NEITHER WALLS NOR OPEN BORDERS: A New Approach to Immigration Reform
The government’s failure to realistically confront immigration has created a political and policy crisis. Getting beyond this quagmire requires changing how we think about immigration. We must begin by viewing it as an ongoing socioeconomic process, rather than as a national security issue to be attacked and controlled. This will help us acknowledge that extreme measures—such as “closing the border” or allowing the status quo to continue—offer (at best) pyrrhic solutions, and that it is possible to influence immigration and mediate its effects through new policies that address all major facets of the problem. It is also essential to recognize that immigration significantly affects virtually all key aspects of society— the nation’s demography, economy, culture, and politics—in ways that generate potentially unbridgeable political cleavages. Add to this the multi-dimensional impact of the nation’s current economic crisis, and it is easy to understand why the politics of immigration reform have become so complicated that policymakers have essentially opted for inaction—either by doing nothing or by proposing solutions that will never be formalized (despite the obvious failure of extant policy).
Making reform more difficult is that successfully managing immigration will require more than overcoming domestic conflicts. Immigration is an “intermestic” issue—that is, it simultaneously involves politics in the U.S. and the immigrant-sending states. Managing it, therefore, requires international collaboration, without which it will be impossible to stem the flow of immigrants—a key component of any immigration management policy and its attendant problems.
What measures must be taken to create a new policy? First, we must establish its dual focus: the economic and social well-being of the nation, and respect for the civil and human rights of immigrants. The former will provide the basis for meeting employer demands for low- and high-skilled labor. The latter will validate our overstated claim of being a nation that welcomes immigrants, which requires ensuring that anti-immigrant discrimination is reduced and immigrant-worker rights are respected. No reasonable interest group should reject these objectives.
Secondly, existing national employment laws should be enforced, restricting jobs to citizens, legal residents, and authorized guest workers. This generates opposition on two fronts: agricultural, construction, and service (i.e., hotels and restaurants) industry employers depend on large numbers of undocumented immigrants, who are often the only workers willing to take such poorly-paid, low-status jobs; and then there are the pro-immigrant and human rights advocates who fear the potential human and civil rights violations that may result from the enforcement of current law.
Their concerns are well founded. Although the Immigration Reform and Control Act (IRCA) of 1986 calls for the fining and possible incarceration of employers who hire the undocumented, efforts to implement IRCA have focused much more on removing unauthorized workers. This has led to raids in sectors where workers’ safety is particularly at risk, such as manufacturing and food production (e.g., meat cutting). Raid-seasoned immigration officers have seen workers jump through plate glass windows to escape, or race through work sites crowded with equipment—like band saws and heavy machinery—that could harm them.1 Once these raids were completed, undocumented workers were arrested and deported, often without being able to notify their spouses and children or make arrangements for their well-being. In addition to fines, raided employers have suffered production disruptions and financial losses stemming from the subsequent understaffing. Documented immigrant residents have also been caught up in the raids, due to a number of identity-validation inadequacies.
The Obama administration has resorted to what employers call “silent raids”—audits of employee files, the practice of which has been optimized by technological advancements.2 According to the New York Times, in the past year Immigration and Customs Enforcement (ICE) officials have audited employee files at more than 2,900 places of employment, resulting in more than $3 million in fines from employers who have hired unauthorized workers.
Rather than raising the arrest and deportation numbers, the goal of these silent raids seems to be a lesson-teaching one—as the previously-employed and newly-arriving undocumented residents learn they will not be able to find jobs on U.S. soil, they might return to their countries of origin. Yet, there is no evidence of large-scale reverse migration. Large numbers of the undocumented stay put, only to find themselves in dire financial conditions which lead them and their advocates to ask: “What’s going to happen to the kids?”
Enforcement of the employment laws that are already on the books, even those of the peaceful, civil rights-respecting variety, cannot resolve the wide range of problems caused by the loss of jobs resulting from silent raids or the nation’s increased hostility toward immigrants (particularly the unauthorized ones). Thus, the focus must be on reimagining the conditions that allow those already in this country to stay. Those who employ the undocumented should continue to be fined, so as not to unfairly reward those who have not followed established immigration law procedures. Additionally, protections against fraudulent residential claims must be better implemented and vigorously enforced, so the number of fake claims—such as those resulting from the IRCA-affiliated Seasonal Agricultural Workers Program—becomes minimized.
Immigration reform must also consider demography and culture, both of which are heavily influenced by age. If preferences are given to immigrants over the age of eighteen, not only will the number of new immigrant workers greatly increase, but the need for wideranging, publicly-funded social services (that a family-based immigration system requires) will drop. (Government-sponsored bilingual educational programs have given rise to powerful, though empirically false, claims that English’s status as the national language is being undermined.3) When age-based preferences are coupled with the provisions I will later elaborate on, even the most ardent family-based immigration proponents might rethink their approach.
New immigration policies must respond to labor market demands insofar as they serve overall national interests. To this end, a ticket system should be instituted for undocumented job seekers who are at least eighteen years old. This would be similar to, but far more immigrant-friendly than, the employer-favored guest-worker program. Given the virtual certainty that silent raids will continue, employers should rally behind a ticket system that will provide them with however many workers they need. Employers would still be obligated to certify workers using documents that citizens and LRAs (legal resident aliens) already possess—such as a U.S. birth certificate, a valid Social Security card or passport, or proof of LRA status—or a non-duplicable high-tech ticket for electronic verification. Since the ticket program would not require citizens or LRAs to obtain any documents they do not already have, it will satisfy the concerns of right-wing critics and civil libertarians. Employers who fail to comply with the certification system would be substantially fined, and repeat violators would face incarceration.
These tickets should be priced at less than what many drug traffickers charge (the current rates for smuggling Mexican and Chinese immigrants into this country are $3,000 and $20,000, respectively). Establishing ticket prices below these levels would greatly reduce the incidence of illegal entry and false documents. Moreover, the income generated from the ticket sales would likely exceed the program’s operational costs, and any surplus funds could be put toward other, related immigration reform measures (or they could be distributed amongst the states, based on each state’s number of ticket holders).
This ticket system should not be considered an illegal immigration-eradicating silver bullet. Home-country conditions will, in some cases, be so dire that many people will continue to illegally enter the U.S. Nonetheless, a ticket system would reduce the total number of unauthorized immigrants.
Tickets would be issued by U.S. consulates abroad, and would be valid for five years. Applicants would be selected via a lottery system, developed with the cooperation of the sending states, so as to ensure allocation fairness. Ticket holders, including agricultural workers, would have all the rights of U.S. workers—they could move from job to job or state to state, organize unions, enroll in educational programs at their own expense, and enlist in the military. Ticket holders could return to their home countries as frequently as they desired, and re-enter the United States at no additional cost. Social services, including education, would only be available to citizens, LRAs, and ticket holders.
If rates of immigration are to be slowed, which is what people in the U.S. are increasingly demanding, the rights of ticket holders cannot be extended to their families. Thus, ticket holders may not be accompanied by their spouses unless they, too, have tickets; and ticket holders can’t bring children. Ticketless undocumented adults would be denied employment and access to social services. Upon discovery, non-ticket holders would be forced to return to their countries of origin through repatriation systems developed in accord with the sending countries.
Temporary hardships caused by not allowing spouses and children to accompany ticket holders will be mitigated by ticket-holding immigrants’ freedom to return to their home countries as frequently as they choose. This will emulate pre-European Common Market patterns of Italian and Spanish migration. Since children who are not citizens or LRAs would be denied school enrollment, the unfounded clamor about promoting foreign languages at the expense of English would be eliminated.
After five years of residency, ticket holders would be able to apply for LRA status. Those who have been employed and have no pattern of criminal behavior would be allowed to stay. Given that many, if not most, will have maintained ties to their communities of origin—and that their children will have deepened their roots there—some may choose to return home. Recent patterns suggest, however, that most will exercise their right to stay.
Tickets would be allocated to the sending states based on a formula combining U.S. national interests and the foreign state’s willingness to cooperate with developing the lottery system and repatriation programs. The number of tickets allocated to the sending states will be affected by the extent to which each provides social services and is politically accountable to its citizens. (The formula for allocating tickets should also consider issues surrounding internal conditions that may be beyond the state’s control, such as the January 2010 earthquake that struck Haiti.) As the high rates of emigration from Cuba, Mexico, and Central America illustrate, a state’s failure to be politically accountable and responsive to the needs of its citizens fuels massive emigration. Refusing to require states to change their internal policies to benefit their populations is tantamount to encouraging those states to use emigration as a political safety valve, and this must be stopped. Finally, the demand for tickets in the sending countries will also reflect the needs of the American labor market. The current demand, for example, would be lower than that of the 1990s.
Regimes in sending countries such as China, Guatemala, Cuba, and Mexico have a long history of repressive policies, and governing elites—including officials and members of favored interest groups—will strongly resist changing how they do business. The case of Mexico, the principal sending state, illustrates the willingness of officials to profit even as they fail to develop redistributive policies that benefit their society as a whole.4 Sending states will protest U.S. efforts to re-design their domestic politics and internal affairs—but many of these countries have long negotiated immigration policy with the United States. Cuba has a history of manipulating U.S. immigration policy to help manage its domestic problems. El Salvador asked U.S. officials to extend the temporary status of those who emigrated to escape natural disaster-related hardships between 1998 and 2001. Mexico was heavily involved with the design of the Bracero program, especially regarding the well-being of its emigrants who were incorporated into Bracero program agreements.5
An even more noteworthy example of sending-state efforts to shape U.S. immigration policy is the amicus brief the Mexican government filed in one of the five lawsuits that have challenged the constitutionality of Arizona’s controversial new immigration law. The brief argued that the law unconstitutionally jeopardized Mexico’s national interests and its citizens’ rights.
Thus, it is imperative that sending states collaborate—by helping to establish a transparent ticket-distribution system and modifying their respective national politics and policies—in the formation of new U.S. immigration policies. Given that U.S. officials regularly make comparable demands of our military allies and major trading partners, they must be willing to make them of sending states. To proceed with the development of these new relationships, we should first focus on the logistics of the ticket allocation and distribution process—what factors should be considered in determining how many tickets each country will receive, and how much will each country be charged? The latter may be particularly problematic because there will be pressure to establish a uniform ticket price for all participating countries. But such pressure must be resisted—the ticket price should be set with an eye toward undercutting illegal immigrant trafficking from certain countries. As noted earlier, since trafficker fees vary by country, so should ticket rates, to reflect local demand.
Additionally, unjustifiable policies that favor or punish one state’s immigrants in comparison to another’s must be eliminated. For example, Guatemalans, Salvadorans, Mexicans, and ethnic Chinese face at least as great a chance of abusive treatment at the hands of their government officials—such as corrupt military or police officers—as Cubans. But only Cubans are currently guaranteed legal residency if they are able to step onto U.S. territory.
What are the chances of enacting this type of reform? Realistically, they are low—but they are higher than the chances of passing reactionary alternatives, such as completely militarizing the border, repatriating undocumented immigrants,6 or offering amnesty to the undocumented without doing anything to meaningfully control their rate of entry or enfranchise them once they get here.
Indeed, this proposal may offer enough to all or most groups involved in the immigration reform process, enabling each of them to feel its goals have been met. The business sector will get the workers it needs, and civil/human rights advocates can trumpet the advancement of ticketed workers’ rights. The illegal-entry rate will go down, which should please everyone but those who facilitate the practice. The demand for social services will decline, though it must be noted that the undocumented have tended to make little use of them. The ticketing process will eliminate the “anchor baby” (a child born in the U.S. to at least one undocumented parent) issue, which—the passion it evokes notwithstanding—involves fewer than 8 percent of U.S.-born babies. Furthermore, according to Julia Preston of the New York Times, “more than 80 percent of mothers in the [U.S.] illegally had been here for more than a year . . . and more than half had been in the country for five years or more.”7 So charges that the undocumented race across the border “to drop a child” are unfounded and cannot be used to justify efforts to amend the Fourteenth Amendment—a move that would forever tarnish the claim that this is a nation of immigrants.
Cultural conservatives would no longer be able to allege that immigration constitutes an assault on “American culture” since the number of immigrants, and the demand for special language programs, would decline. Conservatives are also likely to applaud the extent to which such reform would reduce unauthorized immigration. They will likely oppose provisions allowing those already here to stay if they pay a fine—but they would surely consider that option much more appealing than general amnesty.
Immigrant advocates will oppose limiting entry to ticket holders because of the potential disruption to families. But ticket holders will remain tied to their families by returning home whenever they choose—which makes this proposed reform more family-friendly than the current system, under which immigrants live in constant fear of deportation and painful separation. Furthermore, advocates should support the extent to which this reform will enable and encourage immigrants and their families to maintain their cultural roots. The stronger those ties are, immigrants—should they choose to stay in the U.S. and bring their families after five years—will be more likely to successfully develop a blended cultural identity.
Foreign policymakers will probably be among the strongest opponents of this proposal. Nonetheless, they have little choice but to get behind it if they genuinely support their national interests. This nation has long, though often hypocritically, claimed to support democratic regimes. This new policy will add an arrow to those regimes’ quiver—if they only view immigration reform from the vantage point of serving their “own people,” they’ll be risking less cooperation from the U.S. on issues (economic and otherwise) that are vital to their regimes’ interests.
A ticket holder-based policy could be (gradually) enacted if all of the trade-offs were clearly presented. The U.S. government would have to launch a full-scale campaign to educate the public about the kinds of returns this program could bring. Those who oppose the program out of self-interest or nativistic racism must be challenged frontally. Outrightly shaming their bigotry may not lead them to change their positions—but it could help reduce the number of Americans who might otherwise support them.
Still, this proposed reform will not be enacted in the foreseeable future. Opposition to change has hardened along ideological lines, which means we will continue with the failed policies of the past—or create new policies that are even worse. We are most likely to see temporary modifications that will not address the broad, fundamental issues raised here. And then, at some point much later down the road, immigration reform will once again take the forefront as a major political issue—will we be ready then?
1. These raid-related comments were made during interviews conducted as a part of the author’s “Operation Jobs” research. See Rodolfo O. de la Garza, Claire Sheridan, Roger Framm, and Gary Freeman, Operation Jobs: An Evaluation of INS-Dallas (Los Angeles: Tomas Rivera Policy Institute, 1996).
2. Julia Preston, “Illegal Workers Swept from Jobs in ‘Silent Raids,’” New York Times, July 9, 2010. The silent-raid approach avoids the dangers inherent in traditional raids.
3. Richard Alba and Victor Nee, Remaking the American Mainstream: Assimilation and Contemporary Immigration (Cambridge, MA: Harvard University Press, 2003).
4. George W. Grayson, Mexican Officials Feather Their Nests While Decrying U.S. Immigration Policy (Washington, D.C.: Center for Immigration Studies, April 2006).
5. Edward E. Telles and Vilma Ortiz, Generations of Exclusion: MexicanAmericans, Assimilation, and Race (New York: Russell Sage Foundation, 2008), 83
6. Joseph Chamie, “Unwanted Immigrants: America’s Deportation Dilemma,” Yale Global, July 27, 2010, available at www.yaleglobal.yale.edu.
7. Jeffrey Passel and Paul Taylor, Unauthorized Immigrants and Their U.S.-Born Children (Washington, D.C.: Pew Hispanic Center, August 11, 2010).