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Undocumented Latinas
The New Employable Mother
he nomination of Zoe Baird for US Attorney General in 1993
forced a confession that provoked a public uproar: Baird admitted to employing two undocumented Peruvian immigrants, as a
baby-sitter and a driver, in clear violation of the immigration law
prohibiting the hiring of “illegal” aliens. Responses to Baird’s disclosure indicate that her “crime” is a pervasive phenomenon.’
Deborah Sontag reported in the New York Times that two-career,
middle-class families employing so-called illegal immigrants to do
child care and domestic work is so common that employment agencies routinely recommend undocumented immigrants to their clients. As the director of one Manhattan nanny agency said, “It’s lust a
reality of life that without
the illegal girls, there wouldn’t be anynan…
_. _
nies, and the mommies, wouldlave,lo gay* home and mind their
own __—
kids.”2 Another agency’s director said bluntly, “It all comes
down to money…. The reason that people hire immigrants without
papers is that they’re looking to save. If they want legal, they can get
it, but it costs.”3 According to a survey of 18 New York agencies, “illegal” workers earned as little as $175 a week and “legal” workers as
much as $600.4
Thus, the uproar surrounding Baird was not so much a response to the discovery that some people flouted the law by employing undocumented workers. This was hardly news. Rather, the
public outcry was a reflection of resentment that this practice was so
easily accessible to the more privileged classes while other working- class working mothers struggled to find any child care. As one
critic of Baird commented, “I don’t think it’s fair. I raised my kids
while I was working. I worked days. My husband worked nights at
the post office. Our in-laws filled in when they had to.” 5 Another
woman pointed out: “Average working mothers don’t make nearly
what she makes, and yet we are obligated to follow the law.”6
What was conspicuously absent from most of the commentary
on the Baird controversy was concern for the plight of the undocumented workers themselves. Two other news stories involving immigrant women working in private households appeared in a
California newspaper the same time Baird’s situation was making
headlines across the nation; yet these stories did not receive comparable attention. The first of these involved Claudia Garate, who immigrated from Chile at age 19 in order to take a job as an au pair for a
professional couple. Garate testified before the state Labor Commissioner in Sonoma County that she slept on the floor and worked
on call twenty-four hours a day, seven days a week as a maid,
baby-sitter, cook, and gardener for $50 a month. Garate’s employers
held on to her visa and passport and withheld her pay for 13
months; claiming they would deposit it in a bank account for her.
The second case involved Maria de Jesus Ramos Hernandez, who
left her three children in Mexico to work as a housekeeper in California. Once here, her employer repeatedly raped her, telling her
that he had paid her way here and would have her jailed if she did not
submit to him.7
Evidence indicates that while Garate’s and Hernandez’s cases
may have been extreme, abuse of undocumented women working in
private households is not uncommon. Lina Avidan, then–program
director for the San Francisco–based Coalition for Immigrant and
Refugee Rights and Services (CIRRS), said, “I have clients who
work … seven days a week, doing -child care from 6 a.m. to 10 p.m.
[for] $200 a month. Clearly, they are working in the homes of the
wealthy and they’re not even getting minimum wage.” 8 A 1991
CIRRS survey of Chinese, Filipina, and Latina undocumented
women in the San Francisco Bay area revealed that the”majority (58
percent) of the employed undocumented Latinas surveyed held jobs
in housecleaning and in-home care of children or the elderly, while
Undocumented Latinas
the remainder worked in service jobs or factories. They were usually
earning between $250 and $500 per month. Forty percent of these
women were supporting between one and three people on these
wages, while 38 percent were supporting between four and six.9
Members of Mujeres Unidas y Activas (MUA), a support group for
Latina immigrant domestic workers, report that they commonly endure conditions approaching slavery or indentured servitude. I °
These statements are echoed by immigrant domestic workers in
Los Angeles, years after the Zoe Baird episode has passed. Patricia
Tejada fled from El Salvador in 1988 because of the war, leaving her
three children and husband behind. She worked as a baby-sitter and
housekeeper for the next four years in Los Angeles to try to save
enough money to bring her family to join her. She recalls spending
many nights crying, wondering how her children were and whether
they were safe. Throughout those years, she often became very attached to the children she cared for, only to find that she would be
dismissed coldly and abruptly when her services were no longer necessary: “We love the children, but the employers just need us. When
they don’t, they say, We don’t need you anymore, ” she says with a
wave of her hand.”
Another woman, Amalia Hernandez, who fled El Salvador with
her four cousins, found her first job working in Los Angeles as a
live-in nanny caring for a newborn infant. Although Amalia had
been offered $80 per week, she was paid $50 instead to work from 6
a.m. until midnight, most days. In her next job, she was supposed to
be paid $100 per week, but was told by her employer for a year and a
half that her salary was being saved for her. When she asked for her
pay, the employer told his wife to throw her out. Amalia left the house
with only one month’s pay and a bunch of “hand-me-down”
clothes. Although she tried to take the employer to small claims
court, the employer won the case by insisting that Amalia was a very
bad worker and threatening in the courtroom that she would call the
INS to deport her. Amalia recalls that she hardly spoke any English
at the time and was frightened by her employer’s threats.
She describes her current employment situation as tolerable:
She takes care of three children, ages four, two, and two months. In
a typical day, she begins at 6 a.m. preparing breakfast, gives the children lunch for school, brings the four-year-old to preschool for half
a day, cleans the house, does laundry, and cooks dinner. Essentially,
she works around the clock every day while “the lady stays home all
day and gets angry if I sit down.” Suffering from an injury sustained
on the job, Amalia is in constant pain carrying the baby around, up
and down the stairs all day. She wishes she could go to the doctor for
the injury but is afraid she will lose her job if she takes time off to do
so. She is paid $275 per week and has random times off, given at her
employer’s whim.I2
Taken together, these accounts indicate that middle-class
households often make exploitative use of immigrant women to do
child care and domestic work. They also suggest the advances of
many middle-class white women in the workforce have been largely
predicated on the exploitation of poor, immigrant women. While
middle- and upper-class women entrust their children and homes to
undocumented immigrant women, the immigrant women often
must leave their own children to work. Some leave their children
with family in their home countries, hoping to earn enough to return
or send money back to them. 13 Thus, middle- and upper-class
women are readily able to find “affordable” care for their children at
the expense of poor immigrant women and their children. The employment of undocumented women in dead-end, low-wage, temporary service jobs makes it possible for middle- and upper-class
women to pursue salaried jobs and not have to contend with the
“second shift” when they come home.
A predictable outgrowth of the Baird controversy has been the
proposal that the existing Immigration Reform and Control Act
CIRCA) be changed so that household employers are exempted from
the prohibition against hiring “illegal” imrrugrants, or that household workers are given special visas. 14 If the law were changed to
meet this “popular demand,” it would only serve to legitimize the
exploitation of thousands of undocumented immigrants. These proposals raise the specter of a counterpart in private household work
to some of the most brutally exploited contract laborers used in agriculture: “disposable nannies” who may be dumped once babies be-
Undocumented Latinas
come older or newer immigrants can be found who are willing to
work for even lower wages.
The Immigration and Naturalization Service (INS), through its
execution of IRCA, has continued to fulfill the historical role of the
state in using immigration and welfare policies to maintain women
of color as a super-exploitable, low-wage labor force. 15 A historical
example is the use of “employable mother” rules by many states from
the 1940s through 1960s to deny black mothers benefits, thereby coercing them to perform agricultural and domestic work. In implementing current immigration policy, the INS has continued this
pattern. The INS’s execution of IRCA, denying legalization to undocumented women whose citizen children have received public
assistance, channels these women into and maintains them in the
secondary labor force, private household work, and institutional
service work.
The Immigration Reform and Control Act of 1986:
A Compromise
The Immigration Reform and Control Act of 1986 emerged after
nearly a decade of debate in Congress and in the public domain
about what impact immigration, particularly “illegal” immigration,
had on the US economy. The act had two main objectives that were
contradictory: to reduce the number of undocumented immigrants
and to provide rights and the chance to legalize to those undocumented immigrants who had already lived and worked in the country. Unable to reconcile these conflicting impulses, Congress
incorporated a number of provisions into the law as concessions to
various interest groups. First, to discourage illegal immigration, the
law established employer sanctions against those who knowingly
employed undocumented immigrants. Second, to provide rights and
protections to undocumented persons, the amnesty program offered those who could prove they had lived in the country “illegally”
since at least 1982 the chance to apply for temporary resident status.
Finally, in response to the concerns of growers about how the law
might affect the availability of agricultural labor, Congress created
three special classes of those who could enter the country or gain
residency as agricultural workers.16
Some of the most heated debate surrounding IRCA centered
around the issue of whether immigrants generally contribute to or
deplete from the public coffers. This debate led lawmakers to include in IRCA provisions governing whether those perceived as potentially welfare dependent should be able to gain residency and
whether “legalized persons” should be allowed to receive certain
entitlements. The virtual hysteria that has arisen around protecting
public revenues and guarding against the growth of a population of
welfare dependents undoubtedly influenced the inclusion of two
provisions of IRCA, the public-charge exclusion and the five-year
bar, to restrict aliens’ access to social services and public benefits.
Clearly, these restrictions were formulated with the immediate goal
of limiting welfare expenditures; but, in executing IRCA, the INS went
even further, utilizing an interpretation of the law that effectively denied amnesty to those seen as potential welfare abusers— that is,
undocumented women with children. To illustrate how the INS’s interpretation of the law was more restrictive than intended by Congress, I will review how these provisions were originally formulated.
The Five-Year Bar from Federal Assistance
The amnesty program represented a recognition, at least on the part
of some lawmakers, that thousands of undocumented aliens had
lived in the United States, worked, and contributed to the American
economy for years without ever enjoying the rights of those recognized as full, “legitimate” members of the society.’ 7 The remarks of
one representative suggest that some lawmakers hoped to bring relief to the undocumented through IRCA: ‘We will be bringing people out of a shadow economy, people will be paying taxes, people
will be coming out into the sunshine, there will not be the abuse of
workers, employers will not be able to provide poor-quality jobs for
people, they will not be able to oppress people:” 18 Of course, not all
lawmakers had such generous intentions in mind in formulating
IRCA. Many were more concerned with protecting public resources
for “native” Americans than with protecting the rights of the
Undocumented Latinas
undocumented. The perception of immigrants as welfare burdens
fueled fears that the amnesty program would create a tremendous,
immediate strain on social service funds. 19 In direct response to
these concerns, Congress included in IRCA a provision barring legalization applicants from most federal assistance programs, including AFDC, food stamps, and certain forms of Medicaid. The bar
period extends for five years from the time someone applies for
temporary residency.2°
The Public-Charge Ground of Exclusion
and the Special Rule
In addition to the five-year bar, a provision of immigration law dating back to 1882 was retained in IRCA to guard against the expected
welfare drain by newly legali7ed aliens. This provision, excluding
those “likely to become a public charge,” is used to identify those
who might be unable to support themselves because of some physical or mental limitation.21 Prior to IRCA, all aliens applying for an
immigrant visa were subject to a test to determine whether they
were likely to be able to earn a living in the United States. This test
considers factors such as the applicant’s age, health, past and current income, education, and, job skills. Past receipt of public benefits is
considered a significant but not determinative factor. The traditional
test gives applicants one way of overcoming the public-charge ground
of exclusion, even if they have received public benefits, if they can
show that they are currently employed or able to provide for themselves and their families.22
Under IRCA, Congress established a “special rule” providing a
second test for legalization applicants unable to pass the traditional
test.23 This test examines the alien’s recent past and requires the applicant to have a history of employment that demonstrates self-support without receipt of public cash assistance.24 This history of
employment need not be continuous, thus allowing for periods of
unemployment and seasonal or migrant labor.25 Congressional testimony indicates that Congress created the “special rule” with the
intent of liberalizing the public-charge standard or providing a second means of overcoming this standard.26 Specifically, it was made
with the recognition that many of the undocumented are “working
poor,” unlikely to become dependent on public benefits despite
their low incomes.27
The amnesty, five-year bar, and public-charge provisions of
IRCA were formulated in the face of a wide spectrum of views on
what rights and benefits should be extended to immigrants. IRCA
represented an uneasy compromise of these views and the task of
implementing IRCA was left to the discretion of the INS. In executing
IRCA, the INS has applied more restrictive interpretations of the law.
For example, Congress intended to open eligibility for legalization
to large numbers of people, including those who were low-income,
with the “special rule.”28 But the INS did not utilize the “special
rule” properly and instead implemented its own interpretations of
the law, which were not consistent with Congress’s liberalizing intent. The result of this practice was that many undocumented
women who had received public assistance for their children were
wrongfully denied amnesty.
The Case of Zambrano v.
The INS’s implementation of IRCA, particularly its application of the
law to undocumented women, has been challenged in the case
Zambrano v. INS. The class-action suit was filed in the Ninth Circuit
in April 1988 on behalf of a group of plaintiffs who were mostly
women with dependents and the class they represent. 29 The complaint against the INS, filed by California Rural Legal Assistance
(CRLA), the National Immigration Law Center (NILC), and San
Mateo County Legal Aid (SMCLA), co-counsel for the plaintiffs,
made two claims: that the INS’s practices contradicted the congressional intent in passing IRCA and that these practices discriminated
against and imposed extreme hardship on undocumented women
with children. 30 In August 1988, the NILC and SMCLA withdrew
from the case and the Mexican American Legal Defense and Education Foundation (MALDEF) joined CRLA as co-counsel. The declarations of two of the plaintiffs, Marta Zambrano and Maria C.,
illustrate how the INS’s execution of the amnesty and public-charge
provisions of IRCA adversely affected undocumented women with
Undocumented Latinas
children and obstructed their chances of obtaining better working
and living conditions.31
Marta Zambrano, whose name the case assumed, was a Mexican citizen who had lived continuously in the United States since
1979. Marta had four children with US citizenship, ages eight, six,
four, and three, at the time of her declaration in 1988. Between 1979
and 1983, she worked in a factory, picked cauliflower, and did many
kinds of work in the fields, even while she had two small children.
She only began receiving AFDC for her children in 1983, when she
became pregnant with her third child and her common-law husband
left her because she refused to have an abortion.32
Marta first heard about the amnesty program in 1986 on the radio
and through friends. She went to a program at her church for information and was told that she could not receive AFDC for her children if she wanted to legalize. She also heard on the radio and from
her friends that people who received welfare were not eligible for legalization. Convinced that she would not qualify, Zambrano did not
pursue an amnesty application. Only at the urging of an attorney did
she file her application on May 4, 1988, the latest possible date. In
June 1988, she was interviewed by the INS and informed that her application was denied because her children had received AFDC.33
Marta received AFDC for her US-citizen children because their
natural fathers contributed no support to the family. Since 1986,
Marta sought work but was refused in many instances because she
did not have work authorization, which she could only obtain
through legalization. Potential employers turned Marta away from
work in the fields and as a dishwasher and housecleaner. Even when
Marta obtained part-time work, she did not earn enough money to
cover living expenses and child care.34
Anna R. was less fortunate than Marta Zambrano in that she
never even applied for amnesty. She was a citizen of El Salvador and
had lived in California since 1981. She had four children, two of
whom were US citizens. Shortly after IRCA was passed, Anna began
preparing to apply for amnesty by gathering necessary documents.
In January 1988, Anna was abandoned by the father of her children.
At that time she was unable to find full-time employment without
work authorization and applied for AFDC for her children, who had
US citizenship. She also began working as a housekeeper, one day
per week for three different employers. She earned about $400 per
month and received no support from her children’s father.35
Anna heard from the radio, tel …
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