Immigration "reform" in the US

Deferred Action for Childhood Arrivals “DACA” is Presidents Obama’s initiative to offer some type of movement in the stagnated area of immigration reform in the US.  While it appears to be receiving an enthusiastic response by some, DACA raises more questions than it answers both in form and substance. 

First of all, while Obama’s administration is considering DACA to be an enforcement issue, it is questionable that the executive actually has the power to take these steps.  Homeland Security Secretary Janet Napolitano considers DACA an “exercise in prosecutorial discretion.”  However, offering Social Security numbers to undocumented individuals seems to be much more comprehensive than merely deciding not to proceed with deportation prosecution.  It has not taken opponents long to seize on this fact, criticizing the administration for everything from a presidential power-grab to election-year pandering.  In my analysis, this initiative does appear to be more of a decree than anything else.  While presidential decrees are not considered a formal part of the US system of government as they are in other parts of the region, the exercise of presidential action like this fits in with a trend.  Over the past few administrations we have seen various means for presidents to increase their law-making power such as line item vetoes or signing statements that resemble this decree method of governing.  The fact that President Obama is using the same, especially in the face of near constant filibuster in Congress, should not surprise. The question here is what does this initiative do to advance real immigration reform?  Is DACA in fact setting precedent for future reform efforts?

In essence, DACA offers a narrowly defined group of undocumented individuals the opportunity to apply for a limited right to stay in the US.  For a processing fee of around $450 people who are under 30, have arrived in the US before they were 16, have lived here continuously for 5 years and have graduated from or are enrolled in a university or have served in the military will be offered a two-year temporary stay.   This temporary status may be renewed and includes the assignment of a Social Security number, which is essential to living and working legally in the US.  However, it does not offer a path to citizenship or even permanent residence.  This raises several very important issues.

First, DACA appears on its face to be creating a new category of immigrant in the US.  That is, a legal taxpayer with no opportunity to fully engage in the rights of US residents. (It is unclear how an individual with a valid Social Security number would be excluded from rights that other permanent residents enjoy).  Political scientists and human rights activists alike should shudder at the thought of administratively establishing a non-voting taxpayer.  It is wholly inconsistent with the foundations of a country created on the maxim of “no taxation without representation.”

Second, it creates yet another temporary immigrant category.  If anything should be learned from the immigration debacle in Spain, it is that temporary immigration categories create havoc, not only for the individuals, but also the granting and enforcing institutions.  Deadlines, processing times and costs all conspire to create instability and unnecessary bureaucracy.  If the policy decision is that these people deserve to live and work in the US in 2012, there should be no reason to think, ceteris paribus, they would be undeserving in 2014.  While the political imperatives to downplay this regularization with the term “temporary” are fairly evident, it is inconsistent and simply bad policy.   

Third are some slippery slope issues (even though such arguments are a rhetorical fallacy, allow me to indulge). Does DACA set a precedent for future efforts to reform immigration law? Does this new category of disenfranchised quasi-citizen stand a chance of becoming enshrined in US law?   What happens to these people once they are registered and down the line this program is closed down? It seems a fair concern to register with a government that may, at any time, decide to pursue you for deportation.

Ultimately, DACA sends very mixed signals, both to immigrants and the US population at large.  What does it mean to legally live and work in the US?  Do we as a society feel that innocent people (DACA candidates necessarily entered the country as minors and therefore have not broken any US laws by their own volition) should be free from the consequences of actions they did not choose to undertake?  What is the future for immigration policy? Will the US continue to have an open (if onerous) immigration policy?  And finally, what will be the real impact on the people who enroll in DACA? Will this program improve their lives in the long-run?  As I mentioned at the outset, DACA raises more questions than answers and only time will tell how many of these issues shake out.

US immigration policy through time

The United States has a longstanding identity as a country of immigrants; however, large-scale immigration to the US has been concentrated into four distinct periods.  1) the settling of the country including slaves, 2) the opening of the west, 3) industrialization between the civil war and, WWI and 4) the current period since the 1970s. All four of these periods coincide with economic transformation within the country.  Immigration policy, however, did not arrive until at least the second stage.

Of course, any examination of immigration policy needs to be undertaken in the demographic context of its time.  The size, composition and dynamic of certain demographic cohorts play pivotal roles in how people perceive migration and thus how policy makers decide to address the issue.  Consider for example the first US census carried out in 1790, that is, 14 years after independence.  At that time perhaps only 40% of the population would have technically been born in the United States (the data for women and slaves was not disaggregated), so any notion of a policy on immigration would have been absurd.  Due to limited immigration this was the case up until the 1830’s.  During that period immigration policy was left to the states with the federal government only entering the field in 1819 with the Steerage Act. 

The first reliable immigration statistics start in 1820 and identify 8,385 immigrants arriving to the US that year, nearly three-quarters of which were from the British Isles.  This second period of massive immigration to the US was dominated by Europeans, in particular Irish and Germans.  By 1850 the foreign-born population was estimated at 2,244,602.  The following chart illustrates the evolution of the foreign-born population between 1850 and 1930.  The red and green vertical lines indicate the passage of important immigration laws, with red identifying restrictive laws and green neutral or permissive laws.  (Of course this is an over-simplification, but does help to visualize the trend).  

It is interesting to note that several of the restrictive laws passed during this period focused on reducing Chinese immigration, while the percentage of Asian immigrants remained fractional.  Thus brute demography is only the tip of the ice berg of “context” with regard to immigration.  As Jerome Frank bitingly commented on the 1886 California zoning law case, In re Hang Kie, the decisions for law making do not always spring from the noblest human traits. (See Jerome Frank, Are Judges Human?)

A further look at this evolution shows that the origins of immigrants living in the US has changed dramatically, as Asia and Latin America have grown in importance.  Also, the frequency of federal lawmaking in the field has decreased (probably in part due to the delegation of administrative functions to immigration departments like the INS or the current USCIS).  Again, the red/green classification is a bit of an obtuse tool, but we can generally see that post-WWII immigration legislation has been relatively permissive. 

There are no clear conclusions that I would dare to posit regarding this information, and in fact, this brief examination raises more questions than it answers.  However, I think the key element here is that immigration policy analysis must launch from a contextual analysis, and the context for our world (and the focus of this blog) is globalization.  The world is no longer made up of island nations (if in fact it ever was), but an increasingly connected and fluid amalgam that challenges domestic laws and policies as never before.   Our understanding of immigration and immigration policy must use this understanding as our guiding star.

First post

This is my first foray into blogging so I thought I'd focus on two topics close to my heart and the connection between them. For the past six years I've been studying and working on immigration  issues (migration to be more accurate) in Costa Rica, Chile and Spain. Now I've just moved back to my native California to continue  working and studying in the field.
My background is in the study of globalization, that is, the idea of deeper or thicker flows of transactions involving goods, ideas, capital and people.  I felt that the most poignant element is and will be the flow of people. This blog will be dedicated to exploring some of these issues in a relatively free flowing style (something like musings, observations and rants) but with some simulacrum of narrative arc. As I mentioned, this is my first shot at blogging so bear with me  as I figure this out and this evolves into something that is hopefully interesting and useful in the ongoing dialog surrounding globalization and immigration.