Working Paper for Oxford Roundtable
NAFTA, 9/11, and the Subprime Mortgage Meltdown
A Disastrous Combination from a Human Rights Perspective
LAW AND BORDER:
THE SEVEN-HUNDRED-MILE-FENCE PROPOSAL AND THE RULE OF LAW
Ann Graham *
U.S. Immigration laws, past and present, impact not only Hispanics in the
Southwest but our entire economy and our national commitment to the rule of law.
Federal legislation in 2006, which authorized seven hundred miles of fence along the
Texas-Mexico Border,1 and the polarized public debate over efforts by the 110th Congress
to pass comprehensive immigration policy reform 2 make it imperative that thoughtful,
mainstream Americans reexamine the history, the lack of effectiveness, and the future
direction of immigration policy in the United States.
First, I provide some border facts, to place this issue in context. Second,
acknowledging that laws reflect values, I discuss some major competing concerns.
Without doubt, conflicting ethical and ideological viewpoints make development of a
coherent, effective immigration policy difficult; however, to be complete, we must
openly and respectfully place all these interests on the table. 3 No simplistic analysis and
no pat solution reflects reality, but the organizing principle must be the rule of law. The
*
Professor of Law, Texas Tech University of Law.
H.R. 6061, The Secure Fence Act of 2006, Pub. L. No. 109-367, was signed by President Bush
on Oct. 26, 2006. The White House Fact Sheet is available at
http://www.whitehouse.gov/news/releases/2006/10/20061026-1.html
1
2
The prospect for passage of immigration reform legislation in the U.S. Senate was on-again, offagain throughout May and June, 2007. Should the Senate pass such legislation, the bill would then go to
the U.S. House of Representatives.
3
The U.S. Senate Committee on the Judiciary, Subcommittee on Immigration, Border Security
and Citizenship has conducted an extensive series of Immigration-related hearings. Testimony is available
on the Subcommittee website: http://judiciary.senate.gov/subcommittees/110/immigration110.cfm
A list of hearing topics and dates appears as Appendix A.
1
fact is that today there are approximately 12 million undocumented workers and
dependents who have entered the U.S. and remain here in violation of law. 4 Our
immigration laws not only do not work but, as currently enacted and ignored, they
undercut respect for law in general. 5
Third, human rights issues along the U.S.- Mexico border are so serious that I
have addressed them in a separate section of this paper. Given the breakdown of our
immigration laws, the fourth step is to analyze how we arrived at this point. I outline the
historical development of U.S. immigration policy, focusing on legal immigrants, guest
workers, and undocumented entrants from Mexico – what works, what does not, and
why. Finally, I call for Congress and the American people to engage in free, wideranging debate, but at the end of the day, to adopt and support comprehensive
immigration laws that are fair, reasonable, and capable of compliance.
I. BORDER FACTS
To consider immigration issues relating to the Southwestern border of the United
States with Mexico, a realistic understanding of the extent of that boundary is an essential
starting point. A map of the 1,954 mile border depicts the international boundary from
the U.S./Mexico sister cities of San Diego, California/Tijuana, Baja California, to
4
Jeffrey S. Passel, Size and Characteristics of the Unauthorized Migrant Population in the U.S. –
Estimates Based on the March 2005 Current Population Survey, Pew Hispanic Center (Mar. 7, 2006),
http://pewhispanic.org/reports/report.php?ReportID=61 ; Jeffrey S. Passel, Unauthorized Migrants:
Numbers and Characteristics, Pew Hispanic Center (June 14, 2005),
http://pewhispanic.org/reports/report.php?ReportID=46 ; See also, Comprehensive Immigration Reform:
Hearing Before the S. Comm. On the Judiciary, 110th Cong. (Statement of U.S. Secretary of Commerce
Carlos M. Gutierrez) (Feb. 28, 2007): “Most credible sources estimate about 12 million people are in the
United States illegally today”. http://judiciary.senate.gov/print_testimony.cfm?id=2555&wit_id=5531
5
A stark indicator that the rule of law is in trouble on the U.S.-Mexico border is well-publicized,
widely countenanced vigilante action, including “shoot to kill”, directed at persons apparently crossing the
border illegally. See generally, Christopher J. Walker, Border Vigilantism and Comprehensive
Immigration Reform, 10 HARV. LATINO. L. REV. 135 (2007).
2
Brownsville, Texas/Matamoros, Tamaulipas. 6 The four U.S. border states are:
California, Arizona, New Mexico, and Texas. The six Mexican border states are: Baja
California Norte, Sonora, Chihuahua, Coahuila, Nuevo Leon, and Tamaulipas. Four of
the six Mexican states interface with Texas. With 38 U.S./Mexico legal border crossing
sites listed by the U.S. Customs and Border Protection Agency of the Homeland Security
Department, 7 this is the most frequently crossed international border in the world,
approximately 250 million legal crossings from Mexico into the U.S. per year. 8
Estimates suggest that more than one million people illegally cross this border into the
U.S. each year. 9
Much of the current immigration debate and enforcement initiative focuses
myopically on the U.S. Mexico border, although proper perspective requires recognition
that “the land borders – Mexico 2,000 miles, Canada 5,525 miles are the two
international boundaries. However, the de facto border with the world is the additional
88,182 miles of tidal shorelines along the Pacific Coast, Gulf of Mexico and Atlantic
6
Appendix B is a map of the Texas-Mexico Border, which is available on the Federal Motor
Carrier Safety Administration website: http://www.fmcsa.dot.gov/images/us-mexico-border.jpg
[NOTE TO EDITOR: It appears that This work is in the public domain in the United States
because it is a work of the United States Federal Government under the terms of 17 U.S.C. § 105. See
Copyright.]
A National Geographic interactive map presents another view of the border with existing and
proposed fencing: http://www7.nationalgeographic.com/ngm/0705/feature5/images/mp_download.5.pdf
For a visual perspective on some of the most isolated and dangerous border terrain, see Tim
Cahill’s NATIONAL GEOGRAPHIC essay with photographs by John Annerino, “Border Patrol: Along the
Devil’s Highway”: http://www.nationalgeographic.com/adventure/border-patrol/tim-cahill.html
7
http://apps.cbp.gov/bwt/
8
U.S. Embassy in Mexico City website data as of Fiscal Year 2006, available at
http://mexico.usembassy.gov/mexico/eborder_mechs.html
9
See WESTERN GOVERNORS’ ASSOCIATION POLICY RESOLUTION 2006-01, “U.S.Mexico Border Security and Illegal Immigration”, available at
http://www.westgov.org/wga/policy/06/immigration.pdf
3
Ocean. To this add all U.S. international airports receiving foreign passenger and cargo
flights, all sea ports docking both passenger and cargo ships and land ports-of-entry[.]” 10
Legislation to construct fences along our borders does not address the much
longer Canadian border and seacoasts, nor does it fix the serious problem of legal
entrants who overstay their visas, estimated to be 40 percent of all undocumented
residents in the U.S. 11 Illegal immigrants, drugs, and criminals do enter our country
along the U.S./Mexico border, as they do through other entryways along our extensive,
porous interface with the rest of the world. We need to pursue solutions, but a costly
fence along part of our border ignores more extensive illegal entrypoints elsewhere. 12 To
state the obvious, the U.S. cannot secure all its borders with expensive fencing and armed
border guards. 13
10
Patrick Osio, Jr., Sealing the U.S.-Mexico Border – Unaffordable, Undoable, Foolish and
Dangerous, HispanicVista.com (Aug. 15, 2005), available at
http://www.hispanicvista.com/HVC/Columnist/posiojr/081505osio.htm
11
Daniel T. Griswold, Willing Workers: Fixing the Problem of Illegal Mexican Migration 5, Cato
Institute Trade Policy Analysis No. 19 (Oct. 15, 2002), http://www.freetrade.org/pubs/pas/tpa-019es.html
12
Describing the problem as contraband coming into this country also ignores the demand for
illegal drugs and labor that originates from within the U.S. See Peter Andreas, BORDER GAMES:
POLICING THE U.S.-MEXICO DIVIDE (2000), at 8: “Political actors do not merely respond to public
pressure to ‘do something’ about drugs and illegal immigrants. Instead, they skillfully use images,
symbols, and language to communicate what the problem is, where it comes from, and what the state is or
should be doing about it. For example, the overwhelming political focus on curbing the influx of drugs and
immigrants has drawn attention away from the more complex and politically divisive challenge of dealing
with the enormous domestic demand for both psychoactive drugs and cheap immigrant labor.”
13
See Pres. George W. Bush, “Address to the Nation on Immigration Reform” (May 15, 2006),
available at http://www.whitehouse.gov/news/releases/2006/05/20060515-8.html : “We must begin by
recognizing the problems with our immigration system. For decades, the United States has not been in
complete control of its borders.” See also, Jasen Ackelson, Fencing in Failure: Effective Border Control is
Not Achieved by Building More Fences (Apr. 2005), http://www.ailf.org/ipc/fencinginfailureprint.asp
4
II. VALUES, CHOICES, AND THE RULE OF LAW
A. HOW DO WE VIEW IMMIGRANTS?
U.S. history over the past two centuries has repeatedly demonstrated that this
country is a welcoming haven for immigrants. The Statue of Liberty is a national icon,
with its famous inscription: “Give me your tired, your poor, your huddled masses
yearning to breathe free, the wretched refuse of your teeming shore. Send these, the
homeless, tempest-tost to me, I lift my lamp beside the golden door!” 14
On the other hand, our history also provides examples of xenophobia run amok.
The unwarranted vilification and ill-treatment of Chinese and Irish immigrants during the
1800s, 15 German-Americans during World War I, and the Japanese-American internees
during World War II spring to mind. 16 Instead of turning our heads, perhaps we can learn
from these shameful incidents, for we see some of the same triggering pressures today:
labor competition, national security concerns in time of war, and a simplistic, “them-orus” analysis of complex issues.
As we seek to move discussion beyond partisan politics and divisive rhetoric, two
Supreme Court Justices, one-hundred years apart, provide intriguing food for thought.
In 1904, Justice Oliver Wendell Holmes, Jr., clearly articulated the problem that
arises when an issue seizes the popular attention of the moment:
14
Excerpted from Emma Lazarus’s poem, “The New Colossus”.
15
See BILL ONG HING, DEFINING AMERICA THROUGH IMMIGRATION POLICY (2004),
at 25-50. Chapter 2, “The Undesirable Asian”, analyzes attitudes toward immigrants of a particular ethnic
group that mirror protectionist positions asserted today. Hing’s reminder that Asian immigrants in the
latter half of the 19th Century were “indispensable yet undesirable” is equally applicable today to migrant
workers from Mexico.
16
See generally Eric A. Posner & Adrian Vermeule, Emergencies and Democratic Failure, 92
VA. L. REV. 1091 (2006).
5
“Great cases, like hard cases, make bad law. For great cases are called great. .
.because of some accident of immediate overwhelming interest which appeals to the
feelings and distorts the judgment. These immediate interests exercise a kind of
hydraulic pressure which makes what previously was clear seem doubtful, and before
which even well settled principles of law will bend.” (emphasis supplied) 17
We can never forget that the current immigration discussion takes place
against the backdrop of the September 11, 2001, terrorist attack on the World Trade
Center Towers. National security is a serious and appropriate concern.
Nevertheless, if we recognize that the “hydraulic pressure” to respond to one
immediate, disastrous event can be a powerful “psychological phenomenon that
produces political, policymaking and legal effects[, that] can distort clear concepts
and bend established principles, as well as foreshorten perspective such that
history’s lessons no longer help frame current issues”, 18 then we will be especially
careful to avoid making scapegoats of Mexican immigrants, whether legal or
otherwise, who were not tied in any way to the terrorist attacks of September 11,
2001. 19
We must avoid quick fixes and political bumpersticker solutions. We must
do the research necessary to craft a comprehensive immigration policy that balances
17
Northern Securities Co. v. U.S., 93 U.S. 197 (2004), at 400-401. Justice Holmes’ famous
cautionary remarks appear in his dissenting opinion in an antitrust case, but they have resonated over the
years in many settings.
18
Norman J. Finkel, Moral Monsters and Patriot Acts: Rights and Duties in the Worst of Times,
12 PSYCHOLOGY, PUBLIC POLICY & LAW 242 (2006), at 243.
19
“The connection between the September 11 attacks and illegal immigration from Mexico is
tenuous. None of the 19 hijackers entered the country illegally or as immigrants. They all arrived in the
United States with valid temporary nonimmigrant tourist or student visas. None of them arrived via
Mexico. None of them were Mexican. Sealing the Mexican border with a three-tiered, 2,000 mile replica
of the Berlin Wall patrolled by thousands of U.S. troups would not have kept a single September 11
terrorist out of the United States. The U.S. government can take necessary steps to secure our borders
without sacrificing the benefits of immigration.” Griswold, supra note 11, at 17; See generally 9/11
COMMISSION REPORT (2004), http://www.9-11commission.gov/report/911Report.pdf
6
national security, the U.S. economy’s dependence on Mexican immigrant labor, the
contributions of migrants to our economy and the costs of social services, human
rights concerns about thousands of migrant deaths, and our national commitment to
laws that are fair, reasonable, and capable of compliance.
In 2004, Supreme Court Justice John Paul Stevens wrote, “If this Nation is to
remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even
to resist an assault by the forces of tyranny.” 20 As the U.S. calls developing nations to
adhere to the rule of law, we must do the same. 21
President George W. Bush made this point in his May 15, 2006, “Address to the
Nation on Immigration Reform”:
“We're a nation of laws, and we must enforce our laws. We're also a nation of
immigrants, and we must uphold that tradition, which has strengthened our country in so
many ways. These are not contradictory goals. America can be a lawful society and a
welcoming society at the same time. We will fix the problems created by illegal
immigration, and we will deliver a system that is secure, orderly, and fair.” 22
20
Rumsfeld v. Padilla, 542 U.S. 426 (2004), at 465.
21
See Jackson Maogoto & Benedict Sheehy, “Torturing the Rule of Law: USA and the Post 9-11
World”, 21 ST. JOHN’S J. LEGAL COMMENT. 689 (2007), at 689. Examining other U.S. failures to adhere to
established international standards and the rule of law, including torture and official disregard for detainee
rights in the name of the “War on Terror”, these authors also begin with recognition that, “[a]mong the
Rule of Law nations, the U.S. has stood up as the standard bearer, excoriating those rulers who use their
powers vindictively, against enemies on personal basis, and beckoning those nations to return to the fold.”
See also American Bar Association (ABA) Rule of Law Initiative, “a public service project of the
American Bar Association dedicated to promoting rule of law around the world. The Rule of Law Initiative
believes that rule of law promotion is the most effective long-term antidote to the pressing problems facing
the world community today, including poverty, economic stagnation, and conflict.” The ABA Rule of Law
Initiative website reports rule of law outreach to the Ukraine, Russia, China, Moldova, Morocco, the
Philippines, Albania, and Armenia – over 400 volunteers and staff in 40 countries”.
http://www.abanet.org/rol/
22
http://www.whitehouse.gov/news/releases/2006/05/20060515-8.html
7
B. WHAT ABOUT THE RULE OF LAW?
Immigration policy and the Rule of Law is one of the major themes I wish to
explore here. Various aspects of the “Rule of Law” have been debated since Aristotle. 23
Many commentators focus on the tension between the law as passed by the legislative
branch and as it may be overridden by the executive’s arbitrary power, with the
conclusion that the Rule of Law requires even-handed application: No one is above the
law, not even the government. 24 An important contrast distinguishes the “Rule of Law”
from the “Rule of Men”. 25 The Rule of Law constrains both individuals and government,
but the Rule of Men is arbitrarily exercised by whoever holds the power to do so. 26
In the current immigration debate, some who oppose including provisions to grant
amnesty and a path to legal citizenship for undocumented workers cite the Rule of Law
as grounding for their position, 27 which I find to be a selective and inaccurate application
of the concept because it fails to deal with overwhelming disregard for the current law by
employers as well as illegal immigrants. Leaving such a widely-ignored law in place,
with the battle cry that it be enforced strictly against some but not others, is not
23
See generally Jill Frank, Aristotle on Constitutionalism and the Rule of Law, 8 THEORETICAL
INQUIRIES L. 37 (2007); Tom R. Tyler, Does the American Public Accept the Rule of Law?, 56 DEPAUL L.
REV. 661 (2007); Ronald A. Cass, Legal Process and the Rule of Law: Where Do We Stand?, 51 B.B.J. 9
(2007).
24
See generally Joseph Raz, The Rule of Law and Its Virtue (1979), in LAW AND MORALITY
290 (2d ed. 2001).
25
Maogoto & Sheehy, supra note 21; Raz, supra note 24.
26
James L. Gibson, Changes in American Veneration for the Rule of Law, 56 DEPAUL L. REV.
593, 594 (2007).
27
E.g., Kris W. Kobach & Matthew Spalding, Rewarding Illegal Aliens: Senate Bill Undermines
The Rule of Law (May 23, 2007), http://www.heritage.org/Research/Immigration/wm1468.cfm
8
supporting the Rule of Law. In addition, one cannot claim adherence to the Rule of Law
in its broadest sense without recognizing human rights as an essential component. 28
A key corollary of the Rule of Law is that a general perception of widespread
disregard of law by employers and illegal immigrants, of selective enforcement and of
abusive force to monitor our border creates measurable disrespect for law in general – the
“Flouting Thesis”. 29 The situation in which there is no longer general obedience to the
rules which have been validly enacted by Congress has been described as a “pathology”
of the legal system. 30
My conclusion is twofold: 1. A law ignored is a law in name only. If our
immigration law does not work, Congress should replace it with one that does. 2. When
Congress passes a law that makes conduct such as crossing the border to work without
immigration documents illegal, it has officially criminalized behavior that continues –
with an official wink at employers who hire undocumented workers. The era of
Prohibition in the 1920s showed us that creating an unenforceable criminal law invites
dangerously lawless people to participate in circumventing the law. Bootleggers and
28
“Whereas the Rule of Men is based upon the whims of those in power, the Rule of Law is based
upon a different principle – a robust view of rights. Over time a consensus has emerged that human rights
are the most fundamental of all rights. In this view human rights are not rights granted by a state; rather,
they are rights that pre-exist the state. As such they cannot be withheld, or denied. They can only be
respected or violated. Because of their dominant, fundamental and preeminent position in democratic
societies, a state’s observation of human rights serves as an indicator or gauge of a state’s respect for the
Rule of law and its citizens. Observation of human rights also indicates a state’s willingness to accept
principle and law as more important than the expediency of short-term objectives, achieving political goals
or the satisfaction of special interest constitutiencies.” Maogoto & Sheehy, supra note 21, at 689, 690.
29
See Janice Nadler, Flouting the Law, 83 TEX. L. REV. 1399 (2005), for an empirical study
(developed in general and not to consider immigration laws in particular), which supports the widely
assumed theory that citizen perception of injustice leads to diminished deference to the law generally.
Nadler has coined the term “Flouting Thesis” to describe the conclusion her research confirms: Perceived
injustice in our legal system, including outmoded statutes, leads to greater willingness to flout the law in
the everyday lives of ordinary people.
30
H.L.A. HART, THE CONCEPT OF LAW 118 (2d. Ed. 1994).
9
gangsters of the Prohibition era have become the coyotes and vigilantes of today.
Congress can reduce unacceptable violence at the border by creating a workable, legal
immigration regime.
A commendable definition of the Rule of Law is contained in the United Nations
Secretary General’s 2004 Report on the Rule of Law:
“[The Rule of Law] refers to a principle of governance in which all persons,
institutions and entities, public and private, including the State itself, are accountable to
laws that are publicly promulgated, equally enforced and independently adjudicated, and
which are consistent with international human rights norms and standards. It requires, as
well, measures to ensure adherence to the principles of supremacy of law, equality before
the law, accountability to the law, fairness in the application of the law, separation of
powers, participation in decision-making, legal certainty, avoidance of arbitrariness and
procedural and legal transparency.” 31
Three principles associated with the Rule of Law seem particularly applicable:
rule-based decisionmaking, respect for rights, and respect for persons. 32 My
recommendation is that to conform the U.S. immigration system to the Rule of Law,
Congress must pass laws that are based on rational data, fair, humane, capable of
compliance, and evenhandedly enforced.
C. WHAT TRADE-OFFS MUST WE CONSIDER?
Law incorporates values, choices and trade-offs. In part, this is the economist’s
“guns-and-butter” question: Resources are not unlimited; therefore, we must decide how
much of one value, such as national security, we can afford at the expense of other
values, such as adherence to the Rule of Law, human rights, and our economy’s
31
Report of the Secretary-General to the Security Council, The Rule of Law and Transitional
Justice in Conflict and Post-conflict Societies, U.N. Doc. S.2004/616 (Aug. 3, 2004),
http://daccessdds.un.org/doc/UNDOC/GEN/N04/395/29/PDF/N0439529.pdf?OpenElement
32
Tyler, supra note 23, at 661. On the other hand, some discussion of the Rule of Law concerns
itself only with procedure and not with substance or values. This paper adopts the “thick” or “substantive”
version of the Rule of Law rather than the “thin” or “formalist” version. See N.J. Schweitzer, Douglas J.
Sylvester, & Michael J. Saks, Rule Violations and the Rule of Law, 56 DEPAUL L. REV. 615 (2007).
10
dependence on cheap migrant labor. We also need to know whether Mexican migrant
workers contribute more to the national economy than the costs they impose in the form
of depressed wages, jobs taken away from other Americans, and social services costs.
We must face the question of whether the Secure Border Fence Act was campaign slogan
material Congress never intended to fund. 33
In the larger sense, the most important trade-offs involve more than money. For
example, we must also decide what it means to be an American, 34 how much of our civil
liberties we are willing to relinquish, 35 whether we can countenance an underground
underclass of undocumented workers, how many border deaths we can accept. For
residents of the U.S.-Mexico border states, we must also consider cultural and family
cross-border ties and economic exchanges. Much of the immigration debate, especially
about the border fence, involves emotion as well as fact, on all sides. 36
Congress has spent months gathering testimony on all aspects of the choices and
trade-offs involved in crafting successful immigration reform legislation. Within the
constraints of this article, I can only refer the reader to the list of Congressional hearings
in Appendix A and emphasize the multi-faceted nature of immigration reform.
33
Spencer S. Hsu, In Border Fence’s Path, Congressional Roadblocks, WASHINGTON POST,
Oct. 6, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/10/05/AR2006100501935.html
“No sooner did Congress authorize construction of a 700-mile fence on the U.S. border last week than
lawmakers rushed to approve separate legislation that ensures it will never be built, . . .”
34
Sarah Kellogg, Immigration Reform and the American Identity, WASHINGTON LAWYER,
Feb. 2007, at 18.
35
John Scanlan, Immigration Law, Civil Liberties, and the September 11 Attacks,
http://www.law.indiana.edu/front/special/20011008_scanlan.shtml
36
Charles Bowden (with photographs by Diane Cook & Len Jenshel), Our Wall, Ourselves,
NATIONAL GEOGRAPHIC, May 2007, at 116.
11
III. HUMAN RIGHTS CONCERNS
DEATHS ALONG THE U.S. MEXICO BORDER
Researchers document an annual death rate of several hundred unauthorized
migrants along the U.S.-Mexico border. 37 Undoubtedly, this is a “humanitarian
crisis”. 38 Although published counts of border deaths are likely understated, one
estimate sets the number of bodies of unauthorized border crossers recovered on U.S.
soil from 1995-2004 at 2,978. 39 “To put this death toll in perspective, the fortified
U.S. border with Mexico has been more than ten times deadlier to migrants from
Mexico during the past nine years than the Berlin Wall was to East Germans
throughout its 28-year existence.” 40 Even more disturbing is the clear statistical link
between increased border deaths -- by exposure to extreme weather and terrain,
accidents, Border Patrol and vigilante shootings -- and the current immigration policy
which emphasizes militarization and fortification of the border, especially through
Immigration Reform and Control Act of 1986 (IRCA) and Operation Gatekeeper
enforcement initiatives. 41 University of Houston researchers conclude that [d]eaths
37
Karl Eschbach, Jacqueline Hagan, Nestor Rodriguez, Deaths During Undocumented Migration:
Trends and Policy Implications in the New Era of Homeland Security (2003),
http://www.uh.edu/cir/Deaths_during_migration.pdf
38
Raquel Rubio-Goldsmith, M. Melissa McCormick, Daniel Martinez & Inez Magdalena Duarte,
A Humanitarian Crisis at the Border: New Estimates of Deaths Among Unauthorized Immigrants,
American Immigration Law Foundation Policy Brief, Feb. 8, 2007, [quoting U.S. Senator Bill Frist]
http://www.ailf.org/ipc/policybrief/policybrief_020607.shtml
39
Id. at 4, quoting Professor Wayne Cornelius of U.C. San Diego.
40
Id.
41
Esbach, Hagan, & Rodriguez, supra note 37; BINATIONAL MIGRATION INSTITUTE, THE
“FUNNEL EFFECT” AND RECOVERED BODIES OF UNAUTHORIZED MIGRANTS PROCESSED
BY THE PIMA COUNTY OFFICE OF THE MEDICAL EXAMINER, 1990-2005, Oct. 2006.
12
will stop when undocumented flows are regulated through legal rather than illegal
channels. 42
IV. A BRIEF HISTORY OF IMMIGRATION POLICIES
The following is a concise timeline of U.S. immigration law and policy, 43 with
special focus on the U.S.-Mexico border. Before we can determine where an
immigration policy consistent with the Rule of Law should go, we must review previous
policies and the socioeconomic pressures that have led us to where we are today.
1. Late 1800s and the early part of the Twentieth Century - Ebbs and flows in the
number of immigrants from Mexico were most strongly related to economic
requirements for migrant labor in the U.S. 44
2. 1917 - Passage of the Immigration Act imposed a head tax of eight dollars to
cross the border and a requirement to pass a literacy test, but interfered very little
with actual border crossing. 45
3. 1924 - A national quota system for visas to enter the U.S., established in 1921,
was first applied to Western Hemisphere countries; illegal crossings from Mexico
increased. 46 Congress created the Border Patrol. 47
42
Esbach, supra note 37, at 16.
43
For a more expansive history of Mexico-U.S. migration, see DOUGLAS S. MASSEY, JORGE
DURAND, & NOLAN J. MALONE, BEYOND SMOKE AND MIRRORS: MEXICAN IMMIGRATION
IN AN ERA OF ECONOMMIC INTEGRATION, Chapter 3, 24-51 (2002).
44
Id. at 24-33. These authors, among many others, remind us that the U.S.-Mexico border was not
firmly established as a practical reality rather than lines on a map until the early Twentieth Century.
45
PETER LAUFER, WETBACK NATION: THE CASE FOR OPENING THE MEXICANAMERICAN BORDER 72 (2004).
46
Id.
47
Massey, Durand, & Malone, supra note 44, at 33.
13
4. 1930s - The Great Depression eliminated the U.S. demand for immigrant labor
and heightened sentiment against Mexican workers on the border. 48
5. 1940s - World War II again created demand for Mexican workers, especially in
agriculture, and resulted in creation of the Bracero Program (1942-1963). 49 The
Bracero Program was a bilateral U.S./Mexico agreement, driven by the U.S.
demand for migrant workers. The U.S. committed that participants in the
program, recruited by the Mexican government and exempt from quota
restrictions because they were admitted only temporarily, would receive “wages,
living conditions, workplace safety and medical services comparable to those for
U.S. workers.” 50 U.S. employers never met these standards. 51 More than four
million Mexican workers entered the U.S. through this program. 52 In addition,
the INS avoided deporting undocumented workers during harvest seasons and
there were no employer sanctions. 53 This clearly flawed program is sometimes
cited as a “guest worker” system which should be reinstated. 54
48
Id.
49
See generally, PETER ANDREAS, BORDER GAMES: POLICING THE U.S.-MEXICO
DIVIDE 33-37 (2000); see also Laufer, supra note 45, at 74-75; Massey, Durand, & Malone, supra note 44
at 34-41.
50
Past, Present, and Future: A Historic and Personal Reflection on American Immigration:
Hearing Before the H. Comm. on the Judiciary, 110th Cong. (Mar. 30, 2007) (statement of Prof. Daniel J.
Tichenor, Eagleton Inst. of Politics & Political Science, Rutgers Univ.,
http://judiciary.house.gov/media/pdfs/Tichenor070330.pdf
51
Laufer, supra note 46, at 74-76. For a documentary-like movie about the conditions of Mexican
migrant laborers in New Mexico mines, see “Salt of the Earth” (1954).
52
Massey, Durand & Malone, supra note 44, at 38-39.
53
Tichenor, supra note 51, at 11.
54
But see Tyche Hendricks, Bush Guest Worker Plan Recalls Bracero Program: Thousands of
Mexican Workers Were Defrauded of 10% of Pay, San Francisco Chronicle (Jan. 16, 2004),
http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2004/01/16/BAG6U4BHOR1.DTL
14
6. 1954 - Operation Wetback was initiated by the Immigration and Naturalization
Service (INS). “More than a million undocumented Mexican workers were
deported after being recruited and used by American growers for years.” 55
7. 1965 – Immigration Reform. With passage of the Hart-Celler Act, Congress
adopted a family-based preference system, placing an annual ceiling on Western
Hemisphere visas at 120,000. 56 Congressional debate highlighted the complex
nature of immigration policy and turned up some strange bedfellows.
Surprisingly, immigration policy positions, especially with respect to
undocumented workers, do not follow the usual liberal-conservative, DemocratRepublican divisions. 57 For example, Cesar Chavez and liberal Democrats, who
might have been expected to express solidarity with and support for migrants,
strongly opposed undocumented workers because of labor competition issues and
opposed employer sanctions on grounds that ethnic job discrimination could
result. 58
8. 1976 – Republican President Gerald Ford established the Domestic Council
Committee on Illegal Immigration, 59 which issued the following finding,
expressing concern for undocumented migrant workers:
55
BILL ONG HING, DEPORTING OUR SOULS: VALUES, MORALITY, AND
IMMIGRATION POLICY 1 (2006).
56
American Immigration Law Foundation, A Short History of U.S. Immigration Policy,
http://www.ailf.org/ipc/policy_reports_1996_pr9613.htm
57
Tichenor, supra note 51 , at 1.
58
Id. at 12-13.
59
Id. at 13.
15
“People who are underground cannot be protected from job abuse or from
landlords, discrimination, disease, or crime; they may avoid education for their
children, and they are unable or reluctant to assert political or legal rights.” 60
The Committee’s findings did not agree with a political assault on illegal aliens
and opposed their characterization as taking American jobs, consuming public
benefits, and promoting crime and disease. 61 The Committee focused on
disregard for the Rule of Law and the creation of a vulnerable underclass. 62 The
Committee also cautioned: “Mass deportation is both inhumane and impractical
. . . . Police state tactics are abhorrent to the American conscience.” 63
9. 1977 - Democrat President Carter proposed a comprehensive plan 64 to address
illegal immigration, with heavy penalties for hiring undocumented aliens, as well
as use of the Social Security card to verify employee eligibility. President
Carter’s plan included an enhanced Border Patrol, but included amnesty for
undocumented workers in this country before 1970. Again, employer penalties
garnered strong opposition 65 from La Raza and the Mexican American Legal
Defense Fund (MALDEF) on civil rights grounds because they anticipated hiring
discrimination against anyone of Hispanic appearance or surname, whether
legally in this country or not. Law and order conservatives also opposed the plan
because of its amnesty provisions.
60
Id.
61
Id.
62
Id.
63
Id.
64
Id.
65
Id.
16
10. 1981 – Bipartisan Select Commission on Immigration and Refugee Policy
(SCRIP) Report 66 found that lawful immigration is a positive force in American
life and that illegal immigration is an urgent problem. The Report again focused
attention on a vulnerable shadow population of undocumented workers and the
need to protect their rights with a mechanism for achieving legal citizenship.
SCRIP endorsed more Border Patrol resources, employer sanctions and
legalization for current U.S. residents.
11. 1986 – The Immigration Reform and Control Act (IRCA), our current
immigration law contains amnesty provisions, weak employer sanctions, and
more Border Patrol funding. Contradictory provisions of the law and its
enforcement yield the conclusion that “[i]f the United States had set out to design
a dysfunctional immigration policy, it could hardly have done a better job. . .” 67
12. 1993–1994 – Operation Blockade in El Paso, Texas and Operation Gatekeeper 68
in San Diego, California. Despite INS pronouncements that these operations are
very successful, research shows that Gatekeeper has not reduced the number of
unauthorized border crossings, but simply “funneled” them from urban areas to
more remote, hazardous terrain and increased reliance on professional smugglers
66
Discussed in Tichenor, supra note 51, at 14.
67
Massey, Durand, & Malone, supra note 44, at 140.
68
JOSEPH NEVINS, OPERATION GATEKEEPER: THE RISE OF THE “ILLEGAL ALIEN”
AND THE MAKING OF THE U.S.-MEXICO BOUNDARY (2002). This book provides extensive history
and analysis of the border protection “crackdown” which resulted in an increase in the INS budget for
enforcement efforts along the southern border from $400 Million 1993 to $800 Million in 1997, expansion
of the number of Border Patrol agents from 4,200 in 1994 to 9,212 in 2000 [Statistics at page 4].
17
or “coyotes”, who have in turn increased their fees. 69 An unintended consequence
of border militarization and the increased cost and danger of border crossing is
that unauthorized migrants are staying in the country longer. 70
13. 1994 – North America Free Trade Agreement (NAFTA) 71
14. Sept. 11, 2001 – National Security issues seize national attention. U.S.-Mexico
talks about immigration issues halt. 72
15. Oct. 8, 2001, President George W. Bush established the Department of Homeland
Security by Executive Order 73 to assume responsibility for border security,
confirmed by the Homeland Security Act of 2002.
16. 2007 – Department of Homeland Security reports 74 that during President George
W. Bush’s term of office, funding for border security has more than doubled from
$4.6 Billion in 2001 to $10.4 Billion in 2007. Border Patrol Agents have
increased from 9,000 to 12,000, with the plan to reach 18,000 by year end 2008.
Thousands of National Guard troops have been deployed to assist the Border
69
Id. at 127-130. See also, BINATIONAL MIGRATION INSTITUTE, THE “FUNNEL
EFFECT” AND RECOVERED BODIES OF UNAUTHORIZED MIGRANTS PROCESSED BY THE
PIMA COUNTY OFFICE OF THE MEDICAL EXAMINER, 1990-2005 (Oct. 2006), at 30-32.
70
Nevins, supra note 68, at 128.
71
See generally, WILLIAM A. ORME, JR., UNDERSTANDING NAFTA (1996).
72
See Griswold, supra note 11, at 2, outlining early 2001 talks between U.S. President George W.
Bush and Mexican President Vicente Fox, which were expected to lead to a bilateral agreement “matching
willing workers with willing employers; serving the social and economic needs of both countries;
respecting the human dignity of all migrants, regardless of their status; [and] shared responsibility for
ensuring migration takes place through safe and legal channels.” [quoting from The White House, “Joint
Statement between the United States of America and the United Mexican States,” Washington, D.C.,
September 6, 2001, www.whitehouse.gov/news/releases/2001/09/20010906-8.html
73
http://www.whitehouse.gov/news/releases/2001/10/20011008-2.html
74
http://www.whitehouse.gov/infocus/homeland/
18
Patrol. Technology and infrastructure have been upgraded, including new border
fencing, lighting, and electronic monitoring. Deportations of illegal aliens totaled
more than 6 million people. Expansion of detention facilities facilitates the end of
“catch and release” at the Southern border.
17. Congress conducted extensive hearings on immigration. U.S. Senate tried and
failed to reach consensus on an immigration bill.
IV. IMMIGRATION POLICY – WHERE DO WE GO FROM HERE?
Because the 2007 efforts in the U.S. Senate to pass a comprehensive immigration
bill went down in flames, Congress – and the sharply divided American public – may
need a respite before this critical issue can be reexamined. That is unfortunate, to put
it mildly, because the twenty-year-old IRCA system is unquestionably broken. 75
Exorbitant expenditures on the current militarization of the U.S. Mexico border are
endangering lives and producing exactly the opposite results from those intended.
Unauthorized border crossings have not diminished. Deaths are increasing. Mexican
migrants who previously could have been expected to come to the U.S. for a few
years and return to their home country are now lengthening their stays. Employers
seldom receive any meaningful penalty for hiring undocumented workers, yet
gainfully employed workers have become the target of high profile work-place raids
and deportations. 76
75
See generally, Jorge Durand & Douglas Massey, The Costs of Contradiction: U.S. Border
Policy 1986-2000, Latino Studies 233-252 (2003). This article discusses particularly “the illusion of border
control” under IRCA and documents the cost of border militarization in terms of deaths, wasted tax dollars,
and depressed wages.
76
See, e.g., Mark Steil, Feds Raid Meatpacking Plant in Minnesota, Minnesota Public Radio (Dec.
, 2006), http://minnesota.publicradio.org/display/web/2006/12/12/meatraids/ ; Nathan Burchfield, Raid an
“Outrageous Use of Force” Union Says, CNSNews.com (Dec. 13, 2006),
http://www.cnsnews.com/ViewNation.asp?Page=/Nation/archive/200612/NAT20061213d.html
19
Congress devoted hundreds of hours during the spring of 2007 to hearing
testimony on all aspects of the immigration issue. We have the data to reform an
unworkable immigration law dating from 1986. Real progress, however, will require
the American public to look beyond a “talk tough” public relations push to solve our
post-9/11 problems with a border fence. 77
My recommendations are: First, decouple national security and immigration
policies. Inflammatory rhetoric about national security diverts attention from serious,
fact-based considerations about managing immigration.
Second, reduce spending and focus on the militarization of the border. This is an
ineffective, costly, deadly policy.
Third, establish a reasonable path to legalize undocumented workers who are
currently resident in the U.S. This must not impose an unrealistic fee or unreasonable
requirements to apply only from the country of origin.
Finally, resume bilateral talks with Mexico. This is a joint issue and it should be
resolved jointly. We have an opportunity to recognize the economic interdependence
between the U.S. and Mexico and tailor a plan specifically between these two
countries.
77
See generally, Peter Andreas, The Escalation of U.S. Immigration Control in the Post-NAFTA
Era, 113 Political Science Quarterly (Winter 1998-99) 591. This author points out that “[j]udged purely on
its actual deterrent effect, the enormous political popularity of the border control campaign seems rather
puzzling . . . . A failing deterrence strategy, however, can still succeed politically . . . . In just a few years, a
powerful image of control has been projected through a high-profile deployment of law enforcement
resources and personnel . . .”. Id. at 604.
20
Attachment A: 2007 Congressional Hearings on Immigration Topics
[TO BE INSERTED]
Attachment B: Map of the U.S./Mexico Border
Take the Map from http://www.fmcsa.dot.gov/images/us-mexico-border.jpg
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