Before we get started, first of all, some definitions. A refugee leaves their country out of fear or necessity such as war, violence, human rights violations, or loss of home due to natural disaster and enters the country legally either as part of a resettlement process or to seek asylum, which is protection granted by a nation to a refugee. An immigrant leaves their country to settle in another and enters legally. An undocumented immigrant either entered the country illegally without proper authorization or documentation or entered legally and violated the terms of their visa or overstayed their limit. This is the same thing as an illegal alien which is the legal term favored by those who support deporting immigrants who are here illegally.
United States Immigration Law & Policy
Article 1, Section 8 of the United States Constitution gives Congress the power “To establish a uniform rule of Naturalization.” That’s pretty much the extent of the constitution’s reference to immigration. Most founders were committed to a policy of free immigration in order to increase the population and robustness of the new nation. It wasn’t until the late 1800’s that immigration policy began to be questioned. This is when Congress began to pass immigration legislation which taxed or blocked entry to some immigrants. With these new laws, new enforcement agencies were created as well.
On January 2, 1892, the largest and perhaps best known immigration station, Ellis Island in New York, opened. It was the largest and busiest port of entry for decades. At the beginning of the 20th century, legislative focus shifted to naturalization procedures (citizenship) since there was no uniform process. The Basic Naturalization Act of 1906 framed the fundamental immigration and naturalization processes for most of the 20th century. In 1921, the National Origins Formula was developed to establish immigration quotas for certain populations in order to promote immigration from northwestern Europe. It discriminated against Southern and Eastern Europeans, Asians, and other non-Northwestern Europeans. The Immigration Act of 1924 set quotas on the number of immigrants from the Eastern Hemisphere. It set an immigration quota of 165,000 for countries outside of the Western Hemisphere which was an 80% reduction from pre-World War I averages. Quotas for specific countries were based on 2% of the U.S. population from that country as of 1890. The purpose was to “preserve the ideal of U.S. homogeneity.” The U.S. Border Patrol was formed under this act.
The 1906 Act was repealed and replaced by the Nationality Act of 1940 which clarified eligibility for citizenship as well as how citizenship could be lost or terminated. It was the first attempt since the nation’s founding to unify naturalization (citizenship) policy. The Immigration and Nationality Act of 1965 abolished the National Origins Formula which led to a significant shift in immigration demographics. It created a seven category preference system that gave priority to relatives and children of legal U.S. residents, professionals and other individuals with specialized skills, and refugees. It maintained per country and total immigration limits, but exempted immediate relatives from those restrictions. It also set a limit on Western Hemisphere Immigration for the first time. This act greatly increased the number of immigrants coming from Asia and Africa.
The law was then modified by the Immigration Act of 1990, signed into law by George H.W. Bush. It increased overall immigration to allow 700,000 immigrants per year to come between 1992 and 1994, and then 675,000 per year after that. It created the Temporary Protected Status (TPS) visa for immigrants who are temporarily unable to return to their home countries which largely benefited citizens of El Salvador. It eliminated the English testing process for naturalization established in the 1906 act and the prohibition on homosexuals established in the 1965 act. It also created the visa lottery program to admit immigrants from countries that were underrepresented in the U.S.
What has withstood these acts through history are the following principles which guide modern immigration law and policy: the reunification of families, admitting immigrants with skills valuable to the economy, protecting refugees, and promoting diversity. 675,000 is still the current limit for permanent immigration visas, but there is no limit for spouses, children of citizens (as long as they’re under 21), or parents of U.S. citizens. Currently no number of permanent immigrants from a single country can exceed 7% of the total number of immigrants per year in order to limit any one group from dominating immigration patterns.
Separate from this, the president sets an annual limit of refugees to be admitted due to the U.S. refugee resettlement program established in 1980. The total number is broken down into limits from each region as well. The number of actual admitted refugees consistently falls below that annual cap. In 1980, the limit was set at 230,000 refugees, but had fallen to 67,000 by 1986. By 1993, it reached a second peak of 142,000, but had declined to 90,000 by 2000. After the September 11, 2001 attacks, the number of refugees admitted fell drastically to 27,131 in 2002 despite having a 70,000 refugee ceiling. The George W. Bush administration put new security checks in place and the numbers rose back up to previous levels and basically stayed between 70,000 and 85,000 from 2000-2016. The ceiling has dropped dramatically under the Trump administration and currently stands at just 18,000 for 2020, the lowest in history of the program.
 |
| Source: U.S. Department of State, Bureau of Population, Refugees, and Migration, “Proposed Refugee Admissions for Fiscal Year,” various years; Migration Policy Institute (MPI) analysis of Worldwide Refugee Admissions Processing System (WRAPS) data from the State Department, Bureau of Population, Refugees, and Migration |
So, why don’t they just come here legally like everyone else? Yeah, that’s not as easy as it sounds. It is universally agreed upon that our immigration system is broken. The system has lacked reform for such a long time that the pathway to citizenship is wrought with roadblocks forcing many into undocumented status not because they want to be, but because there is no other option. Millions are contributing positively to society and the economy and may even have family members that are legal citizens, but fear being sent back and having their family torn apart because the pathway to citizenship is so broken.
Here is one example of the broken system. Let’s say you are here as an undocumented immigrant. Maybe you came here legally as a low-skilled worker on a temporary visa, and didn’t leave. Immigrants make up over a third of all farming, fishing, and forestry workers and 25% working in computer and math sciences. Over 4 million immigrants work in the health care and social service industry. Many come here on temporary visas, but they can make so much more money here, even on what may seem like a low wage for U.S. standards, so they stay. About half of undocumented immigrants overstayed a visa.
Or maybe you’re on the waitlist due to annual limits and your parents or children are legal, but you’re not. There is currently a backlog of more than 1 million immigration cases resulting in many applicants to await years before their cases are heard. Or, maybe you even came here illegally to escape danger in your own country, but couldn’t request asylum. You may have relatives with legal status or even want to marry a U.S. citizen. One way or another, you are illegally here. Well, in order to apply for a green card, you have to leave the country. And, once you do, you are banned from returning to the country for 3 to 10 years because you were previously in the U.S. illegally. So, you stay...illegally because likely your family is here or you are the one making money for your family in another country or where you came from is unsafe.
Like many complex issues, there is no way to really simplify the issues around immigration and do it justice at the same time. But, if I had to frame this issue politically, the issue of immigration comes down to finding a compromise between a path to citizenship for well-intended individuals and families while securing borders from actual threats. There have been numerous efforts to fix these problems, but they have all failed. Here are some key historical efforts to do so. All had the basic foundation of providing a path to citizenship and securing our borders.
DREAM Act: (Development, Relief, & Education for Alien Minors) First introduced by Dick Durbin (D-IL) & Orrin Hatch (R-UT) in 2001. This was essentially a path to citizenship bill if a candidate meets the requirements. Supporters argue numerous social and economic benefits. Critics argue that it rewards the undocumented and encourages more immigration. It has been introduced numerous times since then but has yet to be passed.
Secure American and Orderly Immigration Act: Introduced to the Senate by John McCain (R-AZ) & Ted Kennedy (D-MA) in 2005. Never voted on but led to the following bills.
Comprehensive Immigration Reform Act of 2006: Introduced to the Senate by Arlen Specter (R-PA) and co-sponsored by McCain, Kennedy, & 4 others. Passed the Senate but the House & Senate could not come to an agreement so it never became law.
Comprehensive Immigration Reform Act of 2007: This was another bipartisan compromise between providing a path to citizenship and increased border enforcement. It also failed.
Border Security, Economic Opportunity, and Immigration Modernization Act of 2013: This is a bill written and negotiated by the “Gang of Eight” which includes 4 democrat senators and 4 republican senators. It passed the Senate, but has not been acted up in the House. It was another blend of path to citizenship and border security. In addition, it was predicted to reduce the deficit by raising more revenue than it would cost.
DACA (Deferred Action for Childhood Arrivals): DACA was started by the Obama administration in June of 2012 as a way to allow undocumented immigrants that entered before their 16th birthday and before June of 2007 to receive a renewable two year work permit and exemption from deportation. This was an executive action in response to the failure of the DREAM Act. In June 2020, the Supreme Court rejected the Trump Administration’s attempts to end DACA. So, in July 2020, the Trump administration announced that it would limit renewals to one year and not accept new applications.
DAPA (Deferred Action for Parents of Immigrants): This was another executive action announced in November 2014 to grant deferred action status to certain undocumented immigrants who have children who are American citizens or lawful permanent residents. Deferred action is not full legal status, but the order did come with a three year renewable work permit and exemption from deportation. In June of 2017, the Trump administration rescinded this order.
Undocumented Immigrants: Myths vs Facts
There are a lot of myths about immigrants, both documented and undocumented. One of the biggest is that immigrants hurt communities economically. The truth is that immigrants have revitalized economies throughout the country. For example, in Michigan, only 6% of the population is foreign born, but ⅓ of high-tech companies founded in the state over the last decade were by immigrants. Foreign born workers contribute $2 trillion dollars to the U.S. economy annually.
It is also commonly believed that undocumented immigrants don’t pay taxes, thereby forming a drain on our societies and economies. In fact, undocumented immigrants pay billions of dollars in taxes each year. They pay sales tax and property taxes, even if they rent. And, more than half have federal and state income taxes, Social Security taxes, and Medicare taxes even though they are not eligible for any of the benefits their taxes help fund. In 2010 alone, undocumented immigrants paid $13 billion into the Social Security trust fund and, if they stay undocumented, will never benefit from that service. If they were allowed to work legally, they would contribute $12.7 billion in state and local taxes, up $2.1 billion from what they pay now. In 2015, they paid more than $20 billion in income taxes.
Contrary to popular belief, undocumented immigrants are not eligible for so-called welfare benefits, such as Social Security, Medicare, Medicaid, and food stamps. Even legal immigrants have to be in the United States for 5 years before they can receive these benefits. Immigrants pay more in taxes than they receive in benefits. A study in Florida found that, per capita, immigrants pay $1,500 more in taxes than they receive in benefits.
Immigration Policy Under Trump
The Border Wall
It is widely known that a cornerstone of Trump’s 2016 candidacy and his presidency is an anti-immigration platform centered around building a wall along the southern border. When Trump couldn’t get Congress to fund his border wall, he declared a National Emergency so that he could redirect funds from the Department of Defense to the wall. So far, the wall has cost somewhere between $9 billion dollars and $11 billion dollars. This includes 285 miles of replacement fencing and 300 miles of new construction. The border itself is 2,000 miles long, and 654 miles had some sort of border prior to his election. On average it costs $6.5 million dollars per mile to construct new border or replace existing fence.
The efficacy of the wall has gone largely unstudied. The idea, of course, is that any barrier is going to reduce instances of illegal immigration. That is the goal of the wall. But, how much of a deterrent is it? And, how much would it reduce border crossings? That has not been evaluated.
Often, proponents of the wall talk about the need for it to stop drug smuggling. However, 77% of drug traffickers are U.S. citizens and most contraband comes through legal ports of entry.
The Muslim Ban
One of the first things Trump did after he was inaugurated was to sign an executive order which places limits on travel to the United States from several countries with predominantly Muslim populations. It has been challenged in the court many times, but was upheld by the Supreme Court in June of 2018.
Asylum Seekers
Asylum seekers arrive at our border seeking protection from persecution. A person granted asylum is legally allowed to remain in the United States without fear of deportation and apply for their spouse or children to join them. Asylum seekers meet the international definition of a refugee. Asylum seekers are real people. One mother carried her paralyzed daughter on her back thousands of miles to escape a man who repeatedly raped her. Another includes a boy who traveled through Guatemala and Mexico to get to the United States after a drug cartel shot his brother and threatened to kill him if he did not give up his family farm.
In addition to reducing the number of refugees to an all time low, the ability to be granted asylum has changed dramatically under the Trump Administration. If successful, the Trump administration will eliminate the refugee definition from the law and eliminate asylum in the United States.
In July of 2019, a new rule was issued banning asylum to any individual who traveled through a third country to get to the border and did not file for asylum in that country. Then, in November of 2019, the administration issued another rule that says that refugees filing for asylum in the U.S., must first file somewhere else. Both of these rules are being reviewed by the courts. In response to the pandemic, individuals who arrive at the border are expelled before they even have a chance to claim asylum. All asylum hearings were also put on hold.
In June of 2020, the Trump administration proposed a new set of rules that would essentially gut the entire asylum process. The new rules would
- Deny claims where the persecution was based on gender such as women and girls fleeing domestic violence, rape, and sexual abuse.
- Allow judges to deny claims without a hearing or any testimony from the applicant. Data shows that individuals with a lawyer are 5 times more likely to gain asylum than those without.
Zero Tolerance and Family Separation
On April 7, 2018, Trump announced his zero tolerance policy. Under this policy, even asylum seekers were treated as criminals. Even families lawfully presenting themselves at ports of entry had their children taken away. Asylum seekers were imprisoned and their children were scattered amongst resettlement shelters, sometimes within cages in locked warehouses sleeping under blankets that resembled aluminum foil. Some were sent off to tent cities. The government did not make a reunification system leaving families unable to reunite or, in some cases, even find their children. On June 20, 2018, Trump claimed to end the policy by executive order. Under new policy, asylum seekers were given a choice: leave the U.S. with your children or stay in the U.S. and seek asylum without your children. Therefore, the only way to seek asylum was to be separated from your children.
Sanctuary Cities
In light of the Trump Administration’s immigration policies, the public has heard a lot about sanctuary cities. A common misconception is that sanctuary cities don’t follow immigration law or that they interfere with ICE enforcement. That’s false. Sanctuary cities are not cities where immigrants are free of prosecutions or deportation. Sanctuary cities do not break the law.
Just like the term “sanctuary city” does not hold the same meaning as the public thinks it does, it doesn’t even hold the same meaning from one jurisdiction to the next. Typically, it refers to a city or county that limits their cooperation to enforce immigration law in order to protect low-priority immigrants from deportation while still turning those over who have committed serious crimes. But, that could mean any number of things as not all sanctuary cities operate by the same set of norms.
Common actions of sanctuary cities include not asking about legal status, not deputizing local law enforcement as ICE agents, not giving ICE agents advanced notice when immigrants are released from jail, and not detaining immigrants for extra time so that ICE can get them. And, that last one is especially important because holding an immigrant past the point of when they should be released, just so ICE can pick them up, is unconstitutional.
Being undocumented in itself is not a crime. It’s a civil violation. Therefore, police cannot arrest undocumented immigrants just because they are undocumented, because police can only arrest people suspected of committing a crime. If an undocumented immigrant is arrested under suspicion of committing a crime and then that person is cleared, the police must let them go. So, police can’t arrest someone for being undocumented, but ICE can. The police force and ICE are completely separate entities governed by a completely different set of laws.
Why are there sanctuary cities? Leaders do this in order to reduce the fear of deportation and family break-up so that people will be more willing to report crimes, use health and social services, and enroll their children in school. Studies on the relationship between sanctuary cities and crime show that sanctuary cities do not experience and increase in crime. In fact, some studies show lower crime and a stronger economy in sanctuary cities. Immigrants are incarcerated at one-fifth the rate native born citizens are.
So, how do we find a balance between a path to citizenship and border security? Here are where the candidates stand. Click on their name to be taken to their website for their full immigration policy.
Joe Biden:
Biden’s Record:
Biden’s Policies: Biden’s policies focus on securing the border, ensuring the dignity of migrants, and upholding the asylum process.
In his first 100 days, he will:
During his presidency he will work within his own administration and with Congress to pass legislation that will:- create a roadmap to citizenship for the 11 million undocumented immigrants who register, are up to date on their taxes, and have passed a background check.
- reform the visa program for temporary workers.
- increase the number of visas offered for permanent, work-based immigration.
- increase visas for domestic violence survivors.
- restore asylum eligibility for domestic violence survivors.
- apply U.S. asylum laws to those fleeing persecution.
- double the amount of immigration judges, court staff, and interpreters.
- end for profit detention centers.
- increase the number of refugees we allow in the country.
- address the root causes of migration by investing $4 billion in the Northern Triangle (Guatemala, Honduras, El Salador), linking the aid to governments in the region reducing gang and gender-based violence, improvements in legal and educational systems, and implementation of anti-corruption measures.
- invest in better technology at the southern border including cameras, sensors, and large-scale X-Ray machines.
Donald Trump
Trump’s Record:
The Trump administration has made removal of undocumented immigrants a priority.
In his first 100 days, Trump
sought to lower the number of refugees, suspend the U.S. Refugees Admission Program, suspend admission of Syrian refugees indefinitely, and suspend entry to the U.S. from Iran, Iraq, Libya, Syria, Somalia, Sudan, and Yemen via executive order.
called on Congress to fully fund a wall along the southern border, close loopholes that enable illegal immigration, end family based immigration, and eliminate the visa lottery program.
signed an executive order disqualifying sanctuary cities from receiving federal grants.
As President, Trump- pulled the United States out of negotiations for a “Global Compact on Migration.”
- took action to end DACA.
- rescinded the DAPA program.
- declared a national emergency in order to direct funds toward the border wall construction.
- launched VOICE, Victims of Immigration Crime Engagement within his Department of Homeland Security.
- oversaw 269,419 arrests of undocumented immigrants by ICE from the point of his inauguration to the end of fiscal year 2019,
- released an immigration reform proposal that calls for a transition to merit-based immigration.
- ordered the hiring of 10,000 new ICE agents and 5,000 new border patrol agents.
- deployed National Guard troops to the southwest border.
- prioritized arresting gang members, including members of MS-13.
- admitted the lowest number of refugees in history.
- proposed laws to fundamentally alter asylum law in the U.S.
