Immigration Part 3: Border Security Redefined

This post follows Immigration Part 1: How Did We Get Here? and Immigration Part 2: Establishing Equity. Part 1 covers United States immigration policy and politics prior to 1965. Part 2 examines three decades of immigration legislation between 1965 and 1996 and the recommendations of two blue-ribbon commissions appointed to study and finally resolve immigration issues. Part 3 considers how 9/11 interrupted and influenced the progress of immigration reform. Part 4 will address more recent legislation and current events and follow progress toward, and opposition to, comprehensive immigration reform.

On September 11, 2001, two hijacked airliners crashed into the twin towers of the World Trade Center in New York City. Both towers collapsed, taking the lives of 2,600 people. A third hijacked airliner crashed into the western face of the Pentagon in Arlington, Virginia, killing 125 people, and a fourth hijacked airliner crashed into a field in Pennsylvania (the hijackers’ likely target had been the White House or the U.S. Capitol). All 256 people aboard the four planes died. The most horrendous attack on the United States since Pearl Harbor was carried out by 19 terrorist operatives.

Fourteen of the 19 hijackers entered the country on six-month tourist visas. Four came in on business visas, and one came into the U.S. on a student visa. None of the hijackers entered the country as an undocumented immigrant. None of the hijackers entered the country by crossing the border between the U.S. and Mexico.

For the next five years, movement toward a rational answer to the question of unauthorized immigration fell off the national agenda. During those years, legislation affecting immigration reflected the national trauma of 9/11. There was an urgency to strengthen borders and to establish better screening and tracking of foreign visitors to keep out terrorists. We wanted reassurance of the security of the “homeland,” and we wanted to strike back. In 2003, the nation plunged into a war in Iraq in search of weapons of mass destruction, which, as it turned out, did not exist.

The Enhanced Border Security and Visa Entry Reform Act of 2002 included funding to increase the number of border patrol officers. The act required federal law enforcement and intelligence agencies to share data with the Immigration and Naturalization Service (INS) and State Department, and required the INS to improve its database systems to track the entry and exit of foreign visitors to the U.S. The law banned the entry of foreigners from countries that were deemed to be sponsors of terrorism and imposed new visa requirements for all foreign visitors. It required that all travel and entry documents contain biometric identifiers by 2004.

The Homeland Security Act of 2002 created the Department of Homeland Security (DHS) and transferred the functions of the INS to three new agencies within DHS: Customs and Border Protection; Immigration and Customs Enforcement; and Citizenship and Immigration Services.

In response to the recommendations of the 9/11 Commission, Congress passed the 2004 Intelligence Reform and Terrorism Prevention Act (also known as the National Intelligence Reform Act). The act reformed and reorganized federal intelligence and law enforcement agencies. In addition, the act included provisions to reinforce immigration security and border patrol. It increased the number of border patrol agents (again) and immigration investigators and provided for construction of immigration detention centers. It imposed enhanced criminal penalties for transporting aliens into the country. The National Intelligence Reform Act also required most aliens seeking non-immigrant visas to submit to in-person interviews with consular officers. The act required the Secretary of Transportation to establish a negotiated rulemaking process to establish minimum standards for state-issued driver’s licenses and identification cards that would be accepted for federal purposes.

The Real ID Act of 2005 repealed the provisions of the National Intelligence Reform Act that had provided for a negotiated rulemaking process for driver’s licenses and, instead, imposed federal license standards on the states. A 2006 study by the National Conference of State Legislatures estimated that the Real ID Act would cost states more than $11 billion over five years to implement, would adversely affect public service, and would require states to hire more employees and expand business hours to comply with the federal deadline. The Consolidated Appropriations Act of 2008 included $50 million to help states implement Real ID. DHS issued the final regulations for Real ID in January, 2008, four months before the May 11, 2008 deadline for states to meet the Real ID requirements. The deadline was later extended to January 15, 2013, and DHS has since provided for a “phased enforcement plan.”

In 2005, the House passed the Border Protection, Anti-terrorism, and Illegal Immigration Control Act (also known as the Sensenbrenner bill, after its chief sponsor, Wisconsin Representative Jim Sensenbrenner, Republican). The Senate rejected the legislation, but its passage by the House triggered massive protest demonstrations in 2006. Among its provisions, the bill would have made the first illegal entry into the U.S. a felony instead of a misdemeanor. It would also have made it a felony to “assist” an unauthorized immigrant to reside in the U.S., punishable by up to 5 years imprisonment.

The Secure Fence Act of 2006 provided for DHS to have full operational control over the border between the U.S. and Mexico. It directed DHS to construct “at least 2 layers of reinforced fencing, the installation of additional physical barriers, roads, lighting, cameras, and sensors” covering 700 miles along the 2,000 mile long border between the United States and Mexico. The reinforced fencing provision had originally been included in the Sensenbrenner bill. Republicans running for re-election in 2006 were behind the Secure Fence Act, believing that it was to their political advantage to “get tough on illegal immigrants.”

In 2006, in response to the Sensenbrenner bill, the Senate passed a comprehensive immigration reform bill that included heightened border security, reform of the legal immigration system, and a program for legalization of unauthorized residents. The House refused to consider it.

President Bush had long favored reform of the nation’s immigration laws. In 2007, the Bush administration and a bipartisan group of senators reached agreement on a comprehensive immigration reform package that would have granted temporary legal status to most of the 12 million unauthorized immigrants living in the U.S., allowing them to apply for residence visas. The proposed reform included a path to citizenship. It would have established a new temporary worker program providing legal entry for 400,000 migrant workers each year. The reform package included tough new border controls and better enforcement of the laws that prohibit the hiring of undocumented workers. The complex package was built around a delicate political balance intended to win support from both liberal and conservative members of Congress, but the agreement received a hostile response from the left and the right. The Bush administration’s reform package, in the form of the Comprehensive Immigration Reform Act of 2007, died in the Senate when it failed to win the 60 votes needed to overcome a Senate “filibuster.”

Reacting to the news of the demise of the reform bill, President Bush said: “Legal immigration is one of the top concerns of the American people, and Congress’s failure to act on it is a disappointment. A lot of us worked hard to see if we couldn’t find common ground. It didn’t work.”

Senator Edward Kennedy, who had been a chief sponsor of the bill, observed that many senators had “voted their fears, not their hopes.” He criticized the bill’s opponents: “We know what they don’t like. What are they for? What are they going to do with the 12 million who are undocumented here? Send them back to countries around the world? Develop a type of Gestapo here to seek out these people that are in the shadows? What’s their alternative?” He was not optimistic about the future: “The situation is going to get worse and worse and worse.”

Immigration To Be Continued

Comprehensive immigration reform proposals from the right and the left failed in 2005 and 2006 and even “compromise” legislation on immigration reform failed in 2007. Nevertheless, these efforts may be viewed as a sign that the nation was emerging from the trauma of 9/11 and refocusing attention on a problem that was not caused by terrorists and that had begun long before 2001. Although the nation would emerge from trauma, it would be forever changed. Immigration reform would be entangled permanently with national security concerns and, consequently, it would be even more deeply mired in politics than ever before.

Readers who want to learn more about immigration issues in the post-9/11 era may be interested in the following sources, which helped inform this post:

9/11 and Terrorist Travel, Staff Report of the National Commission on Terrorist Attacks Upon the United States — A detailed account of how the 9/11 operatives entered the U.S. undetected.

Comprehensive Immigration Reform Act of 2007 — A website that provides information about a bipartisan comprehensive immigration reform and the politics of its demise.

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Some other stuff for later,