University of Virginia Press
2018 by the Rector and Visitors of the University of Virginia
All rights reserved
Printed in the United States of America on acid-free paper
First published 2018
9 8 7 6 5 4 3 2 1
Library of Congress Cataloging-in-Publication Data
Names: OBrien, Benjamin Gonzalez, author.
Title: Handcuffs and chain link: criminalizing the undocumented in America / Benjamin Gonzalez OBrien.
Description: Charlottesville: University of Virginia Press, 2018. | Series: Race, ethnicity, and politics | Includes bibliographical references and index.
Identifiers: LCCN 2018004850 | ISBN 9780813941325 (cloth: acid-free paper) | ISBN 9780813941332 (e-book)
Subjects: LCSH: United StatesEmigration and immigrationGovernment policy. | United StatesEmigration and immigrationPolitical aspects. | Illegal aliensUnited States. | Crime and raceUnited States. | Immigration enforcementUnited States.
Classification: LCC JV6483 .047 2018 | DDC 325.73dc23
LC record available at https://lccn.loc.gov/2018004850
Cover art: US-Mexican border in Arizona. (Chess Ocampo/Shutterstock)
PREFACE
Back in 2010, when I started the research for what would evolve into this book, immigration policy seemed to be headed in a positive direction. While deportations by Immigration and Customs Enforcement (ICE) had increased, the Obama administration, at least rhetorically, seemed committed to comprehensive immigration reform. The creation in 2013 of the bipartisan Gang of Eight in the Senate, tasked with coming up with a bill for comprehensive immigration reform, offered the promise of a real shift in how the United States addressed undocumented immigration. Unfortunately, it was not to be. The bill failed, and the Obama administration shifted to using executive orders to reform the approach of ICE and to normalize the status of those who had been brought to the United States as children and undocumented immigrants with US-born children under the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) programs. These executive orders were challenged by Republicans as an overreach on the part of the executive branch, which is not responsible for immigration policy, and a federal appeals court issued an injunction against the implementation of DAPA and the extension of DACA in 2015. This decision was appealed to the Supreme Court by the Obama administration, but the court deadlocked at 4 to 4 in 2016, leaving the lower courts injunction in place.
Hillary Clinton, the Democratic Partys candidate to take the reins from Barack Obama in 2017, also seemed to be committed to comprehensive reform and to share Obamas more sympathetic approach to the undocumented community. In stark contrast, Donald J. Trump, the Republican candidate, seemed like a throwback in terms of his rhetoric on immigration, reviving not only the idea that undocumented immigrants took the jobs of American workers but also, and more significantly, the notion that the undocumented posed a criminal threat to the nation. He capitalized on the shooting of Kathryn Steinle in San Francisco to argue that sanctuary policies increased crime, and he notoriously referred to Mexican immigrants as criminals and rapists. He promised to build a wall to keep America safe and force Mexico to pay for it, to freeze federal funding to sanctuary cities, and to create a deportation force to remove undocumented immigrants from the United States. Trump would go on to win the election, and at least in the early days of his administration he seems intent on following through on many of his promises, issuing executive orders asking that Congress approve funding for the border wall, changing the focus of ICE to all those charged with a crime but not yet found guilty, and stating that federal funds will be denied to any cities with sanctuary policies on the books. ICE appears to have become more aggressive under Donald Trump, with a number of large immigration raids occurring in the first few weeks of his presidency (Kulish, Dickerson, and Robbins 2017).
Trumps election marks a return to the rhetoric of old on undocumented immigration, with the attribution of criminality to those who in most cases have come to this country to work hard and improve their own lives and those of their families used to justify increasingly harsh treatment. Once again the symbols of undocumented immigration have become handcuffs and chain link, symbols representing internal crime control and protection from external threat. It is more important now than ever to understand how undocumented immigration became linked to notions of criminality.
The findings presented in this book underline how difficult comprehensive immigration reform will likely be and suggest that lawmakers seeking new solutions to the problem of undocumented immigration indeed face an uphill battle. Path dependence ensures that any deviation from criminalization will likely entail large political costs, and the critical failure of the Immigration Reform and Control Act of 1986 (IRCA) has delegitimized some of the more liberal approaches to undocumented immigration, such as amnesty, and seemingly returned immigration policy to a focus on crime-control tactics. Even under Obama, ICE deported a record number of immigrants every year through 2013, though the number decreased after that (US Immigration and Customs Enforcement 2015). Theoretically it could be said that immigration not only has converged with criminal law but now faces many of the same difficulties that accompany any attempts to shift away from the use of punishment in the treatment of crime (J. Simon 2007). As I show in the pages that follow, the rhetoric of criminality and the legal treatment of undocumented immigrants as criminals have been a part of immigration policy since Mexican immigration was first considered by Congress. The modern history of IRCA and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) further shows how difficult a shift in elite discourse and in the legal treatment of undocumented immigrants will be, particularly considering the public support for both the perception and the treatment of undocumented immigrants as criminals. After the promise of 2008, today we seem further from comprehensive immigration reform, and the undocumented are once again being portrayed as a threat to the nation, stripping them once again of their humanity. This is nothing new. In fact, it is sadly reminiscent of how Americans have dealt with undocumented immigration from the very earliest days of the nation.
This book never would have materialized without the support of Luis Fraga, Matt Barreto, and Naomi Murakawa, whose feedback, support, and assistance were invaluable in developing the ideas that would eventually become this book. I also owe thanks to all the family and friends who helped keep me sane as I worked on this project and have supported me throughout my career. Nick Fletcher deserves special mention for suggesting the books title over drinks one night, as does my colleague Loren Collingwood, for making sure I had fifty other projects to work on when I needed a break from this one. My dogs, Maggie and Tulip (I miss you girl), snuggled with me as I wrote a great deal of this book and helped keep my anxiety at bay. I am also blessed to have my amazing and patient wife, Erica, who has always been there for me, not only as I wrote this book but also through the years I was pursuing my PhD. She has been my rock and always kept me grounded when I most needed it. Lastly, I cant forget my darling daughter, Penelope, whose giggles and goofiness always make me smile and lighten my mood, no matter how dark.
