Avoiding past mistakes is key to Congress passing immigration reform that works

A man exits the transit area after clearing immigration and customs on arrival at Dulles International Airport in Dulles, Virginia, U.S., September 24, 2017. REUTERS/James Lawler Duggan/Files

Congress has not passed anything even approaching comprehensive immigration legislation since 1965, nor has it opened a pathway to citizenship for undocumented Americans since a very brief one-time amnesty in 1986. As a result, the United States limps through each year with cruel, dangerous and wasteful practices that incarcerate tens of thousands of noncitizens and create decades-long wait times for visa-eligible people.

At present, it is estimated that nearly two-thirds of the approximately 10 million undocumented immigrants in the United States have lived here for more than a decade, and there are 22 million people in mixed-status households where at least one member could be targeted for deportation at any moment.

Democrats have been trying to change this fact in a reconciliation bill that connects the budget with other urgent legislative priorities, including immigration. The Senate Parliamentarian has rejected several proposals by Democrats, including one that would have used something called “registry” to allow immigrants to gain legal status.

Policymakers have promised to regroup with new proposals. But if we want immigration reform to succeed – not just to pass, but to sustainably accomplish worthwhile goals – we ought to scrutinize what has gone wrong to land us in our current unsustainable position.

Before the 1990s, deliberately forcing millions of undocumented Americans to exist as perpetual noncitizens would have generated alarm. Why? Because attracting immigrants who planned to become citizens had been a legislative priority since the country’s earliest years.

In fact, even at the country’s most sweeping restrictionist moment, in the 1920s, when Congress enacted the first federal penalties for being undocumented, it also created a means for longtime residents who did not have valid paperwork to adjust their status and eventually become citizens.

This law, the 1929 Undesirable Aliens Act, was a watershed in the move to criminalize undocumented immigrants and federalize immigration enforcement. The bill was drafted as an afterthought to the Immigration Act of 1924, which used draconian national origins quotas to effectively end almost all lawful immigration to the United States. At the time, the country had only a nascent system for documenting migrants’ arrivals and residence permissions. And the bulk of enforcement was being performed by states and at the local level rather than the federal government.

So, in 1929, the federal government committed to the systematic punishment and deportation of undocumented immigrants. It began to build up the federal Border Patrol – at first just a few hundred often unqualified employees assigned to thousands of miles of borderlands. Border Patrol employees were often openly racist and physically abusive toward both citizens and noncitizens attempting to exercise their rights.

Much of what we now recognize as mass deportation – millions of people being forced out of the United States because they do not have proper paperwork, even when they have deep roots in the country – can be traced to provisions in the Undesirable Aliens Act. The drafters of the bill were openly racist – so much so that their clear intent to discriminate has recently been cited by a federal judge as invalidating large portions of the law they passed.

But federal lawmakers at the time also saw that there was something deeply undemocratic and downright abhorrent about imposing punishments on noncitizens without offering longtime residents a way to adjust their legal status if they upheld their obligations to show “good moral character.” As deportation had become a possibility, people panicked that they would be ripped away from their lives in the United States. They implored their representatives to protect them. One member of Congress read out a plea from a colleague: “Is it fair to these men and women to prevent them from becoming citizens of a country which is their permanent home, when they own property, and are rearing American citizens? Is it a good policy for the Government itself to forbid them the right of citizenship?”

Not everyone was persuaded, but enough agreed. So in 1929, the same year that undocumented immigrants were criminalized by the federal government, Congress also created a provision called registry that allowed people who had been present since 1921 to adjust their status and become documented legal residents with a means to naturalize. The Registry Act cleared a pathway to citizenship based on the principle that, over time, even people who don’t have valid visas become American by virtue of the time they spend in-residence, embedded in communities, working and raising families.

Between 1929 and 1948, Congress updated the eligibility date for the registry several times, steadily allowing new generations of immigrants to access relief. But the last time it did so was in 1986, when the date was moved forward to permit anyone who had been a continuous resident of the United States since before Jan. 1, 1972, to gain status. The 1986 update was part of the Immigration Reform and Control Act (IRCA), which also provided a one-time amnesty for some long-term undocumented immigrants and agricultural workers with seasonal temporary work visas. As in the 1920s, Congress married its recognition that undocumented Americans deserved citizenship with harsh rhetoric and punitive measures, notably punishments for anyone who employed undocumented workers.

Since 1986, immigration reform has happened piecemeal, when it has happened at all, and it has increasingly been consumed with punishment. A 1990 act increased legal limits on immigration and added a diversity lottery. In 1996, a set of laws dramatically expanded the population of immigrants who could be incarcerated and deported from the United States. Then, in 2002, Congress hastily reorganized its enforcement agencies after the Sept. 11, 2001, terrorist attacks, creating the widely reviled U.S. Immigration and Customs Enforcement (for interior enforcement) and U.S. Customs and Border Protection (for border-related enforcement), as well as U.S. Citizenship and Immigration Services (for immigration and naturalization services) in place of the Immigration and Naturalization Service.

More recently, Congress has continually debated but failed to pass several “comprehensive immigration reform” bills. In 2006, Sens. John McCain (R-Ariz.) and Edward M. Kennedy (D-Mass.) co-sponsored doomed legislation to make harsher enforcement possible, increase the number of temporary workers in the United States and adjust the status of many of the nearly 12 million long-term undocumented people living in the country at the time. A similar, slightly more restrictionist bill failed the following year.

In 2013, a bipartisan group of eight senators proposed and passed legislation that would have further funded border enforcement in exchange for a complicated 13-year pathway to citizenship for millions of people. Under pressure from President Barack Obama, the bill passed the Senate, but again the effort died in the House. No major immigration reform legislation has been undertaken since.

This paralysis is partly because of the work of nativist right-wing activists who have systematically stoked irrational and frequently racist fears about the border and immigration for decades. They have succeeded in encouraging congressional Democrats and Republicans to embrace a militarized border and abusive detention practices even though opinion polls show steady support for immigration and immigrants among the general public. Congress spent $23 billion on enforcement last year even though Border Patrol has drastically low levels of public trust and Americans continually call to “abolish ICE.”

As a consequence of misplaced anxiety about borders and undocumented immigration, the United States is home to millions of people who have lived here, often for decades, with no means of acquiring legal status or citizenship on the horizon. They are constantly ordered to “do it the right way,” but we offer them neither visas nor a pathway to citizenship.

It doesn’t have to be this way. Although the Senate Parliamentarian has rejected Democrats’ proposal to use the reconciliation bill to update the registry date from 1972, they should not be deterred from pursuing the update. The trick is to avoid the mistakes of the past.

Updating the registry date need not be tied to pouring more money down a useless enforcement drain, and the update would be vastly preferable to a one-time amnesty that expires, as the 1986 IRCA did decades ago. Unlike an amnesty, registry remains indefinitely available to anyone who arrived by the date Congress sets. And registry dates can be set to automatically update on a predictable and reasonable schedule in the future, too, thus bypassing the need to revisit our congressional impasse on this issue.

A century ago, even as policymakers created the legal infrastructure to impose penalties for being undocumented, they recognized their obligation to make citizenship accessible for long-term residents. We owe it to ourselves and to everyone trapped by Congress’s failure to act to acknowledge this legacy by offering a way for undocumented Americans to acquire legal status.

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Elizabeth Cohen is professor of political science at the Maxwell School at Syracuse University and the author of four books on citizenship and immigration including “Illegal: How America’s Lawless Immigration Regime Threatens Us All.”

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