Petit Apartheid in the U.S.-Mexico borderlands: an analysis of community organization data documenting work force abuses of the undocumented.
| Author | O'Leary, Anna Ochoa |
Abstract
In this paper, the data gathered in 2004 and 2005 by the Coalicion de Derechos Humanos (Derechos), a Tucson Arizona community-based human rights organization is summarized and analyzed within the framework of 'Petit Apartheid.' The organization provides a much-needed service by assisting members of the Mexican-origin community, many of which are undocumented workers, file grievances against their employers. This is an important first step in making visible the routine unfair treatment of a virtually invisible workforce. The framework for analysis is useful because it centers on microaggressions: the 'everyday instances of harm' that law enforcement agents inflict on members of racialized groups. I argue that the routine harsh and harmful treatment to which undocumented workers are systematically subjected is similarly a product of social attitudes that methodologically deprive them of employment stability and social progress and is therefore apartheid-like. Narratives from the Derechos archives flesh out the social spaces conducive to microaggression, and at a broader level, make visible the contradictions between employment practices and immigration law. Although too often in ignored in state and national immigration debates, the voices emerging from these narratives illustrate how differences and inequality are informally enforced by way of employer-employee exchanges.
Introduction
In this paper, a portion of the data gathered in 2004 and 2005 by the Coalicion de Derechos Humanos (1) (Derechos), a Tucson Arizona community-based human rights organization is summarized and analyzed within the framework of 'Petit Apartheid.' Since 1994, Derechos has been dedicated to promoting respect for immigrant and migrant rights. Most notably, it has worked actively to bring public attention to the increased militarization of the U.S.-Mexico border since 1993, carried out by border enforcement, such as Operations Gate Keeper, Safeguard, and Hold the Line, and the resultant increase in migrant deaths and human rights violations since these policies were implemented (Cornelius 1998, 2001; Huspek, Martinez and Jimenz 1998). As immigrant and migrant rights advocates, Derechos also assists members of the local Mexican-origin community to file a wide range of grievances with a variety of agencies.
In 2004 and 2005, Derechos staff members documented 77 complaints regarding a wide range of issues ranging from consumer fraud to harassment by immigration enforcement authorities. Individuals come to Derechos to initiate complaints because they trust the organization and feel safe from law enforcement interference. Most, if not all, victims who come into its office on South 6th Avenue in Tucson Arizona are undocumented. (2) Derechos. staff members offer assistance in Spanish, help victims fill out complaint forms and negotiate the myriad of agencies in efforts to resolve their complaints.
In 2004 and 2005, the two largest categories of complaints documented by Derechos were those that were related to job dismissal and wages (Table 1). Our appreciation of the importance of this work is enhanced by the current national focus on immigration policy reform. The advocacy and community education work of Derechos represents the wider struggle taken up by similar organizations across the U.S. to call attention to the human and economic rights of immigrant workers who, because of their undocumented status, occupy contentious social spaces within the U.S. Their increased numbers and quasi-permanent presence confounds the established spatial order that has conventionally defined nationhood and has compelled scholars to rethink the role national borders play in the increasingly globalized world of our times.
Without a doubt, immigration is integral to emergent global 'ethnoscapes' (Appadurai 1991) and 'contact zones' referred to by Pratt (1992, 4) as 'social spaces where disparate cultures meet, clash, and grapple with each other, often in highly asymmetrical relations of dominion and subordination.' In the U.S., immigration policy debates have historically centered on notions of boundaries and measures by which certain groups are excluded. However, in recent decades, U.S. immigration policy and national psyche, predicated on the idea that it can turn off and turn on immigration, has been forced to contend with unprecedented population movements from Latin America and the nation's need for immigrant labor. Consequently, the U.S.'s longstanding tolerance for undocumented workers has produced ambiguous spaces occupied by those who are simultaneously excluded included. Locating these spaces reveal geographies made less stable due to demographic shifts and characterized more in terms of social exchange, even if the nature of the exchange is unequal (Pratt 1992). Conceivably, such spaces are shared simultaneously by those who wish to enforce inequality based on social divisions such as gender, class, race, sexuality, or nationality, and those who contest these efforts (Gupta and Ferguson 2001). To great degree, the outline of those spaces has been carved out of recent rulings and legal interpretations. The featured cases below highlight contradictions and demonstrate how law is indeterminate, highly discretionary, and the product of dominant social attitudes that are often used to justify an imagined social order in which undocumented persons are conditionally embedded.
Undocumented Laborers: Recent Rulings and Legislation
Discussions centering on the rights of undocumented workers have been brought to the forefront of current legal and political debates in the U.S. at both the federal and state levels of governance. Fueling these debates are post 9/11 public sentiments that reflect a growing fear of immigrants who live in the U.S. (Hines 2002) and common misperceptions that immigrants (especially undocumented immigrants) do not share the same rights as their U.S. citizen or permanent resident counterparts. However, employing immigrants, including those that are undocumented, subjects employers to the same legal responsibilities as employing those with legal authorization to work. For example, employers are subject to paying back wages and overtime claims when they fail to pay their employees for work performed, regardless of their employees. immigration status. Employers may also be held liable by their immigrant employees for discrimination based on race, sex or national origin (Beerman 2006). The legal responsibility of employers to pay back wages and overtime claims has been the subject of recent law suits brought against Walmart by undocumented workers. On October 23, 2003, federal officers from the Department of Homeland Security's Bureau of Immigration and Customs Enforcement (ICE); formerly known as the Immigration and Naturalization Service (INS), entered 61 Wal-Mart stores in 21 states nationwide and arrested more than 250 undocumented immigrants. This plan of action was dubbed "Operation Rollback" as a pun on Wal-Mart's advertising campaign touting its 'rollback of prices.' Wal-Mart argued that it was not responsible because the workers were employed by independent contractors. (3) Consistent with the practices of the legal investigating and prosecuting arm of ICE, the apprehended undocumented immigrants were recruited to help ICE in the enforcement of federal immigration laws and on November 10, some of the arrested immigrant janitorial workers filed a federal racketeering class action lawsuit against Wal-Mart in a New Jersey federal court. The workers alleged that Wal-Mart violated the federal Racketeering Influenced and Corrupt Organizations (RICO) statutes. All of the plaintiffs were undocumented immigrants who worked for a contract cleaning service hired by Wal-Mart. All of these workers claim they were paid weekly compensation of $350-500 in cash, worked at least 60 hours per week, and were obligated to work seven days a week. They also claimed they received no overtime compensation, workers' compensation, nor did they have taxes or Social Security (FICA) withheld from their earnings (Entelisano 2003). The case against Walmart is clearly premised on the notion that undocumented workers have rights to fair employment practices.
Until now, Arizona employment statutes have not formally excluded undocumented immigrants from engaging in the legal process for bringing charges against unfair treatment by their employers. The Wage and Hour Division of the Department of Labor under the Arizona State Attorney General's office, for example, makes no distinction between a worker's legal status and has an established process to help victims of wage theft to recover their earnings. Claims brought to the Derechos office are forwarded to the wage and hour division of the Department of Labor for further processing. More to the point, in Arizona legal mechanisms exist to protect all workers, including undocumented employees, from the unscrupulous acts of their employers. However, legal mechanisms for protecting all workers are currently being challenged with the introduction of legislation targeting the long-standing rights of undocumented workers. For example, Arizona House Bill HB-2599 requires that public money for job training or workforce development be distributed to persons who are citizens or legally in the U.S. Arizona HB-2595 requires that a child care home provider who wishes to be listed with the Department of Economic Security child-care resource and referral system to be a citizen or legal resident of the U.S. Most notable within the series of anti-immigrant propositions before the Arizona State Legislature (Appendix 2) is HB 2588. HB 2588 amends section 23-901 of the Arizona Revised Statutes (ARS), relating to workers' compensation. In this amendment, the definition of "employee", "workman", "worker" and "operative" is amended to exclude "... any person who is not a citizen or national of the United States and...
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