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Immigration Reform: Check Your Premises

by Harry DeMell

There is much talk about immigration reform. There is talk about what to do and what not to. There is even much disagreement about what to do and what not to. Before we can have a meaningful debate we need to define what our general goals are. Once we have that mapped out we need to explore avenues to get there. Any reforms should have a solid base in fact and law. The basis for our ideas must be rock solid.

As a country we have to define our premises about what the system is all about and what we hope to achieve. In a broad way we can agree that we need to regain control over our boarders and have an immigration policy that will support our economy.

We might also agree that any policy must have a humane component to assist truly needed refugees and allow for the reunification of families.

Beyond these broad ideas we might find less agreement. Before we pass comprehensive immigration legislation we need to carefully define what needs to be achieved. That requires us to determine what premises we begin with to analyze our goals.

Premise one: Strict enforcement will lead to control of our borders.

This is not at all clear. Just like we were unable to prevent the sale of liquor during prohibition we can not stop undocumented entry into this country by enforcement alone.

We all agree that any national government has a duty and a right to control its borders and protect its population. Enforcement is a necessary component of any immigration control system. We have been increasing our enforcement efforts for several decades and this work has not yielded much in the way of results. The economic draw to our country has been relentless. The need for jobs outweighs the fear of arrest and deportation.

Strict enforcement alone has not done the job. We need another approach that combines enforcement with a realistic economic policy that allows employers to hire the workers they need and allows those workers to work here and visit their families in their home countries so that temporary work becomes their goal and not immigration.

In fact, enforcement has been uneven. The system enforces the law when aliens fall into its lap. It is a numbers game with the administrative agencies worrying more about their numbers than about really doing their jobs. Employer sanctions already on the books have been only sporadically enforced with the congressional community trying not to anger the business community that is so often the economic basis for their communities and their campaigns.

Traditionally borders have been porous and it is only during the last one hundred and fifty years that passports and documentation has been required. Before that there was little immigration control internationally. We are at an earlier stage of international control than we would like to believe.

In this world of terrorism, national security is essential and control of those who enter is essential in preventing terrorism and crime. How we control our borders is an issue to be debated. Control implies monitoring and determining who comes and goes into and from the United States. We would all agree that in this increasingly international world there should be a mechanism for people to come and visit, study, work and live. What we disagree about is the numbers and qualifications that these people must have.

Any immigration policy needs to include a component that allows workers to enter in a reasonably fast and economic way so that employers will find it advantageous to comply with the law. The more people comply, the better handle the government will have on the situation. That is not the way things work now.

Control of the borders includes making it difficult to enter and remain here without proper documentation but also allowing a realistic visa process for those who have legitimate reasons to be here. That visa process has become more and more difficult. Employers for the most part do not even begin the process of applying for workers because the process is unrealistically expensive and hyper technical.

It would be unrealistic to assume that we can eliminate all undocumented travel into the United States. It would be better to premise a policy on a mixture of enforcement and legal avenues that take into account the economic and social realities that drive people to come and go from one country to another.

During prohibition criminal activity skyrocketed in order to provide a commodity that was outlawed. The repeal of prohibition and the control of the alcohol trade yielded better results for all concerned.

Under the current system the number of persons who break our laws are so great that it would take an effort greater than the effort we now expend on all criminal enforcement in the United States to eliminate it. We would need a police state that few Americans really want.

Premise one falls short of being correct. It is an important part of a more comprehensive plan to regain control of the boarders.

Premise two: A legalization program will eliminate all illegal persons here and make future enforcement easier.

History tells us that this is completely wrong. During the last amnesty in 1986 some two million persons were legalized in an attempt to implement this premise. What we ended up with was a program rife with fraud. More importantly, we created an influx of illegal persons coming to America in the expectation of another amnesty. Today we are discussing a twenty million person problem; some ten times as great as the one we "fixed" in 1986.

Legalization has many names but amounts to the same thing: reward for improper behavior. It appeals to those who are looking for a quick solution and have a shallow understanding of the situation. Whether we call it "earned legalization" or "temporary registration" or "amnesty" the result is the same.

Premise three: The fewer people breaking our laws, the easier it will be to enforce our laws on those that do.

This is basically true. The smaller the problem the easier it should be to control.

By having an expanded worker visa program with realistic requirements we would make it profitable for more employers to work within the system thereby isolating those employers and workers who operate outside the system. There is a need to address the economic realities in our country. There are reasons why these jobs are available. It's a combination of foreign workers willing and able to work for lower wages but it's also because American workers do not want many of the jobs available.

Since undocumented workers constitute the lion's share of undocumented persons in the United States we would be in a much better position to identify those outside of that system. Premise three is essentially correct. If more people comply with the law those that don't are easier to find. It becomes more difficult to remain in controversion of our laws when everyone around you complies.

Premise four: All aliens in the United States should be treated the same.

There is no reason why we cannot break our illegal population into classes and treat those classes differently. There would be no argument that we could classify criminal aliens differently than we would others. Why not go a step further and classify relatives of citizens differently? Why not allow employment compliance that encourages legal taxpayers to obtain immigration preferences over those who are not taxpaying productive workers?

A rational policy will classify aliens according to different standards such as family connections, their ability and history of productive employment and their prior history of complying with our laws.

If we were to give preference to some aliens to allow them to legalize it should make sense to first allow those with approved applications to obtain residence before those who have no status at all. Those aliens would have approved family or employment petitions. Shouldn't we consider granting some preference to aliens paying and filing taxes or those who are willing to serve in the military?

There is precedent for this. We have had a 245i program in the past allowing those aliens with applications filed before a certain date to complete their applications in the US. Other aliens would have lesser rights. This could be revived in some form. The danger here is that an overly broad application of this law might be interpreted as an amnesty provision and encourage another wave of undocumented immigration.

There is no rationale at all for a one size fits all solution to the immigrant problem. This one size solution only makes sense to those who have a minimal understanding of our system and its problems. These people need to hang their opinions on a sound bite instead of a comprehensive understanding of the system and its potentials. Unfortunately this includes many in congress.

Premise five: We have to treat all nationalities the same.

There is no basis for this. We have a national interest in first allowing workers to come from those countries where there is an economic or political benefit for us to do so.

It is in the American national interest to have strong neighbors both economically and politically. Stable neighbors add to our national security. Our closest neighbors are in the western hemisphere. The very closest neighbor is Mexico.

A policy that gives employment preference to natives of the western hemisphere does not have to include an immigrant component. Not every work visa must lead to permanent residence and U.S. citizenship.

Just allowing temporary workers to come to the United States to engage in taxpaying employment while allowing them to regularly visit their families abroad will allow these workers to build a stronger middle class and stabilize their economies and their governments. This is nowhere more important than in Mexico where poverty has spawned a drug war that could conceivably destabilize that government and create a massive refugee, military and political problem for us. Since most illegal immigrants are Mexican it is essential that we get a handle on this part of the problem if we are to have any hope of controlling our borders at all.

There is every reason to give employment preference to nationals of the western hemisphere, especially Mexico. There is precedent for this. Before 1965, our immigrant quota system separated nationals of the western hemisphere from nationals of the eastern. There were racist reasons behind some of this but in the current climate these reasons are no longer acceptable and in fact a separate western hemisphere quota and nonimmigrant work visa system will work to the advantage of those that these quotas once hurt.

There is a fear that some aliens pose a terrorist threat. This is not an issue among Mexican and western hemisphere natives. Our concerns about the drug war spilling over into the United States are all too real but need to be addressed differently.

Nationals from all countries should still be able to come as highly skilled workers, entertainers, aliens of distinguished merit and ability and other ways but lower skilled employment should be limited to our western hemisphere neighbors. Employment in these areas will be most beneficial for the United States and our neighbors.

Premise six: All programs must lead to citizenship.

All programs do not have to lead to citizenship. This premise that any program has to lead to citizenship has no basis in fact or reason. Students who come here usually intend to return to their home countries. We should assume workers wish to return also.

If we choose to bring our illegal workforce out of the shadows we might consider a program of work authorization that does not lead to permanent residence or citizenship. We currently have a temporary protected status program for some countries that leads nowhere so there is precedent for this approach.

Massive deportation of all undocumented persons if done too quickly might destabilize out neighbors and their governments creating significant foreign policy concerns. It makes more sense to employ these persons than pump massive foreign aid into their troubled governments.

We should not want anyone who is not committed to the American dream. Some are committed to work and send money home. As long as they comply with our laws and assist in our economy we should allow it.

We do not want anyone who does not want us. If they love the American dream and believe in our values there should be a path to residency and later citizenship. These paths already exist. They require compliance with our laws and those laws contain quota waiting lists. If they want to come and work and make money and leave there should be a path for that. If they hate this country and the values that we stand for we should show them the exit.

Premise seven: We can trust Congress to do the right thing.

If you believe this premise it is because the Easter bunny told you so. Both political parties are interested in pleasing one constituency or another and in the process securing their reelection. Very few in congress have the long term good of the nation in mind.

Most congressman hope to please their Hispanic constituencies. As you can see from my opinions on premise five I am in agreement but for very different reasons.

The Hispanic community is a hardworking community that supports our American values and are an asset to out country. They would be the first to tell you that persons waiting on long quota lists and who have obeyed the law should be the first to be rewarded in any legislative program. This is partly because many of them have relatives who have been eagerly waiting their turns on the lists and because in many cases they themselves had to wait and navigate the system to legally obtain the status that they did.

Congress's opinion that some form of amnesty will somehow buy them votes among Hispanics is misplaced. In the last presidential election the candidate who was at the forefront of a legalization for all undocumented aliens was the one who lost the Hispanic vote and the election.

The congressional approach is to consider public opinion for the next election cycle. We live in an increasingly ADD society. Corporate management only considers what is good for them during their next quarterly financial report and congress only worries about the next election. This amounts to poor leadership.

The decision making process in this area might be better if we have major input from persons who have nothing politically to gain and take the long term view. We might seek congresspersons who have few aliens in the districts to lead the process.

We need to encourage voices of reason. We would want to discourage those on the extremes like Lou Dobbs or those that support a complete amnesty form participating.

Premise eight: We have to have a comprehensive immigration reform bill.

The problem wasn't created overnight and it won't be solved overnight. There is no rational justification for a comprehensive bill without a national consensus and there is no such thing now.

Each time congress has tackled the problem they have created an increasingly complex system that is further and further out of sync with the economic and social realities in the real world. We should consider a piecemeal approach.

We need to break the problem down to bite size pieces. How to do this would require an article many times longer than this one but there are a few items that I would propose.

There are many people who have tried to comply with our laws but for some technical reason have not done so. If aliens have a valid application for residence let them complete it. Legislation passed in 1996 and signed by President Clinton created barriers to residence for between one and two million persons with approved applications. Those that have tried to comply should be the first to be allowed to complete the process. Leave the undocumented alone for now.

Create a western hemisphere guest worker program. There was one once called the Bracero program. It was cancelled because of abuses in the system. It was like throwing out the baby with the bathwater. We need to do it better this time.

The president can create policy initiatives through regulation to reverse a negative result oriented decision making process that has discouraged compliance with our laws.

The president can also use his administrative rule making process to allow the immigration court system more discretion in detention and benefits. We are incarcerating and punishing the wrong people because of a rigid system that discourages judges from using their judgment.

Most of all we need to approach our immigration problems from a point of view that is neither anti-alien nor pro amnesty. We need a policy that is pro-American.