Unintended Consequences of Immigration Reform

THE FEDERAL SYSTEM MEETS IMMIGRATION REFORM

By Joseph A. Vail & Charles Munnell

Center for Immigration Research, University of Houston

On January 7, 2004, President Bush at last placed immigration reform on the agenda of his administration in the form of proposals to admit guest workers into the

United States for three or six year periods of temporary employment. Those proposals will be the subject of a conference in Houston on April 22, jointly sponsored by the

University of Houston Center for Immigration Research and the Woodrow Wilson Center of Washington, that will focus on the unwanted baggage that immigration reform frequently entails. We believe that those unintended consequences have been further exacerbated by the willingness of Congress to change the manner in which immigration policy is implemented.

Those unintended consequences have reached crisis proportions in recent years.

The 1996 reforms alone resulted in increased border enforcement that led to a dramatic rise in border deaths, human smuggling, and the creation of new crossing areas that accompanied the closing of traditional points of illegal entry; major impediments for citizens and lawful residents who wish to legalize and reunify close family members; increased costs for privatized detention facilities necessitated by a quadrupling in the number of detentions; the growth of undocumented populations inside the United States since many fear that enhanced enforcement will prevent their return to jobs and family; huge increases in crime in Central America because of the mandatory deportation of gang members from Houston, Los Angeles, and elsewhere; social dislocations in Northern

Mexican communities that must deal with large numbers of homeless and unemployed young migrants waiting for an opportunity to cross the border.

To be sure, the root causes of these problems lie deeply embedded in complex social systems and in the global economy. Nonetheless, the willingness of Congress to disturb traditional operations of the courts, states, and federal bureaucracy in what it perceives to be the special circumstances of immigration has contributed enormously to the problem.

Congress is only one source of American law. In the first 150 years of our republic—when immigrants were a much larger percentage of our population than now— immigration policy fell largely within the purview of the states, and in general, their policy objective was to encourage immigration. When Congress did legislate in this area, the motivation was either political, as in the Alien and Sedition Acts of the 1790s, or racial, such as the Chinese Exclusion Acts beginning in the 1880s or the quota system of the 1920s. These forays into the details of immigration policy were not proud moments in our democracy, and they did not endure.

Rather than learning from these mistakes, Congress has in recent years been micro-managing the immigration system while ignoring the largely negative unintended consequences that have been piling up at the door of American society and the American economy. The sea change came with the 1996 reforms that were motivated by the electoral success of Proposition 187 in California.

Before 1996, Immigration Judges possessed a limited discretion in deciding whether long-term lawful permanent residents convicted of even minor crimes would be deported. Today these same crimes are “aggravated felonies” resulting in mandatory removal, i.e. deportation. The term is deceiving—the crime need be neither aggravated nor a felony to fit into this category. A reasonable person might view this result with equanimity as proper punishment for a crime. But what began as punishment often becomes an act of gratuitous cruelty visited upon innocent dependent spouses and children—usually themselves citizens or legal permanent residents—and indeed on the taxpayers and charitable organizations that must now support them.

The Supreme Court has always upheld the power of Congress to preempt state law with respect to immigration, but that power now cuts even more deeply into state authority. In 1996, Congress prohibited states from providing “post secondary education benefits”—including in-state tuition—to most undocumented students, regardless of their graduation from an American high school or class rank, and regardless of the taxes they and their parents have paid while working in the United States. Thousands of young people who have been living here since infancy and have achieved great success in their educational endeavors are now barred from further education. The 1996 legislation also created havoc in public health delivery systems when providers failed to understand the complicated provisions of the law and when eligible residents failed to seek health care for fear of deportation.

This exclusionary mentality likewise impedes the growth of the American economy and its ability to create jobs when Congress imposes arbitrary caps on skilled technical workers. The failure to staff properly organs of government that adjudicate certifications for needed professionals and skilled labor means that a business sponsor must now wait four years or longer and spend thousands of dollars to secure a labor certification. Can anyone doubt that the coming restrictions on intra-company transfers of managerial personnel will hasten the transfer of American corporate decision-making to overseas venues and have a chilling effect on the willingness of international corporations to start operations and create jobs here?

Some may think that the events of September 11 justify just this kind of hard line attitude, but the restrictive legislation of 1996 was already long in place at the time of the attacks and did nothing to prevent the assault on our country. Indeed, pushing ever larger numbers of people into the underground world of the undocumented makes it that much easier for people who wish us ill to hide.

The solutions to these and other immigration problems that will be considered by

Congress after the elections this Fall seem rather simple: trust the organs of government

—judges, civil servants, and the states—to decide immigration matters on a case-by-case basis. It is also a solution that is entirely consistent with our traditional views of state and civil society. It is time for Congress to get it right.

Joseph A. Vail, J.D., is Clinical Professor of Law, Director of the Immigration Clinic of the Law Center, and an Associate of the Center for Immigration Research, all at the

University of Houston. From 1994-1998, he was an Immigration Judge in Houston,

Texas. Charles Munnell, J.D., Ph.D., is an Associate at the Center for Immigration

Research at the University of Houston.