Reforming Immigration: The Impact on Farmworkers in the United States

Farmworkers in the United States and around the world provide critical labor for our food system. They are also frequently migrant laborers, underpaid, underappreciated, and under constant threat of deportation.

Last week, U.S. Senators announced a bipartisan plan to overhaul the country’s immigration system. President Obama followed a day later with a speech promising comprehensive immigration reform. Notably, the Senate plan singles out agricultural workers for their important contributions to our food supply. Under the plan, agricultural workers “will be treated differently than the rest of the undocumented population … [and] will earn a path to citizenship through a different process under our new agricultural work program.”

To better understand the issues surrounding U.S. immigration reform and the potential impact on farmworkers, I posed four questions to Patrick Taurel, an immigration attorney whose clients have included many farmworkers.

While working as an immigration attorney in Idaho, many of your clients were farmworkers or workers in the dairy industry. Can you give me an example of a typical client — the work he or she did, why he needed an attorney, and the impact on his life of current U.S. immigration policy?
I’ll tell you about J.S., a client I represented in deportation proceedings. J.S. is a native of Mexico who entered the United States without permission for the first time in the early 1990s. He came for the same reason as so many other immigrants, to salir adelante or to advance in life. J.S. worked in the fields, picking everything that grew on the farms surrounding the western Idaho town where he lived with his wife. Letters provided by numerous ranchers he had worked for attested to J.S.’s willingness to work long hours, sometimes in the beaming sun, and always with a smile on his face. The evidence of his hard work was visible on his body — the hands he used to pick our fruits and vegetables were calloused and oversized and covered with scrapes and cuts.

I’m glad you asked about why he needed an attorney because his story ties in two broader interrelated themes we’re seeing more of in the world of immigration enforcement. The first is the growing collaboration between local law enforcement and ICE — ICE stands for Immigration and Customs Enforcement — this is the agency responsible for, among other things, apprehending, detaining, and deporting those unauthorized to be here. The second is racial profiling. J.S. was not caught and placed in removal proceedings because he did anything wrong. He was caught because he did a friend a favor and drove him to a meeting with his probation officer. It so happens that my client’s friend’s probation officer had suspected that my client’s friend was undocumented, so he called ICE and asked them to be there at their next meeting. An ICE agent apprehended my client’s friend and then looked into the waiting room where my client was seated. My client was the only Hispanic person in the waiting room. The ICE officer, knowing not one thing about my client, motioned for him to enter the office. My client obliged. Once inside and behind a closed door, my client was asked to produce his papers. This is how he came to the attention of immigration. It is hard to imagine that ICE officer singling my client out [if] my client had blond hair and blue eyes.

J.S. was under threat of deportation for two years as we awaited his final hearing. When it came, our task was to prove that his wife, a U.S. citizen by birth, would suffer exceptional and extremely unusual hardship if my client were deported. If the immigration judge concluded that she would have merely suffered extreme hardship, we would have lost. We needed to show that our case was truly extraordinary. That is the shockingly high burden that the immigration laws impose ([and] the subject for another lament). To make a long story short, we were able to prevail because my client’s wife’s health was dire. J.S. was indispensable in the scheme of her life and, luckily, we had a fair-minded judge who could see it. I’m delighted to say that my client is now a lawful permanent resident of the United States. He continues to work in the fields and [to] provide and care for his wife.

The new bipartisan Senate plan has specifically singled out undocumented workers in the agricultural industry, noting that they “have been performing very important and difficult work to maintain America’s food supply while earning subsistence wages.” The Senate plan thus proposes to treat agricultural workers differently from other workers. Is there any precedent for this?
Yes, there is. In 1986, Ronald Reagan signed the Immigration Reform and Control Act, which, among other things, created a pathway to legalization for individuals meeting two different sets of criteria. One was for people who had been continuously residing in the United States since prior to January 1, 1982. The second was for agricultural workers. To qualify, the applicant needed to establish that he or she had worked 90 days in the year or years preceding May 1, 1986. The applicant would not automatically receive the right to remain here permanently — the individual first received temporary status and then applied for permanent residency. According to a report issued by the highly regarded Migration Policy Institute, a little under 1.1 million people earned Green Cards through the Special Agricultural Worker provisions of IRCA.

Apart from the 1986 law, there exists today a visa — called the H-2A visa — that is designed for seasonal agricultural workers. It is, however, underutilized. According to some slightly outdated data, in 2006, only 40,000 H-2As were issued, though there were approximately 1.1 million people employed in agricultural work. Perhaps the reason employers rarely turn to this visa is because it is somewhat onerous to get one — you have to go through what’s known as the labor certification process whereby you must establish that there are not sufficient U.S. citizens or Green Card holders who are able, willing, or qualified to perform the desired labor.

Many workers – including farmworkers – come into the United States through guest-worker programs, tying their ability to remain legally in the States to their working with a specific employer. Critics argue that this renders workers vulnerable to exploitation, but it seems like the proposed immigration reforms will allow agricultural guest-worker programs to continue. Can you explain what kind of exploitation can occur with such programs, and whether you think the immigration reform being discussed in Washington would address those problems?
Fears of exploitation are entirely justified. Instances of debt peonage and human trafficking are not uncommon in the context of visas that are tied to specific employers. Oftentimes, the noncitizen laborer will have little to no knowledge of his or her rights in this country and no orientation as to how to assert those rights. As far as the dangers associated with these sorts of visas, I don’t have a lot of personal experience and so I’ll refer your readers to a recent article from entitled “Immigration, Yes. Indentured serfdom, no.”

I don’t know whether concerns of human trafficking are being raised in Washington at this early stage of negotiations on comprehensive immigration reform. Conversations amongst the “gang of eight” have not been very transparent. That’ll change as the legislation starts taking shape and Congress begins holding public hearings. I think we can safely assume that the moneyed interests will be on the side of a guest-worker program, and so it’ll be up to advocates without a vested financial interest to raise these issues. Concerned readers of your blog should pressure their elected representatives to vote their consciences.

I’m interested in the language used in public debates over immigration, with discussions of “earned pathways to citizenship” versus “amnesty,” and “undocumented” versus “illegal.” Could you clarify these terms for us?
The term “amnesty” is problematic because it contains two questionable presuppositions:  first, that undocumented folks have done something wrong, and, second, that they will be forgiven with a wave of a wand and no action on their part. I don’t know about you, but I don’t believe that someone who comes to the United States because he can’t feed his family — regardless of whether it is because of systemic persecution in his home country or a simple lack of jobs — has done anything wrong. The same goes for that person’s children. How can critics of the DREAM Act say with a straight face that kids brought here in their mothers’ arms have engaged in illegal conduct requiring forgiveness? Infants don’t jump the fence. Then, turning to the second point, advocates prefer the phrase “earned pathway to legalization” because it more accurately reflects all proposals that have been seriously considered as comprehensive immigration reform. It is not as though the moment Barack Obama signs whatever law Congress passes — knock on wood — that suddenly all undocumented people within the country will be U.S. citizens. They will almost certainly need to learn English and civics, pay fines and back-taxes — though many undocumented immigrants already file tax returns using ITIN numbers, file applications, and undergo background checks, fingerprinting, and medical evaluations. Those who don’t qualify — perhaps because of prior immigration violations or criminal convictions — and those who attempt to commit fraud will face almost certain deportation. For these reasons, the term “amnesty” misses the mark.

The term “illegal alien” should fall out of use because no human being is illegal. That adjective can’t be used with that noun — linking the two does violence to the English language and to the image we get in our mind’s eye of the human beings we’re talking about. Apart from that, I don’t believe the phrase “illegal alien” shows up anywhere in our immigration laws. I’ve never seen it. It is not a term of art.

But, getting to the real problem, the phrase “illegal alien” doesn’t capture the fluid nature of lawful status in this country. Let me illustrate that point with an example. Imagine [that] a transgendered Mexican national fleeing persecution enters this country without permission. Suppose that immigrant then files an application for asylum. Suppose it is denied by an asylum officer and, as is required by law, the case is referred to Immigration Court. After two years, thanks to the enormous backlogs in our immigration courts, the immigrant finally gets her hearing in front of an immigration judge. Suppose she wins — in other words, the immigration judge rules that the immigrant is in fact a refugee — indeed, was a refugee from the moment she set foot in this country — and that she deserves asylum here. So, from the moment the immigration judge decides the case, our hypothetical immigrant has lawful status here. But, and this is important, even when that individual did not have lawful status, she was not illegal — she was a refugee, she just hadn’t been adjudicated as such. So, in effect, her status at entry doesn’t look the same anymore. Her status evolved and it can even be said to have changed retroactively. In light of examples like this — and situations like this are by no means uncommon — I think a much better phrase than “illegal” would be “out-of-status.”

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