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The Moral Choice in Immigration Policy

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...

If 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.

April 06, 2006

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The posting by Professor Hing is insightful and provides a excellent background to the emotional debate regarding immigration reform in the United States As long as the circumstances political, and socio economic exist in the developing world, pressures will exist of populations seeking a better way of life for themselves. The influx of undocumented immigrants is not merely a phenomenon in the United States but is part of a global trend where immigrants are seeking opportunities in the European Union , South Africa , Australia and indeed any nation that is perceived to allow potential for economic and political freedom.

Criminalization of undocumented workers will not stop the process of migration just create a new class of individuals who will exist in the shadows of American society.
Unless and until a coherent cooperative policy of economic reform is created to encourage immigrants that their best bet in the long run is remaining in their home country , the transmigration of the poor and dispossessed to the first world will continue. Mexico and many newly developing nations need to address the problem of loss of population through emigration by expanding the opportunities for the native population by economic and social reform. I suspect that for many countries the loss of population is merely viewed as an opportunity to earn overseas dollars and a welcome escape valve for the disaffected in their countries

As it stands, the undocumented need a means to be able to legalize and become part of the host country’s society. Keeping the undocumented in the shadows serves only the interest of the exploiter . however it is my belief that until the larger issue of economic and political reforms occur in the countries that contribute the bulk of the undocumented the tide of migration will not diminish

Thomas K. Mirabile J.D., LLM
Adjunct Professor Law
University of St. Francis

April 06, 2006  

Professor Hing makes some great points. I think the entire debate has neglected two things; the first being the plight of every other immigrant group; the second, outsourcing. I also think the previous comment makes great points. However, I don't think we can wait for the rest of the world to implement social and economic reforms to stem the flow of immigrants to the US. The leaders of the third world countries are quite happy with the status quo.

What is the root cause of the US "illegal immigrant problem?" Is it a set of broken immigration policies? I would say yes. The experience of a friend highlights the lack of logic in the legal process required to become a US Citizen.

My friend is from Eastern Europe, and is highly educated. He was in the US on a work visa. His sponsorship was lost when his company was purchased. He was forced to stop work and return to school to get a student visa.
He earned in excess of $100,000 per year and paid income taxes on his earnings. Now, he lives off his savings and pays no income taxes, and hopes to win a lottery for a legal spot.

The debate seems to center around "jobs Americans won't do." Major employers regularly eliminate jobs Americans ARE doing, outsourcing to the lowest bidder. Many formerly gainfully employed Americans are now under-employed, earning far less than they had been, and pay less income tax as well. Meanwhile, large, profitable employers are given tax breaks on earnings, and our national debt hits new records weekly.

Eliminating tax breaks on earnings resulting from outsourcing and overseas manufacturing and instead giving tax incentives to employers for all jobs retained in the US could be a start to solving one aspect of the problem. Another would be a guest worker program through which all nationalities and professions have a clear path to earning citizenship.

It's in everyone's best interest to eliminate the underground economies. The only way to ensure it happens is to craft thoughtful, inclusive, and fair policies.

April 10, 2006  

Professor Hing raises exceptionally good points on the national security and economic issues of immigration. There are many non-objective assumptions of the anti-immigration camp that although may protect a few in the short-term, ends up short-changing us all in the long-term. Although the United States was founded by a melting pot of immigrants, the immigration naysayers carelessly believe in the shut-door policy. What gives one the right to stop the American immigration tradition now? Who determines that one does not have a right to seek a better life? How stagnant would America become if we did not invite new workers with new ideas into our country? Despite popular believe immigrants do not enter to take advantage of public welfare but to work. Our GDP doesn't go up by conforming to the status quo and limiting the workforce, instead it rises by the simple law of supply and demand. Sure wages begin to level out as more workers must compete for jobs however more workers and more production mean more supply. As the supply increases one is able to get more for the same dollar (assuming inflation is steady).

Competing for jobs is not as dismal as it may sound. The logical flaw is assuming that the number of available jobs is fixed. The greater the volume and diversity of producers the more niche the possible jobs become. No longer are only 10 jobs available at the General Store but 100 jobs though specialization: a hardware store; a grocer; a mechanic's garage; a cafe and so on.

There are some "Americans" who do injustice to the Minutemen of yore. These neo-Minutemen believe in securing our borders at all costs. Everyone has a right to be free from terrorist or biological harm however no one has the right to deny another life, liberty and the pursuit of happiness. Protectionism breeds complacency. What incentive would one have to innovate when there is no competition for one's job? If the government puts a quota on H-1B tech visas that only serves to limit the jobs to those who earned them by the "right" of being a citizen not by the most qualified and hardworking individual. A society that places no premium on ability is a society that breeds mediocrity.

May 04, 2006  


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