The disappearing rights of
unauthorized immigrants
in the United State
Doris Marie Provine
Justice Studies, School of Social Transformation
Arizona State University
Tempe, Arizona, USA
The problem:
How to help undocumented immigrants claim
membership with deportation on the rise.
 In an increasingly transnational world,
nation states continue to jealously control de
jure citizenship and rights.
 Public opinion is hostile.
 Are de facto rights possible?
 Can this political project gain traction?
The trend in the US –
multi-level exclusion:
 Municipal ordinances denying access to public services,
e.g. library cards, bus passes.
 State laws restricting driver’s licenses, requiring
verification to work, mandating local police assist in
immigration enforcement.
 Federal stepped up enforcement, including 287g and
now Secure Communities. 400,000 deportations per
year.
 Crimmigration – immigration offenses treated as crimes
with fewer procedural protections – biggest federal
crime
A small counter-trend,
some examples
 Non-citizen voting in municipal elections
 Recognition of foreign identification as valid
(example: Matricula consular)
 Municipal identification cards
 In-state (reduced) tuition for undocumented
resident students
 Construction of day-labor centers
In the US, emergence of a
multi-jurisdictional patchwork
with conflicts across levels
Today’s presentation has 3 goals:
1.Re-frame past capacities of
undocumented residents as rights.
2.Critically examine role of states in
denying these rights.
3.Explore links to broader social trends.
Goal 1: Re-framing rights
 Avoid the top-down trap of describing rights
exclusively as constitutional and statutory grants
and protections.
 Embrace also rights in action, quasi-common-law
approach.
 Define rights as capacities that have been available
to undocumented immigrants.
 Frame the present as living with a contradiction:
rights and deportation.
Some rights undocumented
residents have enjoyed:
 To buy and sell property, sign leases, own real estate
 To contract labor services, employ people, open stores
 To write wills, marry, divorce
 To sue for damages, negotiate settlements
 To rent equipment, cars, boats
 To move freely in the community
 To campaign, protest, boycott
 To go to school, including college and graduate school
But undocumented immigrants now live with
the rights/deportation contradiction:
2 examples
 Postville Iowa, before and after the federal raid
 New Mexico Governor Susana Martinez’s
undocumented grandparents
The (past) reality of rights
should frame the
discussion of (current)
state-imposed restrictions
on these rights
2. The role of the US states in
maintaining/containing the
rights/deportation contradiction
 US Constitution gives plenary immigration
enforcement power to the federal government.
 States can however regulate licensing and benefits,
requiring legal status in some cases. Limits unclear.
 States are the primary locus of immigrant
integration.
 Until recently their immigration policy efforts were
rare.
The new state-level policy
activism
2006
2007
2008
2009
2010
Bills
introduced
570
1,562
1,305
1,500
1,400
Laws
enacted
84
240
206
222
208
Resolutions
adopted
12
50
64
131
138
Rights scorecard
Enacted laws that affect significant numbers
of undocumented residents:
2006
2008
2010
Removes
rights
33
35
44
Protects
rights
6
4 participate
7
6 participate
12
1
0
5
Protection
vetoed
21 participate 20 participate 25 participate
9 participate
Major players:
defined here as at least 2 enacted statutes
 States that reduce rights:
 2006: Arizona, Colorado, Georgia, Virginia,
 2008: Arizona, Colorado, Georgia, Virginia
 2010: Arizona,……………………… Virginia and for
the first time: Minnesota, Nebraska, West Virginia
 States that protect rights:
 2006: Colorado and Virginia
 2008: Colorado
 2010: none (California, 3 statutes, all vetoed).
Rights that have been reduced,
aggregated by year:
45
40
35
30
25
2010
20
2008
2006
15
10
5
0
Employment Education
Health
Driving/ID
Firearms
Law Enfor.
Public
Benefits
Omnibus
Rights that have been protected
(some vetoed)
7
6
5
4
2010
2008
3
2006
2
1
0
Employment Education
Health
Drivers L/ID Law enforce Public Benef.
Trends in state-level legislation:
 Enacted statutes much fewer than proposals, and not all
are broadly relevant.
 # of states participating is growing.
 More protective legislation is being enacted, but it is
often vetoed.
 Some restrictive states also protect.
 Foci shift:





Employment steady, high restrictive
Voting died after 2006
Law enforce down, but omnibus laws replace these
Driver’s licenses are steady and restrictive
Others are small and no pattern
Omnibus laws send a stronger
message, vis Alabama:
 Makes working undocumented, renting, failing to
comply with federal registration laws state crimes.
 Knowing hiring -> loss of business license.
 Public schools must report immigration status of
their students.
 Counseling, harboring, or shielding an
undocumented immigrant is a crime.
3. State restrictions link to
broader social trends:
 Crime-immigration nexus – political identification
of crime with immigrants and immigration as a
crime
(Hagan, Levi and Dinovitzer 2008).
 New destinations and racial threat hypothesis –
increasing numbers and new settlement sites create
public anxiety -> legislation (Singer et al.)
 Politicized places – national partisanship politicizes
immigrant increases (Hopkins 2010)
 Membership theory (Stumpf 2006)
Stumpf notes evidence of increasing
exclusivity of membership rules:
 Rejection of rehabilitation as goal of punishment
(since 1970s). Ex-cons as quasi-citizens.
 Hardening of federal immigration law (since 1996).
Enforcement trumps integration.
 Rise of “suspicious” immigrants (since 2001).
Justifies detention and removals.
She does not note, but could have,
the restrictive trend in state
legislation since 2005
 Angry outlier states push for “attrition through
enforcement.”
 Populist anti-immigrant rhetoric is accommodated
with bills and some resolutions. More states
participating.
 Extreme omnibus bills (and laws) are on the rise.
But membership also has its
advocates:
 In ambitious cosmopolitan cities that seek to extend
membership for economic reasons.
 In religious communities linked by human rights concerns.
 Within local law enforcement to enhance public safety.
 In the Obama administration for political reasons.
 In some state legislatures – vis protective legislation.
 And, hopefully, among scholars who frame the legislative
trend for what it is – a massive, radical denial of rights long
accepted and valued in communities that affects us all.