Tag: illegal immigration

Interpreting Obama’s Immigration Executive Order

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. 

E-Verify Strikes Again: Worcester Wreath Co. Edition

Whenever the government magnanimously “offers” its assistance, all Americans should be skeptical. Recent confirmation of this fact has come from Harrington, Maine, where the federal government’s helpful assistance—via the employment verification system, E-Verify—has cost one small business thousands in fines.

Worcester Wreath Co. hires around 500 seasonal employees annually to help fill orders for handcrafted holiday wreaths and centerpieces. The majority of the wreaths are sold, while others go to the company’s Wreaths Across America program, which places free wreaths on headstones at Arlington National Cemetery. In short, this is an American company that supplies holiday goods and helps to honor deceased American veterans at no cost to the taxpayer.

Worcester Wreath, however, made the mistake of voluntarily using the Fed’s E-Verify system. E-Verify is an electronic employment eligibility verification system run by the federal government that is intended to weed unauthorized immigrants out of the labor force by allowing employers to check their eligibility against a government database. The employer enters the job applicant’s Social Security number and information into E-Verify which then checks it against a government database. 

Any potential issues are flagged with a tentative non-confirmation (TNC). Employers and employees have an opportunity to appeal the TNC, but a failed appeal (or failure to appeal) will result in a final non-confirmation (FNC) and the applicant being ruled as not work-authorized for legal employment in the United States.

Some 101 of Worcester Wreath’s seasonal employees were found by E-Verify to have employment-authorization issues. Six were retained by the company despite the issues and another six were fired and then rehired at a later date.

For the sin of employing 12 willing workers with statuses marked as questionable (not clear from the article whether a TNC or an FNC was issued) by the voluntarily used, notoriously unreliable, and largely ineffective E-Verify, the company was fined $25,000 ($2,083.33 per worker).

Worchester Wreath’s participation in E-Verify was voluntary but the fines were heavy. Fines like these on businesses of all sizes who employ seasonal workers will only get worse if E-Verify becomes mandatory. Instead of punishing businesses who supply free holiday decorations to the world’s most famous veterans’ cemetery, the Feds should attack the root problem and fix our legal immigration system.  

Scott Platton assisted in the writing of this piece.

Removing the 3/10 Year Bars Is Not Amnesty

It’s no secret that the Senate’s proposed legalization for some unauthorized immigrants was a deal breaker in 2013. Detractors labelled such a legalization “amnesty” even though it is anything but that – and that label has stuck. That, at minimum, some unauthorized immigrants become legalized is economically and ethically imperative, so it’s time to consider less-than-comprehensive, keyhole solutions that will fix at least some of the problems with our immigration system.

One such solution, which even many of those opposed to immigration reform have endorsed, is a small legislative reform to the 3/10 year bars that will allow some unauthorized immigrants to depart and apply for reentry under the legal system without special treatment. This reform would avoid the so-called amnesty objection to immigration reform.

 

Removing the Bars

The 3/10 year bars require any immigrant who stays in the United States illegally for more than six months but less than one year may not leave, reenter, or apply for a green card for three years. Any immigrant who illegally stays for more than a year may not leave, reenter, or apply for a green card for 10 years. Any immigrant who violates it triggers a twenty-year ban from reentering the United States for any reason. That’s a problem because almost all applicants for a green card or visa have to visit a U.S. embassy or consulate abroad to apply which, in the case of unauthorized immigrants, requires them to leave the Untied States thus triggering the bars. The 3/10 year bars prevent any unauthorized immigrant from using the legal immigration system. 

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