On June 15, Secretary of Homeland Security Janet Napolitano sent a memorandum to the heads of the U.S. Citizenship and Immigration Services (USCIS), Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE) in which she urged “prosecutorial discretion” in dealing with the deportation of certain undocumented youth brought to the United States as children, commonly referred to as DREAMers. However, the Department of Homeland Security (DHS) is clear that the memo offers no guarantee of a stay of deportation and “confers no substantive right, immigration status or pathway to citizenship.” The memo also does not apply to the vast majority of undocumented folks in the country, particularly those who are either over thirty or arrived after the age fifteen, are not in good educational standing and have not served in the military, or are saddled with criminal records. Of course it must be kept in mind that simply being undocumented in the United States makes it especially difficult both to obtain a decent education and maintain a clean record.
According to Napolitano, if ICE, CBP or USCIS agents encounter undocumented individuals who meet the stipulated criteria, they “should immediately exercise their discretion, on an individual basis, to prevent low priority individuals from being placed into removal proceedings.” For those who are already in removal proceedings but who have not had a final order of removal issued, ICE should exercise prosecutorial discretion on an individual basis by deferring action for two years. Furthermore, action should be deferred against those who meet the criteria, can pass a background check, and are at least fifteen years old.
Essentially, this adds up to yet another promise from the current administration that it will take steps to halt the deportations of a certain group of undocumented Americans, and there is good reason to remain skeptical. Aside from Napolitano’s tepid use of the word “should” instead of a more forceful “must,” DHS already announced late last year that it would be reviewing 300,000 open deportation cases of individuals who met similar criteria, yet fewer than two percent have been closed as a result. Although it has been widely reported as such–even in progressive media outlets such as Democracy Now! and Dissent—this is not an executive order, since it leaves the final call up to the individual agencies of DHS. This is not very encouraging, especially in view of a report published last year by Arizona-based activist group No More Deaths that demonstrates that DHS has no effective oversight mechanism, and documents a widespread culture of cruelty among Border Patrol agents.
There is, however, another important provision of the memo that has deservedly received a great deal of attention: individuals who have had action deferred may then apply for work authorization during those two years. Currently, many undocumented people are forced to either use a false social security number—which is a crime and can lead to deportation—or to stick to low-paying, unstable jobs. Understandably then, many DREAMers see this possibility for temporary work authorization as an overwhelmingly positive development. Yet one could also argue that it is actually an institutionalization of exploitation, and just might herald the creation of a new type of guest worker program in the United States.
Guest worker programs are often presented as a part of the solution to the country’s broken immigration system, and they currently enjoy rather widespread bipartisan support and the backing of large corporations. They are nonetheless inherently exploitative because they are designed to commodify human beings by providing a legal means for the state to profit from the labor of immigrants without granting them full rights, while simultaneously diminishing the bargaining power of labor as a whole on the national level. While there are no longer large programs in the United States such as the infamous Bracero Program, in a 2007 report entitled “Close to Slavery: Guestworker Programs in the United States,” the Southern Poverty Law Center argues that the country’s current H-2 program is in essence a new form of guest worker program, and not much better than forced bondage. Additionally, there is the J-1 Summer Work and Travel Program, which the State Department was moved to revamp last month due to complaints from program participants, such as the workers at a Hershey plant in Pennsylvania who were forced to do backbreaking work for scant pay. These visas are guest worker programs in all but name, and Napolitano’s memo just might amount to the backdoor creation of yet another one.
Individuals are only eligible for deferment if they are at least fifteen years old, which is coincidentally around the same age at which many states allow children to legally work. This deferment, in turn, does not come with any immigration status whatsoever, or even a guarantee that eligible individuals will not be deported. The authorization to work must be viewed from within this framework, as it practically ensures that the vast majority of those who are granted permits will be unable to leave the ever-expanding precarious labor market of today’s neoliberal economy, since most companies would be wary of hiring someone who has no legal status and only a two-year deportation deferment to a stable, well-paid position. Since individuals will not gain any immigration status, many everyday activities—such as driving a car to get to work—will remain crimes and thus cause for deportation if caught. Although the many courageous undocumented activists who have occupied Obama campaign offices around the country have demonstrated that they are not afraid to engage in acts of civil disobedience, the fear of losing deferment and being deported will most likely act as a deterrent for those with work permits to organize, especially in view of the violent police crackdown on the Occupy movement. This will only serve to concentrate more power into the hands of large employers.
Any undocumented individuals who are not picked up by CBP or ICE and would like to be granted deferment and work authorization must come forward to USCIS. In doing so, they will be giving detailed personal information to the government without receiving any legal status or guarantee that they will not be deported in return, or even being provided with an appellate mechanism if their application is denied. As a result, it will be much easier for the government to control these individuals and deport them if they so wish. For those whose applications are accepted, deferment and work authorization are subject to renewal after two years, and it is likely that national economic trends and the needs of capital will play a role in this process.
In The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Michelle Alexander argues that institutionalized racial control in the United States has undergone several transformations: from slavery to the Jim Crow laws and finally the current system of mass incarceration sustained by the War on Drugs. Her analysis should serve as a warning for immigrant activists to be wary of old tricks being dressed up in new clothing. In many ways it looks like the Obama administration has bypassed a dysfunctional Congress and broadly outlined plans for a new, two-year guest worker program, only this time around participants are not even granted temporary legal status. However, they are for the most part well-educated and bilingual, and understand the intricacies of American culture as well as any native-born citizen. In other words, they would make excellent employees in the services industry, complementing the more than ten million undocumented folks unaffected by the memo who will remain further underground. What’s more, Napolitano’s memo was issued a mere two days after USCIS announced that it will not be possible for companies to hire workers holding temporary H-1B visas until October 2013 at the earliest. The H-1B visa differs from the H-2 visa in that they are issued to skilled workers, but even so, a former participant described it as “a form of involuntary servitude” in an interview with David Bacon. One cannot help but connect the dots between the two announcements made only days apart: one temporarily halting the authorization of skilled foreign nationals to work, and one temporarily authorizing well-educated undocumented Americans to work.
The revolutionary Italian thinker Antonio Gramsci believed that the ruling class must take on the aspirations and desires of the popular classes in order to maintain hegemonic rule, and at times exchange carrots for the people’s consent to the prevailing structure. With talk of halting deportations and granting work permits, Napolitano’s memo sure looks like a large carrot upon first glance, but in reality it offers no guarantee that deportations will be stopped, and no legal status or pathway to citizenship. In light of this, it could be argued that the authorization to work provision will perpetuate the current injustice of undocumented folks working hard for low wages and paying taxes to support government programs such as social security from which they will not be able to benefit, all while powering the American economy and living under a constant fear of deportation.
Alexander argues that in order to dismantle the current system of mass incarceration in the United States we must move beyond taking legal action and confront it as a moral issue by being unafraid to stand in solidarity with those millions of Americans who have been labeled “criminals” by a racist justice system. There is no one more deserving of American citizenship as the million or so young DREAMers who might be affected by this new shift in DHS policy, but in recognizing this we must not divide the undocumented community and assume that the ten million undocumented folks who are ineligible are also unworthy. The role of American economic policies such as NAFTA in fueling migration from Mexico and other places of the world has been widely documented elsewhere, and this must be kept in mind when debating immigration. Obviously, an actual halt to deportations would be a welcome change while these policies are reformed, but in light of the criminalization of undocumented folks in the country, even an executive order cannot truly accomplish this if it is not accompanied with the bestowal of a regular immigration status. Indeed, due to the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, which mandates the deportation of lawful permanent residents for some minor and non-violent offenses, nothing short of citizenship can ensure this.