My Proposal for Comprehensive Immigration Reform

Last week was a historic week as a bipartisan group of eight Senators and President Barack Obama both introduced frameworks for comprehensive immigration reform legislation.  But this history comes in cycles for those of us who have long struggled to move our immigration laws and policies towards the national values President Obama spoke so eloquently about in his second inaugural address: equality of opportunity, fairness, and inclusiveness, all for the common good.

So I thought I would offer my own proposal for comprehensive immigration reform…

Thirty years ago, I worked as a community advocate against the Simpson-Mazzoli bill that eventually became enacted as the Immigration Reform and Control Act (IRCA) of 1986.  I then spent my first years out of law school as a civil rights and immigration lawyer explaining the law, training other attorneys who volunteered to assist immigrants apply for legalization under the new law, working on improving regulations that interpreted it, and ultimately filing class action lawsuits to challenge the Immigration and Naturalization Service (INS) implementation of several parts of the law.  I helped to create and then chaired a local coalition of service organizations, faith-based organizations, and other organizational allies to coordinate services, continue education and engagement of the immigrant and refugee communities, and focus advocacy for immigrant and refugee rights.

My legal mentor was the lead attorney in the 1986 Leticia A. v. Board of Regents of the University of California lawsuit that paved the way for undocumented students to attend California’s public universities and colleges (which resulted in California’s AB 540, an early step towards what has become the federal DREAM Act for undocmented youth).   And I drafted San Francisco’s “City of Refuge” ordinance in 1989, which created the most comprehensive local government policy of non-cooperation with the enforcement activities of the INS at that time.  I celebrated the advances achieved for family immigration under the Immigration Act of 1990, followed by more years of community education, training, monitoring regulations, and litigation.

Then, after being among the many advocates who worked to defeat dozens of anti-immigrant bills in the California legislature in the early 1990’s, I was right in the middle of our losing statewide campaign against Proposition 187 in 1994.  (I was the advocate who was given the final opportunity to convince the sponsors of Proposition 186, the single payer health insurance initiative on the same ballot, to include undocumented immigrants in their single payer health plan and to link the two issues; I did not succeed.)  I followed the debates that resulted in the disqualification of immigrants from Medicaid under national welfare reform in 1996 and worked to clarify the exclusion of immigrants based on the antiquated concept of being a “public charge”.  And in 1997, I was the lead attorney in the first federal circuit court of appeals case that established a right to asylum based on sexual orientation, Pitcherskaia v. INS.

Along the way, I wrote a book on the sanctuary movement for Central American refugees (which included extensive background on the history of our immigration laws and policies), a chapter in a legal textbook on immigration law, and co-taught an immigration law class at a local law school.

Although I have since shifted the focus of my work away from immigration law and policy to issues of community health, and now health care policy, it seems that many of the same immigration policy issues that I, and so many others, have worked on are back before Congress, the President, and our nation.  There is a lot of rhetoric being used by all stakeholders that the “immigration system is broken”, with the assumption that somehow new legislation can and will “fix” it once and for all.

In fact, the complex reasons for both legal and unlawful immigration have remained largely the same throughout our nation’s history and will persist: being reunited with family already here in the U.S., seeking economic opportunity,  seeking education, fleeing persecution, pursuing the American dream of equal opportunity.  The opportunities for legal immigration have expanded and contracted over our nation’s history, depending on economics, racial politics, and U.S. relationships with other nations.  These “push” and “pull” factors can never be permanently “fixed” by any legislation because they are dynamic and constantly changing, especially in our increasingly interconnected global world.

What has changed (thanks in part to Republican presidential candidate Mitt Romney’s use of the term “self-deportation”), is widespread acknowledgement that enforcement of our immigration laws alone will not “fix” the fact that there are (at least) 11 million undocumented immigrants already living in the U.S., some for many years, if not decades  – and who are not all going to “self-deport” themselves any time soon.

The presidential election also highlighted the political impact of the changing demographics in our nation and the rising importance of the Latino and immigrant vote.  Our national politics are again ripe for another cycle of immigration law reform.

So I would propose that, unlike both the Senate and President’s frameworks, the most important part of comprehensive immigration reform is “fixing” the current “legal” immigration system rather than focusing either on enforcement or on the path to legalization and citizenship for the undocumented.   There are many other technical and long-standing issues that need to be addressed and included in any immigration legislation that seeks to be “comprehensive” that will relieve current backlogs, streamline processing, and restore fairness.

When both the Senate and the President talk about currently undocumented immigrants having to “go to the back of the line” and waiting until all those who “played by the rules” and are “waiting in line” for immigration visas first get their visas, I ask, which of the thirty different “lines” for waiting immigrants are the Senators and President referring to?  Let me try to explain…

Under current U.S. immigration law, there are different waiting times, and therefore, “lines” for the six categories of family-based immigration, and five (or seven, depending on how you count them) categories of employment-based immigration (that’s thirteen lines so far).  For example, there is a short, no-waiting, line for the spouses of U.S. citizens.  But the spouses (and minor children) of legal permanent residents have to wait at least two and a half years before they can be reunited with their legal permanent resident family member.

Then there are additional “lines” based on the country of origin of the families seeking to immigrate from China, India, the Philippines, and Mexico (which are based on historical exclusionary immigration laws, dating back to the 1882 Chinese Exclusion Act; Chinese immigrants were not allowed to immigrate on the same basis as other nationalities until 1965!)(now we are up to twenty-two different lines because of these per-country limits).  The line for married sons and daughters of U.S. citizens to join their parents is ten and half years, but up to twenty years if you are from Mexico.  The line for brothers and sisters of U.S. citizens is twelve years long, but over twenty-four years long if you are from the Philippines.  And, even if you are eligible for one of these family-based immigration visas, the U.S. Citizenship and Immigration Services takes up to two additional years just to respond to one of these applications.

These are very, very long lines.

There are similar per-country limits on employment-based immigration, with longer waits, again only for those from China, India and the Philippines (which adds up to the thirty lines).   The line for “skilled workers” is six years, a year longer if you are from China or the Philippines.

So if we are really to have a waiting list or line for immigration, there should be ONE line, regardless of country of origin.  The President proposes to double the country of origin limits for family immigration categories as a way to relieve the current backlogs; instead we should eliminate the country of origin limits altogether, for both the family and employment immigration categories.  Even then, it will take many, many years to clear the current backlog of at least 4.4 million individuals waiting for their family-based or employment-based immigration visas.

The DREAM Act, which creates an expedited path to citizenship for youth who came to the U.S. and are now undocumented, should be fully enacted as part of comprehensive immigration reform.  And we should treat the spouses and minor children of legal permanent residents the same way as the spouses and minor children of U.S. citizens: categorize them as “immediate relatives” with no line, no backlogs.  These “immediate relatives” should not be counted in the annual 480,000 limit on family-based immigration visas.  And we need to repeal the part of the Defense of Marriage Act that will not recognize the marriages of gay and lesbian couples, now available in nine states, the District of Colombia, and a growing number of countries around the world (soon to include France).  Any unused visas in any category should be reallocated and made available in the following year.

In terms of employment visas, both the Senate and President Obama acknowledge the need for adding more immigration visas in employment categories to retain promising graduates and future entrepreneurs that would help the U.S. economy.  President Obama’s framework includes new immigration visas for investors, entrepreneurs, graduate students in science, technology, engineering, and mathematics (STEM), and workers in federal science and technology laboratories.

To that list should be added more immigration visas for international medical graduate physicians (IMGs) and other health care professionals, who often are the only health care providers willing to live and serve in many medically underserved areas throughout the country.  And DREAM students who are interested in pursuing health careers should be supported in their aspirations to become health care providers in their underserved communities through health professions education and training programs offered by the Bureau of Health Professions in the Health Resources and Services Administration.

Interestingly, the Senate also includes the AgJOBS bill, agreed to by agricultural growers, farmworkers, and labor advocates long ago (in 2007), as establishing a reasonable path to legalization for currently undocumented agricultural workers, as well as ensuring a supply of future, temporary agricultural workers without negative impacts on U.S. workers.  The President’s framework is silent on agricultural workers.  Comprehensive immigration reform must include the AgJOBS provisions.

The path to citizenship for undocumented immigrants should not be dependent or linked to other issues such as border security or “clearing” current immigration backlogs, which will take many years, even with the most generous changes to family-based and employment-based immigration.   It should be a reasonably short path, not one filled with conditions and uncertainties.  If undocumented immigrants are to step forward “out of the shadows” and make themselves known and vulnerable to deportation,  they should be assured of a fair and clear path to first legalization, and then to citizenship.

Since even the most generous legalization program will not resolve the status of all 11 million undocumented immigrants, comprehensive immigration reform should also restore the ability of immigrants to have their deportation “suspended” (or removal “cancelled”) on a case-by-case basis if they can demonstrate at least seven years of residence in the U.S., and sufficient connections to the U.S. (family members, employment, other contributions to the U.S. economy and society).

And as additional reforms to the legal immigration system, we should repeal the burdensome rule that family members eligible for immigration visas still have to wait outside the U.S. for three or ten years, or even become ineligible for that visa, because of technical violations of other provisions of the immigration law.  And there should be more resources allocated to the U.S. Citizenship and Immigration Services to expedite the process of  “naturalization” so that legal permanent residents who are eligible (after waiting five years, passing U.S. history, civics and English language tests, undergoing criminal background checks, and pay hefty fees, up to $680) are not waiting seven months just to receive a response to their applications to become U.S. citizens.

In terms of enforcement, immigrant communities have experienced more enforcement activities, and more deportations, under the Obama Administration than under previous administrations.   Illegal border crossings from Mexico are at some of their lowest levels in decades.  The U.S. borders are already adequately patrolled with both personnel and equipment and we don’t need more scarce federal budget resources or spending on unproven ideas like more fences or drones.  We should simply let the Department of Homeland Security and Border Patrol do their jobs at our borders, airports, and other ports of entry.

However, the Department of Homeland Security has required every state and almost every local jurisdiction to agree to the Secure Communities program of turning immigrants over for deportation.   Comprehensive immigration reform should include a modification of the Secure Communities agreements with local governments along the lines of California’s TRUST Act (AB 1081, passed by the California legislature but vetoed by the governor).  And detention conditions for immigrants waiting for their due process hearings continue to worsen, fueled by unrelated national security concerns after 9-11.   Immigration reform must include reforms in the immigration courts to expedite processing and ensuring humane detention conditions.

Beginning in 1986, there have been fines established for employers who knowingly hire undocumented workers.  Both the Senate and President’s frameworks reinforce these fines and propose enhancements to the notoriously unreliable “e-Verify” system that employers can use to verify the immigration status of a prospective employee.  The system is fatally flawed because it does not include data on U.S. citizens who obviously are authorized to work in the U.S. and never has had complete or timely data on all the immigrants authorized to work.

Unfortunately, the new health insurance marketplaces are likely to use this same e-Verify system to verify the immigration status of applicants for health insurance under the Affordable Care Act.  Instead of spending more scarce federal budget resources trying to salvage this system, comprehensive immigration reform should return to self-attestations and documentation of immigration status by employees and immunities from fines for employers (and now, health insurance marketplaces) that rely in good faith on these self-attestations and documentation of U.S. citizenship or lawful immigration status.

And neither the Senate’s nor President’s framework focus on our refugee policy.  When I was in Washington DC for the inauguration, I revisited the U.S. Holocaust Museum and saw again the exhibit about the passenger ship St. Louis, filled with Jews fleeing Nazi persecution in Europe during World War II.   The U.S. sent our Coast Guard to intercept the ship and prohibit it from docking in Florida.   Eventually the St. Louis was forced to return to Germany and many of its passengers were imprisoned or killed in the Nazi concentration camps.

Today, there are many armed conflicts around the world and over 32 million refugees seeking safe haven from countries that would persecute them.  Yet the U.S. had steadily shrunk its commitment to accept refugees.  Comprehensive immigration reform should reverse that trend and increase the number of refugees the U.S. accepts for resettlement. Also needed are reforms in the process for considering applications for asylum, especially the repeal of the one-year time limit to file an application.

And if national health care reform is going to succeed to extending coverage to as many Americans as possible, the 1996 law making new legal permanent residents ineligible for Medicaid for five years should be repealed.  A more immediate step would be clarifying the eligibility of the DREAM students granted Deferred Action for Childhood Arrivals status for both Medicaid and for subsidies through the health insurance marketplaces, if income requirements are otherwise met (others in deferred action status are eligible for Medicaid and other federal health programs).  And principles of fairness and inclusion into American society requires the ability of even undocumented immigrants to purchase health care insurance in the new health insurance marketplaces, and if income requirements are otherwise met, to be eligible for the subsidies offered through those marketplaces.

Finally, the antiquated exclusion of immigrants based on the idea of “public charge” should be replaced with a requirement for financial independence that can be met with a job, a job offer, documentation of self-employment, current assets, or an affidavit of financial support from a family member.  The immigration law should codify current policy that receipt or use of public health insurance like Medicaid, health care, or other public health services will not be considered.  Nor should receipt or use of small business assistance, loans, or other supports for immigrant businesses and entrepreneurs be considered disqualifying for immigrant visas.  Similarly, receipt or use of scholarships, educational loans, and other educational financial assistance should not be disqualifying for one’s immigration status.  Our immigration policies should support the health, education, and business success of our immigrants, not drive them away from these vital supports.

What also has changed in the last thirty years is that there are many more faces, stories, and shared experiences that humanize the often heated debates about immigration policy.  “Undocumented immigrant” is no longer an abstract concept but individuals with names, faces, and lives we all can see, and hopefully relate to in some way.   The DREAM students in particular have created and maximized these opportunities, courageously telling their stories and raising public support for their goal of legalization, to share in the American dream.   Similarly, dozens of binational same-sex couples have been in the media and in the public eye, sharing why immigration rights are essential to gay and lesbian communities (and why gay and lesbian communities have shared interests with immigrant communities in the collective struggle for civil and human rights). Communications technology and social media have greatly facilitated the connections, and now organizing and advocacy, among immigrants with similar backgrounds and interests.  We need to continue to hear and listen to these stories, to understand the human impact of our “broken” immigration system.

I recognize that both the Senators and the President are seeking to appear moderate, centrist, or take what the President calls a “common sense” approach to immigration law reform.  However, such an approach translates into premature compromises and unnecessary concessions out of fear of alienating (pun intended) the many members of Congress that would oppose any approach to immigration other than just more enforcement and would likely not support any legislation anyway.

Immigration reform is not just a “Latino issue” or a priority for some racial and ethnic minority communities.  Immigration reform is supported by a broad coalition of individuals and organizations, including state and local government, law enforcement, business (especially high-tech and agricultural employers), labor, faith, education, and health sectors.

I am not so politically naive to believe that we can achieve everything that I have proposed.  .  I just hope we can start with a proposal that is genuinely comprehensive, fair, and inclusive, knowing that we likely will need to compromise and concede much to our opponents if a bill is ultimately to be enacted.

What do you think?