were hoping for a
delay on immigration reform policies, in fear that if they chose a side, they would lose
their re-election campaigns.82 In light of this political move, immigration groups, such as
the National Council of La Raza, grew angry. National Council of La Raza President,
79
Lopez, supra note 45.
Fennelly, supra note 15.
81
Joshua Green, Obama's Immigration Reform Punt Is Good Politics, BLOOMBERG BUS. (Sept. 8, 2014),
http://www.bloomberg.com/bw/articles/2014-09-08/obamas-delay-on-immigration-reform-is-good-politicsbad-optics.
82
Id.
80
106
Janet Murguía, stated it best, “[w]e're tired of the finger pointing, and we're going to push
on both fronts and put pressure on both fronts to do more.”83
B. Band-Aid Solution
Fighting and cross-aisle attempts to curb any effort to resolve the immigration
dilemma is the lifeblood of our current immigration system. “As Congress has become
more polarized, both Democrats and Republicans have used procedural votes or poisonpill amendments as weapons to shape legislation, prevent the other party from offering
their proposals, or kill legislation altogether.”84
Even though it may seem like immigration reform is a relatively new issue, it is
quite the opposite. Immigration reform has been in and out of the hands of Congress
over the past few decades. In 1986, for example, Congress passed the Immigration
Reform and Control Act, which concentrated efforts to “preserve jobs for those who are
legally entitled to them—American citizens and aliens who are authorized to work in the
United States.” 85
However, despite the steps that have been taken in the past,
immigration reform still needs a comprehensive fix, rather than a quick solution to
address particular areas of concern.
In 2012, the Obama administration initiated the Deferred Action for Childhood
Arrivals (“DACA”), which has granted passage to over 600,000 children who were
83
Elise Foley, Immigration Advocates Juggle Fights Against Obama and GOP, HUFFINGTON POST,
http://www.huffingtonpost.com/2014/03/07/immigration-deportations_n_4920982.html (last updated Mar.
7, 2014, 6:59 PM).
84
Fennelly, supra note 15.
85
Immigration Reform and Control Act (IRCA), BOS. U. HUM. RES., http://www.bu.edu/hr/policies/federaland-state-laws/immigration-reform-and-control-act-irca/ (last visited Jan. 1, 2015).
107
brought into the United States illegally.86 This program was instrumental in providing
opportunities for children who met the required criteria to defer a removal action against
them. 87 DACA may seem instrumental in preventing mass deportations of children;
however, it is another attempt at a quick fix.88
In the summer of 2014, Congress faced a shortage of quick fixes to quell the
massive flood of undocumented children arriving from Mexico, El Salvador, and
Honduras, among the few.89 In Texas, in an effort to deter further arrivals of children
from Mexico and South American countries, Congress, along with Governor Perry,
declared a crisis and sent additional agents and National Guard troops along border.90
However, as stated by Basham Ahren, a former commissioner of Customs and Border
Protection, “that is not going to solve the fundamental problem that we have right now . .
. as long as the countries of origin and the families are willing to turn these children over
to these folks we're still going to have this problem.”91
C. A Good-Faith Attempt
In an effort to resolve America’s immigration problem, President Obama revealed
an executive order on immigration reform in November 2014.92 This immigration plan
would focus efforts on undocumented immigrants who have resided in the United States
86
Mark Hugo Lopez & Jens Manuel Krogstad, 5 Facts about Deferred Action for Childhood Arrival
Program, PEW RES. CTR. (Aug. 15, 2014), http://www.pewresearch.org/fact-tank/2014/08/15/5-facts-aboutthe-deferred-action-for-childhood-arrivals-program/.
87
Id.
88
Id.
89
Rebecca Kaplan, No Short-Term Fixes for Flood of Unaccompanied Child Immigrants, CBS NEWS (June
25, 2014, 5:27 AM), http://www.cbsnews.com/news/no-short-term-fixes-for-flood-of-unaccompaniedchild-immigrants/.
90
Id.
91
Id.
92
Max Ehrenfreund, Your Complete Guide to Obama’s Immigration Executive Action, WASH. POST (Nov.
20, 2014), http://www.washingtonpost.com/blogs/wonkblog/wp/2014/11/19/your-complete-guide-toobamas-immigration-order/.
108
for at least five years and would offer additional protection for children who have
qualified for DACA. 93 While many Americans, forty-six percent, are in favor of
President Obama’s executive action to United States citizenship, fifty percent of the
American public disagree with this unilateral action.94
President Obama’s executive order has not taken form, yet the efforts to remedy
the broken immigration system seem to have taken a halt due to threats of resistance from
the President’s challengers.95 A bill, which will be proposed by Alabama Congressman
Robert Alderholt, will seek to override any initiative by President Obama.
96
Additionally, this bill would undo any action taken by local municipalities that allow
them to refuse requests by the federal government to detain undocumented immigrants,
ultimately forcing compliance.97 Senator Rand Paul from Kentucky has also proposed a
bill that will attempt to negate any action by President Obama.98
As illustrated, many Americans and elected officials are still questioning
President Obama’s power to implement this unilateral action, and while it has been
issued, many obstacles are obstructing its passage before it can be declared final. 99
Therefore, due to the political instability to enforce or to deal with such a pressing issue,
93
Id.
Immigration Action Gets Mixed Response But Legal Pathway Still Popular, PEW RES. CTR. (Dec. 11,
2014), http://www.people-press.org/2014/12/11/immigration-action-gets-mixed-response-but-legalpathway-still-popular/#views-of-obamas-executive-action.
95
Seung Min Kim, House Bill would Undo President Obama’s Immigration Moves, POLITICO (Jan. 6,
2015, 6:29 PM), http://www.politico.com/story/2015/01/house-bill-would-undo-obamas-immigrationmoves-114011.html.
96
Id.
97
Id.
98
Rachel Huggins, Rand Paul Introduces Bill to Undo Obama's Immigration Order, THE HILL (Dec. 13,
2014, 6:45 PM), http://thehill.com/homenews/senate/227059-rand-paul-introduces-bill-to-undo-obamasimmigration-order.
99
Ehrenfreund, supra note 91.
94
109
undocumented immigrants are in a legal medium before “learn[ing] if any protection they
receive is permanent.”100
Unfortunately, politics and elections will determine the fate of comprehensive
immigration reform. For this reason, Hispanics must create a wave in the political arena
in order for their voices to be heard, and voting is the key to this success. 101 While
Hispanic population numbers continue to grow, this number would be irrelevant if
Hispanic voters do not turn out. “A major demographic shift means little politically if the
population that grows does not vote.”102
IV.
CONCLUSION
The effects of undocumented immigration are damaging the facets of American
society, and as expected, Americans are growing frustrated with the inability of the
federal government to find a resolution.103 Immigrants themselves are not the problem,
but rather, it seems that the response to the immigration situation is the drawback. Antiimmigration rhetoric has risen substantially over the past few years, and due to this type
of discourse, hate crimes against Latinos have risen as well. 104 Local governments
around the United States are taking financial blows as the federal government has failed
to reimburse state and local municipalities for their assistance on immigration
enforcement. 105 More importantly, the federal government is in a political deadlock,
100
Id.
Nill, supra note 14.
102
Id.
103
Id.
104
The State of Hate: Escalating Hate Violence Against Immigrants, supra note 43.
105
Amdur, supra note 9.
101
110
forcing President Obama to act unilaterally.106
After taking an in-depth look at the state of immigration in America, it can be safe
to say that a comprehensive reform is needed.
As of 2012, over eleven million
undocumented immigrants are living in the United States.107 Many of these people have
come to the United States in hopes of finding employment, seeking a better life, and
fleeing the violence in their native countries.108
Hispanic demographics are on a steady and swift rise.
According to Pew
Hispanic Center projections, the number of Hispanic voters will double by the year
2030. 109 Consequently, Hispanics can change the future of the American political
system.
Yet, nothing will change if the Hispanic population does not vote. According to
the Pew research center, Hispanic voters made up a trivial eight percent of the American
voters.110 An even more disconcerting statistic is that the number of Hispanic voters in
American society has stayed idle in the 2006 and 2010 elections.111
Additionally, in order to remedy the many misconceptions surrounding
immigration in America, the American public must dispel the myths that accompany
106
Ehrenfreund, supra note 91.
Jens Manuel Krogstad & Jeffery S. Passel, 5 Facts about Illegal Immigration in the U.S., PEW RES.
CTR., (Nov. 18, 2014), http://www.pewresearch.org/fact-tank/2014/11/18/5-facts-about-illegalimmigration-in-the-u-s/.
108
Roque Planas, These Are The Real Reasons Behind Illegal Immigration, HUFFINGTON POST,
http://www.huffingtonpost.com/2014/08/25/undocumented-mexicans_n_5709141.html (last updated Aug.
25, 2014).
109
Paul Taylor, Ana Gonzalez-Barrera, Jeffery S. Passel & Mark Hugo Lopez, An Awakened Giant: The
Hispanic Electorate is Likely to Double by 2030, PEW RES. CTR. (Nov. 14, 2012),
http://www.pewhispanic.org/2012/11/14/an-awakened-giant-the-hispanic-electorate-is-likely-to-double-by2030.
110
Jens Manuel Krogstad & Mark Hugo Lopez, 5 Takeaways about the 2014 Latino Vote, PEW RES. CTR.
(Nov. 10, 2014), http://www.pewresearch.org/fact-tank/2014/11/10/5-takeaways-about-the-2014-latinovote/.
111
Id.
107
111
undocumented immigration. Unfortunately, society has labeled many of these people as
criminals. 112
While it is true that a minority of undocumented immigrants have
committed crimes within the United States, this number and its portrayal in the media is
misleading to the public.113 In the period between 1999 and 2006, crime rates were at the
lowest in the states which had the most immigration populations. 114 Additionally,
undocumented immigrants are incarcerated at a much lower rate than their native-born
Americans’ counterpart.115
The second myth that must be dispelled is that undocumented immigrants come to
take jobs from hardworking Americans. Undocumented immigrants do not take good
jobs from hardworking Americans. For example, “[a]ccording to the Immigration Policy
Center, a nonpartisan group, research indicates there is little connection between
immigrant labor and unemployment rates of native-born [American] workers.”116
Until immigration reform can be accomplished, policymakers in Washington must
begin to feel the weight of the Hispanic voter. Latinos should let the federal government
know that quick fixes are not the solution. Reinforcing the border with additional troops
to deter undocumented immigrants is not the solution. 117 State enacted policies, like
Arizona’s S.B. 1070, is also a failed attempt to resolve America’s immigration dilemma.
112
Sotomayor: Labeling Illegal Immigrants Criminals Is Insulting, CBS NEWS (Feb. 4, 2014, 5:53 AM),
http://washington.cbslocal.com/2014/02/04/sotomayor-labeling-illegal-immigrants-criminals-is-insulting/.
113
10 Myths About Immigration, supra note 30.
114
Id.
115
Id.
116
Id.
117
Leigh Ann Caldwell, Perry Sending National Guard Troops to Border, CNN,
http://www.cnn.com/2014/07/21/politics/perry-national-guard-border/ (last updated July 21, 2014, 5:13
PM).
112
Arizona’s actions took steps in the wrong direction and demonized an entire group of
people through fear and anti-immigration policy.118
A resolution that will secure the border, manage undocumented immigrants in the
country, and make citizenship more accessible to immigrants around the world can
greatly benefit those who seek citizenship and the American public.119 More importantly,
a comprehensive fix may possibly repress the inflamed hearts of Americans toward
immigrants.120
Numerous obstacles lay ahead in resolving the issue of comprehensive
immigration reform. Partisan politics can no longer be the reason why a solution is not
adopted by the federal government. More importantly, the federal government should
understand the role it plays in the war of immigration reform.
The United States
government has an opportunity to expand and build stronger ties with the counties of
Latin America, and if done, the United States can possibly help these countries get back
on their feet in order to help quell the influx of undocumented immigrants at United
States’ borders.
The United States has spent many years fighting in countries overseas, and it
seems that the time has come for domestic issues to be addressed. The time is now, or
never, and the federal government must address the domestic issue of undocumented
immigration before the problem grows any larger. To reiterate, the consequences of
undocumented immigration are much larger than they seem, and clearly illustrated in
American society. The power to enact, manage, and control immigration reform, rests
118
Nill, supra note 14.
Id.
120
Id.
119
113
with the federal government, and not the states. 121 However, the resolution to
immigration reform rests in the hands of a minority demographic, the Hispanic voters,
and once this demographic beings to “flex its political muscle,” Washington might start
to listen.122
121
Hampton v. Mow Sun Wong, 426 U.S. 88, 116 (1976).
Andrea Christina Nill, Article: Arizona S.B. 1070: Comment: Latinos and S.B. 1070: Demonization,
Dehumanization, and Disenfranchisement, 14 HARV. LATINO L. REV. 35, 35 (2011).
122
114