Immigration Principles and Policies

That immigration is an issue with volcanic political and social potential in the US needs no elaboration.  Congress has displayed deep reservoirs of timidity in addressing the matter, although the approaching election season at least inspired them to approve hiring 1500 more immigration officers for the southern border.  But until the federal government tackles the underlying issues with more vigor than it has shown to date, more Arizona uprisings are inevitable.  This essay explores these fundamental issues, identifies principles for their resolution, and proposes some solutions.

People, Migration and the Earth. Starting with the broad context can help put today’s issues in perspective.  We are a migrating species, having begun to move around our temporal home, Planet Earth, a long time ago.   According to the Genographic Project of the National Geographic Society, genetic evidence from the “Y” (male) chromosome has established that all humans living today are descended from one man (and woman) in Africa who lived some 60,000 years ago, a time period that coincides with the earliest evidence of art, trade, refined tool-making and other signs of a distinctly human presence on earth.  Humans migrated first throughout Africa, and then moved to the Middle East and onward to all continents.

This early migration was closely linked with subsistence, as small communities of hunter-gatherers sought food, water and shelter where they could find it, and then moved on.  Around 7-8000 B.C., people in some areas began to grow grains, fruits and vegetables and thereby to found more permanent settlements, causing mass migration to slow down substantially.   The rise and fall of empires and kingdoms led to alternating periods of stability and migration until the emergence of a more “bordered” world of sovereign states in Europe around 1500, a structure that eventually became the model for the world we live in today.

International Law. A world system of 192 independent, internally sovereign states with defined borders has obvious implications for migration, starting with the fact that these states occupy all of the inhabitable land on the planet.  They have also come to comprise an international community that has enacted a body of law to achieve common purposes, such as the protection of territorial integrity, the maintenance of peace and security, and the promotion and protection of human rights.   Most relevant to migration is Article 12 of the binding International Covenant on Political and Civil Rights, to which the US is a party and which defines the right to freedom of movement thusly: “Everyone lawfully within the territory of a state shall, within that territory, have the right to liberty of movement and freedom to choose his residence.  Everyone shall be free to leave any country, including his own….No one shall be arbitrarily deprived of the right to enter his own country.”   Neither the Covenant nor any other universally binding international agreement confers a right to enter a country other than one’s own.

Before looking at US law and policy, we should be clear about whom we are talking in the immigration context because the media habitually confuses key terms, blurring crucial distinctions and contributing to public misunderstanding.

1) Intending immigrants are people who want to leave their home country voluntarily for any of a number of reasons, but typically to seek better economic conditions for themselves and their families.  They have a general right to apply for admission anywhere; that is, they can knock on any door, but whether or not they are admitted is determined by the country they want to enter.

2) Refugees, a special category under international and US law, are defined as people who have fled persecution or the threat of persecution on the basis of religion, race, ethnicity or political opinion.  International law imposes an obligation on states not to forcibly repatriate genuine refugees to a country where they have or suffered or would likely suffer persecution on any of these grounds.  First, of course, states must determine whether the applicants are really refugees.  The international community established a permanent agency, the Office of the UN High Commissioner for Refugees, to verify applicants’ claims to refugee status (though the state has the ultimate decision in the matter), to provide protection and temporary material assistance to certified refugees wherever they may be, and to facilitate their safe return home or permanent resettlement.   Each country willing to resettle refugees applies its own laws, policies and priorities in determining individual eligibility and the number to accept.  The US resettles an average of 50-100,000 bona fide refugees a year.

3) Although persons fleeing their country because of natural disaster, an epidemic, or an outbreak of fighting that does not particularly target their group are often described by the media as refugees, they lack this standing under the law.  Many states, including the US, grant temporary safe haven to such persons, often in great numbers, on purely humanitarian grounds.  These situations are not yet governed by a uniform international treaty, and states deal with them on an ad hoc basis.

4) Internally displaced persons leave their homes for reasons such as natural disaster or civil or international war, but because they remain within the borders of their state they are not refugees under international law.  International humanitarian organizations are frequently (though not always) given permission by the relevant local authorities to provide temporary food, shelter, medical care and the like to internally displaced persons.

Policy Principles. Objectively speaking, all humans have an inherent value that makes us, at the deepest level, equal to all other humans, with an equal right to live somewhere on the planet.  It is a reality of the present age that everyone needs to live in a defined political community, a state.  The people who already live in a state, and whose well-being is bound up with the well-being of their community – who have, in other words, a full stake in the common good — have obligations to one another, the fulfillment of which implies a right to decide whom else to admit to membership, and a duty to exercise this right with consideration for the rights of those already present. Thus the right of everyone to live somewhere on the planet does not mean a right to live anywhere.

At the same time, because the earth itself exists for the survival and flourishing of the entire human family, not just one part of it, our obligations to one another do not stop entirely at our national borders.  As members of the human species we do have a moral obligation to be alert to the needs of those beyond as well as within our borders, and to lend a hand when and where we are able.  We see this in action when a state directly or indirectly though an intergovernmental or nongovernmental organization provides relief in a natural disaster or epidemic or civil war.  Offering resettlement to refugees and providing temporary safe haven to others in flight are also examples.

Wherever the main motive for migrating is to escape poverty, then the best solution is to focus on measures to ameliorate the problems of poverty where they are found, so that the poor are no longer so poor that they feel they must leave just to survive.  Such measures include a wide range of development assistance activities, including education and skills training, as well as meaningful trade benefits and debt relief.

Poverty does not go away quickly or completely anywhere, but some countries are much closer to utter destitution than others.  States that are geographically large or mid-sized, blessed with natural resources and a developed or steadily developing economy are capable of absorbing an orderly, moderate flow of newcomers, including those from countries suffering from poverty, without great difficulty.  For the flow to be orderly and moderate, newcomers must enter through a system that fixes the numbers and criteria for admission, and sets a fair process for determining eligibility.  Illegal immigration subverts this process and brings with it a series of social and economic dislocations.

The US and Immigration. The US annually admits for permanent residence about 1,000,000 legal immigrants and refugees (a large number, but only 0.3% of our total population), every one of whom has had a medical examination and a background check and has met all the other standards of eligibility provided by law.   Most are admitted on the basis of family relationship to a US citizen or permanent legal resident, or because of their advanced employment qualifications and skills.

The chief problem we face today is not about these legal immigrants, but about 1) how to prevent illegal entry and 2) how to deal with the11,000,000 people who both entered and have remained in the US illegally, and who did not undergo medical examinations or criminal background checks.   The federal government has neither adequately controlled our borders nor devoted the necessary resources for in-country monitoring, investigation and enforcement.  Another crucial weakness is the failure to enforce the law’s requirement for employers to verify that their employees are legally in the US.  When immigration officials step up enforcement, employers complain that the government is ruining their businesses and liberal organizations complain that the government is inhumane. Between them, they create an atmosphere in which doing nothing seems to Congress and the White House like the only politically safe policy.   Frustration with ineffective federal law enforcement has led to the Arizona uprising and passage of a state law intended to remedy the situation. Arizona has helped to shake up the culture of irresponsibility, but the battle for reform has just begun.

Some proposed solutions can actually make matters worse.  To legalize the eleven million would only create a new magnet to encourage more illegal immigration.  We tried that starting in1986, and legalizing millions in the process.  Then more came.   But to round up and deport all eleven million of those currently in the US would require an incredible investment of financial and human resources: were we to deport only a million of these people a year, we would need to hire and train tens of thousands of new investigators and detention/deportation officers, build and staff vast new holding centers, buy at least six thousand buses and a small fleet of planes, hire pilots and drivers and thousands of guards to accompany the deportees, maintain and repair the vehicles, provide medical care to those taken into temporary custody, and more.  It would take eleven years, at an annual cost of several billion dollars of new expenditure, to send everyone home this way; but the bigger cost would be the impact on our own citizens, and on the rest of the world, of the image of these forcible mass roundups of mostly innocuous people.  It would look like a departure from our idea of ourselves as a decent nation, and as a failure not only of earlier law enforcement but of imagination in trying to solve a tough but not life-threatening problem.  Mass roundups and deportation would not sit well with most Americans.

We need to think a bit outside the box.  Why not offer positive incentives to persuade the illegals to return home?   A cash payment for each adult and child, payable in the home country upon receipt of positive proof of their return (and fingerprint or other evidence to prevent their coming back to the US undetected) might be sufficient to induce many to go home. It would be cheaper by far than detaining and deporting them.   And why not also issue tickets for a five-year special immigrant visa lottery, at, say, 100,000 per year for former illegal migrants who have returned home voluntarily?  At present virtually no immigrant visas are available to unskilled or entry-level workers from any country.   Applicants for these new visas would have to meet the same substantive eligibility requirements as other intending immigrants as to criminal records, medical exam, and so forth.

The US already legally admits over 100,000 unskilled agricultural and urban workers a year for temporary work under the H-2 visa program, which could be expanded as far as Congress wishes to provide legal status to many currently illegal workers who would not have to leave the US to apply, provided that they first provide evidence of medical clearance, clean police records, and IRS certification that any back taxes have been paid.   Alternatively or additionally, we could also create an entirely new guest-worker category for unskilled workers and their families, reserving perhaps 75 percent of guest-worker slots for currently illegal workers. The same requirements would apply as in the H-2 program.

We should also expand the “Secure Communities” program for deporting illegal aliens with criminal records and others who have been stopped by the authorities for good reason.  This program is an example of federal-state partnership in law enforcement, which also encompasses other specialized efforts such as joint task forces to combat drug trafficking, organized crime, and terrorism.  The new Arizona law is designed to strengthen this federal-state cooperation, not to replace it with a state takeover, as its opponents allege.

The current situation is untenable over the long haul.  The US needs a rational, integrated, imaginative legal framework and serious, sustained law enforcement backed up by political support from the White House and Congress.   The foregoing proposals, while far from complete, are practicable steps in this direction.