Undocumented Consumers: Include Consumer Protection in Comprehensive Immigration Reform

Co-authored by Joseph Sanderson

It has been a long time coming, but it looks likely that positive change will come for the estimated 12 million Americans whose immigration status is unauthorized. Congress seems to be taking seriously the injustice of the current immigration system. The bill offered by the "Gang of Eight" offers a path to citizenship and addresses important problems like the hardship of families being torn apart. It is a path with pitfalls, however -- including worrisome provisions that would make poor or unemployed applicants vulnerable to deportation. Nevertheless, the passage of the bill would bring a vast improvement to the status quo. There is a set of problems the bill does not do much to solve, however -- the set of challenges undocumented Americans face as consumers.

The greater injustice of being trapped perpetually in undocumented status has quite understandably distracted reform advocates from full attention to matters that legalization alone won't necessarily solve. Amid the other indignities that they have endured -- families torn apart, being detained in terrible conditions, exploitative working conditions when they are able to work at all -- the problems the undocumented face as consumers might seem minor in comparison. Still, Congress should not forget to take up the longstanding consumer challenges; especially it should ameliorate the new problems that are likely to spring up from the immigration reform measure itself.

Until now, Congress has shown little concern with protecting or even recognizing the consumer rights of unauthorized immigrants, probably out of an unwillingness to augment unauthorized status in any way at all. As they obtain provisional legal status and advance toward citizenship, however, there can be no doubt that they should have the same consumer rights and remedies as the rest of us. We should make sure that they are able to take full advantage of them.

Congress therefore should look directly at the experiences faced in the everyday marketplace by those who are undocumented, including at their subjection to deceptive and abusive practices, discouragements from joining the mainstream economy, and the difficulties using consumer remedies without fear of deportation.

Undocumented immigrant consumers have difficulty establishing ordinary bank accounts, tapping into mainstream credit, and purchasing other products and services most consumers take for granted.

New difficulties can be expected to flow from the requirements established by the new process for obtaining recognition of legal status, which will make each applicant repeatedly present documents, complete forms, and pay fees. Can the fees and penalties that are being designed into the bill be engineered to avoid punishing people for being poor, unbanked, and ineligible for decent credit terms?

A general problem of inadequate professional advice and depredations by dishonest immigration advisers can be expected to surface in the context of the industry that is likely to develop around the "pathway." During the 1980s, stories abounded of these "advisers" tricking ineligible individuals into handing over their life savings before vanishing and relying on victims' unwillingness to report the fraud to authorities for fear of being deported. What happens when applicants encounter exploitative behavior or incompetent advice? Should there be federal accreditation standards for immigration advisers?

How can immigrants who fear being kicked off of the road to citizenship be expected to exercise the right to protest violations of their consumer rights without fear of retaliation? Will Congress structure the legalization process to ensure that eligible applicants don't get detained or deported based on their efforts to hold others accountable for incompetence or fraud?

These problems might be addressed administratively, through subsequent legislation, or perhaps through modifications to the compromise bill. In one way or another they require attention.

We are too accustomed to thinking of immigrants as laborers. Viewing their struggles as consumers reminds us of what we all share, and how undocumented status makes the most mundane tasks burdensome.

Engagement with the consumer economy is nearly universal--but for some, factors beyond their control make that experience harder than for others. In many important respects the United States is a society of consumers; and immigration reform will deliver on its full promise when it successfully integrates the undocumented into this consumer society.

Joseph Sanderson is a first-year law student at Yale Law School. He is working for a consumer law organization this summer.

Norman I. Silber is a Visiting Professor of Law at Yale Law School and a Professor of Law at the Maurice A. Deane School of Law of Hofstra University. He writes about consumer protection, nonprofit organizations, and other subjects.