“I asked almost everyone I interviewed…about their regrets, but…[t]hat’s not what we’ll remember when we have to leave, by choice, force, or casket.”
Karla Cornejo Villavicencio came to the United States without documentation at age 5, attended Harvard University, pursued her PhD at Yale, and wrote for major newspapers and magazines such as The New York Times and The Atlantic. In March 2020, Villavicencio published The Undocumented Americans to write “the full story” of what life is like for undocumented people in the U.S. Villavicencio wove real-life narratives of undocumented Americans into six essay-like chapters to capture the complex, heavy, and enormously human account of one of the most politicized groups in the country. The novel implicitly addressed many legal challenges the U.S. imposes on immigrants, but the general implications of immigration law set the backdrop for many of the struggles addressed within her book.
This review aims to remind political and legal professionals that the law is not only text on a page or a case on a docket. The law controls the treatment of human beings. This article will only explore “Chapter One: Staten Island” due to the amount of content packed within it. Further, this article will discuss the difficulties of legal immigration into the United States and then contemplate one of the several jobs undocumented people are forced into due to their status: day laboring.
The So-Called “American Dream”
America’s promises of freedom and opportunities make the country a beacon to those seeking those qualities in a home. Villavicencio begins her book by explaining the educational and financial opportunities that led her and her parents to America. “[W]e’ve talked very little about [my parents’] decision to choose New York, or even the United States, as a destination. It’s not that I haven’t asked…[i]t’s that the answer isn’t as morally satisfying as most people’s are…” For many other people Villavicencio interviewed, the reason to come to America was a financial one as well. However, the process of obtaining a visa in the current landscape of immigration procedure is expensive, time-consuming, and complex.
There are three routes for temporary and permanent immigration: (1) employment, (2) familial reunification, or (3) humanitarian. Within each of these categories, there are strict rules that restrict the number of visas and green cards allocated annually per country and establish several factors that could disqualify a migrant from entering lawfully. For example, no single country can account for more than seven percent of all green cards issued annually. These inequitable regulations on immigration created long wait times to obtain certain visas depending on the time of year and the number of applications submitted to the Department of State. As of February 2022, applicants for permanent residence from India with at least one bachelor’s degree and five years of postgraduate experience or a master’s degree will wait another nine years before obtaining a visa. Other major challenges for applicants are language and cost. Ultimately, there is no legal avenue for several people and families who do not fit squarely into one of the narrow boxes set out by the current Immigration and Nationality Act (“INA”).
Even if an immigrant qualifies for a visa, the application could be denied due to several “inadmissibility grounds.” Examples of these grounds include, but are not limited to, not obtaining a labor certification from an employer prior to entry (if entering for employment purposes), entering the United States without inspection, and the possibility that a migrant will become a “public charge” to the United States. During 2019 and 2020, the Department of Homeland Security (“DHS”) published new, stricter regulations on reviewing whether an immigrant will become a public charge. The “final rule” took a person’s likelihood to rely on certain health or human services to indicate they would become public charges, thus rendering their application inadmissible. The Biden Administration rescinded this rule in 2021, but the law created a “chilling effect,” which stopped many immigrants from requesting public benefits, like Medicaid, fearing it would affect their immigration status.
One population of migrants that are particularly affected by the public charge inadmissibility ground are those seeking employment opportunities. Immigration officials usually rely on “affidavits of support” from sponsors in the U.S. to make their determination. These affidavits are contracts where the sponsor agrees to financial aid and support the intending immigrant. The process for an employer to sponsor a migrant is costly for the employer, especially if the employer must sign an affidavit of support. Ultimately, low-income people seeking entrance to the U.S. are particularly affected by the visa and review process. Migrants then pursue entrance to the U.S. in other ways.
The Dangerous Effects of Complex, Expensive Immigration Laws
“I ask Julián what he’d like readers to know about him, and he immediately says, ‘Tell them I crossed the desert four times to see my children.’” Villavicencio spends numerous pages of the first chapter addressing the dangers of crossing the desert. Julián described that his skin felt so cold during the desert nights that he was afraid it would “shatter like hard candy.” Then, the day would get so hot “he thought demons had possessed him.” Julián had to pay a “coyote” (people smuggler) to lead him through the desert each time he crossed the border. Coyotes are known to be unforgiving in their treatment of those they lead through the desert. Julián spoke about how the coyotes are always drunk and drugged and will leave people behind. Additionally, migrants must worry about the cost of coyotes. About a decade ago, Mexican immigrants would pay between $1,000 and $4,000 to cross the border on foot. The fee for Central American immigrants was between $7,000 and $10,000. Currently, DHS is estimating coyotes’ costs are about 2 to 3 times those numbers. In 2021, the International Organization for Migration (“IOM”) reported over 650 people died while attempting to cross the border. This is the highest reported number of deaths since the IOM began reporting these statistics.
Undocumented people face many challenges in the US, including a lack of stability and discrimination. One central theme of the first chapter of The Undocumented American is the mistreatment of undocumented people. First, the author mentions the systematic issues surrounding undocumented people such as racism and classism. One very powerful quote reads:
…I have heard nice people try to be respectful about describing undocumented people [by calling us] “undocumented workers” as a euphemism, as if there was something uncouth about being just an undocumented person standing with your hands clasped together…I almost wish they’d call us something rude…because that’s acknowledging something about us beyond our usefulness…to describe all of us…as workers in order to make us palatable, my god.
Villavicencio also addresses the negative treatment of Mexicans and Latine people based on nothing but their skin tone. Once, Villavicencio sat silently on the bus with an English book in hand. A woman rudely directed a comment to Villavicencio that she wished “these people” would learn English. Other people interviewed for this novel also recalled negative treatment based on their English-speaking abilities. Julián recollected many times when employers would scream and curse at him because he did not understand English.
Additionally, Julián, as well as Joaquin, reflect on how employers treated them compared to documented people at work. Joaquin worked for a boat company when planes crashed into the World Trade Center. Joaquin helped take volunteers in and out of Ground Zero for two weeks on the boats. Suddenly, his employer fired him because the employer was afraid of a fine from Immigration and Customs Enforcement (“ICE”) for hiring Joaquin. About eleven years later, Joaquin again helped the city when Hurricane Sandy flooded Staten Island. He, among many day laborers, volunteered to do the clean up the government did not want to do and did not receive adequate compensation for it. For example, many people took free labor and failed to provide the workers with essential tools for the clean-up, meaning the workers had to bring their own. Ultimately, the effect of complex immigration regulation results in harmful practices against undocumented people through several layers of everyday life.
Legal Reform and Community Organizing
Ultimately, Villavicencio artfully weaves the stories of a few people to speak on several complex and interwoven issues facing a vibrant community of people. In addition to systematic and institutional discrimination people face when coming to the U.S., Villavicencio also highlights the good. Another major theme that radiates through the first chapter of The Undocumented American is the power of organizing. Villavicencio spent the entirety of the first chapter in Staten Island and met many of the people she interviewed at Colectiva Por Fin (“Colectiva”). Colectiva was created in 1997 as a small nonprofit “that provided practical advocacy, representation, and training for day laborers and the immigrant community at large.” Villavicencio focuses on day laborers because many are immigrants who are susceptible to entering into abusive relationships with employers. Through the chapter, Villavicencio reveals how Colectiva successfully aided in negotiations, safety training, and networking tricks to help the day laborers create a safe and mutually beneficial client base. Colectiva exemplifies the benefits of community organization and participation. However, organizing is a Band-Aid to a large-scale problem that is deeply rooted in racism and xenophobia codified by law.
One way to support undocumented people is to utilize state and local governments to protect undocumented people from federal immigration policy. There are sovereign decisions a state or local municipality can make to aid their undocumented communities, such as extending benefits to all local residents. For example, some states already extended medical insurance for children regardless of immigration status. Some jurisdictions also created ways for undocumented immigrants to obtain IDs such as driver’s licenses and municipal IDs to provide access to places such as hospitals and banks.
A second, larger step, to aiding undocumented people is through a comprehensive reform of the governing INA. The current framework of the INA was enacted 70 years ago. Some sections, like the criminalization of entry and re-entry, have not been amended since its passing. Additionally, other sections, such as quotas and limitations on immigration entrance, have not been amended since 1990. Immigration law is one that needs continuous updating and reforming due to population increase, societal notions, and foreign affairs. However, the legislature failed to provide this type of adjustment and ultimately the INA contemporarily does not reflect the interests of American immigration and actively harms migrants seeking to reside in the U.S. Ultimately, these large-scale provisions must be addressed in the legislature.
When Donald Trump was elected President, a member of AmeriCorps, who volunteered at Colectiva Pro Fin, gave a long-winded speech to the day laborers there. He mentioned that Americans would come to their rescue if things got worse. However, that did not ring true to the translator in the room, Santiago. Ultimately, Santiago’s faith was no longer in the American people and their treatment of the immigrant community. He said, “[u]nless these Americans are lawyers or federal judges, I don’t see how [Americans will come to their rescue].” The Undocumented Americans subtly nudges at the importance of legislative and legal reform in immigration law. Though the novel, and this blog post, did not thoroughly address legal doctrine or jurisprudence, Villavicencio reminds Americans what the law can give and what it can take away. Her novel calls for change; change that, in part, must be created by current and future legal professionals and politicians.
- Karla Cornejo Villavicencio, The Undocumented Americans 172 (2020). ↑
- Id. at xiv-6. ↑
- Id. at xv. ↑
- Id. at 3-4. ↑
- Id. at 4. ↑
- Id. at 16-20. (Villavicencio interviewed a man she dubbed “Julián” who came to the United States to help support his family that remained in Mexico. He hoped he could make enough money in the United States where he could return to Mexico with them, but his marriage fell apart, as many do “when divided by a border”). ↑
- ET Online, The Costs of Immigrating to United States, The Economic Times (May 28, 2021) https://economictimes.indiatimes.com/nri/migrate/the-costs-of-immigrating-to-the-united-states/articleshow/82966455.cms. See also How the United States Immigration System Works, American Immigration Council, (Sep. 14, 2021) https://www.americanimmigrationcouncil.org/research/how-united-states-immigration-system-works. ↑
- Why Don’t Immigrants Apply for Citizenship?, American Immigration Council, (Oct. 7, 2021) https://www.americanimmigrationcouncil.org/sites/default/files/research/why_dont_immigrants_apply_for_citizenship_0.pdf. ↑
- See generally 8 U.S.C. § 1153; 8 U.S.C. § 1152. See also Ilona Bray, What’s the Difference Between a Visa and a Green Card?, Nolo (last visited Feb. 20, 2021) https://www.nolo.com/legal-encyclopedia/free-books/fiance-marriage-visa-book/chapter1-1.html (explaining that a visa is for temporary immigration called “nonimmigration”, and green cards are for immigrants whose intent is to remain in the United States permanently). ↑
- 8 U.S.C § 1152. ↑
- U.S. Dep’t of State Visa Bulletin, Vol. X, No. 62 (Feb. 2022). ↑
- Id. ↑
- Supra note 7. ↑
- See generally 8 U.S.C. § 1182. ↑
- 8 U.S.C. §1182(a)(5)(A)(i); 8 U.S.C. §1182(a)(6)(A)(i); 8 U.S.C. §1182(a)(4)(A). ↑
- Gabriel R. Sanchez, It’s Time for the Biden Administration to Let Immigrant Know About the Public Charge Rule Change Brookings (Jan. 19, 2022) https://www.brookings.edu/blog/how-we-rise/2022/01/19/its-time-for-the-biden-administration-to-let-immigrants-know-about-the-public-charge-rule-change/. ↑
- Id. ↑
- Id. (conveying, through a survey conducted in 2021, that nearly half of families who needed financial assistance for COVID-19 complications did not apply for assistance due to concerns over how doing so could impact their immigration status). ↑
- 8 U.S.C. §1182(a)(4)(B)(ii). ↑
- Affidavit of Support, U.S. Citizenship and Immigration Services (last visited Feb. 20, 2022) https://www.uscis.gov/green-card/green-card-processes-and-procedures/affidavit-of-support. ↑
- Karla Cornejo Villavicencio, The Undocumented Americans 18 (2020). ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Paolo Campana, ARTICLE: Human Smuggling: Structure and Mechanisms, 49 Crime & Just. 471 (2020). ↑
- Id. ↑
- Id. ↑
- Alex Nowrasteh, The Conservative Case for Immigration Tariffs: A Market-Based, Humane Approach to Solving Illegal Immigration, Competitive Enterprise Institute (Feb. 7, 2012) http://cei.org/sites/default/files/Alex%20Nowrasteh%20-%20The%20Conservative%20Case%20for%20Immigration%20Tariffs.pdf. ↑
- Id. ↑
- Priscilla Alvarez, At Least 650 Migrants Died Crossing the US-Mexico Border, the Most Since 2014, International Agency Says, CNN (December 9, 2021). ↑
- Id. See also Eileen Sullivan, A Rise in Deadly Border Patrol Chases Renews Concerns About Accountability, New York Times (Jan. 9, 2022) (addressing the increase in immigrant death and injuries from high-speed chases by the United States Border Control at the U.S.-Mexico border. Border Control recorded more than 700 “use of force” incidents in the 2021 fiscal year.). ↑
- Karla Cornejo Villavicencio, The Undocumented Americans 12-13 (2020). ↑
- Id. at 18. ↑
- Id. at 16. ↑
- Id. at 22. ↑
- Id. ↑
- Id. at 23. ↑
- Id. at 27. ↑
- Id. ↑
- Id. ↑
- Id. at 11. ↑
- Id. ↑
- Id. at 11. ↑
- See generally United States v. Chae Chin Ping (“The Chinese Exclusion Act”), 130 U.S. 581 (1889) (the Court affirmed Congress had the power to create immigration statutes even when they conflicted with international treaties and explicitly excludes Chinese people from immigration processes); Quota Act of 1921, Pub. L. No. 67-5, ch. 8, § 2, 42 Stat. 5 (where Congress explicitly restricted immigration through quotas based on national origin and race); Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America 50 (2004) (specifically addresses the racist and classist treatment of Latino migrants in the U.S.). ↑
- Jennifer J. Lee, ESSAY: Redefining the Legality of Undocumented Work, 106 Calif. L. Rev. 1617 (2018). ↑
- Id. 1631. ↑
- Id. at 1631-1632. See generally 42 CFR 457.1-457.1285 (“State Children’s Health Insurance Program”). ↑
- Id. at 1633. ↑
- See generally 8 U.S.C. ↑
- Id. ↑
- Mary Giovagnoli, Overhauling Immigration Law: A Brief History and Basic Principles of Reform, Immigration Policy Center (Feb. 2013) https://www.americanimmigrationcouncil.org/sites/default/files/research/perspectivescirprimerwe111213.pdf. ↑
- Id. ↑
- Karla Cornejo Villavicencio, The Undocumented Americans 14 (2020). ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. at 15. ↑