Immigration Reform Now, Piece By Piece

In the world of political campaigns, absurdity never hits bottom. The only companion to that bottomless absurdity, it seems, is the collective forgetfulness that allows the absurd to be repeated. 

December’s Democratic presidential debate on National Public Radio was the perfect example. Steve Inskeep, one of the debate moderators, brought the immigration hysteria into the presidential campaign in the most absurd fashion. After tackling a host of foreign policy issues—Iran, China, the country’s deteriorating image abroad, and the World Trade Organization—Inskeep pushed the candidates to look closer to home: “Would you expect Americans to turn in illegal immigrants when they come across them?” he asked Senator Obama. 

Unsatisfied with Obama’s response that he would focus on “closing our borders and preventing hundreds of thousands of people to pour in,” Inskeep pressed on. “So does that mean that Americans should not turn in illegal immigrants?”

Obama reiterated his border security strategy, Senator Dodd suggested we criminalize the hiring of undocumented people, and Senator Clinton combined everyone’s strategies by urging that we “crack down on employers” and institute “tough border security plus a system of knowing who’s here and what they’re doing.” Only Representative Dennis Kucinich ignored the other candidates’ emphasis on security, instead arguing that we should rely on the Constitution’s guarantees of due process and equal protection to avoid vigilantism. 

Listening to this must have made Congressperson Tom Tancredo (R- CO) jump for joy knowing he has injected his virulent single-issue anti-immigrant platform into mainstream political discussion. With the Democratic race down to two candidates, Clinton seems ready to prove that she is more virulent than Obama. During a campaign stop in South Carolina Clinton unequivocally stated, “Anybody who committed a crime in this country or in the country they came from has to be deported immediately, with no legal process. They are immediately gone,” the New York Sun quoted the senator as saying. 

The current discussion is so far to the right that scapegoating is driving the debate. In this context, positive comprehensive immigration reform is out of the question. The last two years of rampant anti-immigrant rhetoric provide plenty of evidence that legislators from City Halls to Congress have no appetite for meaningful humanitarian reform. We have yet to see a political climate propelled by the millions of immigrants and their allies who filled the streets last year with calls for amnesty. Lacking a massive shift of political will away from xenophobia masked as border security improvements, amnesty- based immigration reform is nothing more than an aspiration. 

Congress’s stalemate on comprehensive reform is not an excuse for immigrants’ rights advocates to relax or for Democrats to do nothing. On the contrary, the immigration law regime conflicts with established principles of constitutional law, basic fairness, and common sense so much that there is plenty to do short of a full-scale overhaul. 

Many of the laws most devastating to immigrants have been enacted over the last 20 years during periodic episodes of anti-immigrant hysteria. Changing these laws can be done in much the same way—one by one. Here are four contenders for the worst of the bunch: 

1. AGGRAVATED FELONIES. In 1988, at the height of Reagan-Bush I, Congress enacted wide-ranging changes to the Immigration and Nationality Act (INA), the country’s main immigration law. Among these changes was the creation of a legal concept unique to immigration law—the aggravated felony, a grouping of certain crimes that rendered the convicted non-citizen deportable. At the time, only three crimes were classified as aggravated felonies—murder, weapons trafficking, and drug trafficking. Lawful permanent residents (i.e., green card holders) and undocumented people convicted of an aggravated felony were to be deported. 

Today, the aggravated felony category has mutated into an amorphous legal headache that even immigration lawyers struggle to untangle. From the original three crimes it has expanded into 21 subparts that include many crimes few people would consider aggravated or felonious—for example, tax evasion, fraud, and receipt of stolen property. 

Congress can tackle the aggravated felony classification today. An immediate and significant measure would be to return the aggravated felony concept to its original state— murder, weapons trafficking, and drug trafficking.  

2. RETROACTIVE APPLICATION OF IMMIGRATION LAWS. In a move that vastly widened the punitive effect of the aggravated felony category, Congress decided that deportation for conviction of an aggravated felony could apply retroactively. That is, a person can be deported under the aggravated felon provision even if the offending act occurred before the act was classified as an aggravated felony. For example, prior to September 1996, a person convicted of tax evasion was deportable only if the revenue lost to the government exceeded $200,000. Consequently, a person convicted of misreporting $15,000 worth of taxes was not deportable in 1995. On September 30, 1996 Congress reduced the financial limit to $10,000. 

No new offense, trial, or conviction was necessary. There was no appeals process or consideration of the many factors that attorneys and defendants evaluate when determining how to plead. Had they known that deportation was a possibility, many defendants might have gone to trial or negotiated different plea agreements. 

Retroactive application of laws is virtually unknown in our legal system. The Constitution prohibits ex post facto laws in two sections of Article I covering the federal and state governments. 

Immigration law, however, falls outside the constitutional framework used by state and federal courts. Ex post facto laws are lawful in the immigration context because there is a double standard for immigration law and every other type of law. In a 2003 Supreme Court case, Rehnquist explained: “This Court has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.” The plenary power doctrine, as this quirk of legal history is formally known, gives Congress virtually unbridled power regarding deportation.  

3. LOCAL POLICE ENFORCEMENT OF IMMIGRATION LAWS. In 1996 a Republican-controlled Congress combined with a Democratic president to pass the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), an amendment to the INA with far-reaching implications in today’s anti-immigrant political climate. Among a host of changes to immigration laws, IIRAIRA contained three provisions that gave state and local police agencies the authority to perform some immigration functions. One clause lets the Attorney General enter into agreements with state and local law enforcement agencies to allow the state and local police to be trained by federal immigration officials to investigate, apprehend, and detain non-citizens suspected of being deportable. A second provision gives the Attorney General the power to waive the training requirement of the first provision if a “mass influx” of immigrants requires an immediate response. The last of the three clauses bans states from withholding information about an individual’s immigration status from Immigration and Customs Enforcement (ICE—at the time, the INS).

The legal situation worsened for immigrants in 2002 when John Ashcroft, then Attorney General, issued a legally binding opinion that, in his interpretation, state and local law enforcement officials have the inherent power to arrest anyone they perceive to be deportable. In recent months city officials from Danbury, Connecticut to Waukegan, Illinois have relied on these previously obscure provisions to convert their city police officers into the equivalent of part-time Border Patrol agents. 

The Waukegan City Council last summer agreed to have ICE train police officers to initiate deportations. According to the New York Times, the city’s agreement with ICE is limited to deportation of convicted felons. Still, the city’s immigrant community is frightened. Immigrants now hesitate to report crimes and some people, including citizens with undocumented family members, have left the city for the anonymity of nearby Chicago. 

4. BORDER FENCE. Two years ago Congress approved construction of a fence along a 700-mile stretch of the southern border. Republicans received overwhelming support from Democrats, including Clinton and Obama, to appropriate $1.2 billion to pay for the fence. The current plans issued by the Department of Homeland Security (DHS) put the fence—a complicated mix of electronic sensors and physical barriers—through publicly and privately owned land. In South Texas, where opposition to the fence has been especially vocal, at least one local university, several city and county governments, and untold numbers of private landowners stand to lose access to all or portions of their land. 

In January DHS started sending letters to landowners along the Río Grande announcing the agency’s intent to enter private property to survey the site of the proposed fence. Landowners who hoped to keep out the government’s surveyors recently had their hopes quashed by a federal judge in Texas who ruled that the government could enter private property despite the owner’s opposition. 

The humanitarian consequences of the fence’s construction are potentially disastrous. As happens when the Border Patrol increases its vigilance, undocumented people are pushed to enter the country through far more remote and deadly areas. No serious commentator believes that fences stop migration.  

While the aggravated felony classification, retroactivity, and local enforcement all require Congress to undo policies that have been in place for years, sometimes decades, the proposed fence has not been built yet. 

If Congress cuts off funding immediately, it will never be built. Border residents, especially in South Texas, are vocally resisting the fence—or, as it’s described locally, the wall—but they need help. 

As the presidential candidates search for votes and money, ICE keeps racing into homes and work- places in search of anyone that might be deportable. Julie Myers, assistant secretary of homeland security who runs ICE, recently told the New York Times that the agency plans to deport more than 200,000 people this year. With less than a year to go before a new president occupies the White House, any hope that a new administration might result in different immigration policies will come too late for hundreds of thousands of people. Even then, neither of the remaining Democratic contenders has indicated that they will make the shift away from the Bush administration’s policies—and the last 20 years of immigration legislation. 

With an unpopular president in his last months in office, Congress can and should act. Whether it does is a question of political will. But if the Democrats aren’t pressured to help immigrants now, it is not because the only meaningful reform would be a wholesale revision of immigration law. There is plenty to be done and thousands of lives stand to benefit from a number of improvements. 


César Cuauhtémoc García Hernández is an attorney.