let's stop making migration a crime
- LET'S STOP MAKING MIGRATION A CRIME
By David Bacon
Truth-Out oped, February 15, 2013
We need an immigration policy based on human, civil and labor rights,
which looks at the reasons why people come to the U.S., and how we
can end the criminalization of their status and work. While
proposals from Congress and the administration have started the
debate over the need for change in our immigration policy, they are
not only too limited and ignore the global nature of migration, but
they will actually make the problem of criminalization much worse.
We need a better alternative.
This alternative should start by looking at the roots of migration -
the reasons why people come to the U.S. in the first place. Movement
and migration is a human right. But we live in a world in which a
lot of migration isn't voluntary, but is forced by poverty and
so-called economic reforms.
Our trade policy, and the economic measures we impose on countries
like Mexico, El Salvador or the Philippines make poverty worse. When
people get poorer and their wages go down, it creates opportunities
for U.S. corporate investment. This is what drives our trade policy.
But the human cost is very high.
In El Salvador today, the U.S. Embassy is telling the government to
sell off its water, hospitals, schools and highways to give U.S.
investors a chance to make money. This policy is enabled by the
Central American Free Trade Agreement, whose purpose was increasing
opportunities in El Salvador for U.S. investors. It was imposed on
the people of that country in the face of fierce popular opposition.
Alex Gomez, a leader of Salvadoran public sector unions, came to San
Francisco in February to explain what the consequences of this latest
free trade initiative will be. He says if these public resources are
privatized, tens of thousands of workers will lose their jobs, and
their unions will be destroyed. They will then have to leave the
country to survive.
According to Gomez, four million have already left El Salvador. Two
million have come to the US, not because they love it here, but
because they can't survive any longer at home. These migrants come
without papers, because there are no visas for two million people
from this small country.
The North American Free Trade Agreement did even more damage than
CAFTA. It let U.S. corporations dump corn in Mexico, to take over
the market there with imports from the U.S. Today one company,
Smithfield Foods, sells almost a third of all the pork consumed by
Mexicans. Because of this dumping and the market takeover, prices
dropped so low that millions of Mexican farmers couldn't survive.
They too had to leave home.
Mexico used to be self-sufficient in corn and meat production. Corn
cultivation started there in Oaxaca many centuries ago. Now Mexico
is a net corn and meat importer from the U.S.
During the years NAFTA has been in effect, the number of people in
the U.S. born in Mexico went from 4.5 million to 12.67 million.
Today about 11% of all Mexicans live in the U.S. About 5.7 million
of those who came were able to get some kind of visa, but another 7
million couldn't. There just aren't that many visas. But they came
anyway because they had very little choice, if they wanted to survive
or their families to prosper.
Our immigration laws turn these people into criminals. They say that
if migrants without papers work here it's a crime. But how can
people survive here if they don't work? We need a different kind of
immigration policy - that stops putting such pressure on people to
leave, and that doesn't treat them as criminals if they do.
What would it look like?
First, we should tell the truth, as the labor-supported TRADE Act
would have us do, which was introduced into Congress by Mike Michaud
from Maine. We should hold hearings as the bill says, about the
effects of NAFTA and CAFTA, and collect evidence about the way those
agreements have displaced people in the U.S. and other countries as
Then we need to renegotiate those existing agreements to eliminate
the causes of displacement. If we provide compensation to
communities that have suffered the effects of free trade and
corporate economic reforms, that were intended to benefit U.S.
investors, it would be more than simple justice. It might give
people more resources and more of a future at home.
It makes no sense to negotiate new trade agreements that displace
even more people or lower living standards. This administration has
negotiated three so far, with Peru, Panama and South Korea. It is
now negotiating a new one -- the Trans Pacific Partnership. These
are all pro-corporate, people-displacing agreements. We should
prohibit these and any new ones like them. Instead, we need to make
sure all future trade treaties require adequate farm prices and
income in farming communities, promote unions and high wages, and
don't require the privatization of public services.
Increasingly these international agreements, like Mode 4 of the World
Trade Organization, treat displaced migrants as a cheap and
vulnerable labor force. Our trade negotiators call for regulating
their flow with guest worker programs. This is exactly the wrong
direction. We should ban the inclusion of guest workers in any
future trade agreement or treaty instead.
When diplomacy doesn't work, U.S. military intervention and aid
programs are to support trade agreements, structural adjustment
policies or market economic reforms. This has been U.S. policy in
Honduras and Haiti, for instance. This also must stop. If the U.S.
Embassy is putting pressure on countries like El Salvador to adopt
measures that benefit corporate investors at the expense of workers
and farmers, the Ambassador should be recalled and the interference
Finally, we should ratify the UN Convention on the Rights of Migrant
Workers and Their Families. This international agreement would give
us an alternative framework for recognizing the rights of displaced
migrants, and the responsibility of both sending and receiving
countries for their protection.
The failure of successive U.S. administrations to even present this
agreement to Congress for ratification highlights the unpleasant
truth about the real effect of our immigration policy. When millions
of migrants arrive here, they are criminalized because they lack
immigration status, especially when they go to work.
Labor and civil rights advocates often fondly remember the 1986
Immigration Reform and Control Act because of it had an amnesty,
signed by President Ronald Reagan, which gave legal status relatively
quickly to almost four million people. But the law also contained
employer sanctions for the first time, which we often forget. That
provision says that employers will be fined and punished if they hire
This provision was promoted by those who said that if work became
illegal, then undocumented migration would end. This clearly failed,
since the number increased many-fold in the years that followed.
Compared to the pressure to leave home, criminalizing work was not a
deterrent to those who sought work here so that their families at
home would survive.
This provision sounded like a law against employers, but it was not.
It became an anti-worker law. No boss ever went to jail for
violating it. The fines were not great. When the government agents
seek to enforce it, employers who cooperate with them are forgiven.
But over the last four years alone, tens of thousands of workers have
been fired for not having papers. The true objects of punishment
under this law have always been workers, not employers.
Now Congress is talking about a new reform, and we have to use this
opportunity to push to repeal this law. Some think that since a new
legalization will hopefully give many undocumented workers legal
status, sanction won't really affect anyone anymore.
But even the most positive predictions about a new legalization still
assume that millions of people will not quality because of stringent
qualifications, high fees and decades-long waiting periods. Those
people will still be subject to the sanctions law. And the day after
a new reform passes millions more people will come to the U.S.
because of the same pressures that caused past waves of migration.
This is especially true if a new immigration reform ignores the need
to renegotiate trade agreements and eliminate the huge displacement
These future migrants are not strangers. They are the husbands and
wives, parents, and cousins of people already here - people who are
already part of our communities. They come from the same towns, and
are linked to neighborhoods here in the U.S. by the ties that have
been created by migration, work and family. They will work in our
workplaces, participate in our organizing drives, and belong to our
unions. We need to keep the sanctions law from being applied to
them, making it a crime for them to work. Unfortunately, however,
Congress members aren't talking about getting rid of sanctions. In
fact, they and the administration want to make the current
application even worse.
So let's do a reality check. Let's tell the truth about how has this
law been used.
One method for enforcing sanctions happens when an employer uses it
to screen people it is going to hire, using an error-filled
government database called E-verify. Congress and the administration
are calling for making it mandatory for all employers to use this
database, and refuse to hire anyone who it flags as undocumented.
For people who are currently working now and have no papers, what it
means is that if they lose their jobs, it will be much hard to find
others. That will make people fear taking any action that offends
their boss, like joining a union or complaining about illegal
conditions. That's good for the boss, but bad for the workers.
Employers today not only use this database to screen new hires - they
also use it to reverify the immigration status of people who are
already working. This is a violation of the law. Once it accepts
the form filled out by a job seeker (called the I-9), along with
their ID, the employer can't reverify it all over again at some point
in the future. But they do. Sometimes it's convenient to get rid of
workers who have accumulated benefits and raises over years of
service, and replace them with new hires at lower wages.
Reverification just happened, for instance, to three workers who
belong to the International Longshore and Warehouse Union at Waste
Management, Inc. in San Leandro, California. The union has gone to
the Oakland City Council to protest these illegal firings, because
WMI operates under a city garbage contract.
Employers sometimes announce they intend to begin using the E-Verify
database when their workers start to organize. That's what managers
announced at the Mi Pueblo supermarkets in northern California.
There E-Verify checks are being used to terrorize workers to keep
them from supporting a union, Local 5 of the United Food and
Another method for enforcing sanctions against workers is even more
widespread. Immigration agents, working for the Immigration and
Customs Enforcement (ICE), go into the personnel records of an
employer. They then compare the information given by workers on the
I-9 form to the E-Verify database, looking for workers who don't have
legal immigration status. ICE then makes a list of those workers and
sends it to the company, telling the employer to fire them.
This is what happened at Pacific Steel Castings in Berkeley,
California, last year. Two hundred and fourteen workers were fired
as a result. Some had worked in the foundry for over 20 years. Many
lost their homes, and their children's dreams of going to college
Over last four years, hundreds of thousands of workers have lost
their jobs in these enforcement actions, called I-9 audits. Almost
five hundred janitors in San Francisco, and over a thousand in
Minneapolis. Thousands of workers doing some of the hardest work
imaginable in meatpacking plants around the country. Farm workers.
Construction workers. But the employers all given reduced fines, and
many immunity from punishment entirely, if they cooperated in firing
their own workers.
If unions and communities mount a fight that exposes the terrible
human cost of these firings, it is possible to stop them. The young
Dreamers showed that this is possible. These courageous young people
convinced the administration to stop deporting students brought to
the U.S. without papers as children. They forced the administration
to change the way it enforces immigration law. It can be done for
workers too, if there's a fight.
But we must also change the sanctions law. Otherwise, our experience
over the 25 years since it passed shows that immigration authorities
will simply find another method for making working a crime for people
who don't have papers.
The other unpleasant truth about sanctions is that they are linked to
the growth of guest worker programs. One of the main purposes of
making it a crime to work without papers is to force people to come
to the U.S. with visas that tie them to their employers and
recruiters. These workers are often more vulnerable than the
undocumented, since they get deported if they lose their jobs or get
fired. Guest worker programs have been called Close to Slavery by
the Southern Poverty Law Center and others who have documented their
extreme exploitation. The sanctions law functions as a way to
pressure people into choosing that path to come to the U.S. to work.
When employer sanctions are used to make workers vulnerable to
pressure, to break unions or to force people into guest worker
programs, their real effect is to force people into low wage jobs
with no rights. This is a subsidy for employers, and brings down
wages for everyone. The sanctions law makes it harder for all
workers to organize to improve conditions. This doesn't just affect
the workers who have no papers themselves. When it becomes harder
for one group to organize, other workers have a harder time
Some Washington lobbyists accept as a fact of life that the sanctions
law will continue, or even worse, that E-Verify will become a
mandatory national program for all employers. But for unions and
workers who have had to deal with its effects , it would be much
better to immediately repeal it, and dismantle the E-Verify database.
The use of the sanctions law against workers and unions is what led
the California Labor Federation to call for its repeal as early as
1994, a position it continued to adopt in successive conventions.
Other unions joined it including the garment unions and service
employees. Finally labor councils in California and then around the
country passed resolutions making the same call, and sent them to the
historic AFL-CIO convention in Los Angeles in 1999. This led to an
historic debate and the adoption of a new, pro-immigrant policy.
Delegates at that convention believed that we have to stop enforcing
immigration law in the workplace, because its real effect is to make
workers vulnerable to employers, and to make it harder for all
workers to organize to improve conditions.
In addition to repealing the national sanctions law, we should also
prohibit states from enacting copycat measures. These laws have
passed not just in Arizona or Alabama or Mississippi. California
passed a state employer sanctions law before the federal law took
effect in 1986.
What would really help workers to raise wages and improve conditions
is much stricter enforcement of worker protection and
anti-discrimination laws, for everyone. Funding used for immigration
enforcement on the job should be given instead to the Department of
Labor, the Occupational Safety and Health Administration, the
National Labor Relations Board and other labor law enforcement
agencies. It will be a good day for all workers when ICE agents
instead become wage and hour inspectors.
Threats by employers who use immigration status to keep workers from
organizing unions or protesting illegal conditions should be a crime.
That makes it necessary to overturn two Supreme Court decisions,
Hoffman and Sure-Tan. In these cases the court said that if workers
are fired for union activity and have no papers, the boss doesn't
have to rehire them or pay them lost wages, because the sanctions law
makes it illegal to employ them to begin with. But when there's no
punishment for violating labor rights, workers have no rights. This
also hurts other workers in the same workplace who want to organize a
union, since it makes the undocumented so vulnerable. Instead, we
should increase workplace rights by prohibiting immigration
enforcement during labor disputes or against workers who complain
about illegal conditions.
To ensure that in the workplace we all have the same rights we also
have to eliminate the way undocumented people get ripped off by funds
like Social Security and unemployment. All workers contribute to the
Social Security fund, but because undocumented people are working
under bad numbers, they pay in but can never collect the benefits.
This will come back to haunt us when those workers need disability
payments or get too old to work - something that happens to us all.
This is the reason we set up the Social Security system to begin with
- because we don't want old people eating dog food, regardless of
where they were born.
Instead today the Social Security number has become much more a means
to check immigration status, harming workers instead of providing
them the benefits that were its original and true purpose. There is
a simple solution to this problem as well. Social Security numbers
should be made available for everyone, regardless of immigration
status. Everyone should pay into the system and everyone has a right
to the benefits those payments create. By the same token all workers
should be able to receive unemployment benefits regardless of status,
since they and their employers pay into the funds.
In the end, we need an immigration policy that brings people
together, instead of pitting workers against each other, as our
current system does. During a time of economic crisis especially we
need to reduce job competition, rather than stoking fears. In 2005
Congresswoman Sheila Jackson Lee of Houston made an innovative
proposal that would have set up job creation and training programs
for unemployed workers at the same time that it would have given
legal status to workers without papers. This proposal put unemployed
workers and immigrants on the same side, giving them both something
to fight for whether they were out of work, or working without
This proposal, and the others made here, are part of the Dignity
Campaign, a plan for immigration reform based on human, civil and
labor rights. In the last three years, local unions and labor
councils in San Francisco, Silicon Valley and Alameda County adopted
resolutions supporting the Dignity Campaign, arguing that trade
policy is linked to the increasing vulnerability of immigrant workers
because of the sanctions law and guest worker progrsms. The Labor
Council for Latin American Advancement adopted a similar resolution.
An immigration policy that benefits migrants, their home communities,
and working people here in the U.S. has to have a long term
perspective. Instead of just trying to please interest groups
well-represented in Congress, we need to ask, where are we going?
What will actually solve the problems that we experience on our jobs
and in our homes with current laws and policies?
We need a system that produces security, not insecurity. We need a
commitment to equality and equal status - getting rid of color and
national lines instead of making them deeper. We need to make it
easier for workers to organize, by getting rid of what makes people
vulnerable -- to end job competition we need full employment, and to
gain organizing rights we need labor law enforcement together with
eliminating sanctions and firings. It's not likely that many
corporations will support such a program, so the politicians who
represent us have to choose whose side they're on.
Working people in Mexico, El Salvador, the Philippines, the US and
other countries need the same things. Secure jobs at a living wage.
Rights in our workplaces and communities. The freedom to travel and
seek a future for our families, and the ability to stay home and have
a decent future there too. The borders between our countries, then,
should be common grounds that unite us, not lines that divide us.
Coming in 2013 from Beacon Press:
THE RIGHT TO STAY HOME: Ending Forced Migration and the
Criminalization of Immigrants
DISPLACED, UNEQUAL AND CRIMINALIZED - A Report for the Rosa Luxemburg
Foundation on the political economy of immigration
With Anoop Prasad on what's wrong with the current immigration reform
proposals in Washington DC
With Solange Echevarria of KWMR about growers push for guest worker
programs. Advance to 88 minutes for the interview.
At the Gandhi-King Youth and Community Conference, Memphis 2011
See also Illegal People -- How Globalization Creates Migration and
Criminalizes Immigrants (Beacon Press, 2008)
Recipient: C.L.R. James Award, best book of 2007-2008
See also the photodocumentary on indigenous migration to the US
Communities Without Borders (Cornell University/ILR Press, 2006)
See also The Children of NAFTA, Labor Wars on the U.S./Mexico Border
(University of California, 2004)
Entrevista con activistas de #yosoy132 en UNAM
Interview by activists of #yosoy132 at UNAM (in Spanish)
Two lectures on the political economy of migration
For more articles and images, see http://dbacon.igc.org
David Bacon, Photographs and Stories
[Non-text portions of this message have been removed]