What is Wrong with Current Immigration Policy and How Can We Get It Right? (PDF Version)

January 2013

Introduction

The role of Latinos in the 2012 elections has resulted in a renewal of the national conversation on the difficult subject of immigration policy reform.  National immigration policy advocacy organizations are preparing to engage in a major mobilization effort in support of immigration policy reform. In addition, legislators from both political parties, as well as the Obama administration have signaled that legislation on immigration is a priority.  If legislative proposals presented over the past decade are any indication, these proposals are likely to contain provisions that would mark small steps in the right direction toward meaningful reform.  However, if we want to arrive at truly comprehensive immigration policies that can move us into a sensible and constructive approach to migration, we must take a  deep look into what is wrong with our current policies, and assess clearly what needs to be changed.  We should applaud our policymakers for moving forward, but be fully aware that some significant challenges are likely to remain.  Furthermore, we should be vigilant in our organizing efforts to refute the misguided suggestion that we need yet more focus on enforcement. By analyzing the flaws in the current system, we can work toward a mixed approach of short-term relief measures, middle-term legislative fixes, and long-term perspective shifts can move our nation toward a rational, humane, and effective policy that will serve us well into this century.

Background

Immigrants from Latin America and the Caribbean region comprise the largest segment of the foreign-born population residing in the United States (U.S.) and about three quarters of the unauthorized immigrant population. The backdrop of a pervasively negative perception of immigrants, summarized by the notion of immigrants as a threat to the nation, as well as three structural problems, represent major obstacles in the public and policy conversation on U.S. immigration policy. A successful approach to meaningful change to immigration policy will involve simultaneous and parallel efforts on re-shaping public perception, providing stopgap administrative relief, and crafting and passing real legislative change.

The backdrop against which all policy is currently discussed is the Threat Narrative. The dominant public narrative conceives of and portrays immigration as criminals, an economic, social, cultural, and political threat. This pervasive framing underpinned the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and has prevented meaningful policy deliberation about reversing it. The idea that immigrants are a danger, rather than an asset, precludes movement toward a rational, just, and humane immigration policy.

The public perception problem was exacerbated by an enshrined policy and bureaucratic practices following the September 11, 2001 attacks on the United States.  In a reactionary and ill-planned move, immigration adjudication and enforcement was folded into the newly established Homeland Security Department, whose mandate was leading the domestic war against terrorism. As a result, terrorism has,  become inextricably tied with immigration, both in the minds of the public and in the regulatory bureaucratic system, blurring the meaningful distinction between legitimate security concerns and the natural dynamics of human migration. This country has a compelling interest in eradicating organized crime and terrorism, but the criminalization narrative of immigrants negatively affects how immigrants are viewed.

Three major structural problems with the current immigration system:

1. The preference system: The system of annual and per-country quotas and preferences that governs how relatives of US citizens and lawful permanent residents (LPRs) immigrate, which when first enacted seemed to present a balanced and equitable solution has become outdated, misguided, and denigrates the family reunification values it has purported to promote. Immigration policy in the United States has favored family reunification since at least the 1960s. Prior to 1976, the Western Hemisphere countries had a regional cap which allowed more legal immigration from the Americas than was permitted from other regions. Political compromises made in the 1960s and 1970s subjected migration from Mexico and Central America to the same per-country annual limits as every other country, ignoring the historical regional ties. As a result there are inhumanely long backlogs for legal family reunification for Mexicans and Central Americans—sometimes more than a decade. Consequently, many immigrants who consider family unity a priority confront a profound dilemma: follow the law and wait years until the family can be reunited or find a way to be together, even if it means breaking the law. No immigration policy should create such a quandary.

2. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA): the highly exclusionary, restrictive, and punitive policy framework established by IIRIRA treats immigration as a liability rather than as an asset that offers mutual opportunity. Virtually all laws responsible for the deterioration in the rights of foreign-born nationals residing in the U.S.—as well as the increasing pattern of incarceration and unprecedented number of deportations—find their legal basis in IIRIRA. Unfortunately, the dominant conversation about immigration policy reform since 2002 has accepted this retrogressive framework as the policy environment within which reforms must be conceived. Every so-called comprehensive immigration reform bill filed in recent years has not only accepted the IIRIRA framework, but has incorporated even more enforcement contents, therefore worsening the policy context established by IIRIRA, rather than correcting it. Just, rational and realistic immigration reform cannot be achieved without dismantling this punitive policy foundation.

3. Treatment of Immigration Policy as a Purely Domestic Issue: The United States persists in regarding immigration as a matter for domestic regulation, with no regard for the realities of global and regional integration.  Even as trade treaties like NAFTA acknowledge the interconnected nature of markets in a globalized economy, immigration—the movement of human capital—has been subject to a rigid notion of domestic sovereignty. Human migration is driven by intertwined factors that include armed conflicts, environmental degradation, economic supply and demand, and cultural integration.  Accounting for the root causes of migration, and acknowledging the economic, social and cultural causing factors of migration would allow discussion about regional, hemispheric, and global policy approaches that emphasize the shared responsibilities for embracing new economic and social development strategies capable of gradually attenuating the tendency for people in currently large sending countries to migrate. As economic, social and cultural development opportunities become more broadly available, most people in large sending countries will want to stay in their own countries. A policy approach that recognizes the root causes of migration will lead the U.S. and its allies around the world to a truly humane way of managing human migration flows in the future.

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These problems of structure and approach are powerful impediments to serious efforts in the service of equipping the United States with a truly new, humane and forward looking immigration policy: the fundamental nature of the conversation on immigration must change, as must the statutory regime. By broadly understanding these obstacles, we can begin a conversation about what we want and can expect from effort to reform current immigration policy.

Comprehensive Immigration Reform is a Long-Term Policy Goal

Following the dramatic and unexpected losses by Republicans in both the Presidential race and many Senate and House contests in November 2012, the role of Latino voters has taken center stage. In that election, Latinos increased their share of the vote to about 10 percent, and post-election analysis suggests they lent more than 70 percent of their support to President Obama and the Democratic Party. Latinos therefore played a key—if not the key—role in frustrating the Republican Party’s hope of gaining ground in the election.

In the ensuing weeks, Republican politicians such as Senator Lindsey Graham (SC) and even Representative John Boehner (OH), as well as conservative public opinion leaders like Sean Hannity, made positive statements about re-starting a conversation on Immigration Policy reform. Given this renewed interest, echoed by Democratic Party leaders (including President Obama, who had, until the lead-up to the elections, been largely silent on immigration since his 2008 campaign), one might assume that pursuing immigration policy reform would be a near-term priority. As we have seen in previous pushes for reform, however, making something happen is not the same as equipping the nation with a truly adequate and humane immigration policy solution.

There are some daunting impediments to immigration reform as a frontline priority:

  • The composition and overall orientation of the 113th Congress is essentially the same as that of the previous Congress. Any suggestion to the effect that we have entered a new era when it comes to bipartisan cooperation may well be premature.
  • The social and economic reality for the majority of people in the U.S. continues to be fragile, particularly in the employment market; at least 15 million people remain under- or unemployed.  Recent national polls suggest that economic and fiscal matters continue to dominate the public mindset.
  • Legislative priorities for this Congressional session include complex and pressing items, particularly in the economic arena. In the aftermath of the massacre of children in Newton, Connecticut, the thorny issue of gun control has also surfaced with renewed strength. All these issues will command a great deal of energy, time, and momentum. To successfully advance in any one of them is likely to extract a great deal of political capital as well.

A serious effort at reforming US Immigration Policy,—capable of serving the nation well into the twenty-first century—is not likely to be a matter of a single legislative bill so much as it is a multi-faceted, top-down and bottom-up, long-term political goal. Because we need changes in approach as well as specific legislative fixes, reform is most likely to take the form of gradual administrative and legislative changes, as well as important shifts in the state of public opinion.

What Kind of Immigration Reform Does the Country Need and How Do We Get There?

The U.S. needs a humane, rational, and forward-looking immigration policy that promotes family unification and incorporates an understanding of immigration as a mutually beneficial force driven by global factors. From the perspective of immigrant communities, reform must detach from the current policy framework, which has proven harmful as measured by the following indicators:

  • The difficulty in attaining LPR status; the duration of the process; and the family separation incidental to that process.
  • The high level of incarceration of immigrants as a result of immigration law violations or mandatory detention for relatively minor criminal convictions.
  • The extremely high number of deportations, particularly over the past four years.

Broad social, economic and cultural trends in the U.S., as well as in countries with historical migration ties to the U.S., will continue to shape immigration flows and demand. Given that the necessary changes are unlikely to be adopted all at once, advocates must seek both immediate administrative changes, such as ceasing deportations, and legislative action to remedy the punitive statutory framework. At the same time, a public perception campaign must work on shifting the dialogue away from the threat narrative and toward a global approach that is informed by an understanding of the root causes of migration, in parallel with an effort to recast immigrants in the public debate as what they are: Fellow human beings. If the growing power of the Latino electorate demonstrated in 2012 has genuinely brought us to a new political moment, we should not accept policy solutions modeled in yesterday’s reality.

On the administrative front, which implies measures that do not have to wait for the U.S. Congress to act, advocates should demand at least the following measures, all of which the Obama administration can effect immediately, without having to wait for Congress to act:

  • The immediate halt of detentions and deportations of foreign nationals whose sole infraction is residing in the U.S. without immigration status and the release of detained immigrants without any violent criminal background. Detentions and deportations disrupt the lives of immigrant families, increasing social and economic vulnerabilities within immigrant communities.
  • Ensure that all administrative relief programs granted over the last two years, are actually put into effect with the intended generosity and compassion. From the prosecutorial discretion on pending deportation cases, to the implementation of the Deferred Action on Childhood Arrivals, it is crucial to ensure that these programs are administered with the compassion and broad benefit they were intended.
  • Suspend the Secure Communities (S-Comm) program. S-Comm has failed to meet increase community safety, has shattered thousands of innocent, hardworking families through deportations effectuated with no due process rights, and causes distrust between local police and crime victims.
  • Enhance and expand federal opposition to anti-immigrant policies at the state level. Enforce Constitutional federal preemption in the immigration arena by attacking state initiatives designed to create a more restrictive, punitive, and criminalizing immigration regime. One example of such action is the Department of Justice’s lawsuit against Arizona’s anti-immigrant law.

The Obama administration should be swift and generous in identifying other areas of potential action, but we must be clear that administrative relief initiatives do not obviate the urgent need for legislative fixes.  They can only provide temporary relief and pave the way for long-lasting legislative solutions.

Simultaneously, advocates must work for the passage of legislation that reverses the punitive framework established by IIRIRA, provides expedient access to legal permanent residency (LPR) status to immigrants now residing in the U.S. without status, and reduces waiting times that fracture families. In the long term, the goal must be to manage migration in a safe, legal, and orderly manner, with full protection of migrants’ rights.

A legislative reform agenda on immigration policy must include at least the following components:

  • Rescission of the three- and ten-year and permanent bars: the unlawful presence bars to admissibility imposed by IIRIARA are ill-considered and counterproductive in that they create an enormous population of individuals who are eligible for immigrant visas, but cannot leave the U.S. for their consular interviews. The bars disproportionately impact Mexicans because of our shared borders and an existing transnational labor relationship. They harm families and serve no useful purpose; rather than discouraging unlawful migration, they create incentives for anyone who has been in the U.S. longer than six months to remain, since an exit would trigger inadmissibility.
  • DREAM Act: individuals who were brought to the U.S. as children cannot be punished and excluded from the only culture and country they know on the basis of conduct not their own. Barred from educational and employment opportunities, they comprise vast quantities of untapped talent and wasted opportunity.
  • Refocus waiver standards away from “extreme hardship” and toward multi-factor rehabilitation and family-unification factors: the “extreme hardship” standard for many inadmissibility grounds operates on the premise that most waivers must be denied—only extreme hardship to qualifying relatives can overcome inadmissibility. Such a stringent standard fails to recognize the value of family unity and prohibit decision-makers from applying their favorable discretion.
  • A one-time increase in the number of permanent residency visas to a number large enough to allow the immediate solution to the following situations:

– Elimination of waiting times greater than one year in the family visa petition system.

– A newly-created adjustment of status program designed to allow immigrants currently residing in the U.S. without authorization to apply for legal permanent residency status, and to have their petitions be processed in an expedient manner.

– It is important to remember that for a foreign national to be able to apply for U.S. citizenship, a foreign national has to have resided in the U.S. as a permanent residency holder for either 3 or 5 year. The traditional path to citizenship, extremely expensive fees and highly exclusionary clauses aside, has worked fairly well and should be affirmed and strengthened.

  • Ensure equal access by same-sex couples: rescind the Defense of Marriage Act, should it be upheld by the Supreme Court, and make any necessary amendments to immigrant visa petition laws.
  • Replace the current quotas-and-preference system—which does not reflect demand and instead punishes immigrants from countries like Mexico with which we have strong historical and geographically relationships—with one that reflects the composition of our immigrant population and provides for the family petitions likely to be generated in the future. The ultimate goal of a newly created visa allocation system would be to ensure that we do not find ourselves, after a few years, back where have been since at least the early 1980’s, with a constantly growing, out-of-status immigrant population.
  • Revamp the temporary worker visa programs to reflect the labor needs of key areas of our economy, like agriculture. Any overhaul must ensure that employers are not in control of such visas and allow a path toward LPR status for workers who have been employed in the U.S. under temporary employment programs for more than four years. In additon, all foreign workers should be guaranteed their right to free association for collective bargaining, and join a labor union if they so desire. In the implementation of this program, priority should be given to workers in countries with which the U.S. already has strong extant labor integration dynamics.
  • Replace current border control policies, which have negatively affected the civil rights and human rights conditions along the border, with new border management policies drafted with the direct involvement of civil society organizations and local governments in border-area communities. A new generation of border policies, particularly along the Southern border should be informed by a comprehensive and bi-national vision of development to ensure joint prosperity and wellbeing.
  • Differentiate legitimate national security policy responses from border management policies designed to manage migration. While the threat of terrorism, as well as the concerns around international organized crime organizations is real, they should be dealt with in a way that is clearly differentiated from policies and systems solely intended to facilitate the management of human migration flows.
  • Adopt a  National Immigrant Integration Policy, designed to work in support of local and state governments, as well as organized immigrant communities in identifying and supporting the implementation of best practices when it comes to the economic, social, cultural and civic integration of immigrant communities into the fabric of America. A National Immigrant Integration Institute should be established with the goal of implementing this policy.

In the public debate arena, we should emphasize the following:

  • A public pledge by elected officials to cease using the phrase “illegal immigrant” to refer to people residing in the U.S. without authorization.
  • Increase engagement between representatives of organized immigrant communities and other communities willing to have and promote a constructive conversation about who immigrants are, why people immigrate, the role played by immigrants in both the U.S. and in their countries of origin.  Partners should include communities of faith, schools (both grade school and college/university level), labor organizations, and other community institutions.

Change for the 21st Century and Beyond: Acknowledging and Coordinating With Other U.S. Government Agencies to Address the Root Causes of Migration.

Harmonizing U.S. immigration law with U.S. foreign policy—particularly in the area of economic policy—will be crucial to engendering a humane, rights-based equilibrium to migration dynamics. A considered and deliberate U.S. foreign policy with respect to countries that are the source of most of the immigrant population now residing in the U.S. could be decisive in reducing immigration by transforming development and economic opportunity in those countries such that migration can systematically become a true personal choice and not a necessity in the pursuit of dignified ways of life.

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If the United States is truly committed to reducing unlawful migration in the future, it must make the system for lawful migration a workable one. Our immigration system should be premised on the recognition of contributions immigrants make to this country.  It should promote dignity and respect for human rights and prioritize mechanisms for fully integrating immigrants into the social, economic and political fabric of our society.

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