A Closer Look at Illegal Immigration Assumptions: How the Law Produces “Criminals” Through Naming by Katie Hoeppner
I recently sat down for dinner with a crowd of friends and a married couple who I had just met. The two went from discussing their latest trip to Cancun, Mexico with enthusiasm to declaring their support for Donald Trump within a matter of moments. They didn’t seem to notice the irony in traveling to Mexico to enjoy its lush beaches, while supporting a man who has vowed to build a wall that would keep millions of Mexicans out of the United States. It begged the question, how many Americans take for granted their right to travel to Mexico for pleasure, while denying the right of Mexicans to travel to the United States to work and enhance their life possibilities? It is sad to think that some people believe that leisurely travel is their right, while the survival of their neighbors to the south is only a privilege.
The couple in question might insist that they traveled legally and for a short period of time, in contrast to the many Mexicans who come to the United States illegally and for long periods of time. Indeed, people often tell me they welcome those who come here following the proper legal channels, and reject only those who come here illegally. However, these comments miss the mark. As Friedmann Marquardt et al. (2011:46) point out, the simple answer to the common question “why don’t they just wait in line?” is that for most people, “there simply is no line available.”¹ They would come here legally if they could, but they do not meet the criteria for lawful entry. The United States places restrictions on immigration that generally allow only those who are reuniting with family, sponsored by an eligible employer, or who have attained special humanitarian status, such as refugee or asylee, to enter. Employee sponsored work visas are reserved for skilled professionals who have attained a high level of education or who possess extraordinary abilities, “such as computer scientists or professional baseball players” and those applying for family visas can find themselves waiting for a decade or more (Friedmann Marquardt et al. 2011:46). The Diversity Visa program is another path applicants can pursue if they don’t meet the criteria for the above categories; however, it only awards 55,000 green cards per year and prohibits people from countries with high immigration rates, such as Mexico, from applying. Quite simply, the law is not setup to allow most of those who are here illegally to be here legally.
While it is often assumed that the act of breaking the law automatically makes someone violent and dangerous or even deserving of punishment, such sentiments are misleading. Contrary to Donald Trump’s remarks that the majority of Mexican immigrants are rapists and criminals, research shows that immigrants more broadly are less likely to commit crimes than native-born Americans (American Immigration Council 2015, Southern Poverty Law Center 2010). Moreover, undocumented Mexicans are frequently the victims of brutal hate crimes, many of which go unreported each year due to the victims’ fear of deportation. Often times, Americans who commit such crimes are not caught, but when they are caught, they may receive reduced penalties because they, unlike their victims, are not seen as “criminals.”
In her book, Social Death: Racialized Rightlessness and the Criminalization of the Unprotected, Lisa Marie Cacho (2012) offers a particularly salient example of this type of scenario. In July 2000, while on a mission to “hunt” down undocumented Mexicans in San Diego, a group of high school teenagers spotted and shot 64-year-old Andres Roman Díaz with BB guns as he was walking home from work. They then followed Díaz back to his home and proceeded to beat him and his four co-workers with a pitchfork, rocks and pipes. They beat one man so badly that they worried they had killed him, and out fear of being caught, hid his body in the bushes (Cacho 2012: 35-36). Although the boys assumed that their victims were illegal migrant workers, all five men were actually living and working legally in the United States. In the end, none of the teenage assailants were sent to state prison. Five out of the seven were sent to a California Youth Authority Facility and out of those five, four were sentenced for less than one year (Cacho 2012: 35-37).
Cacho (2012:37) recounts this story to pose the following question: “What makes it difficult for the criminal justice system to recognize young white men as criminals and, for that matter, to recognize racially motivated anti-immigrant violence as a crime deserving of criminal punishment?” Cacho (2012:43) also explores the flip side of this question – what makes undocumented Mexicans automatically seem criminal? – and asserts that to be an “illegal alien” is a “de facto status crime.” By this she means that one’s status becomes an offense or a crime in and of itself.
Being undocumented is illegal, but residing here illegally does not mean that immigrants are violent. However, when the law confers the status “criminal” upon immigrants simply for being undocumented, it infers that they are violent. It also leaves them vulnerable to suffering, violence, and death. Not only must they take dangerous and low-paying jobs, they may be arrested and detained for undetermined periods of time or, as shown above, beaten and tortured by intolerant Americans simply by occupying the status of “illegal” immigrant. Legality and morality are not synonymous. While the expectation is that the law offers protections from harm or promotes the common good, in truth the law often produces insecurity and violence for large portions of the population. One only has to look to slavery, segregation, and the eugenics movement for stark examples of legally institutionalized, appalling, and brutal behavior.
Donald Trump’s hateful remarks have the capacity to augment hate crimes across the country, already carried out in large numbers on the basis of race, religion, and sexuality. Last August, when two White brothers from Boston beat and urinated on a homeless Mexican man, Trump first denied hearing about the story, and then added, “I will say that people who are following me are very passionate. They love this country and they want this country to be great again. They are passionate. I will say that, and everybody here has reported it” (Moyer 2015). One of the brothers, Scott Leader, directly mentioned Trump’s name, telling police “Donald Trump was right, all these illegals need to be deported” (Moyer 2015). The state has a monopoly on violence, and the law dictates that which is legitimate violence and that which is illegitimate violence. If our next president is a man that believes senseless torture is passion, I fear that more violence than we can ever imagine will be deemed legitimate.
1. Also See: “Why Don’t They Just Get in Line?” American Immigration Council
(August 12, 2016)
American Immigration Council. 2016. “The Criminalization of Immigration in the United States.” Last modified August 12, 2016.
Cacho, Lisa M. 2015. Social Death: Racialized Rightlessness and the Criminalization of the Unprotected. New York: New York University Press.
Marquardt Freedmann, Marie, Steigenga, Timothy J., Williams, Philip J., and Vásquez, Manuel A. 2011. New York: The New Press.
Moyer, Justin Mw. 2015. “Trump says fans are ‘very passionate’ after hearing one of them allegedly assaulted Hispanic man” The Washington Post, August 21.
Southern Poverty Law Center. 2010. “Getting Immigration Facts Straight” Southern Poverty Law Center. Heidi Beirich. Last Modified July 29, 2010.
What changes for women when they are married? Do they work more or less? Do they earn more? What activities do women spend their time participating in once married? Determining whether being married helps Mexican women or hurts them economically is necessary because women’s wellbeing is frequently overlooked when scholars address economic development. If women can earn more married, then perhaps they are better off married. If women earn more single, perhaps staying single is key in women’s development. On the other hand, women must spend more time working in the home once they are married, reducing the number of hours available for them to work outside the home. If they cannot work as much as their unmarried counterparts, do they have as much opportunity to develop? Regardless of earning power, women forfeit their opportunities in the workplace when they marry because they take on the responsibilities of caring for the house and children. By closely examining the impact that frequently cited factors have on women’s development in juxtaposition with the impact marital status has, this project sheds new light on the importance of marriage for women in Mexico, and may open the door for future research in women’s economic development in other regions of the world.
In general, results suggest that women in Mexico are more likely to work if they are not married. In fact, unmarried women reported working more and making less, regardless of their head of the household status. Unmarried women who are not the heads of the household belong to households that enjoy the greatest annual income. Since these households also consume the most, it is reasonable to conclude that this could be a result of household size and more shared incomes. Unmarried women who are heads of their households consume the least and experience the lowest annual income. Married women, whether they are head of the household or not, enjoy annual incomes that fall between unmarried women’s incomes. They consume more than unmarried heads of households and less than unmarried women who are not heads of households. The results suggests that women who marry work less outside the home but more inside the home while still experiencing a greater annual income than they would if they were unmarried and the heads of their households.
I first became interested in transitional justice in Uruguay when I heard the story of Macarena Gelman. Gelman was twenty-three years old in 2000 when she learned that she was born in a secret Argentine prison in 1976. Argentine and Uruguayan operatives extrajudicially abducted and murdered Gelman’s parents, transferring Gelman to live for the next twenty-three years as the unwitting daughter of a Uruguayan policeman and his wife. Sadly, the abduction and transfer of babies born in covert prisons was a widespread and systematic practice during the regional dirty war. There are likely numerous young adults across Latin America’s Southern Cone who today remain unaware that they, in effect, disappeared at birth.
Amnesty and the Disappearance of Children
In the 1990s, Uruguay’s Peace Commission received forty denouncements involving children; eight were alleged by young people doubting their biological identities. Given methodological limitations and challenges confronted by the Peace Commission during their investigation, disappearances of children are woefully underreported. Indeed, when Gelman and her grandfather brought a case against the Uruguayan state, the Inter-American Court of Human Rights recognized the systematic forcible transfer at birth of the children of detained political dissidents. While increasingly acknowledged in Argentina, the ICC’s recognition of forced infant disappearance reveals how the practice remains Uruguay’s dirty little secret.
So I became interested in transitional justice in Uruguay—particularly prosecutions, or the absence thereof. As a dual degree Law and Master’s student focusing on human rights in Latin America, I am interested in studying the role that amnesty laws play in negotiating the transition from authoritarianism to democracy in the wake of the region’s military regimes of the 1970s and 80s. The field of transitional justice— worldwide—has been partially shaped by debate surrounding the efficacy of amnesties as “necessary evils” for negotiating peace in the war torn nations of Latin America and Africa. Whatever the outcome of this ongoing theoretical debate, I am convinced that three decades of impunity in Uruguay must come to an end.
Democracy and Impunity in Uruguay
From 1973 until 1985, Uruguay was the prototypical Orwellian state. Military personnel entrenched themselves in most public offices. Police records classified citizens into categories of ideological trustworthiness, greatly limiting the opportunities for work and travel of those who were arbitrarily blacklisted. Worse still, the prime method of repression was mass-incarceration and torture. For much of the period, Uruguay was responsible for the highest per capita incarceration rate on the planet. The military locked away—without due process—student activists, professors, union organizers, journalists, lawyers, doctors, social workers, and Communist party members. Meanwhile, children like Gelman were born in military prisons and disappeared.
When the military stepped down in the mid ‘80s, the leaders of the fledgling democracy agreed to immunize the prior regime from future prosecution. In 1986, as victims and their families filed civil human rights lawsuits in Uruguayan courts, Parliament passed a retroactive amnesty resolution: the Ley de Caducidad (“Expiry Law”). Ignoring threats from the military, Uruguayans gathered over a half-million signatures to overturn the Expiry Law by referendum. Still, to the dissatisfaction of many Uruguayans and international human rights observers, the law survived. The architects of the dirty war were thus insulated from civil and criminal penalties.
Between the 1980s and 2005, four Uruguayan presidents sponsored policies of “silence and oblivion” regarding past crimes. Many citizens felt that Uruguay’s transition to democracy was incomplete without justice. As one Uruguayan told journalist Lawrence Weschler, “You can’t pardon someone who’s convinced he has behaved well.”
The Inter-American human rights regime has denounced impunity in Uruguay. In the early 90s, the Inter-American Commission on Human Rights published a report concluding that the Expiry Law violated several articles of the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights—including the right to justice, the duty of state parties to respect and ensure rights, and the right to judicial protection. In 2011, the Inter-American Court condemned Uruguay for the Gelman disappearance, ordering the State to guarantee that the Expiry Law would no longer impede investigation into past crimes. In response, on October 27, 2011, Uruguay negated its Expiry Law, purportedly ending nearly thirty years of amnesty for the aging generals of the military regime.
But impunity remains. In February of 2013, Uruguay’s Supreme Court ruled that portions of the law that derogated the Expiry Law were unconstitutionally retroactive, prompting the UN’s High Commissioner for Human Rights to remark that the “shadow of impunity” was potentially being restored in Uruguay. While many observers remain hopeful that past crimes will soon be investigated, I propose that it may be time for the international community to step in.
Prosecuting Uruguay's Generals in the International Criminal Court
Perhaps one strategy for forcing investigations and combatting impunity in Uruguay is to prosecute those responsible for the enforced disappearance of persons in the International Criminal Court (“ICC”). As a legal matter, the ICC is not bound by domestic amnesties or statutes of limitations. Crimes against humanity are considered nonderogable jus cogens, which cannot be insulated from prosecution by domestic law. The ICC’s arrest warrant for Joseph Kony in Uganda, for example, demonstrates that the ICC prosecutor can and will determine that a domestic amnesty has no legal effect on extraterritorial prosecution.
A more difficult obstacle is that the ICC has temporal jurisdiction only over crimes that occurred on or after July 1, 2002, the date that the statute establishing the ICC went into force. But enforced disappearance is a continuing crime—“continuing” in the sense that withholding information about the identities and fates of the disappeared is itself a crime that leaves families and entire communities of victims in a state of frozen mourning. The crime thus continues until the State identifies the whereabouts or fates of the disappeared.
Participants at the Rome Conference (the “framers” of the ICC) had considerable difficulty drafting Article 24, which eventually provided: “[N]o person shall be criminally responsible under this Statute for conduct prior to [July 1, 2002].” Some participants suggested that “[c]are should be taken not to bar prosecution” of acts that “began before but continued after the entry into force of the Statute.” One delegate even proposed to append the words “unless the crimes continued after that date” in order to ensure jurisdiction over continuing crimes, like enforced disappearance. This interpretation of Article 24 would permit ICC prosecution of pre-2002 disappearances in Uruguay, so long as the whereabouts or fates of the disappeared remain concealed. According to William Schabas, the chair of the Working Group on General Principles eventually resolved the highly contentious and “unresolvable” question of temporal jurisdiction over continuing crimes by avoiding the issue altogether and essentially leaving the issue open for interpretation.
An analysis of the proceedings at the Rome Conference and reconsideration of the temporal and legal status of criminal enforced disappearance suggests that there may be no concrete legal bar to prosecuting Uruguay’s generals in the ICC. The normative issues are much more difficult as extraterritorial prosecution arguably tramples Uruguay’s sovereignty and calls into question the viability of amnesty as a tool for negotiating transition to peace after civil conflict. Questions arise: Would future repressive regimes be willing to cede power knowing that amnesty laws will have no effect in the international sphere? Is it appropriate for the ICC, with its mandate to promote peace as well as justice, to assume the risks associated with the investigation of crimes that occurred decades ago? The real question, in other words, is what type of international court do we want?
 Mark Freeman, Necessary Evils: Amnesties and the Search for Justice (Cambridge University Press, 2009).
 Lawrence Weschler, A Miracle, A Universe: Settling Accounts with Torturers (University of Chicago Press, 1998), 198.
 William Schabas, An Introduction to the International Criminal Court (University of Chicago Press, 2011), 198.
On September 4, I attended a talk at UNM by Michael Hammer, Ambassador-Designate to Chile and former Assistant Secretary of State for Public Affairs, entitled “U.S. Foreign Policy and Why it Matters to You”. Hammer gave an overview of the main duties of the State Department and discussed its ‘strategic priorities’ in advancing U.S. interests abroad. He highlighted several U.S. programs, including economic partnerships such as free trade agreements, jobs diplomacy to advance the interests of American companies abroad, empowerment of women and girls, and digital diplomacy. He finished by telling the audience members why they might want to work for the State Department, citing the foreign language skills that its employees develop, the experience of living in new cultures, and the variety and change of moving to new posts every 2-3 years.
Throughout his talk, Hammer emphasized the State Department’s commitment to promoting U.S. interests abroad. All of the priorities that he mentioned were expressed in terms of protecting U.S. national security, creating jobs in the U.S., and forging ties with other nations in order to enhance shared interests.The rhetoric of self-interest was juxtaposed with the stated priorities of promoting ‘democracy’ and ‘human rights’ in Latin America and around the world.