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IMMIGRATION Part III:
It’s Time for a New Policy

Hendrik van den Berg
UNL Professor of Economics

Last month, I reviewed U.S. immigration policy over the past 200 years. We left our story with “The Immigration Reform and Control Act of 1986” (IRCA). IRCA was based on the comprehensive recommendations of the 1979 “Select Commission on Immigration and Refugee Policy” (SCIRP) as well as President Reagan’s 1981 task force on immigration. By the 1980s, illegal immigration had become a major issue politically. At that time, over 5 million foreigners were believed to be living and working in the U.S. without legal documents. After several years of debate, IRCA was finally passed and signed into law in 1986. IRCA mandated:

1. increased controls on the border patrols,

2. the establishment of a system of system for employers to verify the legal status of employees,

3. responsibility of employers to check employees’ legal status, and

4. one-time amnesty for illegal immigrants who had been in the country for a long time.

The latter provision was satisfied, and about 2.7 million unauthorized aliens already living in the United States gained legal residence status under the IRCA provisions. Congress failed to adequately fund the border and employer enforcement measures, however. The North American Free Trade Agreement (NAFTA) and the inflow of subsidized U.S. grains decimated small Mexican farms, and the 1994 financial crisis further hurt the Mexican economy. Soon, with no enforcement of immigration, millions more foreigners entered the U.S. illegally. Today, there are an estimated 10-12 million illegal immigrants in the U.S. Immigration, accordingly, has again become a ‘hot button’ issue, with renewed demands for legislation to address the matter.
Opposing Political Pressurestc "Opposing Political Pressures"

Some groups now seek another amnesty to reduce the number of people living precarious illegal lives. Even organized labor has come out in favor of some form of legalization, recognizing the oppression that employers exercise over unauthorized workers who lack legal status to organize or seek legal recourse. Other groups, however, actively seek harsh measures to find, punish and deport illegal immigrants. These sharp differences in opinions have prevented any comprehensive immigration legislation like the 1986 IRCA from passing. Responding to the anti-immigrant rhetoric, Congress did pass legislation in 2004 that authorized increased border controls, including high fences for hundreds of miles of the U.S.- Mexico border. Also authorized were up to 40,000 prison beds for detaining illegal immigrants.

Enforcement of immigration laws was passed to the new Department of Homeland Security after the September 11, 2001 terrorist attack on the World Trade Center, and the department’s Immigration and Customs Enforcement (ICE) agency has greatly stepped up detention and ‘removal’ of immigrants. Immigrants are now often charged as criminals in hastily arranged and poorly understood legal processes. In early 2008, for example, 270 Guatemalan immigrants in Iowa were arrested in a raid on a meatpacking plant, subjected to an assembly-line legal procedure in temporary courts set up at a local fairground, and kept from contacting their families or legal counsel. Despite protests by the American Immigration Lawyers Association, the workers faced the judges without the usual counseling, and each worker ended up pleading guilty to poorly understood charges and accepting sentences of five months in federal prison, to be followed by deportation (or what the U.S. government now simply calls ‘removal’).

In 2009, ICE reported it maintained 33,400 prison beds for detaining illegal immigrants in either its own or contracted private prisons throughout the U.S. Many thousands more prison spaces are provided by county, state and federal facilities. It is safe to assume that, under current rules and procedures, Lancaster County’s costly and controversial new jail will end up serving, in part, as a detention center for illegal immigrants.

Another recent change in U.S. immigration policy has been a groundswell in local and state efforts to aggressively deal with illegal immigration. In some case, local law enforcement officers have taken matters into their own hands and begun arresting and harassing immigrants who lack proper documentation. Here in Nebraska, the Unicameral is debating various state laws aimed at increasing local enforcement of immigration laws. Needless to say, such ad hoc local and state measures will create many inconsistencies and injustices. We will end up with immigrant havens in some locations and active oppression of immigrants in other locations.

Are Immigrants Criminals?

Even though the authorities are increasingly treating illegal immigrants as criminals, charging them with identity theft, fraud and other felonies and imprisoning them for many months before ‘removing’ them, it’s not at all clear that they are in fact criminals. Yes, the border was crossed without the proper authorization. But that same border has been crossed without authorization for over a hundred years. And once in the country, illegal immigrants were welcomed with jobs, apartments to rent, cars to buy, churches to attend, Wal-Marts to shop in and openings to most other corners of American life. Why is the immigrant any more guilty than the employer, the landlord, the car salesperson or the minister anxious for a new member?

I would argue that all of these individuals are guilty only of living life as best as they know how. It is the lack of clear social and legal guidelines that is to blame. Sudden harsh increases in the punishment of selected immigrants (when others are still openly welcomed), while at the same time absolving everyone who benefits from these immigrants’ presence of all responsibility, is patently unjust.

We Need Comprehensive Legislation — and Follow-Up

IRCA’s failure to stem illegal immigration has given comprehensive immigration legislation a bad name. But we know why IRCA failed to achieve its goals: Congress never followed up the legislation by funding the mandated actions. Effectively, Congress failed to act under the rule of the law it passed. Employers were not held accountable, and they were never prosecuted. Nor was a simple and full-proof method to verify identities ever established. It is obvious that border controls are not currently sufficient to deal with a 2,000-mile-long border and the ease with which people can enter the country with some form of temporary documentation. Remember, the criminals who flew the planes into the World Trade Center entered the country legally on a passport with a visitor’s visa.

IRCA also failed to stem illegal immigration because it did not open legal channels of immigration for the types of people most likely to immigrate illegally. It is nearly impossible for a foreigner without immediate family in the U.S. or a university degree to ever gain entry into the U.S.

These observations point to the need for a new comprehensive law that (1) again mandates employer responsibility for hiring illegal immigrants, (2) a clearinghouse for identifying employees’ immigration status in a nondiscriminatory manner, and (3) modest border controls. Further legal channels for immigration for people with all types of backgrounds and talents should also be opened. And, above all, the current cruelty of our inconsistent and arbitrary pursuit of illegal immigrants must stop. Simple deportation is sufficient provided a viable employee verification system is in place. We should not torture people who are not guilty of a serious crime.

Now for the controversial recommendation: we need one more general amnesty. Many illegal immigrants live in families with others who are legal immigrants or native-born Americans. Many more have lived here for years and have been good citizens. Another general amnesty will be strongly resisted by many politicians for whom the term has become a kind of dirty word. Perhaps we should remind them (and ourselves) though, that amnesty — or in more familiar language, ‘forgiveness’ — is a fundamental component of any civilized society. Civilized life cannot go on when society loses its capacity to forgive, especially for complex phenomena like illegal immigration where the blame is widely shared.

It is time for comprehensive legislation that recognizes illegal immigration for the complex socioeconomic phenomenon that it is — but also accepts that immigration is a very human phenomenon and not a criminal act. This year is obviously not the best time to deal with illegal immigration: our new president has plenty on his plate, and the economic recession will make it difficult to convince opponents of immigration that their falling incomes and poor job prospects are not related to immigration. Still, we can surely do better than adopt new laws that do little more than authorize high walls on our borders and more prisons for foreign people who only came here to work.