Tag: illegal immigration

Do Amnesties Increase Unlawful Immigration?

One popular argument against a legalization, or amnesty, of unlawful immigrants is that it will merely incentivize future unlawful immigration.  Unlawful immigrants will be more likely to break immigration laws because they will eventually be legalized anyway, so why bother to attempt to enter legally (ignoring the fact that almost none of them could have entered legally)?  This claim is taken at face value because the stock of unlawful immigration eventually increased in the decades after the 1986 Immigration Reform and Control Act (IRCA) that amnestied roughly 2.7 million.

However, that doesn’t prove that IRCA was responsible for the increase in the stock of unlawful immigrants.  The stock of unlawful immigrants may have been increasing at a steady rate prior to the amnesty and that rate may have just continued after the amnesty.  Measuring the flows of unlawful immigrants is the best way to gauge whether the 1986 Reagan amnesty incentivized further unlawful immigration.  If the flows increased after IRCA, then the amnesty likely incentivized more unlawful immigration.  The number of annual apprehensions of unlawful immigrants on the Southwest border is a good way to approximate for these cross-border flows.

It’s perfectly reasonable to think that an amnesty of unlawful immigrants could increase their numbers in the future.  There are at least two ways this could occur.  The first is through knowledge of an imminent amnesty.  If foreigners thought Congress was about to grant legal status to large numbers of unlawful immigrants, then some of those foreigners may rush the border on the chance that they would be included.  Legislators were aware of this problem, which was why IRCA did not apply to unlawful immigrants who entered on January 1st 1982 or after.  IRCA had been debated for years before passage and Congress did not want to grant amnesty to unlawful immigrants who entered merely because they heard of the amnesty.  To prevent such a rush, subsequent immigration reform bills have all had a cutoff date for legalization prior to Congressional debate on the matter. 

Even with the cutoff date, some recent unlawful immigrants would still be able to legalize due to fraud or administrative oversights.  An unlawful immigrant who rushes the border to take advantage of an imminent amnesty still has a greater chance of being legalized than he did before, so legalization might be the marginal benefit that convinces him to try.  This theory of a rush of unlawful immigrants prior to an imminent amnesty is not controversial.

Potential Path to a Green Card in Executive Action

In a little-noticed memo on November 20th, Department of Homeland Security Secretary Jeh Johnson ordered Customs and Border Protection and Citizenship and Immigration Services to allow unlawful immigrants who are granted advance parole to depart the United States and reenter legally.  This memo is based on a decision rendered in a 2012 Board of Immigration Appeals case called Matter of Arrabally. Allowing the immigrant to legally leave and reenter on advance parole means he or she can apply for a green card from inside of the United States–if he or she qualifies. 

Advance parole can be granted to recipients of DACA (deferred action for childhood arrivals) and DAPA (deferred action for parental accountability) if they travel abroad for humanitarian, employment, or educational purposes, which are broadly defined

Leaving the United States under advance parole means that the departure doesn’t legally count, so the 3/10 year bars are not triggered, and the unlawful immigrant can apply for a green card once they return to the United States through 8 USC §1255 if he or she is immediately related to a U.S. citizen.  Reentering the United States under advance parole means that the prior illegal entry and/or presence are wiped out in the eyes of the law.  Crucially, individuals who present themselves for inspection and are either admitted or paroled by an immigration officer can apply for their green card from inside of the United States and wait here while their application is being considered.

In such a case, unlawful immigrants who receive deferred action and who are the spouses of American citizens will be able to leave the United States on advance parole and reenter legally, allowing them to apply for a green card once they return.  Unlawful immigrants who are the parents of adult U.S. citizen children will be able to do the same.  Unlawful immigrants who are the parents of minor U.S. citizen children and are paroled back into the country will just have to wait until those children are 21 years of age and then they can be sponsored for a green card.

According to New York based immigration attorney Matthew Kolken, “President Obama’s policy change has the potential to provide a bridge to a green card for what could be millions of undocumented immigrants with close family ties to the United States.” 

Interpreting Obama’s Immigration Executive Action

President Obama will soon announce an executive action to defer the deportations of somewhere between 1 million and 4.5 million unauthorized immigrants. Those whose deportations are deferred will be eligible for a temporary work permit through a 1987 provision in the Code of Federal Regulations.

Those who support immigration reform note that any executive action by the President will poison the well for reform, making it impossible for Congress to move piecemeal bills to the President’s desk.  Last year, one of the most effective arguments against immigration reform was that President Obama would not enforce the law as written, a prediction that seems to be borne out with this executive action.  The Wall Street Journal editorial board said it the best:

If he does issue an executive order, we hope Republicans don’t fall for his political trap.  He and many Democrats want Republicans to appear to be anti-immigrant.  They want the GOP to dance to the Steve King-Jeff Sessions blow-a-gasket caucus.

To poison the well of reform there actually had to be water in the well to begin with. I’m not convinced there was.  If there was a serious Congressional effort to reform immigration in the immediate future, then the President’s actions here would totally derail it.

Legalization or Amnesty for Unlawful Immigrants – An American Tradition

Legalization of unlawful immigrants, commonly referred to as amnesty, has been hyperbolically described as an affront to U.S. national sovereignty, the rule of law, and even our Constitutional Republic.  However, the U.S. government has a long history of successfully legalizing violators of immigration laws.

In 1929, the year the Immigration Act of 1924 went in effect, Congress passed an amnesty to allow for the voluntary registration of all unlawful immigrants who wished to legalize their unrecorded entry.  Beginning a familiar pattern, Congress combined this 1929 amnesty with severe legal penalties on unauthorized immigrants who entered the United States without inspection after the amnesty was complete.[i]

As part of the reforms of the Bracero Program’s guest worker visa in the late 1940s and early 1950s, many unauthorized Mexican migrants were legalized and granted a visa on the spot.  According to Professor Kitty Calavita, 55,000 unlawful Mexican immigrants were legalized as Bracero workers in 1947 through a process derogatively referred to as “drying out” unlawful migrant workers.[ii] Under the auspices of an increase in immigration enforcement and the expansion of the Bracero guest worker visa, other unlawful Mexican migrants were driven down to the Mexican border and made to take one step across the border and immediately reenter as a legal Bracero worker, a process referred to as “a walk around statute.”[iii]

In 1958, the cutoff date for the 1929 amnesty was advanced to June 28, 1940 – meaning that unlawful immigrants who entered before that later date could legalize.  The Immigration Act of 1965 again advanced the cut off date for the 1929 amnesty to June 30, 1948.[iv]

Year

 Legalizations of Unauthorized Immigrants

1959

4,321

1960

4,773

1961

5,037

1962

3,399

1963

2,680

1964

2,585

1965

2,064

1966

2,595

1967

3,195

1968

2,148

1969

1,565

1970

1,520

1971

1,190

1972

1,653

1973

1,254

1974

875

1975

556

1976

796

1977

546

1978

423

1979

262

1980

428

1981

241

Total

44,106

Source: Vernon M. Briggs Jr., Immigration Policy and the American Labor Force, The Johns Hopkins University Press, Baltimore, 1984, p. 66.

The Immigration Reform and Control (IRCA) Act in 1986 – the so-called Reagan Amnesty – legalized 2.7 million unauthorized immigrants who had been residing in the United States since 1982.  After IRCA, the Section 245(i) legalization passed in 1994 and was then extended again in 1997.  The 1997 Nicaraguan Adjustment and Central American Relief (NACARA) Act also legalized close to one million unlawful immigrants from Central America.  The Haitian Refugee Immigration Fairness (HRIFA) Act legalized around 125,000 unauthorized immigrants from Haiti in 1998.  The Legal Immigration Family Equity (LIFE) Act of 2000 reinstated the rolling 245(i) legalization provision. 

So long as there are immigration restrictions on the movement of peaceful and healthy people, and Americans want to continue to hire and sell products to immigrants, some will always come whether the immigration laws allow it or not.  To address the unlawful immigrant population, Congress periodically passes a legalization or amnesty bill, but the number of unlawful immigrants rises again because lawful immigration has not been sufficiently liberalized – despite vast increases in enforcement.

Past amnesties and legalizations of unauthorized immigrants didn’t destroy U.S. national sovereignty (the United States is still a sovereign country), the rule of law (in tatters for many reasons, including efforts to enforce our arbitrary and capricious immigration laws), or our Constitutional Republic.  It’s hard to see why another one passed by Congress and signed by the President would produce those grave harms.


[i] Vernon M. Briggs Jr., Immigration Policy and the American Labor Force, The Johns Hopkins University Press, Baltimore, 1984, p. 47.

[ii] Deborah Cohen, Braceros: Migrant Citizens and Transnational Subject in the Postwar United States and Mexico, University of North Carolina Press, 2011, p. 209, Kitty Calavita, Inside the State: The Bracero Program, Immigration, and the INS, Quid Pro Books, New Orleans, Louisiana, 2010, pp. 25-26, 34.

[iii] Kitty Calavita, Inside the State: The Bracero Program, Immigration, and the INS, Quid Pro Books, New Orleans, Louisiana, 2010, p. 43.

[iv] Vernon M. Briggs Jr., Immigration Policy and the American Labor Force, The Johns Hopkins University Press, Baltimore, 1984, p. 66.

Executive Action on Immigration

President Obama will likely take some executive action this fall to reduce deportations or legalize some unauthorized immigrants. He recently ordered Jeh Johnson, Secretary of Homeland Security, to delay the release of a review of current deportation policy until after the summer. 

A White House official revealed the reason for the delay: “[President Obama] believes there’s a window for the House to get immigration reform done this summer, and he asked the secretary to continue working on his review until that window has passed.”

President Obama has taken a much more conciliatory tone toward Republicans in his push for immigration reform. His 2014 State of the Union address asked Republicans to support reform without blaming them for obstructing it. The White House official’s statement that Obama will delay executive action until after the summer is consistent with that bipartisan tone. It also allows President Obama to appear to be working with Republicans on reform while leaving his policy options open prior to the 2014 elections. 

There is no doubt that President Obama’s attitude is better than blaming Republicans for all immigration problems and is more likely to motivate House Republicans to pass some kind of reform, but the mere mention of executive action only deepens the distrust that many Republicans have for the president – not to mention the many legal issues it raises.  Republicans are justifiably concerned that President Obama may not enforce any immigration law that is passed or may change it with executive actions. 

The Obama administration has consistently piled on more complex rules and regulations for the H-2A, H-2B, and H-1B work visas (with some exceptions that will actually liberalize the system) that make the legal migration system difficult to use.  A new guest worker visa program created by Congress could be similarly stymied by rules and regulations promulgated by executive agencies. Some Republicans also complain about the president’s deportation policy.  These are real concerns that are not mitigated by the president’s threats.   

Many of President Obama’s adjustments to immigration enforcement have been disappointing and haven’t legalized as many unlawful immigrants as they could have. The president’s record on enforcing our harsh immigration laws is strict in contrast to his rhetoric and the stated goals of his executive actions.

However, only legislation can create a guest worker visa program and expand legal immigration enough to channel future immigrants into the legal market. Whatever executive actions the president decides to take, they will deal with problems that have emerged due to our restrictive immigration system that makes it virtually impossible for low and mid-skilled workers to immigrate. Expanding the scale and scope of immigration while diminishing the intensive regulatory oversight role of the federal government is a long-term solution in contrast to an executive action that is temporary at worst and at best seeds legal uncertainty.

Is Obama Still the Deporter-In-Chief?

This is a difficult question to answer.  As Matt Graham at the Bipartisan Policy Center has pointed out, the rate of internal removals as a percentage of all Immigration and Customs Enforcement (ICE) removals has declined during the Obama Presidency.  But this, in and of itself, doesn’t tell us much about the long run trends of internal enforcement.  We need data from the past that we can compare President Obama’s immigration enforcement record to.  We only have the rate of internal deportations for the last year of the Bush Administration.  Cato has filed a FOIA to find out if the government kept statistics on internal versus border removals prior to 2008 but I’ve heard the data wasn’t kept.

Let’s assume that 63.6 percent of all ICE removals were internal from 2001 to 2007.  I chose 63.6 percent because that was ICE’s internal removal rates in the year 2008 – the first year when that statistic is available.  That means that the number of internal removals under the Bush administration was about 1.25 million.  From 2009-2013, the Obama administration’s has removed just over 1 million from the interior of the United States.  Of course, Bush had three more years to deport unauthorized immigrants.  660,000 people were removed from the interior of the United States during the first five years of the Bush administration.

Source: Department of Homeland Security, BPC, Author’s Calculations.

President Bush removed an average of about 250,000 unauthorized immigrants a year, an average of 160,000 of them annually were interior removals.  President Obama has removed an average of 390,000 unauthorized immigrants a year, an average of 200,000 of them annually were interior removals.

Source: Department of Homeland Security, BPS, Author’s Calculations.

As I’ve written before, the best way to measure the intensity of immigration enforcement is to look at the percentage of the unauthorized immigrant population deported in each year.

Source: Department of Homeland Security, BPC, Pew, Author’s Calculations.

I focus on the internal removal figures as a percentage of the estimated unauthorized immigrant population and assume that the internal removal rate of 63.6 percent prevailed throughout the Bush administration.  If that interior enforcement rate was steady, then the Bush administration deported an average of 1.43 percent of the interior unauthorized immigrant population every year of his presidency.  President Obama’s administration has deported an average of 1.75 percent of the interior unauthorized immigrant population every year of his presidency.  Even when focusing on interior removals, President Obama is still out-deporting President Bush - so far.

The Obama interior removal statistics certainly show a downward trend – especially in 2012 and 2013.  However, the Obama administration has not gutted or radically reduced internal immigration enforcement no matter how you dice the numbers.

Guest Worker Visas Can Halt Illegal Immigration

There is a trade off between the number of lower skilled guest worker visas and the number of unauthorized immigrants.  More lower skilled guest workers means fewer unauthorized immigrants.  Fewer guest workers mean more unauthorized immigrants.  We just have to look back to the Bracero program to see this relationship.   

The number of removals and returns is an approximation of the stock of the unauthorized immigrant population and flows.  Many, but not all, of those removed or returned during this time period were funneled into guest worker visas.  Beginning with the adoption of the Bracero program and the H2 visa in the early 1950s, there was a flurry of removals and returns whereby many migrants were funneled into the guest worker visa programs.  After that, my thesis is that the large numbers of work visas decreased the number of apprehensions by shrinking the pool of unauthorized immigrants and channeling future ones into the legal system.  After Bracero was ended in the mid-1960s, the number of removals and returns began a steady increase along with an increase in the stock and flow of unauthorized immigrants deprived of their previous lawful means of entry and work.

Ending the lower skilled guest worker visa programs preceded the modern increase in unauthorized immigration. 

Source: Department of Homeland Security and Immigration and Naturalization Service annual reports.

The more low skilled guest workers there are, the fewer unauthorized immigrants there are to deport. 

One legal worker on a visa seems to be worth more than one unauthorized immigrant worker – meaning a pretty favorable trade off in numbers for those concerned about the numbers of immigrants.  In 1954, 1 guest worker visa replaced 3.4 unauthorized immigrants, meaning that one legal worker seemed to be equal to more than three illegal workers.  If an important goal of a lower skilled guest worker visa is to eliminate the American economic demand for unauthorized immigrants, relatively few guest worker visas can replace a much larger unauthorized immigrant population.

Increases in Border Patrol and border enforcement are also unnecessary to get this result.  By allowing unauthorized immigrants to get the work visas, by not punishing them or employers for coming forward, and by making work visas available to those who want to enter, almost all future and current unauthorized immigrants can be funneled into the legal market without a large increase in enforcement.  This was the policy followed in the 1950s and it appears to have worked:   

Sources: Department of Homeland Security and Immigration and Naturalization Service annual reports.

This chart zooms in on the 1942 through 1965 time period when the Bracero guest worker visa was in effect:

Sources: Department of Homeland Security and Immigration and Naturalization Service annual reports.

This is not to say that Bracero was a perfect program and that it should be replicated today.  There were a lot of problems with it, namely that migrants were constrained in changing employers, migrants were limited to working only in agriculture, and the work visa was annual – all issues that should be fixed in any new lower skilled guest worker visa adopted.  A lower skilled guest worker visa is indispensable to vastly reduce or even halt unauthorized immigration. 

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