2013-04-15 17.07.202013-04-15 17.07.20Will there be Immigration Policy Reform in 2014?

PDF Version of this article: 20140121-Will there be IR in 2014 [Q]-Final

By Oscar A. Chacon Jan. 21, 2014

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After the hype and disappointment of 2013, this is the question on the minds of immigrant communities and activists across the country. Unfortunately, there is no short and decisive answer.  It will depend on whether both political parties see immigration reform as advancing their particular interests. When weighing the likely scenarios, we should keep in mind the following:

  • The makeup of the US Congress is the same as it was last year, with the exception of two temporarily empty seats in the US House. We are entering the second and final year of the 113th Congress. There are now 200 Democrats and 233 Republicans in the House. There are 53 Democrats, 2 Independents (who caucus with the Democrats), and 45 Republicans in the Senate.
  • The nation continues to be deeply divided and polarized in multiple ways. The political realm is just one of them. As a recent article in the Washington Post made clear, the issues that matter for folks in what they are calling “Blue America,” (predominantly Democratic voting districts) do not have the same resonance for “Red America,” and these two groups are becoming ever more physically separated from one another.
  • The still growing income and wealth inequality in the United States, and its multiple implications for families and communities, colors the way that people view all issues, including immigration reform.
  • We are in an electoral year. The number one political consideration for every single member of the US House of Representatives and for one third of their colleagues in the US Senate is to be re-elected. The level of priority afforded to any political and policy issue depends on its positive or negative impact on electoral campaigns. While there are some hopeful signs that such hot-button issues as “Obamacare” may finally subside as polarizing influences on the national political arena, this could change if Republicans calculate that divisive politics could secure a better balance of power for their party in the mid-term elections. As we all know, all politics are ultimately local.
  • The international environment continues to be volatile. It would not be surprising if yet another international conflict were to surface in Asia or the Middle East, with the net effect of derailing any predictable course of politics as usual.
  • The growing (and much touted) “Latino Voting Power,” is not equally important everywhere. In the approximately 250 Congressional districts with Republican voter-majorities (including about 15 now represented by Democrats), the Latino vote is indeed growing, but is yet to play a decisive role. In fact, no more than 25 House races are regarded as competitive in 2014, and most of those districts are currently held by a Democrat. Only in about 13 of those districts do Latino voters hold a critical voting mass (10% or more).

 

These contextual issues play a major role in determining what issues rise to the top of legislative priorities, so we are well advised to understand and analyze them. However, there are also another set of political calculations in play, related to the current structure of immigration laws and legislative proposals, and the powerful party and economic interests that underpin that structure.

 

First, we must acknowledge the limitations of the legislation actually under consideration, specifically the  bill passed by the Senate in June of last year (S.744). While it is true that the Senate Bill contains some good elements, it would give rise to a broad range of new challenges, particularly in the area of harsh internal enforcement, as well as a virtually permanent militarization of our southern border with Mexico.  The legalization component falls far short of the provisions included in the Immigration Reform and Control Act of 1986. The activist battle cry of “a path to citizenship for the 11 million” is clearly a worthy goal, but it is simply not a component of the current Senate Bill. Even if the Senate bill were to be taken up by the House, strong anti-immigrant sentiments and staunch opposition to citizenship by powerful members of that legislative body suggest that we should only expect further restrictions.

 

Best estimates suggest that no more than two thirds of the unauthorized immigrant population who may initially qualify for relief under the Senate Bill’s legalization provisions, will get to the point of becoming legal permanent residents.  The option of applying for US citizenship would only open up three years after achieving LPR status.  The so-called “path to citizenship” could prove little more than a slogan for the millions of people who attempt to follow this tenuous, costly and obstacle-filled “path.”

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Second, we need to understand that the greatest and most immediate evil affecting tens of thousands of unauthorized immigrants on a daily basis is the rate of detentions and deportations that tear apart families. As a consequence of these harsh enforcement policies, we are also seeing an increasing number of Mexican and other Latin American immigrants who are ending up in the US Penitentiary System due to immigration- related violations. In addition, more than two million people have been deported over the past five years.

Regrettably, the majority of immigration reform and Latino community advocates have remained mostly silent when it comes to holding the Obama Administration accountable for bringing this unprecedented level of pain to immigrant families.

 

Third, none of the immigration reform proposals that have surfaced over the past 12 years or so have sought to deliberately challenge the framework established by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, the single most damaging change to immigration law in many decades. In many ways, the continuity of IIRIRA represents a straightjacket when it comes to the usefulness of other seemingly generous immigration law changes. The only way to overcome the current exclusion, restriction and punishment regime is by outright challenging this draconian legal framework.

 

Unfortunately, the 1996 provisions, as well as several of the components included in the CIR bills filed so far, benefit powerful economic interest (military contractors, private prisons, high tech/security consortiums, agricultural industries, service industries, etc.). Given that elected officials from both political parties have strong ties to these economic interests, there is currently no political appetite for addressing this key underlying problem.

 

Finally, we find ourselves at an odd political juncture. The Republican Party does not want to be viewed as anti-Latino over the longer term because it sees the demographic handwriting on the wall, but will reap little, if any, short-term benefit from angering its anti-immigrant base.  The Democratic Party touts its support for Latinos, but doesn’t question its Administration’s harsh enforcement policies. Nor does it want to frontally challenge the 1996 IIRIRA framework, signed into law by President Clinton.

 

Toward the end of last year, Republican leaders in the Congress began to show a more nuanced understanding about how to manage public relations on immigration, and several of them have begun to express tepid support for “piecemeal and incremental reform.” The notion of incremental immigration policy reform is not new, nor does it belong to Republicans.  It has been used by many immigration policy advocates starting two decades ago, and has a track record of big and small successes (IRCA, TPS, NACARA, LIFE Act, HRIFA, etc.). However, the confluence in recent years of powerful immigration advocates in Washington, DC, who insist on the architecture known as “Comprehensive Immigration Reform”, and the renewed interest of Republicans in at least appearing to do something for Latinos has cast this debate in partisan terms. This creates an uncomfortable space for those who come to incremental reform as a pragmatic step in a broader struggle for justice, rights and equality.

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In this context, it is not hard to see that keeping the status quo, while horrible for immigrants, it is not that bad for those who are already benefiting, politically or financially from it.

In light of all this, the following seem conceivable scenarios for the short term (not in any particular order):

 

    • Republican leaders in the US House become persuaded that it is in the best interests of the party to allow a vote on the H.R. 15, the house version of a so called Comprehensive Immigration Reform bill, based on the original version of S. 744 (before the Corker-Hoeven amendment). This scenario assumes the Republican leadership agrees to ignore the Hastert Rule (an internal Republican rule that requires that a majority of Republicans in the House support a given piece of legislation before it is brought for a vote). It also assumes that all Democrats and at least 18 Republicans vote for it.  If  this scenario were to play out, we may end up with a final version of an IR bill closely resembling the bill passed by the Senate. The most likely moment for this scenario to happen would be after most of the primaries have been held (by late April) and most Republicans are safely bound towards re- election in November.

 

    • The Republican leadership in the House decides to move an incremental approach to immigration policy reform and takes specific pieces to a vote– such as Agricultural Workers, highly skilled  workers visas (H-1B), border control (the approach taken on this matter by the House last May was far less damaging than the Corker-Hoeven Amendment), young undocumented immigrants (Dreamers), etc. As part of this approach, they may include a relief measure to most if not all unauthorized foreign nationals residing in the US, but without the benefit of a Legal Permanent Residence visa at the end of this process. In this scenario, the House Republican leadership will demand new mirror legislation in the Senate to support each of these components. If the  Republicans were to move in this manner, they will put Democrats in the House and Senate, as well as pro CIR and other advocates in a difficult situation where they may be tempted to reject an outcome that most immigrants, particularly the unauthorized population, would happily accept. Depending on where public opinion is on this matter, the Democrats may well decide to play ball and move forward with something like this. If measures can pass both the House and the Senate, President Obama will likely sign them into law and will frame it as a victory for Democrats and his administration. From the point of view of unauthorized immigrants, the critical issue would be to ensure that there is no “prohibition clause” that would deny their chance of securing access to LPR status via ordinary paths.

 

Either one of these two scenarios imply that Republicans are prepared to face the opposition from their most xenophobic and racist flank. These two scenarios also imply that for the first several years, unauthorized immigrants who qualify would receive a work permit only.

 

  • In light of the specter of legislation that is largely authored and driven by Republicans, a third scenario would be for President Obama to take a bold step and exercise his executive authority to provide some sort of administrative relief to the majority of unauthorized immigrants currently residing in the United States.  Administrative relief could take the form of a work permit and a hold on deportation for those who qualify, the duration of the program. Taking history as a guide, such a program would likely take a similar form as the DACA offered for young immigrants, or the Temporary Protected Status that certain Central American immigrants have received in the past. Given that President Obama has stated on many occasions that he does not believe he has the authority to take such a step (despite historical precedent that would suggest the opposite), such a scenario would represent a radical change in the President’s position on this issue.
  • A final scenario would be for both political parties to conclude that it is best for their interests to keep the status quo, while mounting a publicity campaign to make them look as if they are making an effort to get something done. For the Democrats, an outcome like this would allow them to keep painting   Republicans as the xenophobic/racist party that has consistently frustrated immigration policy reform. This is a narrative that has served well the interests of the Democratic Party in the last several electoral cycles.  The political advantage for the Republicans under this scenario is less clear, but it could consolidate support from the most extreme elements of their base, who play a key role in the 234  electoral districts currently held by the Republican Party.

In conclusion, we are far from anything that could honestly be characterized as generous for immigrant communities. Irrespective to which kind of legalization may be included in a potential legislative reform, all that those who qualify would get in the short term is a work permit. The “path to citizenship,” in any likely scenario will be a long, tortuous and expensive process in which only the fittest and most affluent will ultimately qualify for a Legal Permanent Resident visa. Moreover, we continue to be mired in an approach to migration in the United States that completely ignores its transnational dynamic, with roots in the economic, social and political dynamics of countries of origin, and globalized labor markets. By insisting on treating immigration policy as a purely domestic issue, we miss the opportunity to examine the factors that continue to drive migration, we do a terrible disservice to people whose rights are routinely violated at all points on the migration journey, and we reinforce the erroneous (and obscenely costly) assumption that we effectively control unauthorized migration by militarizing our southern border.

 

One way or another, we have no choice but to keep organizing our communities and building our leadership capacity in order to be able to defy “common wisdom” that changes in areas of public policy such as immigration can only take place every 20-30 years. The deeper question of how soon US immigration policy can be truly fixed will depend on how quickly and effectively do those interested and directly affected build the political muscle to ensure that our demands can neither be co-opted, nor ignored.

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