Immigration has been a heated and controversial topic of discussion in the United States for a long time. Public opinion has always been divided as to whether the country should allow immigration or restrain it. Still as debate continues, the US continues to receive immigrants in their hundreds of thousands every passing year. Much has been done about immigration especially in terms of legal and social policy. The first piece of legislation on immigration was the 1790 Act which sought to limit immigration to only free white persons from Europe. However, the Act was not as comprehensive as the 1924 Act which attempted to bar Eastern and Southern Europeans from entering America at a time when immigration was at its peak.
However, the Immigration and Nationality (Amendments) Act of 1965 popularly known as the Hart Cellar Act is solely responsible for opening the floodgates of immigration by abolishing the quota system and allowing equal treatment of immigrants from all races and ethnicities. The Immigration Act of 1990 also increased legal migration by waiving some of the provisions of the 1952 Immigration and Nationality Act. Since then there have been various legal reforms seeking to stem the tide of immigration. The current immigration law places the bar too high for persons seeking legal permanent resident (LPR) status and subsequent governments have had to grant amnesties to illegal immigrants. This paper looks at the ways in which the current immigration law can be amended to make it more just.
The Immigration Act of 1990 (IMMACT) signed into law by George. H. W. Bush forms the basis of the current immigration law. The act provides the requirements and limitations for persons to be granted legal residency in the US. The Act places a cap on immigration by allowing a maximum of 700,000 legal immigrants annually. It also provides the criterion for preference in granting permanent residency (LPR) which favors family reunification and employment-related immigration as the chief reasons for granting LPR status respectively.
There are other Acts such as the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) which have certain provisions that touch on the issue of immigration. The AEDPA stipulates certain criminal acts such as terrorism which may be used as grounds for revocation of LPR status and in some cases, mandatory detention. The IIRIRA on the other hand provides a comprehensive coverage on the issue of illegal immigrants with emphasis on their legal status, rights and responsibilities. The Act also provides for deportation of illegal immigrants.
While these laws form the legal framework for admission of immigrants into the country, the US immigration policy is much more responsible for the demographics behind immigration (Zolberg, 2006). The policy usually informs the government’s treatment of immigrants irrespective of the law. The reason for this is that the issue of immigration is usually affected by the politics of the day and therefore a change in government brings with it various changes in policy. A good example of this is the change in immigration demographics since 1990 between Republican presidents and Democrat presidents yet the law remains more or less the same.
History of Immigration Law
The United States is a country that has been historically shaped by immigration. Berthoff (1953) states that the country began receiving immigrants as early as the late 17th Century and early 18th Century when European immigrants mainly those of British origin crossed the Atlantic as the ‘pioneers’ of a new America. It is estimated that around 175,000 Englishmen entered America during this period to make it a British colony. Most of the immigrants at this period in time were indentured servants who were contracted by the ‘pioneers’ to work for them for a certain period without pay in exchange for food , transportation and/or accommodation before they could settle into the ‘new world’ (Yans-McLaughlin,1990).
The late 18th century saw an influx of immigrants from northern Europe who were mainly young persons seeking employment. The Naturalization Act of 1790 to determine who qualified to become a US citizen from the growing number of immigrants. The Act specified that only free white immigrants considered to be of good moral character could be naturalized to become American citizens. The Act was later amended to allow naturalization of black persons in 1870. It was only until 1952 that naturalization of Asians became possible since the amended Act prohibited all forms of discrimination in granting citizenship.
Before 1820, about 8,000 immigrants were entering America annually, the number gradually increased thereafter owing to the growing strength of the American economy and availability of employment opportunities in both the skilled and unskilled sectors. Alexander (2007) states that between the years 1836 and 1914, 30 million European immigrants entered America. Due these large numbers, the US passed its first legislation on immigration in 1875. The Act sought to provide rules and regulations that immigrants had to adhere to before being allowed to enter the country.
In 1907, a staggering 1,285,349 Europeans immigrated into the country and by 1910, the number had grown to 13.5 million (Alexander, 2007). This led to the introduction of the Emergency Quota Act in 1921 and Immigration Act of 1924 which for the first time restricted the number of immigrants that could be allowed into the country in a year. This quota system also discriminated immigrants based on their origin with preference being given to western Europeans. The 1924 Act particularly intended to restrict the entry of Jews, Italians and Slavs who had begun to enter America in huge numbers. As a consequence, many of the European refugees fleeing Nazi rule were locked out of the country during World War II.
In the 1930s, during the Great Depression whose economic effects lasted ten years, immigration to the US dropped substantially and only begun to pick up in the early 1940s. In fact, for the first time in US history, there were more emigrations than immigrations. The government also begun encouraging people to leave and started a repatriation program for Mexicans. In 1954, Operation Wetback was launched which saw the deportation of 1,075,168 Mexicans.
Some form of reprieve for immigrants came through the Immigration and Nationality Act of 1952 but the realest gains were made via the 1965 amended Act popularly known as the Hart-Cellar Act which abolished the quota system and extended immigration rights to all persons irrespective of their origin or ethnicity. The Act led to an immigration boom from non-Europeans and by 1990, European immigration only accounted for less than 20% of annual immigrations (Yans-McLaughlin, 1990).
In 1990, the current Immigration Act was passed increasing the maximum number of legal immigrants from 500,000 to 700, 000. The Act also made certain changes to the requirements for entry such as the removal of AIDS as a restricted disease and homosexuality as a ground for refusal of entry. The Act also introduced a lottery program which allowed persons in countries where the US does not grant visas often to acquire visas.
Since the enactment of the Act, immigration has continued unabatedly with over 8 million immigrants entering America between 2000 and 2005 with over half of them being illegal immigrants. The US Congress has had to grant seven amnesties to these illegal immigrants preventing the application of immigration law to expulse them. There have been various attempts at legal reform with an example being Clinton’s Commission on Immigration Reform which recommended reducing the number of legal immigrants but granting them more rights. However, the law remains unchanged in its current letter and form which is to discourage and deny immigrants some of their basic human and civil rights.
Analysis of the current immigration law
Under the US Constitution, the issue of immigration is a federal issue with states having limited jurisdiction on few aspects of immigration. The US Congress holds full exclusive authority on immigration and the President’s power is only confined to refugee policy. The US courts also have no stake in the issue unless constitutional matters come up. This means that the only way to change immigration law is through a bill in Congress.
The 1952 laws that deal with Immigration and citizenship which is also known as the 1952 Act, identifies a foreigner/ alien as someone who is not a citizen or a national of the United States. The scope of immigration act is thus to decide the legal rights and duties of aliens and also the processes through which certain aliens can acquire residence or become citizens with full rights and privileges through naturalization. Immigration law also handles the issue of entry into the borders determining who should enter, their mode of stay and the length of their stay.
Previously, the INS was the sole agency dealing with issues of immigration. However, in 2003, the Department of Homeland Security was established replacing the INS with three different agencies; the Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Enforcement (CBE). The ICE deals with enforcement of all matters concerning asylum, naturalization, asylum, and permanent residence.
The USCIS on the other hand oversees lawful immigration and provides accurate and useful information on issues of immigration. Accordingly, it also gives the right to citizenship and even benefits that are associated with immigration, encourages responsiveness and proper indulgent of nationality, and guarantees the veracity of the system of immigration. The CBE deals with all pertinent border patrol duties. The U.S. Department of State (DOS) is another important agency in immigration since it manages consulates and embassies of the US around the world thus deciding whether to grant visas or not.
As earlier stated, the US has had to deal with the issue of immigration since its birth as a country. Motomura (2006) states that since then the country has had three approaches in its treatment of immigrants. The first, which was during the 19th century, perceived immigrants as prospective citizens and therefore upon entry they enjoyed all privileges including the right to vote in some states. At this stage, the country was still ‘marketing’ itself as an alternative to the European economic domination.
The second approach was in the first part of the 20th century and it involved ‘immigration by contract’ where the country allowed persons who were literate and skilled to enter the country in restricted numbers upon which they could be granted limited legal rights until they became citizens. The third and current approach is ‘immigration by affiliation’ where only those immigrants who have some deep-rooted connection with the country can enjoy preferential treatment e.g. those with families in the US and have worked there for quite some time.
The last approach is now the most dominant position in US immigration policy today. In 2009, 66 percent of all immigrants into the US who were granted LPR status were granted the said status on grounds of family reunification alone. The other reasons for granting LPR status were; humanitarian grounds which accounted for 17 percent and employment skills accounting for 13 percent of LPRs. This is different from the 17th and 18th centuries where immigrants were allowed on the basis of their employment skills and nationality.
The rights of aliens in the current immigration law are very limited. Aliens in this case refer to all immigrants who have not been naturalized into citizens. In most states, aliens are denied rights of free movement, government support and at times liberty when they are detained for long periods. Aliens do not also qualify for civil liberties such as the right to vote. In some states, they are also not granted driving licenses and also they cannot possess firearms.
Weissman & Headen (2009) state that due to frustrations by local law enforcement due to the failure by congress to tame what they perceived as a growing immigration problem, they began targeting immigrants under the pretext of aiding the ICE in immigrant handling. After the terrorist attack in the US on September 11, 2001 (9/11), Weissman & Headen (2009) state that hopes for better treatment of immigrants were dashed. Instead public support for immigrant rights which was at around 60 percent fell to lows of about 40 percent.
Congress subsequently passed various Acts such as the AEDPA and PATRIOT Acts which sought to limit liberties that were perceived as allowing leeway for terrorists to thrive. Xenophobia rose in the US and the concern for human rights was overshadowed by the concern for security. Efforts to bring about immigrant reform were thwarted and proponents such as Ted Kennedy found it hard to convince their fellow politicians after 9/11 that there was need to accord more liberties to immigrants.
What needs to be amended?
Weissman & Headen (2009) indicates that the authority given to the ICE under section 287 (g) of the INA to involve local law enforcement officers in immigration enforcement under the so called Memoranda of Agreements (MOAs) has allowed immigrants to be targeted by local law enforcement. These officers lack training in immigration enforcement and therefore immigrants including those who are lawfully in the country suffer discrimination and harassment in the hands of local officers. Weissman & Headen state that these MOAs needs to be done away with and the ICE should be the sole immigration enforcement body. This would require an amendment of section 287 (g).
Another necessary amendment is the removal of quotas for the number of immigrants to be granted LPR status. Instead, LPR status should be granted to all immigrants who fit the particular criteria for selection. Additionally, the Act should balance immigration to allow unskilled workers from poor countries to have equal opportunities to enter the US as skilled workers from wealthy countries since there is demand for both in the country (Appel, 2009).
With the absence of comprehensive immigration law detailing the rights of both legal and illegal immigrants, local states have formulated their own legislation seeking to curtail immigrant rights. These legislations have often been found unconstitutional a good example being that of Hazelton, Pennsylvania which attempted to bar immigrants from accessing housing and employment opportunities. To remedy this, the INA needs to be revised in a manner that the rights and liberties of both legal and illegal immigrants are properly stipulated in federal law.
During the Bush Administration, the Attorney General, Michael Mukasey declared that immigrants have no constitutional right to a defense attorney during deportation proceedings (Eley, 2009). This in itself is a denial of the due process of law guaranteed to all persons via the Fifth Amendment. Immigrants, including those in the country illegally need to be accorded a fair hearing since this is a principle of natural justice.
Another breach of natural justice is the detention without trial by ICE officers of suspected illegal immigrants (Weissman & Headen, 2009). While it is the duty of ICE officers to enforce immigration law, they must do so in a manner that respects basic human rights. Torture and detention are two of the worst violations of human rights that no self-respecting country should use as part of its justice process. ICE officers need to be trained on how to handle immigrants in a manner that respects the fact that immigrants, whether illegal or not, are human beings who enjoy certain basic rights based on that reason alone.
While it is not reasonable or realistic to require that all immigrants be granted equal status as citizens e.g. by being granted the right to vote, certain rights should be extended to them. The right to be granted a driving license for example does not in any way threaten the safety or security of the country in any way and it should therefore be extended to immigrants who have attained the right age.
This part looks at the reasons why there is need for immigration reform in America. First among the chief theoretical foundations for immigration reform is the Principles of Natural Justice Approach. This approach states that human beings generally enjoy certain rights that are immutable (Meilander, 2001). These rights include rights to a fair hearing, fair notice, reasons for decisions made against them, and right to legal counsel. Our immigration law should recognize these principles and require that they be extended to all immigrants irrespective of their legal status.
Another approach is the Constitutionality Approach. This has been the most fronted reason for immigration reform. While the US Constitution makes no particular reference to illegal aliens, the courts have often held that the basic rights and freedoms extended to normal citizens are extended to them (Longley, 2011). Opponents have argued that the statement “We the People of the United States” refers exclusively to US citizens, the Supreme Court has disputed this argument in several cases such as; Yick Wo v. Hopkins (1886), Wong Wing v. US (1896) and Phyler v. Doe (1982) where it enforced the rights of immigrant workers.
In determining whether First Amendment rights are extended to all persons or just US citizens, the Supreme Court has often based its rulings on the 14th Amendment principle that guarantees equal protection under the law. Therefore all persons are guaranteed protection under the 5th and 14th amendments due to the Court’s interpretation. Additionally, the Congressional Committee that drafted the 14th Amendment stated that:
“The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another…. It [the 14th Amendment] will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction.” (Longley, 2011)
Based on the above alone, any attempt to bar immigrant rights is in itself unconstitutional. However, there are certain constitutional rights that are only granted to citizens such as the right to vote and to bear arms. However, the basic fundamental constitutional rights are extended to all persons including illegal immigrants.
The third approach is the moral approach. This approach states that there are certain acts that are repulsive to all human beings despite their nationality, race or creed. This means that there is a standard of morality that is universal. The approach therefore requires that immigrants need to be treated in a manner that can be considered moral and ethical (Appel, 2009). This means that immigrants should be granted those rights that enable them to enjoy their life without unnecessary suffering or inconvenience.
Morality is against all forms of discrimination and unequal treatment. Using this approach, the immigration law needs to be amended to remove all aspects of discrimination during entry or in the granting of residency and citizenship status. Additionally, it would require elements of torture and detention to be prohibited since they are morally reprehensible. It would also require humane treatment during deportation proceedings and treatment of illegal immigrants in a dignified manner befitting their status as human beings. Additionally, morality would require that refugees and asylum-seekers be protected by the government in lieu of their desperate situations.
The INA, being the substantive immigration law needs to be amended in a manner that promotes fairness and justice to immigrants. While the Act does not need to extend all legal rights to immigrants since this would be contrary to public policy, it should grant basic rights and freedoms to aliens. These rights include fair hearings during deportation proceedings, right to legal counsel, freedom from torture and inhuman treatment, and the right to basic needs such as food, water, treatment and shelter (Molina, 2006). Immigration reform does not have to mean that the gates are open for all to enter but that all those that enter the USA feel that they are in a country that respects basic human rights and equality for all.
Alexander, J. G. (2007). Daily Life in Immigrant America, 1870–1920: How the Second Great Wave of Immigrants Made Their Way in America. Chicago: Ivan R. Dee.
Appel, J. (2009).The Ethical Case for an Open Immigration Policy. New York: New York University Press.
Berthoff, R. T. (1953). British Immigrants in Industrial America (1790-1950). Indiana: Indiana University Press.
Eley, T. (2009). US Justice Department rulings target immigrants’ legal rights. Web.
Longley, R. (2011). Do Illegal Aliens Have Constitutional Rights? Courts Have Ruled They Do. Web.
Meilander, P.C. (2001).Towards a Theory of Immigration. New York: Palgrave Macmillan.
Molina, N. (2006). Fit to Be Citizens? Public Health and Race in Los Angeles, 1879-1940. Los Angeles: University of California Press.
Motomura, H. (2006). Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States. Oxford: Oxford University Press.
Weissman, D.M., & Headen, R.C. (2009). The Policies and Politics of Local Immigration Enforcement Laws. American Civil Liberties Union. Web.
Yans-McLaughlin (1990). Immigration Reconsidered: History, Sociology, and Politics Oxford: Oxford University Press.
Zolberg, A. (2006). A Nation by Design: Immigration Policy in the Fashioning of America. Boston: Harvard University Press.