U.S. Immigration in the Twenty-First Century

Making Americans, Remaking America

Louis DeSipio, Rodolfo O. De La Garza

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780367097325
• eBook ISBN: 9780429983023
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Immigration in the Twenty-First Century is a comprehensive examination of the enduring issues surrounding immigration and immigrants in the United States. The book begins with a look at the history of immigration policy, followed by an examination of the legislative and legal debates waged over immigration and settlement policies today, and concludes with a consideration of the continuing challenges of achieving immigration reform in the United States. The authors also discuss the issues facing US immigrants, from their reception within the native population to the relationship between minorities and immigrants.

Immigration and immigration policy continues to be a hot topic on the campaign trail, and in all branches of federal and state government. Immigration in the Twenty-First Century provides students with the tools and context they need to understand these complex issues.

1

Current Immigration and Immigrant Incorporation Debates: How Did We Get Here?

TO UNDERSTAND THE ISSUES AT STAKE FOR CoNGRESS aND THE nation in the debates over comprehensive immigration reform, it is necessary to understand the current immigration policies of the United States as well as why many in American society feel that those policies are not serving the needs of the nation. As will be evident in our discussion in this chapter and in Chapter 3, the many criticisms of immigration policy and its implementation often conflict with each other and reflect very different visions for the future of the nation and its peoples. For this reason, compromises on immigration reform are hard to achieve and the search for acceptable compromises has long vexed Congress and presidents.

Our goal in this chapter is to identify key existing policies, the concerns about these policies felt by organized interests in US society, and the possible resolutions to these perceived failings that have been or are being debated by Congress. With this contemporary public policy debate as a foundation, we conclude the discussion in this chapter by identifying the key compromises that will need to be addressed by Congress as part of a comprehensive immigration reform bill. A comprehensive bill is a piece of legislation that addresses multiple aspects of immigration policy in a single bill and is, by definition, a compromise that addresses the policy goals of multiple interests in US society. Because comprehensive bills are compromises, they require most advocates of the bill to accept provisions that they oppose as well as provisions that they support to ensure passage. We make no predictions as to when Congress (and the president) might make the compromises and enact foundational legislation for US immigration policy in the twenty-first century, but we are confident that the issues identified here will be critical to that legislation.

The Statutory Foundation of Contemporary US Immigration Policy

Although the roots of the contemporary system of immigration and immigrant incorporation policy can be traced to the nation’s earliest days, the statutory foundation was immigration reform legislation passed in 1965. We examine this bill and its implementation in depth in Chapter 2, but for our purposes of examining today’s immigration debates it is important to recognize two elements of this watershed law. First, it created the legal basis for large numbers of legal immigrants to migrate to the United States each year. Each decade, immigrants grow the country by nearly eleven million people, or roughly 3.5 percent of the national population (315 million). Most new legal immigrants are from Latin American or Asia and so are ethnically distinct from the current majority of Americans.

Second, the 1965 immigration bill signed into law by President Lyndon Johnson tells many people throughout the world that they will never be able to immigrate to the United States because they do not meet any of its standards for establishing permanent residence. Immigrants include short-term visitors and others who cannot stay permanently, such as guest workers (discussed later). Generally when we speak of immigrants colloquially, we mean immigrants to permanent residence. The 1965 law, however, did not create an enforcement mechanism sufficient to prevent unauthorized migration. Although enforcement resources have increased considerably in the years since 1965, the incentives to unauthorized migration (family members in the United States, job opportunities, civil strife in immigrant-sending countries, for example) have proved strong enough to overcome the barriers imposed on unauthorized migrants. The best estimates are that approximately 11.7 million unauthorized migrants lived in the United States in 2012, down from a high of nearly 12 million in 2007 (Passel, Cohn, and Gonzalez-Baker 2013). Approximately 51 percent of these unauthorized migrants are from Mexico. Other countries that send sizeable unauthorized populations to the United States include El Salvador, Guatemala, Honduras, the Philippines, India, and Korea.

In sum, the 1965 immigration law guarantees that large numbers of immigrants—both legal and unauthorized—who are ethnically distinct from the American majority will immigrate to the United States each year and that this number will continue to grow in the future. This virtually guarantees that immigration policy in the United States will continue to be contentious. And although it is less discussed by political leaders or the punditry, the 1965 immigration legislation also means that successful immigrant incorporation policies are critical to the future of the nation.

This ongoing contestation about immigration policy has led to several major amendments to the 1965 immigration legislation, none of which has changed its basic design. We discuss these amendments in greater depth in Chapter 2, but here it is important to identify them briefly as background to outlining key concerns about the structure of US immigration policy held by the general public and legislative leaders alike. To a significant extent, the public’s perception that these earlier reforms have failed makes Congress’s efforts more difficult today.

In 1986, Congress passed and President Ronald Reagan signed into law the Immigration Reform and Control Act (IRCA). The act sought to reduce unauthorized migration by requiring employers to document within the first few days of employment the eligibility of all new employees to work in the United States. The legacy of this legislation is the I-9 form that all employees complete when they start a new job. The IRCA was a compromise and was passed only after several years of negotiation. This compromise provided for legalization of approximately 2 million long-term unauthorized workers (immigrants who had been resident in the United States for five or more years).

Another key lesson we can take from the debates surrounding immigration policy in the mid-1980s and the passing of the IRCA is the importance of agricultural interests in shaping immigration policy. In fact, the agricultural lobby continues to use its influence to ensure that it has access to immigrant labor. The IRCA included provisions for nearly one million unauthorized immigrants with short periods of residence who had worked in agriculture. Although the IRCA is often portrayed as a failure because it did not stem unauthorized migration, it did prove quite successful at ensuring that previously unauthorized migrants were able to make the transition to permanent residence. By 2001 approximately one-third of formerly unauthorized immigrants had naturalized as US citizens (Rytina 2002).

Congress also passed major immigration reforms in 1990 and 1996. These reforms focused both on immigration to achieve permanent residence (legal immigration) and unauthorized migration. In 1990, Congress examined whether there should be an annual cap on the total number of legal immigrants admitted to the United States. It concluded that there shouldn’t be, and enacted a “flexible cap,” clever wording that meant there would be no limits for certain immediate family members of US citizens. Congress also enacted the Diversity Immigrant Visa Program (discussed later) to expand the range of countries of origin of legal immigrants to the United States. That program has served as an engine for new streams of family-based migration since its enactment. Finally, in 1990, Congress expanded the grounds for deportation of immigrants resident in the United States, making it easier to deport non-naturalized immigrants who have committed crimes in the United States.

The 1996 reform sought to reduce the cost of recent legal immigrants to US society (though without much evidence that recent immigrants were, in fact, a financial burden). It added some means testing to immigration eligibility, making it more difficult for poor would-be migrants to immigrate to the United States, regardless of family connections in this country. It also increased the expectation that the immigrant’s sponsor—the family member or company who sponsored the immigrant—would pay the government for any public benefits the immigrant used. Finally, the 1996 immigration and welfare reform legislation also barred recent legal immigrants from eligibility for US social welfare programs for the poor.

Although these 1990s reforms shaped the lives of many immigrants and potential immigrants, they did not fundamentally limit growing public concerns about immigration. Public and legislative debates over immigration increasingly came to focus on the size of the unauthorized immigrant population in particular, the changes that immigrants were perceived as bringing to American culture and society, the potential national security threats from specific immigrants, and the costs of immigrants to US society and to native workers.

Immigration Reform in the George W. Bush Years

These growing national concerns and the increasing frequency of immigration reform legislation led to public and Congressional expectations that the George W. Bush administration would craft a more substantial comprehensive reform. These expectations were the result of several factors. First, the public was increasingly dissatisfied with enforcement of immigration policy, and was particularly concerned about the growing numbers of unauthorized migrants in the United States. Second, immigrants (both legal and unauthorized) were increasingly migrating to parts of the country, such as the South and the agricultural Midwest, that had seen few immigrants in a century or longer. Third, Bush had premised his candidacy and his presidency on a greater understanding of immigrants and Latinos than more nativist Republicans who perceived threats to the American economy and society posed by immigration, and who had dominated the party leadership in the 1990s (DeSipio and de la Garza 2005). Bush thus promised a more compassionate approach to immigrants while also making the more traditional Republican promise of ensuring that the business and agricultural communities would have access to the inexpensive labor they needed.

Early in his administration, President Bush appeared to be moving forward on his commitment to tackle immigration. However, in July 2001 an internal White House memo leaked to the New York Times indicated that the Bush administration was considering a proposal to legalize what was then estimated to be 3 million unauthorized Mexicans in the United States (Schmitt 2001). This proposal was a piece—undoubtedly the most controversial piece—of a comprehensive set of proposed reforms that focused on new border enforcement strategies, cooperation with Mexico over binational migration, and the creation of a guest worker program that would allow temporary residence and employment for foreign workers.

This memo appeared on the front page of a New York Times Sunday edition. It was evidently leaked by an opponent of the reform proposal, which demonstrates how controversial even these possible reforms were. Advocates of legalization quickly indicated that they would not support a program targeted only at Mexicans, and they opposed a guest worker program. The Bush administration had not fully developed these plans or yet built support among Congressional leaders, so it had to backpedal quickly and, at least for a short time, withdraw the proposal from internal debate. But even with the leak and the backpedaling, a discussion this early in the Bush administration indicated that immigration reform would likely move forward in some form. That possibility ended abruptly with the September 11, 2001, terrorist attacks.

The Bush administration did not return to addressing immigration reform until 2004. Even then many felt that it was only the upcoming 2004 presidential election that prompted the administration’s resurrection of the subject (Bumiller 2004). Critics from the right saw the revised Bush proposal—which focused on increased border security and a guest worker program, with no explicit discussion of a legalization program—as a poorly designed effort to win Latino votes in the election, which failed to prevent future authorized migration (DeSipio and Leal 2010). Critics on the left maintained their opposition to a guest worker program, a position that they might have been willing to compromise on in exchange for an explicit commitment to opportunities for guest workers to move toward legal status at the end of their “guest” period.

Had the Bush administration been as committed in 2004 to immigration reform as it had been in 2001, its new proposals might have served as the foundation for Congressional action. Admittedly, though, the proposals would likely have had a difficult time passing both the Republican-controlled Senate and House of Representatives, which was growing increasingly resistant to Bush’s leadership on key issues. By this point, however, Bush and his senior advisors were not focused on immigration or building positive relations with Mexico, which had been part of their goal with the 2001 proposal. Instead, the war on terror and the wars in Afghanistan and Iraq were absorbing their energies. The 2004 proposals put immigration back on the table, but neither the Bush administration nor Congress made it a priority. Immigration ended up not being a major policy issue in the 2004 presidential race (de la Garza, DeSipio, and Leal 2010).

As the White House moved away from a leadership role on immigration in this period, public dissatisfaction continued to grow. Security fears from the September 11, 2001, events and the steady influx and dispersion of unauthorized migrants amid the strong economy of the mid-decade added to public demands for action. Leaders in Congress seized this challenge beginning in 2005.

Criminalization: An Effort to Control the Legislative Debate

In late 2005, the House of Representatives passed H.R. 4437, an enforcement-focused bill. The bill passed the House 239–182, with most of the support coming from Republican members. The bill’s primary sponsor, Colorado representative Tom Tancredo, the chair of the House Immigration Reform Caucus, used his advocacy of the bill as the foundation for unsuccessful runs for the Republican nomination for the presidency in 2008 and the Colorado governorship in 2010.

The provisions of the bill were heavy on criminalization and enforcement, including

• Criminalization of unauthorized status in the United States. (This is currently a civil violation rather than a criminal offense.)

• Criminalization of providing assistance to unauthorized immigrants. (“Assistance” would include transporting unauthorized immigrants or concealing them from authorities.)

• An eighteen-month deadline for the Department of Homeland Security to obtain “operational control” over US borders.

• Authorization for the construction of a double security fence along highly trafficked parts of the US-Mexico border.

• Requiring apprehended unauthorized immigrants to be held in custody until their deportation hearings (in place of the more common policy of releasing unauthorized immigrants without criminal records on bond until their hearings).

• Reassigning deportation reviews of unauthorized, non-Mexican immigrants from immigration judges to non-judicial staff persons of Immigration and Customs Enforcement (ICE).

• Requiring that employers screen all new employees through a Homeland Security database of work eligibility within two years of the law’s enactment.

• Eliminating the Diversity Visa program.

• Withholding federal funding for state and local police forces in jurisdictions that maintain policies that prevent their police forces from reporting unauthorized immigrants or working with federal authorities on immigration matters.

This bill was an effort by the House of Representatives to shift the legislative debate in a more restrictive direction and to ensure that the more inclusive Senate did not set the terms of the debate. Although the bill could be seen as a legitimate response from the House of Representatives to the steadily increasing numbers of unauthorized immigrants in the United States, few expected the bill to become law. Some parts of the legislation would have been impossible to implement and legislative leaders realized that the Senate would insist on more balance in any legislation it considered. As Arizona Republican representative Jim Kolbe observed, “after we pass this, we send it off to the Senate and that’s the end of it” (Congressional Quarterly 2006). Kolbe was correct from a legislative perspective. The bill did not receive Senate approval and did not become law. When the Senate took up immigration reform in 2006, it did not approve the House bill or even include many of its provisions in the version considered by the Senate. However, that was hardly “the end of it.” The House bill engendered a massive public response, perhaps the largest set of public protests that the nation had ever seen. What was even more surprising about these protests is that many who took part were themselves immigrants and in many cases unauthorized immigrants, a group in US society that is least able to risk challenging authority.

The 2006 Protests and Congressional (In)Action in 2006 and 2007

The 2006 immigrant rights protests were unprecedented in their scope. Estimates suggest that these marches included as many as five million people who marched in more than 150 cities (Woodrow Wilson Center for Scholars 2007). The protests were spurred in large part by H.R. 4437, which would have criminalized unauthorized status, thus ensuring that any unauthorized immigrant convicted of this new crime would never be able to immigrate legally. The consequences were felt not just by unauthorized immigrants but also by family members who are in many cases legal immigrants or even US citizens (many immigrant households include immigrants in various legal statuses). The provisions criminalizing assistance to unauthorized immigrants would have subjected legal immigrants and US citizens to prosecution (and possible deportation) for helping family members or for simply housing them.

Immigrants and their family members were not the only ones with concerns about H.R. 4437, though they made up the vast majority of those who protested in the streets in 2006. Employers and immigrant advocates realized how unlikely it was that the government would be able to develop the database of eligible workers within the two-year window established in the bill. The prototype of the database (what would ultimately become E-Verify, discussed later) was rife with errors and had particular difficulty with ethnic names, often failing to identify legal workers accurately because of alternate spellings of names. Civil libertarians objected to the notion of a national record of all citizens and permanent residents that could be abused for other purposes. The Department of Homeland Security did not have detention space to hold all immigrants awaiting deportation hearings. The goal of “operational control” of the border seemed far-fetched, even to its proponents, and was left largely undefined in the bill. Few in Washington—including Republican leaders in the House of Representatives who saw H.R. 4437 as a platform on which Republicans could run in 2006, rather than as a serious legislative proposal—expected this bill to become law. Immigrant communities, however, could not be so certain that the bill would not pass. They needed to ensure that criminalization of unauthorized status was taken out of the political debate.

How did this fear among immigrants and their families translate into such massive protests? This national mobilization was made possible by a new organizational coalition that included some traditional immigrant rights organizations but added new institutional players: state federations of immigrant hometown associations, service sector unions, ethnic radio, and some religious organizations that had not previously been involved in immigrant organizing (Bada, Fox, and Selee 2006; Benjamin-Al-varado, DeSipio, and Montoy...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of Boxes and Tables
• Preface
• Introduction
• 1 Current Immigration and Immigrant Incorporation Debates: How Did We Get Here?
• 2 Defining Who We Will Be: The History of US Immigration Policy
• 3 Immigrants and Natives: Rights, Responsibilities, and Interaction
• 4 From Immigrant to Citizen: US Naturalization Policy
• 5 Immigrant Civic and Political Engagement
• 6 Conclusion: US Immigration Policy for the Twenty-First Century
• Bibliography
• Index