Abuses Resulting from Federal Immigration Enforcement Efforts

CHAPTER 6

MEXICANS, THE INITIAL U.S. LATINO GROUP IN 1848, ACTUALLY LIVED IN WHAT is now the United States decades before the arrivals in 1620 of non-Hispanic Europeans at Plymouth Rock. Spaniards first founded St. Augustine, Florida, in 1565, and later, in 1610, founded the Santa Fe area in New Mexico (Weber 1973, 14). Notwithstanding, the white majority viewed Latinos as newcomers with no rights and abusively treated them as nonwhite people. This Anglo attitude arose from the nation’s historical foundations, which envisioned a nation of free white men who would administer governmental affairs. The Founding Fathers provided that representation shall include the total of all free persons plus “three fifths of all other Persons,”1 constitutionally recognizing slaves as property and as less than any white person.

Anglo American attitudes immediately caused conflict with the new Latino population. First, the adoption of Mexican persons as American citizens created tensions. Regardless of their citizen status, Anglos viewed Latinos scornfully as just “Mexicans,” a blatant attitude that endured for over a century. Even if the Latino happened to be a soldier in uniform immediately after the end of World War II, he was still a “Mexican” to racist Anglo restaurant owners (Perales 1974, 156–57). During this one hundred–year period, millions of Mexicans and other Latinos entered the United States, some legally and many others surreptitiously. In the process of interactions, both the society at large and law enforcement encountered difficulties in distinguishing between immigrants on one hand and legal residents and citizens of Latino descent on the other. As a result, in this discussion of Latino injustices, the author also addresses the treatment of undocumented Latinos, since immigration enforcement inevitably snares U.S. citizens and resident aliens in the crossfire (Stevens 2011, 608, 618–35; Preston 2011; Perez and Lutz 2011).

For well over a century, America’s immigration policy effectively promoted maintenance of a Caucasian-race majority. Congressional leaders and the Supreme Court followed this ideology, barring the admission of Chinese and promoting efforts to curtail Mexican immigration (Salinas and Torres 1976, 866–67). In 1924, Congress established the national-origins quota system, which limited immigration from Eastern Hemisphere countries to 150,000. Western Hemisphere immigration was not restricted.2 In 1965, Congress made changes and limited Western Hemisphere visas to 120,000 per year.³ For the first time in history, Congress placed Western Hemisphere countries under an immigration quota, an action that effectively increased undocumented entries. In 1976 Congress equalized the treatment towards the Eastern Hemisphere and the Western Hemisphere by limiting each hemisphere to 20,000 immigrants per country.⁴ While on the surface this policy sounds equal, the law has adversely affected U.S. Latinos who have families in Mexico and other Latin American countries. These citizens now have to wait a disproportionately longer time—sometimes up to twelve years—to enjoy “family unity.”

Peonage and Other Unfair Labor Conditions

The status of being immigrants, both legal and undocumented, as well as being poor and powerless American citizens, increases the chances of being a victim of peonage.⁵ The Thirteenth Amendment to the United States Constitution provides that neither slavery nor involuntary servitude, except as a punishment for crime, shall exist within the United States.⁶ The next Amendment, the Fourteenth, provides in relevant part that no State shall deprive any person⁷ of life, liberty, or property, without due process of law, nor shall any State deny to any person within its jurisdiction the equal protection of the laws.⁸

Congress enacted an anti-peonage statute to enforce the Thirteenth Amendment. The law forbids one from holding or returning any person to a condition of peonage, or from arresting any person with the intent of placing him in, or returning him to, a condition of peonage. The statute provides for a maximum sentence of any term of years or life if the violation results in death, kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to kill.9

Historically, based on constitutional history, a discussion of slavery or peonage related to Africans. Today, however, peonage and slavery applies to persons of all races. In the Slaughterhouse Cases, a post-slavery case, the Supreme Court observed that the word “servitude” means more than just slavery, and it is intended to “forbid all shades and conditions of African slavery.”¹⁰ While the Court initially questioned whether persons other than African Americans could receive protection under the Thirteenth Amendment, the opinion dictated that the Amendment forbids any other kind of slavery, including “Mexican peonage or the Chinese coolie labor system”¹¹ The term “Mexican peon” appears in the writings of several sociologists and historians (Acuña 1972, 86–88, 137; Taylor 1934, 36, 325–29; Gonzales 1999, 122; Salinas 2005, 339–41). Concern over Mexican-descent worker abuses prompted LULAC to address Mexican peonage in its founding charter when Alonso S. Perales and other civil rights leaders founded the group in 1929 (Taylor 1934, 244).

In United States v. Nelson,¹² seafood company owner Benjamin Harrison Nelson hired a Houston man to supply him with undocumented workers. Nelson paid him $100 per alien. He would then deduct that amount at the rate of $10 a day, their daily wage. In other words, the first ten days they provided labor just to eliminate the debt. The aliens never knew up front that they had a built-in debt when they began their employment.

After working three days around the pungent odor of oysters and shrimp, two of the aliens went to collect their pay so they could leave. Nelson surprised them when he informed them that they owed him seven more days of labor to settle the debt. The two men, frustrated by the news, walked to the corner store to see if they could figure out a way to leave the bay-area town. They saw some Latino house painters and asked if they had room in the van to get back to Houston. The driver agreed, and as they headed down the road, a fellow worker advised Nelson that his indebted servants had escaped. Nelson and his son, armed with rifles, succeeded in racing down the road in their pickup trucks, forcing the painter’s van to stop. Nelson and his son retrieved only the two aliens who still owed money for the transporting fee.

By pure chance, one of the painters knew one of the two men who were taken at gunpoint to the town. He notified that victim’s family in Matamoros, Mexico, across from Brownsville, Texas. The family then informed a federal prosecutor, who drafted a search warrant for the seafood company premises. Based on the testimony of the victims and items found in the search, including a notebook with proof of the transporter payments, a federal grand jury indicted Nelson for peonage, kidnapping, and carrying away a person with the intent to hold that person as a slave. The grand jury also indicted Nelson for aiding and abetting the coyote (transporter) in the transportation of unauthorized aliens. After the jury found Nelson guilty, he appealed, and the Fifth Circuit Court of Appeals affirmed his convictions (Salinas 2005, 339–41).

The collaboration between local and federal immigration officials in the apprehension and removal of undocumented immigrants is not new in American history. These cooperative efforts occurred during the notorious 1930s Operation Repatriation and again in the tactlessly named 1950s Operation Wetback. Two factors should affect whether future abuses occur as frequently. First, the U.S. Latinos sixty years ago did not have the numbers or the political muscle. Second, Supreme Court jurisprudence had not clarified what constitutes an “unreasonable” seizure, as recent federal court cases have accomplished.13 While the larger, more vocal Latino community may not fully succeed in preventing the deprivations, Latinos are definitely better positioned politically.

The onset of the Great Depression’s economic hardships caused politicians and small farmers to blame “the Mexican” for their misfortunes, and prompted federal and local law-enforcement deportations. President Herbert Hoover, for instance, blamed the economic woes on the presence of unauthorized workers (Acuña 1972, 190–91). By the late 1920s, Mexican-descent persons represented the largest number of undocumented workers (Acuña 1972, 141–42). The deportation enforcement unfortunately became contaminated with racist diatribes by Texas Congressman Box, who referred to Mexicans as a “degenerate” race (Gottheimer 2003, 157). He also expressed his goal of protecting American racial stock from further degradation through “mongrelization,” his description of the “Mexican peon,” the product of a Spanish peasant who had mixed with low-grade Indians (Box 1928).

Not surprisingly, these attacks contributed to the deportation fervor. In the process, agents nabbed adult American citizens (Balderrama and Rodriguez 1995, 98–107). Determining alien or citizen status by mere appearance is impossible. Naturally, the repatriation movement resulted in the inclusion of American-citizen children among repatriates, approximately 60 percent of all deportees (Balderrama and Rodriguez 1995, 183). In Los Angeles, the U.S. city with the largest and most concentrated Mexican population, officials discovered that “only a small percentage of the Mexicans were undocumented” (Rosales 2000, 80).

Notwithstanding the harsh anti-Mexican commentary and the drastic removal actions, American leaders in times of economic necessity usually relied on their Mexican amigos (friends). When World War II prompted U.S. involvement, Congress immediately initiated a temporary Bracero Program (from brazos or arms) to import Mexican workers to replace American men. This “temporary” statute lasted more than twenty years.14

After benefiting from Mexican labor for several years, President Eisenhower ungratefully approved Operation Wetback during the 1950s to deal with complaints of poor economic conditions and surplus labor. The Immigration Service operation involved the collaboration of federal, state, county, and municipal authorities in efforts to control the “invading force” of Mexican migrants (Samora 1971, 52; Copp 1971, xv). Once again, agents deported Mexican-descent permanent resident aliens and citizens by birth or naturalization along with undocumented persons (Rosales 2006, 335).

The Bracero Program contributed to an increase in unauthorized Mexican entry because it convinced other Mexican nationals that the United States had a high demand for labor. An excessive number applied. Obstacles to lawful admission prompted many to enter without permits. The extreme racial discrimination suffered by Mexicans in Texas led to Mexico’s initial objection to providing that state with braceros. As a result, when employers demanded workers, this triggered an influx of undocumented aliens into Texas (Acuña 1972, 169–70; Samora 1971, 45). For instance, in 1950, some 500,000 undocumented Mexican aliens were apprehended, while only 120,000 Mexican contract laborers and 18,000 Mexican authorized immigrants entered the United States (Samora 1971, 197).

The Bracero Program’s demise began with dissatisfaction among unions and laborers who asserted that imported labor displaced domestic labor (Galarza 1964, 16, 132, 145, 199–218). Upon the program’s 1964 termination, Mexico warned American officials of future massive undocumented entries. After the program’s end, the apprehensions of undocumented aliens increased from 86,597 in 1964 to 788,145 undocumented aliens in 1974, an increase of 810 percent (U.S. Immigration and Naturalization Service 1964, 7; U.S. Immigration and Naturalization Service 1974, iii, 9).

In 1978, Congress created the Select Commission on Immigration and Refugee Policy (SCIRP), a year after President Carter submitted a plan asking Congress to add 2,000 new Border Patrol agents. SCIRP met during the last year of the Carter administration and developed amnesty and employer sanction proposals (Salinas and Torres 1976, passim). In early 1981, the Hesburgh Commission (SCIRP) submitted its report to President Reagan, and SCIRP continued its work.¹⁵ President Reagan eventually signed the Immigration Reform and Control Act of 1986 (IRCA) (Chishti, Meissner, and Bergeron 2011), a law primarily known for granting amnesty or legalization¹⁶ to undocumented aliens, and for sanctioning employers who knowingly hire unauthorized workers.¹⁷

The continued surge in undocumented immigration fed the anti-alien politics during the 1994 congressional election. From this anger, adeptly exploited by Speaker Newt Gingrich, Congress in 1996 enacted two of the nation’s harshest anti-immigrant statutes ever.18 One statute not only expanded the definition of an aggravated felony to include misdemeanors, but also made the aggravated felony conviction retroactive for removal (deportation) purposes.¹⁹ Since this time, the immigration battlefield has been malicious. National government policy changes resulted in more enforcement at the California border, and the presence of American vigilantes along portions of the Arizona border made the crossings more dangerous by respectively driving the migrants into the Arizona desert, and by having gun-toting civilians detain suspected aliens (Bender 2003, 135).

Under President George W. Bush, the government initiated Operation Return to Sender (Flaccus 2007, A4). Primarily billed as a concerted effort to nab criminal aliens, over 75 percent of those apprehended in the five-year period prior to 2009 were noncriminal persons employed in gainful endeavors (Bernstein 2009, A1). During this same Bush administration, Congress authorized billions of dollars for a fence to keep aliens from crossing our Southern border.²⁰ Ironically, most Americans, including conservatives, praised President Reagan in 1987 for telling Soviet leader Gorbachev to tear down the Berlin Wall.

Classification and Typecasting of Undocumented Aliens as Criminals

Activists justify their anti-immigrant fervor by citing the moral depravity, economic drain, and rising crime rate that allegedly accompany undocumented aliens. Simultaneously, racist motives often surface. For example, Terry Johnson, a North Carolina sheriff, claimed that Mexicans have lower moral values than Americans, adding that Mexicans approve of having sex with 12-year-old girls. Another North Carolina sheriff raised concerns about the tolerance and ability of local police to enforce immigration law fairly. Sheriff Steve Bizzell complained that Mexicans rape, rob, and murder “American citizens.” He admitted that, as the sheriff, he responded on behalf of people, apparently whites, who asked him what he was going to do about all “these Mexicans” (Weissman 2009).

In 2010, Arizona enacted an “attrition through enforcement” statute.21 In addition to the federal government’s inaction, Governor Jan Brewer justified the state’s law on the crime generated by migrants, including “beheadings” (Fox News 2010). Brewer added that agents found headless bodies in the desert, a claim the Arizona Guardian