Who Will Be Left Out of Immigration Reform?

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A theme emerging from immigrant rights advocacy groups as immigration reform legislation is being drafted this year is that any acceptable bill should "leave no one behind." Groups like presente.org and United We Dream are pushing for legalization for all of the estimated 11 million undocumented people in the U.S. Politicians have promoted comprehensive immigration reform (CIR) as a once-and-for-all solution to the problem of unauthorized migration in the U.S.

President Obama and a bipartisan Senate working group have each proposed a blueprint for reform. The proposed legalization would require undocumented people to register with the government, pass background checks, learn English, pay a fine, and go to the end of the line. By legalizing undocumented people, sealing the border, implementing measures to make sure visa holders leave the U.S. when they are supposed to, and better facilitating future immigration flows, CIR is supposed to do what the 1986 amnesty failed to accomplish: permanently solve the problem of unauthorized migration.

Some issues are still being discussed, such as whether legalization will create a path to eventual citizenship or instead create a long-term limbo status. But despite these divergent positions, a bipartisan consensus is forming around legalization for most of the 11 million. Unfortunately, a significant percentage of undocumented people are unlikely to benefit from legalization as it has been proposed.

Colorlines recently put up an infographic that elucidates this point. None of the current CIR proposals would fundamentally change the immigration system. Beneficiaries of reform will still be subject to most of the laws and regulations that now exist, the same legal regime that pushed 11 million people into the shadows. The reasons that millions would be excluded from legalization include:

  • Unreasonable fees and fines - A friend recently estimated that combined fees and fines will be around $2,000 per person, which seems about right to me. The closest recent parallel was a mini-legalization program ("245(i)") that required fees and fines to the government of just over $2,000 per person. Lawyers' fees could be that much or more. A family of four living on a subsistence income could be looking at $15,000 to $20,000 to legalize. Prohibitive cost could make legalization unattainable for millions of people.
  • Disproportionate punishment for criminal convictions - Current immigration laws severely penalize immigrants convicted of crimes, even misdemeanors like shoplifting, possession of small amounts of marijuana, use of false employment documents, and in some states, driving without a license. Many people who crossed the border again after being deported--including DREAM Act-eligible youth--were convicted of "felony reentry" and will likely be ineligible for legalization. A significant number of former permanent residents, including refugees who came to the U.S. at a young age, are now deportable after having been convicted of crimes. The immigration laws do not adequately consider proportionality or rehabilitation, deporting people with criminal convictions who came to the U.S. as children, have U.S. citizen children or spouses, or have served their time and reintegrated into their communities. Given that the criminal justice system disproportionately targets people of color and that most undocumented immigrants are not white, hundreds of thousands of people will be excluded from legalization because of prior criminal convictions. 

  • English language requirement - The CIR blueprints include a requirement that applicants for legalization learn English. Colorlines estimates that this requirement alone could exclude between 3.6 and 5.8 million people from eligibility. It is not easy to learn a new language as an adult, especially for those who did not receive an adequate education in their native language. The existing infrastructure to teach, at a reasonable cost, English to adults who have little to no English proficiency is not adequate to handle the volume of applicants anticipated under any reform. It is not feasible for people who work 70-80 hours a week or more to attend regular ESL classes. There is an existing English-language requirement for naturalization which currently excludes many permanent residents from the benefits and protections of citizenship, a policy reminiscent of the Jim Crow literacy tests to vote. An additional English-language requirement would keep many undocumented people in the shadows.

  • Same-sex spouses - The Obama CIR blueprint would permit U.S. citizens to petition for residence for their same-sex non-citizen partners, which is currently not allowed under federal law. The Senate proposal would not.

  • Cut-off date for entry into the U.S. - Applicants for legalization will likely be required to prove presence in the U.S. before a specific date, probably between three and five years prior to passage of the bill. Colorlines estimates that 1.6 million people could be excluded from legalization if there is a requirement that applicants prove they have lived in the U.S. for at least five years. Even those who meet the presence requirement may have difficulty proving residence, especially the many undocumented people who do not have bank accounts, paystubs, and other incidents of documented life.

  • Institutional culture that prioritizes deportation - The top immigration policy priority of the Obama administration has been to deport as many people as possible. President Obama has set a new record for deportations each year in office and has now deported over 1.5 million people. DHS has claimed that appropriations for enforcement operations set by Congress drive deportation levels, but continues to request funding at current levels.

    Bureaucratic incentives drive deportations, as enforcement agencies fight to maintain current levels of resources and personnel. The culture of each of the departments that handle immigration (Departments of Justice, State, and Homeland Security) is oriented towards punishing undocumented people and keeping new immigrants out. These institutional factors will not change overnight, and will likely lead to denial of many bona fide applications. The culture of "deport first, ask questions later" instills distrust in the undocumented community, and many people may decide the risks of applying for legalization outweigh the benefits.

  • Notarios and bad immigration attorneys - A widely-held assumption is that a network of nonprofit and pro bono attorneys exists to adequately provide low-income families with reliable, affordable immigration legal services. Having worked at nonprofit legal services organizations for five years, I know this is a myth. Despite the best intentions, too many nonprofit services organizations are overwhelmed and sometimes not accountable to their clients if something goes wrong. Some clients of nonprofits face legal bills in the thousands of dollars. This myth is promoted by the immigration courts, which circulate a list of "Free Legal Services Providers," 90% of which are not free and many of whom are not even nonprofits. This enables judges and ICE attorneys to tear families apart with a clear conscience and spares the government the expense of providing free attorneys to immigrants in removal proceedings.

    However, the private immigration bar is even worse. While there are many dedicated, trustworthy immigration attorneys who view their work as a calling, there are many attorneys who see undocumented people as easily-exploitable clients lacking access to protections available to most citizens. Too many lawyers and non-attorney "notarios" openly cheat clients with little fear of repercussions. The immigration bar is largely self-regulated and does little to hold incompetent or unscrupulous attorneys to account.

    These fundamental deficiencies will be exacerbated if millions of applications for legalization flood the system. Many people who would be eligible for legalization will not be able to navigate the system because it is in most cases too complicated and dangerous to do without an attorney and there are not enough reliable, affordable legal service providers.

  • Laws that penalize asylum-seekers and victims of trafficking - On paper, people who fled persecution in their home countries or have been trafficked into or within the U.S. have a path to lawful status under existing law. In practice, many are targeted by the government for imprisonment and deportation. This problem has not been sufficiently addressed so far in the CIR debate.

There has been little discussion about what will happen to undocumented people who don't qualify for legalization. The current proposals largely dodge this issue, simply saying that people with criminal records will be deported. The reality is more complicated.

If the current proposals become law, millions of undocumented people will be excluded from legalization. Will it be 2 million, 8 million, or somewhere in between? Harsher enforcement policies will push those who remain undocumented further into the shadows. The immigration agencies have the capacity and the incentive to continue to deport large numbers of people. Current deportation levels may not decrease much. In fact, they could temporarily increase if the Obama administration ramps up enforcement efforts in the wake of legalization. Factors that currently seal undocumented people inside the U.S. may not change, including rules that require long-term or permanent exclusion of those who leave the country. Many who know they may be permanently separated from parents, spouses, or children in the U.S. will decide they have no choice but to continue to live undocumented in the U.S.

The Deferred Action for Childhood Arrivals (DACA) program provides some insight into how CIR might be implemented. On one hand, the program has exceeded my initially-low expectations. Problems endemic to USCIS, including a prosecutorial mindset, traps set for unwary applicants, and lengthy processing times, have largely been resolved with regard to DACA applications I have filed for clients. This I attribute to a new institutional approach driven by political imperatives. The immigrant rights movement has also become stronger through DACA, first because qualifying undocumented youth are more secure from deportation to fight for change, and second because it affirmed the organizing power of the undocumented youth movement, which pushed Obama to create DACA under threat of losing the election last year.

On the other hand, the DACA program has had shortcomings. Initial estimates of eligible applicants ran from 800,000 up to 2 million. As of January 17, about 408,000 people had applied and only 154,000 applications had been approved. This means that five months after the program was launched, only between 8% and 20% of eligible applicants have benefitted from the program. This is likely due to many of the same problems listed above--high application fees, inadequate access to affordable legal services, lack of evidence to prove qualification, disqualification for minor criminal convictions--which will pose barriers to access to any immigration reform.

How can we avoid negative outcomes from immigration reform?

  • Address each of these issues in CIR legislation. Roll back the punitive laws that restrictionist groups have pushed through Congress over the past 20 years. Reduce existing barriers to permanent residence.

  • Decrease current deportation rates. Implement administrative relief like DACA on a wider scale.

  • Implement measures to change the institutional culture and bureaucratic incentives at the immigration agencies. Redirect funding within the agencies, orient training and performance incentives toward legalization instead of deportation, and hold officials accountable for ignoring agency priorities.

  • Include in reform legislation measures to improve the legal services infrastructure, including provisions to hold immigration attorneys accountable for fraud or malpractice and grant additional funding to nonprofit legal services organizations.

  • Acknowledge that no CIR bill will "fix" the immigration system, which is flawed by design. Take a page from highly successful restrictionist strategies and push for incremental improvements to the system. Understand that the immigrant rights struggle will be a long-term effort. Even people who qualify for legalization will be legally stigmatized for years to come, part of an underclass denied the rights and protections of citizenship.

I will support whatever bill or combination of bills, whether comprehensive or piecemeal, will legalize the largest number of people. No bill will be perfect, and compromise is necessary in order to pass legislation. However, the starting point from which Democrats are negotiating could leave out half of the undocumented people in the U.S. or more. This will not resolve the problems that CIR is meant to address. If flawed CIR legislation is a starting point for further reforms that will eventually include those who are initially excluded, it could be worth supporting. But not if CIR only perpetuates the status quo, or actually worsens the situation for millions of undocumented immigrants who then fall victim to a strengthened deportation juggernaut.


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About this Entry

This page contains a single entry by David Bennion published on February 12, 2013 2:38 PM.

Summary of the Past 10 Years of Immigration Reform Legislation was the previous entry in this blog.

Why the Sequester is Good News for Immigrant Families is the next entry in this blog.

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