Table of Contents
Chapter II - Purpose and Significance
The purpose of this piece is to walk United States immigration a few more steps out of its inveterate cycle of hibernation and resurrection by adding to the growing literature on immigration reform as an abiding and fundamental policy objective. The need for meaningful policy reform arises in response to the persistent economic, social and political problems - whether empirical or constructed - associated with modern immigration, as well as to two centuries of erratic and arbitrary legislation, interpretation and administration that have fallen short of comprehensively addressing these issues in a sustainable and equitable manner.
At the outset, a number of additional definitions should help provide clarity as to the content of this piece. In the United States, technical differences concerning the legal classifications, rights and restrictions attached to international migrants before, during and after arrival in the United States distinguishes between legal permanent immigration ("immigrants" 12 or "permanent residents" 13) and legal temporary immigration ("nonimmigrants" 14). While not codified into law, the generalized term "illegal immigrants" is often used by the government to describe those who enter the United States illegally. As to the latter, the author finds that the term "illegal" applies to behaviors rather than to entities and will therefore utilize the term "undocumented migrants" to describe both permanent and temporary migrants who enter the United States outside of formal legal channels. Moreover, where context does not discriminate between temporary and permanent, or between documented and undocumented, the terms "migrant," "foreign-born," "foreign national" or "non-citizen" will be employed in lieu of the government’s somewhat distasteful term "alien." "Citizens" or "natives" are defined by the Fourteenth Amendment to the United States Constitution, which provides that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." 15 To help facilitate the flow of the piece, the term "restrictionist" will refer to the collective group of ideas centered on a tightening of immigration policy, leading to decreased legal immigration. The term "expansionist" will refer to those centered on a loosening of immigration policy, leading to increased legal immigration.
As the above terminological distinctions alone suggest, the United States immigration system is a vast, confusing and intimidating benefits and deterrence network comprised of elements ranging from colossal entrenched bureaucracies to some of the most minute technicalities found anywhere in United States legal history. In fact, there may be no area of American law with more jurisdictions and local idiosyncrasies than those located in contemporary immigration law. As early as 1977, the Second Circuit Court of Appeals acknowledged this complexity, stating: "immigration laws bear a striking resemblance to King Minos’s labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress’s ingenuity in passing statutes certain to accelerate the aging process of judges." 16 In 2003, following major amendments to the Immigration and Nationality Act 17 (hereinafter, "INA") in 1986, 1990 and 1996, the Court heightened this acknowledgement, referring to immigration law as "a maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike." 18 The Ninth Circuit Court of Appeals, in 1988, has concurred with these assertions, albeit more succinctly, stating: "Immigration law is very complex." 19
The INA, enacted in 1952 and minimally amended since (only 89 Public Laws amending the INA have been enacted since 1952, with 27 [30.3 percent] of those enacted after September 11, 2001 20), serves as the primary statutory body of law governing immigration and naturalization matters. Despite Congressional attempts to keep it relevant, its greatest flaw is that several of its more important provisions have grown outdated in light of evolutions in the domestic marketplace and the international economy. Current immigration quotas are woefully antiquated, with annual worldwide quotas currently limited to between 260,000 and 480,000 for family-sponsored immigrants and to 140,000 (plus any unallocated family-based visas) for employment-based immigrants. 21 These arbitrary limits are severely inadequate for absorbing the country’s needed foreign national labor force - high-skilled workers, in particular - a fact that is serving to divert beneficial flows of the international "brain drain" away from the United States and towards European and South Pacific destinations. These quotas are also greatly unrealistic in terms of domestic market realities that demand much higher levels of low-skilled workers, a fact that is driving the predominance of immigration through black-market human capital supply chains. A second critique of the INA (and the body of legal texts surrounding it) is its level of complexity, as addressed in part in the preceding paragraph, and the resultant confusion it produces among the federal agencies charged with enforcing it.
On a specific institutional level, the U.S. Immigration Service - from the former Immigration and Naturalization Service (hereinafter, "INS") to the U.S. Department of Homeland Security’s (hereinafter, "USDHS") current three-headed bureaucracy model (comprised of the U.S. Citizenship and Immigration Services [hereinafter, "USCIS"], the U.S. Customs and Border Protection [hereinafter, "USCBP"], and the U.S. Immigration and Customs Enforcement [hereinafter, "USICE"]) - has long been criticized as apathetically and incompetently administering an overly complex, cumbersome, ineffective and oftentimes inhumane legislative framework. Bureaucratic incompetence does not necessarily stem from an inane hiring system whereby only the inept are granted positions of authority. While many foreign nationals (and their immigration attorneys) have reasons to believe otherwise, it is more likely a result of college-educated, well-intentioned officers finding themselves overwhelmed by the immense and sometimes contradictory sea of legislation, regulations, operational instructions, judicial interpretations, administrative decisions, appellate decisions, handbooks, manuals, policy guidance memos, locality-specific office procedures, ad nauseam, which they are charged with administering and enforcing. To borrow from the French, "Who would not say that the glosses [commentaries on the law] increase doubt and ignorance? It is more of a business to interpret the interpretations than to interpret the things." 22 The complexity of the law is a paramount dysfunction that causes unnecessary confusion resulting in highly detrimental effects on the national interest of the United States, and on the individual lives of foreign nationals from around the world.
Additional problems with the immigration infrastructure include adjudication and enforcement incapacities involving severely short-staffed agencies creating lengthy application and petition backlogs; unequal distributions of discipline in the form of capricious application and petition denials, sanctions, arrests and deportations; and the non-reviewability of certain orders of deportation (hereinafter, "removal") and U.S. Department of State (hereinafter, "USDOS") Consular Officer visa decisions, which opens a door to misplaced discretion, unchecked incompetence and abuses of authority. The immigration court system has also suffered attacks from across the political spectrum for inconsistent interpretations of law and arbitrary decision-making in individual cases. At the other extreme, case law is filled with rulings in favor of migrants who obtain the sympathy of the judiciary based upon grossly erroneous decision-making or apparent institutional biases at the administrative level.
Many migrants are removed from the country without due process while others are arrested and indefinitely detained, nuclear family members are separated from one another for months and sometimes years or even decades due to visa allocation and administrative backlogs, 23 and businesses lose productivity due to an inability to legally fill jobs with willing and qualified workers. In essence, these failures reveal that the state does not possess effective administrative control over immigration, even while it maintains its authoritative immigration power. Resultant anxieties abound within domestic migrant communities and among intending emigrant groups abroad, stirring a generalized idea that there is less marginal risk involved with entering the United States illegally than with placing oneself at the mercy of the state’s institutional-legal system.
Underlying this precedent of dysfunction in immigration policy is a political-philosophical dilemma which, if left unaddressed, will only serve to resuscitate and perpetuate its problematic character once reform is implemented. Throughout the developed world, the debate over how liberal trading states should respond to their market and democratic rights-based tenets (hereinafter, "cosmopolitan liberalism"), on the one hand, and political pressures and practical needs to limit migration, on the other, remains unresolved. 24 How states balance these juxtaposed impulses toward openness and closure will shape much of world politics in coming years. 25 Almost by definition, the more liberal and democratic a society is, the greater the likelihood that migration control will be an issue, and that there will be some level of "unwanted migration." 26 Although governments and business interests in capital-rich countries express a need for migrant workers, many citizens articulate discomfort at the rising tide of immigration and the growing employment competition and ethnic diversity that it brings, yielding a fundamental contradiction that politicians seek somehow to finesse. 27 This paradoxical dilemma is especially acute in the United States, a country well into a post-industrial, post-Cold War existence and beginning a new century within which immigration will play a central role. 28
The United States is located at the core of the ideational geopolitical space known as the "North American System," the world’s largest and oldest migration system, 29 where it has maintained throughout contemporary history its hegemonic stature as the world’s primary receiving state. Between 1980 and 1989, the United States received roughly a third of the world’s international migrants, and today California alone takes in more permanent immigrants than any other nation in the world. 30 The current totality of United States immigration is equally impressive as the immigrant stock population of the country now numbers 70 million - inclusive of persons who are either immigrants or the U.S.-born children of immigrants - a figure that accounts for nearly a fourth of the total national population. 31 If this immigrant population were to form its own state, it would rank in the top seven percent in the world in terms of population - over twice the size of Canada and surpassing the respective populations of the United Kingdom, France, and Italy. 32 Moreover, inasmuch as immigration is a self-perpetuating phenomenon and the United States remains the premier destination for a world on the move, the likelihood is that United States-bound migration will continue for many years to come. 33
Some members of American society, inclusive of born and naturalized citizens as well as permanent residents, view these new flows of migrants as positively contributing to the nation’s economy, political demographics, cultural mix and social contracts of ethical behavior. Others view migrants as negatively impacting these spheres of community life, pointing to sporadic cases of migrant welfare and a perceived resistance to societal assimilation. Still others point to such phenomena as the dwindling effectiveness of state regulation over borders, the increasing transnational power held by non-state actors such as multinational corporations, civil society and diaspora networks, the increase in regional economic integration and the threats posed by transnational crime as evidence that international migration is a phenomenon no longer within the control of the state.
For these reasons and despite longstanding if cyclical neglect and denial, immigration management is of paramount importance and significance to a broad cross-section of the American polity. Triggered by the September 11, 2001, attacks on the United States (hereinafter, "9/11"), immigration policy reform has experienced a new resurrection, a cyclical upswing over the course of the last several years. It has become an especially fashionable focus of attention in certain political, legal-advocacy, academic and journalistic-pundit circles, giving rise to a flourishing new research literature on the subject. Underlying events and concepts (e.g., The War on Terror and domestic recession v. cosmopolitan liberalism) giving rise to underlying emotional-political responses (e.g., security fears, labor market protectionism and xenophobia v. foreign intrigue and positive opportunism) has fueled this focus. The political response has culminated into a number of highly publicized reform proposals, from sophomoric to sophisticated. The White House, the Congress, the judiciary, the academy and the media, as well as affected individuals, the immigration bar and other advocacy organizations, have entered the national forum, often undergirded by well-funded research teams, professional lobbyists and broad constituencies.
Nevertheless, to the great frustration of progress, popular temporal interest and meaningful longitudinal reform do not equate as there are a number of dormant and circular socio-political hurdles that continue to block consensus over a truly comprehensive and workable reform model. This is due in part to widespread substantive disagreements and technical misunderstandings as to the nature of the problem, bolstered by irresolute political posturing in the government and under-informed or deliberately misleading pontification in the popular press. An overly broad range of resultant focal categories include everything from economic rationale and cultural protectionism to national security, overpopulation and environmental degradation, creating confusion and mutual distrust between all sides as to what is truly at stake in the reform debate.
The wide divergence in approach to the issue has rendered meaningful reform elusive. At an elementary level, all parties to the discussion are in agreement that the American immigration system is "broken." However, given the extent of the dysfunction, this idea is both commonsensical and irrelevant to any meaningful reflection on the system and how to "fix" it. Popularized use of reductionist speech to describe one of the most complicated swamps in historical jurisprudence is conversationally expedient and politically digestible, but it does nothing to focus the nation’s collective think-tank on specific tangible issues needing to be addressed, confronted, remedied and resolved. It is under this premise that the following is submitted to the scrutiny of the public eye, for its composite reflection as an addition to the immigration reform literature, and in the hope that it will prove academically and pragmatically useful within the gamut of modern policy proposals working towards an optimal solution. 34
12 I.N.A. §101(a)(15), 8 U.S.C. §1101(a)(15).
13 I.N.A. §101(a)(20), 8 U.S.C. §1101(a)(20).
14 I.N.A. §101(a)(15), 8 U.S.C. §1101(a)(15).
15 United States Constitution, Amendment XIV, Section 1.
16 Jim Alexander and Stuart Matthews, "Corporate Immigration - Impact on Maryland Lawyers," Maryland Bar Journal, July/August 2006, 6 (citing Lok v. INS, 546 F. 2d 37, 38 (2d Cir. 1977)).
17 Immigration and Nationality Act of June 27, 1952 (I.N.A.) (66 Statutes-at-Large 163).
18 Alexander and Matthews, "Corporate Immigration," 6 (citing Drax v. Reno, 338 F. 3d 98, 99-100 (2d Cir. 2003)).
19 Ibid. (citing Castro-O’Ryan v. INS, 847 F. 2d 1307, 1312 (9th Cir. 1988)).
20 United States Citizenship and Immigration Services, "Public Laws Amending the INA,"
21 I.N.A. §201(c), (d); 8 U.S.C. §1151(c), (d). Family-sponsored immigration is, and has been for some time, backlogged for all countries to such an extent as to effectively limit employment-based immigration at 140,000 since no carryover from the family-sponsored immigration will occur at anytime in the foreseeable future. Family sponsorship of "immediate relatives" is not counted against the family-sponsored limit.
22 David Freedman, Robert Pisani and Roger Purves, Statistics (New York: W.W. Norton & Company, Inc., 1998), 475 (citing Michel de Montaigne).
23 e.g., The current visa allocation backlog date for Mexican married sons and daughters of U.S. citizens is January 1, 1981, which means that a parent of a Mexican married son or daughter, who is a U.S. citizen and has obtained from the USCIS an approved immigrant visa petition on his or her behalf, must currently wait 25 years for the actual visa to become available, which would then allow said married son or daughter to come to the United States.
24 Gallya Lahav, "The Rise of Nonstate Actors in Migration Regulation in the United States and Europe: Changing the Gatekeepers or Bringing Back the State?," in Immigration Research, 216.
25 Christopher Rudolph, "Immigration Strategies Will Be Reshaped by 9/11,"
26 James F. Hollifield, "The Politics of International Migration," in Migration Theory, 143.
27 Massey, et al., Worlds In Motion, 7.
28 Ibid., 3.
29 Ibid., 60.
30 Ibid., 62.
31 Rubén G. Rumbaut, "The Making of a People," in Hispanics and the Future of America, eds. Marta Tienda and Faith Mitchell (Washington, DC: The National Academies Press, 2006), 60 (emphasis added).
33 Foner, et al., Immigration Research, 2.
34 In a recent videoconference with J. David Singer, the author was reminded that all social science works are works-in-progress; to this effect, the author welcomes helpful critiques that will assist in refining the policy reform prescriptions posited herein.