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, but that law did not exist before 1965. A brief history of immigration laws that set the context for the 1965 act has already appeared in this blog in Immigration Part 1: How Did We Get Here?

Before 1965, an unlimited supply of Mexican workers legally crossed back and forth along the southern border in a pattern of circular migration that followed the agricultural seasons and the demand for farm labor. The Bracero Program, established in 1942, reinforced this pattern. Under the program, Mexican farmworkers were recruited to work under contracts for farm jobs in the U.S.  These “documented” workers returned south of the border after each season of temporary employment. Alongside the Bracero recruits, however, many other Mexican workers came into the U.S. without Bracero documentation, drawn by the appetite of U.S. employers for temporary, low-wage labor. Using undocumented workers allowed employers to avoid the paperwork and the worker protections that were a part of the Bracero Program. The market for undocumented workers became an opportunity for human smugglers (“coyotes”) to provide workers to U.S. labor contractors.

By the time the program ended in 1964, more than 4.6 million Mexicans had entered the U.S. under Bracero contracts. At its peak in the 1950s, the Bracero Program employed more than 400,000 Mexican farmworkers per year on 50,000 farms in the U.S., and the number of permanent resident visas for Mexican migrants averaged 50,000 per year. The 1965 act imposed an annual quota of 20,000 on the number of immigrant visas (the quota did not apply to parents, spouses and minor children of U.S. citizens). Congress failed to provide a legal accommodation for the established pattern of migrant labor. The quota was inadequate to supply the numbers of migrant workers needed for agricultural jobs in the U.S. The result was an increase in “illegal” migration to satisfy the demand. According to a Congressional Research Service report:

The imposition of numeric limits on permanent immigration produced a backlog of roughly 300,000 Mexican visa applicants by 1976, resulting in a two-and-a-half year wait for visas for qualified applicants. By 1979, an estimated 1.7 million unauthorized aliens resided in the United States, including 1.4 million from Mexico.

The 1986 Immigration Reform and Control Act (IRCA) compounded the problem by imposing sanctions on employers who “knowingly” hired unauthorized migrant workers. More information on IRCA can be found on this blog in Immigration Part 2: Establishing Equity. Chomsky calls IRCA “a bumbling intervention,” which had consequences that may have been unintended but served the economic interests of some employers. The sanctions made unauthorized workers more vulnerable to exploitation because these workers had no legal recourse to complain about low wages and substandard working conditions.

IRCA also funded border enforcement measures, and Congress has continued to ramp up border control obsessively ever since. 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 2002 Enhanced Border Security and Visa Entry Reform Act included funding to increase the number of border patrol officers. The 2004 Intelligence Reform and Terrorism Prevention Act increased the number of border patrol agents (again) and provided for construction of immigration detention centers. The 2006 Secure Fence Act directed the Department of Homeland Security to construct fencing and additional physical barriers as well as roads, lighting, cameras and sensors covering 700 miles along the 2,000-mile long border between the United States and Mexico. The 2010 Border Security Act increased the number of border patrol agents and called for increased use of surveillance drones along the border. Since 1986, the federal government has spent nearly $187 billion on immigration enforcement. In 2012, immigration enforcement expenditures exceeded $17.9 billion, nearly 15 times the level of spending in 1986. Today, the nation spends more on immigration enforcement than on the FBI, DEA, Secret Service, U.S. Marshals Service and ATF combined.

Border enforcement, however, has had the effect of increasing the unauthorized immigrant population in the U.S. Migrant workers have chosen to stay in the U.S. rather than seasonally returning to Mexico and risking a more dangerous and expensive re-entry: “As the costs and risks of unauthorized border crossing mounted, migrants minimized them by shifting from a circular to a settled pattern of migration, essentially hunkering down and staying once they had successfully run the gauntlet at the border.” (Massey and Pren, Unintended Consequences of US Immigration Policy: Explaining the Post-1965 Surge from Latin America)

The problem of “illegal” immigration is traceable to mistakes made in the 1965 Immigration and Nationality Act and compounded by subsequent Congressional actions. The legacy of these errors in immigration policy-making is the large population of immigrants now living in the U.S. without authorization. The Department of Homeland Security’s Office of Immigration Statistics has estimated that there are 11.5 million unauthorized immigrant residents in the U.S. (as of 2011). It has been suggested by some that the “illegal” immigrants should now get in the back of the line to “normalize” their status (or that they should have waited in line to enter the country in the first place). Let’s assume that visas were distributed to the 6.8 million unauthorized Mexican immigrants living in the U.S. at the current rate of approximately 25,900 visas per year (this number includes both family-sponsored preferences and employment-based preferences). It would take 263 years for all of the “illegal” immigrants to achieve legal status. If we include the backlog of 1.3 million Mexicans who are now waiting to enter the country, those at the back of the line would be waiting for 313 years to get a visa. These numbers are, of course, absurd, and the current limitations on visa issuance are actually more complicated than this simple math suggests. Yet, these numbers illustrate the foolishness of the idea that our immigration errors could be mended if all immigrants would simply “wait in line.”


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