Latest Scholarship

February 18, 2013

Reforms will require sober compromises

This op-ed appeared in Sunday's Sacramento Bee.

A rational national discussion about immigration reform has been a long time coming. Immigration has proved to be a contentious issue in the United States and historically has brought out some of the worst in the American people.

In the years leading up to the 2012 election, harsh immigration enforcement-only rhetoric from the Republican Party alienated Latino voters, who overwhelmingly supported President Barack Obama, even though his administration in one term deported more people than any administration in U.S. history. The growing clout of Latino voters has made clear the political writing on the wall. Within days of the inauguration, both the president and a bipartisan group of senators sought to end the immigration reform stalemate.

The president and the senators agree on the basics for reform: more enforcement; improvement of the legal avenues for immigration so as to prevent the emergence of a "new" undocumented population after the current one is legalized; and a legalization program for undocumented immigrants.

In one of few areas of agreement, Obama's State of the Union address and Sen. Marco Rubio's Republican response agreed on this tripartite approach to immigration reform.

If we hope to pass a reform measure in the coming months, we will need to discuss immigration reform clearly, soberly and carefully, and consider what is best for the nation, as well as what Congress as a practical matter can pass.

All of us should strive to avoid knee-jerk reactions – pro and con – and think hard about the problems, concerns and realities before the nation. Roughly 11 million undocumented immigrants continue to live and work in the United States. If we want to pass meaningful immigration reform, we must stop invoking debate-stopping talismans like "what part of illegal don't you understand?" and "you want open borders," or accusing opponents of reform as "racists."

Despite years of failure in enacting reform, there is every reason to be cautiously optimistic this time around – at least if the nation's leaders are willing to address the real issues and make compromises.

More Enforcement

The most significant of the enforcement proposals calls for a computer database that allows employers to quickly check the immigration status of workers, which in turn would allow the U.S. government to better police the ban on the employment of undocumented workers.

To this point in time, the federal government has failed to construct a database that has an error rate sufficiently low to withstand litigation. While Congress can make coming up with such a system an imperative, waiting for it to be perfected before the other parts of immigration reform kick in would be mistaken – and a likely deal-breaker. Millions of undocumented immigrants have been waiting many years for a path to legalization; their supporters almost certainly will not agree to make them wait many more years.

Moreover, critics, especially those who think that the president has already gone overboard on immigration enforcement, will say that spending even more money on it is wasteful. The best evidence is that the lack of jobs caused by the Great Recession, not more enforcement, has resulted in the reduction in the undocumented population from about 12 million in 2010 to the current 11 million.

Like it or not, increased enforcement measures are popular with the public and likely will be part of any serious reform bill. The question is whether more enforcement will somehow hold hostage the other two significant components of immigration reform.

Legal Immigration

One of the factors contributing to the growth of an undocumented population has been the lack of legal avenues for workers to lawfully come to the United States. This should not be surprising. The omnibus federal immigration law, the Immigration & Nationality Act of 1952, was forged at the height of the Cold War with the intent of restricting immigration and, by most accounts, needs a massive overhaul to address the nation's 21st-century economic needs for workers.

Lacking avenues to lawfully come to the United States, many immigrants who want nothing more than to work will likely continue to join the ranks of undocumented immigrants. Both the president and the senators agree on the need for the nation to attract and admit high-skilled workers and retain foreign Ph.D.s, especially in the sciences, graduating from American universities. The senators also recognize the need for legal avenues to ensure the migration of low-skilled workers who the economy relies upon, especially in agriculture.

One feature of U.S. immigration law has inadvertently created strong incentives for undocumented immigration. The "per country ceiling" generally limits immigration from any single country to roughly 75,000 immigrants a year. The result is that some very long lines – years if not decades – exist for immigrants in certain visa categories from high immigration nations, such as Mexico, India, China and the Philippines, to lawfully come to the United States.

Would-be immigrants in unrealistically long lines may not wait to rejoin family members. They may enter the country without proper documentation, or overstay their visas. In its reform efforts, Congress must consider elimination of the backlogs, which would require a significant number of immigrants to be admitted in the coming years.


By far, the aspect of comprehensive immigration reform that is likely to be the most controversial is a legalization program for undocumented immigrants. Any such proposal brings forth vehement attacks on a much-maligned "amnesty" for lawbreakers. But the lack of a path to legalization is a deal-breaker for the advocates of immigrants.

Recognizing the political realities, as well as the fact that it simply is not possible or just to deport 11 million undocumented immigrants, both the president and senators would require an undocumented immigrant to apply for legalization, pay a substantial fine and any back taxes, know English, and pass a background check. Criminals would be deported, not legalized.

The bipartisan group of senators would require a finding that the border has been secured before any path to legalization is implemented. The big question is what is necessary to trigger that finding and just how long it will be before undocumented immigrants in fact would be legalized. Further delay of legalization is unacceptable to immigrant rights advocates. Millions of people have been waiting for legalization for many years. Some reformers will reasonably contend that the Obama administration's aggressive enforcement measures and removal campaigns are sufficient to allow for immediate implementation of a legalization program.

To further complicate matters, both the president's and the senators' plans would require applicants for earned legalization to get behind anyone already in line. It makes no sense, however, to impose this requirement on undocumented immigrants, many of whom had no line to wait in for lawfully coming to work in the United States. Given that the lines already are very long for some prospective immigrants, putting undocumented immigrants at the end of the line could indefinitely delay their legalization. The only sensible solution to prevent undue delay is for Congress to eliminate the backlogs and legalize the applicants now.

The Upcoming Debate

The nation awaits a full-blown bill implementing the agreed upon reform principles. When a bill is introduced, expect lots of fireworks.

Some immigrant rights advocates will oppose more enforcement, demand greater reform to the current immigration laws, such as improved asylum provisions, recognition of same-sex marriage for immigration purposes and more. Opponents will object to an "amnesty," complain about the U.S. government's alleged failure to enforce the immigration laws and more.

Many Americans have an ideal immigration law in their minds. However, compromise is what will be needed for Congress to pass some kind of comprehensive immigration reform.