December 30, 2016
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Elisa Xitco, then 6, at her home near the Mexico-California border in 2012. Elisa's father, Chris Xitco, is an American who married Elisa's mom after they met at work. Xitco filed to sponsor his wife for legal residency. But to Xitco's shock, his wife was instead forced out of the United States until at least 2018--a punishment enacted by Congress in 1996 and phased in over time against spouses who had crossed the border illegally. Bans on spouses that can range from 10 years to life are not automatically applied to foreigners who enter on visas and violate them. Chris belongs to American Families United, which has lobbied Congress in vain to lighten these penalties. With a Trump presidency, the group now fears spouses who've opted to not try to legalize will end up detained and deported. Susan Ferriss

Trump and Immigration: Tough Talk Masks a Complex Reality

Critics say heated rhetoric sows fear and confusion while risking ‘collateral damage’

By Susan Ferriss,

During a Republican primary debate last February, Sen. Marco Rubio of Florida seized a moment. He asserted that even though Donald Trump the candidate was attacking undocumented immigrants, Trump the businessman had used 200 undocumented Polish workers to build Trump Towers, the president-elect’s gilded Gotham high-rise.

This foreign-worker imbroglio involving Trump — there are more — led to a court ruling in 1991 that Trump associates were in on a plan to stiff a laborers’ union out of pension benefits by underpaying the Poles. Trump professed not to know about the workers’ status, according to reports, and he appealed. Fifteen years later, though, after some of the Poles went public in news reports about wage and safety violations, Trump ended the protracted legal battle with a sealed settlement.

“He brings up something from 30 years ago,” Trump said at the debate, lashing back at Rubio. Trump said laws were different then. “It worked out very well,” he said with a shrug. “Everybody was happy.”

But millions of Americans who are married or otherwise related to other undocumented people are not at all happy today — and they can’t afford to shrug off the past like Trump. Employers who have stepped up over the years to admit that many employees are likely undocumented are also dismayed. They fear that Trump’s election means the end of a long quest for immigration reform that recognizes that most undocumented workers are not the “criminals” or “bad hombres” that Trump excoriated during the campaign. Instead, they’re the spouses and parents of U.S. citizens, longtime co-workers and neighbors and home and business owners — and their issues, problems and challenges are far more complex than Trump’s heated rhetoric would make it appear.

A chill in the air

“Our members are scared out of their wits,” said Kim Anderson, a Minnesotan who leads American Families United. The group represents U.S. citizens with undocumented spouses who are unable to legalize those spouses under current immigration laws without great risks. Members are now coming to grips with the possibility that their circumstances are about to get even worse.

On immigration, like on many other subjects, it’s sometimes hard to figure where the president-elect’s bluster ends and his actual position lies. Trump’s stinging words about Mexicans and Muslims during the campaign are old news, but not forgotten as he prepares to take power. He initiated his campaign by fixating on Mexicans who cross the border, calling them “rapists” before adding, after a pause, that "some, I assume, are good people." He tried softening his rhetoric in an Arizona speech by referring to “the great contributions of Mexican-American citizens to our two countries … and the close friendship between our two nations.” But Trump’s appointment of Steve Bannon as his chief White House strategist has inflamed tensions further because of Bannon’s talk-radio past and his Breitbart website, which features diatribes degrading immigrants and people of color.

For members of American Families United, the prospects their concerns will be heard feel thin.

A myth persists that if Americans marry undocumented people — who many have met at work — those spouses can easily transition to legal status. The reality is that Americans can no longer apply to get green cards for undocumented spouses without facing severe consequences if their husbands or wives originally entered the country illegally and were here for more than one year. Those spouses are automatically subject to being banished from the United States for 10 years, sometimes longer, even for life. This policy came about long before Trump; a Republican-controlled Congress tucked the punitive measures, known as bars, into the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. Application of the bars was phased in, shocking a first wave of couples who were unaware of the changes.

More than 9 million people appear to live in “mixed status” families with an undocumented adult and at least one U.S.-born child, according to the Pew Research Center. As of 2014, Pew estimated, 66 percent of undocumented adults had been in the United States for more than 10 years — enough time to form families.

Because of the rules, some mixed-status families have already been forced into exile to stay intact. They’ve suffered financial strain and emotional trauma. Others, to keep jobs here, have had to live separately from spouses and children who are stuck abroad, as the Center for Public Integrity reported in 2012. Still others have chosen not even to try for green cards, and instead live every day worrying that a spouse could get picked up in a workplace raid or due to a traffic stop.

For years, these citizens have tried to persuade Congress unsuccessfully to reform these penalties— arguing that the bars have done nothing to deter illegal immigration and instead are a disproportionate punishment falling on Americans. Multiple bills with some bipartisan support have so far stalled in Congress.

President Obama’s administration did make a slight change that’s aided some in this community; in 2013 he issued a regulatory tweak allowing spouses seeking green cards to apply for waivers from banishment without having to leave the country, as had been required. However, since many spouses had already been advised they would not qualify for the narrow criteria for a waiver, they were unable to benefit from the regulatory change.

“Our members have lived in this unknown fear for years that at any given moment their lives can be wrecked, irreversibly,” Alexander said. With Trump’s election, “that’s been ratcheted up by 10 times.”

Hard-line approach

Indeed, Trump’s position sounds uncompromising.

“For those here today illegally who are seeking legal status, they will have one route and only one route: to return home and apply for re-entry,” Trump said in his Arizona speech. “Our message to the world will be this: You cannot obtain legal status, or become a citizen of the United States, by illegally entering our country.”

Another group whose future now appears in peril: more than 700,000 so-called “Dreamers,” young people whose parents brought them here as children and whom President Obama and a number of Republican leaders have defended as Americans in all but documents. So-called DREAM Act legislation that would have provided Dreamers an earned path to legal status has failed repeatedly. So in 2012, Obama issued an executive order granting some Dreamers who registered with the government temporary protection from deportation and two-year work permits that must be renewed.

Obama has urged Trump to show compassion for Dreamers. “It is my strong belief that the majority of the American people would not want to see suddenly those kids have to start hiding again,” Obama said. But Trump has said he’ll “immediately terminate” Obama executive orders like the Dreamer policy. He’s also said that only after the border is controlled “will we be in a position to consider the appropriate disposition of those who remain.”

In an interview with TIME magazine this month, Trump suggested “we’re going to work something out” for Dreamers. They “got brought here at a very young age, they’ve worked here, they’ve gone to school here,” he said. “Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.”

One of Congress’ hardliners, Rep. Steve King, R-Iowa, didn’t sound happy with the softer tone. He told CNN that “among these Dreamers are some awfully bad people,” and he added: “Will those children point to their parents and tell us, ‘You really need to enforce the law against my parents, because they knew what they were doing when they caused me to break the law?’ ”

A circle of immigration-restriction activists who favor a tough line — and who say they’ve advised the Trump campaign — have historically expressed little mercy for Dreamers.

When a version of the DREAM Act failed to pass in 2007, Roy Beck, the executive director of NumbersUSA, one of these groups, said he had no sympathy for the young people.

“I have no trouble looking at them in the eye, and saying, ‘Too bad. Life is hard,’ ” Beck told The Sacramento Bee. Beck, whose group has mobilized voters to oppose Dream Act proposals, told Reuters this fall that he met Trump in New York during the campaign.

NumbersUSA declares a policy of “no to immigrant bashing" on its website and contends its concern is over-population. But the Southern Poverty Law Center has labeled NumbersUSA a hate group — which Beck strongly protests — due to racially charged remarks expressed by a founder and Beck associate.

Chris Kobach, the controversial Kansas secretary of state, has also been among those counseling Trump on immigration matters. Before he held elected office, Kobach pressed several lawsuits to deprive Dreamers of the right to pay in-state tuition to attend public colleges where they grew up. His suits have failed in California, Nebraska and Kansas.

Kobach was also the architect of an Arizona law that required police there to demand proof of legal status for people suspected of being undocumented. The U.S. Supreme Court reviewed that law and upheld the power of police to investigate a person’s status under certain conditions. But as part of a civil-rights lawsuit settlement Arizona stopped requiring police to demand evidence of legal status or hold people for prolonged periods solely for that purpose.

Back in 2012, while advising GOP presidential candidate Mitt Romney, Kobach argued that within four years, if “attrition through enforcement were made the centerpiece of national immigration policy, you could see the illegal alien population cut in half.” The battle of Dreamers could shift to Congress again soon: GOP Sen. Lindsey Graham of South Carolina, a longtime supporter of legal status for Dreamers, plans to introduce another version of the Dream Act next year.

“What the agricultural community needs to do now is understand its vulnerabilities and play extreme defense.”

— Barry Bedwell, president of the California Agricultural Leadership Foundation

Unforeseen consequences

Regardless of what actually happens on the policy front, though, what Anderson of American Families United fears is more collateral damage.

She worries additional Americans will be driven into exile — like Margot Bruemmer. Originally from New Jersey, Bruemmer was a college English professor when she moved with her young children and undocumented husband in 2005 to Veracruz, Mexico. Bruemmer’s spouse learned at a green-card interview in Mexico that he was barred from entering the United State for at least 10 years. After 10 years, the couple re-applied for the green card. But he was rejected again. A devastated Bruemmer is facing a lifetime outside the United States to keep her family together.

“Begging and pleading by phone, email, and in person with senators and congressmen was in vain,” the mother of three children said in a message to friends.

Anderson questions what benefit there is for Americans “to deny life in the United States to Margot’s children.”

But Anderson conceded that mustering support for undocumented immigrants isn’t easy. A Gallup poll last July actually found that 84 percent of U.S. adults — and 76 percent of Republicans — favored allowing undocumented immigrants to earn legal status over time if they met certain requirements. Yet Anderson acknowledged the battle cry often rising above that sentiment: that the undocumented should “do it the right way,” and “get in line,” and shouldn’t be rewarded with legal status.

That rhetoric bumps up against a cold reality; the current immigration system doesn’t actually provide a way for most undocumented people to correct their status by getting in a line. Without a change in policy, many spouses of Americans or legal residents face the punitive bars blocking them from re-entering the United States. For many others, there is no line at all: Most visas for legal residency are based on marriage or other immediate family ties. Work visa categories and opportunities for employer sponsorship for green cards are extremely narrow — benefiting mostly people with so-called “extraordinary” skills, including professional athletes and models, which is what facilitated Trump’s wife Melania’s transition to the United States.

Even if a U.S. employer is eager to sponsor and “legalize” undocumented workers who’ve become trusted workers — in farming, for example, or elder care — it’s all but impossible because “unskilled” job visas are few and requests are backlogged for years. On top of that, at present, any history of crossing the border illegally or undocumented status can be disqualifying.

Americans frustrated by these barriers contrast their experiences with what they’ve heard about the future First Lady.

Melania Trump has said that she followed all visa rules when she arrived here about 20 years ago. But according to an Associated Press investigation, documents showed that Melania performed 10 modeling jobs valued at more than $20,000 while she was still on a visitor’s visa in 1996 that did not permit her to work. The jobs were performed, the AP reported, weeks before she was issued an H-1B non-immigrant temporary work visa in October 1996. Violating terms of a visa or presenting a misleading history involving a visa can result in denial of re-entry to the United States and denial of a permanent residency application. Melania obtained permanent residency in 2001, but hasn’t elaborated on how she made that transition. She became a U.S. citizen in 2006, a year after she and Trump married.

The contrast with businesses like agriculture appear stark to many — including Barry Bedwell, president of the California Agricultural Leadership Foundation. Agribusiness leans heavily Republican, but Bedwell counts himself among those dispirited by Trump’s rhetoric and worried about what comes next.

The long partnership between employers and the undocumented has been “allowed … to develop because it’s been mutually beneficial,” admitted Bedwell. Like many in agribusiness, he’s frustrated that conservatives in other parts of the country aren’t open to his point of view. But “now that we’ve moved past the campaign,” he said, “I’m hoping cooler heads will prevail.”

Bedwell is based in the Salinas Valley, and before that he was based in Fresno — two of the most productive agribusiness regions in the world. Tending and harvesting crops must be done at precise moments in time, so workers need to be available. California has much at stake in whatever the Trump Administration does here — and so do American consumers, given that the Golden State produces the majority of America’s fruits and vegetables and is the leading producer of milk — and relies heavily on undocumented laborers.

“What the agricultural community needs to do now,” Bedwell said, “is understand its vulnerabilities and play extreme defense.”

Troubling stalemate

For many, both recent history and the current situation seem counterproductive. President Bill Clinton’s administration began investing billions on fortifying the border in the mid-1990s, and President George W. Bush invested billions more. Smugglers’ fees began escalating and trips became more dangerous, so more and more workers stayed put.

Trump argues that “lower-skilled” immigrants “compete directly against vulnerable American workers, and … draw much more out of the system than they will ever pay in.” But agribusiness companies have complained at times about worker shortages in the wake of extra border security, such as occasional deployments of the National Guard, and most economists argue that American consumers have benefited overall from immigrant labor, documented or not.

Stretching back to the 1990s, a coalition of business, labor and civil rights groups have unsuccessfully pursued reform. They didn’t always agree on everything. But versions of bills they generally backed would have legalized some of the current workforce for the sake of preventing disruption in the national food supply and other industries, and to promote community and family stability. Proposals would have also overhauled the system for vetting claims of worker shortages and then admitting workers to fill jobs that aren’t necessarily considered “extraordinary” — like modeling — but essential to the economy.

Proposals included trade-offs that were uncomfortable for some. Versions of farmworker-specific legislation would have phased-in a legalization of current workers, on condition they stayed in the fields for a period before leaving for other jobs. Farmers would be expected to increase use of a guest worker program whose inefficiencies they could help reform. For some labor advocates, these provisions were a bitter pill because unions fought to end the exploitative Bracero program in 1964 that had imported Mexican farmworkers without equal rights. But labor activists were also concerned that workers were dying crossing deserts for jobs, or were undocumented and less able to fight for better treatment.

Provisions in these failed immigration bills would have also poured billions of dollars more into additional border security. And in an unprecedented step, all versions of these bills would have also phased in mandatory employer use of the E-Verify system, an online system for authenticating ID documents.

To understand why employers — and labor activists — support such broad-based reforms, Bedwell and others say, Americans need a better understanding of what’s happened in the past.

E-Verify didn’t exist when Congress and President Ronald Reagan approved the last major immigration legislation 30 years ago — a bitterly contested measure known as the Simpson-Mazzoli Act. Before the 1986 reform, it wasn’t even illegal to hire undocumented workers. Into the 1970s, employers could sponsor undocumented immigrants for green cards with greater ease. Immigration judges, too, had greater latitude to review individual cases and grant legal status.

In 1986, in addition to an amnesty, Congress mandated that employers ask to see a prospective employee’s documents indicating legal status — and then record and keep that information on file. Not complying can result in a fine. But employers aren’t expected to be experts in detecting fake documents. And with rare exception, most escape responsibility for hiring undocumented workers because the legal burden of proving they “knowingly” hired workers is difficult to meet. So the employer sanctions that were part of the legislation proved largely ineffective. And even though border control spending exploded in the mid-1990s, workers willing to risk more perilous crossings kept coming, and employers kept hiring them to fill jobs — not just on farms, but in construction and services.

Now, though, mandating E-Verify would be a potential game changer for businesses — assuming the system’s not insignificant operational problems can be smoothed out. Trump has said his administration “will ensure that E-Verify is used to the fullest extent possible under existing law, and will work with Congress to strengthen and expand its use across the country.”

The U.S. Chamber of Commerce, which led the comprehensive-immigration-reform charge for years in Washington, has produced reams of documents featuring economists’ positive take on immigration. The group points to longitudinal studies finding that immigrants boost economic growth, tax revenues and on balance push up wages for the native-born, who assume more management roles.

But since Trump’s victory, the chamber has gone silent, and is regrouping for a new era. “We’re not going to speculate on anything related to the Trump administration’s policies at this time,” a spokeswoman said in an email. “We look forward to working with the new administration and the new Congress on issues of importance to the business community, which includes immigration reform.”

Swimming upstream

Even before Trump, reform advocates like the Chamber were up against a rising tide of skepticism regarding reform.

Congress grew cold after the 9/11 terrorist attacks, and conservative talk radio and TV programs began a drumbeat of attacks against legalizing immigrants; TV personalities such as Lou Dobbs spread outlandish claims about Mexican plots to “take over” the American Southwest. Ironically, Mexican President Vicente Fox — the most pro-U.S. Mexican president in modern times — was increasingly excoriated by Dobbs and others. As wars in Afghanistan and Iraq tarnished President Bush’s popularity, he lost his ability to muster GOP support for a reform he had pushed. An influx of Central Americans fleeing violent gangs also brought a backlash.

Immigrant advocates aren’t convinced that Trump’s pledges to get tough will result in a mass exodus of people, but they do think workers will feel pain far more than employers. Bruce Goldstein, president of the nonprofit Farmworker Justice in Washington, D.C, said, “I’m worried that the current undocumented workers will be pushed further into the margins of society where they will suffer more.”

Bill Hing, a veteran immigration attorney and professor at the University of San Francisco, said his phone is “ringing off the hook now” as clients seek “an educated guess” on what Trump might do. More workplace raids might occur to “make a splash,” Hing also predicted. But employers, especially agribusiness, he said, are sure to try to enlist GOP leaders like House Majority Leader Kevin McCarthy, of Bakersfield, California, to try to fend off what they view as disruptive enforcement.

“Americans,” Hing added, “forget that there is truth to the argument that undocumented immigrants do take jobs Americans don’t want to do.” The undocumented are also consumers; local economies would suffer if the population vanished suddenly.

Among Trump’s favorite campaign stump lines was his vow to build “a great and beautiful wall” that Mexico would be forced to pay for — a vow he’s waffled on at times. He also railed against Mexico for “stealing” American jobs because U.S. corporations have factories there.

Yet despite his “America first” rhetoric, Trump himself used Mexican and Asian factories to produce his clothing line. The Washington Post reported that construction workers on Trump’s new hotel in Washington, D.C., admitted just last year that they were undocumented. Trump denied hiring undocumented workers and said the company used E-Verify to conduct screening.

In Florida, The New York Times reported that nearly 300 U.S. citizens have applied since 2010 to work as cooks, housekeepers and wait staff at Trump’s luxury Mar-a-Lago Club — but that only 17 were hired. The U.S. Labor Department, which reviews whether a business has met requirements to try to hire Americans first, certified 685 H-2B guest worker visas for Mar-a-Lago between 2008 and 2015. CNN reported that over 15 years, Trump’s businesses have filed for more than 1,250 foreign workers for various positions. Trump seemed to prefer young, attractive Eastern European or South African people, former workers told CNN.

Trump batted away these findings during the campaign, claiming there were “very few qualified” workers during the “high season” in the Mar-a-Lago area — a claim disputed by services that match employees in the area. Some news reports found that the business did little to meet requirements to advertise for workers. Mar-a-Lago justified its requests for foreign workers by saying that not enough American applicants were willing to work split shifts or part time.

Trump began suggesting in the final days of his campaign he’d go after “criminal” undocumented people first, which is already an Obama administration policy. In a transition video he released to the public on Nov. 21, Trump announced that he plans to direct the U.S. Department of Labor to investigate “all abuses of visa programs that undercut the American worker”— exactly how some in Florida reportedly felt about Trump’s recruitment of European guest workers.

“The contradictions with him are enormous,” said Muzaffar Chishti, who researches migration and is the director of Migration Policy Institute’s office at the New York University School of Law. The Migration Policy Institute is a nonpartisan think tank in Washington, D.C.

When it comes to immigration and accountability, Chishti said, “employers have been able to shift the burden downstream for years now,” to subcontractors and workers. Based on Trump’s harsh but mercurial rhetoric, Chishti added, it’s hard to imagine how Trump’s vows to police practices he has reportedly engaged in will eventually play out.

Throughout history, Chishti noted, Americans have employed foreign-born workers, and turned against them in fits of xenophobia that include labeling newcomers as “criminal” or unable to assimilate.

 “America’s always been ambivalent about immigration,” he said, “for a nation of immigrants.”


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