This article is a joint publication of TheNation.com and Foreign Policy In Focus.
Will there be immigration policy reform in 2014?
This question, in one form or another, comes up every time we speak in public these days, most poignantly from anxious families who live in constant fear of being torn apart by detention and deportation. The answer, sadly, is probably not—at least not the kind of reform that would result in solid, forward-looking public policy.
If we really want to create good public policy on immigration, we need to look beyond all the current proposals in Washington and dig deeper into the structural problems with our outdated, isolationist and fundamentally inhumane policy regime around immigrants and immigration. In the short term, we simply must put a stop to the rampant detentions and deportations that are causing so much pain in immigrant communities.
An Elusive Hope
Immigrant families thought they saw a glimmer of hope in 2013. That’s when the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744), a so-called “comprehensive” immigration bill, which would have provided relief to at least some undocumented immigrants.
But even that bill had substantial costs. It involved further militarization of the US-Mexico border, an even more aggressive interior enforcement regime, a new attempt at restricting access to employment by unauthorized immigrants and the biggest give-away to private prisons and border enforcement enterprises in history.
Eventual access to citizenship for undocumented immigrants might seem like an upside to the Senate bill. However, the phrase “path to citizenship” can be misleading, since it implies that immigrants will soon be on their way to becoming citizens. In reality, the steps are long and costly and would exclude large numbers of people. It would take immigrants at least ten years—involving a host of roadblocks and expensive filing fees—to get to the stage where they could even apply for Legal Permanent Residency status. Then, only after three years in LPR status would they have the option of applying for US citizenship.
So the Senate bill could hardly be considered an immigrants’ bill of rights. Nonetheless, even the major concessions it contained failed to move the House of Representatives beyond the partisan jockeying that passes for policymaking in Washington. The Republican leadership in that chamber refused to take up the Senate bill, or even to put forward an alternative piece of legislation.
In the end, immigrant families who had supported the pro-reform effort with marches, vigils, civil disobedience and even hunger strikes watched the year wind down with little to show for their efforts.
Same Old, Same Old
It is hard to see why we should expect much better as we enter the second and final year of the 113th Congress. The makeup of Congress remains largely the same, and the immigration issue still divides the Republican Party. No sooner had the Republicans’ long-awaited Immigration Principles been presented in late January than the yet more anti-immigrant members of the party rigorously denounced them.
The timing of this dispute is consequential. As we now approach primary season, Republican members of Congress facing challenges from Tea Party candidates are unlikely to take a risk on immigration reform—a reality the Republican leadership has acknowledged publicly. The political dilemma extends across party lines. Of the fifteen House races regarded as highly competitive in 2014, eleven of those districts are currently held by Democrats. As the mid-term election nears, Democrats in tight races will have to make political calculations about how much they will be helped or hurt by supporting immigration reform.
Some might think that changing demographics—specifically the growing influence of Latino voters—would sway many politicians to pass legislation sooner rather than later. But the much-touted “Latino Voting Power” is not equally important everywhere. In more than 60 percent of districts currently held by Republicans, Latino voters total less than 10 percent of the electorate. Over the longer term, the Republican Party may have a stronger motivation to act, as it sees the demographic writing on the wall. But in the short term, the party will reap little, if any, benefit from angering its anti-immigrant base.
Across the aisle, while the Democratic Party touts its support for Latinos, it doesn’t actively question the Obama administration’s harsh enforcement policies. Nor is it willing to challenge the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) framework, signed into law by President Clinton in 1996, which set the stage for the draconian US response to undocumented immigration.
The 1996 IIRIRA law ended up being the single most damaging modification to immigration law that the country had seen in many decades. This law reclassified immigration violations from administrative infractions (akin to overstaying a non-immigrant visa) to criminal activity. In a truly draconian move, it made its punitive provisions retroactively applicable for all foreign-born individuals who by 1996 had not yet become naturalized US citizens. For immigrants in deportation proceedings, it stripped away due process rights, thus facilitating a “fast track” to deportation. The law set out three- and ten-year re-entry bars for all foreign nationals who had resided in the United States without authorization for up to 180 days or more than 180 days, respectively, making it harder for families to reunite. In the case of individuals caught residing in the United States after having been deported once, the 1996 law imposed a permanent re-entry bar. The cumulative effect of these harsh provisions has been to keep families forcibly separated.
Despite President Obama’s rhetoric in support of immigrants, his administration has enforced this law in a particularly aggressive way, deporting almost two million people in the past five years. Mexican immigrants feel the greatest impact, as they comprise more than seventy-five percent of the total number of deportees and detainees. The result has been a state of permanent vulnerability for immigrant communities, given that many households include people with a mix of immigration statuses (i.e., some are citizens, some are LPRs and others are in the country without authorization).
The immigration reform proposals so far, including the Senate bill, would not remedy this underlying structural problem. This means that anyone who did not qualify for relief under a potential reform measure could be subject to an even more punitive and harsh enforcement regime.
Why is this situation unlikely to change? Unfortunately, the 1996 provisions, as well as several of the components included in the Senate bill, benefit powerful economic interests. The Corrections Corporation of America and the Geo Group, both of which operate immigration detention centers, have recorded record profits in the last several years. Although elected officials routinely point to the deficit to justify cuts in funding for food stamps and other social programs, they eagerly pay the private prison industry billions of dollars to house up to 34,000 immigrants in detention centers every night. Given the financial and political stakes involved, the status quo—while horrible for immigrant workers and families—is not all that bad for those already benefiting from it.
In fact, it is quite possible that both political parties may conclude that it is in their best interests to keep the status quo. Democrats may well decide that their electoral aims are best served by continuing to pay lip service to immigration reform while biding their time until the next presidential election cycle. Republicans, meanwhile, could appease the most extreme elements of their base by not moving forward with reform, and at the same time not immediately jeopardize any Republican electoral districts they currently hold.
Will the House Take Action?
In 2013, national immigrant-rights advocates focused on pressuring the House to take up some version of the Senate bill. That possibility seems less and less likely as time passes. The most prominent Republican supporters have largely backed away.
A more feasible scenario would be for the House to move forward with an immigration bill of its own in 2014. Such a bill would most likely involve an “incremental” or “limited scope” approach. It might provide relief to a smaller population (possibly young immigrants, agricultural workers and/or highly skilled workers), address the backlogs that stymie family-based petitions and include some form of border control. It would also likely contain additional employment restrictions for unauthorized workers. Given the loud opposition some Republican lawmakers have voiced to offering undocumented immigrants what they call a “special” path to citizenship, their most likely remedy to the status of millions of unauthorized immigrants already in the country would be to offer them work permits.
Were this plan to become viable, the “path to citizenship” question would present a dilemma for backers of immigrant rights. National-level immigrant advocate groups consider a path to citizenship non-negotiable, due to legitimate concerns about permanently leaving a large population without full political rights. Interestingly, however, unauthorized immigrants are more focused on achieving just about any alternative to the daily threat of detention and deportation. In fact, a recent Pew Hispanic Center poll showed that the majority of Hispanics and Asian-Americans consider relief from deportation a more urgent goal than a “path to citizenship.” While the aim of all groups working for justice should be full civil and political rights for all, in the short term the limited political space available for maneuvering may generate a genuine clash of priorities.
Politically speaking, the bottom line is that none of the proposals currently under consideration would provide anything more than a work permit to a good number of unauthorized immigrants in the short-to-medium term. (Although the June 2013 Senate bill does offer the possibility of applying for LPR status—and for those who achieve such a status, the opportunity to apply for citizenship after three years—the road would be long and tortuous, and would end up excluding many.)
The Republican “principles” have other drawbacks. They come with a heavy dose of border militarization and a yet more aggressive tone with respect to criminalizing unauthorized immigrants. But at an even more pragmatic level, they are not likely to come to fruition. Members of the Republican Party began back-pedaling on their own principles within minutes of their release, demonstrating a clear lack of political will on this issue.
The Power of the Pen
Facing the prospect of yet another year of legislative inaction, many activists, particularly those most deeply embedded in immigrant communities, have intensified their call for President Obama to use his executive authority to provide administrative relief to the majority of unauthorized immigrants currently residing in the United States. Administrative relief could provide recipients with a work permit and institute a hold on deportation. If history serves as a guide, such a program would likely take a form similar to the Deferred Action for Childhood Arrivals (DACA) offered to young immigrants in the summer of 2012, or the Temporary Protected Status (TPS) that certain Central American immigrants have received in the past.
Obama has stated on many occasions that he does not believe he has the authority to take such a step. He argues that his hands are tied, and that any relief for undocumented immigrants must be decided by Congress.
However, as in other areas of federal enforcement, the US president does have a great deal of discretion in deciding how to best administer immigration policy. He used this authority to institute DACA—which entailed a hold on deportation orders for unauthorized immigrants who came to the United States as children—as an administration policy. He can indeed use the power of his pen to similarly protect other immigrants who are contributing to their communities and the country.
From the perspective of immigrant communities, who are facing deportation at a rate of more than 1,000 people per day, this option could provide relief on a relatively short time horizon. Beyond that practical advantage, it could also confer some strategic political benefits for pro-immigrant advocates. By taking the immediate threat of deportation off the table for vulnerable families, the president could open up the political space for a broader national conversation on a forward-looking immigration policy, one that could attend to the needs of twenty-first-century labor markets while still reflecting the country’s best values of democracy and inclusion.
Organizing Strategies for True Policy Reform
Even the most optimistic legislative scenario one could imagine unfolding over the next year would fail to address a central problem: US immigration policy is rooted in a narrative that paints immigrants as a criminal threat to order and progress. Given those underlying assumptions, it comes as no surprise that none of the current proposals take the needed steps to roll back the punitive measures in the 1996 IIRIRA law.
Where the federal government has come to an impasse, immigrant organizing must take action. So far, that community has yet to mobilize the political power necessary to achieve the kind of policies that the nation needs and that immigrants deserve. Immigrants and immigrant rights advocates need to take a hard look at how they will build the political power for moving the needle on immigration policies over the next ten years.
Advocates could take a lesson from the experiences of the LGBTQ community’s struggle for marriage equality. As that struggle showed, a one-shot legislative fix is not likely to solve the problem. Rather, as with the LGBTQ efforts, immigrants and their allies need to develop a state-by-state, district-by-district approach to changing perceptions about immigrants, fighting back against draconian anti-immigrant provisions and raising up the good things that are starting to happen at state and local levels. Bipartisan initiatives, such as the new driver’s license laws in Illinois and California, are an excellent example. The Trust Act, passed in California and under consideration in several other states, which separates local law enforcement from immigration enforcement, is another good practice to replicate.
Over the long haul, the goal should be to forge a set of forward-looking immigration policies that would recognize and validate the contributions that immigrants make to our society and facilitate their full economic, social, cultural and civic integration into the fabric of America. Good public policy on immigration should prioritize family unity, which we all know is a building block to strong communities, and eliminate the ridiculously long waits for family visas that encourage unauthorized migration. Sound policy would strengthen humanitarian protections for asylum seekers and refugees, and make those systems agile enough to respond to rapidly changing contexts, such as forced displacement due to conflict and natural disasters linked to climate change.
Business advocates for immigration reform often argue that our immigration policy should be built around the goal of attracting the most highly skilled workers. Or, as Senator Charles Schumer likes to say, the “best and the brightest.” Alliances with the business sector will certainly be needed to push forward reform in the short term. However, we should avoid implying that the current immigrant population (and for that matter, native-born workers) is not all that good or all that bright. The longer-term solution to shortages of qualified workers in the US labor market should come from much greater investment and innovation in education, from early childhood through higher education, including adult education and training programs designed to align our existing labor force with the knowledge and skills that labor markets require.
Finally, immigration policies must be informed by an understanding of the complex drivers of migration, including its roots in globalized labor markets and the economic, social and political dynamics of countries of origin. Migration policy reform that ignores the factors that drive migration will be a temporary fix at best. At worst, it will do a terrible disservice to people whose rights are routinely violated at all points on the migration journey, and reinforce the erroneous (and obscenely costly) assumption that unauthorized migration can be controlled by militarizing our southern border and building ever thicker and taller walls.
Building Political Muscle
We have spent the past ten years leading a capacity-building process within Latin American immigrant communities in the United States. More recently, we have played leading roles facilitating the development of the National Alliance of Latin American and Caribbean Communities, a network of immigrant-led groups whose mission is to promote justice and sustainability in our hemisphere. Our network has realized that we have no choice but to build our membership, invest in leadership capacity and look to our own communities for support and mobilization.
The answer to the question of how soon US immigration policy can truly be fixed will depend on how quickly and effectively organized immigrant communities—and those who wish to make common cause with us—can build the political muscle necessary to ensure that our demands can be neither co-opted nor ignored.