Enforcement, Then Amnesty, on Immigration

by Mark Krikorian
Grand-bargain immigration proposals tend to get the order backwards.

President Obama’s State of the Union address all but ignored immigration, so as not to further complicate Speaker Boehner’s efforts to get the House GOP to pass an amnesty and increases in immigration. In furtherance of those efforts, House Republicans will discuss immigration this afternoon at their annual retreat on Maryland’s Eastern Shore. The session will be held behind closed doors and can be expected to be contentious, given the growing resistance among Republican lawmakers to handing a major political victory to a president wounded by the Obamacare fiasco. But we already know the basic outline of the immigration principles to be put forth by the party leadership, and they’re what anyone might have guessed: enhanced border security and interior enforcement, systems for verifying workers and tracking legal entrants, visa-program reforms, and a path to legal status for current illegal immigrants.

The Schumer-Rubio amnesty bill passed in June by the Senate would bring about all these things, at least nominally. House members’ protestations that they reject the Senate bill mean nothing if the House simply proposes to pass all the Senate bill’s constituent parts in separately numbered measures. This is what President Obama and other amnesty supporters mean when they express support for the House’s piecemeal or “step by step” approach.

The release of their principles for reform clearly suggests that Boehner, Cantor, and the rest of the Republican leadership are going to try to trick their members and supporters into permitting passage of something like the Senate bill. With Obama as chief executive and Harry Reid as Senate majority leader, the only defensible reaction from conservatives is “No”: no bill that empowers Obama to amnesty illegals, however strong the enforcement promises might be, since they will be ignored. But while “No” is the necessary short-term answer, conservatives also need a plan to manage the transition from our current unsettled politics of immigration to a more stable and sustainable situation.

The basic outline would be this: enforcement first, without preconditions or trade-offs, but targeted mainly at the prevention of new illegal immigration. Once that’s fully in place, we can move on to the grand bargain: amnesty for remaining long-established, non-violent illegals in exchange for an end to mass legal immigration.

Proponents of amnesty say that the demand for “enforcement first” is a ruse, and that immigration hawks keep moving the goalposts as a way of avoiding amnesty. There are no doubt some amnesty opponents who fit that description, but the broad accusation ignores the fact that basic, decades-old demands regarding enforcement, such as for the implementation of employment-verification and exit-tracking systems, still have not been satisfied. The public has good reason not to believe promises of future enforcement, having heard them all before.

The Schumer-Rubio attempt to reduce this mistrust by amnestying illegals up front but making their upgrade to full green-card status contingent on future enforcement benchmarks is a fraud. None of the amnestied illegals, however “provisional” their status is said to be, would ever revert to illegal status, whether or not the enforcement goals were met. (In the past, groups who have been granted temporary status have routinely had it extended, and there will be tremendous political pressure to treat the current illegal population similarly.) And once that population has legal status, immigration hawks lose the only leverage they have: No pro-amnesty official, Republican or Democrat, who now professes his undying support for future enforcement will have any incentive to follow through at that point.

Immigration-reform skeptics trusted lawmakers in 1986 and got burned: Amnesty was granted, but enforcement did not happen. This time, they’re going to have to trust us. Once the first part of this new deal is in place (the necessary enforcement tools), there will still be significant political pressure to follow through with the second part (amnesty plus immigration curbs). In this it differs from the amnesty-before-enforcement approach of 1986, which is also the basis of the Senate bill.

At the same time, any enforcement arrangement that throws millions of illegal aliens out of work all at once (as certain enforcement tools would do) would be unacceptable to the public, not to mention un-Burkean. For that reason, the enforcement efforts that must precede any discussion of amnesty should focus chiefly on preventing, and punishing, new illegal settlement. This would still induce significant numbers of illegal immigrants, mainly more recent arrivals with fewer attachments here, to return voluntarily to their country of origin, by, for example, making it more difficult for them to seek new jobs.

That doesn’t mean that no illegals already here would be deported or encouraged to leave. In fact, because of the Secure Communities program (which checks the fingerprints of arrestees against Department of Homeland Security databases, as well as those of the FBI), Immigration and Customs Enforcement is aware of a much larger number of illegal-alien criminals than ever before, which means deportations should be increasing. Instead, overall “removals” dropped 10 percent last year, and genuine deportations (of illegals in the interior of the country rather than those caught at the border) have declined 40 percent since 2009. Right now, because of policies euphemistically called “prosecutorial discretion,” ICE is releasing more illegal-alien criminals than it is deporting. To restore public confidence that the government is serious about enforcement, ICE agents should be given discretion to do their job, and local police and sheriffs ought to be allowed to help them, especially in cases that affect public safety. As it stands now, directives from ICE management instruct agents not to take action against illegal immigrants in many cases, even when they have been apprehended by local law enforcement for other reasons.

Nonetheless, the procedures that most need to be put in place would focus mainly on new illegals. For instance, making E-Verify a universal part of the hiring process — to make it hard for illegal aliens to get jobs — would not affect illegal aliens already in jobs, since it would be used only for new hires (although it’s true that established illegals who leave their current jobs would have trouble finding new ones).

The same focus on new illegals would apply in visa-tracking. Since 1996, Congress on eight separate occasions has mandated the creation of an electronic system to track the entry and exit of foreign visitors, and we still don’t have one. Such a system is essential for immigration control, since between one-third and one-half of the 12 million current illegal aliens entered the country legally — as tourists, students, business travelers, etc. — but never left. Granting any sort of legal status to yesterday’s visa overstayers before ensuring that new visitors can’t overstay is absurd.

The executive must also show a good-faith commitment to muscular, unapologetic enforcement of immigration laws going forward. Our experience since the 1986 amnesty shows that this is necessary regardless of the party in power. Among such confidence-building measures would be criminal prosecution of every new border infiltrator and every new visa overstayer. Border prosecutions are already under way in certain limited areas, but with apprehensions down 70 percent from 2005, it is now practical to adopt a zero-tolerance strategy along the entire border. Congress would have to make overstaying a visa a criminal offense like border-jumping (it’s now simply a civil infraction), but in both cases the goal is not to stuff the prisons with illegal aliens but rather to send the message that this time, we mean business.

We haven’t yet mentioned building more border fencing or hiring more Border Patrol agents. Both of those changes are probably called for — only about 2 percent of the border has double fencing, and the Border Patrol, though bigger than it used to be, has to keep an eye on 8,000 miles of frontier with fewer officers than the New York Police Department. But the border is better controlled nowadays, largely because beefing up border security has been politically easier than other enforcement priorities.

Even though they focus on preventing new illegal settlement, these measures would result in significant attrition of the current illegal population. The Pew Research Center’s Hispanic Trends Project has estimated that from 2005 to 2010, 1.4 million Mexicans (or “Mexicans,” since 20 percent were U.S.-born children) left the United States. Some of this migration was due to the recession, some to grudging increases in enforcement late in the Bush administration, and some to the many other reasons a person might return home from abroad — retirement, injury, homesickness, the desire to protect children from the gang culture of the barrio. Unfortunately, during that same period 1.4 million new Mexicans entered the U.S. (most of them illegally), resulting in net migration of roughly zero. The slightly better economy and Obama’s gutting of enforcement have caused the number of illegal immigrants to start increasing again, but the recent churn in the illegal population suggests that even measures devoted mainly to preventing new immigration can result in a shrinkage of the existing illegal population. For example, one study found that implementation of Arizona’s 2007 E-Verify law caused the illegal working-age population in the state to fall by 17 percent in one year.

The enforcement measures we have discussed are not sufficient. While their full implementation would establish a new approach to immigration management, additional changes would need to be included in any future immigration grand bargain in order to identify and remove future illegal immigrants, as well as those who are already here but don’t qualify for amnesty. Such additional measures would include retroactive application of E-Verify to non-amnestied illegals, and institutionalized cooperation between ICE, IRS, and the Social Security Administration to locate and apprehend identity thieves, including new offices within the SSA and the IRS specifically devoted to identifying illegal aliens for ICE.

Finally, any future deal would have to include an end to the anachronistic practice of automatically conferring citizenship on children born to foreign tourists, foreign students, and illegal aliens. Automatic citizenship at birth should be restricted to children of citizens or permanent residents (with, perhaps, a sort of statute of limitations as in Australia, where a child born to illegals can become a citizen if he spends his entire first ten years in the country).

All this having been fully implemented and any legal challenges overcome, what’s the next step? The enforcement-first or attrition-through-enforcement approach lays the groundwork for a legislative bargain that would, one hopes, establish a new equilibrium. Such a package would include, in addition to the last pieces of enforcement mentioned above, amnesty for established illegals in exchange for a more moderate level of legal immigration in the future.

Amnesty is, of course, the most controversial part of any immigration plan. It rewards liars and scofflaws. It mocks those who obeyed the law. It permits illegal immigrants to keep positions that could be filled by Americans looking for full-time work. It creates large future costs for taxpayers. It can serve as a catalyst for future illegal and chain immigration. It is likely to be plagued by significant fraud.

Nevertheless, once the enforcement agenda outlined above has been completed, which is likely to take several years, amnesty would be a risk worth taking. And the combination of a new enforcement paradigm plus reduced legal immigration would address many (though not all) of the potential problems with it.

First, a word about terminology. In the immigration context, an amnesty is anything that permits illegal aliens to remain legally. In other words, legalization is amnesty. Politicians and activists have obfuscated this point for years in an attempt to deceive voters. In 2000, the National Council of La Raza did focus-group testing in preparation for the anticipated Bush amnesty push and advised the Mexican and American governments to avoid the word “amnesty” at all costs because people disliked it so much. Any politician arguing that his legalization plan du jour is not really an amnesty simply cannot be trusted. If we’re going to let some illegal aliens stay, let us call it amnesty.

Who should benefit from such an amnesty? The bulk should be people without criminal convictions who have U.S.-born children or U.S.-citizen or legal-resident spouses, plus those who came before age ten and have grown up here. Recent estimates suggest that as of three years ago, there were 4.4 million illegal aliens with U.S.-born children, and perhaps 600,000 with citizen or legal-resident spouses (but without U.S.-born children). Add to that adult illegals who came here before age ten, who might number another 500,000, plus the illegal-alien spouses and minor children of these various groups, and you’re at perhaps 6 million people, or half the current illegal population of about 12 million (though the total will have shrunk somewhat before the amnesty owing to deportation, voluntary departure, or death).

In addition, it would be prudent, given their long residence, to amnesty those who’ve lived here for more than a decade but don’t qualify under other categories. DHS estimated that as of three years ago, about 10 million of the 12 million illegal aliens had entered before 2004. Even a relatively lenient amnesty, however, would exclude a significant number of people for criminality, gang membership, and other reasons; the Congressional Budget Office has estimated that 30 percent of the illegal population would not receive amnesty under the terms of the Schumer-Rubio bill for these reasons.

It would be fair to estimate, then, that out of an illegal population shrunk by attrition to 10 million people, some 6 or 7 million would qualify for amnesty.

The form of the amnesty should be relatively straightforward. Fees should be modest; requirements should be few and clear, but scrupulously enforced (by an immigration bureaucracy that is given sufficient time and resources to do the job properly). Amnesty beneficiaries should get green cards — i.e., become regular legal immigrants who can, if they qualify, become citizens (though if the experience of the 1986 amnesty is any indication, a large share will choose not to pursue citizenship).

Requirements in other amnesty proposals, including the Schumer-Rubio bill, for large fines or permanent non-citizen status are punitive window dressing, designed exclusively to help get legislation passed. The fines will be waived, the permanent non-citizen status upgraded to full green cards after a few years. The real goal should in any case not be punishment but confession and absolution. All amnesty beneficiaries should have to participate in public ceremonies where they read aloud a confession (preferably in their native tongue) along the lines of: “I acknowledge that I showed disrespect to America’s laws and have no right to remain in the United States. But having put down roots here, I humbly ask the American people to forgive my trespasses and accept me as a legal resident of their country. If accepted, I will strive to be worthy of this generosity, so help me God.” Such a secular sacrament of confession should close the book on their illegal status.

The corollary to amnestying certain illegal aliens is that all those who do not qualify must be removed. No amnesty applicant should be notified by mail as to the disposition of his case; rather, he must appear in person, and if rejected, immediately be taken into custody and sent home. Any encounter with the authorities, no matter how minor, that reveals the illegal status of one of the much-reduced number of remaining (or new) illegals must result in deportation. Amnesty can be justified only as a transition to meticulous and aggressive enforcement.

The other half of the bargain is reduced future immigration. This is the precise opposite of current proposals. When the House GOP leadership talks of “reforms to visa programs,” what it means is increases in “temporary” worker programs for farmers, tech companies, and other special interests. The Schumer-Rubio bill would double legal immigration and nearly double admissions of guest workers.

Such increases are essentially pork-barrel measures; businesses get cheap, controllable labor, and ethnic-chauvinist groups get a never-ending supply of people through family immigration that they can claim to speak for. But the principled argument offered for these huge increases in legal immigration is that they’re the only way to end illegal immigration. Advocates claim that there’s nothing that can be done to stop foreigners from moving here, so by letting in everyone who wants to come, we — by definition — no longer have to worry about illegal immigration. As New York University professor Jorge Castañeda put it to me during a recent television appearance, we must not only amnesty past immigrants but future ones as well.

If you accept the premise that immigration control is impossible, then numerical or category limits are indeed irrelevant. But if you accept that immigration can be controlled, then it’s necessary to decide whom and how many to admit. We currently take in 1.1 million legal immigrants each year, the large majority simply because they have relatives here. This number should be reduced, for several reasons.

Most immediately, cuts to legal immigration are called for to offset the amnesty. Cutting immigration in half, to roughly 500,000 a year, would mean it would take twelve years to offset the legalization of 6 million illegal aliens. Offsets like this have been used in immigration law before; the unskilled-worker category was reduced in 1997 for as long as it took to offset an amnesty for various Central American illegal aliens.

But a simple offset concedes that the existing immigration level of 1 million–plus per year is acceptable. On the contrary, high levels of legal immigration in themselves create high levels of illegal immigration. The two figures have risen together, and for immigrants from the same countries, because legal immigration creates the networks and connections that make illegal immigration possible. What’s more, in our system a huge number of relatives of immigrants qualify on paper to immigrate but are put on waiting lists because of numerical caps in various immigration categories; many of them just come anyway and wait for their number to come up. This is especially important in the wake of an amnesty. It’s bad enough to have rewarded illegal aliens, but to reward their relatives with legal-immigration slots is galling and indefensible.

The more fundamental problem with mass legal immigration, however, is that it’s an anachronism, something we’ve outgrown. As a young nation settling the land and later industrializing, we could successfully make use of a large number of new workers from abroad, though even in the past immigration created great social turmoil. But we are today a very different, more mature, nation. Our post-industrial, knowledge-based economy offers fewer opportunities for advancement to legal newcomers with little education, at the same time that our own less-educated are under great stress. A modern welfare state means that less-skilled legal workers, who necessarily earn low wages, create huge costs to taxpayers. Modern transportation and communications, combined with a post-national American elite, mean that immigrants — even skilled immigrants — have less need to assimilate and join the American people emotionally rather than just on paper. In short, mass immigration is incompatible with contemporary society.

Many of the concerns people express regarding illegal immigration are actually about immigration as a whole, most of which is legal. Most illegal immigrants work on the books for more than minimum wage — so job competition faced by less-skilled Americans has less to do with legal status and more to do with simple numbers. Likewise with welfare; illegals collect benefits on behalf of their U.S.-born children but are ineligible themselves, whereas legal immigrants use a much wider array of taxpayer-funded services. The same dynamic is true with the increase in poverty, in economic inequality, in the growth in the uninsured — legal immigration has a much larger impact than illegal.

A lower level of overall immigration would tighten the labor market, ease pressure on welfare and the health and education systems, and promote assimilation — goals that are all important in themselves, but especially important to the absorption of the amnestied illegal population. In addition to the benefits to the country, curbing immigration would help the political prospects of conservatism, given the mountain of data showing that immigrants are overwhelmingly big-government liberals.

To summarize, in exchange for amnesty, the following legal-immigration reforms — which together would cut legal immigration by about one-half — are called for: Family immigration should be limited to the spouses and unmarried minor children of U.S. citizens; skilled immigration should be limited to the top talent in the world; humanitarian immigration — refugees and asylum seekers — should be limited to the truly desperate who have nowhere else to go, as is not the case with the bulk of the current flow; the visa lottery should be ended; and guest-worker programs should be eliminated — they not only exploit workers and undercut Americans, but are vehicles of illegal immigration, as the Congressional Budget Office report on the Senate bill acknowledged.

If House Republicans want to offer a choice rather than an echo, they’d do well to consider the alternative to the Senate plan sketched here: enforcement first, followed by a combination of amnesty and greatly reduced immigration.

— Mark Krikorian is the executive director of the Center for Immigration Studies. This article was adapted from one that appeared in the February 10 issue of National Review.