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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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    This post follows Immigration Part 1: How Did We Get Here?, Immigration Part 2: Establishing Equity, and Immigration Part 3: Border Security Redefined. 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…
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    Hillary Diane Rodham Clinton made news last week (on Cinco De Mayo) while addressing a group of students at Rancho High School in Las Vegas, Nevada, by declaring that she would “fight for comprehensive immigration reform and a path to citizenship.” She distinguished herself from the Republican candidates: “Today not…

Immigration Part 2: Establishing Equity

This post is a follow-up to Immigration Part 1: How Did We Get Here? Part 1 covers United States immigration policy and politics prior to 1965. Part 2 examines two decades of immigration legislation between 1978 and 1996 and the recommendations of two blue-ribbon commissions appointed to study and finally resolve immigration issues. Part 3 will consider how 9/11 interrupted and influenced the progress of immigration reform. Part 4 will address more recent legislation and current events and follow the progress toward, and opposition to, comprehensive immigration reform.

As a Senator, John F. Kennedy had embraced reform of the nationality quota system that had been established in the 1920s, and he made immigration an issue in his presidential campaign. Conservative legislators, wanting to restrict the settlement of Mexicans in the U.S., pressed for immigration limits. The political contest resulted in the 1965 Immigration and Nationality Act (described in more detail in Part 1). The act imposed—for the first time in history—a numerical quota on the number of immigrants allowed to enter the United States “legally” from countries in the Western Hemisphere, creating a barrier that had not existed before and producing, as a consequence, a new class of “illegal” immigrants.

Over the 40 years preceding 1965, the flow of authorized immigrants averaged 192,000 per year. Authorized immigration in increased after 1965, and averaged 390,000 per year between 1966 and 1978. The annual flow of undocumented immigrants over these years can only be guessed at, but in 1978, the Census Bureau estimated that there were between 3.5 million and 6 million undocumented residents living in the U.S., an estimate considered to be conservative by some experts .

1978-1981: The Select Commission

The Select Commission on Immigration and Refugee Policy was established in 1978 during the Carter administration to study existing laws, policies and procedures governing the admission of immigrants and refugees and to make recommendations for changes in the law. Its findings led to the Immigration Reform and Control Act of 1986 and the Immigration Act of 1990.

The Select Commission favored a system of immigration that would serve the goals of family reunification, economic growth “consistent with the protection of the U.S. labor market,” and cultural diversity “consistent with national unity.” They recommended separating authorized immigration into two channels: immigrants who had family members already in the country and immigrants with no relatives in the U.S. Immediate family members of U.S. citizens would be admitted without numerical restrictions. This preferred and unlimited group of immigrants would include spouses, minor children, parents of adult citizens, and the unmarried sons and daughters and grandparents of adult U.S. citizens. An annual numerical limit of 350,000 would apply to other relatives and to those without relatives in the country. The Select Commission recommended that the limit be increased to 450,000 for the first five years so that “the admission of backlogged applicants can be expedited.”

The Select Commission found that aliens were attracted to the U.S. by employment opportunities. They found that undocumented workers took jobs that would otherwise be held by citizens and that they depressed wages. They warned of the “pernicious” effects on U.S. society that could result from continued large-scale undocumented immigration:

This illegal flow, encouraged by employers who provide jobs, has created an underclass of workers who fear apprehension and deportation. Undocumented/illegal migrants, at the mercy of unscrupulous employers and coyotes who smuggle them across the border, cannot or will not avail themselves of the protection of U.S. laws. Not only do they suffer, but so too does U.S. society.

At the same time, the Select Commission found that legal immigration had a positive effect on the nation’s economy: “Economists agree that immigration has been and continues to be a force for economic growth in the United States and, as a consequence, has a beneficial effect on wages and employment possibilities for most U.S. citizens over time.”

The Select Commission rejected arguments for greatly increasing the flow of immigrants allowed into the country. They found “this is not the time for a large-scale expansion in legal immigration—for resident aliens or temporary workers—because the first order of priority is bringing undocumented/illegal immigration under control, while setting up a rational system for legal immigration.” Their recommendations included revisions of the H-2 visa program to allow entry for temporary agricultural workers, but they did not propose a new temporary worker program to accommodate the flow of undocumented workers or the needs of U.S. employers who offered the jobs that brought these workers into the country.

The Select Commission recommended increased funding for the Border Patrol, noting that “at any given hour no more than 450 Border Patrol agents are directly engaged in activities to stop persons attempting to enter the United States without inspection.” (By 2008, the total number of Border Patrol agents would increase to more than 18,000.) They recommended a substantial increase in the number of border agents, as well as more training of personnel, replacement of sensor systems, and increases in light planes, helicopters and other equipment. These efforts, they believed, would provide a “visible deterrent” to illegal migrants.

The Select Commission recommended legislation that would make it illegal for employers to hire undocumented workers. Although the law would apply to all employers, the Select Commission advised that enforcement should focus on employers having relatively large numbers of employees. In addition, there must be a reliable means for employers to verify employment eligibility.

The Select Commission recommended greater enforcement of existing wage and working standards. They believed that employers would be less likely to hire illegal immigrants if existing wage, hour, safety, antidiscrimination and farm contractor laws were enforced.

The Select Commission found that the existence of a large population of undocumented residents—at that time, ranging up to 6 million by Census Bureau estimates—“should not be tolerated” and that “permitting a large group of persons to live in illegal, second-class status” resulted in enormous costs to society. The Select Commission rejected the idea that deportation could be a viable solution, finding that massive deportation efforts would be “destructive of U.S. liberties, costly, likely to be challenged in the courts and, in the end, ineffective.” The Commissioners believed that a program of legalization was a “realistic response.”

The Select Commission recommended that eligibility for legalization be based on the immigrant’s date of entry into the U.S. and length of “continuous” residency. Specifically, they recommended that “eligibility be limited to undocumented migrants who illegally entered the United States or were in illegal status prior to January 1, 1980, and who, by the date of enactment of legislation, have continuously resided in the United States for a minimum period of time to be set by Congress.” The commissioners rationalized the cut-off date of January 1, 1980, by stating that they did not want to “reward” more recent immigrants who might have come into the U.S. because of public discussion of the “likelihood of a Commission recommendation in favor of legalization.” On the other hand, the commissioners did not recommend an earlier cut-off date “because it would permit the participation of too few undocumented/illegal aliens” and would leave a substantial underclass still in illegal status.

The Select Commission left it up to Congress to decide how many years of continuous residency would be required to establish eligibility for legalization. They noted, however, that a three-year continuous residency requirement would limit eligibility to an estimated 45 percent of the undocumented population. (Based on this estimate, if Congress were to impose a three-year residency requirement, the remaining ineligible “underclass” of undocumented immigrants would amount to 3.3 million people.) Even though undocumented immigrants who entered the country after January 1, 1980, might be “hard-working and otherwise desirable persons,” the Select Commission declared that “they have not established the equity in our society deemed necessary for registration as permanent resident aliens.”

The Select Commission itself referred to its recommended legalization program as “amnesty.” They advised against having a “drawnout mechanism for establishing eligibility.” Instead, they favored a “one-time only period during which applicants for legalization could come forward.” The Select Commission recommended that legalization begin only after more effective and “appropriate” enforcement measures had been instituted.

1986: IRCA

The Select Commission issued its recommendations in February 1981, a month after Ronald Reagan became President and after the Republican Party had taken control of the Senate in the 1980 election. Political debate over the immigration reforms recommended by the Commission eventually resulted in the Immigration Reform and Control Act of 1986 (IRCA).

IRCA increased funding for border enforcement. It created the H-2A guest worker program, allowing employers facing labor shortages to sponsor temporary agricultural workers. IRCA imposed sanctions on employers who “knowingly” hired unauthorized migrant workers, but the legislation did not provide adequate funding for the federal agencies responsible for sanctions enforcement. The sanctions as implemented were ineffective. An employer could satisfy the requirement of verifying whether workers were authorized by examining the workers’ documents and deciding that the documents “reasonably appeared” to be genuine.

IRCA granted legal status to two groups of immigrants: unauthorized residents who had been in the U.S. before 1982; and seasonal agricultural workers who had been employed for a minimum of 90 days in the year prior to May, 1986. As a result of IRCA, nearly 2.7 million undocumented immigrants were eventually given permanent resident status.

1990-1996: More of the Same?

The Immigration Act of 1990 increased the overall annual cap on authorized immigration to 675,000 (the cap would be 700,000 during 1992-1994). It continued the policy of preference for family reunification, with 480,000 visas reserved each year for family-based immigration. The act increased the number of visas for highly-skilled immigrants. It modified the temporary visa program and revised the grounds for deportation.

The act created a “diversity transition” program that allocated 40,000 immigrant visas in 1992, 1993 and 1994 for immigrants from “adversely affected” countries. At least 40 percent of the “diversity” visas in these years were reserved for “natives of the foreign state the natives of which received the greatest number of visas issued under section 314 of the Immigration Reform and Control Act” (this contorted language masked a special preference created for Ireland). Beginning in 1995, the number of visas for the diversity program was raised to 55,000 per year.

Commission on Immigration Reform

The Immigration Act of 1990 established the Commission on Legal Immigration Reform, which issued three Interim Reports (in 1994, 1995 and 1997) and a Final Report in 1997.

In its first interim report (entitled Restoring Credibility), the Commission recommended the creation of a computerized registry of authorized immigrant workers that would utilize data from the Immigration and Naturalization Service (INS) and the Social Security Administration. The registry was opposed by the American Bar Association, the American Civil Liberties Union, and the United States Catholic Conference, among other groups, for its potential to enable discrimination and threaten civil liberties. Later, a version of the worker verification program was included in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act.

Restoring Credibility included a recommendation that access to public benefits should be denied to undocumented immigrants, except in emergency or other compelling circumstances. At the same time, the Commission believed that the social safety net should be maintained for authorized immigrants.

In the second interim report (entitled Setting Priorities), the Commission recommended a reduction in the overall level of authorized immigration (a proposal that received support from President Clinton). They recommended a core admission level of 550,000 people per year. Immigrants having special skills would be limited to 100,000 per year, and 50,000 refugees would be admitted annually, but the majority of authorized immigrants (400,000 per year) would be immigrants having a family relationship with a U.S. citizen or with an authorized permanent resident. The Commission proposed a labor market test for skills-based immigrants, with exemptions for multinational executives and managers, entrepreneurs, ministers and religious workers, and aliens having extraordinary abilities.

The Commission supported Operation Hold the Line, which had been initiated by the INS. The Commission believed that tighter U.S. control over the 2,000-mile border with Mexico was a necessary element of a credible immigration policy. Operation Hold the Line involved increasing the number of border patrol agents and the use of new surveillance equipment and technology. These strategies have forced unauthorized immigrants to cross the border in more remote, rugged and dangerous locations but have not stopped the flow.

Temporary visa holders who overstayed the limits of their visas were another source of unauthorized immigration. In 1996, more than 24 million people entered the country on temporary visas. The Commission recommended an overhaul of the rules for issuance of temporary visas and advised against the creation of a new agricultural guest worker program.

The Commission’s final report (entitled Becoming an American) contained recommendations regarding “americanization” of authorized permanent residents. Among other requirements for naturalization, a permanent resident would have to pass an English language test and a civics test and take an oath of allegiance to the United States.

The Commission proposed restructuring the INS. They recommended that the four principal immigration functions of government be separated. They proposed that a new Bureau of Immigration Enforcement be created within the Department of Justice to handle border management functions as well as investigations, detention and deportation. They proposed that adjudication of immigration benefits, issuance of visas, and naturalization services be handled by the Department of State. The Department of Labor would be in charge of enforcing immigrant-related employment standards, and a new independent review agency would handle appeals of all administrative immigration-related decisions.

1996 Legislation

In 1996, Congress passed comprehensive welfare reform. The Personal Responsibility and Work Opportunity Reconciliation Act, signed by President Clinton, included provisions restricting aliens’ access to welfare and other public benefits, based on the assumption that the availability of public benefits created an incentive for illegal immigration. In general, the act specified that only “qualified aliens” could be eligible for such benefits. The act defined “qualified aliens” as lawfully admitted permanent residents, refugees or aliens granted asylum in the United States. The law made qualified aliens ineligible for federal programs, including Medicaid, the Children’s Health Insurance Program, Temporary Assistance for Needy Families, food stamps and Supplemental Security Income for a period of five years after their date of entry.

The 1996 Illegal Immigration Reform and Immigrant Responsibility Act strengthened border enforcement by doubling the number of border agents and building enhanced physical barriers between the U.S. and Mexico. The act also strengthened interior enforcement through monitoring of arrivals and departures of authorized immigrants. It created a telephone verification program for employers to determine the immigration status of workers. The verification program—then known as the Basic Pilot Program—was launched in 1997 by the INS and the Social Security Administration (SSA). (The program was renamed “E-Verify” in 2007.)

Immigration To Be Continued

This post describes the transition in U.S. immigration policy that occurred after 1980. The immigration debate that began in this era is much the same debate going on today. Finding an effective and achievable resolution to the immigration dysfunction that has been caused, at least in part, by past policy choices remains an unfulfilled promise.

Readers who want to learn more about immigration issues and enactments in the 1980-2000 period may be interested in the following sources, which helped inform this post:

Aristide R. Zolberg, Immigration Control Policy: Law and Implementation (from Waters and Ueda, eds., The New Americans: A Guide to Immigration Since 1965, Harvard University Press, 2007)

U.S. Immigration Policy and the National Interest, The Final Report and Recommendations of the Select Commission on Immigration and Refugee Policy (1981).

Carlos Ortiz Miranda, United States Commission on Immigration Reform: The Interim and Final Reports, Santa Clara Law Review (1998).

Arthur F. Corwin, The Numbers Game: Estimates of Illegal Aliens in the United States, 1970-1981 (1983).

IRCA Legalization Effects: Lawful Permanent Residence and Naturalization through 2001, Office of Policy and Planning Statistics Division, U.S. Immigration and Naturalization Service (2002)

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  • 79
    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…
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    In her recent book, Undocumented: How Immigration Became Illegal, Aviva Chomsky explains how the 1965 Immigration and Nationality Act “essentially created illegal immigration.” To justify punitive attitudes toward immigrants from Mexico and other Latin American countries, many conservative voices today proclaim loudly that the “rule of law” must be upheld,…
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    It would be an overstatement to say that the next chapter will make sense of the 2016 presidential campaign. The next chapter will, however, contribute its own structured commentary as a framework for comparison of the candidates. Presidential campaigns start with a trickle of news as the candidates announce their…