be returned to their countries, no matter how long they have been in the United States. Even while the status remains available, those who qualify are required to re-register for it and renew their work authorization every year or so, a process that costs hundreds of dollars.81
CENTRAL AMERICANS: ASYLUM DENIED
From 1984 to 1990, while war raged in Central America, the United States granted asylum to 25 percent of the 48,000 applicants from Nicaragua, whose leftist government the U.S. administration violently opposed. Over the same period, only 2.6 percent of the 45,000 applicants from El Salvador and 1.8 percent of the 9,500 Guatemalan applicants won asylum—the rest were dismissed as “economic migrants.” At the time, both El Salvador and Guatemala had brutal right-wing governments closely allied with the United States and widely known to be responsible for serious human rights violations.82
U.S. religious and activist groups pressed the government to loosen its restrictions. More than 150 religious congregations openly defied immigration laws by offering sanctuary in places of worship for out-of-status refugees from Central America. The American Baptist Churches brought a class action suit against the U.S. government on behalf of the asylum seekers, which the government finally settled in 1991 by agreeing to reopen the cases of Salvadorans and Guatemalans who had applied for and been denied asylum in the 1980s.83
But by then the conflicts were ending. IIRIRA, the Illegal Immigration Reform and Immigrant Responsibility Act, which Congress passed in 1996, allows the government to deny asylum by claiming that there has been “a fundamental change in circumstances” in the applicant’s country.84
A year later, in 1997, Congress passed the Nicaraguan Adjustment and Central American Relief Act. Even as it addressed the disparate treatment of Central Americans, NACARA continued to privilege Nicaraguans, allowing those who had failed to win asylum to gain permanent legal residency, while granting some Guatemalans and Salvadorans a chance to seek “suspension of deportation” under pre-1996 terms. Under heavy pressure from the Haitian immigrant community, in 1998 Congress passed the Haitian Refugee Immigration Fairness Act (HRIFA), allowing nearly 50,000 Haitians to finally seek permanent residence under a process similar to that extended to Nicaraguans under NACARA.85
4. Why Can’t They Just “Get Legal”?
SOME PEOPLE THINK WE’VE ALWAYS had two distinct types of immigrants in the United States: “legal” and “illegal.” The “legal” ones are people who “follow the rules” and “wait their turn in line,” whereas the “illegal” immigrants are seen as criminals who for some reason decided to “flout our laws” and “cut ahead in line.”
Such views suggest a sort of permanent caste system into which immigrants have always been sorted. In truth, immigrants have continued to come to the United States over the years in much the same ways they did in the past. What changed was not the immigrants but the laws. Illegality was constructed, imposed on people, and maintained through increasingly restrictive immigration laws.1 That means we can deconstruct it—and counteract its negative effects—by changing those laws.
What’s the difference between “legal” and “illegal”?
The distinction between “legal” and “illegal” isn’t as clear as many people imagine. Being without status is not a permanent condition. Immigrants who arrive legally may fall out of status. Some who were once undocumented have become U.S. citizens. Asylum seekers who are ordered deported can win their cases in the appeals courts and eventually gain permanent residency. And immigrants who have had permanent resident status for many years have been “de-legalized,” as the New York–based group Families for Freedom puts it, because of past criminal convictions, even minor ones.2 In short, the difference between an immigrant who is “legal” and one who is not is simply that one has been granted an opportunity to gain and keep legal status, and the other is being denied that opportunity.
News reports sometimes claim that “illegal” immigration is an affront to immigrants who do things the “right way.”3
But most authorized immigrants have family members and friends who are still trying to gain legal status, and they understand how difficult it is, so it’s not surprising that a majority feel sympathy for the undocumented. In a telephone survey of 800 authorized immigrants taken by Bendixen & Associates in early 2006 for New America Media, 68 percent supported granting out-of-status immigrants a temporary work permit and a way to gain legal residency.4
A November 2014 poll by the Latino Decisions firm showed 89 percent of Hispanic voters backing a plan by President Barack Obama for giving temporary legal status to as many as five million undocumented immigrants. The poll didn’t distinguish between native-born and naturalized voters, but after analyzing the poll, TalkingPointsMemo.com editor Josh Marshall concluded it was “pretty clear that legal immigrants do not feel victimized by leniency or legalization for undocumented immigrants.”5
How did immigration become “illegal”?
Immigration opponents regularly claim that their ancestors came here legally; they even buy T-shirts and bumper stickers saying that. In fact, their ancestors may well have arrived long before people coming from other countries needed legal permission to enter the United States.
Far from restricting immigration, the thirteen British colonies actively sought people to settle here as a way of providing cheap labor and displacing the Native American population. Many people came against their will—including more than 388,000 Africans who were brought here as slaves between the mid-seventeenth century and 1860.6 Most white colonists arrived voluntarily, but not all. Of the about 500,000 Europeans who had migrated to the colonies by 1775, some 55,000 were convicts deported from the British Isles and forced to work as indentured servants for periods of up to seven years. About 200,000 other whites also came as indentured servants; a small number of these were brought by force, according to historian Richard Hofstadter, and “a much larger portion came in response to deceit and misrepresentation” by recruiters.7
After the U.S. Congress banned the slave trade starting in 1808,8 the country continued to encourage voluntary immigration. Another sixty-seven years passed before the federal government finally enacted its first law regulating immigration—the Immigration Act of 1875, often referred to as the Page Act or the Asian Exclusion Act.9
This law limited immigration by male Chinese laborers and Chinese women. It was followed in 1882 by the Chinese Exclusion Act, and then by other openly racist laws aimed at keeping out most people from Eastern Asia. Europeans continued to be admitted with few restrictions until Congress passed laws in 1921 and 1924 establishing quota systems. The Immigration Act of 1924 limited total immigration to about 165,000 people a year. Africans and Asians were almost completely excluded, and the quotas for Southern and Eastern European countries were set in a way that virtually shut out people from those areas. The European quotas reflected widespread prejudice among citizens of Northern European ancestry against the Italians and Eastern European Jews who had started arriving in larger numbers in the 1880s.10
Has Mexican immigration always been “illegal”?
Although the 1924 law was an effort to end most immigration from Africa, Asia, and much of Europe, it didn’t set quotas for most people from the Western Hemisphere.11 These immigrants only needed to meet a few requirements when applying for visas, such as paying fees and taxes, and demonstrating good health, the ability to read, and the absence of a criminal record. In practice, some of these requirements were used to block
