Mothers Versus Texas
Ethical Problems with Local ‘Attrition through Enforcement’ Ordinances in the United States
By Dr. Stephanie J. Silverman (SSHRC Postdoctoral Research Fellow, University of Ottawa).
January 6, 2016 Picture: Thomas Hawks/Flickr.
This article is part of The Critique’s And Who Is My Neighbour? Exclusive.
Editor’s note: ‘Please note that this article was completed before the October ruling in favor of the State of Texas. The court denied plaintiffs a preliminary injunction against the state’s policy on the ground that more evidence needed to be developed to decide the case, even though the policy raised “grave concerns” regarding the treatment of citizen children born to immigrant parents.’
In Texas, a hospital can print a live birth notice, but it is the DSHS that issues birth certificates. The DSHS claims to be practicing bureaucratic diligence by refusing to accept the mothers’ matrículas consulares, or ID cards issued by a local consulate, as a suitable form of identification. In other words, the matrículas are being rejected as not valid in the way that a passport or driver’s license is assumed to be. While this policy had been on the books for a few years, it is only recently that Texas mandated enforcement. Filed in the Texas Western District and known as Perales Serna et al v. Texas Department of State Health Services, Vital Statistics Unit et al, the lawsuit pits four women against Texas to assert the rights of their children. More broadly, the lawsuit represents the interests of hundreds, possibly thousands, of irregularly resident non-citizen parents across Texas who are being confronted with an act of ‘attrition through enforcement’, or a local-level ordinance encouraging them to leave by making life difficult.
The lawsuit lands in the midst of an escalating national debate on irregular immigration to the US. Birthright citizenship has become a fulcrum of the Republican primary debate with, as described by The New Yorker’s Amy Davidson, ‘outright calls that it should be done away with or disavowed (Trump, Ted Cruz, Lindsey Graham); that it “doesn’t make any sense” (Ben Carson); that it needs to be “reexamined” (Chris Christie); or that it is being “taken advantage” of in ways that should be countered (Marco Rubio, Jeb Bush)—or just a waffling unwillingness to defend it (Scott Walker).’ In response to the Obama Administration’s perceived leniency towards patrolling the territorial borders, some communities are responding with these punitive ‘attrition through enforcement’ measures. As mentioned, these state, county, and local ordinances aim to increase the likelihood that irregular immigrants will ‘opt’ to leave the US, or at least relocate to another community, resulting in a net decrease in the overall irregular population.
In addition to reducing the irregular population, this mode of forced ‘voluntary compliance’ is also touted for limiting the financial burdens otherwise presented by the standard detection, arrest, detention, and deportation mechanisms of immigration enforcement. Proponents argue that scaling up and applying versions of local efforts to the national level could halve the irregular population from its current estimate of 11.5 million people to 5.6 million over a period of five years.
The research, however, does not bear out these predictions. In 2011, a leading research think tank, the Pew Hispanic Center, reported that of the then-population of an estimated 10.2 million adult irregular immigrants in the US, nearly two-thirds had lived in the country for at least 10 years and nearly half were parents of minor children. Likewise, respected demographer Douglas Massey (2015: p. 293, 295) concludes from a multi-year study that once a successful entry had been achieved migrants increasingly tended to hunker down and remain north of the border rather than returning to face even greater costs and risks next time… what had been a circular flow of male workers going to three states (California, Texas, and Illinois) transformed into a settled population of families living in 50 states while doubling the net rate of undocumented migration and markedly accelerating undocumented population growth.
Attrition through enforcement at the sub-federal level is nothing new for the US. From California’s 1862 Chinese Police Tax that aimed to ‘discourage the immigration of the Chinese’ to Arizona’s 2010 Senate Bill 1070 (SB1070) that sought to ‘discourage and deter the unlawful entry and presence of aliens’, (Garcia 2013: p. 1849), “such programs pepper US immigration history”? Then-Presidential Republican candidate Mitt Romney gained media attention with his 2012 proposal to issue cards for immigrants to present to employers verifying their residency status; irregular immigrants would thereby find themselves pushed out of the market and ‘they’re going to self-deport.’
In addition to the policy failure of attrition through enforcement strategies to meet the goal of reducing the irregular immigrant population, there have also been failures in the social realm. Here, we can use the aforementioned SB1070 from Arizona as a focal point. SB1070 aimed to identify and detain unauthorized immigrants, allowing the police to demand identification documents from anyone, regardless of labour status or racialised appearance. Despite it, too, having had ‘a minimal to null impact on the share of likely unauthorized immigrants in the state’ according to statistical data analysis, SB1070 has nevertheless succeeded in limiting the personal freedoms of Hispanics in that state significantly. Social work professors Cecilia Ayón and David Becerra (2013: p.222, 223) describe the lived environment in Arizona following the implementation of SB 1070 as characterized by an increase in horizontal discrimination from documented Latinos, instances of micro-aggressions, and institutional discrimination. These findings are significant as discrimination is associated with negative health and social implications. Policy makers must understand that there are consequences that negatively impact people beyond the intended economic gains of targeting irregular immigrants. Other studies confirm the toxicity of the health, social, and legal situation in Arizona following SB1070 and its crosscutting impacts on vulnerable people.
Returning to Perales Serna et al., it is useful to point out that whether or not they are issued birth certificates, the 14th Amendment of the US Constitution guarantees citizenship to all babies born on American territory. Texas is not disputing this constitutional guarantee; the DHSH accepts the births but is withholding the certificates on the grounds that it challenges the documentary validity of the mothers’ matrículas. This fracas has spilled beyond the US, with the Mexican Ministry of Foreign Affairs taking the unusual step of filing an amicus curiae brief in the case, arguing that Texas’ policy ‘hinders’ Mexico’s international relations with the US by ‘establishing selective methods that single out and negatively affect the dignity of Mexican nationals and their families.’
For the US (and most other countries), a lack of birth certificate does not translate to revocation of the right to citizenship. However, its absence severely complicates access to the benefits and privileges that are only afforded through citizenship. Birth certificates pave the way to federally issued passports, the documents needed for any transnational travel (and return to the US). Birth certificates also open the door to emergency medical care through Medicaid. One plaintiff in the case testifies that, without her child’s birth certificate, her family no longer qualifies for public housing; another describes her struggles to enroll her son in the public school system. Likewise, the case mentions how a US citizen child is stuck in Reynosa, a violent Mexican border town, because he does not have a birth certificate (and, in turn, a passport).
Notwithstanding having been historically woven into the fabric of US immigration law, attrition through enforcement strategies should be rightly understood as a departure from common enforcement strategies in at least three notable ways. First, they usually do not directly call upon police or ICE officials to intervene. Unlike workplace raids or charter removal flights, these more subtle strategies are planned to slow, hinder, or thwart irregular immigrants from acquiring membership in the community. In this way, the ordinances decentralize, diffuse, and reallocate power over mobility, settlement, and employment without the presumably necessary nationwide conversation. Yet, importantly, each ordinance ultimately relies on a firmly controlled territorial border as the ultimately legitimating tool to discern insiders from deportable outsiders.
Second, since ordinances like SB1070 and the DHSH refusal to issue birth certificates do not rely on making arrests to effect deportations, they turn away from the common method of bottom-up reporting from state to federal agencies. For example, local-federal partnerships such as Secure Communities, the Criminal Alien Program, and 287(g) alert ICE to the presence of deportable people who have already been arrested. A benefit of bottom-up reporting is that the federal government is alerted to, and can tally and evaluate, decisions to detain. The immigration courts are imperfect, but they do provide some levels of due process, judicial oversight, and recourse to justice for immigrants facing removal. With local ordinances, even this pared-down access to justice is stripped away.
Third and perhaps most significantly from a philosophical point of view, each ordinance presupposes that all irregular immigrants ought to be encouraged to ‘self-deport’. When all matrículas are peremptorily refused, and any Mexican-looking driver can be asked for his identification papers, there is no room for discretionary evaluation of each case. Prejudicial arbitrariness and group punishment is forbidden in other sectors of immigration enforcement, including detention decisions, but here the presumption is that every irregular immigrant must go because they are fundamentally an Other.
“The presumption is that every irregular immigrant must go because they are fundamentally an Other”.
In favour of group exit, attrition through enforcement proposals disregard important individual considerations like length of residence, the peacefulness and productivity of that residence, and any property acquired or US-citizen children born during that time. As the philosopher Joseph H. Carens argues, it is time spent living in a community that ethically matters, not the legality of residence status, and this moral consideration should be extended to residents of Arizona and Texas.
Likewise, in their convergence on effecting the exit of all irregular immigrants, attrition through enforcement ordinances do not grant moral consideration for the circumstances determining the original decision to migrate. This oversight matters when we consider that many immigrants slip into irregularity through bureaucratic miscalculation, working at the wrong job, or some other innocuous misstep that leads to what Martin Ruhs and Bridget Anderson (2010) term a ‘state of semi-legality.’ This oversight is also morally relevant to conditions of entry: since women fleeing domestic abuse situations and others in need of protection often do not carry with them the necessary documentation to register their claims with the federal government, they are effectively forced into irregular residence out of fear of being reported and returned to their tormentors. In fact, one of the mothers in Perales Serna et al. is claiming similar circumstances of entry. Federal immigration and asylum policies do grant opportunities to make these cases, a remedy that is sorely missing at the local level.
The mothers should prevail against Texas because this result is what justice demands. The philosopher Michael Walzer’s warning of the US devolving into ‘a thousand petty fortresses’ should be heeded, and attrition through enforcement strategies should be revoked. As a federal matter premised on territorial borders and sovereignty, immigration enforcement must remain institutionalized at the highest level. This is the only way that immigrants, their supporters, and the wider society of tolerant US citizens receive justice in their claims and appeals. Attrition through enforcement ordinances do not produce the stated goals of significantly increasing the rate of ‘self-deportations.’ Instead, they instantiate prejudicial, arbitrary, and harmful notions of difference rooted in racism and xenophobia, and these ideas should not guide immigration enforcement in the US.
Footnotes & References
 Davidson, A. (2015, 15 September). “The Anchor-Baby Question at the G.O.P. Debate.” The New Yorker. Retrieved 05 October, 2015, from http://www.newyorker.com/news/amy-davidson/the-anchor-baby-question-at-the-g-o-p-debate.
 Vaughan, J. M. (2006). Attrition Through Enforcement: A Cost-Effective Strategy to Shrink the Illegal Population. Center for Immigration Studies.
Available online:http://www.cis.org/sites/cis.org/files/articles/2006/back406.pdf: p. 3.
 Taylor, P., et al. (2011, 01 December). “Unauthorized Immigrants: Length of Residency, Patterns of Parenthood.” Pew Hispanic Center. Retrieved 01 September, 2015, from http://www.pewhispanic.org/files/2011/12/Unauthorized-Characteristics.pdf.
 Massey, D. S. (2015). “A Missing Element in Migration Theories.” Migration Letters 12(03): 279 – 299.
 García, A. S. (2013). “Return to sender? A comparative analysis of immigrant communities in ‘attrition through enforcement’ destinations.” Ethnic and Racial Studies 36(11): 1849 – 1870.
 Preston, J. (2012, 24 January). “Romney’s Plan for ‘Self-Deportation’ Has Conservative Support.” The New York Times’ ‘The Caucus’. Retrieved 01 October, 2015, from http://thecaucus.blogs.nytimes.com/2012/01/24/romneys-plan-for-self-deportation-has-conservative-support/?_r=0.
 Amuedo-Dorantes, C. and F. Lozano (2015). “On the Effectiveness of SB1070 in Arizona.” Economic Inquiry 53(01): 335 – 351: p. 349.
 Ayón, C. and D. Becerra (2013). “Mexican Immigrant Families Under Siege: The Impact of Anti-Immigrant Policies, Discrimination, and the Economic Crisis.” Advances in Social Work 14(01): 206 – 228.
 See, e.g. García, A. S. (2013). “Return to sender? A comparative analysis of immigrant communities in ‘attrition through enforcement’ destinations.” Ethnic and Racial Studies 36(11): 1849 – 1870; O’Leary, A. O. and A. Sanchez (2011). “Anti-Immigrant Arizona: Ripple Effects and Mixed Immigration Status Households under “Policies of Attrition” Considered.” Journal of Borderlands Studies 26(01): 115 – 133.
 See Barragan, J. (2015, 24 August). “Mexican government files amicus curiae in suit against Texas agency.” Austin Statesman. Retrieved 01 October, 2015, from http://www.statesman.com/news/news/mexican-government-files-amicus-curiae-in-suit-aga/nnQY8/.
 All children in the US have the right to attend public school, viz. 1982’sPlyler v. Doe. The problem here is that, without a birth certificate, the child had no form of identification that would satisfy the bureaucratic requirements of enrolment. Hence, again, it was not that the missing documents vacated the right to an education that was being undermined but rather stymying access to that right.
 Blitzer, J. (2015, 18 September). “The Front Line Against Birthright Citizenship.” The New Yorker. Retrieved 05 October, 2015, from http://www.newyorker.com/news/news-desk/the-rule-of-law-in-texas.
 The question of the justice of those arrests – in particular, for ‘driving while Mexican’- is a live ethical question that is bracketed here. See, e.g., Corlett, J. A. (2011). “Profiling Color.” Journal of Ethics 15: 21 – 32; Mendoza, J. J. (2014). “Discrimination and the Presumptive Rights of Immigrants.” Critical Philosophy of Race 2(01): 68 – 83.
 Carens, J. H. (2013). The Ethics of Immigration. Oxford, University of Oxford Press.
 Ruhs, M. and B. Anderson (2010). “Semi-compliance and illegality in migrant labour markets: an analysis of migrants, employers and the state in the UK.” Population, Space and Place 16(03): 195 – 211.
 Walzer, M. (1983). Spheres of Justice: A Defense of Pluralism and Equality. New York, Basic Books, Inc: Chapter 2.