Illegal Immigration
It has been pointed out many times that the United States is a nation of immigrations, with only the Native American population having been here long enough to lay claim to be native to the land. Immigration has been a contentious issue for some time, long before the current level of concern related to a fear of terrorism and to a concern about economic impact. Economic impact was long raised as something to be considered, but racial, and ethnic attitudes also affected levels of all immigration. As the immigration system has evolved and responded to new situations, so have laws concerning illegal immigration and the nature of proposals offered to solve the problem of illegal immigration.
Between 1820 and 1910, at least 38 million Europeans arrived in the United States, the result of a number of forces including the Napoleonic Wars; political disturbances in Germany, Austria-Hungary, Greece, and Poland; the Potato Famine in Ireland; religious persecutions of Protestants, Catholics, and Jews in Czarist Russia and other parts of Europe; the Industrial Revolution that created thousands of unemployed workers and peasants; and a rigid social structure that supported a closed aristocracy and upper class. Millions of people left their homeland in search of a better life. The United States at the time was expanding into the West and Southwest, all the way to the Pacific Coast. The Louisiana Purchase had more than doubled the size of the country, and the concept of Manifest Destiny pushed the boundary all the way to the other sea. The Industrial Revolution was then shaping life in the United States, and factories, timberlands, and manufacturing plants all needed workers. The masses from Europe were thus more or less welcomed as cheap labor, and the immigrants in turn found cheaper land and higher pay than they had known in Europe (Lewis, 1993, p. 1/3).
This immigration and subsequent waves from Asia did not take place without tensions. The Gold Rush in California after 1849 attracted people from all over America and from China, with many Chinese workers coming before the Civil War to provide cheap labor for the building of the railroads:
By 1882, there were approximately 300,000 low-wage Chinese laborers in America. Because they were taking jobs from U.S. citizens, because they were different in color, in culture, in habits and in looks, these new workers were targeted by Americans for antagonism and racial hatred. As a result, the Chinese Exclusion Act was passed in 1882, completely banning non-citizen Chinese from immigrating to the United States. This law remained in effect until 1943 (Lewis, 1993, p. 1/4).
In 1917, an Immigration Act was passed to restrict the entry of immigrants, especially illiterate laborers from central and eastern Europe, and this marked the beginning of a great change in American immigration policy. After World War I, America faced hard times so that the immigrant became the scapegoat for hard times. A tight national-origins policy was instituted in 1921 as a temporary measure, and total immigration was limited to about 350,000 per year, with immigration from each country in a given year limited to 3% of all nationals from the country who were living in the United States during the 1910 census. The system was made permanent with the National Origins Act of 1924, now based on the ethnic composition of the United States as reflected in the 1920 census, with entry limited to 2% of the number of people living in the U.S. The law thus reduced the total number of immigrants each year to 150,000. The object of the law was also to favor certain kinds of immigrants and to keep out others. More immigrants were permitted from western Europe and fewer from southern and eastern Europe, and Asians were totally excluded, primarily to prohibit Chinese, Japanese, and Filipinos from acquiring U.S. citizenship. These restrictions would be relaxed after World War II. A new category of naturalized Americans was admitted, the thousands of alien soldiers who had earned citizenship living with the U.S. Armed Forces overseas during the war. The War Brides Act of 1945 facilitated the reunion of 118,000 alien spouses and children with members of the U.S. armed forces who had fought and married overseas. The Displaced Persons Act of 1948 allowed 400,000 refugees to be admitted in the following two years, most from Poland, Romania, Hungary, the Baltic area, the Ukraine, and Yugoslavia. When the Iron Curtain was dropped on eastern Europe, the Refugee Relief Act of 1953 allowed 214,000 refugees from the Communist countries, and the Freedom Fighters from Hungary were paroled into the United States after the failure of their revolution in 1956 (Lewis, 1993, pp. 1/4-1/5).
With the Immigration and Nationality Act of 1952, all the immigration laws were brought together into one to form the basic immigration law as continued until today. The racially-based National Origin Quota, however, was not abolished until 1965. There were now two general ways of becoming an immigrant: by family relationship and by the employment needs of the United States. A system of preference was established giving priority to some groups over others. Skilled workers were given higher priority than unskilled workers after 1965. The immigration law was modified again in 1976 and 1978. The separate quotas for the eastern and western hemispheres were abolished, and a worldwide quota of 290,000 was established, with each country given a yearly quota of 20,000, except Hong Kong, which as a colony of Great Britain was given 5,000. With the end of the Vietnam War, there was a flow of refugees from the Indochinese peninsula. In 1980, Congress passed the Refugee Act which removed preferential treatment of refugees from Communist countries and defined a refugee as someone who fears persecution in his or her home country because of religious or political beliefs, race, national origin, or ethnic identity. The Immigration Reform and Control Act of 1986, more commonly known as the Amnesty Law, resulted in an increase in the number of alien immigrants by legalizing the status of those already in the United States. The Immigration Act of 1990 was the most comprehensive overhaul of immigration law since 1965. It provided for immigration of 700,000 annually in 1992, 1993, and 1994, and 675,000 in 1995. It was intended to attract immigrants with education, skills, or money to enhance the economic life of the country, thus making it easier for scientists, engineers, inventors, and other highly skilled professionals to enter the United States. Citizens of nations with little immigration for the past five years are allocated 40,000 immigrant visas each year. The spouses and children of illegal immigrants granted amnesty under the 1986 law are also entitled to become residents, and special consideration is given to Irish people, Hong Kong residents, certain groups from Lebanon, Tibetan nationals, and Filipino World War II veterans The refugee policy was expanded to include people fleeing war or natural disasters, such as earthquakes (DeMoss, 1991, 35-36). However, as applied, the refugee policy has been highly controversial, as with the exclusion of Haitian refugees with claims that they are only economic and not political refugees (Foreign Policy, 1994, p. 197).
Brent Ashabranner cites the case of Roberto, who lives in a Los Angeles boardinghouse and who leaves his home each morning to walk to a street where mostly Hispanic men in work clothes gather on the sidewalk and hope for work. Most are illegal immigrants, as is Roberto, and they wait for a labor recruiter to come by and pick them for a day’s work on a construction job. Hiring illegal aliens is against the law, but some employers take the risk because these workers do the job for less pay and expect no job benefits. Roberto, like many illegal aliens, lacks much education and could not find work in his native Mexico. He knew he would never be approved as a legal immigrant and so crossed the border illegally. He works two or three times a week and barely makes enough to live on, but that is still more than he could make in Mexico (Ashabranner, 1996, pp. 3-4).
Legal immigration creates problems of its own which are only exacerbated by the influence of illegal immigration. George J. Borjas notes that the typical new immigrant is not a highly skilled worker and that most immigrants now entering the United States are less skilled workers who have little hope of achieving economic parity with native workers. The typical immigrant who arrived in the U.S. In 1970 had 11.1 years of schooling, compared with 11.5 for the native worker. By 1990, the typical immigrant had 11.9 years of schooling compared to 13.2 for native workers. The wage differential between immigrants and native workers rose as well so that the most recent arrivals in 1970 earned 16.6% less than natives, while by 1990 the wage disadvantage stood at 31.7%. One result has been the increasing participation of immigrants in welfare programs, and today immigrants collect a disproportionate share of cash benefits. In 1970, 6.8% of U.S. households were headed by an immigrant and received 6.7% of all cash benefits; by 1990, 8.4% of households were headed by an immigrant and received 13.1% of all cash benefits (Borjas, 1995, pp. 44-46).
Immigrants in different categories (both legal and illegal) have been eligible to receive certain welfare benefits. Legal immigrants are eligible after three to five years of residence, though asylum applicants and refugees are eligible immediately. One problem is that immigrants both legal and illegal displace native workers — for every 100 unskilled immigrants who are working, 25 or more unskilled American-born workers are displaced from jobs. The costs of public assistance for the 2.1 million displaced American workers stands at $11.9 billion. Based on the 1990 census, the poverty rate for immigrants is 42.8% higher than for native-born Americans, and on average immigrant households receive 44.2% more public assistance dollars than native households. In terms of cost, legal immigrants account for three-quarters of the cost and illegal immigrants the rest (Landes, Blair, & Jacobs, 1995, p. 110).
Immigration harms minorities more than whites, and for this reason minorities tend to give strong support to immigration reform for both legal and illegal immigration, and the latter distinction is one many minorities do not make. The economic position of earlier-arriving immigrants is harmed by an influx of later-arriving immigrants (Matloff, 1996, pp. 61-62). While noting some benefits for immigration, Matloff (1996) concludes,
But the bottom line is that the significant problems associated with today’s high yearly levels of immigration can only be solved by reducing those levels (p. 71).
Surely, the first effort to be made to reduce immigration levels is to reduce the levels of illegal immigration, for this would have an economic benefit both to native-born Americans and to legal immigrants. Yet, as Matloff (1996) notes, Congress has failed to accomplish this task and in fact increased yearly immigration quotas by 40% in 1990 without solving the problem of illegal immigration (p. 71).
The failure of Congress to address the issue adequately led to efforts by individual states to do something about it, though immigration policy is a federal and not a state issue. Proposition 187 in California is an example. Proposition 187 on the California ballot in the 1994 election was produced by the initiative process and was offered as a way of solving a number of the state’s ills by requiring that illegal immigrants be refused a variety of government services, such as access to educational programs, welfare, and medical benefits except for emergency medical care. The Nation provided a succinct statement of what was embodied in Proposition 187 with reference to a person campaigning for it:
Goodman was campaigning for Proposition 187, the grandiosely titled “Save Our State” ballot initiative that, if passed this November and validated by the courts over the next several years, will use strict verification requirements to prevent California’s estimated 1.7 million undocumented immigrants from partaking of every form of public welfare including nonemergency medical care, prenatal clinics and public schools. The measure would require employees at public health facilities, welfare offices, police departments and schools to demand proof of legal residency and to report those who can’t produce it to the Immigration and Naturalization Service; it also calls for stiff penalties for creating or using false documents (Kadetsky, 1994, p. 416).
Though the proposition passed, much of it remained unimplemented because of court challenges.
Further state actions would follow, joined now by county and municipal efforts to increase the role of local law enforcement and to institute other controls to the degree possible. Bratsberg (1995) noted a decade ago the degree of growth in both legal and illegal immigration and the impact they were having on the society. Finding a way to count the size of the immigrant population has been difficult and is given much attention in the literature, given that the size of the illegal population is unknown. As Bratsberg writes,
Empirical studies of population growth conclude that the net population increase due to illegal immigration ranged from 100,000 to 300,000 per annum between 1980 and 1986. And despite the intent of the Immigration Reform and Control Act (IRCA) of 1986, there is no indication that the yearly flow of illegal immigrants has decreased since the passage of the act (Bratsberg, 1995).
This study also found agreement with Chiswick (1988) to the effect that illegal immigration is more elastic with respect to migration cost than is legal immigration.
Espenshade (1995) also notes problems in studying the issue of illegal immigration and cites how reality may differ from the public perception:
Not the least of the obstacles is the fact that the number of unauthorized immigrants entering the United States is unobserved and therefore not precisely known. In addition, no census or other federally sponsored survey asks respondents about their legal status, so the impact of undocumented immigration is often inferred from other indicators. The public’s impression about unauthorized migration is frequently formed from scenes of Cubans and Haitians intercepted on the high seas or from pictures of clandestine migrants crossing the Mexico-United States border. As a consequence, the public perception about the nature and consequences of illegal immigration may differ substantially from what the research literature suggests (Espenshade, 1995, p. 195).
Some studies use apprehension data from the Immigration and Naturalization Service (or its later incarnation) as a way of judging the number of illegal immigrations coming to the United States, but Espenshade notes how inappropriate this is because this data measures undocumented aliens who fail to enter the U.S., while the real issue is to count the number who have succeeded.
Espenshade notes how concerns about the number of illegal aliens who might be making it into the country have long produced responses in legislation, beginning as far back as 1888 and 1891 when bills were passed that allowed workers and other aliens who had entered the country illegally to be deported. It was clear by 1904 that the 1882 Chinese Exclusion Act, designed to prohibit the immigration of Chinese laborers to the United States, was failing, after which h the Commissioner-General of Immigration assigned a group of mounted inspectors to patrol the Mexico-U.S. border to prevent the smuggling of Chinese laborers through Mexico (Federation for American Immigration Reform, 1989). Quantitative restrictions on U.S. immigration were introduced in the 1920s, but these only served to increase illegal immigration. This led to the creation in 1924 of the U.S. Border Patrol as the uniformed enforcement arm of the Immigration and Naturalization Service. The INS at the same time started keeping statistics on the number of apprehended aliens:
The last major immigration action prior to World War II was the country’s first legalization program, adopted in 1929 for the purpose of accommodating those long-term illegally resident aliens who were not otherwise eligible for lawful permanent residence (Levine, Hill, & Warren, 1985).
The bracero program was introduced in the 1940s to bring in migrant farmworkers, but this did little to stem the flow of illegal farmworkers. Pressure to reform the system increased into the 1950s, leading to the passage of the 1952 Immigration and Nationality Act (INA), and among other provisions, this act now imposed penalties including fines and possible imprisonment for persons found guilty of “harboring” illegal aliens. The law also made a concession to Texas agricultural interests so that employers of illegal aliens were exempted from these penalties. In 1965, amendments were made to the law that barely touched the question of illegal immigration.
Estimates on the size of the illegal immigrant population have varied widely over the years, with claims by politicians trying to use the issue for their own advantage inflating the figures and confusing the public. Serious studies have also made varied estimates. Some have estimated that the total number of undocumented migrants resident in the United States might exceed 10 million (Keely, 1982; Bos, 1984). More recent research refined these estimates. Warren and Passel (1987) state that the number of undocumented immigrants who were counted in the 1980 U.S. decennial census was about 2.1 million, with more than half of these (1.1 million) being from Mexico. Informal estimates suggest that between one half and two thirds of the number of illegal aliens in the United States were included in the 1980 census, implying that the total number of undocumented persons resident in the country in 1980 stood in the range from 2.5 to 3.5 million (Fix & Passel, 1994).
It has been estimated that by 1986, between 3 million and 5 million unauthorized aliens were living in the United States. The numbers dropped dramatically after the IRCA’s legalization program granted amnesty to roughly 2.8 million formerly illegal residents, so that estimates for 1989 said that the number of undocumented persons had declined to somewhere within a range of 1.8 million to 3 million (Fix & Passel, 1994). This amnesty program was a one-time opportunity, however, and the number of illegals then started to increase again. Warren (1994) put the total size of the undocumented population in October 1992 at 3.4 million. It has also been shown that individuals who came to the United States on a legal temporary visa and then later became unauthorized aliens because they overstayed their visa constitute roughly half of the undocumented population. The other half came initially without proper documents and usually crossed over U.S. land borders between official ports of entry. Mexico is the leading source country, accounting for 1.3 million or about 40% of the total. California is the leading state of residence of the illegally resident population, with a total of 1.4 million people, and California and six other states — New York, Texas, Florida, Illinois, New Jersey, and Arizona — account for 86% of the total illegal population. Fernandez & Robinson (1994) estimated the total undocumented population in that year at being in a range between 3.5 and 4.0 million.
According to the Center for Immigration Studies (2006), an average of more than 1.3 million immigrants, legal and illegal, came to the United States each year in the 1990s, and between January 200o and March 2002, another 3.3 million settled here. According to the U.S. Census Bureau, illegal immigration will, in less than fifty years, increase the total U.S. population from 288 million to more than 400 million. The population of foreign-born in the U.S. is currently some 33.1 million, or 11.5% of the total, and it is estimated that 8 to 9 million are illegal immigrants.
Camarota (2001) gives attention specifically to the immigrant population from Mexico and finds that the size of the influx has increased greatly. He also states that “two-thirds of adult Mexican immigrants have not completed high school, compared to fewer than one in ten natives. Mexican immigrants now account for 22% of all high school dropouts in the labor force” (para. 3). In spite of this, and though most natives are more skilled, the more than ten million natives who lack a high school diploma face significant job competition form Mexican immigrants.
Chapter 2- The Socio-Economic Impact of Illegal Immigration into the United States
The impact of illegal immigration into the United States has long been a point of contention, with some citing the benefits brought by immigration in general and with others trying to show that illegal immigrants in particular are at least an economic drain on the country. Critics raise the issue of whether or not undocumented residents of the United States receive more in publicly provided education, health care, and other social services than they pay for in taxes (specifically in sales taxes, since they usually do not pay income taxes). Rothman and Espenshade (1992) studied the question and found that the fiscal costs of immigrants fall most heavily on state and local governments, while on the federal level, there is almost no evidence to show that immigrants impose net burdens on other taxpayers. National estimates tend to aggregate influences across federal, state, and local levels, suggesting that at the federal level alone, immigrants provide a fiscal surplus. Few studies before 1992 explicitly considered the fiscal impacts of undocumented migrants, so that North and Houston (1976) found no adverse net fiscal effects at the national level, while Weintraub and Cardenas (1984) determined that unauthorized migrants provide large fiscal benefits to the state of Texas because of their low use of public services and their high tax payments. Undocumented migrants were estimated to use more services than the amount of their taxes at the county level in southern California in two studies (Community Research Associates 1980, Los Angeles County 1991).
Later research tended to support these ideas. Huddle (1993) looked at both legal and illegal immigrants arriving since 1970, estimating that their net annual cost to other taxpayers at all levels of government stands at about $43 billion. Passel (1994) argued that Huddle grossly underestimated the amount of taxes that immigrants pay, and making adjustments to Huddle’s calculations, Passel estimates that immigrants incur no overall fiscal deficit and instead produce a $25-30 billion annual budget surplus. Los Angeles County’s Internal Services Department estimated in 1992 that the net county fiscal cost of undocumented individuals was roughly $440 per person (Moreno-Evans, 1992). Estimates for San Diego include both county and state data, showing that net fiscal costs in 1992 were approximately $730 per capita including education, public health, criminal justice, and social service delivery (Auditor General of California, 1992). These costs increased to $1,110 per capita in 1993 by adding additional expenses associated with transportation, employment training, developmental services, and police protection (Rea & Parker, 1993). Clark, Passel, & Zimmerman (1994) estimate the revenues and expenditures associated with undocumented immigrants in the seven states with the largest numbers of such immigrants and made estimates for the costs of incarceration and public education and for revenues received in the form of state, sales, and property taxes. However, it remains impossible to draw conclusions about the net fiscal impacts of undocumented migrants because not all revenue and expenditure items are included.
The demographic data on the immigrant population suggests that it may have an economic impact on portions of the native U.S. population. Mexican immigration in the 1990s increased the supply of unskilled labor and so reduced the wages of workers with a high school education by about 5%. The reduction I wages folr unskilled workers reduced prices for consumers by only about.08% to 2%, an impact quite small because unskilled labor accounts for only a tiny fraction of total economic output. As Camarotga (2001) notes,
Mexican immigration is overwhelmingly unskilled, and it is hard to make an economic argument for unskilled immigration, because it tends to reduce wages for workers who are already the lowest paid and whose real wages actually declined in the 1990s. Moreover, this cheap labor comes with a high cost. Because the modern American economy offers very limited opportunities for workers with little education, continued unskilled immigration cannot help but to significantly increase the size of the poor and uninsured populations, as well as the number of people using welfare (para. 7).
Because Mexican immigrants earn less on average, they make lower tax payments and have heavier use of means-tested programs. According to the National Academy of Sciences, the average adult Mexican immigrant has a lifetime fiscal impact of negative $55,200.
Statistics show that while Mexican immigrants make up 4.2% of the total population, they and their U.S.-born children (those under 18) account for 10.2% of all persons in poverty and 12.5% of those without health insurance. It can also be shown that even among Mexican immigrant families who have lived in the United States for more than 20 years (virtually all of whom are legal residents), more than half live in or near poverty and one-third are uninsured. The push for welfare reform in the late 1990s was directed in part at limiting access for the immigrant population, legal and illegal, and even then, an estimated 34% of households headed by legal Mexican immigrants and 25% headed by illegal Mexican immigrants used at least one major welfare program, in contrast to 15% of native households. Mexican immigrants who have lived in the United States for more than 20 years, almost all of whom are legal residents, still have double the welfare use rate of natives (Camarota, 2001, para. 10).
Another aspect of the impact of immigrants is addressed by Brimelow (1998) in an article suggesting that immigration should be restricted because many people have an idea about the nature of the state and what constitutes a strong and viable state. In the past, it was believed that the influx of immigrants, legal or illegal, was simply too small to make much of an impact, but Brimelow now this situation changed with the 1965 Immigration Act so that immigration has increased rapidly. One result has been that the ethnic mix in America has been changed, causitng the population to shift from a white majority to a different mix. Clearly, this racial and ethnic change is of great concern to some. Brimelow also state that more of these immigrants are making use of the welfare system and are faced with higher poverty rates. This is another concern raised by some as a threat to both the economy and the social order.
One of the concerns raised by Brimelow is clearly part of the fear many people seem to have about immigration, that allowing too many people from another part of the world into this country endangers our idea of a nation, or nation-state, “a sovereign structure that is the political expression of a specific ethno-cultural group” (Brimelow, 1998, p. 221). The idea seems to be that as a creation of this specific ethno-cultural group, the nation-state has to be protected from dilution by others. Of course, in the case of the United States, the entire nation-state was created by immigrants from Europe and elsewhere in the first place. In addition, people who immigrate bring something they add to the mix even as they seek to adapt to fit the culture they find here.
A report by the Commission on Immigration Reform says much about the matter of who should be an American and how that person should go about becoming an American. The report has a heading “Americanization,” and it is noted there that the United States stands as one of the most successful multiethnic nations in history. At the same time, the nature of the controversy it engenders is also noted:
The idea that immigrants should be integrated economically is also devoid of much controversy. Yet, the ongoing debate in the United States is a cultural one, dealing with issues such as affirmative action and multiculturalism. This debate is not occurring between immigrants and the native-born; rather, it is occurring across the mainstream of American opinion.
The Commission thus recommends not that immigration be halted but that it be speeded up to reduce the processing time for naturalization, thus making it easier to become an American rather than harder. This is a recognition of the contribution of immigrants, of the falseness of the myths cited by Lacey, and of the fact that what makes an American is a belief in certain principles and the willingness to work to make those principles prevail in the world (‘Americanization’ in Report of the Commission on Immigration Reform, 1997, p. 10).
Our fear of uncontrolled immigration has a firmer basis, while our fear of immigration in general involves a failure to see what immigrants bring in terms of skills and ideas to a country that is supposed to value innovation and the new.
As noted, the issue of immigration was central in the discussion of welfare reform in the 1990s, with one of the stated goals being to reduce welfare benefits as a way of reducing levels of illegal immigration. Murray (1984) considers the question of welfare in the larger context of American social policy over a thirty year period. He has more in mind than welfare policy, though welfare is at the heart of what American social policy during this era wanted to achieve and also at the heart of how the system has failed to achieve those goals. Murray settles on the term “social policy” to describe what he is talking about and defines this as a loosely defined conglomeration of government programs, laws, regulations, and court decisions touching on almost every dimension of life:
Welfare programs are part of any social policy toward the poor, obviously. Jobs programs are part of social policy. So also are the Miranda decision and Affirmative Action and the Department of Education’s regulations about bilingual education (Murray, 1997, p. 13).
Murray also gives a clear indication of the goal of these programs, noting that each has a worthy objective that is being addressed by a transfer of resources from the haves to the have-nots. This transfer of funds increased greatly during the period from 1950 to 1980, but even increased expenditures did not deliver the goals intended.
Ellwood (1988) finds essentially that the goals and the methods undertaken are the same as Murray indicates, but he considers the issue more in terms of the effect on the American family specifically. He also notes that everyone hates the welfare system as it has developed. Defenders of the system say it is misunderstood and that critics are simply being selfish, but Ellwood feels that many critics have valid complaints. He in fact cites Murray as one who would like to help the poor but who feels that reforms are needed. Ellwood finds the complaints to have a much more fundamental basis:
Welfare is a flawed method of helping people who are poor and disadvantaged. Welfare brings some of our most precious values — involving autonomy, responsibility, work, family, community, and compassion — into conflict. We want to help those who are not making it but, in so doing, we seem to cheapen the efforts of those who are struggling hard just to get by (Ellwood, 1988, p. 6).
Ellwood asks the essential question — should welfare be reformed or replaced? He notes that the country has gone through several attempts at welfare reform, or at least discussions of welfare reform with an eye to making changes if a good program can be developed. The conservatives have called for the elimination of welfare, and Ellwood rightly notes that no one expects this call to be heeded. What is being discussed is the imposition of new obligations and responsibilities on recipients, with the government in turn providing training or jobs. Ellwood considers these issues and notes that while they would help, they would not have more than a modest effect on the caseload and on the ability of the disadvantaged to provide for themselves. Ellwood points out the reason for this — none of these changes would address the real issue, which is that such modifications do nothing about the real problem of poverty:
They will not make single parents much more productive or eliminate their child care responsibilities. They will not raise wages. They will not reinforce and strengthen families. They will not give the poor real dignity or responsibility. They will not do much to integrate the fundamental conflicts of the welfare system (Ellwood, 1988, p. 10).
Ellwood finds that the tragedy of the new agenda is that everyone calling for change has the same proclaimed goal: “to make certain that people can make it on their own without the need, frustration, or stigma of welfare” (Ellwood, 1988. pp. 10-11). In spite of this shared goal, though, all sides are apparently willing to settle for a system that falls short of encouraging or reinforcing the goal.
The disparity in income between those on welfare and those not on welfare differs from state to state, and the welfare provisions in different states can be widely divergent. Proponents of welfare reform hold out extreme cases as the norm and raise peripheral issues such as noncitizens’ use of welfare as if this were the major problem. Fix and Passel from the Urban Institute note how Congress imposed broad new restrictions on access for legal and illegal immigrants, with one result being a reduction in immigrants’ use of health, nutrition, and other types of benefits for which they are eligible (Fix & Passel, 1999). Such a shift can also have a long-term negative effect on American society if immigrant communities become incubators for disease that can then spread through the population.
Pantoja (2006) notes how concerns about immigration reform coincide with periods of high rates of immigration and that these concerns are usually couched in economic terms as to costs and benefits immigrants being to the nation. Pantoja states that a “paramount concern is whether immigrants overuse social and public services — in the jargon of U.S. immigration law, become a ‘public charge'” (2006, para. 4). One result has been efforts like California’s Proposition 187, based on the belief that the welfare magnet was the primary motivating factor attracting most immigrants. According to former INS director and Proposition 187 supporter Alan Nelson, the aim was to cut off social services in order to “demagnetize the draw for illegal aliens” (Chavez, 2001, p. 247).
Of course, this approach ignores the many other factors that govern immigration both legal and illegal, notably finding better jobs, living in a freer society, escaping poverty and persecution at home, and a desire to be with relatives and friends who have migrated before. Welfare reform alone was never going to have the widespread effect on immigration that some proponents believed, and it clearly has not.
3-The Criminal Justice System’s Response to Illegal Immigration
The criminal justice system has faced two major concerns, as raised by different groups, the first being the need to return illegal immigrants to their homeland as quickly as possible, and the second the need to protect the rights of those facing deportation and to move swiftly so they will not be incarcerated longer than necessary. The issue is not a new one and has plagued the system for some time. On the one hand, there is pressure for the INS to do more to deport criminal aliens; on the other hand, there is pressure to do so in a timely fashion and to avoid jailing too many criminal immigrants in this country. It was reported in 1993 that between 1988 and 1990, 489,000 aliens scheduled to be deported could have been locked up, but the INS at the time had only 6,600 beds, forcing it to release more and more suspects. The General Accounting Office reported that in 1982, 24% of those apprehended were detained, while by 1990, only nine percent were held. In the mid-1990s, there were some 62,000 people under deportation proceedings in the New York district, while only about 750 a year were deported. This would mean it would take 80 years just to clear out the existing backlog (Popkin & Friedman, 1993, p. 32).
At the same time, cases are supposed to be completed in a timely fashion, and the law was change din 1996 to bring this about. At that time, revised provisions for the removal of aliens were established in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104 — ‘208, by which aliens charged by the INS as deportable are placed in “removal” proceedings as opposed to “deportation” proceedings. In 1998, the system was shifted to a program called the Institutional Removal Program (IRP). The system prior to this was called the Institutional Hearing Program (IHP), and the Government Accounting Office examined this program and determined that it was not working as intended. One aspect of the system is that aliens who are serving sentences in American prisons are to be reviewed prior to their release and deported upon release if that is deemed warranted. The INS was not accomplishing this program as intended. In 1995, the INS database of deportable aliens did not have records on about 34% of the released inmates who had been identified by the states and the Bureau of Prisons as foreign born. Some 32% of these were subsequently determined by INS’ Law Enforcement Support Center (LESC) to be potentially deportable criminal aliens. In 1997, the INS had no records on 36% of such aliens, and 27% of these were determined to be potentially deportable criminal aliens. In 1995, about 33% of these potentially deportable criminal aliens for whom the INS did not have records were aggravated felons. The 1997 data shows that 63% of the potentially deportable criminal aliens for whom the INS did not have records were identified as aggravated felons. Federal law requires that the INS initiate removal proceedings for aggravated felons while they are incarcerated and, to the extent possible, complete deportation proceedings for these felons before their release from prison. Clearly, the INS was not fulfilling this requirement (Goverment Accounting Office, 1998).
The system has simply not been designed to handle the load that is being put on it, and as if that were not enough of a problem, mandates by Congress have exacerbated the issue. For a long time, foreign — ‘born criminals slipped between the cracks of the legal system. After serving their sentences in U.S. jails, many are supposed to be deported, but bureaucratic problems and a lack of cells let large numbers go free on bond and disappear. Congress tightened the law in 1996, doubling the INS’s deportation budget. In 1997, some 169,000 immigrants with criminal histories were deported, more than three times the number in 1995. However, the new policy presented some complications for the INS. Part of the law requires mandatory detention of all “aggravated felons,” but the INS is also obliged to detain and deport legal immigrants convicted of relatively minor offenses. This means that the number of detainees would double to 300,000 in 1999. The term “aggravated felon” once referred to rapists, murderers, and drug traffickers, but the new law includes drunken drivers, shoplifters, and check bouncers. There is also no time limit so that many detainees are held for offenses dating back more than a decade (Ackerman, 1998, p. 30).
In 1999, the INS deported 62,359 legal permanent immigrants for such crimes, a jump of nearly 75% since the laws took effect, and another 72,000 were allowed to leave voluntarily. Some 4,000 of the criminal immigrants being held today are from such countries as Cuba, Vietnam, Cambodia, and Laos. They are being held as detainees who once committed a crime, not as criminals, and yet they could be serving life sentences, because their countries will not accept them back. They remain behind bars unless granted rare releases on bond. Immigration attorneys say that the Anti — ‘Terrorism and Effective Death Penalty Act and the Immigrant Responsibility Act strip U.S. immigration judges of nearly all the discretion they once had. More and more of these lawyers are going to federal court and challenging the laws as unconstitutional (Beebe, 2000).
Those who must watch over detainees know that there is considerable danger of mental breakdown and violence because of the stresses faced by those detained. Asylum seekers, who would seem to be in a better position than aliens kept in long-term detention, show this mental stress because criminals, unlike asylum — ‘seekers, generally know how long they will be in jail, and how they may shorten their sentences. Detainees often do not, and in New Jersey, it was reported in 1999 that there were eleven suicide attempts among the 28,000 inmates, at the rate of one attempt every 47 days (Llorente, 1999, p. A1).
Records from 1999 obtained under the Freedom of Information Act show that the INS had held 294 people from 34 countries for at least three years, though the agency refuses to identify any of its longest — ‘held prisoners, saying that would violate their privacy (Malone, 2000, p. 1A). Numerous cases can be cited, however. Sivilay Sengchanh’s prison sentence ended nearly four years ago, but he is still in jail, detained by the INS since 1996 because he is a legal immigrant from Laos, a country that refuses to take him back. The INS says it has detained him indefinitely for fear he will commit more crimes if released. He is currently held in the Paulding County Jail in Georgia, though Judge William B. Hunt Jr. Of U.S. District Court in Atlanta said in a January 29, 2000 ruling that Sengchanh’s indefinite incarceration violated the Constitution’s guarantee that “no person shall… be deprived of… liberty… without due process of law.” Federal judges in California, Rhode Island, and Washington issued similar rulings in the last year, but appeals courts in Colorado and Los Angeles have upheld indefinite detention. Most of those being held in indefinite detention come from Cambodia, Cuba, Laos, or Vietnam and later committed crimes that triggered deportation proceedings. Many have spent more time in INS custody than they did in prison for the crimes they committed. The federal government spends about $95 million a year to house these aliens in jails and prisons, and about one hundred are in detention facilities in Alabama, North and South Carolina, and in Georgia, including the DeKalb County Jail, Lincoln County Jail, Paulding County Jail, and South Fulton Municipal Regional Jail. Even though the U.S. has normalized relations with some countries, these countries may refuse to issue travel documents to send these detainees back. The U.S. is negotiating with Vietnam and hopes to negotiate with Laos and Cambodia to issue travel documents. There is even a process under way to get concessions from Cuba. The order by Judge Hunt did not order the INS to release Sengchanh but instead told the agency to review the case and make a decision. Hunt did say that “A deportable alien’s detention cannot be excessive” and that the time Sengchanh has been in custody “passes any such threshold.” However, the INS refused, saying that its preliminary decision is to keep Sengchanh in custody because he “failed to demonstrate with clear and convincing evidence that you are not a danger to the community if released” (Bixler, 2000, p. D1).
One group that has been in detention for many years comes from the Mariel boatlift of 1980. The vast majority of Mariel Cubans settled without problems in the United States. Some committed crimes and went to prison. In 1984, the Cuban government agreed to take back 2,746 Marielitos who had mental illnesses or criminal records, and to date, the United States has sent back 1,362 people on that list. Others are kept in detention until the INS decides what to do with them. After they serve their time, they get a parole review each year, and those who can prove they are not a threat to the community can be released. Normally, the INS would deport those who are determined to be “excludable,” but the Mariels are unique because the United States has no diplomatic ties to Cuba and because Castro has refused to take any more back (Kurylo & Cook, 1997, p. D4).
Critics say the government is punishing people without giving them a trial, for crimes they might commit, and with no conclusion in sight. The INS says it is only responding to the laws as Congress has written them. Congress may have to reconsider the issue soon. Of course, the issue was alive even before as most local jurisdictions refused to enforce immigration laws from the perception that doing so would only alienate a large portion of the community and that these were federal laws and should be enforced by federal authorities in any case. Jordan (2006) notes that efforts to find, arrest, and send back illegal immigrants are “normally the province of federal immigration agents” (para. 3), though more and more, “even though some police groups have concerns, a slew of cities and states in the U.S. are increasingly taking on the duty of verifying the immigration status of people stopped for traffic infractions and other violations” (para. 3). Jordan notes some of the states and municipalities that have started undertaking such efforts and the opposition they often encounter even from other police agencies and organizations. One of the reasons for some states to take this approach, as in Alabama, is the belief that the state cannot cope with the increasing number of illegal immigrants. This is also the rationale offered by the city of Costa Mesa in California’s Orange County, where it is estimated that “that 10% to 15% of all inmates in the county’s jails are illegal immigrants” (para. 11). A concern in many areas has been with crime, but another issue raised is the way many immigrant groups use and even over-use social services, leading to an economic and political backlash: “Eliminating immigrants’ eligibility for welfare and other social services became a central issue of California’s Proposition 187 campaign in 1994 and a key feature of the 1996 welfare law” (Chavez, 2001, p. 164).
Immigration is a federal issue, as noted, but immigration is not mentioned in the Constitution. The section of the Constitution that is used to rationalize immigration is Article IV, Section 4, which states,
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Immigration is thus seen as a form of invasion, which gives the federal government the right to control it and to make decisions regarding those who immigrate both legally and illegally. If a state or city is being invaded, then the federal government is to intervene for the protection of the state or city. This does not mean that the state or city cannot take action to protect itself, however, and may need to do so when the federal government is not providing the level of protection required.
Kronholz (2006) noted in February of 2006,
As immigration soars to an all-time high, that get-tough argument is gaining political steam. With the 2006 elections still 10 months away, a half-dozen candidates are running for national office on pledges to stop illegal immigration. Bills on the issue, many denying benefits to illegal immigrants, have been introduced in 31 state legislatures (para. 6).
Polls show more and more Americans are anxious about the immigration issue, with one poll showing that 57% of those asked believe that the country remains “too open to immigrants” (para. 7).
Chardy (2006) notes the criticism of police actions against immigrants, writing,
Immigration advocates fear that the escalating involvement of local police in immigration-related arrests will further erode an already tense relationship between South Florida’s immigrant communities and officers entrusted with keeping people safe (para. 1).
Under current law, state and local officers can act as immigration agents if requested to do so by federal authorities under signed agreements. Many of the police taking action against immigrants are not doing so as immigration agents but are rather simply not continuing to ignore immigration status when stopping traffic offenders or other lawbreakers. In the past, immigration status would be checked for more serious offenders but not for speeders or other traffic offenders. Many jurisdictions are now doing so in order to find and eject as many illegal immigrants as possible, on the theory that this might avoid more serious crime later or that immigrants put a strain on social services in cities and states.
The way the issue is playing out in Florida shows what may be taking place in other areas across the country:
South Florida’s police departments generally prohibit officers from asking people they stop about their immigration status. However, local police have been offering backup help in targeted immigration arrests, and they summon immigration authorities if they discover during a traffic stop that the person’s driver’s license is listed in a federal computer database that local police routinely check (Chardy, 2006, para. 3).
Munoz and Waslin (2003) note the reaction of some in Congress who are trying to use national security as a reason for anti-immigration measures, citing the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act introduced by a Georgia congressman and requiring state and local police officers to enforce federal immigration laws. Critics say this is not going to make American communities safer. They also note that current law allows for agreements to do the same thing if local police want, while this legislation would force police to do the job whether they want to or not. Many police leaders believe such a move would undermine public safety. The law might also run afoul of constitutional separations between different levels of law enforcement. For Congress to insist that state and local authorities enforce federal law, especially in lieu of existing federal agencies designed to enforce these laws, could create a constitutional crisis either of jurisdiction or by creating a situation where local authorities are charged for not doing what the federal government says they should do.
As the article by Jordan (2006) in the Wall Street Journal notes, many state and city governments are already making this choice. It would seem to be better for them to make a choice than to have one foisted on them, for that approach means they are all the more committed to doing the job they have chosen and shows that the community has decided on the issue. These entities still must adhere to the law set by the federal government, which mans that the outcome of the Bush proposals will decide what kinds of laws are being enforced and which immigrants will be deemed lawbreakers and which will be granted amnesty of some sort. A stronger protection for the borders is certainly needed and can be achieved whether those in the country are granted amnesty or not.
The issue is not retaliation, though some in Congress act as if it were and as if they had to get tough on those who are already here and are not breaking any new laws. The issue is security and control of the border, and effecting that might require assistance from law enforcement in towns near the border. Many areas of the country will now be prepared for such an eventuality.
Conclusion
Illegal immigration has gained currency as a national issue since the attacks of 9-11, since the hijackers were in the country illegally either because they had always been illegal or because their student visas had expired. Tightening the borders gained in importance as a result and continues to be cited by political leaders, business people, and others. New efforts have been started by private citizens’ groups to patrol parts of the border and to find aliens trying to enter the country and turn them over to the authorities. Impetus has grown for draconian measures such as building a wall between the U.S. And Mexico, though others point out how this would fail in its intended goal. The response of the criminal justice system has been evolving for decades on this issue, and currently that response tends to be geared first to enforcing the laws that already exist, second to deciding if new ways of enforcement are to be allowed (such as allowing local police to enforce federal law on the subject or to force local police to detain illegals for the federal authorities), and third to developing new laws to address perceived threats and failures. Stronger measures are certain, though what these might be remains to be seen.
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