THE EVOLUTION OF IMMIGRATION LAWAND REFORM

THE EVOLUTION OF IMMIGRATION LAWAND REFORM

Introduction

HAILEY CHOI | RUTGERS - NEW BRUNSWICK

A. The Roots of Immigration Law America, a nation with a rich culture of immigration, has a contentious history regarding immigration policy. This long-standing debate has persisted for centuries, beginning shortly after the United States won independence from Great Britain. Over time, these laws and policies have shifted to reflect the ideologies and politics of the given time. Legislation from the 18th century favored Europeans and was heavily grounded in xenophobia – imposing limits on those that entered the country. 73 Today, however, major immigration concerns include topics of refugees, undocumented immigration, and terrorism. An early example of immigration law was the Naturalization Act of 1790, which established a short and uniform path to citizenship. The policy required two years of residency within the United States, “good character,” and being a “free white person”.74 Finding this policy too liberal, Congress passed the Naturalization Act of 1795, which required five years of residency and an intention of naturalization before being eligible. It also amended the character requirement to read “good moral character,” introducing religious implicatures.75 Gradually, Congress extended the residency requirement to fourteen years, eventually returning to five years in 1802. Ultimately, the Naturalization Act marked the first law to list criteria for citizenship but was extremely limited in extending its privilege until 1870, when citizenship was extended to African-Americans.76

During the Civil War in 1861, demand for workers increased substantially in industries that supplied wartime efforts. To improve economic efficiency, pro-immigration Republicans passed the Contract Labor Act of 1864, which allowed employers to contract foreign workers and pay for their relocation to the United States.77 The Lincoln Administration also worked to

73 Cato Institute, https://www.cato.org/policy-analysis/brief-history-us-immigration-policy-colonial-period-present-day. 74 Ibid 75 Ibid 76 Cohn, D’Vera. “How U.S. Immigration Laws and Rules Have Changed through History. ” Pew Research Center, Pew Research Center, 30 May 2020, https://www.pewresearch.org/fact-tank/2015/09/30/how-u-s-immigration-laws-and-rules-have-changed-through-hist ory/. 77 Cato Institute, https://www.cato.org/policy-analysis/brief-history-us-immigration-policy-colonial-period-present-day.

pass the Homestead Act of 1862, which allowed U.S. citizens and naturalized immigrants to obtain land grants, provided they were willing to settle the land out west for five years. Dissuading nativist arguments, President Abraham Lincoln further added: “Our immigrants [are] one of the principal replenishing streams which are appointed by Providence to repair the ravages of an internal war and its waste of national strength and wealth.”78

The Naturalization Act of 1870 solely granted naturalization rights to “aliens” being free white persons, and to “aliens” of African nativity and persons of African descent,” as Congress, at the time, did not agree as to whether naturalization should be a right extended to people who were Asian and American Indians.79 The newly ratified Fourteenth Amendment stated that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside;” however, its applications were selective. Descendants of Chinese immigrants, for example, were not granted birthright citizenship (Jus soli) until 1898, when the Supreme Court reaffirmed the citizenship of American-born descendants of Chinese and Japanese immigrants in the United States v. Wong Kim Ark decision. 80

Anti-Chinese sentiment burgeoned nationwide, resulting in the Page Act of 1875. The law restricted the immigration of Chinese contract laborers, convicts, and a majority of Chinese women, as there were suspicions of them being deemed prostitutes. The Page Act directly contradicted the provisions laid out in the 1868 Burlingame-Seward Treaty, which sought to ease immigration restrictions and guaranteed reciprocal protections for Chinese in the United States and Americans in China.81

Eventually, the Immigration Act and Chinese Exclusion Act were passed in 1882. The Immigration Act would impose a $0.50 federal head tax per each “alien” passenger so immigration enforcement could be adequately funded and regulated. This included state officials who had to identify and deny the entry of “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.”82 The Chinese Exclusion Act imposed a ten-year ban on Chinese laborers from immigrating to the United States, but Congress

78 Ibid 79 Ibid 80 “United States v. Wong Kim Ark.. ” Legal Information Institute, Legal Information Institute, https://www.law.cornell.edu/supremecourt/text/169/649. 81 Cato Institute, https://www.cato.org/policy-analysis/brief-history-us-immigration-policy-colonial-period-present-day. 82 Ibid

extended it until 1943. A limit was placed on the number of visas for other Asian people, but race was not deemed a valid ground for exclusion starting in 1952. The Bracero Program, also known as the Mexican Labor Program, was instituted between 1942 and 1964 to aid American farmers with labor scarcity during and following World War II. The program created access to Mexican workers called braceros, who would receive a minimum wage and housing protections in return for their labor. However, the program had apparent flaws: farmers began to hire illegal immigrant workers who would work for lower wages, braceros would often be paid below the minimum wage, and many of the 4.5 million bracero workers were abused with little enforcement protection.83

When the Bracero Program temporarily came to a halt in 1947, there was an influx of illegal immigrants, resulting in the arrest of 142,000 illegal workers. Eventually, the revamped Bracero Program was reinstated in 1949, granting temporary work visas to the workers. Unfortunately, the new Bracero Program could not legalize all illegal workers, and there were still over two million illegal Mexican immigrants in the early 1950s. Congress eventually canceled the program in 1964 as a result of political pressure from labor unions.84 Shortly after, there was a surge in illegal immigration as there was no other worker visa program enforced. The end of the program simply terminated the legality of temporary worker migration, but it did not stop the action from being done underground. Before 1965, legislation focused mainly on allowing immigration through a quota system to maintain a white majority. The Immigration and Nationality Act ended this policy, instead prioritizing the immigration of professionals, laborers with skills in industries with labor shortages, refugees, and family members of existing citizens and green card holders. The act made history in making citizenship accessible to a large number of people of color, especially Asian people and Latin Americans.85 Immigration laws passed in the years since focused on refugees; examples include protection for Indochinese individuals in the 1970s and others fleeing from China, Nicaragua, or Haiti.86 The creation of a “temporary protective status” in 1990

83 Ibid 84 Ibid 85 Cohn, D’Vera.

“How U.S. Immigration Laws and Rules Have Changed through History. ” Pew Research Center, Pew Research Center, 30 May 2020, https://www.pewresearch.org/fact-tank/2015/09/30/how-u-s-immigration-laws-and-rules-have-changed-through-hist ory/. 86 Cato Institute, https://www.cato.org/policy-analysis/brief-history-us-immigration-policy-colonial-period-present-day.

guaranteed protections against deportation to immigrants fleeing natural disasters or armed conflicts. The Immigration Reform and Control Act of 1986 granted amnesty to millions of undocumented immigrants who had resided stateside since or before January 1, 1982, and penalized employers who sought illegal labor. Between 1996 and 2006, concerns about terrorism and illegal immigration skyrocketed, leading to increased border control and stricter admissions eligibility. 87

In 2006, the Senate passed the Comprehensive Immigration Reform Act, which would have legalized illegal immigrants and increased legal immigration as a whole; however, it was not ratified by the House of Representatives.88 Similar bills have failed to pass through Congress, such as the DREAM Act in 2009, which sought to legalize illegal immigrants who grew up in America. Eventually, in 2012, President Barack Obama signed Executive Orders 12866 and 13563, which allowed undocumented young adults to apply for deportation relief and work permits. This program would be popularly known as the Deferred Action for Childhood Arrivals (DACA).89 While improvements regarding immigration law remain pending, there are still countless issues that highlight the significance of adhering to the law as a means of preserving economic and social development.

Immigrants’ Impact on the Economy

B. Correlations and Detriments to Society The consequences of immigration are closely linked with economic conditions. The United States is currently facing a labor shortage: “...Job vacancies have consistently surpassed 10 million while the number of hires averaged only 6.6 million and employee turnover averaged 6 million.”90 Industries tend to hire undocumented workers for low-skill jobs, which inhibits their

87 Ibid 88 Ibid 89 Cohn, D’Vera.

“How U.S. Immigration Laws and Rules Have Changed through History. ” Pew Research Center, Pew Research Center, 30 May 2020, https://www.pewresearch.org/fact-tank/2015/09/30/how-u-s-immigration-laws-and-rules-have-changed-through-hist ory/. 90 “America's Labor Shortage: How Low Immigration LevelsAccentuated the Problem and How Immigration Can Fix It. ” National Immigration Forum, 22 Mar. 2022, https://immigrationforum.org/article/americas-labor-shortage-how-low-immigration-levels-accentuated-the-problem -and-how-immigration-can-fix-it/.

potential to grow within the work field.91 Furthermore, there is an evident labor shortage. Many factors influence the labor shortage, but a rapid decrease in employment was due to the net international migration (NIM) to the United States between 2020 and 2021. These years demonstrated the lowest level of immigration in recent history, with only 247,000 migrants added to the population.92

Therefore, many undocumented workers will be forced to work in improper working conditions due to limited job options.93 Hiring undocumented workers creates uncertainty for both workers as well as their families. The cycle of uncertainty that workers face leads to a Kafkaesque system that reaps the benefits of workers’ labor without guaranteeing safety and stability. By enacting immigration reform, the productivity of labor increases, which is especially critical to the development of specific industries. For example, immigrants account for a disproportionate share of workers in innovation sectors. In a 2011 survey, the top fifty venture capital-funded companies had immigrant workers taking the majority of top management or research positions. Immigrants produce patents “...at double the rate as natives.”94 Skilled labor forces create increases in GDP growth, and states with a high concentration of immigrants were proven to experience rapid rates of growth in productivity. One cannot divorce legal and illegal immigration as entirely different issues; undocumented workers are fundamental to economic prosperity within the country. According to the Center for American Progress, the removal of all undocumented workers from the labor force would “... reduce the nation’s GDP by 1.4 percent and ultimately by 2.6 percent, and reduce

91 Jawetz, Tom.

“Restoring the Rule of Law through a Fair, Humane, and Workable Immigration System. ” Center for American Progress, 29 Oct. 2021, https://www.americanprogress.org/article/restoring-rule-law-fair-humane-workable-immigration-system/. 92 “America's Labor Shortage: How Low Immigration LevelsAccentuated the Problem and How Immigration Can Fix It. ” National Immigration Forum, 22 Mar. 2022, https://immigrationforum.org/article/americas-labor-shortage-how-low-immigration-levels-accentuated-the-problem -and-how-immigration-can-fix-it/. 93 Muzaffar Chishti, Jessica Bolter Muzaffar Chishti and Jessica Bolter. “Biden at the One-Year Mark:AGreater Change in Direction on Immigration than Is Recognized. ” Migrationpolicy.org, 25 May 2022, https://www.migrationpolicy.org/article/biden-one-year-mark. 94 PPI, Wharton. “The Effects of Immigration on the United States' Economy. ” Penn Wharton Budget Model, 19 Dec. 2018, https://budgetmodel.wharton.upenn.edu/issues/2016/1/27/the-effects-of-immigration-on-the-united-states-economy.

cumulative GDP over ten years by $4.7 trillion;”95 billions of dollars would be lost, and the workforce could shrink nearly twenty percent in the long run.96 Both documented and undocumented immigrants are especially vital to rural communities within the United States. Immigrants maintain the population and overall productivity growth within the areas—opening small businesses, creating and taking on jobs in local communities, and providing healthcare services. Cultural diversity and inclusivity add to the many contributions immigrants bring to local governments. More importantly, the country's future is notably tied to its immigrants. As most immigrants migrate to the United States during their working or reproductive years, their future generations fill the significant gaps in the workforce. A recent study by the National Academies of Sciences, Engineering, and Medicine suggests that “...immigrants and their children will have accounted for virtually all of the growth in the U.S. working-age population during the current decade; without immigrants and their children, this age group would decrease by more than seven million people in the coming decade.”97 When it comes to illegal immigration, it is essential to note that the status quo is not sustainable. Without a significant effort to change the current policies in place, there are two paths forwards: either continuing the current extralegal immigration system and relying on discretion or maximally enforcing the law and deporting all illegal residents. Approximately three-fifths to two-thirds of adult Americans support the path to citizenship for undocumented immigrants that reside in the country. The average undocumented immigrant has lived in the United States for about fifteen years, which means they likely have ties to their local communities, have American-born children, or have built businesses in the United States.98

Presidential Approaches: Shifts in Policy Across Administrations

C. Turmoil in the Presidency Under the Trump Administration, legal immigration fell by forty-nine percent, which harmed refugees, employers, and permanent residents seeking to live with family members who

95 Jawetz, Tom.

“Restoring the Rule of Law through a Fair, Humane, and Workable Immigration System. ” Center for American Progress, 29 Oct. 2021, https://www.americanprogress.org/article/restoring-rule-law-fair-humane-workable-immigration-system/. 96 Ibid 97 Ibid 98 Ibid

remained abroad. During this time, skilled foreign-born immigrants were turned away at high rates, with H-1B petitions increasing substantially from six percent in 2015 to thirty percent in 2020. In June 2020, there was a presidential proclamation suspending foreign nationals on specialized visas (H-1B and L-1) from entering the country. 99

Refugees and asylum seekers faced the most difficulty, seeing as the Trump Administration established an annual quota of 18,000 refugees, marking an eight-four percent decrease from the last year of the Obama Administration, which was 110,000 refugees. As of July 2020, only 7,848 refugees entered the United States.100

When scrutinized through the lens of constitutionality, precedent sees legal and illegal immigrants as Americans. The separation of migrant children from their families at the border was ruled unconstitutional by a federal court in June 2018. Judge Dana M. Sabraw of the Federal District Court in San Diego ordered the nationwide injunction, which stopped the Trump Administration from separating families. The court order was expanded shortly after being notified of thousands of additional children that have been separated from their parents before the court’s previous orders.101

Then-U.S. Attorney General Jeff Sessions ordered the Board of Immigration Appeals to deny asylum protections in virtually all cases that involve persecution based on domestic violence or gang activity. 102 However, this directive was enjoined by a federal judge as it violates immigration law. The Trump Administration issued an interim final rule and presidential proclamation in an attempt to deny access to asylum to those that entered designated ports, violating statutory law. The U.S. Supreme Court did not reinstate the final rule as it goes against substantive immigration law and the Administrative Procedure Act, which regulates procedures and rule-making. After the Trump Administration terminated DACA, federal appellate and district courts issued preliminary injunctions to prevent ending the initiative. The injunctions were based on the

99 Anderson, Stuart.

“AReview of Trump Immigration Policy. ” Forbes, Forbes Magazine, 12 Oct. 2022, https://www.forbes.com/sites/stuartanderson/2020/08/26/fact-check-and-review-of-trump-immigration-policy/?sh=2 d2d66f756c0. 100 Ibid 101Shear, Michael. “Federal Judge in California Halts Splitting of Migrant Families at Border. ” The New York Times, The New York Times, 27 June 2018, https://www.nytimes.com/2018/06/26/us/politics/family-separations-congress-states.html. 102 “The Federal Register. ” Federal Register :: Request Access, https://www.federalregister.gov/documents/2021/09/28/2021-20898/deferred-action-for-childhood-arrivals.

fact that the Administration had disregarded the Administrative Procedure Act as the initiative ended in an “arbitrary and capricious” manner. 103 DACA recipients rely on the initiative's protections, and should the program end abruptly, it would put them at significant risk of deportation. In addition, the Administration placed efforts into terminating Temporary Protected Status (TPS), which currently protects approximately 300,000 nationals of four different countries. District courts found the Department of Homeland Security (DHS) violated both the Administrative Procedure Act as well as the Immigration and Nationality Act.104 The deportation of the protected immigrants was in jeopardy, and courts thereby questioned the Administration's motives. Along with the previous violations, the Trump Administration successfully eliminated policy-level prosecutorial discretion guidance and removed protections for millions of people covered by DACA and TPS. U.S. Immigration and Customs Enforcement (ICE) has been responsible for more than a third of the arrests of undocumented immigrants with no criminal history. 105 The detention of those with a lack of criminal history has exponentially increased by around forty percent,106 and the credibility of the Administration has diminished since these random acts of arrest and deportation.

D. America Now

President Joe Biden issued changes to policies involving humanitarian protection and immigration enforcement. The Biden Administration narrowed the number of unauthorized immigrants susceptible to arrest, detention, and removal and has allowed easier access into the United States. Temporary Protection, or TPS, has been reinstated to 430,000 immigrants and the refugee quota is now at 125,000.107

However, Trump-era policies still remain, with Biden’s Administration only undoing righty-nine of the Trump Administration’s 296 immigration executive actions.108 The Biden

103 Ibid 104 Ibid 105Jawetz, Tom.

“Restoring the Rule of Law through a Fair, Humane, and Workable Immigration System. ” Center for American Progress, 29 Oct. 2021, https://www.americanprogress.org/article/restoring-rule-law-fair-humane-workable-immigration-system/. 106 Ibid 107 Muzaffar Chishti, Jessica Bolter Muzaffar Chishti and Jessica Bolter. “Biden at the One-Year Mark:AGreater Change in Direction on Immigration than Is Recognized. ” Migrationpolicy.org, 25 May 2022, https://www.migrationpolicy.org/article/biden-one-year-mark. 108 Ibid

Administration enforced interim immigration enforcement guidelines, which forced ICE officials to be more lenient in their enforcement. The new approach prioritizes removal on a case-by-case basis, with ICE officials making individualized enforcement decisions based on their considerations rather than previous conviction records. The Administration ended long-term family detention in place since 2001, and adult detention centers accused of violating ICE detention standards have been closed. Interior enforcement actions have significantly reduced ICE arrests by fifty percent per month. The percentage of individuals granted asylum increased by nineteen percent just five months after the Trump Administration.109

Protection from deportation and the authorization to work for individuals residing in the United States has reached over a million noncitizens. Biden aimed to set the highest admissions cap since 1993, but refugee resettlement has been slow as the network during the Trump Administration is in the process of being dismantled.110

Conclusion

E. Conclusion

While the Biden Administration develops methods to reform immigration, America must deal with the consequences of the stances taken by previous administrations. Immigration law has gradually changed over the decades, but there continue to be many issues that must be addressed. With executive orders providing the basis for immigration policy, it has been difficult to shift toward sustainable reforms continually. Immigrants across the globe seek improvements within the system. Furthermore, their reliance on programs depends heavily on consistent support. For nations to promote economic and social development, immigration and immigration law must be reformed.

109 Ibid 110 Ibid