Enforcement, Then Amnesty, on Immigration
Grand-bargain immigration proposals tend to get the order backwards.


Mark Krikorian

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).