Has the Time Finally Come for Immigration Reform?

Immigration ReformUnited States President Obama, fresh from his victory over Mitt Romney, has made clear his determination to push through legislation that has been characterized as seeking a substantial overhaul of the US immigration system.  This, however, is a mischaracterization of the proposed legislation, which instead of seeking a comprehensive overhaul of US immigration policies, seeks largely to address the problem of undocumented persons, otherwise known as “illegal aliens,” who are already present in the US. Ever since the 1990’s, when the Republic governor of California, Pete Wilson, used illegal immigration as a wedge issue to rally the white base of the Republican Party, other Republican politicians have exploited the same tactic, sometimes to great effect, at least in the short-term.  But just as California Republicans discovered after Wilson’s victory, this tactic, while it might bring electoral victories in the short-term, threatens to consign the national Republican Party to permanent minority status, given the reality of the United States as a multi-racial democracy in which the percentage of non-whites is increasing inexorably.  Last fall’s election may, for that reason, represent the Republican Party’s last stand, so to speak, against illegal immigration.  With President Obama having received 71% of the Hispanic vote, even the Republican Party has come to understand that its politics of immigrant-baiting is a losing strategy.  Given the importance of immigration reform to key constituent of the Democratic coalition, and the recognition by Republicans that they must move away from their fanatic hostility to illegal immigrants, the political stars appear to be in alignment regarding a substantial overhaul of federal policy toward illegal immigrants.

Both political parties appear to have agreed on the following principles:  first, undocumented persons already present in the US should be offered a path to become lawful permanent residents of the US and then citizens;  second, securing the borders to reduce substantially illegal immigration across the US-Mexican border; and, third overhauling the process of legal immigration.  Despite the auspicious circumstances that point to the likelihood that a bill will be passed, there is still a substantial risk that Congress and the President will fail to agree on a bill.  While adopting anti-immigrant rhetoric is clearly destructive of the Republican Party’s brand nationally, it continues to play well in many states that now form the core of the Republican Party’s base, e.g., the states of the Deep South, as well as border states such as Arizona which have adopted draconian laws in an attempt to crack down on undocumented  workers.  Congressional representatives from these states may very well fear a backlash from their voters if they are seen as supporting anything that would normalize the presence of undocumented persons rather than punishing them for entering or remaining in the US unlawfully.

It is a cliché to point out that the paradox that the United States, as a nation of immigrants, should itself suffer periodic bouts of anti-immigrant sentiments, but it is still the case that the US welcomes more legal immigration in absolute terms than any other country in the world.  While the US has been admitting an average of one million permanent residents yearly since 2000, the growth in undocumented aliens over the same period has been equal to, or even surpassed, legal immigration, with estimates of the number of undocumented aliens in the US varying from a low of 7 million to a high of 20 million, although most official estimates have concluded that their number is about 11.5 million.  Approximately 3/4ths of the undocumented aliens are Hispanic, with the vast majority of Hispanic undocumented aliens coming from Mexico.  The greatest concentration of undocumented persons, unsurprisingly, is in states that share a border with Mexico.  Fully a quarter of undocumented persons live in California and 14% live in Texas.  But, even states as far away from the border as Illinois (5%, or 550,000) and Georgia (4%, or 490,000) have significant numbers of undocumented persons.

Perhaps the more salient figure in understanding the nativist backlash against undocumented persons, however, is the rate of growth of the undocumented in a given state.  Thus, while California has fully a quarter of the US’s undocumented persons, the rate of increase in this population in first half of the last decade was only 13%, whereas in Texas for the same period it was 50%, and in Georgia it was 123%. The rapid rate of increase in undocumented persons over the last fifteen years also helps explain why there is hostility to illegal immigration even where the numbers of undocumented persons, in absolute terms, is quite small:  The forty US states which host only a quarter of total population of undocumented persons witnessed a 69% increase in their population.  Another important factor to consider in understanding the backlash against undocumented persons is the proportion of their population in any given state.  Unsurprisingly, when the rate of growth in undocumented persons results in undocumented persons becoming a substantial proportion in absolute terms of a state’s population, the politics surrounding their presence can become toxic.  For example, while New York is estimated to be home to some 540,000, or roughly 5%, of undocumented persons, they make up less than 3% of the overall population of the state, and given that a large portion of those undocumented persons probably live in New York City, where they can blend in with other minority and immigrant groups, it is not surprising that anti-immigrant politics have not found fertile ground in New York.  In Arizona, by contrast, the rate of growth of undocumented persons between 2000-2006 was 52%, with the result that undocumented persons made up almost 8% of the state’s total population.    In Georgia, the rapid increase in the growth of the population of undocumented persons resulted in that population increasing to approximately 5% of the total population of the state.  It should not be surprising, then, that states like Arizona and Georgia were at the forefront of adopting draconian laws targeting the undocumented.

Nor should it be a surprise that the backlash against illegal immigration has spilled over into hostility against immigrants generally.  Even though the overall proportion of foreign-born Americans (10%) is about half of what it reached at the turn of the 20th century, today’s legal immigrants to the United States are largely non-Europeans from the global south.  If we look at the rate of increase of foreign-born Americans at a state-by-state level, however, we discover that several states, which had not traditionally been hosts to immigrant populations, are now receiving substantial numbers of immigrants.  From the period 1990-2000, for example, the number of foreign-born Americans living in North Carolina more than tripled.  Should we be surprised that an anti-immigrant backlash has taken root in regions of the country that have long been among the most insular in light of the rapidly changing demographic characteristics of their communities?

From an objective perspective, even after taking into account the rapid demographic changes that have taken place in American states not accustomed to hosting foreign, non-white populations, it is hard to give credence to the nativist fear that immigration, legal or illegal, threatens their identity.  But we should not discount the effect of well-known cognitive biases such as the availability heuristic which makes it extremely unlikely that objective analysis will succeed in dissipating what are irrational fears.  Accordingly, if a bill is going to be passed, it will have to assuage the large numbers of Americans who are suspicious of immigration generally, and illegal immigration particularly.

It would be a mistake, moreover, to believe that suspicion of immigration is limited to the Republican Party.  A 1995 bipartisan Congressional commission, headed up by Barbara Jordan, an African-American congresswoman from the south, issued a report recommending a drastic reduction in legal immigration as well as increasing border security to prevent illegal immigration.  To achieve this goal, the Jordan Commission recommended elimination of the visa lottery entirely, and drastically reducing the right of immigrants to sponsor family members, like siblings.  Because of the deep suspicion, if not hostility, toward immigration and immigrants, particularly, in the current troubled economic circumstances, we should not expect that any reform, if adopted, will result in an immediate upgrade in the status of illegal immigrants.  Indeed, if press reports about the President’s proposed reforms are true, illegal immigrants, regardless of how long they have been in the United States, would have to wait a minimum of eight years before they will become eligible to receive permanent residency.  The plan proposed by the Republican Senator Marco Rubio (FL), by contrast, might require illegal immigrants to wait even longer, perhaps decades, before they would become eligible to receive permanent residency.  In the interim, however, their status would be normalized by creating a new visa, which the Rubio Plan calls a “nonimmigrant visa,” that would allow undocumented immigrants to continue living, and most importantly, working, in the United States until they receive, if ever, their green card.

It is unlikely, however, that these will be the only draconian aspect of these “reforms.” No bill will be passed unless it also includes some or all of the following: (1) substantial measures designed to reduce the flow of illegal immigrants across the US-Mexico border; (2) the creation of an electronic database of all workers in the US so that employers can easily determine the immigration status of their workers, combined with severe penalties for employers who hire undocumented workers; and, (3) the creation of an electronic system to monitor the movements of all non-immigrants who are lawfully present in the United States to ensure that they do not overstay their visa. In brief, then, the outlines of any plausible immigration bill will not provide an immediate path forward to naturalization for illegal immigrants, but will impose an immediate cost in terms of a substantial increase in the right of the federal government to monitor  both citizens and non-citizens, in the name of ensuring that the workplace is free of undocumented workers.

If any plausible immigration bill will contain these features, one can credibly ask whether the cost is worth it.  One relatively unique feature of US immigration policy over the years was its resistance to granting special, short-term work visas.  Such visas were used by western European states after World War II when reconstruction work outstripped the supply of local labor, leading them to import what was ostensibly “temporary” guest labor from Turkey and North Africa.  The presence of large numbers of foreign workers who were labelled as “guests” rather than permanent residents on a path toward citizenship meant that their host states, as a practical matter, could ignore the problems of such communities of workers on the theory that they were transient and would be returning to their homes  sooner or later.  This failure to treat guest workers as permanent members of society is in large part responsible for many of the problems facing those immigrants and their descendants in today’s Europe.  By generally linking the right to work with a visa status that offers a path to citizenship, however, US policy has been more successful than their European counterparts in integrating immigrants.  The proposal to force illegal immigrants to wait years, perhaps decades, before they become eligible for citizenship, however, is dangerously close to creating a special class of immigrants who are tolerated largely for their role in the economy, and risks creating a permanent underclass, as has happened in Europe with respect to Turkish and North African guest workers and their descendants.

If this intermediate status, i.e., neither permanent resident nor unlawful, but authorized to work, is accepted with regard to the undocumented persons presently in the United States, there is no reason to think that the US will not simply take the next logical step and adopt a guest worker program across the board. Employers will be able to exploit such program to important low-skill workers from the global south to perform low-wage, low-prestige jobs that US citizens and permanent residents typically shun.  Such a development would be undermining traditional US commitments to equality, not only because guest workers would almost certainly enjoy less rights in the work place than employees who are citizens or permanent residents, but also because legal access to a large pool of unskilled employees would inevitably reduce the legal protection enjoyed by permanent residents and citizens alike: to the extent that employers have the ability to replace permanent residents and citizens with guest workers, permanent residents and citizens, by dint of the laws of a competitive market, will inevitably be forced to forgo, effectively if not de jure, many of the rights they formally enjoy under employment law.  Even if the prospect of a permanent class of “guest workers” did not have the effect of undermining the substantive rights of US citizens and permanent residents in the employment market, it would almost certainly exacerbate already existing trends in social inequality: US employers would potentially be able to tap a much larger pool of available labor to fill jobs, and given the eagerness with which the high-tech sector is pressuring the government to reduce obstacles to importing skilled foreign labor, the so-called STEM workers (Science, Technology, Engineering and Mathematics), the effects of these immigration policies would not be limited to low-skilled employees.  It would also put downward pressure on many high-skilled workers, and would certainly decrease the incentive to increase domestic investments to produce more STEM workers domestically.

We also should not underestimate the privacy costs that will be incurred as a consequence of the various proposals which are on the table.  It is hard to imagine an immigration bill passing in these circumstances that will not impose draconian sanctions on employers who hire undocumented persons, and in order to make that law effective, the federal government will have to create an electronic database which includes the names of all persons in the United States legally entitled to work.  Presumably, the creation of this database will also entail, eventually, the issuance of some form of an electronic ID card that identifies its bearer as eligible for work.  Since 9/11, it has become passé to lament the rise of the surveillance state and our corresponding loss of privacy.  And while it is one thing to allow greater government surveillance in an effort (even if misguided and exaggerated) to prevent mass-casualties, why should we tolerate a substantial expansion in the government’s surveillance powers simply in order to insure that the workplace is free of undocumented persons?  The proposed response seems completely disproportionate to the threat such persons pose to the integrity of the labor market.  Indeed, would workers themselves agree to submit to this heightened surveillance in exchange for assurances that all employees were legally eligible to work?  It seems unlikely.

The fundamental problem in our immigration policy is that it is viewed as a trade-off between identity and economics.  For many Americans, immigration represents an intangible cost experienced as a loss in their personal sense of identity, at times exemplified in crude demands to “take back our country.”  For other Americans, immigration is viewed largely from an economic lens: business being generally supportive of increased immigration, and labor generally resisting it.  The 1995 Jordan Commission report cited both concerns in its recommendation to reduce immigration by citing fears that by accepting too many immigrants, the United States risked the creation of immigrant subcultures that would resist assimilation into mainstream US culture, and that immigration should be limited to relatively highly-skilled workers, with a corresponding decrease in family-based immigration policies, in order to maximize the economic benefits accruing to the US from immigration while minimizing its impact on lower-skilled American workers.

What we instead need is an immigration policy that is grounded, even if not wholly determined by, human rights.  To the extent we value human rights as a universal commitment, the thumb on the scale, so to speak, should be in favor of increased, rather than reduced, immigration.  Under current immigration policy, only individuals who can demonstrate actual persecution, or that they have a well-founded fear of persecution, are eligible for political asylum.  More generally, however, it has proven to be very difficult for developing countries to establish “good institutions,” i.e., institutions that are consistent with good governance and human rights norms.  Admission of immigrants is one of the easiest ways to extend the benefits of good governance and human rights to large numbers of fellow human beings that would otherwise be deprived of these goods.  In short, we need a radical shift in how we talk about immigration from one that seeks to justify it on the grounds that its benefits exceeds its costs, both tangible or intangible– to one that understands immigration as the expression of a generous spirit inviting others to share in our common achievements out of a sense of humanistic solidarity, not self-interest.

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    Mohammad Fadel

    Mohammad Fadel is an Associate Professor at the Faculty of Law at the University of Toronto and a Columnist at The Islamic Monthly

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