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Immigration Law and Policy

For immigrant communities, immigration policy sets the terms for almost every aspect of individual, family, and community life — from obtaining a driver’s license, to attending school, to determining whether families can live together, or even whether or not someone can travel home to see a dying parent. The federal Immigration and Naturalization Service (INS) is a massive bureaucracy, with the power to pass judgment on every detail of immigrants’ lives. It employs more enforcement agents than all other federal law-enforcement agencies combined.

Photo from: Echando Raices/
Taking Root
Legalisating Demonstation in
Washington, DC.

[As of March 1, 2003, the INS was formally disbanded and absorbed into the massive Department of Homeland Security (DHS). The DHS separates immigration services and enforcement functions into the Bureau of Citizenship and Immigration Services and the Bureau of Immigration and Customs Enforcement; for additional information see www.immigration.gov. Advocates are currently monitoring the new agencies to see how this change will affect immigrants and their communities.]

Immigration policy is also an important terrain of social struggle. Over the years, immigrant communities and their allies have fought for change in the courts and, increasingly, through legislative advocacy. Employers, labor unions, immigrant service providers, anti-immigrant ideologues, and the Pentagon’s military planners have all entered into the debate, and U.S. immigration policy has evolved to reflect the outcomes of these contests.

This background paper offers a brief summary of the most important developments in immigration policy in recent years. Those who are interested in a more in-depth understanding may wish to consult some of the resources listed under Links. We note as well that many issues of importance to immigrant communities — including bilingual education, “English-only” campaigns, labor organizing, affordable housing, community services, or community economic development — are not addressed here.

Starting Points

Since its origins in the 19th century, U.S. immigration policy was based in a racially exclusionary framework that heavily favored immigrants from northern and western European countries. At different times, non-European immigrants were denied the right to own property, to naturalize, or to join their families in the United States.

In 1965, amendments to U.S. immigration law introduced a fundamental change in this policy framework. In large part, these changes took place in response to the Civil Rights Movement of the 1950s and 1960s and its sweeping challenge to all forms of discrimination. A new system was created that offered more equal access to immigrants from all parts of the world. Family reunification was established as a key priority for U.S. immigration policy. Partly as a result of these changes, people from Latin America and Asia have become a majority of the U.S. immigrant population (see Immigrants in the United States: A Profile).

The 1980s: Shifting Toward Exclusion

Throughout the 1980s and 1990s, the orientation of U.S. immigration policy became increasingly exclusionary. The Immigration Reform and Control Act (IRCA) of 1986 mandated “employer sanctions,” under which employers face legal penalties for hiring undocumented workers. Under this law, every job applicant is required to fill out a form stating their immigration status.

Employer sanctions have only rarely been enforced. Nonetheless, they have made it far more difficult for undocumented workers to participate in union drives, protest abusive treatment, or report violations of wage and hour laws — because by so doing they risk criminal penalties or deportation for presenting false documents.

Other provisions of IRCA launched a dramatic increase in the amount of resources — including personnel, weaponry, and other technology — earmarked for “control” of the Mexico-U.S. border. One result is that the vast majority of INS “apprehensions” occur at the southern border — totaling, for example, 1.5 million out of 1.7 million cases in 1999 alone.

This trend, which has been justified at different moments in the name of drug interdiction, immigration control, and, now, “counter-terrorism,” has continued without interruption for more than fifteen years. Blockade-style border control policies introduced in the 1990s have caused hundreds of deaths each year to border crossers. They have not, however, decreased undocumented immigration or the flow of narcotics into the United States — and they are equally unlikely to protect the U.S. public from future attacks.

IRCA also offered “amnesty,” or the opportunity to apply for residency, to undocumented immigrants who could prove they had lived in the United States continuously since 1982, as well as to certain farm workers. More than three million immigrants were able to obtain residency under this law. IRCA’s cutoff date of 1982, however, excluded large numbers of refugees fleeing the brutal civil wars in El Salvador and Guatemala (see "Immigrant" or "Refugee?").

The 1990s: Deepening Exclusion, Growing Resistance

In 1996, following several years of anti-immigrant campaigns, a trio of laws deepened this exclusionary policy framework. The Personal Responsibility and Work Opportunity Reconciliation Act (usually known as “welfare reform”) excluded even legally documented immigrants from most public benefits. The Anti-Terrorism and Effective Death Penalty Act (AEDPA) authorized the use of secret evidence against noncitizens in certain types of legal proceedings. It also subjected immigrants — even legal permanent residents — to deportation for relatively minor offenses, even if they were committed long in the past.

The third of these laws, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), dramatically expanded the number of deportable offenses, established harsh federal criminal penalties for immigration violations, allowed INS officials to bar entry to asylum-seekers without a hearing, and stripped the courts of authority to review INS decisions. It also mandated a new round of increases in funding and personnel for the Border Patrol.

AEDPA and IIRAIRA produced an explosive increase in the number of people incarcerated in detention facilities, prompting the INS to lease space in county jails and private detention centers around the country. According to the INS, the average daily number of detainees rose from 5,532 in fiscal year (FY) 1994 to 19,533 in FY 2001. In just one recent year, FY 2000, more than 188,000 immigrants were placed in detention.

INS statistics reveal parallel increases in the number of immigrants who are deported, usually without any kind of hearing. The total number of “formal removals” was slightly more than 100,000 during the 1960s, rising to 230,000 during the 1980s and then to 750,000 during the 1990s. A much larger number of immigrants signed “voluntary departure” cards: 1.3 million during the 1960s, nearly 10 million during the 1980s, and nearly 12 million during the 1990s.

Each of these measures was met with sustained opposition from immigrant community organizations, human rights supporters, and immigrant advocates and service providers. Much of the advocacy community joined together in a broad-based campaign to “Fix ’96,” which was able to reverse some of the more extreme measures, such as exclusion of legal permanent residents from Supplemental Security Income (SSI, a program for disabled and elderly people who are not covered by Social Security). Border communities organized against abuses by the Border Patrol and other immigration authorities. Women’s groups fought successfully to protect battered immigrant women from deportation. Court cases challenged the legality of indefinite detention, the use of secret evidence, and other measures. A Detention Watch Network was formed to monitor conditions in INS detention facilities and advocate for detainees.

During this period, legalization (amnesty) became a focus for growing numbers of immigrant-led organizations. The “late amnesty” movement, which is profiled in AFSC’s video documentary Echando Raices/Taking Root, sought legal redress for some 400,000 people who qualified for the 1986 amnesty, but were improperly excluded through INS mistakes. Late amnesty applicants began their movement after several longstanding class action suits were voided by IIRAIRA. Other groups sought restoration of a family reunification measure known as 245(i), which had likewise been eliminated by IIRAIRA. Also vacated were legal protections won by Central American refugees — an estimated two million people who have been living in legal limbo for up to twenty years.

2000 and Beyond: An Uncertain Future

By the year 2000, immigrants from many different countries who had organized around these issues had joined together in a single legislative campaign. At the end of that year, the late amnesty applicants were successful in winning legal relief. Those pressing for restoration of 245(i), however, won only a partial and temporary victory, and the Central Americans were once again unsuccessful in their lengthy quest to attain residency.

The legalization movement came together to press for a permanent solution — access to residency for all immigrants who have established new lives in the United States, rather than long and difficult campaigns every few years by each new immigrant population. Key voices, including the U.S. Conference of Catholic Bishops and the AFL-CIO, went on record supporting legalization.

Throughout much of 2001, legalization as well as other immigrants’ rights initiatives continued to gain in visibility and support. A key court decision barred the government from indefinite detention of immigrants who could not be deported (for example, because they were stateless). Another struck down a government attempt to deport two Palestinian immigrants for activities protected under the First Amendment, after a legal battle lasting some fifteen years. Growing pressure for legalization was expected to lead to proposals for a new guest worker program by the U.S. and Mexican governments (see We Wanted a Guest Worker, But They Brought Us a Human Being).

After September 11, the drive toward legalization was slowed — but not halted. As early as November 2001, several dozen activists from around the country met in El Paso, Texas to discuss the prospects for the legalization movement in the wake of September 11. Their conclusion, briefly put, was that the movement’s tactics needed to adapt to the new situation — but that the overall strategic goal of legalization must not change, because immigration status sets the framework for every other issue of concern to immigrant communities, from access to education and public services, to labor rights, to family unification, to community building and economic development, to civic participation and coalition building.

By October 2002, the legalization movement had retaken the initiative, with a national campaign to deliver a million postcards to Congress in support of legalization, jointly sponsored by immigrants’ rights coalitions and labor (see Legalization Movement Back on Track). Nonetheless, many of the “counter-terrorism” measures enacted in the wake of September 11 single out immigrants for particularly harsh treatment. Detention and deportation have ravaged many immigrant communities. Border enforcement has been stepped up dramatically, with military units once again involved in ground patrols of border communities (a practice suspended after the fatal shooting of a Texas teenager in 1997 during a clandestine “training” exercise). The INS is slated to be split in two agencies and moved into the new Homeland Security Department. All of these developments have changed the terrain for immigrants’ rights organizing and imposed an ever-more uncertain future on immigrant communities.

Although the events of September 11 have shifted the balance of forces in the policy arena, they do not represent a fundamental change in the direction of immigration policy. The policy developments we have described here represent examples of overarching trends toward the criminalization of immigrants, particularly undocumented immigrants, and the militarization of immigration law enforcement. Once concentrated in the Mexico-U.S. border region, such phenomena are now generalized throughout the country.

Community resistance to such trends has been reflected in a variety of social movements supporting human rights and human dignity — movements that will continue to unfold over the coming years.

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