Can We Remake a Broken Immigration System?

Can We Remake a Broken Immigration System?

If Democrats take back political power in November and want to seriously address the plight of migrants and the undocumented, they’ll need to rebuild immigration policy from the ground up.

If the #coronavirus has taught us anything it is the lengths people will go to when desperate. Next time you want to judge boat people, refugees, migrants fleeing war torn lands—remember we fought over toilet paper.

—Internet meme, early March 2020

Farmworkers, Mostly Undocumented, Become ‘Essential’ During Pandemic

—New York Times headline, April 2, 2020

The great pandemic of our age will bring us, as Arundhati Roy has written, through a portal. In the United States, what lies on the other side will depend, foremost, on the outcome of the presidential election.

If Donald Trump is reelected, we face the likelihood of a full-blown authoritarian state. For immigrants—legal and undocumented, already here or trying to come, asylum seekers and refugees—life will be more miserable, more vulnerable, and more frightening. The immigrant rights movement will remain on the defensive. And because the Trump agenda calls for drastically reducing legal immigration as well as rounding up the undocumented for deportation, one wonders how the “essential” work of the nation (agriculture, food processing, dishwashing, construction, domestic work, healthcare) will be done.

It isn’t too far-fetched to imagine undocumented immigrants arrested and sent to work on chain gangs in the fields and in food factories before they are deported. The Geary Act of 1892, which extended the Chinese Exclusion Act, included a provision for forced hard labor pending deportation. The Supreme Court’s ruling in Wong Wing v. United States (1896) voided that part of the Geary Act, but the Court’s majority today cannot be relied upon to uphold precedent if precedent impedes the administration’s political agenda. As for chain gangs, ICE routinely shackles and chains together migrants rounded up in workplace raids.

If the Democrats take back the White House and the Senate in November, there will be two immigration agendas. The first will be to roll back the policies of the Trump regime: the “Muslim” travel ban, zero-tolerance for all undocumented immigrants, ICE raids, indefinite detention, rescission of Deferred Action for Childhood Arrivals, a new public-charge rule restricting green card eligibility, the near elimination of refugee admissions, and the refusal of asylum seekers. These reversals can be done immediately and administratively, just as easily as they were imposed, through executive order and administrative fiat. That ought to be just the beginning.

What is the second agenda? It isn’t “comprehensive immigration reform,” the misleading name for compromise legislation that trades legalization for more border security. That plan has been stalled in Congress for a decade, and it is not only insufficient for the task at hand but fatally flawed in conception. Perhaps our experience with the coronavirus will, instead, result in better understanding of the plight of asylum seekers, gratitude for the toil of undocumented workers, and appreciation for the interconnectedness of our world and the deeply unequal relations that run through it. Such a shift in framing might assist a grand rethinking about migration and migration policy.

The need for a big rethink becomes clear when we consider the two most urgent problems we face. The first is the population of roughly 10 million undocumented migrants in the United States. They are highly exploited and vulnerable to apprehension, deportation, and family separation. This population has steadily grown since the 1990s, as the militarization of the U.S.−Mexico border led more undocumented people to remain in the United States rather than migrate back and forth, a practice that was common if risky until the late twentieth century. The second is a decade of extreme violence and insecurity in the Central American Northern Triangle (Guatemala, Honduras, and El Salvador), which has resulted in massive displacement and flight, much of it through Mexico to the United States. The U.S. Border Patrol apprehended nearly 1 million people arriving at the U.S. southern border seeking asylum in 2019; the Trump administration’s war on asylum seekers included separating children from their parents and summary removal to “wait” in camps on the Mexican side of the border.

Notwithstanding the reasons that propel migration from the Global South to the Global North, these problems have become intractable because immigration and refugee laws are fundamentally incapable of solving them. In fact, they reproduce and exacerbate them. This body of law is based on legal premises conceived in the mid-twentieth century: civil rights and human rights. Some might believe these cherished principles should continue to guide policy, but they are too constrained to solve the problems of our time. And they are not abstract generalities. Both regimes of rights were products and instruments of Cold War politics.

Our immigration system is based on a fixed numerical ceiling for new admissions for permanent residence (green cards), which is now 425,000 a year. (The total number of new green cards is about 1 million a year, when accounting for people who are already here and adjust their status because of employment, marriage, or other reasons.) Priority is given to family unification (80 percent of green cards, with most going to family members of U.S. citizens), and the remainder to employer-sponsored visas (mostly to technical and professional workers). No country can receive more than 7 percent of the total, or 25,620. This rule serves as an impossible limit on high-sending countries. Mexico, India, China, and the Philippines are consistently oversubscribed and have long waiting periods for visas, often fifteen to twenty-five years, if not longer. Oversubscribed countries now also include Guatemala, Honduras, El Salvador, and Vietnam.

The regime of numerical limits and country quotas began in 1924, when Congress slammed shut the gates to immigration. From the colonial era through the early twentieth century, immigration was open (with important exceptions, most notably with Chinese migration), serving the needs of settler colonialism, slave importation, continental expansion, and industrialization. There were no numerical limits; domestic and global labor-market supply and demand roughly regulated immigration. The national origin quotas established in 1924 discriminated against Eastern and Southern European countries and banned all migration from Asia, but exempted the countries of the Western Hemisphere because of diplomatic and agricultural interests.

Congress reformed the quota system in 1965. It created “equal quotas for all countries,” in order to correct discrimination against Italians, Jews, and others from restricted parts of Europe. Whether from naïveté or willful disregard, Congress believed immigration from Asia would remain low (on grounds that there were too few Asians to make any meaningful utilization of the family preferences) and that migration from Mexico could be managed administratively.

Both Jim Crow and national-origin quotas undermined U.S. claims to be the world’s leading proponent of democracy. In many ways, the Immigration and Nationality Act of 1965 was a symbolic reform that presented a non-racist image to the world. But the Act was in fact deeply protectionist, intended to keep domestic wages high and the population white.

The concept of “equal quotas” drew directly from the civil rights−era notion of equal rights. The analogy between individuals and countries as the bearers of equal rights is inapt, however: individuals migrate, not countries. The reform represented a formalistic equality, providing “equal” treatment of countries regardless of size, need, or relationship to the United States. Mexico and India have the same quotas as Belgium and New Zealand.

Moreover, the overall numerical ceiling on total annual admissions remained low and out of sync with labor market demands. The Immigration Act of 1924 established a ceiling of 150,000 per year, or 15 percent of pre–First World War averages—a drastic restriction that suited the country’s reactionary mood. In 1965 Congress increased the ceiling to 290,000 a year, the same numerical proportion of the total population as the earlier ceiling (one-sixth of one percent) despite an expanding postwar economy and declining native birth rate. Today’s ceiling (425,000) is about the same proportion. It remains indifferent to global and domestic labor markets.

The low overall ceiling and the imposition of equal quotas on all countries are the fundamental reasons for the steady increase of undocumented migration since the 1970s.

Unlike the legal and political framework governing immigration, the policies that regulate refugee admissions and asylum originate in the concept of universal human rights—rights that transcend the prerogatives of nation-states. The 1947 United Nations Universal Declaration of Human Rights, conceived in the aftermath of the Second World War, includes the rights to exit and to be free from persecution and torture, among others. It has no enforcement mechanism, and the right to exit one’s own country did not come with the right to enter any other particular country.

After ad-hoc efforts to resettle some 2 million Europeans permanently displaced during and after the war, the Geneva Convention on Refugees in 1951 established a new set of international norms. Its most important provisions are that countries should assist refugees and asylum seekers and that no one should be forcibly returned to their country of origin if they have a well-founded fear of persecution on grounds of ideology, religion, national origin, race, or political affiliation. The Geneva Convention recognized the importance of international cooperation and the idea that the international community bears some responsibility to help the citizens of states that fail them. It carved a space of exception in the otherwise highly restrictive immigration laws in the West.

But the convention was limited in important ways. First, it defined refugees as victims of individual persecution. It does not cover those fleeing from war or civil violence if they cannot prove they were personally imprisoned or tortured, or those displaced by drought and other climate-related disasters. Second, the convention was intended for Europeans fleeing the Soviet bloc. Historian Laura Madokoro’s 2016 book Elusive Refuge details the deliberate exclusion of Chinese refugees who left Communist China for Hong Kong in the 1950s from the terms of the Geneva Convention. The United States and British settler countries like Canada and Australia still maintained laws excluding or restricting Asian immigration, and the drafters of the Geneva Convention believed it would be asking too much of them to take Asian refugees. Even still, the United States did not sign the terms of the Geneva Convention until 1968, and it did not pass a domestic refugee law incorporating international norms until 1980.

U.S. refugee policy has been driven almost entirely by foreign policy considerations. Throughout the twentieth century it favored those fleeing Communist countries like Cuba and Indochina and shunned those fleeing repressive governments that were friendly to the United States, such as Haiti and various Central American states. In more recent years, the United States has admitted refugees from Africa and the Near East, but in small numbers relative to need. Fewer than 1 percent of the world’s refugees are resettled in a third country; from 2010 to 2014, the United States ranked twenty-eighth of forty-three industrialized countries in terms of refugee admissions per capita. Most refugees remain in camps in the Global South.

The most enduring legacy of this system has been the distinction between “political” and “economic” migrants. That distinction was conceived in the emergency of wartime displacements and restrictive immigration regimes and deployed as an instrument of Cold War politics. Historically, many migrants have been impelled by both political and economic conditions: Irish exiled by famine and British colonialism, Jews fleeing religious and economic restrictions in Tsarist Russia, Chinese displaced by failed harvests and Taiping violence. In our own time, Central American migrants are fleeing both civil violence and economic precarity. Yet, even before Trump was elected, U.S. judges were denying asylum to unaccompanied minors from Central America on grounds that gang violence was not “persecution” of a “protected class” (youth).

There are over 70 million displaced persons in the world. Only 26 million of them are officially classified by the UN as “refugees,” yet they are all in need of assistance—not just humanitarian aid for survival but the chance to rebuild a meaningful life. The high burden of proof for asylum and restrictions on regular immigration means that the problems of undocumented migration and asylum are deeply connected. When migrants are denied asylum, those who elude removal become part of the undocumented population. The system is broken.

We need a different vision of the world and our place in it, one which regards our privilege not as an entitlement to hoard but the product of unequal relations of global power, including U.S. military and economic predations abroad. Will the experience of the coronavirus pandemic enable a revaluation of international cooperation—to protect world health, to tackle climate change, to reduce North−South inequality, and to promote peaceful methods of addressing conflict? Can we really afford to allow the prerogatives of global capitalism—responsible for much of what threatens humanity and the planet, not least by paving the way for the current pandemic—to rule unrestrained? Migration, a global phenomenon, is the result first and foremost of global inequalities. Mobility is a human right, but people must also have the right to pursue life in their home countries, decently and safely.

Nationalism, protectionism, greed, and individualism are strong currents undergirding contemporary policy. They are not easily overcome, but neither are they hegemonic, and the pandemic has shown to broader swaths of the U.S. population their destructive force. Human rights ought not be a grudging exception to national sovereignty but a principle that connects individual and collective well-being. An ethical approach to global migration, based on international cooperation and a commitment to equality, is embraced by a range of global actors, from the International Labour Organization to the Catholic Church. I do not think it is too radical to ask a Democratic president and Congress to rethink our immigration and refugee policy from the standpoint of decency, fairness, and justice—values that align with liberal democracy.

The following general policy suggestions all have historical precedent, and they all resonate, to varying degrees, with proposals put forth by immigration reformers and activists. Of course, the details of any reforms are subject to political negotiation.

1. Legalization of the undocumented with a path to citizenship for those who want it. Ever since we have had immigration restrictions, we have had unauthorized entries, but we have always found ways to legalize the presence of the undocumented: statutes of limitation on removal (one to five years in the late nineteenth and early twentieth century), administrative adjustments from the 1930s to the 1950s, and mass legalization in 1986. None required long and torturous procedures. Legalization recognizes that regardless of the mode of entry, migrants are members of society. They have
families, jobs, property, and community ties. They become part of “us.” Such an approach obviates the need to round up, cage, and remove the undocumented.

2. Overhaul the system of admitting migrants. To the extent that the United States maintains a ceiling on annual admissions, it should be periodically adjusted to meet labor market demands and should be accompanied with a living minimum wage and workplace protections for all workers. The system of “equal quotas” for all countries should be scrapped. A point system is one possible alternative, but points should not be distributed in such a way as to exclude those without fat bank accounts or professional credentials.

In the months before September 11, 2001, Presidents George W. Bush and Vicente Fox were planning to negotiate a U.S.–Mexico agreement that would have created an open or quasi-open border between the two countries, with temporary permits to allow migrants to work legally in the United States for a number of years. In recent years immigration reformers have considered a version of this concept—and not limited to Mexico—that avoids the abuses of guest-worker programs by allowing workers to quit or change employers and by providing an option for permanent settlement. Economic policies that mitigate, rather than exacerbate, global inequalities will lessen the drivers of out-migration and give people real choices.

3. Loosen the distinctions between economic and political migration. Many erstwhile refugees and asylum seekers could be accommodated in a general system that is more generous and humane. But we will still need mechanisms that can respond to humanitarian crises caused by war, civil violence, and climate disaster. We need international cooperation to respond to these crises, as well as their myriad underlying causes.

These ideas express hope that our current moment provokes a rethinking of our place in the world, rooted in a commitment to international cooperation in the interest of human life.

Mae Ngai is a professor of history at Columbia University and author of Impossible Subjects: Illegal Aliens and the Making of Modern America.