Let’s make a toast, but don’t drink yet

Thursday felt like time for a toast for America’s largest social movement, the folks fighting for immigrant rights. With the news that the Obama administration would review many of its pending 300,000 deportation cases and allow some of those with no “criminal” record to stay, you could literally hear the cries of joy jumping out of Facebook updates, twitter feeds, cafecito spots (I live in Miami), college campuses, and even a detention center or two.

After over two years of pressuring the Obama administration to use its executive power to stop tearing apart immigrant families and communities; after hunger strikes, 1000 mile walks, and mass arrests, after multiple insistences from the Administration that it didn’t have that authority, after multiple cover-ups by the administration of how many people they were deporting that had done nothing wrong, it seems like the Administration is finally listening. And while there are tears of joy, and sighs of relief, there is also plenty of healthy skepticism. After all, we have an Administration that has cried (falsely), “we only deport dangerous criminals!” more than that boy who cried wolf.

So the questions remain.

Who is going to be carrying out this new case-by-case review? Is it going to be the ICE agents whose union doesn’t want to use its discretionary power and calls this a  “back door amnesty?” What is their incentive to review cases fairly?

And when the administration says that they will focus on “criminals”, what do they mean? Isn’t immigration policy the same set of laws that famously calls people “aggravated felons” for things that are neither aggravated nor felonies? Isn’t ICE the same agency that deported thousands of suspected “terrorists” after 9/11 that were never really terrorists? And don’t ICE’s “worst of the worst” categories include a Baptist pastor with a 16 year old conviction from when he was homeless, a Gulf War Veteran with Post Traumatic Stress Disorder who was arrested for marijuana possession after his wife died, and a 36-year-old youth community worker who helps young people stay away from the mistakes he made as a 16 year old? If the Administration is really turning over a new leaf, does that mean ICE is turning over a new leaf?

And then there is what the Obama Administration still refuses to do. It still refuses to create enforceable standards for how it treats immigrants in detention so that they don’t die in custody. The administration still refuses to reign in the deputized powers it gives to bad sheriffs with long lists of civil rights complaints like the real-life Boss-Hog, Joe Arpaio. The Administration still refuses to call of its “creepy” Secure Communities program, which is looking more and more like the first step of a science fiction-like national database that may one day include everyone.

But the Administration is also failing to take the lead in pushing common sense legislation that will begin to fix the broken immigration system while everyone waits for the mythical grand compromise. For one, the best way to ensure the case-by-case reviews o f immigration cases is done right is to give immigration judges back the discretion they need (and lost in 1996) instead of pushing ICE employees to exercise the discretion many of them seem to not want (that they gained over a decade ago).

But lets not rain on the parade. This is no doubt a victory. Afterall, it seems like there are only a few constituencies of non-millionaires that have gotten any significant demand from the administration: the LGBT movement, the Tea Party, and the immigrant rights movement to name a few. And the tie that binds these movements together (for better or worse) is that they fought like hell and refused to just “let the President do his job.”

So let there be a toast. A toast to democracy-in-action and the thousands of squeaky wheels that provided the vehicle to demand more oil. A toast that remembers those families that new policies may never help, the ones that have already been separated and torn apart. And a toast to the hope that regular people are pushing the Administration to finally have enough courage to make real change.

Yep, its time for a toast…but don’t drink the juice yet.

This summer, Organizing Upgrade asked Aarti Shahani to characterize the shifting landscape of immigration reform. This essay came weeks after her ground breaking report on Homeland Security’s infamous 287(g) program, which made national headlines and was entered into the Congressional Record. Aarti considers the limits of the prevailing framework for immigrant rights and points to structural shifts in state and federal policy that cry for new analysis and innovative action.

Our Moment

New York, 2009 – The minority is about to become the majority in the United States. This fact is seen and feared by the Right, particularly White nationalists. Meanwhile neoliberalism – specifically the contradiction of free capital and closed borders – is giving us border walls, cheap “illegal” labor, and a new cash crop for the super-sized prison industry.

Immigrants are the fastest growing segment of the US prison population. In 2003, all immigration functions were inserted into the newly formed Department of Homeland Security. Immigration authority has passed through many hands, from the Department of Treasury to Labor to Justice. Today, for the first time in American history, we are structurally treating immigration as a security threat to be solved by police and prison.

You can see this shift as a radical break with how the U.S. has historically managed migration, or continuous with how the U.S. relies on the criminal justice system. While other countries approach risk with environmental, health, or education solutions, the United States develops crime strategies—that is, writing the “risky” behavior into penal codes and prosecuting it. Immigration is simply the latest field where our society is, in the words of scholar Jonathan Simon, “governing through crime.”

Recently I co-authored “Local Democracy on ICE,” a study on a tiny law that, for the first time in American history, allows federal executives to extend to local community-based agencies the extraordinary arrest and incarceration powers originally carved out for immigration police stationed at the borders. This devolution – shifting immigration enforcement from federal to local hands – is the rightwing strategy on immigration. Let’s make sure that the border follows illegals into every street of the interior by turning teachers, nurses, librarians, landlords into La Migra.

Today, the American public won’t stand for all that. But we will accept Poli-Migra. The first step of the devolution strategy is to turn cops, jailers and court officers into deportation agents. Its success is reflected in the easy words of a New York Times reporter, “The country is polarized between those who want a path to citizenship for illegal immigrants and those who want to deport them. But just about everyone agrees that the doubly illegal, immigrants with no documents and who have committed crimes, are not welcome.”

President Barack Obama’s pick to head Homeland Security agrees. Janet Napolitano is the Democrat’s leading hawk on immigration. She is a prosecutor who embraces devolution through the criminal justice system as a “force-multiplier,” a way to take the handcuffs off law enforcement. Never mind who and how we are putting the handcuffs on.

The immigrant rights movement needs to get with it. We are organized along the lines of Good and Bad. We deserve rights because we pick your tomatoes, not your pockets. We don’t deserve rights because we are human. But our central crisis is precisely that, one of human rights. We are witnessing the emergence of what organizer Subhash Kateel once called Immigrant Apartheid. Immigration status is legal code for race.  While you can’t legally discriminate between White and Colored, you can between citizen and non-citizen. After September 11^th, we all saw how migration status was used in Brooklyn to shatter the very institutions that allow people of color to rise above subsistence and form a middle class. We saw how the criminal courts were used in Postville, Iowa to turn Good undocumented workers into Bad criminal aliens.

If the problem is Immigrant Apartheid, and the rightwing strategy is devolution, then our strategy must be to make migration status less relevant. But the nation’s largest “immigrant rights” campaign has done the exact opposite – falling into the trap of wedding our rights and dignity to our legal status, and, worse yet, trading that status for the rights and dignity of those left out of the deal. Since 2005, mainstream immigration advocates have pushed for Comprehensive Immigration Reform – a campaign built on the exchange of a bigger border wall, more deportation and devolution for limited legalization. Sage voices have criticized the campaign for monopolizing the debate when we could have been winning small and steady; for shooting our own people in the foot; and for running us into a trade deficit. State and federal laws are stripping greencard holders of economic and legal rights, thereby devaluing the prize itself.

Since 2005, racists who don’t want any legalization have effectively blocked Comprehensive Immigration Reform from passing. Strangely enough, these haters were our saving grace under Bush. But we can’t rely on them much longer. Obama will effectively neutralize Right opposition. We have to take advantage of his strengths on defense, and move to offense. Our job is to make the impossible possible, and the possible inevitable.

Short-term Interventions

If the mainstream is shorthand for those who count, we need to claim the mainstream as our own. We can’t settle for, or grow comfortable with, being in history’s margins. We must spend less time criticizing the proposals on the table and more time unabashedly translating our grassroots demands into legible policy. The Obama Administration has promised to take on Comprehensive Immigration Reform as soon as it finishes health care (which could mean 4 years, or 4 months). Campaign proponents try to scare those of us who won’t benefit into keeping quiet, charging that if we raise our voices we will sabotage the greater good. But our “piecemeal” solutions benefit far more people than their “comprehensive” demand.

Two youth campaigns are models for what we must do more and better. The DREAM Act students are fighting to give undocumented high school graduates who were raised in the United States the right to pay in-state tuition for college and get a greencard. Their bill has more popular support than any other immigration proposal. The Child Citizen Protection Act, born from movement in New York, would allow an immigration judge to consider the best interests of an American child before deporting a parent. Local communities who learn about this bill always say, “This is exactly what we need. Why haven’t we heard about it before?”

To expand progressive possibilities, the immigrant rights and criminal justice movements need to ally immediately. Everyone talks about Black/Brown solidarity. In the progressive labor sector, that means we fight for the rights of all workers, across race and migration status. But Black/Brown solidarity hasn’t translated into a meaningful platform for the victims of mass incarceration.

Learn from Black history. Criminal courts and jails were used to disenfranchise the Black community immediately after their wins in the Civil Rights Movement. In 2006, our people rose into million strong marches in every corner of this country. While our strength was beautiful, our message was not. The most popular sign in those marches was “We Are Not Criminals.” Technically, that’s not true. We are criminals. An Arizona county prosecutor who is securing criminal convictions before sending defendants off to deportation explains, “The policy of requiring a felony conviction for any plea agreement is an important one…That conviction will harm their ability to immigrate here legally and become a citizen…In a sense, it is this office’s attempt to enforce a no-amnesty program. It’s hard for somebody with a felony conviction to receive amnesty down the road for citizenship purposes, so it serves that additional purpose. All the better, as far as I’m concerned.” Meanwhile Homeland Security is tagging our youth as gang members, putting their names into databases that are more permanent than tattoos. You can’t “rehabilitate” yourself out.

What could Black/Brown solidarity against criminalization look like? It could mean ACORN, a respected (and now targeted) grassroots organization with a long history of civic engagement, joining forces with the young and robust National Day Laborer Organizing Network to unseat racist sheriffs who are terrorizing Black and Brown alike.

The alliance of immigrant rights and criminal justice is an explicitly Left intervention, not just a grassroots one. This is work we must do, that does not feel safe for the Democratic Party (given its own tough-on-crime history). There are plenty of reasons it is more strategic (as Saul Alinsky would say) to organize to fix Stop signs than to shut down prisons. You must come from a perspective of radical love and truth to understand the caging of our people as a form of violence that requires symbolic and material intervention.

Finally, we must intensify our direct action. In the real world, devolution looks like a war of attrition. Raids are like air bombs. They target communities, not specific people. Suddenly our people are afraid to walk the streets. Suddenly our ministers and English language teachers are raising bail bonds, visiting jailed congregants and students.

But amidst even the greatest despair, there is the brightest light. Arizona – where immigration and criminal law enforcement are fusing – is not just the nation’s leading laboratory in devolution. It is Ground Zero in organized resistance. In Phoenix, indigenous spiritual leaders rallied citizens to physically hold the line against off-duty police (hired by a racist business owner) who were trying to make day laborers stop seeking work in a parking lot near Home Depot. When White nationalist motorcyclists came driving by, hurling insults and physically pushing their weight into the stand off, the pro-immigrant side didn’t budge. When Joe Arpaio, self-dubbed “America’s Toughest Sheriff,” brought his forces to arrest the day laborers, they still didn’t fold. Instead they videotaped his abuse and called the New York Times editorial board. Suddenly elite newsreaders all over the world were reading about Sheriff Joe, and the paper found itself echoing the grassroots campaign’s demand to stop him.

Liberals placed great hope in Janet Napolitano, as head of Homeland Security, to reign in Sheriff Joe. She used to be governor of Arizona, and knows all too well the causalities of his “crime suppression sweeps.” When it looked like she wasn’t moving fast enough, 5,000 marched in February 2009 to demand help. The Department of Justice gave hope when it announced an investigation into Sheriff Joe. After another 5,000 strong march on May 1^st, featuring Zach de la Rocha of Rage Against the Machine, over 1,800 prisoners in Joe’s jails were emboldened to go on hunger strike. They knew people outside had their backs. Criticism culminated with the Congressional Hispanic Caucus and 500 civil rights organizations petitioning Obama to stop the program that gave Sheriff Joe his legal cover.

Despite these actions, Napolitano not only denied help. She exported Sheriff Joe’s tactics to other parts of the country. A Phoenix organizer said with a heavy heart, “When we started we thought, ‘if we tell the nation about Sheriff Joe, the nation will come in and help us.’ But the help hasn’t come. And maybe now other sheriffs will copycat.” My hopeful guess is that their organizing has taught us what it takes to get powerful people to care. If devolution is not going away anytime soon, then the rest of us have to follow Phoenix’s lead and expose their brand of “law and order” as the war of attrition that it is.

Flipping the Script

To be crystal clear: I am not advocating that we “open” the borders (the U.S. has two). My point is that so long as immigration is a security issue, to be solved by hawks, jailers and others in the security game, we will never fix this broken system. We’ll make it worse by multiplying error and injustice.

We need to take immigration out of the Department of Homeland Security, and elevate it to a cabinet-level position that manages rather than polices migration. We need federal leadership that can hear and mediate the interests of a range of invested actors – from the day laborer to the business leader, teacher, priest, imam, county sheriff, and even foreign head of state.

The path to this solution is long and rocky. A vehicle we need to get there is muckraking journalism. Homeland Security holds onto information like a toddler clutches his toys. And most journalists – to pressed for time to penetrate the security information bubble – go by the government’s press releases, taking their word for it. Exposés as new data are effective to tip people on the fence into our camp, to move our side to deeper outrage, and school us on the targets of our organizing. Investigative journalism is a field that is dying, but we need to re-invest in it. From Daniel Zwerdling’s groundbreaking report on the death of Richard Rust to the New York Times expose on detainee death three years later, popular awareness of prison gulags and congressional action (or inaction, depending on how you measure) has grown phenomenally.

The call for more investigators is part and parcel of a call for diversified expertise. In my years of organizing, I always wondered why people who want to change the world go to law school. My field’s over-saturation with lawyers messes up our game. For example, our policy experts are focused on the Judiciary Committee. In this moment of economic crisis, we need better ins with Appropriations. ICE is not a volunteer force. The money trail matters even more than the letter of the law. If we had more economists, business leaders and organizers, we’d have more angles into problem-solving.

Third, we must engage mid- and long-term in mass-based organizing. Visionary labor organizer Bhairavi Desai reflects, “Any issue that affects masses of people requires a mass solution.” There are 2.3 million people locked up. Another 2 million have been deported in the last decade, all held in prisons and jails. There’s no shortage of a constituency. There are natural leaders who can anchor prison organizing, like jailhouse lawyers, hunger-strikers, and families on the outside who are taking collect calls from their loved ones and other people’s too. There’s not yet any mass-based prisoner group in the country. If organizing is a field with rigorous methodology, we need to bring it to prisoner work. There are groups trying and making in roads, but we need to talk across the board about how to build a mass base for this sector, which is distinct from labor.

Finally, we need movement vehicles to scale. I am not talking about think tanks that are just like the elite Manhattan Institute, only with our ideology. I mean open spaces of cultural and political transformation that are structured to be cross issue, multi-generational, multi-regional, cross-disciplinary and, as a victorious Salvadoreña leader urges, spaces of “alegria” (profound joy, celebration, dance). The Universal Negro Improvement Association, the Catholic Worker and the Student Non-violent Coordinating Committee stand out as historical models. We need to adapt them to the 21^st Century. Corporations went transnational a long time ago. But our institutions have resisted crossing borders, out of deference to state boundaries that are pretty porous after all.

Conclusion

History has put the immigrant rights movement in a bind. Our young country used to have a quota system that in practice excluded non-Europeans. In 1965, quotas were opened to Asian and African nations because Congress was pressured by a robust Civil Rights Movement, and needed to look good to the world in the midst of the Cold War. But universalizing quotas did not mean ending them. Numerical limits to the number of people who could come here stayed. Illegality became the central problem of federal immigration policy. Mexicans became the illegals. Thus illegal immigration became, in the words of movement historian Mai Ngai, an “impossible subject…a social reality and a legal impossibility… a person who cannot be and a problem that cannot be solved.”

Today, 45 years later, legalization is the most popular cry of the immigrant working poor. “How can I get a greencard? I just want papers so I can drive here and visit my family back home.” With the nightmare of deportation ever present, it’s no wonder that our people’s first Hope for Change is amnesty under Obama. But given the reality of deportation and devolution – which is making migration status relevant in every waking and even sleeping moment – legalization is becoming less and less strategic. Throwing people over the legal/illegal line doesn’t solve the fact that the non-citizen/citizen divide is deepening.