Immigration Policy: A Tricky Business

Though elected officials are reluctant to admit it, migration policy is a
persistent issue with strategic implications. It is intimately connected to the nation’s
foreign, economic and labor policies.
Except for Pat Buchanan’s attempts to exploit it as a scare tactic during the Republican pri- maries, immigration policy was barely a blip on the radar screen in the 1992 presidential campaign. But much as politicians would like to avoid this often messy issue, it has a persis- tent way of challenging them at the most inoppor- tune moments. By the time Bill Clinton took office, he was confronted with two major crises involving immigration policy: rumors of a mass migration of Haitian refugees, and the undocumented-housekeeper controversy surrounding Attorney General-designate Zoe Baird and almost-nomi- Haitians, with a picture ol
nee Kimba Wood. await processing at t Guantdnamo, Cuba. The Haitian refugee situa-
tion had long been ready to explode-with the Reagan
and Bush administrations routinely (and illegally)
intercepting boats coming from Haiti and returning
the occupants. Despite his campaign promises to the
contrary, Clinton blockaded Haiti, a measure more
extreme than the interdiction policy of his two prede-
cessors. Baird’s admission that she had illegally hired
an undocumented Peruvian couple and not paid the
requisite social-security taxes sparked a public furor
that scuttled her nomination. When it turned out that
Clinton’s second nominee, Kimba Wood, had also
once hired an undocumented babysitter, the president
quietly dropped her from contention, though Wood
had not violated the law in any way.
Cecilia Munoz is senior immigration policy analyst at the National Council of La Raza.
IA MUNOZ
Though Clinton has attempted to sweep these prob-
lems under the rug, the Haitian refugee crisis and the
Baird and Wood nominations are symptoms of larger
problems which must ultimately be addressed. They
highlight the fact that, though elected officials are
reluctant to admit it, migra-
tion policy is a persistent
issue with strategic impli-
cations. It is intimately con-
nected to the nation’s for-
eign, economic and labor
policies.
Though Congress has
reformed immigration poli-
cy three times during the
past 15 years, the federal
government has failed to
effectively address key f deposed President Aristide, long-term issues or deal he US refugee camp in with their strategic implica-
tions. Congress passed the
Refugee Act in 1980, which brought U.S. law in line
with international standards concerning the definition
and treatment of refugees. Six years later, the
Immigration Reform and Control Act of 1986 (IRCA)
attempted to control illegal immigration, and provided
an amnesty to those undocumented immigrants who
could establish long-term residence in the United
States. And the Immigration Act of 1990 (IMMACT)
updated and expanded the visa quota system under
which legal immigrants enter the country.
These laws not only left significant unfinished busi-
ness, but they also created new problems and present-
ed new issues which Congress and the Administration
must now take up. In the wake of these legislative
reforms, the Clinton Adminstration faces three major
tasks: it must come up with guidelines for a generous
refugee and asylum policy; it must confront the failed
NACLA REPORT ON THE AMERICAS
1
38REPORT ON US POLICY
employer-sanctions policy and the massive employ-
ment discrimination that is its chief by-product; and it
must devise a system for allocating visas which both
promotes family reunification and protects domestic
labor interests within the United States. Finally,
though it is not a product of the immigration reforms
of the last several years, the North American Free
Trade Agreement (NAFTA) has implications for U.S.
immigration policy and offers the first real prospect
that policymakers may begin to see migration as a
strategic matter which must be considered when other
domestic and international policies are on the table.
Refugee and asylum policy in the United States
is based on the fundamental international prin-
ciple that people who have a “well-founded
fear of persecution” in their home countries have a
right to a safe haven. Refugees can seek protection in
the United States in one of two ways: by petitioning
from a third country to enter as refugees, or by finding
a way to enter the United States on their own and then
petitioning for political asylum within the country. For
more than a decade, Haitian refugees have been the
most poorly treated of any refugee group. Their
predicament is a severe manifestation of the dilemma
of U.S. refugee policy: the United States, at least
rhetorically, prides itself in providing safe haven for
those fleeing persecution, yet in practice, negative per-
ceptions of immigrants and refugees often serve as a
countervailing force.
In the case of refugees who are resettled from out-
side the United States, the principal players-the fed-
eral and state governments and non-governmental
agencies-have been struggling to provide re-
settlement services with ever shrinking resources and
a rapidly growing worldwide population of people
who fear persecution. In addition to basic resource
questions, a larger philosophical issue looms. Clinton
inherits a refugee stream that is unbalanced, with most
resettlement “slots” going to people fleeing the former
Soviet Union and South East Asia, with very modest
representation from Africa and, with the exception of
Cuba, virtually none from Latin America.
In the case of those seeking political asylum in the
United States, the new Administration appears poised
to continue in the footsteps of its predecessors, com-
mitting itself to nominally fair processing for those
who petition for asylum within the United States,
while simultaneously doing everything it can to pre-
vent would-be asylees from setting foot on U.S. terri-
tory. Thanks to successful litigation and a great deal of
advocacy, much of it on the part of the Central
American solidarity movement in the 1980s, the pro-
cedures for processing asylum applications have
improved in recent years. 1 The old system, which
quite deliberately reflected Cold War foreign-policy
considerations, is slowly being transformed into one in
which asylum is granted on the basis of solid informa-
tion about the kinds of persecution that applicants face
in their home countries.
Unfortunately, at the same time, and in defiance of
federal and international laws, the United States is
focusing its energy on preventing would-be asylees
from reaching the country in the first place. This tac-
tic is most glaringly employed in the case of Haitian
refugees. By intercepting Haitians at sea before they
reach U.S. shores, the United States claims it is not
obligated to give them a full hearing. Haiti is not the
only example of this strategy at work. According to
the U.S. Committee for Refugees, U.S. and Mexican
officials have been involved for years in efforts to
prevent Central Americans from reaching the United
States, without any attempt to identify those who
might be legitimately fleeing persecution. 2 Moreover,
Congress is likely to reconsider so-called “summary
exclusion” proposals which would prevent people
from petitioning for asylum in the United States when
they come from certain countries deemed not to have
a human-rights problem. 3
Events in Central America during the last decade
have also given rise to an ongoing debate about the
eligibility for refugee status of people fleeing the gen-
eralized effects of violent conflicts in their home coun-
tries, but who might not be able to prove that they as
individuals face persecution. Many Salvadoran immi-
grants to the United States fall in this gray zone. While
some could point to death threats, murdered relatives,
and other horrors in order to establish an individual-
ized well-founded fear of persecution, still more fled
the general effects of the war and are therefore not
technically refugees.
After nearly a decade-long battle, Representative
Joseph Moakley (D-MA), and Senator Dennis
DeConcini (D-AZ) won Temporary Protected Status
(TPS) for Salvadorans, which grants them permission
to remain in the United States until conditions in El
Salvador improve. Because of the asylees’ fears of
returning to the still unstable situation, as well as pleas
from the Salvadoran government, the Bush
Administration provided a year-long extension in the
form of Deferred Enforced Departure (DED), which
expires this June. Clearly, the Clinton Administration
will have to contend with the situation of hundreds of
thousands of Salvadorans, some of whom wish to
return to their country only when it is safe, and many
of whom have lived in the United States for more than
a decade, raised children here, and become a part of
U.S. society.
The firestorm which engulfed the nomination of
Zoe Baird and the candidacy of Kimba Wood pro-
vides a vivid example of the failings of the
Immigration Reform and Control Act (IRCA), which
VOL XXVI, No 5 MAY 1993 39REPORT ON US POLICY
attempted to control illegal immigration through an
employer-sanctions policy. Employer sanctions made
it illegal for employers to hire undocumented labor-
ers, requiring the nation’s employers to check the
documents of everyone they hire. The thinking
behind the policy was that if employers checked
everyone’s documents, the job market for unautho-
rized workers would collapse, thus eliminating incen-
tives for illegal migration.
Zoe Baird’s situation highlights several problems
with the law, not the least of which is that it simply
hasn’t worked. Undocumented immigration continues
at much the same rate as before the enactment of
IRCA. Undocumented workers continue to find jobs,
though they are more vulnerable to exploitation and
less likely to report labor-law violations when they
occur. 4
But in addition to simply being ineffective, employ-
er sanctions have had the devastating side effect of
causing massive employment discrimination against
U.S. Latinos and Asians-even native-born U.S. citi-
zens-who are legally authorized to work. Reports
from throughout the country, including the U.S.
General Accounting Office (GAO), have found that as
many as 19% of U.S. employers, or 891,000 nation-
wide, admit they engage in unlawful discriminatory
hiring practices as a direct result of employer sanc-
tions. 5 These practices include establishing U.S.-citi-
zens-only policies, and requesting “green cards” of
any potential employee who seems “foreign” on the
basis of accent, appearance or surname. (This particu-
larly affects Puerto Ricans, who despite being U.S.
citizens by birth are frequently asked for green cards
in order to get a job.) In addition, many employers, for
fear of finding themselves in the same trouble as Zoe
Baird, simply stay away from any job applicant with a
“foreign” sounding surname or appearance. Employer
sanctions give them a rational incentive to discrimi-
nate, while the civil rights of those discriminated
against are seldom enforced.
There is a movement afoot to respond to the Zoe
Baird situation by enacting legislation to provide visas
for undocumented workers who provide home care for
children, the elderly, or disabled people. While such a
proposal may deal with the most immediate concern
arising from the current debate, the larger questions
remain unaddressed. On the domestic side, Latino and
Asian activists as well as many civil-rights groups feel
that employer sanctions must be repealed and replaced
with more effective and humane measures to control
illegal immigration without resorting to discrimina-
tion. 6 Supporters of employer sanctions argue that the
solution to the policy’s failure lies in strengthening it,
particularly by establishing some form of national
identification document and a system to thwart the
black market for false working papers.
Thanks to the difficult economic climate, restric-
tionist anti-immigrant groups are finding an audience
ripe for scare tactics and hate mongering. These
groups will continue to support proposals to fortify the
border and strengthen the employer-sanctions policy.7
On the international front, the Mexican government
has made treatment of its nationals at the border a
principal concern in its relationship with the United
States, and human-rights groups have for the first time
identified the U.S.-Mexico border as an area of con-
cern. 8 As the evidence pours in that undocumented
immigration continues at the same rate as before the
enactment of IRCA in 1986, the Clinton Admin-
istration is faced with the challenge of reopening the
painful debate on immigration control.
While the discussion continues on the question
of illegal immigration, the most recent
legal-immigration reform measure, the
Immigration Act of 1990 (IMMACT), appears to have
ended an era in which immigration reform occurred
only once every quarter century. By including major
programs with three-year lifespans and establishing a
commission to look at the effects of the new law and
make recommendations for future immigration policy,
the bill’s sponsors made it clear that they expect key
issues to be revisited in the near future. Chief among
these is the question of how many immigrants to allow
into the United States each year, and who should be
permitted to enter. These concerns have direct impli-
cations for domestic economic and labor policy. On
the one hand, the evidence is clear that the U.S. econ-
omy has benefited greatly from the immigration of
people into a variety of labor markets. On the other
hand, some are concerned that providing employers
with too many opportunities to bring in skilled immi-
grants decreases incentives to educate and train
domestic workers.
Under the current visa allocation system, the vast
majority of immigrants enter the United States
because sponsors have petitioned for them. More than
70% are sponsored by close family members, and the
rest are sponsored primarily by employers who can
establish that they could not find a U.S. worker to fill
specific positions. Roughly 30% of the total number of
legal immigrants to the United States each year are
from Latin America and the Caribbean-the bulk of
these from Mexico. While IMMACT underscored the
idea that family reunification should be the corner-
stone of U.S. immigration policy, the debate has
already begun to refocus in a way which suggests that
family immigrants (primarily Latinos and Asians) are
less likely to benefit the United States economically
than “skilled” immigrants who are sponsored by busi-
nesses, or who are brought in because of specific qual-
ifications.’
NACLA REPORT ON THE AMERICAS 40REPORT ON US POLICY
While there is credible evidence that the educational
status of the immigrant stream is declining, the figures
reflecting this decline are drawn from a pool of new-
comers-including undocumented migrants-which is
much broader than the family-sponsored immigrant
stream in question. According to the U.S. Department
of Labor, the family immigration stream in the 1980s
reflected the overall U.S. workforce, and included large
numbers of highly skilled workers. In addition, the evi-
dence of family immigrants’ participation in the work-
force and of their overall benefit to the economy
strongly suggests that the nation has nothing to fear by
continuing to make family reunification an immigra-
tion-policy priority. 10
Despite the clear overall econom-
ic, social and cultural benefits of a
generous and humane legal immi-
gration policy, the difficult econom-
ic times have fostered a debate
which suggests that the generous
mood toward newcomers which
allowed significant increases in
legal immigration in 1990 may be
difficult to recreate. There are now
growing backlogs in the family-
reunification categories; immigrants
from Mexico, the Dominican
Republic, the Philippines and India Salvadorans wait often wait two or three years to porary Protect reunite with spouses or children. The Spanish Catholic
great challenge to President Clinton ington, DC.
and his colleagues in the Congress
will be to conduct the discussion thoughtfully, without
creating unnecessary antagonisms between ethnic and
religious groups concerned with family reunification,
and businesses interested in ensuring speedy process-
ing for their employees. Policymakers must also be
careful not to give credence to arguments which come
from restrictionist groups with only thinly veiled anti-
ethnic agendas.” 1
he only policy with immigration implications
which appears to be somewhere near the front
burner for the Clinton Administration is
NAFTA and the labor and environmental protocols
which appear likely to accompany it. There is general
consensus that, in the short term, a trade agreement is
likely to increase migration to the United States from
Mexico. However, there is substantial disagreement
on the long-term effects. Some argue that the agree-
ment will lead to long-term displacement within
Mexico, particularly in the agricultural sector, which
will in turn lead to greater migration north as those
displaced head for Mexico’s already overcrowded
urban areas or the United States. Others contend that
the estimates of long-term displacement are exaggerat-
t ec
ed, and that NAFTA shows real promise of expanding
the economy and developing opportunities for
employment within Mexico, which will reduce the tra-
ditional incentives for migration to the United States.
Interestingly, though the potential effects of
NAFTA on migration are hotly discussed by both pro-
ponents and opponents of an agreement, the negotia-
tions themselves did not address the migration issue
directly. In contrast to the European Community,
NAFTA does not deal with the movement of labor
because both the United States and Mexico recognized
that the migration issue was thorny enough to deflate
the prospects for any overall agreement. Instead,
immigration has emerged in the
NAFTA debate as a kind of weapon;
proponents of the agreement argue
that it will decrease immigration,
while opponents suggest-often
vividly-that NAFTA will only lead
to more Mexicans coming north.
Interestingly, Mexican President
Carlos Salinas de Gortari has sug-
gested on at least one occasion to the
newly elected Clinton Admin-
istration that if ratification of
NAFTA is not made a high priority,
Mexican migration might increase
and threaten the U.S. economic o apply for Tem- d Status at the recovery which is critical to
Center in Wash- Clinton’s success.
NAFTA marks the first time in
decades that U.S. policy in the trade
or foreign-policy arenas has been linked, if only rhetor-
ically, to migration policy. This represents an impor-
tant breakthrough which many advocates hope will
lead to opportunities to raise the migration implications
of other U.S. policies. For example, the changing rela-
tionship between the United States and Mexico, of
which NAFTA is an outcome, may create opportunities
to infuse development policy with a migration agenda.
For instance, development could be advocated as a
way of deterring migration in areas long known to be
major “sending” communities, where migration has
been a survival strategy for generations.
While the new Administration has-probably cor-
rectly-determined that immigration policy is a dan-
gerous business, President Clinton has an opportunity
to make positive changes in the nation’s policy toward
immigrants and refugees which can benefit the United
States economically, and at the same time lead to
healthier relationships with the country’s neighbors.
Unfortunately, the two immigration-related incidents
which hit the Administration in its early days may be
signals that Clinton is likely to consider immigration
policy only when some aspect of it reaches crisis pro-
portions.
Immigration Policy: A Tricky Business
1. “INS Opens Asylum Offices Amid Large Backlogs, Charges of
nadequate Funding,” Interpreter Releases, Vol. 68, No. 13 (April
8, 1991), p. 401,
2. U.S. Committee for Refugees, Running the Gauntlet. The Central
American Journey Through Mexico (Washington, D.C.: U.S.
Committee for Refugees, January 1991).
3. “Congress to Tackle Immigration Legislation This Fall,” Interpreter
Releases, Vol. 69, No. 34 (September 3, 1992), p. 1089.
4. Cecilia Munoz, Unfinished Business: the Immigration Reform and
Control Act of 1986 (Washington, D.C.: National Council of La
Raza, December 1990).
5. U.S. General Accounting Office (GAO), Employer Sanctions and
the Question of Discrimination (Washington, D.C.: U.S. GAO,
March 1990).
6. The Employer Sanctions Repeal Act (S.1734) was introduced by
Senators Hatch and Kennedy, with a companion bill in the
House of Representatives (H.R. 3366) introduced by Rep. Edward
Roybal (D-CA) in the 102nd Congress. New versions of the legis-
lation are expected to be introduced in the new Congress.
7. The most prominent such organization is the Federation for
American Immigration Reform (FAIR), whose founder and board
member John Tanton is the author of a memorandum which,
among other things, expresses concern about the birth rates of
Hispanic Catholic immigrants, and the likelihood that they will
import the “tradition” of the mordida or bribe.
8. See Immigration Law Enforcement Monitoring Project, Sealing
Our Borders: the Human Toll (Houston, TX: American Friends
Service Committee, February 1992) and Americas Watch, Brutality
Unchecked: Human Rights Abuses Along the U.S. Border with
Mexico (Washington, D C.: Americas Watch, May 1992)
9. George J. Borjas, Friends or Strangers: The Impact of Immigrants
on the U.S. Economy (New York: Basic Books, 1990).
10 U.S. Department of Labor, The Effects of Immigration on the U.S.
Economy and Labor Market (Washington, D.C.: U.S. Department
of Labor, Immigration Policy and Research Report 1, 1989).
11 For example, after Senate action on the Immigration Act of
1990, the American Immigration Control Foundation sent a
packet to all senators which included a cartoon depicting “chain
migration” of Latinos, who were drawn in a very unflattering
manner, brnginng in dozens of family members, carrying switch-
blades and drinking alcohol.