OTI Online
Summer 1994

Needed: A Feminist Immigration Policy
by Eleanor Pam


When Lawton Chiles, Governor of Florida, recently announced that his state would deny foster care to undocumented immigrant children, he became one of a growing number of public officials to confront the federal government over cost issues involving illegal aliens. Chiles is now suing the Federal Government for more than $1 billion in reimbursement for services the state has been required to provide for illegal aliens. New York and other states are considering similar action.

Tight budgets, overburdened social services, an uncertain economy, and nativist interest groups have precipitated an explosion of negativity about political refugees and immigrants (legal or not). They are seen as a drain on taxpayers, especially in the areas of welfare, education, health care, housing, and prison costs. The new crackdown initiatives are falling hardest on children. And women.

The smallest hostages are an indeterminate number of juvenile aliens languishing indefinitely in state detention facilities, often commingled with criminal detainees. These children have no family contact and receive no education. They have little or no access to legal representation, pending long delayed asylum and other adjudications.

Jenny Lisette Flores, at age 14, was held, along with others in their pre- to early teens, in Immigration and Naturalization Service (INS) detention facilities. They had committed no crime and had been charged with no violations of law. All were detained indefinitely, awaiting an INS hearing, because no adult relative or other INS "approved" custodian were able or willing to come forward.

For Jenny and the others, the INS has rejected alternative custodial arrangements, even to clearly qualified unrelated adults or charitable placement organizations. Yet these children pose no threat to the community or risk of flight.

When Jenny Flores, as lead plaintiff in a class action, sued for release pending her immigration hearing, the case went to the U.S. Supreme Court in 1992. The American Bar Association (ABA), in an amicus curiae brief, argued "that the indefinite detention of juveniles.. .without even the most rudimentary procedural safeguards, is directly contrary to fundamental concepts of due process..." and violated ABA guidelines standards for the welfare of children. The Court found for the government. Lock 'em up!

Due process for detained undocumented minors has become even more ambiguous since the 1992 Flores decision. Denial of foster care to immigrant children is a reality as well as a symbol and a signal to those still abroad: illegal is illegal, regardless of age.

Fear and resentment, however, not legal arguments, are fueling the current public debate about immigrants' rights, including those for minors. Alien minors and their elders are viewed as part of a bruising population implosion, an invasion that has compromised our standard of living and quality of life, threatening to transform America itself into a third world country.

In many regions the children of undocumented aliens clog the schools, transforming the curriculum, and sparking confrontations about bilingualism and multiculturalism. Systematic efforts by pregnant undocumented foreign nationals who come here to give birth (thus getting automatic U.S. citizenship for the children) has exacerbated the situation. The burden of their hospital and medical costs is on the taxpayer. Some see alien infants as yet another group benefiting from a rip-off of the system; Trojan horses in utero, the advance-guard for hoards of parasite progenitors.

These diapered opportunists are themselves a source of threat, a focus for hostility.

Is It a "Women's Issue?" For the past three decades, women have constituted a consistent majority of all documented and undocumented immigrants to the U.S. Many seek political asylum for abuses specific to their gender. These include rape, forced marriage, infanticide, genital mutilation, bride-burning, sexual abuse, domestic violence, forced sterilization, and forced abortion.

On these shores, recent changes in the 1952 Immigration and Nationality Act have created new perils for women. Previously, aliens could become legal permanent residents by marrying U.S. citizens or legal permanent residents. But as concerns about sham marriages increased, Congress changed the statutory and regulatory framework. Since 1986, the permanent resident spouse alone can petition for the alien partner to win only "Conditional Resident Status." If the marriage does not survive two years from the date of the conditional status, the divorced spouse can become deportable.

Since beneficiary spouses are primarily female, the male petitioner currently enjoys a power disparity. For two years there is a built-in unprecedented opportunity for victimization. Abusive husbands can effectively hold their alien spouses hostage under threat of loss of the right to stay in the U.S. The wife is completely dependent on the husband's continued goodwill to avoid deportation. By legislative design, husbands acquired a powerful mechanism of control. The right to stay in America has become both the carrot and the instrument of battery.

Alien spouses often come from two categories: military brides and mail-order brides. Their special vulnerability to domestic violence is worth review.

According to an article in the Yale Law Journal by Michelle J. Anderson, abuse in military families is far greater than in civilian families, perhaps because of the inherently aggressive value system and life-styles of men in the service. Worse, men in the military who batter often use weapons against their wives (almost twice as often as civilian batterers), and typically the battering may be life-endangering.

Many immigrant wives of servicemen are hampered by isolation, fear, and insecurity, as well as cultural and linguistic differences. Under the circumstances, it is unlikely that such women would report spousal abuse to the authorities, especially to the military police.

Anderson also reports that as of 1990, approximately 200 companies operated mail-order bride businesses in the U.S. Most of the brides came from extremely impoverished areas in Asia, many from the Philippines. Brought up in traditional patriarchal cultures, such women are typically submissive and obedient. When trapped in coercive relationships, they rarely seek remedies in law or outside authority. It is painful to imagine these alien wives shackled to their tormentors by legal, psychological, and economic hoops of steel, trying to survive in America; for them an increasingly inhospitable land.

To its credit, Congress sought to create legal options for immigrant women when these issues were raised. In the Immigration Act of 1990 it provided that both battery and extreme cruelty, if proven, could qualify as grounds for ending the marriage without compromising legal residency. Unfortunately this ameliorating legislation is shrouded with qualifications that make it difficult to implement in practice. Evidentiary requirements are stringent and intimidating, especially for brutalized immigrant women living in cultural and linguistic isolation.

Beyond that, the immigrant's natural fear of bureaucratic involvement acts as a deterrent to seeking relief. Delay tactics indefinitely prolong a batterers control over his wife. And finally, the legislation and amended regulations apply only to those whose husbands have already petitioned the INS to end their conditional status. If the husband refuses to do so, the wife falls into the abyss and has no remedy at all.

Toward a Feminist Policy A feminist analysis of immigration is sorely needed. How can we better protect the alien children and military and mail order brides once they're on our soil? What shall our position be regarding women who seek asylum from China because of their country's policy of restricting allowable births to one child per family? Their desire to flee China is not equivalent to a refugee's right to settle indefinitely in the U.S. (or elsewhere). While forced abortion is assuredly a feminist issue, it is daunting to imagine untold millions of such women alighting on our shores with the express intention of reproducing multiple children. Similarly, can we absorb the alarming number of women who would like to seek asylum to escape genital mutilation?

Also of concern to feminists is the matter of family reunification, a cornerstone of current policy. It produces chain migration—a brother brings in a brother, who then brings in his wife, who then brings in her elderly father. (The elderly father can obtain the same welfare and medical benefits as indigent citizens who have lived here all their lives and "paid into" the system). Indeed, four fifths of today's legal immigration involves uniting relatives with a U.S. citizen or a lawful permanent resident, often after years of waiting abroad. Because families won't stay separated and many won't await the delays abroad, there is often an inducement to gun-jumping (coming without papers or with false papers and other forms of illegality) even for eligible aliens.

Dan Stein, Executive Director of the Federation for American Immigration Reform (FAIR), a privately funded group working to reduce immigration, is pointed in his criticism of the existing law and the related practice and expectations fostered. "Every immigrant, having established a beachhead by his physical presence in this country, thinks that all his relatives and nuclear relatives are entitled to join him."

While family unity is a desideratum in principle, feminists are caught in a squeeze between their libertarian impulses and the increasing recognition of a compassion-fatigued media and nation. We, too, are taxpayers. We, too, suffer from cuts in government services. We need to think through our views and acknowledge that the present economic conditions, cultural climate, and resources simply will not support America's implementing of every global feminist issue.

I find myself listening sympathetically to those who complain that our immigration policies are a mess, that draconian measures must be taken to reverse a mounting problem, and that those making the laws appear to be isolated from those impacted by them.

It is estimated that approximately a million immigrants, legal and illegal, come to this country every year. In the February, 1994 issue of the National Review Lawrence Auster maintains that America is headed for a social catastrophe; the nation does not have an infinite capacity for absorbing racially and culturally diverse people into its national fabric. In Auster's view, multiculturalism has reached critical mass and is destroying our national identity.

This argument pits social reality against my own natural sympathies. Nearly 70 years ago my father, his parents, and four younger brothers came to the United States from Eastern Europe. Because of the move, they escaped the holocaust. Everyone else in his family perished in Europe. Growing up, I was taught to be grateful for the hospitality and generosity of this country. We were safe here, sheltered by a powerful nation that not only tolerated us, but welcomed our presence. So I was told; so I believed. How can I not be in favor of the same welcoming policy for others?

I was less than 3 years old when the St. Louis sailed from Germany in 1939 laden with 930 Jewish refugees, of which more than 400 were woman and children. The ship was bound for Cuba, but America was the ultimate destination for 734 passengers who had fulfilled U.S. Immigration requirements. Both countries denied the ship sanctuary. Although the St. Louis had come close enough to Miami to see the lights of the city, under instructions from Washington the U.S. Coast Guard made sure the ship sailed back to Europe where most of the refugees perished in the German gas chambers. Remembering the St. Louis, how can I not be in favor of immigration, especially for refugees fleeing oppression and persecution? And yet, I'm not sure anymore.

Divisions Growing Today there is a backlog of almost 364,000 asylum applications. Claiming fear of persecution, immigrants are arriving in overwhelming numbers, especially from such countries as Guatemala, El Salvador, the former Yugoslavia, the former Soviet Union, China, Cuba, Haiti, and Liberia. Last year alone, 150,386 people from 154 nations claimed asylum, swelling backlogs by almost 50,000, with no end in sight. Many applicants will skip their hearings and disappear into the underground economy.

Americans do not enjoy feeling like suckers and victims. Backlash is here. The earthquake in California: seldom has any national catastrophe dramatized so acutely the collision of compassion with harsh reality. Victims were divided into categories of those lawfully entitled to emergency relief and those who are not; western rough justice. This time—for a change—citizens and the documented come out ahead.

Our Haitian "policy": bad George Bush turned back the leaky boats packed with refugees in the middle of the ocean. Candidate Bill Clinton, a humanitarian, promised to give the Haitians hearings, due process, and sanctuary. But the elected Bill Clinton did things no differently than George. Without much excuse it was the promise, not the policy, that came to be quietly rescinded. The public seems relieved.

Zoe Baird and Kimba Wood: a fire-storm of publicity and indignation involving alien home-care workers destroyed their respective prospects to be U.S. Attorney General appointees. A year later, nominee Bobby Ray Inman for the position of Secretary of Defense admitted a similar "problem." Who cares! The national agenda had obviously changed; issues involving illegal employment at substandard wages were now off-center stage, at least for male nominees.

Latinos are polled by the national media, interest groups, and political analysts. According to the Latino National Political Survey, conducted in 1992 by top Hispanic academics and advocates, up to 84% (many of whom have recently arrived) favored restrictions and controls that would limit immigration into the United States. Repressive reform of due process measures for the undocumented? Most Latinos favor that as well. Tightening the borders is preferable to tightening the belt.

Such contradictions and mood swings abound, backlash against immigrants is coming; is here. More stringent proof of lawful status is being proposed, even for driver's licenses, in California. Texas is fed up. Florida is suing. New York is drowning in the blood of red ink. People are afraid.

The backlash is undisguised, unapologetic, and growing darker. Not only in the U.S., but in those Western European nations where problems and standards of living echo our own. The effect of all this—as ever—impacts severely on women and children.

The politicians are considering broad-stroke restrictive policies. Congress and state legislative halls hum with activity. The mantra is loud and straightforward: secure our borders, increase INS funding, deport criminal aliens forthwith, expedite and short-circuit asylum and deportation procedures, fingerprint entitlement applicants, delay alien work authorizations, and promote a national identity card. In short, keep the bums out. If that doesn't work, throw them out.

This winter, the INS took action, announcing that the U.S. would become the first nation in the world to charge those seeking political asylum a fee for filing an asylum application ($130 per applicant or $650 for a family of five). It instituted a delay of 150 days before issuing work permits for asylum applicants. The aim: to deter fraud and reduce hearing backlogs. Proponents of stricter laws attack the changes as inadequate; immigrant advocates find the new rules too restrictive. Both sides agree that they are ineffective.

Our immigration policy, predicated upon cold-war politics, is now obsolete and riddled with inequities as communism withers. Yet we continue to grant immediate and unconditional sanctuary for those fleeing from communist countries, ignoring the diminution of the red menace as our national boogyman.

Recently, a ship landed on the Miami shores filled with equal numbers of Cuban and Haitian refugees. The Cubans were welcomed and received into the bosom of the nation; the Haitians were summarily, without an opportunity for appeal, returned to Haiti, General Cedras, and his military goons. As the Haitian situation continues to test the conscience of America, it is difficult not to be reminded of the St. Louis, difficult not to appreciate the questions that many raise when they wonder if racism, not cold-war politics, is the real subtext in our government's response to these refugees. For now, the outcry is selective, without enough force and moral suasion to command change. At this point in history, the American public is content to leave things as they are, to say no to at least one group of immigrants—and have it stick. What of the tired, the poor, and the huddled masses? There is a discernible dialing down of the moral debate. The melting pot has had it: closed ranks, closed wallets, closed borders.

What Is To Be Done? We're faced with fundamental questions: What should our immigration policy be? How can we reform the system? Duke Austin, senior spokesman for the INS, was blunt, "The problem is in our processes and procedures. People rarely get deported. There is no penalty for overstaying, no penalty for illegality—giving the signal that if you come— nothing will happen to you if you are caught. This is analogous to having open borders. There is an absence of national will to deport aliens. But we must enforce the difference between legals and illegals."

Warren R. Leiden, Executive Director of the American Immigration Lawyers Association (AILA) and member of a congressional Commission on Immigration Reform, takes a centrist position, stating that our laws on immigration are "arbitrary but not capricious." Leiden believes "that there has been great exaggeration about the alleged adverse impact of immigration."

Ira Kurzban is a major player among immigrants rights activists and the bane of the INS. A celebrated lawyer, Kurzban heads the Haitian Pro Bono Asylum Project and has successfully litigated a number of major class action suits against the federal government. He maintains that "America should remain a country of first asylum." His priorities: due process for aliens and a guarantee of the constitutional command of "equal justice under the law for all persons." Kurzban denies that aliens have caused economic problems, insisting instead that the influx of immigrants has brought great economic benefits to his area (Miami), where immigration "has created twice as many jobs taken."

Dan Stein from conservative FAIR characterizes our present refugee program as "asylum-on-demand," a "free ride" program. "Unless immigration fulfills a national priority," asserts Stein, "we shouldn't have it at all."

Stein observes that centrist and moderating voices are failing to detect the flashpoints. The public is fed up and the government is not noticing. The women's movement was born in exactly those circumstances. Now feminists should be among those who do ''notice the flashpoints."

Who, then, will win the immigration wars? The bureaucrats, the interests groups, the deserving, the frauds? Those who are for an open and compassionate society or those who are compassion-fatigued? Hard to tell; in this evolving balancing act, everyone appears to be on the losing side, except for the batterers and the jailers of children.

Clearly we have not yet developed a coherent plan that serves our national interests. We have not related immigration policy to changing local conditions in the U.S. Chaos and contradiction surround the issue. None of our leaders, feminists or others, have articulated a vision or promoted consensus. That, perhaps, is the truest measure of our disarray.


EleanorPam, Ph.D., is a professor and Chairperson of the Behavioral and Social Sciences Department at City University of New York. She is a long-standing participant in immigration-related activities within academia and the legal profession.


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