Immigration Reflections

In case we ever get to have a sane conversation about immigration again, journalists, opinion makers, and politicians need to stop talking about “comprehensive immigration reform” as if that represents some kind of plan. All it really means is any kind of substantial change to the existing immigration laws.  The changes needed are left to the imaginations of the listeners, who may envision a system that is more humane or one that is even more punitive, depending on their personal bent. Politicians and pundits talk about  “comprehensive immigration reform” precisely because it is all things to all people, and in the end means nothing in particular. The ubiquitous use of this empty phrase is part of the cowardly approach to discussions of immigration law that have landed us where we are today.

Typically, calls to overhaul U.S. immigration policy don’t put the proposal into the context of previous reforms. Consequently, the right’s insistence that immigration laws have become progressively more permissive, or aren’t being enforced, is left to take root in the public imagination. In fact, the opposite is true. Sweeping changes to immigration laws since the 1980s have all increased restrictions on immigration.  Changes that offered some relief to immigrants were always tweaks that changed the laws in relatively small ways and applied to a particular, usually carefully circumscribed, group of immigrants.

The Immigration Reform and Control Act (IRCA) of 1986 is famous for having provided amnesty for some immigrants who were in the U.S. without papers. However, amnesty was not the point of the law, but rather a late addition to a law that imposed penalties on employers who knowingly hired undocumented immigrants.  The amnesty provision in the law was a concession to the business community, who pleaded for some relief lest the immigration crackdown affect their bottom line. Since businesses, unlike most immigrants, have considerable political clout, the business community successfully lobbied to carve out amnesty provisions so they wouldn’t lose too many of the workers they needed. 

The amnesty certainly didn’t cover all immigrants. Only immigrants who had been in the U.S. since before 1982 and could prove 5 years of continuous residence were eligible to apply, and they had to apply between 1987 and 1988.   There was a program for agricultural workers, SAW, and to qualify for that, applicants had to prove they had worked at least 90 days in perishable crops between May 1, 1985 and May 1, 1986. Anyone who didn’t meet the requirements had no recourse. I volunteered in an immigration law clinic when some amnesty cases were still being processed, and I still remember the disappointment of people who fell slightly outside of the strict time guidelines. Anyone who came later than 1978, for example, wouldn’t be able to prove the 5 years of residence before 1982.  An agricultural worker whose 90 days of work in the fields fell slightly outside the May 1, 1985 to May 1, 1985 time period was also out of luck.

It’s hard to understand why “amnesty” has become such a dirty word in discussions about immigration policy in the U.S.  In order to qualify, immigrants had to pay a fine and submit to background checks, fingerprinting and even medical exams.  They had to demonstrate that they were unlikely to become a “public charge”, dependent on government assistance.  A felony conviction would disqualify them, as would conviction of three or more misdemeanors and any drug offense except a single offense of simple possession of 30 grams or less of marijuana.  They were even required to demonstrate some knowledge of English and U.S. civics, although it’s not clear how this was determined.  These days, when people carry signs saying “Don’t take away my neighbors”, and when we are sad because the nice man who has been here for ten years and sold ice cream at all the local events was swooped up by ICE, it seems like the 1986 amnesty program might be close to what people would like to see. But say the word “amnesty” in a conversation about immigration, and the discussion is over.

It’s important to understand that, in spite of the amnesty provision, IRCA was a tightening, not a loosening, of immigration restrictions.  Amnesty was needed because IRCA was cracking down on the employment of immigrants without papers.  Immigrant workers who could not qualify for amnesty were going to lose their jobs, and would have difficulty finding other work in the U.S. And, like almost every immigration reform measure, IRCA included increased funding for border control and interior immigration enforcement.

The next two overhauls of immigration law, which took place under Bill Clinton, were significantly harsher than IRCA.  Operation Gatekeeper, in 1994, was the beginning of the militarized border we know today. The number of border patrol agents was increased, and they were concentrated in the areas where immigrants tended to cross because the crossing was safer there. The U.S. government built walls, increased detention bed space (sound familiar?) and provided the border patrol with shiny new equipment including four wheel drive vehicles, infrared night scopes, and electronic sensors.  The effect was to force border crossers to attempt the crossing in places where the journey was more likely to be fatal.  Outcry from human rights organizations about the cruelty of these measures went unheeded, and deaths of people attempting a border crossing have risen ever since, spiking in recent years. The year with the most known fatalities was 2022, during the presidency of Joe Biden, the “open borders” president, according to Donald Trump. https://www.iom.int/news/us-mexico-border-worlds-deadliest-migration-land-routehttps://www.iom.int/news/us-mexico-border-worlds-deadliest-migration-land-route

The next revision to immigration law under Clinton, the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, introduced sweeping reforms that affected asylum seekers and lawful permanent residents as well as immigrants without papers.  It provided increased border enforcement yet again, made asylum more difficult to get, speeded up the deportation process, and expanded the kinds of crimes for which immigrants, including green card holders, could be deported. The harsh features of IIRIRA continue to shape the lives of immigrants to the United States, as this report by Human Rights Watch at the 20-year mark attests:  https://www.hrw.org/news/2016/04/25/us-20-years-immigrant-abuses

Another 1996 law, the Personal Responsibility and Workforce Opportunity Reconciliation Act (PRWORA), created tremendous stress in immigrant communities by enacting citizenship requirements for some public benefits. I remember this, because I was working for a citizenship project at the time.  Southeast Asian immigrants, most of whom were here as refugees because they aided the U.S. side during the War in Vietnam, were particularly affected by the loss of disability and old age benefits.  Many came here at older ages because the U.S. was reluctant to admit them even though they could not safely return to their countries because they had helped us during the war. They languished in refugee camps, mostly in Thailand, for years before finally being allowed to resettle in the U.S.  Because they were older, often came with little formal schooling, and sometimes suffered from PTSD due to their war experiences, few of them aspired to become naturalized U.S. citizens.  The English and History and Government requirements of the naturalization process were a daunting bar for them. As long as they were able to qualify for old age and disability benefits as lawful permanent residents, there was no need for them to go through the naturalization process.  So the requirements of PRWORA came as a profound shock. There were even reports of suicides among this group by older people who did not want to become a burden on their families. What is certain is that, seeing no alternative, huge numbers of immigrants who would normally not have applied for naturalization filed their applications.  Citizenship classes, running day and night, were packed, and the naturalization system became severely backlogged, with people waiting up to a year and a half for interviews.  On the upside, people who probably wouldn’t have applied for naturalization worked hard, found that they could master the English and History and Government requirements after all, and became U.S. citizens. This positive result was the unintended consequence of a callous law that was designed primarily to reduce the number of people receiving government assistance, targeting even immigrants legally in the U.S. because they have little political clout to push back.

The Homeland Security Act of 2002 is not considered “immigration reform”, in that it didn’t change any immigration laws.  It did, however, transform immigration enforcement. As a response to 9/11, the new Department of Homeland Security (DHS) was created, and immigration matters were brought under its jurisdiction. The Immigration and Naturalization Service, which had been responsible both for managing immigration benefits and enforcement of immigration laws, was dissolved. Its functions were then split between two new organizations:  United States Citizenship and Immigration Services (USCIS), which manages immigration benefits, and Immigration and Customs Enforcement (ICE) which is concerned only with enforcement. The intent of decoupling the two functions of the old INS was to create an organization with a stronger emphasis on enforcement.  Now we have one agency that concerns itself with legal immigration and another that deals with immigrants only as potential lawbreakers.  Thus, while the Homeland Security Act was not “immigration reform”, it had, intentionally, the effect of making immigration enforcement harsher.

For all the talk of the need for “comprehensive immigration reform” from both the left and right, Donald Trump was able to transform immigration enforcement during this first year of his second term without any changes to immigration laws at all. The only legislation Trump needed to enact his draconian immigration enforcement measures was the big increase to ICE funding under the Big Beautiful Bill. This is partly because ICE is a federal agency, directed by the executive branch, and the president, as head of the executive branch, has considerable leeway when it comes to deciding how any federal agency will operate.  Immigration enforcement under Trump is shocking, and has many features that offend our basic sense of fairness, but a lot of it is not strictly illegal.  Certainly there is a strong element of cruelty and bad faith, but if judges are ordered to vacate the cases of asylum seekers so that ICE can then arrest them when they show up for their hearings, that doesn’t violate the letter of the law, though it might violate its spirit.  They no longer have a case, so they aren’t here legally. They can be deported. It’s profoundly unjust, but not unlawful.

Other outrageous actions the Trump administration has taken are in a grey area so that their legality has to be decided by a court. “Deporting” people to countries where they have never lived isn’t really deportation; it’s human trafficking.  But that isn’t spelled out anywhere. And the practice echoes other shady actions former presidents have gotten away with, like “extraordinary rendition” when the U.S. sent captives to other countries to be tortured. 

Trump’s immigration policies feel like a sudden wallop, but, as I hope I have shown here, we actually got here by degrees.  In 1986, IRCA increased scrutiny of immigrant workers as employers sought to avoid fines for hiring immigrants without papers.  In 1994 militarization of the border and the expansion of detention centers under Operation Gatekeeper.  In 1996, restrictions on asylum seekers, streamlined deportations, and an increase in ways lawful permanent residents could have their status revoked under IIRIRA.  We got where we are today through immigration reform which, if not comprehensive, was at least substantial.  Over the decades, the laws became more punitive, and by their punitive nature, tended to demonize immigrants, marking them as people who needed  to be feared and punished.  And the laws never seem to be draconian enough.

While the laws were gradually becoming harsher, immigration enforcement took place far from the public eye.  Someone collapses in the desert from thirst and exhaustion, leaving a corpse that might never be found. That’s immigration enforcement, but we don’t see it.  A knock on the door at 4:00 or 5:00 in the morning, but only in certain neighborhoods. The occasional big workplace raid that makes the news.  We might read the statistics, but we don’t see the faces.

The second Trump administration has changed all that. They want the public to see immigration enforcement, and revel in it. They make advertisements inviting people to enjoy the cruelty. They fill the streets with ICE agents wielding deadly force. ICE might come to your house to apprehend the people fixing your roof or chase the person delivering your Doordash. Or maybe it’s just that someone you relied on for years has told you they no longer feel safe coming to work; they might even be here legally, but their appearance and their language put them at risk, and they know it. Immigration enforcement has become part of the fabric of everyday life in the U.S.A.

And there are some people cheering it on, undoubtedly. But the growing size of the No Kings demonstrations indicates that many are appalled by it, and want something different.  The question is, what would be better?  Protest slogans, signs that say “immigrants are welcome” and determination to protect the people who live in and contribute to our communities are all important, but if there is ever a chance to create laws that make sure our immigrant communities are protected instead of exploited and targeted, immigrants and their allies will need definite policy proposals.  Whenever someone calls vaguely for “comprehensive immigration reform”, we need to call out loudly, “What kind?”, keeping in mind that for the past 40 years, at least, the trend in immigration reform has been laws that are more punitive, not more fair.