RD to immigration advocates: are there any limits?

Dec. 7, 2011 — Offered the opportunity to describe how immigration to the United States should ideally be regulated, representatives of three prominent pro-immigration organizations painted a broad picture of a much-liberalized ongoing system (above and beyond a "road to legalization"), but did not set forth any concrete limitations to apply.

In conversations ranging from 45 minutes to over a hour, the advocates spoke eloquently about problems plaguing the current system — including a lack of due process and unnecessary detentions — but were strikingly less forthcoming when it came to:

• putting numbers to their proposals;
   
• discussing what, in their views, would ever constitute acceptable enforcement;
   
• describing why, if at all, their current arguments would cease to apply after a one-time mass legalization; and
   
• providing guidance on how those who come from countries that traditionally have not had significant immigration to the U.S. could be treated in a more welcoming way if the system continued, as all wished it to, continued to treat principle of family unification as a cornerstone.

 A different starting point

Remapping Debate spoke separately with Catherine Tactaquin, executive director of the National Network for Immigrant and Refugee Rights in Oakland, Calif., Jackie Esposito, director of immigration advocacy of the New York Immigration Coalition in Manhattan, and with Clarissa Martinez-de-Castro, director of immigration and national campaigns of the National Council of La Raza in Washington.

In each case, the discussion was premised on the fact that most immigrants, regardless of status, are, like most non-immigrants, hard-working people who care deeply about their families and who simply want to be able to make their way in the world.

A second starting point was the fact that most immigrants — again, like most non-immigrants — are, except for the civil violation that arises from being in the U.S. without legal status, entirely law-abiding. Questions of national security, which involve a minutely small percentage of immigrants, were put to the side.

A final starting point was that the road to legalization — which each organization seeks in the short-term and which would potentially adjust the status of the more than 10 million undocumented individuals currently in the U.S. — did not answer the question of what the ongoing rules of the immigration process should be. 

Family unification and employment-based immigration

Each organization is strongly committed to immigration being permitted for reasons of family unification or reunification in the U.S., not in the country or origin, as a central principle.

Tactaquin explained that “the trend at the international level is for there not to be family-based immigration,” but only employment-based or otherwise temporary immigration. She said that “there is a lot of pressure on the U.S. to reexamine” family-based immigration. Nevertheless, she added, “I think we’re still ok and holding on to family-based immigration.” Esposito, too, highlighted her Coalition’s desire to “make sure that family reunification is included in any reform package.”

On the issue of employment-based immigration, the organizations diverged. Both Esposito of the Coalition and Martinez-de-Castro of La Raza wholeheartedly endorsed this channel of immigration, with Martinez-de-Castro highlighting the importance of being responsive “to the needs of the economy” and to avoid “undermining the conditions of U.S. workers,” and Esposito focusing on increasing the “legal ways for people to come here from all different types of skill [backgrounds], not just highly-skilled workers.”

Tactaquin of the National Network took a decidedly more skeptical approach, saying that, “We’ve always been anxious about immigration for employment because in this country that’s been associated a lot with guest worker or temporary worker programs that have been historically abusive and exploitative.” Nevertheless, she continued by saying that while the construction of an employment-based program that was not exploitative was “very challenging [and] will require considerable study and agreement before it moves forward,” it should be considered so long as participants do have “decent wages…fair working conditions…and access to green cards.”

No numbers

It is conventionally part of public policy debates for advocates and policy makers to describe what they believe would be the impact of their proposals, and Remapping Debate put this question to each of the advocates interviewed.  In each case — despite multiple attempts to find out — the advocates did not provide specifics on the numerical impact of the policy changes these organizations sought in addition to and beyond a one-time process of legalization. Martinez-de-Castro acknowledged that the reformed,  “more functional” system she supported creating on a permanent basis would facilitate the abiliity of many people to come or remain here legally, but she would not provide any estimate of the scope of the impact. After avoiding the question initially, she told us, “I’m not sure.” Said Tactaquin, “I really can’t tell numbers.”

Our inquiries to Esposito were similarly unavailing: “I can’t quantify it, unfortunately,” she said. “Our organization doesn’t say we want ‘x’ number of people. I’d be making it up.”

No willingness to engage in discussion of acceptable enforcement

Tactaquin readily acknowledged “all sovereign countries have [the] basic right” to control a national border, but also asserted a “right to mobility.”  What yields, I asked, when the right to mobility collides with the right to control a border? Tactaquin took a long pause before retreating to broad language about everything “getting down to the question of fairness and dignity.” (She did say, without providing sought-for specifics, that the conflict could result in a person “not being able to move.”)

Esposito was repeatedly evasive on this question until finally stating directly that she was unwilling to provide any illustration of acceptable enforcement. She did not want to say that the government has the authority to enforce the immigration law, but rather that the government has “the authority to manage migration” consistent with its human rights obligations. In describing the current system as “inhumane,” she described families who had been in the U.S. for decades being split up as a result of deportations that occurred “without any due process whatsoever.”

Probing to see whether the concern was process-based or results-based, I asked her to imagine a circumstance under a reformed system where due process was present. “You’re describing something that’s not the law,” Esposito responded. Underlining that the nature of the inquiry had to do with getting the Coalition’s view of what the rules should be, and the bases and rationales for that view, I posed the question anew: would you, I asked, have an objection to a process that didn’t have any flaws but nevertheless resulted in the splitting of a family?

That is “a very difficult hypothetical to answer,” Esposito said, “even in cases where there has been due process we don’t want to see families torn apart.”

But where between the current level of restrictions and zero restrictions would the Coalition like to see a system wind up? And isn’t it legitimate to ask advocates “how would it work if it were up to you” questions? “My work is not to tell the government what limitations to place on immigration reform,” Esposito said. “The New York Immigration Coalition does not provide policy recommendations about limiting future flows of immigrants.”

Her ultimate conclusion was that, if the “right factors” were considered (factors she identified as ties to the community and living a productive life), then there would not be circumstances where families would be split.

Focusing on “innocence,” but not acknowledging the consequences

In many circumstances, immigration advocates are faced with those who view undocumented immigrants as having engaged in serious wrongdoing. Advocates in turn tend to focus on the fact that, outside of the immigration violation, both legal immigrants and undocumented immigrants are hard working and law abiding.

Remapping Debate explicitly accepted the advocates’ point of view, but pursued a point of crucial interest to many of those open to a one-time mass legalization of those already in the U.S.: what about next time? I was less interested in the historical fact that the 1986 path to citizenship during the Reagan Administration had been touted as a one-time exception to the rule, than in how the current arguments of advocates for legalization — arguments that focus on innocence and on the hardship that results on a personal level from applying immigration laws and regulations — would or would not apply in years to come.

I asked Esposito to explain why the personal hardship that a family undergoes when wrenched from what has been that family’s home for any length of time would not always provide a justification — now and in the future — to shield an individual from immigration law enforcement if he or she arrived undocumented after a one-time legalization process. First, she said she didn’t know what was going to happen in 2013 or 2015 or 2017 (after a legalization package). “I just don’t know,” she said. “You’re asking for a response to a hypothetical question.”

I wasn’t asking a hypothetical question, actually; instead I was asking about the applicability of the Coalition’s current argument and, as a matter of logic, why or whether it would stop applying to people who, in the future, were here “out of status.” The follow-up yielded a “no” — the application of the principle “would never stop.”

La Raza’s Martinez-de-Castro reached a similar conclusion, but did so under the name “prosecutorial discretion.” She did this after declining to address the proposition that every enforcement system in the immigration context — now or in the future — would seem to necessarily harm people who are innocent (that is, members of hard-working families who are productive members of their adopted communities).  “I’m not sure that I would just have an existential conversation,” she said.

But enforcement against people who are innocent in the terms described above is something that La Raza opposes. Could she assure people that, if there were a legalization process put in place now and new go-forward rules established (rules that were fair and equitable from the point of view of her organization), La Raza would support enforcement of that law 10 years from now even if that meant that some innocent families without documentation would be removed from the country?

She could not. Instead she turned to the notion of prosecutorial discretion as governing when law and regulation would actually be applied, something that she described as existing, in some form, in all aspects of law enforcement. Her illustration: deporting the sole breadwinner of a family would cause undue hardship and thus should be an occasion for the exercise of prosecutorial discretion on a go-forward basis.

But Martinez-de-Castro would not define or limit the scope of prosecutorial discretion, even though it sounded as though the bases for the exercise of such discretion — like sole breadwinner status — would commonly recur and perhaps swallow up the underlying enforcement rules.

And Tactaquin of the National Network proposed a system whereby, subsequent to a mass regularization of status, there would be an ongoing ability to regularize one’s status; that is, the process of regularization would not be a one-time opportunity, but something that existed as part of an ongoing system.

In short, each advocate seemed to be describing a system whereby — outside the circumstances of non-immigration security or safety considerations — enforcement would almost always give way to personal or familial factors. Either the factors preventing removal would be built into an underlying system that broadened legal access, or else would be part of a back-up or safety net system that prevented deportation even of those who ran afoul of more liberalized regulations.

Martinez-de-Castro, for example, initially described a side effect of La Raza’s desire to create an easier legal path in the future as “reducing the push for illegal behavior.” But, asked to clarify, she acknowledged that she was not claiming that overall demand for family unification would be reduced, but rather only that the portion of that demand dubbed illegal would lessen: “What I’m talking about reducing is illegal flows,” she said, failing to address the possibility that a system signaling greater friendliness to family unification would increase demand for that type of immigration.

To be sure, demand for immigration access to the United States does not go up in all circumstances — indeed, annual immigration flows have recently decreased — and some advocates, like the National Network’s point out that they are “certainly not saying ‘completely unfettered immigration.’” But at no point in any of the conversations was it clear — even in the context of employment-based immigration — how or when the desired post-reform system would actually operate to remove someone that was not a safety or security threat.

Perpetuating inequities of the past?

It seemed apparent that, by definition, one consequence of a system that focuses on family ties or on immigration from countries with an established pattern of its citizens migrating to the U.S. would be that people from countries without such an established pattern would continue to be disadvantaged in the legal immigration process. Remapping Debate asked each advocate whether this caused concern, especially in light of the discriminatory history of U.S. immigration policy (where immigration from many countries, especially non-European countries, was routinely discourage). The example I gave was of an individual or family from a sub-Saharan African nation.

Tactaquin first suggested that the desire to come to the U.S. is often “predicated on past or present economic or political relationships.” But challenged again on the point that such ties — or a focus on family unification — might perpetuate historical patterns of discrimination, Tactaquin said only, “With respect to family unity, this is something that the Kennedys proposed, so [my view is] ‘Ok. We’ll continue to support it; that’s as good [a basis] as any.’”

Martinez-de-Castro suggested in response to the question about the risk of perpetuating discriminatory patterns that anyone could try  “looking for one of those job opportunities where workers are needed.”

In connection with the same question, when I pointed out to Esposito the fact that people who do not have geographical proximity to the U.S. may have the desire to come here but have other hurdles to overcome — like “how are you going to cross an ocean” — Esposito said, “A plane, I guess.”

Esposito subsequently acknowledged that it was not a simple or trivial issue for those from far away and with extremely limited resources to simply pick themselves up and get on an airplane and come to the U.S. But, asked whether, under current conditions elsewhere in the world, an extraordinary number of people from countries with traditionally low levels of immigration to the U.S. would avail themselves of an opportunity to come here if the opportunity were made known and made to seem like a plausible possibility, she disclaimed a view: “You’re asking me to speculate about what people would do if it were a more fair and equitable process. I just don’t know the answer to that.”

Questions that won’t go away

Each advocate repeatedly tried to steer the conversation to what was variously described as the  “inhumanity” or inequity or unfairness of the current system, and to reasons why that system should be fundamentally reformed in the direction of greater openness. They were not prepared, however, to provide the shape of what a new and improved system would look like, and, although Tactaquin and Martinez-de-Castro made general bows in the direction of the need for discussion on the scope of employment-based immigration, I was not able to discern any specific limitations that any of the advocates was prepared to affirm; to the contrary, the key arguments for opposing enforcement today appear to be fully applicable to a post-legalization world.

If advocates were to get closer to their short-term goal of creating a “road to legalization,” these questions of future limits and on whether the innocent can ever be removed are sure to recur with great frequency.