America's Immigration Policy Fiasco: Learning from Past Mistakes

Following landmark immigration reforms enacted in 1965 to eliminate the taint of racism from U.S. immigration law, America's immigration and border policies took an increasingly restrictive turn. Hard numerical limits were imposed on immigration from the Western Hemisphere for the first time, and in subsequent years these limits were tightened, drastically reducing opportunities for legal entry from our closest neighbor and largest immigrant-sending nation, inevitably giving rise to mass undocumented migration.¹ In response to the rising tide of apprehensions, U.S. policy makers increased border enforcement exponentially and later scaled up deportations to record levels. Immigration enforcement presently costs an estimated $18 billion per year; at more than 20,000 the number of Border Patrol Officers is at an all-time high; and deportations occur at the unprecedented rate of 400,000 per year.²

Despite the unprecedented enforcement effort over the past several decades, net immigration from Latin America not only continued but accelerated. From 1970 to 2010, the percentage foreign born rose from 4.7% to 13% of the U.S. population, the undocumented population rose from a few thousand to a current total of 11 million persons, and Latinos climbed from 4.7% to 16.3% of the population.³ If the goal of U.S. policy was to limit the number of Latin Americans living in the United States, it clearly did not work. Although the 1965 liberalization of restrictions on Asian, African, and Southern/Eastern European immigration generally worked as expected, brining in a diverse array of new immigrants in manageable numbers, many with high levels of education, the tightening of restrictions on immigration from the Americas backfired.

This failure ultimately derives from the fact that the immigration policies implemented in 1965 and thereafter were not derived from any rational, evidence-based understanding of international migration. Instead they were enacted for domestic political purposes and reveal more about America's hopes and aspirations---and its fears and apprehensions---than anything having to do with immigrants or immigration per se. When policies are implemented for symbolic political purposes and massive interventions are undertaken in a complex social system such as immigration, with no real understanding of how it might be affected, the results are not only likely to be unanticipated, but counterproductive, and that is exactly what transpired in North America. In this article, I outline how and why critical immigration policy decisions were made and describe the unintended consequences they unleashed and how they led to a chain reaction of events that produced an unprecedented boom in Latin American immigration to the United States, despite monumental enforcement efforts.

The Price of Good Intentions

Our story begins with the crest of the Civil Rights movement in te 1960s, as legislators pushed forward to right the historical wrong of racial segregation. The 1964 Civil Rights Act outlawed discrimination in hiring and service provision and put teeth into school desegregation; the 1965 Voting Rights Act guaranteed black suffrage and prohibited the various subterfuges by which African Americans historically had been disenfranchised; the 1968 Fair Housing Act prohibited discrimination in the rental or sale of housing; and the 1974 Equal Credit Opportunity Act banned discrimination in mortgage lending. Within a brief decade, the vestiges of racism were purged from the American legal code.

In the context of an expanding civil rights movement, provisions in the Immigration and Nationality Act that openly discriminated against Asians, Africans, and Southern/Eastern Europeans came to be seen as intolerably racist and in 1965, over vociferous southern objections, Congress amended the act to create a new immigration system that allocated residence visas on the basis of skills and family ties to U.S. residents rather than national origins.⁴ The legislation initially created separate numerical quotas for the Eastern and Western Hemispheres, but in 1978 the hemispheric caps were abandoned in favor of a single worldwide ceiling of 290,000 visas, with each nation eligible for up to around 20,000 visas per year. Immediate relatives of U.S. citizens were exempt from these numerical limits, however.⁵

Unfortunately, Mexican immigration had been averaging around 50,000 persons per year prior to 1965, and in addition this sizeable inflow of legal immigrants Mexico enjoyed access to a large temporary worker program that from 1942 to 1964 enabled short-term labor in the United States, mostly in agriculture. At the program's height, some 450,000 Mexicans were entering each year for temporary labor. As the civil rights era gained momentum, however, the program came to be seen as exploitive and discriminatory labor, on a par with southern sharecropping. Congress began to cut back the number of work visas in 1960 and unilaterally terminated the program in 1965, despite strong protests from the Mexican government.⁶

The repeal of the discriminatory quotas and the termination of the temporary worker program had, of course, been undertaken for the laudable goal of ending racism in U.S. immigration policy; but in neither case did Congress give any consideration to what the consequences might be for the well-established migration system of Mexican migration that had evolved and become fully institutionalized by 1965. In the late 1950s the United States was admitting half a million Mexican migrants per year, all in legal status, roughly 90% for temporary work and 10% for permanent residence; and by 1960 these flows had come to be sustained by well-developed social networks that connected households and communities in Mexico to jobs and employers in the United States, such that economic expecations and structures on both sides of the border were adapted to this reality.⁷

What would happen to this deeply entrenched, thoroughly institutionalized flow once opportunities for legal entry from Mexico were terminated? This was not a question that Congress addressed or even seriously considered; but migration theory and research yield the strong conclusion that immigration flows tend to acquire an obdurate momentum once they are supported by an institutionalized social infrastructure of networks, practices, and expectations, especially when conditions of labor supply and demand remain unchanged. As a result, when opportunities for legal entry disappeared after 1965, the massive inflow from Mexico simply reestablished itself under undocumented auspices. Undocumented migration steadily rose in subsequent years until by 1979 it roughly equaled the volume observed in the late 1950s, only now the overwhelming majority of migrants were “illegal.”⁸

The Fruits of Baser Motivations

Although little had changed except the documentation of the migrants, the rise of illegal migration after 1965 offered a golden opportunity for ambitious bureaucrats to and cynical politicians to garner financial resources and political support, for by definition illegal migrants were “criminals” and “lawbreakers” and thus readily portrayed as a grave threat to the nation. Magazines published during the period 1970-2000 were characterized by the rise of a distinct “Latino Threat Narrative” that framed Latin Americans in general and Mexicans in particular using one of two threatening metaphors. On the one hand, migrants from the south were portrayed as a “flood” that would “inundate” American culture and “drown” its society in a “flood tide” of brown immigrants. On the other hand, undocumented migrants were portrayed as “invaders” who “swarmed” across the border in “banzai charges” to overrun ““outgunned” Border Patrol Agents who sought vainly to “hold the line” against the “alien invasion.”⁹

Over time, as the Cold War climaxed, the War on Drugs accelerated, and the War on Terror came to dominate public rhetoric, martial metaphors came to predominate over marine metaphors. As the number of border apprehensions rose year by year, press releases, news articles, and political speeches heralded the increase as confirmation of the ongoing invasion. Although the steady drumbeat of the Latino Threat Narrative inflamed public opinion to push it in a more conservative, restrictionist direction,¹⁰ from 1965 to 1979 the rise in apprehensions stemmed from actual increases in undocumented traffic at the border, as formerly legal temporary flows were restored under undocumented auspices as circular illegal migration. After 1979, however, the number of undocumented entries stabilized and the rise in apprehensions was pushed forward by the accelerating enforcement effort.¹¹

A good example of the threat narrative is the 1976 Reader's Digest article published by the Commissioner of the Immigration and Naturalization entitled “Illegal Aliens: Time to Call a Halt!” in which he alleged that his agency was “out-manned, under-budgeted, and confronted by a growing, silent invasion of illegal aliens” that “threatens to become a national disaster.”¹² Through such scare tactics, he and other immigration officials and their political allies were successful in channeling ever greater resources and personnel to combat the alleged invasion and the number of apprehensions began to rise in self-feeding fashion even though the underlying traffic at the border was no longer increasing. Each new release of apprehension statistics was accompanied by a demand for more enforcement resources, which indeed produced more apprehensions, which justified still more enforcement resources. As a result, during the 1980s and 1990s border enforcement increased exponentially in a manner that was completely detached from the actual number of undocumented migrants attempting to cross the border.¹³

From 1980 to 2000, the Border Patrol increased from 2,500 to 9,2000 officers and its budget went from $83 million to $1.1 billion. In response, apprehensions surged from 8,17,000 to 1.7 million even though independent estimates indicate the volume of undocumented entries was roughly constant. Despite the massive increase in border enforcement, the number of migrants entering the United States without authorization changed little; but the sharp upward surge in the costs and risks of border crossing did alter the behavior of migrants, though not in ways expected by policy makers. As enforcement personnel and materiel accumulated in the two busiest border sectors, flows were diverted away from El Paso and especially San Diego into the Sonoran desert and to new crossing points on the Arizona border, increasing the average cost of crossing from around $500 to around $3,000 per trip and tripling the rate of death undocumented migrants. Having been pushed forcibly away from California, migrants then continued on to new destinations in places such as North Carolina, South Carolina, Georgia, Nebraska, and Iowa, which in the 1990s came to house the most rapidly growing Latino populations.¹⁴

In addition to changing crossing and destination points, rising border enforcement also altered the propensity of migrants to circulate back and forth. Given the rising costs and risks of unauthorized border crossing, migrants quite logically minimized crossing----not by remaining in Mexico but by settling more permanently in the United States. Once they had experienced the costs and risks of clandestine crossing and run the harrowing gauntlet at the border, they hunkered down and stayed rather that returning to experience the ordeal again. The principal effect of the progressive militarization of the Mexico-U.S. border was to reduce the rate of undocumented out-migration back to Mexico, not lower the rate of undocumented migration into the United States.¹⁵ The end result was a doubling of the net rate of illegal migration and a sharp increase in undocumented population growth through the 1990s and into the new century. In the course of two decades the North American migration system was transformed from a circular flow of male workers going to California and a few other states into a settled population of families living in 50 states. From 1988 to 2008 the number of unauthorized residents of the United States grew from 1.9 million to 12 million while the share residing in California dropped from 40% to 25%.¹⁶

Increasing Pressure on Immigrants

Historically, illegal migration had always been confounded in the public mind with threats to the nation's security---be they from Jacobins, papists, or communists---and the 1980s were no exception. In the context of the Cold War and the proxy confrontation with the Soviet Union in Central America, President Reagan warned Americans that “terrorists and subversives are just two days' driving time from [the border crossing at] Harlingen, Texas” and in response to such rhetoric the 1986 Immigration Reform and Control Act contained a host of provisions enacted to manage a potential “immigration emergency.” In another speech, Reagan predicted that extremist groups would “feed on the anger and frustration of recent Central and South American immigrants who will not realize their own version of the American dream.”¹⁷

With the collapse of the Soviet Union, however, illegal immigrants lost their value as a trope in the Cold War but were quickly coopted symbolically into the War on Terror. In response to the 1993 attack on the World Trade Center and the 1995 bombing in Oklahoma City, Congress in 1996 passed the Anti-Terrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act. Following the 1998 bombing of the USS Cole in Yemen, the 2000 bombings of American embassies in Kenya and Tanzania, and the catastrophic attacks of September 11, 2001, Congress enacted the USA PAT RIOT Act. These measures not only strengthened border enforcement, but very deliberately increased pressure on immigrants within the United States, both legal and illegal.¹⁸

The 1996 legislation, for example, authorized removals from ports of entry without judicial hearings, declared undocumented migrants ineligible for public benefits, restricted access of documented migrants to certain means tested programs, granted local agencies the power to assist in immigration enforcement, declared any alien who had ever committed a crime immediately deportable, authorized the “expedited exclusion” of any alien who had ever crossed the border without documents, granted authority to the State Department to designate any organization as “terrorist” to render all members deportable, added alien smuggling to the list of crimes covered by the anti-mafia RICO statute, and severely limited the possibilities for judicial review of all deportations. The 2001 legislation granted executive authorities additional powers to deport without presentation of evidence, any alien—legal or illegal—that the Attorney General had “reason to believe” might commit, further, or facilitate acts of terrorism. It also authorized the arrest, imprisonment, and deportation non-citizens upon the orders of the Attorney General, again without judicial review.¹⁹

The cumulative result of these actions was a massive escalation of roundups in immigrant neighborhoods, raids at employment sites, stop and frisk actions on city streets, and traffic stops along public roadways. The end result was an exponential increase in immigrant detentions and deportations that threatened not only undocumented migrants, but any foreigner who was not a U.S. citizen. From 1990 to 2010 deportations from the United States rose from 30,000 to around 400,000 per year. In response, millions of legal immigrants rushed to undertake “defensive naturalization:” petitioning for U.S. citizenship in order to protect their rights and safeguard their ability to remain in the United States.²⁰

Historically, Latin American and especially Mexican immigrants had displayed very low rates of naturalization. In the 1990s, however, citizenship applications surged in response to the rising tide of nternal enforcement and cumulative restriction of liberties. Among Mexicans, the number of naturalizations had never exceeded 30,000 per year prior to 1990 and the total number in the two decades between 1970 and 1990 stood at just 233,000. After 1990, however, Mexican naturalizations surged to 255,000 in 1996 with plateaus of 208,000 in 1999 and 232,000 in 2008, yielding a cumulative total of 2.105 million new citizens between 1990 and 2010.²¹

The surge in naturalizations is key to understanding the acceleration of legal immigration from Mexico that has unfolded in recent years despite the annual cap of 20,000 visas per country, for as noted earlier immediate relatives of U.S. citizens are exempt from numerical limits. Although legal permanent residents are authorized to petition for the entry of their spouses and minor children, these visas fall under the annual cap and their relatives must wait until a visa becomes available, which for an over-subscribed country such as Mexico takes years. In contrast, if permanent residents naturalize to become U.S. citizens, their spouses and minor children are eligible for immediate entry, along with the immigrant's parents. Moreover, their adult children and siblings acquire the right to enter subject to numerical limitation.

In sum, each new citizen creates new entitlements within the U.S. immigration system and produces more legal immigrants down the road. As a result, when Congress began to strip away the rights and privileges of permanent residents and threaten them with deportation for a growing number of infractions, it unwittingly created hundreds of thousands of new entitlements for permanent resident visas that pushed legal immigration well above the statutory cap of 20,000 visas per year. To be sure, the exemption offered to citizen relatives had long pushed legal immigration from Mexico above the 20,000 visa limit. During the 1970s, for example, arrivals of Mexican legal residents averaged 63,000 per year despite the cap. By the latter half of the 1990s, however, the average more than doubled to reach 136,000 and from 2000 through 2010 it stood at 170,000 per year. Whereas only 5% of all legal Mexican immigrants entered as relatives of U.S. citizens in 1990 by 2010 the figure had risen to nearly two-thirds. In its zeal to increase the pressure on foreigners in the name of the War on Terror, Congress inadvertently increased legal immigration from Mexico by a factor of nearly three.²²

Blowback from the Contra War

To this point I have focused on Mexico, by far the leading contributor of migrants to the United States. Since 1970 Mexico alone has accounted for around 20% of documented and 60% of undocumented immigrants---and half of all documented and three quarters of all documented immigrants from Latin America. Within Latin America, the second major source region after Mexico is Central America, which accounts for around 15% of documented and 20% of undocumented migrants from the region. Immigration from Central America was minimal prior to 1980, with legal entries totaling just 114,000 during the 1970s, but entries by Central Americans grew rapidly thereafter, totaling around 325,000 the 1980s and around 600,000 each during the 1990s and 2000s.²³

The surge in Central American immigration stemmed from the U.S. Contra intervention, which raised levels of violence and social disorder to push thousands of people northward as refugees. Although Nicaraguans, escaping a left-wing, pro-Soviet regime, were readily accepted as refugees and ultimately admitted to permanent residence, other Central Americans—Salvadorans, Guatemalans, and Hondurans—were labeled “economic migrants” and not welcomed, with U.S. officials relegating them to temporary protected status at best and more commonly undocumented status, adding a significant central American component to America's Latin American population boom.²⁴

Learning from Our Policy Failures

Over the past four decades the United States has undergone a mass immigration not seen since the early 20^th century. The new wave has yielded a progressive Latinization of the U.S. population and a rising prevalence of illegality among the foreign born. From 1970 to 2010 the foreign born population rose from 9.6 to 40 million persons while Latinos grew from 9.6 million to 40.5 million and now comprise fully 16.3% of the population. Among Latinos the foreign born percentage went from 30% to 40% and Central Americans and Mexicans together increased their share of the population from two thirds to three-quarters while Caribbeans fell from a quarter to about 15%. Among Latinos present in 2010, nearly a third lacked documents and nearly 60% of immigrant Latinos were unauthorized.²⁵

For the most part these developments were unintended consequences of U.S. immigration and border policies that were made without regard for realities on the ground. By curtailing opportunities for legal entry from the Americas after 1965, the United States transformed a well-established and largely circular flow of legal migrants into an equally well-established, circular flow of illegal migrants. The increase in illegal migration led, in turn, to the rise of the Latino threat initiative and a shift toward ever more restrictive policies. The resultant militarization of the Mexico-U.S. border transformed the geography of border crossing and led to a proliferation of new destinations while at the same time reducing rates of return migration and accelerating undocumented population growth. Finally, U.S. political and military interventions in Central America during the 1980s generated out-flows of emigres that further augmented Latin American growth. As a result, since 1970 the foreign born population has quadrupled, the United States became substantially more Latino, national origins among Latinos have shifted decisively toward Mexico and Central America, and the share present without authorization has risen to unprecedented heights.

The evidence thus suggests that the U.S. turn toward restrictive immigration policies after 1965 was counterproductive, to say the least. Particularly in the case of Mexico the contradictions are glaring. In 1994 the United States and Mexico entered into a free trade agreement designed to reduce barriers to cross-border movements of goods, capital, resources, information, services, and many categories of people. Not only was the movement of labor excluded the otherwise integrated North American market being established, but that same year the United States launched Operation Gatekeeper to block the flow of migrants through the busiest border sector as part of a long, two-decade process of border militarization. Apparently the contradiction involved in integrating all factor markets in North America except one never occurred to leaders in Washington.

The simple reality is that, as a practical matter, it is virtually impossible to stop the movement of people between two countries that share a 3,000 mile border, are linked together in a free trade agreement, are among one another's largest trading partners, and are linked together by a joint history of social, economic, and political inter-penetration. If one tries unilaterally to block flows of people that are the natural outgrowth of broader processes of social and economic integration, moreover, the results are dysfunctional and counterproductive, as we have seen. Rather than seeking to suppress migratory flows that merely reflect the powerful forces binding North America together, the alternative is to accept the flows and seek to manage them in ways that are beneficial to Americans, Mexicans, and the immigrants themselves.

In North America the stars might finally be aligned for a such a transition, moving away from unilateral repression toward bilateral strategies of management. With the conspicuous help of Latino voters, President Obama won a second term and need not worry again about reelection. In Mexico, meanwhile, a new President, Enrique Peña Nieto, has taken charge and is looking for a way forward on issues with its northern neighbor. Should the two presidents seek to cooperate in managing international migration more effectively, they will benefit from a unique political moment when the pressure is off, for undocumented migration from Mexico has fallen to a net of zero and has remained there since 2008. Indeed, the net immigration rate may even be negative.²⁶

One reason for this development is the quiet return of temporary worker migration. Whereas only 3,300 Mexicans entered the United States on temporary work visas in 1980 in 2010 the number reached 517,000.²⁷ Though the latter figure is inflated by new measurement efforts at the border, in 2008 before these new efforts were implemented, the number of entries stood at 361,000, the largest number since 1959. When added to the average of 170,000 Mexicans who entered each year as permanent residents, we see that substantial opportunities for legal entry have opened up in the U.S. immigration system, with numbers fluctuating around the half million level last observed in the late 1950s. Although labor demand in the United States faltered in the Great Recession of 2008, the demand that remains is currently being met by legal migration in various categories.

In Mexico, meanwhile, the conditions that have for so long drive immigrants northward have shifted. Fertility rates have fallen dramatically, the rate of labor force growth is rapidly decelerating, and the Mexican population is aging as rural populations continue to dwindle. Rural dwellers, long the source for a disproportionate share of Mexican immigrants dropped from 35% of the population to around 20% today. At the same time, real wages have stabilized even as they have fallen in the United States while education levels among younger cohorts have steadily risen and the middle class has grown.²⁸ The young migrants leaving Mexico today are increasingly well-educated people of metropolitan origin who are migrating in response to the rhythms of development in an increasingly integrated North American economy.²⁹

In sum, the conditions that supported mass undocumented migration in the past appear to be disappearing and what needs to be done at this point is to find ways to better manage the flows that will inevitably occur in the course of North American economic integration, facilitating the entry and return of the large majority of migrants who prefer circulation to settlement while opening up opportunities for legal permanent for the minority of migrants who come to acquire strong social or economic connections to the United States and wish to remain permanently.

In recent years, politicians in the United States have referred to four “pillars” of comprehensive immigration reform: gain control of the border, create a sizeable guest worker program, increase the quotas for immigration from Mexico (and Canada), and enacting a pathway to legalization undocumented U.S. residents. Of these, three have already been achieved in de facto terms: illegal migration has been at a net of zero since 2008; temporary worker entries are at levels not seen since the late 1950s; and through defensive naturalization Mexicans themselves have in practical terms increased the size of their quotas for legal immigration.

Although the current system of temporary worker migration could certainly benefit from improvements to protect workers and prevent exploitation, the most serious task remaining for immigration reformers is the legalization of the 11 million persons who are currently unauthorized, especially the three million or more persons who entered as minors and grew up in the United States. The lack of legal status constitutes an insurmountable barrier to social and economic mobility not only for the undocumented immigrants themselves, but for their citizen family members. Not since the days of slavery have so many residents of the United States lacked the most basic social, economic, and human rights.

The transition to a minority-majority U.S. population is now well under way and in demographic terms is inevitable. Although the U.S. population is currently 16% Latino, 14% black, 5% Asian, and 3% mixed race, among births 25% of are to Latino mothers, 15% are to African Americans, and 7% are to Asians, comprising almost the total. Our failure to arrange for the legalization of the 11 million persons currently out of status will not change the demographic transition under way in the United States, it will only render it more contentious, problematic, and costly to society. In 2013 the United States, Mexico, and Canada have a unique opportunity to break with the failed policies of the past and enter a new era of cooperation to manage rather than suppress the ongoing flow of migrants who will inevitably move within the free trade zone they have created.³⁰