Parsing U.S. Immigration Reform

The Supreme Court is preparing to hear arguments on Arizona’s controversial immigration law, which will have a significant impact on the national debate on immigration reform. Meanwhile, the Obama administration has been taking steps to loosen procedures for undocumented immigrants with U.S. citizen relatives (PDF) while conducting broad nationwide sweeps of undocumented immigrants with criminal backgrounds. CFR’s Senior Fellow Edward Alden says President Obama "has been very determined to maintain the tough enforcement stance that was established in the second term of the Bush administration," despite criticism from within his administration. Alden says that the issues of encouraging legal, skilled immigration and enacting enforcement policies for illegal immigration are "intimately connected," but says that in light of Washington politics, comprehensive reform will likely be put on hold in favor of narrower, more targeted legislation.

In January, the Obama administration announced procedural changes for "unlawful presence waivers." Can you give some background on this?

This is an administrative change that tries to address a long-existing Catch-22 in U.S. immigration law. It dates back to an act passed by Congress in 1996. The problem is this: you have people living in the United States unlawfully, who have a right to stay--they have married a U.S. citizen, or they have some other claim to adjust their status to be able to remain in the United States permanently. The way existing law operates, in order to apply for that change of status, you have to return to your home country and make the application at a U.S. embassy or consulate abroad. But under the 1996 act, if you have been living in the United States illegally for a significant period of time, you are thereby automatically barred from returning to the United States for periods of as long as ten years, and in most cases, at least five years. Therefore, say you’re a Mexican undocumented immigrant with a legal claim to remain in the United States; you go back to Mexico to file the application. At that point, the five- or ten-year bar immediately kicks in, and then you have to apply for the U.S. government to waive that statutory bar that keeps you out of the country, and it can take years for those waivers to be processed.

What the Obama administration is doing is making a fairly small change that says if you’re an individual who has a legal case to remain in the United States, you can apply for that adjustment of status while you remain in the country, and you can apply for the waiver from that five- or ten-year bar. That means that in theory, when you finally have to go back to your country to finalize the change of status, it will be a fairly brief stay out of the United States, rather than an extended period of years, as it is under the current procedures.

How profound an impact will this change have?

The numbers aren’t clear. It is suggested that maybe there are as many as a million individuals out of the estimated undocumented population of ten to eleven [million] who might potentially benefit from this waiver. There are critics on the Hill and elsewhere that are saying that this is "backdoor amnesty," and I think that is a misreading of what’s been done. No individuals will be eligible for legalization under this provision who aren’t already eligible. It’s only people who have a legitimate claim under current U.S. immigration law to remain in the country legally. It’s essentially a humane change to try to reduce the time that families are separated in order to run the hurdle of the immigration laws. To call it "backdoor amnesty" is a complete mischaracterization of what’s been done.

Recently, the federal government undertook the largest sweep of undocumented immigrants across the country, targeting people with criminal histories and detaining them for eventual deportation. How do you view this?

The Obama administration, since it came into office, has been very determined to maintain the tough enforcement stance that was established in the second term of the Bush administration. So we’ve seen the number of deportations annually remain at roughly 400,000--which have been record numbers. But the [Obama] administration has taken a lot of criticism from its own supporters for deporting people, who don’t have criminal records and who are otherwise law-abiding residents of the United States. So there has been pressure on the administration to set up a clear list of priorities.

That was done in a memo from John Morton (PDF), head of Immigration and Customs Enforcement, the ICE agency. That memo lays out very clearly what the enforcement priorities have been for this administration, and at the top of that list are people who have committed some significant criminal offense. But it includes many others, including those who have been identified for deportation but have not showed up to be removed, these so-called fugitives. It includes people who have been deported in the past and have come back into the country. It includes people who were simply caught at the border recently, and have made multiple efforts at re-entry, and so there are a lot of categories of priority for this administration.

I think the sweeps are intended to show that this administration is not backing down on its tough enforcement stance, and is going to try to carry out those priorities in a fairly aggressive manner. There is clearly a lot of tension within the White House over the approach. I certainly hear from others in the administration concern over a removal policy that continues to affect a lot of people that don’t fit into any of these priority categories. Even last year, when the administration said that more than 50 percent of those deported fit one of the priority categories, that’s still roughly 200,000 people who didn’t fit any of the priority categories.

And the administration is in a bit of a Catch-22: If it’s only going to deport people who fall under the priority categories, then the number of people deported annually is going to fall. And for a variety of political reasons, because they don’t want to hear the accusation that they’re going soft on enforcement, the administration does not want to see those numbers fall. That’s a very difficult circle to square, because there are only so many criminals among the illegal immigrant population. Overall, crime rates are actually somewhat lower in the undocumented population than they are in the legal population, for obvious reasons--if you commit a crime, you become a priority for deportation. So this is something the administration is going to struggle with. When we see the end of this fiscal year, which will be the end of September, I think you are going to see the overall deportation numbers drop, and that’s something they will have to deal with politically.

How do these sweeps fit with an enforcement program like Secure Communities, which was designed to achieve the same result?

I think the administration would argue that they’re complementary. Secure Communities is a bottom-up program in which individuals who are arrested for a variety of reasons are checked against immigration databases, and if there’s evidence that they are out of status, they are turned over to federal authorities. The sweeps are top-down, so these are people who have been identified by the Department of Homeland Security as serious violators who remain in the country, so using intelligence and police tips, these people are identified and gone after in a systematic way. This is the main difference: Secure Communities is bottom-up, the sweeps are more top-down, but the people who are being targeted are roughly the same.

The Supreme Court is set to hear on Arizona’s controversial immigration law beginning April 24. How do you think that is going to play out?

I’m not a Supreme Court expert, but I think even experts have sometimes been puzzled by the decisions of this Court. I can tell you what the main issues will be, and that concerns federal versus state jurisdiction with respect to immigration laws. The issue will be: do states have the authority to set their own immigration enforcement priorities? If you look historically, immigration has been seen as exclusively a federal preserve--who gets let into the country legally, who is removed for being in the country illegally, those are all matters of federal jurisdiction. So certainly, based on the history, one would think that Arizona overreached in the case of this law, but again, it’s hard to predict.

Through Secure Communities, states are already quite active in immigration enforcement. This is a federal program, and so you have state and local police forces that are in effect being deputized by the federal government to run certain immigration checks. Legally, that’s different than what Arizona has done, which is to pass its own state law giving its police similar authorities, and then drags the federal government in. The jurisdiction questions are somewhat different, but clearly, states are already deeply involved in immigration enforcement. So it’s difficult to predict exactly how the Court is going to come down on a question like this.

The effect of the Court decision will clearly be significant. If the federal government strikes down the Arizona law in a broad way then that will affect other state laws in places like Utah and Georgia that have passed laws with some similarities. You’ve already seen a halt to states passing similar sorts of laws, waiting to see what the courts will say. If the court upholds the Arizona law on some narrow ground, you can imagine a lot of states will either try to rewrite the statues they have already passed, or will try to pass statutes to meet the narrow criteria that the Court sets out.

When it comes to immigration, it seems the discussion takes place on two different planes--one on illegal immigration and enforcement policies, and another on reforming the legal immigration process. You’ve argued before that these should be dealt with together.

The argument for comprehensive reform, [which] I’ve supported for a long time, is that these things are intimately connected. If there were, for instance, a significant guest worker program, or a larger number of visas for unskilled workers, that would definitely take some of the pressure off illegal immigration. If you have legal avenues for people to come and work in the United States, then they are less likely to come here illegally, so the two issues of the rules of legal immigration and enforcement against illegal immigration are intimately tied to one another.

But for a variety of reasons, politically, it’s not been possible to move forward on comprehensive reform. Therefore, if we’re going to see any action out of the federal government with respect to legal immigration, it’s likely to be narrower and targeted. There has been legislation proposed with bipartisan support, for instance, [that] would expand the quota for skilled workers for India and China, who have been subject to very rigid quotas, and there is talk of legislation that would make it easier for foreign students with advanced degrees in science math and engineering to obtain green cards in the United States. So if we’re going to see legislation pass--and I think it’s unlikely in an election year, but possibly next year--it will be narrower legislation targeted at skilled immigrants.