September 6, 2005

Introduction

On Tuesday, September 6, 2005, the Migration Policy Institute (MPI) marked the release of the Migration Information Source’s September Special Issue on the Unauthorized and the release of three publications prepared for the Independent Task Force on Immigration and America’s Future.

The event was moderated by MPI Senior Fellow and Task Force Director Doris Meissner.  Peter Brownell, Doctoral Candidate at the University of California, Berkeley discussed his Source article, “The Declining Enforcement of Employer Sanctions.” Victor Cerda, Partner at the Tew Cardenas law firm and former Acting Director of the Office of Detention and Removal Operations (DRO) of U.S. Immigration and Customs Enforcement (ICE) offered his personal views on some successes of the DRO, as well as the challenges faced in enforcing immigration law.  MPI President Demetrios Papademetriou discussed three publications prepared for the Task Force: “Lessons from the Immigration Reform and Control Act of 1986;” “Reflections on Restoring Integrity to the United States Immigration System: A Personal Vision;” and “The ‘Regularization’ Option in Managing Illegal Migration More Effectively: A Comparative Perspective.”

To read “The Declining Enforcement of Employer Sanctions,” click here.

To read “Lessons from the Immigration Reform and Control Act of 1986,” click here.

To read “Reflections on Restoring Integrity to the United States Immigration System: A Personal Vision,” click here.

To read “The ‘Regularization’ Option in Managing Illegal Migration More Effectively: A Comparative Perspective,” click here.

To view Brownell’s presentation from the event, click here. 

Discussion

Peter Brownell opened with a brief overview of the passage and implementation of the employer sanctions provisions of the 1986 Immigration Reform and Control Act (IRCA).  IRCA made it illegal to knowingly hire or employ unauthorized immigrants and imposed a range of penalties on employers who violated this restriction.

Brownell provided data on the decline of enforcement of employer sanctions since 1988 and particularly since the late 1990s.  He outlined several reasons for this decline, including: a focus on anti-smuggling efforts and national security, which diverted resources from employer sanctions; INS’ desire to maintain the cooperation of employers in locating and apprehending unauthorized immigrants; and the difficulty of proving in court that an employer had “knowingly” employed unauthorized immigrants.

Brownell outlined current legislative proposals for strengthening employer sanctions, including increasing funding and staffing for worksite enforcement and either improving or requiring phone/internet verification of the work eligibility of potential employees. 

Brownell also made recommendations regarding improved worksite enforcement.  First, he suggested Congress should clarify the labor rights of unauthorized workers in response to a 2002 Supreme Court decision blocking the payment of back wages for an unauthorized immigrant whose workplace rights were found to have been violated.  Second, he suggested that the Department of Labor (DOL) be given primary responsibility for the enforcement of employer sanctions. He stated that since the DOL is focused solely on enforcement in the workplace it could avoid some of the competing priorities and political pressures which undermine effective enforcement by immigration investigators.  Third, in an effort to make sanctions a more meaningful deterrent, he advocated imposing “enhanced” penalties on employers of unauthorized immigrants who also violate other labor regulations. In these cases, additional penalties might apply whether or not employers are aware of the immigration status of their employees.

Victor Cerda began by asserting that the US immigration system is broken.  To address current flaws, Cerda recommended several reforms including: facilitating employer compliance with sanctions; matching willing workers with open jobs; reforming the process of determining who is eligible for legal entry; devoting significantly increased resources for immigration benefits and immigration enforcement; and focusing on international relations.

Cerda reviewed some of the accomplishments of the Office of Detention and Removal (DRO), noting that DRO apprehended 11,000 fugitive immigrants in Fiscal Year (FY) 2003.  Yet despite record apprehensions, he stated that the unauthorized population in the United States remains at an estimated 8 to 14 million and 85 percent of those who are ordered deported but are not detained ultimately abscond.  DRO operations are expensive, with the cost of each detention bed reaching $90 per day.  Limited levels of funding provided for detention and removal slow the processing of cases, and have led to a lack of planning and training within the office. 

Cerda added that the process of deciding immigration cases also presents a challenge to the DRO.  While immigration cases should be decided within 60 to 90 days, even cases of so-called “expedited removal” are sometimes not resolved for over a year.  Cerda called for greater resources for immigration judges and attorneys to speed this process.

Cerda explained that aside from inadequate resources, DRO also faces challenges in securing the cooperation of foreign countries whose nationals are being removed from the US.  Some countries delay providing documents needed for the return of their citizens, while others fail to issue documentation altogether.  In such cases, detained immigrants are simply released.

Cerda concluded by calling for comprehensive immigration reform that addresses the process of providing immigration benefits in addition to bolstering employer sanctions, detention and removal, and other enforcement efforts.

Demetrios Papademetriou began by offering a comparative perspective of immigration regularization programs. He stated that regularization is one of the most frequently employed tools for managing illegal migration and has become the de facto immigration policy in some countries such as Italy, Spain, and Greece.  In many countries, legalization programs offer temporary renewable status to unauthorized immigrants, while the United States has traditionally offered legal permanent residence.  Regularization programs are almost always presented as a one-time solution, never to be repeated; rarely do policy-makers keep this promise.  Many countries also offer informal forms of legalization through administrative adjustments of status on the basis of strong family ties, economic need, or humanitarian causes.

Papademetriou argued that if the US plans to institute another regularization program, it must also make dramatic adjustments to the immigration system by creating a path for immigrants to come and work legally in the United States and by expanding cooperation with our neighbors to the north and south.

Papademetriou next turned to the lessons that can be drawn from US immigration reform under the 1986 Immigration Reform and Control Act.  He outlined four lessons that should be taken from the experience and used to draft better policy for the future.

First, he stated that policy must recognize demand factors that draw immigrants to the United States, including large sectors of the US economy that depend on immigrant workers and the demand for family reunification.  The second lesson to be learned from IRCA is that legalization should not be done halfway.  The decision to restrict IRCA’s legalization to those who could prove US residence for five years or more set an arbitrary limit that ensured a remaining illegal population and undermined the effectiveness of reform.  Future legislation should ensure that almost everyone presently in the United States qualifies for the legalization process.  Third, he argued that policy needs to reduce incentives for fraud.  IRCA’s requirement that immigrants prove they had been resident in the country for at least five years led to a market for fraudulent documents.  Fourth, the United States must think bilaterally and multilaterally in its immigration policy.  While the United States may speak of its “sovereign right” to choose who immigrates, the United States needs cooperation from its neighbors to effectively manage migration. 

He recommended that the US develop smarter enforcement of immigration laws; issue more legal visas, including temporary visas, to provide legal avenues for entry; and institute an earned legalization/regularization program to create the opportunity for those here illegally to earn permanent resident status.  However, he stated that the “soft” criteria for an earned regularization program might be difficult for the American public to accept.

Questions

One audience member pointed out that IRCA represented a failure of the political system as politics prevented the passage of sensible legislation.  He asked how it could be possible now to have a mature political discussion on the topic, especially one that considered the recommendations outlined in Papademetriou’s publications. 

Papapdemetriou stated that no matter the legislative outcome, politicians must acknowledge that the American people are unhappy with the lack of rule of law concerning immigration.   He also called for an increased visa quota, arguing that the number allowed should not be set in stone, but should be flexible independent of Congress.  He called for a focus on managing migration rather than on blocking migration, and on cooperating with neighboring countries.  He stated that if Congress does not take appropriate action on the issue now, it will have to revisit the issue in the near future.