Immigration Politics: From Amnesty to Backlash

(An excerpt from new Center for International Policy report, Policy on the Edge: Problems with Border Security and New Directions for Border Control.)

Border fence under construction in West Texas/Tom Barry

In the 1980s and 1990s, U.S. immigration enforcement began to harden as the local and national backlash against immigration gathered new strength and immigration law became explicitly linked to national anxiety about illegal drugs and crime.

The failure of the Immigration Reform and Control Act of 1986 kicked off the hardening of U.S. immigration policy. The legislation created a path to legalization and citizenship for 2.7 million unauthorized immigrants living in the United States,⁹ and authorized major increases in the Border Patrol staffing and the enforcement of sanctions against employers who hired immigrants without proper papers.

However, once the amnesty became law, liberal immigration reformers backed away from their commitment to the stipulated employer sanctions. Furthermore, the amnesty precipitated new illegal and legal immigration flows, as millions of relatives and neighbors sought to join the newly legalized residents. An exodus from Central America—roiled by escalating repression, counterinsurgency wars and U.S. intervention—created a new northbound stream of immigrants. The failure of this reform angered immigration restrictionists and hardened their resolve to oppose any future immigration reform.

In the 1990s, support for immigration policies continued to decline as conservative Republicans linked immigration law to national anxiety about illegal drugs and crime. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) embodied these trends. With its newly restrictive grounds for political asylum and wider grounds for the indefinite detention of immigrants, AEDPA broke ground for the USA Patriot Act of 2001.

This hardening of immigration law set the stage for the coming immigrant crackdown, including the emergence of campaigns against “criminal aliens,” the linking of immigrants and terrorist threats, the rising deportation of immigrants (both legal and illegal) for drug-law violations, and the more limited access of immigrants to social services.

Heightened Border Patrol operations on the southwestern border in the mid-1990s paralleled the anti-immigration measures being instituted in Washington. In 1994 the Border Patrol formulated its first national strategy, “Prevention through Deterrence,” in response to rising concern, particularly in the border region, about seemingly unconstrained illegal border crossings. The Border Patrol’s “Operation Hold the Line” in El Paso and “Operation Gatekeeper” in the San Diego sector, as well as the erection of border fences and installation of remote surveillance systems, presaged the hardening of the border as well as the next decade’s national embrace of the border security framework.

Border security & immigrant crackdown merge

The immigration crackdown, which began in earnest in 2005, was foreshadowed by the anti-immigrant measures of the Patriot Act and the widespread imprisonment of immigrants from Muslim nations. Signs of the escalating crackdown were also found in ICE’s “Endgame” plan of 2003, in which its Office of Detention and Removal stated that it intended to “remove all removable aliens” over the next ten years.

By mid-decade, the rash of new border security and related immigration enforcement initiatives had little or nothing to do with securing the homeland against terrorists. The Border Patrol’s “Prevention through Deterrence” strategy took on new import as a national security strategy to deter homeland security threats.

A new array of CBP and ICE programs—including the 670-mile “secure fence,” the planned $8-billion SBInet or “virtual fence,” Operation Streamline and the expanded Criminal Alien Program—constituted the “Secure Border Initiative” (SBI), which was launched in late 2005 by DHS Secretary Michael Chertoff.  In 2005, DHS described SBI as “a comprehensive multiyear plan to secure America’s borders and reduce illegal migration.”

DHS insisted that the new initiative would be based on a “risk-based decision-making process.” Yet, in practice, DHS’s new border control and immigration enforcement programs were not focused on demonstrable homeland security threats. Both the increased border fortifications and the intensified enforcement under the SBI umbrella continued the Border Patrol practice of targeting illegal immigration and marijuana smuggling, which were shoehorned into the new homeland security rubric of “dangerous people and goods.”

Chertoff was a veteran federal prosecutor who had been Attorney General John Ashcroft’s chief deputy in charge of Patriot Act prosecutions.¹⁵ In Chertoff’s view, the deterrence logic of the criminal justice system—namely criminalization and imprisonment—could also be applied to immigration enforcement at the border.

Through Operation Streamline, launched in 2005, the Border Patrol began turning over illegal border crossers to the federal courts for prosecution and criminal incarceration. After serving their criminal consequences for immigration violations, the DOJ’s U.S. Marshals Service (USMS) and Bureau of Prisons then transfer the immigrants back to DHS. In turn, ICE directs the immigration consequences of illegal entry, including lengthy incarceration in ICE’s own network of mostly privately run detention centers and eventual deportation.

This new practice of criminalizing immigration violations has vastly expanded the number of immigrants that DHS calls “criminal aliens.” As conceived by DHS Secretary Chertoff, the new determination to charge and imprison illegal border crossers was part of a revamped, stepped-up deterrent strategy, which the Obama administration has continued.

The Obama administration must end the practice of promising border security as a condition of immigration reform.

The “enforcement first” and “border security first” practices of our current immigration policy have been ineffective and inhumane. It is time to put these failed strategies behind us. The shameful practice of holding out the promise of legalization and immigration law reform while cracking down on the nation’s large immigrant population in the name of enforcing the rule of law should stop.

As a strategy for advancing immigration reform, increasing border control operations and infrastructure has proved intrinsically flawed. That should not be surprising given that the foundation for this strategy is the “enforcement-first” plan advanced since 2006 by conservatives and immigration restrictionists. The enforcement-first strategy quickly snowballed into bipartisan calls for other preconditions for immigration reform, including the prioritization of deporting “criminal aliens,” the institutionalization of the “rule of law” framework for immigration policy and “border security first.” This new insistence on securing the border prior to passing immigration reform came not only from Republicans like Sen. John McCain (R-AZ) but also from many Democrats, including leading players in immigration reform like Sen. Charles Schumer (D-NY).²⁶

The grand bargain strategy has shown itself to be politically manipulative as well as an utter failure. Worse still, the strategy has recklessly bestowed a mantel of moral legitimacy on border security buildups and immigration crackdowns. 

Instead of moving the nation closer to immigration reform, the “secure the border” commitment has resulted in untold human tragedy, while giving rise to ill-considered and hugely wasteful initiatives. This strategy of reform has enabled a surge in politically driven alarmism along the border.

It is time to take the grand bargain off the table and to offer a new vision of border control and immigration reform.

President Obama and congressional leaders should set forth a new vision of immigration reform. 

As an administrative reform, the Obama administration could, and should, end enforcement that targets immigrants who have integrated into U.S. society and workforce. The administration should make a commitment to regularize their immigration status and work with Congress to ensure immigration reform.

The new framework for immigration must also include a transparent process for issuing visas for new immigrants based primarily on the verified demand for their skilled and unskilled labor. This review process should be safeguarded from the lobbying pressure of business interests and should ensure that new immigration will not result in a pattern of job losses for current residents. ICE should focus its attention on enforcing visa expiration dates, apprehending human smugglers and traffickers and coordinating intelligence operations with other agencies and governments

Also essential is the enforcement of workplace safety and wage regulations, thereby precluding the now-routine exploitation of an immigrant workforce and mitigating the downward pressure on national working conditions and wages.

To boost their credibility and effectiveness, liberal immigration reformers must come to the bargaining table once the crackdown has been halted and be ready to accept widespread employment verification (to dissuade new illegal immigrant flows), stricter limits on family reunification (especially for illegal immigrants who are granted a change of immigration status) and the feasibility of temporary worker programs. Political refugees facing grave human rights abuses should be granted priority status in any assessment of the number of immigrants the nation can successfully absorb. ◊