Focus on Law (American Bar Association) Spring 1999, Volume XIV Number 2
Immigration: A Dialogue on Policy, Law,
and Values Congress,
The Courts, and Immigration
EDITORS: We’ve talked quite a bit about the impact of broad cultural, economic, and political forces on immigration. What kind of impact, if any, has "law" had -- particularly, the 1996 "Illegal Immigration Reform and Immigrant Responsibility Act" and the 1986 Act authorizing employer sanctions? Has this Congressional legislation reduced the "flow" of undocumented/illegal immigrants?
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)
CHRISTINA DECONCINI: The 1996 law has undermined some of the most basic principles of due process and fairness. I take exception to the comment that we should be concerned about the denial of due process particularly for legal immigrants. Elie Wiesel’s comment that "no person is illegal" represents the belief that we are all humans and should be treated equally. With that as my premise, it is appalling to say a person without legal status should be denied due process or judicial review, while affirming that someone with status can and should be afforded these basics. That is not to say that the undocumented should be allowed to stay here or to enter, but the process is fundamentally crucial to the integrity of our justice system and what we as a nation represent. The 1996 law obliterates many of those protections both for legal and undocumented immigrants.
Retroactive application of laws is unconstitutional. Allowing low level INS officers to make unilateral and final decisions about who may be a refugee denies the potential refugee a right to a hearing and judicial review in a case where the stakes are high and the decision could have life or death consequences. The elimination of judicial review provisions throughout the 1996 law is an attack on the independence of the judiciary, separation of powers, due process, habeas corpus, and the Constitution. Congress should not be authorized to totally limit judicial review of decisions affecting an individual’s liberty, such as deportation. The role of the courts to review has historically protected individuals from unbridled government power by holding the government accountable for its decisions. This is an attempt by Congress to rewrite the Constitution. Such backdoor amendments to the Constitution should not be allowed.
PETER SCHUCK: The 1996 law is hard to assess. Clearly, its harshness has created lots of horror cases and injustices, and the INS should again have the discretion to deal sensibly with those cases. We do not yet know enough about how the summary exclusion provisions are affecting asylum claims. As for the expanded definition of aggravated felonies and sanctions against them, it is one thing to say that retroactivity may be unfair and unwise; I agree with that. But I have little sympathy for aliens who have committed crimes since 1996; they were on notice and have only themselves to blame. It is a disservice to the vast majority of aliens and citizens who, although perhaps just as disadvantaged as these offenders, struggle to stay out of trouble. Post-1996 criminal aliens should be subject to swift removal, although the INS should have discretion to deal with the truly exceptional cases. The judicial review restrictions, however, are too harsh and probably unconstitutional if strictly applied.
KAREN MUSALO: In many respects the 1996 amendments to the immigration act are draconian, and go so much further than necessary to accomplish stated congressional objectives. One of the most troubling aspects is the drastic cutback on due process protections by elimination of judicial review in many areas. In addition, I think that the amendments to the asylum and restriction on removal statutes are unwise and inconsistent with Refugee Convention norms. Persons who face persecution and would otherwise be eligible for protection can be barred for what may amount to minor criminal convictions.
More than one member of Congress, including immigration committee chair Spencer Abraham, has commented that they didn’t intend some of the harsh impacts of various aspects of the 1996 amendments.
SUSAN MARTIN: Immigration laws matter, even if the effects are often unintended. It’s too soon to know all of the effects, but I’m convinced that Congress overreached and put in place a lot of very bad precedent. The most troubling parts of the new laws are (1) the assault on due process rights, particularly for legal immigrants; and (2) the erosion in eligibility for public safety net programs, again particularly for legal immigrants.
I’m also troubled that Congress enacted several backdoor measures to change legal immigration rather than make some of the harder choices on priorities for admission. I’ve been doing some research on the effects of three IIRIRA provisions: (1) the requirements that all family members, regardless of their own earning ability, must have a legally-binding affidavit that the person here petitioning for their admission will support them until they become citizens or work for 10 years, (2) that those signing the affidavits must demonstrate that their income exceeds 125% of poverty level, and (3) that applicants for admission who were illegally in the U.S. for more than six months be barred from reentering for three years (if the illegal presence was more than one year, they are barred for ten years).
Discussions with U.S. consular officers indicate that these provisions are having serious effects on the entry of spouses and minor children. In some consulates, a majority of the applicants are being turned down, generally because of the public charge requirement but, in a growing caseload, because of the bars on reentry. What frustrates many consular officers is that many of the applicants, particularly spouses, are likely to work in the U.S. but their earnings capability cannot be taken into account (it could be under the old law). In a catch-22, if the applicant shows that she is already working in the U.S. and contributing to the family income, she may be subject to the bars on reentry. Given the long waiting time for a visa for spouses and minor children, it’s not surprising that many family members do come illegally to the U.S. While I don’t condone illegal migration, I don’t think our laws should give immigrants only bad choices: be separated for years or enter illegally.
MARK KRIKORIAN: We must consider not only the IIRIRA, but also the welfare reform law. When taken together, the laws emphasize that our policy is pro-immigration, but anti-immigrant. The modest legal immigration cuts in the original legislation were stripped out, but longtime non-citizens were denied welfare eligibility. The categories and priorities of our ‘Rube Goldberg’ legal immigration system were defended as sacrosanct, but no attempt was made to resolve the issue left over from the 1986 IRCA amnesty of separated (or illegal) wives and children of amnesty recipients. The Border Patrol was (belatedly) bolstered, but only the most tentative move toward a verification system was taken. Any move toward more tamper-resistant identification was resisted as the first step toward fascism, while the expanded definition of deportable crimes was made retroactive.
PETER SCHUCK: As for the welfare restrictions, this is a complicated issue. That law too has undoubtedly been applied unjustly or unwisely in some cases, but its overall effects on the prospects of low-income people and their children may turn out to be one of the most important and beneficial social policies of our time. We should have some humility about our predictions of disaster. So far, Congress has restored most of the benefits, and the large immigrant-receiving states have not engaged in the "race to the bottom" that the opponents predicted. We should consider the extraordinary benefits to low-income people and their children of avoiding welfare dependency and building job skills. Americans simply will not support immigration that leads to welfare dependency for the non-elderly, non-disabled; nor should we.
The 1986 Immigration Reform Control Act (IRCA)
SUSAN MARTIN: The 1986 Act served two major purposes. First, by enacting employer sanctions, Congress acknowledged that U.S. demand for unauthorized migrants was an important cause of illegal migration. Even though irca’s formulation of employer sanctions was extremely faulty (largely because there’s no way to verify work authorization with any certainty) and the enforcement has been very spotty, I still believe that the concept behind employer sanctions is important: that employers bear a large measure of the responsibility for illegal migration and should be held accountable for their actions. We can’t put all of the blame on the migrants themselves. Nor can we assume that border enforcement will solve the problem: more than 40% of those who remain in illegal status for an extended period entered with a visa; they did not cross the U.S.-Mexico border. Only effective worksite enforcement, which should include wage and hour and other labor standards enforcement, will reduce the job magnet for illegal migration.
KAREN MUSALO: I agree with Susan that the concept behind the 1986 employer sanctions was important -- i.e., that employers also bear responsibility for illegal immigration. However, I think that the discussion of employer sanctions brings us back to earlier themes -- specifically, does the work of undocumented workers have prejudicial effects overall, or are they really meeting an unmet need, and having a beneficial impact on the economy? If the latter is true, that necessarily raises questions about the appropriate scope and implementation of employer sanctions.
SUSAN MARTIN: The second important focus of irca was legalization. That program was far more effective than employer sanctions, in that millions of illegal aliens obtained legal status. The unintended consequences on our legal immigration system were considerable. Many of those now receiving green cards are the legalized aliens’ immediate families, who did not themselves qualify.
DAVID REIMERS: It seems to me that the evidence about the economic impact of immigration indicates that low wage Americans are disadvantaged by unskilled immigrants, legal or illegal. IRCA was one attempt to deal with the issue, but it clearly has had limited impact. As I see it, all of the attempts to halt or limit illegal immigration have problems. We cannot really stop illegal immigration without huge expense and ID cards and the like. After all, about half of the illegals come in as visitors and overstay, so that more enforcement at the border cannot deal with these immigrants. At bottom IRCA tried to eliminate undocumented immigration somewhat cheaply.
A piece of history: When the border patrol was formed in 1924, some of the Chinese who would have normally tried illegal entry from Mexico went to Canada instead and crossed at St. Albans, Vermont, where friendly officials looked the other way or where there were no officials.
PETER SCHUCK: The effect of the 1986 law is very difficult to gauge because, as David points out, we cannot know how much additional illegal migration there would be absent employer sanctions. Furthermore, other parts of the law, especially legalization, encouraged new illegal migration, which is why there are now more undocumented aliens in the U.S. than before IRCA.