Family Activism

Amalia Pallares

• Publisher: Rutgers University Press
• Year: 2014
• ISBN:
  9780813573601
• Topic: Social Sciences
• Subtopic: Hispanic American Studies
• Index: Social Sciences

During the past ten years, legal and political changes in the United States have dramatically altered the legalization process for millions of undocumented immigrants and their families. Faced with fewer legalization options, immigrants without legal status and their supporters have organized around the concept of the family as a political subject—a political subject with its rights violated by immigration laws. 
Drawing upon the idea of the “impossible activism” of undocumented immigrants, Amalia Pallares argues that those without legal status defy this “impossible” context by relying on the politicization of the family to challenge justice within contemporary immigration law. The culmination of a seven-year-long ethnography of undocumented immigrants and their families in Chicago, as well as national immigrant politics, Family Activism  examines the three ways in which the family has become politically significant: as a political subject, as a frame for immigrant rights activism, and as a symbol of racial subordination and resistance. 
By analyzing grassroots campaigns, churches and interfaith coalitions, immigrant rights movements, and immigration legislation, Pallares challenges the traditional familial idea, ultimately reframing the family as a site of political struggle and as a basis for mobilization in immigrant communities.  

1

From Reunification to Separation

The preservation of family unity has become a common referent for immigrants and their descendants as well as for a broader community of support. Spearheaded by community, political, and religious leaders, this defense of family is mainly informed by the shared lived experiences of immigrants facing the prospect of deportation in a historical and legal context that had privileged family reunification and unity for almost four decades. As immigration policy changes seek a diminishment of the family reunification rationale to one that emphasizes “highly skilled” professionals, today’s immigrants are experiencing an unprecedented reality: the contradiction between a history and official discourse that has prioritized family unity and reunification and a reality that threatens the survival of undocumented and mixed-status immigrant families already living in the United States. This chapter reviews the legal and political changes that have led to the current record rates of deportations and related family separations and the decline of family unity as a state goal. Additionally, I analyze the economic and social effects of immigration policy changes in the past fifty years, which have led to a dramatic increase in detention and deportations and increased the vulnerability of the undocumented and their family members.

Immigration policy analysis matters not only because the laws expand or curtail the possibilities of legalization but also because policy directly affects trends. Migration patterns and migration “crises” are caused both by demographic and economic trends and by immigration policy, which shapes who can or cannot migrate and how they can or cannot migrate. One clear example is Douglas Massey, Jorge Durand, and Nolan Malone’s (2003) persuasive argument that intensification of border enforcement in the past two decades has impeded circulatory migration (a previously common pattern) and forced migrants to bring their families to settle without status rather than risk going back and forth to visit them. In this way a policy designed to diminish undocumented migration actually increased it.

Even a policy that aims to be inclusive can be exclusionary if it is designed in a way that prevents millions from accessing the pursued good. As I review below, with one exception, the capacity of the family reunification visa system has remained the same for decades, creating a backlog that has led to more undocumented migration. Hence, U.S. policy (on both the admissions and enforcement ends) has facilitated the existence of eleven million migrants who are undocumented, made “illegal” and therefore deportable. As Mae Ngai, Cecilia Menjivar, Nicholas De Genova, and others have argued, illegality is created by a system that creates the boundaries of legality and illegality, and “illegals” are a production of the state.

Immigration Law, Family In(Ex)clusions, and Migration Patterns

Before the 1950s there was no consistent policy of family inclusion for migrants, and there were several instances of family exclusion targeting non-European migrants, such as the Chinese Exclusion Act, which would not allow the Chinese to bring spouses, or the bracero program, specifically targeted toward men who, in a time of labor shortages during World War II, were recruited to come alone and work and return to Mexico. The lack of concern for the family rights of Mexican immigrants was made even more evident in the massive repatriations in the 1930s, when citizen adults and children were sent back to Mexico along with their noncitizen relatives. In fact, according to Edward Telles and Vilma Ortiz (2007), 60 percent of the “repatriated” in this period were citizens. It was not until the 1950s that family reunification was explicitly included as a category that made someone eligible for admission. The McCarran-Walter Act of 1952 was the first to introduce a system of preferences for the selection of immigrants applying for admission that was based on both skill sets and family reunification. However, because it still continued the national origins quota system that gave preference to immigrants from those populations already here, this policy favored mainly Western European applicants.1

The 1965 Immigration and Naturalization Act (INA), by contrast, which was informed by the civil rights movement, did away with the national origin preference while maintaining the skills category and expanding the family emphasis (adding parents of U.S. citizens over age twenty-one to the list of immigrants not subject to numerical limitations, and altering the size of preference categories so that family reunification was emphasized). According to Charles Keely, this expansion was due to the negotiation of two philosophies of immigration, one that emphasized humanitarian values and one that was concerned with maintaining American culture (1971, 8). Humanitarians favored repealing the national origins quota and expanding the family numbers, as there had been a backlog since the passage of the McCarran-Walter Act. Those concerned with the “preservation of American society” wanted to continue the national origins quota system and were open to family reunion with the condition that the American economy and labor were protected. The 1965 law reflected compromises by both factions (the death of the national origins preference and emphasis on family reunion were concessions to the humanitarians, while efforts to protect American jobs via labor certification and to curtail Western Hemisphere migration favored the preservationists). Eliminating the national origins preference allowed for the significant expansion of non-European migration. However, it was a controlled expansion, as there was a numerical restriction of 170,000 individuals for the Eastern Hemisphere, and a 120,000 ceiling on Western Hemisphere migration.

Hence, since the 1950s there has been an immigration norm that prioritizes family reunification in cases of family members abroad, and family unity in cases of families who reside in the United States. This includes not only prioritizing family members for visas (regardless of race) but also facilitating legalization for those who married in the United States. Citizenship was bestowed to partners and parents of minors (and siblings) of citizens and residents, although the latter have a longer wait for reunification. Very close relatives of citizens were not subjected to the numerical limitations of the quota system. In no legislation have children (under the age of twenty-one) ever been able to bestow citizenship upon their parents.

This creation of a family reunification system that prioritizes the nuclear family (in the immediate family relatives category) and locates siblings and adult children in a secondary category (in the family preference system, which has a limit) reinforced what Monique Hawthorne (2007) considers a very limited North American model of family that does not consider different cultural constructions of family, and does not even reflect the different models that exist in the United States. According to Pat Zavella, including only spouses and children under the age of twenty-one as part of the family unit is a provision that “codifies a heterosexual nuclear family and excludes other types of family structures that are prevalent in the United States and Latin America—such as single parents, the elderly, multigenerational, extended, those headed by minors, or same-sex families, as well as children born ‘out of wedlock’ or who have informal foster relationships with parents (in loco parentis) such as children cared [for] by their grandmothers when parents migrate” (2012, 1). This restricted model has not been altered since 1965, with the very recent and important exception of the recognition of same-sex marriages in visa petitions starting July 2013 and of same-sex partnerships in prosecutorial discretion (in cases of individuals facing deportation) since October 2012.2 While an analysis of how these very recent policies may affect immigrant family policy and politics is outside the scope of this chapter, the positing of a nonheteronormative model of immigrant families by youth activists, discussed in chapter 4, certainly indicates a better fit with the youth activists’ model of family than with the traditional one.

However, while all these nuclear families were considered equal in theory by the 1965 INA, they were not equal in reality due to the differences in the volume of migration across the country. Mae Ngai (2013) discusses how Senator Phillip Hart’s proposal prior to the 1965 act that would have allotted 48 percent of all visas to countries that were the largest senders in the previous fifteen years was not accepted by the Kennedy administration, which was pursuing a civil rights–era ethos of equality and insisting instead on the visa system that allotted an equal number of visas to all countries. This meant that citizens of the countries that send the largest number of immigrants, such as Mexico and the Philippines, have much longer waits for visas. Since all countries have an equal limit of visas, regardless of sending patterns, citizens’ relatives and even very young children have had to wait years or decades before being able to enter the United States.

Despite these limitations, which led to different lived legal experiences among immigrants of different national origin, this policy not only shaped law but also immigrant communities’ understanding of the law and their expectations that family was the primary rationale for migration and legalization. One cannot overestimate the discursive power of these family reunification policies. The prioritizing of admission based on family reunification has informed immigrant communities’ notions of what is fair, just, and achievable, and these notions are shared by most immigrants, regardless of their legal status.

While one could argue that these reunification policies apply only to legal migration and do not include those immigrants who did not enter legally, these distinctions are problematic to make retroactive for at least a couple of reasons. It is not until the 1980s debate on the Immigration Reform and Control Act (IRCA) that the issue of “illegality” surfaced as a central concern, which remains prevalent through today, and that the distinction between “legal” and “illegal” became a central focus. Second, because of IRCA, many people who were undocumented were able to legalize—subsequent reunification of families has therefore included the reunification of family members of individuals who were once undocumented but gained legal status and were able to petition for family members. The fluidity between the undocumented and the legal migrant, between the citizen and the noncitizen, suggests that this norm of family unity is widespread and porous, predates the stark illegal/legal divide, and continues to be shared by most immigrants. As the visa backlogs became longer, many immigrants who were related to citizens opted to migrate without authorization and felt morally justified doing so. Insofar as the U.S. immigration system has prioritized and recognized a need for family (the basis for this is discussed later in this chapter), the standards and norms have relevance for the undocumented immigrants’ sense of what is fair.

By the mid-1980s, the United States had already experienced a family reunification system that was limited in its breadth and would become more so in subsequent decades. The economic crisis of the late 1970s and early 1980s, conjoined with the migration influx of Central Americans (in addition to the substantial migration of Cubans coming from the Port of Mariel), led to the intensification of public concern about immigration and to the development of a national agenda and legislative process that concluded with the passing of IRCA in 1986. IRCA is the federal government’s first attempt to manage and control “illegality” by combining an amnesty program that legalized about two million people who could prove they had arrived in the United States before 1982, but also created employer sanctions to punish those who hired undocumented immigrants. Like the 1965 act, it was a trade-off between immigrant rights supporters, who sought a human solution for the undocumented, and restrictionists, who conditioned the amnesty on establishing measures that would impede and/or disincentivize more undocumented migration. No significant changes to the numbers of the visa quota system were made in this or any subsequent bill, nor was there any provision that would expand the restricted family model created by the INA.

In fact, newly legalizing family members was quite restricted, as IRCA did not allow for the legalization of spouses and minors of applicants who had arrived after 1982 to legalize as derivatives as long as the newly legalized had temporary status. (It took four years from the granting of temporary status to becoming a legal permanent resident [LPR], which then qualified an immigrant to petition for family.) Hence, IRCA is the first policy to create split families among those living in the United States, consisting of those who qualified and those who did not, leading to deportations of many of those who did not qualify. This development led to pressure from immigrant rights supporters for the 1994 modification of section 245 I of the 1990 act, in which an adjustment of status provision allowed for undocumented family members of residents and citizens who had been residing in the United States to petition to legalize without having to leave the country and wait.

Because these new family legalizations were added to the caps in the visa list (and the quota was not formally expanded to accommodate the post-IRCA demand), amnesty made backlog longer, significantly slowing the process for future applicants and further lengthening already lengthy waits. The Immigration Act of 1990 made a one-time adjustment in order to accommodate IRCA beneficiaries’ petitions, raising the maximum number of visas per year from 500,000 to 700,000. This was the first and last time the cap was adjusted. However, given the number of years it takes for an immigrant to become a resident and then a citizen and petition for family, the greatest number of IRCA-related petitions have come after 1990, with no subsequent updates to the caps.3 While neither perfect nor permanent solutions, both the creation of 245 I and the expansion of the caps did reinforce the family reunification norm and signaled that family unity of mixed-status families already residing in the country was also a priority.

While IRCA led to the temporary expansion of visas to accommodate the relatives of those who qualified, it also created a backlog that extended even further the wait of future applicants. This backlog problem pushed family migrants residing in the United States to opt to migrate illegally. Policy makers of different stripes made this connection explicit in the Independent Task Force on Immigration and America’s Future, which reported in 2006: “The system’s multiple shortcomings have led to a loss of integrity in legal immigration processes. These shortcomings contribute to unauthorized migration when families choose illegal immigration rather than waiting unreasonable periods for legal entry.”4 Statistics support this task force observation, since the problem has only become exacerbated after 245 I was eliminated in 2001. A significant percentage of the estimated eleven million unauthorized immigrants in the United States are spouses and minor children of LPRs who have been approved for family-based visas but are caught in the years-long preference category logjam. But if they come and then try to legalize, they are barred for ten years and then “become part of a growing underground of undocumented people who are subject to exploitation and abuse.”5

The bar referred to in this passage is the one in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which stipulated that a person who was unlawfully present in the United States for one year, upon leaving the country, would be barred from returning for ten years. While this was passed in 1996, it was only felt to its full extension when section 245 I’s second extension expired. This meant that an undocumented family member of a citizen who wanted to apply for legalization could no longer do so from the United States and would have to leave the country and apply at a consulate. However, leaving the United States to do this immediately triggered the bar. The ability of citizens to petition their family members living in the United States and legalize their status was thwarted.

If the situation of undocumented family members already living here was impossible, the prospects of family members living abroad and seeking to reunite here was not exactly easy or quick. Because the quota has never been based on realistic matching with demands of the economy, or been adjusted to expand for the largest sending countries, the problem just perpetuates itself and becomes more severe. The 2007 bill as well as the 2013 Senate legislation did nothing to expand the number of visas; instead, both sought to reduce family-based migration and increase skill-based visas. Specifically, the 2013 bill would have eliminated the sibling family preference category, making it impossible to sponsor siblings. To address the demands of agriculture and service industries, both bills proposed a form of temporary guest worker program that would not grant visas to the families of workers.

Another legacy of IRCA was the criminalization of deportation by equating a deportation order with a felony conviction, and barring those with felony convictions from ever legalizing. Thus IRCA barred the previously deported from being able to apply for legalization, eliminating the possible use of waiver (212 I) that had allowed the possibility of pardoning any felony with the exception of drug-related ones.6 This permanently prevented families that had a member deported previously from being reunited.

The decade between IRCA and IIRIRA was characterized by the rise of strong anti-immigrant sentiment expressed in an intense restrictionism that sought increased external and internal enforcement and exclusion of immigrants (documented and not) from state services and resources. The immigrant family came to renewed attention in the debate and mobilization over Proposition 187 in California, which aimed to deny education, social services, and most health services to undocumented immigrants and required local police, health, and social service officials to report undocumented immigrants to the federal government. Mexican women, in particular, were represented as hyperfertile, their reproductive expenses costing taxpayers highly.

The view of immigrant and specifically Mexican immigrant women as a reproductive threat is not necessarily new. In a study of mainstream journalism’s perceptions of Mexican and Mexican American women’s fertility between 1965 and 1999, Leo Chavez (2004) found that journalists associated these women with high fertility and population growth, and therefore more likely to use medical and other services for their children. He claims that anti-immigrant sentiment during the 1980s and 1990s focused on the reproductive aspects of Mexican immigrant and Mexican-origin women. Both Chavez and Jennifer Hirsch (2003) show a more complicated story of fertility than the alarmist stereotypes of mainstream media. Relying on California-based data, Chavez (2004) showed that Mexican-origin women have had a drop in fertility, but that the steep decline in the fertility of white women and the fact that the fertility of immigrants remains higher than that of native white women have led to alarmist but unfounded claims of hyperf...

Table of contents

• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• List of Abbreviations
• Introduction: Immigrant Rights Activism and the Family Paradox
• Chapter 1. From Reunification to Separation
• Chapter 2. A Tale of Sanctuary: Agency, Representativity, and Motherhood
• Chapter 3. Regarding Family: From Local to National Activism
• Chapter 4. Our Youth, Our Families: DREAM Act Politics and Neoliberal Nationalism
• Conclusion: Moving Beyond the Boundaries
• Notes
• References
• Index
• About the Author
• Read More in the Series
• Photographs