JURIST Guest Columnist Bill Hing
of UC Davis School of Law says that immigration legislation now being debated in Congress presents lawmakers with a moral choice, and that in its own economic, social, and national security interests it's time for the United States to do the right thing...
f anti-immigrant forces in Congress have their way, illegal immigration would be a crime punishable by death, being undocumented would be a felony, and raids of restaurants, hotels, and construction sites would be common daily occurrences. As we have seen in the news of the past few days, what to do with the estimated 11 million undocumented immigrants in the United States has hit the front burner of Congress after being pushed aside for more than four years by the events of 9/11.
What to do about millions of undocumented immigrants is not a new question for U.S. policymakers. When the Immigration Reform and Control Act of 1986 (IRCA) was passed, Congress chose legalization (or amnesty) as the answer, coupled with employer sanctions in theory to dissuade future undocumented migration by making it unlawful for employers to hire the undocumented. At the time, members of Congress perceived only a handful of alternatives: first, to legalize many of the immigrants, second, to find and deport them, or third, to do nothing. The third option was not an option given mounting pressure to do something, and the second option (which is touted by many today) was considered unworkable, given the expense and effort that would be necessary to round up and deport millions of individuals, while possibly violating the civil rights of many during the process. Today a fourth choice — a large-scale guestworker program — is being advocated by President Bush.
The House of Representatives acted first, by passing legislation just before Christmas. Sponsored by Congressman James Sensenbrenner, the law would increase enforcement against employers who hire undocumented workers, make it a felony to be undocumented, and promote immigration enforcement cooperation between federal and local officials. A central part of the legislation would be the construction of a 700-mile fence along the U.S.-Mexico border. These ideas have now been incorporated in Senate legislation introduced by Senate Majority Leader Bill Frist. The problem is that the fence idea has been tried; it won’t work, and the result will be countless more unnecessary deaths.
Beginning in 1994, the Clinton administration implemented Operation Gatekeeper, a strategy of “control through deterrence” that involved constructing fences and militarizing the parts of the southern border that were the most easily traversed. Instead of deterring migrants, their entry choices were shifted to treacherous terrain—the deserts and mountains. The number of entries and apprehensions were not at all decreased, and the number of deaths due to dehydration and sunstroke in the summer or freezing in the winter dramatically surged. In 1994, fewer than 30 migrants died along the border; by 1998 the number was 147, in 2001, 387 deaths were counted, and this past fiscal year 451 died.
Motivations for continued migration call into question the likely effectiveness of the expansion of Operation Gatekeeper if the goal is to discourage border-crossers. Beyond the economic situation in Mexico, a socio-economic phenomenon is at play. The phenomenon is the long, historical travel patterns between Mexico and the U.S., coupled with the interdependency of the two regions. Migration from Mexico is the manifestation of these economic problems and social phenomena. The militarization of the border does nothing to address these phenomena. Instead, it is killing individuals who are caught up in the phenomena.
Understanding the economic and social situations in Mexico and the United States and the nature of their relationship enables us to formulate better approaches to border crossings and migrations. A real solution would address push-pull factors and the economic needs of both countries. For almost two years, President Bush has proposed temporary worker plan that, with modifications, makes more sense than Sensenbrenner-Frist enforcement only legislation. As a nation, the United States ought to do the right thing, especially when it comes to Mexican migrants given our long historical ties with Mexico. We have demonized the undocumented, rather than see them for what they are: human beings entering for a better life who have been manipulated by globalization, regional economies, and social structures that have operated for decades. The right thing to do is to develop a system to facilitate the flow of Mexican migrants to the United States who are seeking employment opportunities. Given the economic imbalance between the two nations, we know that the flow will continue—legally or otherwise. By legalizing the flow through a large guestworker program, we ease pressures at the border (thus freeing up personnel to concentrate on the serious challenge of looking for terrorists and drug smugglers), address the labor needs of employers, bring the undocumented out of the shadows, and ends unnecessary, immoral border deaths that have resulted from current enforcement strategies. But we have to do this in a manner that provides the workers with respect from other Americans and hope for membership. Thus, a path toward earning permanent residence after a period of time, as proposed by Senators John McCain and Ted Kennedy has become a critical ingredient of bipartisan legislation before the Senate today.
Legalizing undocumented workers, coupled with a large worker program, is also in the interest of our national security and constitutes a step that would aid our country in its efforts to combat terrorism. By offering a program that would encourage undocumented workers to come forward, we would be able to conduct background checks on a large group that currently lives underground, while freeing up investigative resources to concentrate on real threats of terror at the border and within our borders. These new community members would be more inclined to participate in civil society and aid law enforcement efforts directly. Legalization would promote family reunification and the psychic benefits derived from enjoying the comfort of family. With more definite status, wages and working conditions for the new Americans and consequently all Americans would improve.
We have a choice of the Sensenbrenner-Frist death trap, police-state, or a path to enfranchisement for these individuals on whom we have depended upon for generations. Our economic, social, and national security interests demand that we pursue the moral choice.Bill Ong Hing is Professor of Law and Asian American Studies at the University of California, Davis and the author of
Defining America Through Immigration Policy (Temple Univ. Press 2004). His forthcoming book
Deporting Our Souls — Values, Morality, and Immigration Policy will be published this year by Cambridge University Press.