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Excerpted From: Bill Ong Hing, Institutional Racism, Ice Raids, and Immigration Reform, 44 University of San Francisco Law Review 307 (Fall 2009) (147 Footnotes) (Full Document)


BillOngHing 02ON A COLD, RAW DECEMBER MORNING in Marshalltown, Iowa, Teresa Blanco woke up to go to work at the local Swift meat packing plant. Hundreds of others across the town were doing the same thing, in spite of the miserable mixture of sleet, mist, and slush that awaited them outside their front doors. As they made their way to the plant, the workers, who were from Mexico, did not mind the weather.

Unfortunately, the workers' day turned into a nightmare soon after they reported for work. Not long after the plant opened, heavily armed agents from the U.S. Immigration and Customs Enforcement agency (“ICE”) stormed onto the scene. Pandemonium broke out. The workers panicked; many began to run; others tried to hide, some in dangerous and hazardous areas. As the ICE agents began rounding up all the workers, they ordered those who were U.S. citizens to go to the cafeteria. Noncitizens were directed to a different section of the plant. Agents shouted out instructions: documenteds in one line, undocumenteds in another. If an agent suspected that the person in the citizens' line was undocumented, the agent would instruct the person to get into the undocumented line. More than one individual was told, “You have Mexican teeth. You need to go to that line [for undocumented persons] and get checked.”

The nightmare was only beginning. Although supervisory ICE agents carried a civil warrant for a few individuals, the squad demanded that all plant employees be held, separated by nationality. That included U.S. citizen workers who were interrogated and detained. No one was free to leave--not even those who carried evidence of lawful status or proof they were in the process of seeking proper permission to be in this country. Each was interrogated individually. The process took the entire day, and phone calls were not permitted until later in the day. By the end of the day, ninety were arrested, but hundreds, including citizens, had been detained for hours. The entire community was shaken to its core.

Although immigration raids are not a recent phenomenon, this Article focuses on a few egregious ICE raids that occurred after President Bush's push for immigration reform in 2004. I had the opportunity to learn more about several such raids first hand as part of a commission that was established by the United Food and Commercial Workers International Union in 2008. The Commission spent more than a year holding regional hearings, interviewing witnesses, and soliciting input from a wide range of workers, elected officials, policy experts, psychologists, and religious and community leaders. Commissioners learned about the abuse that ICE officials visited upon workers, their families, and the communities. This Article's discussion of ICE raids addresses racial profiling, the trauma to children and families, the damage to communities, and some legal considerations.

Descriptions of ICE raids challenge us to think more seriously about the underlying racial implications of those raids. The tragic effects on families and communities, as well as the serious constitutional violations committed by ICE agents during the raids, provide ample moral and legal justification to end the raids. The inherent racism at the center of the ICE raids and other ICE and Border Patrol operations raises further concern that receives little public attention. With few exceptions, the ICE operations targeted Latinos--usually Mexicans. The exceptions were Chinese restaurants and other businesses that relied on workers of color. That racial effect is the focus of this Article and the basis for advocating that both immigration policies and ICE enforcement need to be rethought.

The defenders of the Bush-era enforcement regime and the ongoing border militarization would argue that my claim of inherent racism is unfair because the vast majority of immigrants--documented and undocumented--are people of color. They would argue that if the undocumenteds were white, the raids would still have occurred. But this belies the lack of raids on undocumented Canadians today, or the undocumented Polish in Chicago in the 1980s and 1990s, or the undocumented Irish population in San Francisco during the same period. Raids on those white undocumenteds did not happen. Racism has become institutionalized in our immigration enforcement regime--a regime that focuses mostly on Latinos, especially Mexicans, and occasionally on Asians.

This Article argues that the structure of immigration laws has institutionalized a set of values that dehumanize, demonize, and criminalize immigrants of color. The result is that these victims stop being Mexicans, Latinos, or Chinese and become “illegal immigrants.” We are aware of their race or ethnicity, but we believe we are acting against them because of their status, not because of their race. This institutionalized racism made the Bush ICE raids natural and acceptable in the minds of the general public. Institutionalized racism allows the public to think ICE raids are freeing up jobs for native workers without recognizing the racial ramifications. Objections to ICE raids and the Border Patrol's Operation Gatekeeper are debated in non-racial terms. However, not viewing these operations from an institutionalized racial perspective inhibits the total revamping of our immigration system that needs to take place.

Part I begins with a description of selected ICE raids. Part II follows with a discussion of the institutional racism that is grounded in the history of U.S. immigration laws and policies. Part III explains how the racial history of immigration policy has become institutionalized so that seemingly neutral policies actually have racial effects. Understanding the historical underpinnings of race-driven immigration policy offers a broader range of solutions to current policy and enforcement challenges. Recognizing the racist nature of the system allows for a framework to remedy a racist system.

[. . .]

The construction of the U.S. immigration policy and enforcement regime has resulted in a framework that victimizes Latin and Asian immigrants. These immigrants of color end up being the subject of ICE raids. They are the ones who comprise the immigration visa backlogs. They are the ones that attempt to traverse the hostile southwest border. Their victimization has been institutionalized.

Any complaint about immigrants, fiscal or social, can be voiced in non-racial, rule-of-law terms because the institution has masked the racialization with laws and operations that are couched in non-racial terms. Anti-immigrant pundits are shielded from charges of racism by labeling their targets “law breakers” or “unassimilable.” Deportation, detention, and exclusion at the border can be declared race-neutral by the DHS because the system has already been molded by decades of racialized refinement. Officials are simply “enforcing the laws.” Like white privilege, institutionalized racism generally goes unrecognized by those who are not negatively impacted.

We should know better. The cards are stacked against immigrants of color. The immigration law and enforcement traps are set through a militarized border and an anachronistic visa system. It is no surprise that Latin and Asian immigrants are the victims of those traps. They have been set up by the vestiges of blatantly racist Asian exclusion laws, a border history of labor recruitment like the Bracero Program, Supreme Court deference to enforcement, and border militarization that laid the groundwork for current laws and enforcement policies.

Many in the immigrant rights movement argue that the appalling effects of ICE raids, deaths at the border that result from its militarization, horrible backlogs in family immigration categories, immigration detention conditions, and the lack of second chance opportunities for longtime, lawful permanent residents convicted of aggravated felonies are sufficient bases for overhauling immigration laws and enforcement policies. If we are indeed a nation of immigrants, fairness, and family values, then without a doubt, we need a fairer border policy and more open immigration. Other critics of the Bush ICE raids focus on employers or process as the solution. One standard demand that has been made by Beltway experts is to focus more on employers rather than on employees when it comes to enforcement. Another tactic is that advanced by Senator John Kerry who asked that ICE raids be conducted in a more humane manner.

I am not sure that these positions will get us much satisfaction. Senator Kerry's proposal would essentially result in kinder, gentler raids, but raids nonetheless. And the focus-on-employer-enforcement position still results in the removal of undocumented workers. For example, while Homeland Security Secretary Janet Napolitano has directed federal agents to focus more on arresting and prosecuting employers than undocumented workers, she also made it clear that there will be no halt to arrests of undocumented workers the investigations uncover. As long as we remain mired in the belief that we need to prevent undocumented workers from working in the country through an employer sanctions system, workers will continue to get deported, families will be separated, and communities will suffer damage.

The seemingly neutral logic that flows from an institutionally racist immigration system need not carry the day. We should not be left to object to ICE raids, border enforcement, and even criminal alien enforcement solely on non-racial terms. Understanding these operations from an institutionalized racial perspective provides another basis for arguing that our system of immigration laws and enforcement policies must be overhauled in order to address the menacing vestiges of racism within that system.

Professor of Law, University of California, Davis.

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