Chapter 8
More Liberal Policies Will Solve the Problem of Illegal Immigration

HONORABLE ALAN K. SIMPSON, FORMER U.S. SENATOR FROM THE STATE OF WYOMING, PREPARED STATEMENT SUBMITTED FOR THE HEARING BEFORE THE COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES, 109TH CONGRESS, SECOND SESSION, SEPTEMBER 1, 2006

Mr. Chairman, and Members of the Committee, thank you for your invitation to share my thoughts with you on the lessons of the Immigration Reform and Control Act of 1986 (IRCA), and how they may apply to the current immigration reform debate—and impasse—currently taking place in Congress….

I believe there are three principal lessons to be learned from IRCA:

1. a more secure employment verification system was lacking in IRCA … and this remains the critical problem that must be fixed if illegal immigration is ever going to be deterred;
2. "amnesty" may yet be justified in some certain circumstances, but it should not take effect until a credible body of policy-makers determines that effective enforcement measures are in effect; and
3. guestworker programs may be necessary, but Congress should never repeat the mistakes of the Special Agricultural Worker (SAW) program when addressing shortages in U.S. pools of unskilled labor.

Let me discuss each point in detail.

Secure Worker Verification

It should always be illegal for a U.S. employer "knowingly" to hire an unauthorized alien. There was a clear consensus on this point in 1986, and that consensus remains today. A crucial corollary to this policy, however, is that U.S. employers should be allowed to actually "know" when they might be "knowingly" hiring an illegal alien. In other words, the burden of a more secure worker verification system should be placed squarely on the federal government, and not on U.S. employers….

[However,] there was no political consensus in 1986 for a more secure document, or a secure database, or any other proposal on which U.S. employers could rely. As a result, the employer sanctions regime became easily defeated by high-quality, low-cost fraudulent documents that "on their face appear genuine." For nearly twenty years, all factions agreed that employment in the U.S. was the principal magnet that drew illegal immigrants to the United States, yet there was insufficient political support for—and nearly hysterical and emotional warnings not to address—the one most glaring loophole in employer sanctions: the widespread availability of counterfeit documents….

Lesson Number One from IRCA therefore is that immigration reform legislation must establish a truly secure worker verification for all U.S. workers and all U.S. employers…. Indeed, the most significant political "shift of winds" I have witnessed in the intervening twenty years is that there now seems to be a political consensus for establishment of a secure worker verification system. That is a real change in national politics, and an indication of just how serious the problem of illegal immigration has become….

Amnesty Triggered by Effective Enforcement Measures

IRCA provided legal status to nearly three million people who had resided unlawfully in our country since January 1, 1982. The bipartisan sponsors of IRCA described it as a responsible "trade-off" for the establishment of employer sanctions and the definitive declaration that the United States was fully opposed to unauthorized immigration. I well recall describing the program as being for "one-time only," and as "an extraordinary act of grace." I meant that then, and I respectfully encourage this Committee to again consider those words now. Amnesty is indeed extraordinarily generous, and fully within the discretion of the Congress to bestow or to withhold. The question today is: should amnesty be granted once again? I believe the answer is, "Yes, in limited situations and for practical reasons, but only after all of the effective enforcement measures are in place."

"Experts" estimate the current illegal population in the U.S. at eleven million. The number itself is staggering. The maximum number estimate in 1986 was six million. Clearly, the problem has become much worse in twenty years, not better. But an enormous practical problem remains about how to realistically deal with this population. Perhaps a secure worker verification system could encourage them to leave—over time. This then is even more reason for ensuring that any worker verification system must be truly secure….

Guestworker Programs

Guestworker issues haunted IRCA for two Congresses and proved to be one of the thorniest political and policy challenges that we faced. I can honestly say that IRCA's resolution of the issue—creation of the Special Agricultural Worker or "SAW" program—was a real mistake. The SAW program was a political compromise that was made necessary in order to enact the legislation…. In order to satisfy employer interests who were seeking a large pool of unskilled labor, the terms of the program were overly generous (a mere ninety days of "labor in agriculture" qualified an unauthorized alien for the SAW program). In order to satisfy organized labor and immigrants' rights organizations, the status provided to the "guestworkers" had to be permanent (reportedly to avoid employer exploitation), not temporary. As a result, over 1.3 million people obtained permanent residence under the SAW program, and the vast majority of them then promptly exited agricultural labor—if they had ever even worked at that in the first place. You can bet the need for unskilled labor then arose again in short order….

IRCA's lesson on guestworkers therefore is to make certain that the terms of the program are dictated by sound practical policy, and not by coalition politics. First, Congress should determine that guestworkers are indeed necessary. There is a serious argument today that they are critically needed, given the current demographic trends which project a large pool of aging workers and a shrinking pool of younger workers. Still, that alone is not enough. Perhaps there are some unskilled jobs that should be mechanized or outsourced, and today is the right moment for the great entrepreneurs in our America to figure out just how to do so. I would suspect, however, that there will always remain jobs which cannot be mechanized or outsourced, and the diminishing pool of younger Americans will not fill them. In that situation, a guestworker program may well prove to be a rational response.

Second, careful thought should be given to the form of the guestworker program. If the SAW program is any lesson at all, it is surely inefficient and ultimately futile to grant permanent residence to a group of foreign nationals in the hope that they will perform unskilled labor that most Americans today will avoid. If the guestworker program is honestly intended to address labor shortages, then a temporary status that is linked to specific employers or specific industries (with appropriate protections against abusive employers), is the proper policy choice.

COUNCILWOMAN ANN E. MICHALSKI, CITY COUNCIL OF DUBUQUE, IOWA, HEARING BEFORE THE COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES, 109TH CONGRESS, SECOND SESSION, SEPTEMBER 1, 2006

Some media voices have questioned why [immigration] hearings should be held in Dubuque, Iowa. While not as immediately impacted as cities along our Nation's northern and southern borders, these comments betray a lack of understanding of the true dimensions of the challenge…. Dubuque, like every city in the United States, is a city of immigrants. Founded by a French fur trader in the eighteenth century, we have lived under five flags through the years, ultimately being incorporated as Iowa's oldest city. In the course of the nineteenth century, our population soon became primarily Irish and German and remained so until our very recent past. Studies done up to the late twentieth century indicated that Dubuque's population was uniquely homogeneous with very few diverse populations. Since the 1990's, this profile has gradually changed, even though our population remains predominantly European, even western European. But we have welcomed significant numbers of new citizens. This has presented our community with both challenge and opportunity.

These changes in our population, while significant, have been relatively undramatic. There is not a perception that large numbers of undocumented immigrants have come here, though the assumption must be made that we do have such persons. Several religious and civic groups, notably, the Archdiocesan Office for Immigration, a program for Marshallese Islanders by several Pentecostal church groups and the Iowa State University Extension Diversity Center and the two school districts, have managed to keep pace with the challenge. Thanks to these efforts, the problem of immigration has not yet become a crisis and can be appreciated from a more long range economic, political and philosophical point of view.

So from this rather lofty stance, it's possible for us to posit a number of local realities:

Like immigrants everywhere, our new Dubuque residents come here for a simple reason. They want a better life for themselves and their families.

Second, the employment situation in Dubuque is currently very strong with a wide range of varied job opportunities. Businesses, however, still feel the need for a growing supply of workers with a strong work ethic and a willingness to accept a lower rate of pay. In short, we need good workers to keep our economic surge going.

Third, we must assume that some of our new inhabitants have illegally crossed our borders. We can tell this by the degree of anxiety they express in certain situations and by their reluctance to participate in some aspects of community life.

Even given this barrier, our Hispanic residents are becoming part of our community and we find their presence enriching.

We do see areas of potential, even immediate concern. And we believe this is best addressed by a comprehensive approach, including tighter, enforceable border security; tighter, enforceable and enforced employment regulations; assistance for localities most heavily impacted by large numbers of both legal and illegal immigrants; and a pathway to citizenship which rewards those who enter the country legally and penalizes those who do not, without destroying their hopes for the future….

We are convinced that when immigrants are admitted through a well-regulated system, they strengthen our country by creating economic opportunities, increasing America's scientific and cultural resources, strengthening our ties with other nations, fulfilling humanitarian commitments, and perhaps most important, supporting family ties and family values. All this is necessary to build strong communities.

RICARDO PARRA, MIDWEST COUNCIL OF LA RAZA, HEARING BEFORE THE COMMITTEE OF THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES, EVANSVILLE, INDIANA, AUGUST 29, 2006

The immigration system is broken and needs to be fixed…. [Congress] ignored the need to look at national security interests, economic interests in a changing global economy. They have ignored the need to build an immigration system that is tough, efficient, fair, and also compassionate….

I believe that border security alone is not enough. Border security must fit within a process of comprehensive reform (i.e. interior and employer enforcement, legalization, and guest workers); enforcement only is insufficient.

Earlier in June, 500-plus economists … indicated immigration was an economic plus, saying, "the gains from immigration outweigh the losses."

Immigrant labor is needed to fill jobs in the U.S. that an older, more educated American workforce is not willing to fill, especially at the low wages and poor working conditions many unscrupulous employers offer. Currently, there are approximately nine million undocumented workers in the U.S. filling important gaps in the labor market. There is substantial evidence that their presence in the labor force creates jobs and strengthens local economies….

The costs of education and social welfare systems are not unreasonable or unbearable.

When it comes to education [of immigrants,] this is an investment in not only human capital, but people who will be integrated into this society and be stakeholders.

Undocumented immigrants pay taxes in a number of ways, including income and sales tax. The majority of undocumented immigrants pay income taxes using Individual Taxpayer Identification Numbers (ITINs) or false Social Security numbers. All immigrants, regardless of status, will pay on average $80,000 per capita more in taxes than they use in government services over their lifetime. The Social Security system reaps the biggest windfall from taxes paid by immigrants; the Social Security Administration reports that it holds approximately $420 billion from the earnings of immigrants who are not in a position to claim benefits….

To enforce our immigration laws we need to make them enforceable. Our broken immigration system is a complex problem that needs a comprehensive overhaul. We've been implementing piecemeal measures for twenty years, which have made the system more complex, but not more controlled. "Seal the borders" is a sound bite. "Enforce our laws" is a sound bite. Comprehensive reform is a solution, and only by changing our laws to meet economic need and family ties will we be able to restore control and order to the system.

People smuggling has become big business. Fake document merchants have plenty of customers. Unscrupulous employers have a large pool of exploitable workers. Families stay separated for years. Hundreds die in the desert each year. There are twelve million undocumented immigrants—and counting—and Americans all across the U.S. are angry at the government's failure. In light of all this, calls for more of the same do not make sense. Illegal immigration happens because we have jobs or loved ones on this side of the border, and an insufficient number of legal visas for these workers and family members….

We need to bring well-intentioned immigrants through the legal system. When the vast majority of current illegal flow is happening legally, our enforcement resources will be better trained on the smugglers and fake documents rings, the drug runners and violent criminals, and the terrorists who might manipulate our system…. A path to legal status for the current undocumented population is integral to enhance national security. Once the good people come forward for registration and criminal background checks, the people who cannot and do not will be isolated.

STEVEN A. CAMAROTA, DIRECTOR OF RESEARCH, CENTER FOR IMMIGRATION STUDIES, HEARING BEFORE THE COMMITTEE OF THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES, AUGUST 29, 2006

Over the last three decades, socio-economic conditions, especially in the developing world, in conjunction with U.S. immigration policy, have caused twenty-five million people to leave their homelands and emigrate legally to the United States…. The Immigration and Naturalization Service estimates that the illegal alien population grows by 400,000 to 500,000 each year. The current influx has caused an enormous growth in the immigrant population, from 9.6 million in 1970 (4.8% of the population) to 35 million (12.1% of the population) today.

… The impact on the overall economy is actually very small…. And these effects are even smaller when one focuses only on illegal aliens, who comprise one-fourth to one-third of all immigrants. While the impact on the economy as a whole may be tiny, the effect on some Americans, particularly workers at the bottom of [the] labor market may be quite large. These workers are especially vulnerable to immigrant competition because wages for these jobs are already low and immigrants are heavily concentrated in less-skilled and lower-paying jobs….

… Its short- and long-term impact demographically on the share of the population that is of working age is also very small. It probably makes more sense for policymakers to focus on the winners and losers from immigration. The big losers are natives working in low-skilled low-wage jobs. Of course, technological change and increased trade also have reduced the labor market opportunities for low-wage workers in the United States. But immigration is different because it is a discretionary policy that can be altered. On the other hand, immigrants are the big winners, as are owners of capital and skilled workers, but their gains are tiny relative to their income.

… Arguments for or against immigration are as much political and moral as they are economic. The latest research indicates that we can reduce immigration secure in the knowledge that it will not harm the economy. Doing so makes sense if we are very concerned about low-wage and less-skilled workers in the United States. On the other hand, if one places a high priority on helping unskilled workers in other countries, then allowing in a large number of such workers should continue. Of course, only an infinitesimal proportion of the world's poor could ever come to this country even under the most open immigration policy one might imagine. Those who support the current high level of unskilled legal and illegal immigration should at least do so with an understanding that those American workers harmed by the policies they favor are already the poorest and most vulnerable.

MARGARET D. STOCK, ASSOCIATE PROFESSOR OF LAW, U.S. MILITARY ACADEMY, WEST POINT, NEW YORK, BEFORE THE SENATE COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CITIZENSHIP AND THE SUBCOMMITTEE ON TERRORISM, TECHNOLOGY, AND HOMELAND SECURITY, IN WASHINGTON, D.C., MAY 17, 2005

We best enhance our security by enhancing our intelligence capacity. National security is most effectively enhanced by improving the mechanisms for identifying actual terrorists, not by implementing harsher immigration laws or blindly treating all foreigners as potential terrorists. Policies and practices that fail to properly distinguish between terrorists and legitimate foreign travelers are ineffective security tools that waste limited resources, damage the U.S. economy, alienate those groups whose cooperation the U.S. government needs to prevent terrorism, and foster a false sense of security by promoting the illusion that we are reducing the threat of terrorism. Reforming our immigration laws will help us to identify those who seek to enter our country or are already residing here….

We need to make our borders our last line of defense. The physical borders of the United States should be our last line of defense because terrorism does not spring up at our borders. In fact, we need to re-conceptualize how we think about our "borders," because in our modern world they really start at our consulates abroad….

Our economic prosperity depends on the free movement of people and goods. We must be careful not to create an environment conducive to terrorists and criminals at our ports-of-entry as we seek to secure our borders in a way that does not trump cross-border facilitation. We need to adopt a "virtual border" approach that recognizes the importance of the continued flow of people and goods, and underscores that effective border management needs to take place away from our physical borders. I would only add that comprehensively reforming our immigration laws is the other component that is necessary for our borders to work and work well because such reform helps identify the people who present themselves at our ports-of-entry, thereby making legality the norm.

… Because all nineteen of the September 11th terrorists were foreigners, some observers have been quick to blame our vulnerability to terrorist attacks on lax immigration laws. While such a response was predictable, it was misguided and has inevitably resulted in overreaction. Calls to impose a "moratorium" on immigration, halt the issuance of student visas, close the borders with Canada and Mexico, eliminate the Diversity Lottery visa program, draft harsher immigration laws, and similar types of proposals reflect a serious misunderstanding of the relationship between immigration policy and national security.

Although the attacks of September 11th revealed serious management and resource deficiencies in the bureaucracies that administer our borders, U.S. immigration laws in and of themselves did not increase our vulnerability to attack. In fact, U.S. immigration laws already are among the toughest in the world and have long provided the federal government with broad powers to prevent anti-American terrorists from entering or residing in the United States. A careful analysis of the September 11th attacks reveals that deficiencies in U.S. intelligence collection and information sharing, not immigration laws, prevented the terrorists' plans from being discovered.

FRANK SHARRY, EXECUTIVE DIRECTOR, NATIONAL IMMIGRATION FORUM, TESTIMONY BEFORE THE SENATE COMMITTEE ON THE JUDICIARY, OCTOBER 18, 2005

The evidence of the system's dysfunction is all around us: young men and women die gruesome deaths in southwestern deserts as they attempt to enter the U.S. in search of work; fake document merchants and criminal smugglers turn huge profits in networks that one day might be exploited not by those seeking work in our economy but by those seeking to attack our nation; local community tensions simmer and sometimes explode as housing gets stretched, schools experience change, and language differences emerge; immigrant families remain divided for years, even decades, by restrictive admissions policies and inefficient processing; immigrant workers afraid of being discovered and deported are subject to abuse and exploitation by unscrupulous employers seeking to gain an unfair advantage over law-abiding competitors; meanwhile, public frustration mounts as the federal government seems incapable of mobilizing the political leadership and enacting the policy changes to fix the system once and for all….

Fixing the broken immigration system requires sizing up its complexity and its dimensions. The numbers tell part of the story. Some eleven million undocumented immigrants now live and work in the United States. That means that almost one-third of all the immigrants in America lives here without government authorization. Fourteen million people, including some five million kids, live in households headed by an undocumented immigrant. One out of twenty workers in the nation's labor force is living and working here illegally. Two-thirds of them have arrived in the last decade. More than half are from Mexico. More than 80% are from Latin America and the Caribbean. America's backyard is showing up on America's front porch.

Illegal immigration is no longer a niche issue affecting a handful of gateway states and cities. It has gone nationwide. Consider the five states with the fastest growing populations of undocumented immigrants: North Carolina, Utah, Colorado, Arizona, and Idaho. In fact, a wide swath of the nation's heartland, from the old South stretching up through the Mountain states to the Northwest, is undergoing a remarkable demographic transformation with little to no recent experience to draw on to respond to it.

Moreover, most new undocumented immigrants appear to be here to stay. The vast majority no longer fit the stereotype of the migrant male on his own here to do temporary work before returning home. Today, 70% live with spouses and/or children. And only 3% work in agriculture. The vast majority are employed in year-round service sector jobs. After all, the jobs are plentiful. More than half the new jobs created in the American economy require hard work, not multiple diplomas. Meanwhile, young native-born workers are smaller in number, better educated than ever, and more interested in office work than manual labor. Consequently, much of the nation's demand for housekeepers, childcare workers, landscapers, protein processors, busboys, cooks, janitors, drywallers, and construction workers is met by a steady flow of some 500,000 undocumented migrants who enter and settle in America each year.

… Since the U.S. has a legal immigration system, why don't these workers from Mexico and elsewhere simply wait in line and enter with legal visas? Answer: what legal visas? There are virtually none available for these workers. While the labor market demands an estimated 500,000 full-time low-skilled service jobs a year, our immigration laws supply just 5,000 permanent visas for workers to fill these jobs. And this tiny category is so backlogged it has been rendered useless. As the Immigration Policy Center recently pointed out, of the other fifteen immigrant visa categories available for employment and training, only two are available to industries that require little or no formal training. These two categories (H2A and H2B) are small and seasonal. In addition to the enormous mismatch between labor market realities and our government's immigration policy, our family visa lines are so backlogged that it can take a decade for spouses to be reunited, legally. Not surprisingly, many stop waiting and cross the border illegally in order to reunite with their loved ones.

What to do? Some argue that the solution is to simply enforce the laws we already have on the books. And while we certainly need tighter, more targeted, and more effective enforcement as part of a comprehensive overhaul, the fact is that over the past two decades the "enforcement only" approach has failed miserably. As another of this hearing's witnesses, Princeton professor Douglas Massey, recently documented, since 1986 the border patrol budget has increased ten-fold in value. This beefing up of border enforcement has been augmented by tough restrictions on immigrant access to employment, public services, and due process protections.

And yet this unprecedented increase in enforcement has coincided with an unprecedented increase in illegal immigration.

Why hasn't "enforcement only" worked to stem illegal immigration? Because our current approach to immigration and border security policy fails to recognize that the United States has an increasingly integrated labor market with Latin America. In much the same way that we used to see workers from rural areas in the South migrate to the urban North to fill manufacturing jobs, we now see workers from rural areas south of the border migrating to all areas of the U.S. to fill service jobs. Our failure to account for this fact of life leads to a failure of policy. Instead of building a workable regulatory regime to govern what is essentially a market-driven labor migration, we keep legal channels severely restricted and then wonder why workers and their families have nowhere to go but into the clutches of a migration black market dominated by smugglers, fake document merchants, and unscrupulous employers.

Dan Griswold of the Cato Institute sums it up this way: "Demand for low-skilled labor continues to grow in the United States while the domestic supply of suitable workers inexorably declines—yet U.S. immigration law contains virtually no legal channel through which low-skilled immigrant workers can enter the country to fill that gap. The result is an illegal flow of workers characterized by more permanent and less circular migration, smuggling, document fraud, deaths at the border, artificially depressed wages, and threats to civil liberties." He adds, "American immigration laws are colliding with reality, and reality is winning."

Griswold is right. We will not be able to restore respect for the rule of law in our immigration system until we restore respect for the law of supply and demand. Instead of "enforcement only" or "enforcement first," we need an "enforcement plus" approach.

I recall the first time I came face to face with the reality of an integrated labor market and the futility of an "enforcement only" strategy. In the late 1990's I accompanied a delegation that visited Tixla ("Teesh-la"), a "sending community" located in Mexico. Most of its sons and daughters had left and migrated illegally to Chicago to fill available service jobs in construction, landscaping, hospitality, and childcare. Those left behind consisted mostly of women, children, and the elderly. The workers used to come back and forth, at least for visits, but this had mostly stopped due to the press of their multiple jobs up north and the risks associated with re-crossing the border illegally. The townspeople were proud to show us the new school and basketball court which had recently been built with pooled remittances. And there, right there in the middle of the basketball court, was a huge replica of the logo for the Chicago Bulls.

That's when it hit me. Tixla, a dusty, rural town south of Mexico City, is a bedroom community for Chicago. We may not think of it that way, but it is a twenty-first century fact. The town produces the workers needed to fill newly created service sector jobs in the Chicago area. There is plenty of work available just up the road, and these workers are willing to risk their lives to make the commute….

Like so many other public policy debates, the highly charged immigration debate is often polarized and paralyzed by an "either/or" framework. The tit-for-tat goes something like this: you are either for immigrants or for control; you are either for higher levels or lower levels; you are either for closed borders or open borders; you are either for lax policies or tough policies. This narrow and lopsided framework is a trap that obscures realistic solutions.

What's needed is a "both/and" approach that recognizes the reality of an integrated labor market with Latin America and the legitimate U.S. demand for operational control of its borders in a post 9/11 world. Such an approach seeks to integrate seemingly contradictory elements into a comprehensive package; a package that combines expanded enforcement strategies and expanded legal channels for those entering the U.S. to work and join families and expanded pathways to legal status and citizenship for undocumented immigrants already living and working in the U.S. We need to change our immigration laws so that they are enforceable and enforce them effectively….

The key to effective [immigration] enforcement is to augment our border enforcement efforts with a system that ensures that all workers hired in the United States are in our country legally. The [Secure America and Orderly Immigration Act of 2005] accomplishes this by building an electronic worker verification system … combined with tough sanctions for employers who attempt to endrun the new system. I predict that responsible employers will support it as long as the verification system is functional and the new system is combined with legal channels for workers here and those needed in the future. I predict that unscrupulous employers—those that benefit from the dysfunctional status quo—will oppose it.

The keys to making the admissions system realistic, controlled, and workable are a) to provide enough visas for the expected future flow of workers and families; and b) to avoid the exploitation and abuses of old-style guest worker programs. Secure America accomplishes the first by creating 400,000 worker visas a year and increasing family reunification visas so that the current illegal flow will be funneled into a legal one while being fair to those from around the world. It tackles the second by requiring employers to pay newly admitted workers the same wages as similarly situated workers, and by mostly delinking workers' status from employer say-so….

The key to putting migration on legal footing once and for all is finding a way for the eleven million or so undocumented immigrants to come out of the shadows voluntarily and transition to legal status. Secure America addresses this controversial issue head on. It offers incentives for undocumented immigrants already here to come forward, register with the government, submit to criminal, security, and health screenings, pay a hefty fine, study English and civics, and clear up their taxes as a way to eventually earn permanent residency. Immigrants who meet these requirements can apply for permanent residence after six years, and become eligible for citizenship in eleven years at the earliest. And this component interacts with the family reunification provisions such that those waiting in the queue outside the U.S. secure permanent residence before those previously undocumented immigrants who obtain temporary status.

Immigration to America has worked throughout our history because newcomers have been encouraged to become new Americans. Secure America takes steps to renew this commitment by increasing English classes for adult immigrants, citizenship promotion and preparation, and the legal security immigrant workers need to move up the economic ladder. In fact, it's worth noting that when three million undocumented immigrants became legal immigrants some twenty years ago, their wages increased by 14% over five years—they were no longer afraid to speak up or change jobs—and their productivity increased dramatically—they studied English and improved their skills through training. The bill also deals with a longstanding and legitimate complaint from state and local governments by reimbursing costs related to health care and other public services.

The bill certainly has its faults and its critics. The immigration enforcement provisions are strong but will need to be strengthened if we are to ensure immigrant workers and families use widened legal channels and no others. Similarly, the bill aims to construct a temporary worker program that adequately protects both native and immigrant workers alike, but will probably need to be tweaked to fully realize this objective. After all, the goal of immigration reform should be nothing less than to restore the rule of law—both to our immigration system and to low-wage labor markets. And unfortunately, the bill does not adequately address the acknowledged long-term solution to the migration challenge: economic development in sending nations and communities….

Overall, though, the bill's premise is brilliant and its promise viable: take migration out of the black market and bring it under the rule of law; funnel the illegal flow into legal channels; increase the legality of the migration that is occurring, rather than increase the numbers of those who enter; get control of the flow so we get control of our border; bring undocumented immigrants out of the shadows and under the protection of our laws; know who is in our country and who is entering it; shift from repressing migration ineffectively to regulating migration intelligently; turn the broken status quo into a functioning, regulated system; drain the swamp of fake documents and criminal smugglers; vetted airport arrivals instead of deaths in the desert; families united rather than divided for decades; verification mechanisms that work and fake documents that don't; legal workers and an equal playing field for honest employers; equal labor rights for all rather than a race to the bottom for most.

… As a nation we seem poised to move beyond the old debate—characterized by simplistic and shallow prescriptions of the past, the non-solution, sound bite-driven "get tough and be done with it" approach. The nation is ready to take part in a new debate, one that takes all of the moving parts into full consideration and at the same time. The old debate suggests that we have to choose between being a nation of immigrants or a nation of laws. The new debate recognizes that the only way to be either is to be both.

STATEMENT OF LAURA W. MURPHY AND TIMOTHY H. EDGAR, AMERICAN CIVIL LIBERTIES UNION, HEARING BEFORE THE SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, 108TH CONGRESS, FIRST SESSION, MAY 8, 2003

When terrorists attacked the World Trade Center and the Pentagon on September 11, 2001, they attacked a nation of immigrants. Among those who died in the attacks were citizens of some twenty-six foreign countries. The attackers did not distinguish on the basis of citizenship or immigration status. Victims included United States citizens and permanent residents, temporary workers and visitors, and undocumented laborers.

Following these attacks, President Bush and Congress expressed solidarity with the Arab, Muslim, and South Asian immigrant communities and warned against singling out whole communities for the actions of the terrorists. Unfortunately, as we look back on the government's actions toward immigrants over the past twenty months, its actions are in sharp contrast to its words.

Even as the Department of Justice took swift and decisive action to stop hate crimes against Arabs, Muslims, and South Asians, it began a massive preventive detention campaign. This campaign has resulted in the secret detention and deportation of close to 1000 immigrants designated as "persons of interest" in its investigation of the attacks. Government officials now acknowledge that virtually all of the persons that it detained shortly after September 11 had no connection to terrorism. While the government told the public not to engage in ethnic stereotyping or to equate immigrants in general with terrorists, its own policies did precisely that.

Under new Department of Justice policies, immigrants today can be arrested and held in secret for a lengthy period without charge, denied release on bond without effective recourse, and have their appeals dismissed following cursory or no review. They can be subjected to special, discriminatory registration procedures involving fingerprinting and lengthy questioning concerning their religious and political views. An immigrant spouse who is abused by her husband must fear deportation if she calls the local police. Asylum-seekers fleeing repressive regimes like those of the Taliban or Saddam Hussein may face mandatory detention, without any consideration of their individual circumstances.

There is a better approach. Instead of automatically viewing non-citizens with inherent suspicion, America should focus its resources on investigating and apprehending those who intend to commit acts of terrorism. America puts itself at greater risk by alienating immigrant communities, making immigrants distrustful and fearful of government.

The government must stop equating immigration with terrorism. Stepping up border screenings in a smart way can be part of a policy to make the United States safer…. Still, improving the "gatekeeper" function of immigration agencies is only one part, and not the most important one, of a balanced approach to national security that improves national security while respecting civil liberties….

Immigrants and new citizens make our country stronger, not weaker. They serve in our armed forces, as high-technology workers helping design the latest security technology, and as translators of critical intelligence information. They provide a bridge to world understanding, helping counter anti-American sentiment. If we isolate immigrants, we isolate ourselves—and make our country more vulnerable to terrorism.

Put simply, target terrorists, not immigrants….

Alienation of Immigrant Communities

Immigrants represent an extraordinary resource for the United States in its efforts to combat terrorism. Terrorism is a global problem that requires cooperation not just among governments, but among communities that increasingly straddle borders and cultures. Noting that an intelligence intercept warning of an impending terrorist attack that was received September 10, 2001 was not translated until September 12, Congress's own Joint Inquiry into the attacks of September 11, 2001, identified a critical need to hire more translators with knowledge of Arabic, Urdu, Farsi, and other foreign languages.

Likewise, to encourage cooperation in solving crime and terrorism, law enforcement officials have worked hard to win the trust of immigrant communities. Yet these efforts have been seriously undermined by a series of ham-handed policies likely to further alienate immigrants from the United States government….

Targeting immigrants comes at significant cost not only to basic fairness, it represents poor national security policy….

A Better Approach: Security and Liberty for a Nation of Immigrants

Designing immigration enforcement policy that remains true to our civil liberties and our values as a nation of immigrants while improving security is a challenge, but it is possible. First, we must recognize that immigration policy is simply one part of an overall strategy to reduce America's vulnerability to terrorism.

We should begin by recognizing the limits of immigration enforcement as a part of a counter-terrorism strategy. Immigration officials serve as gatekeepers, administering immigration laws that provide who may be admitted into the country and who may not. They cannot do their job without adequate intelligence.

The Joint Inquiry of the House and Senate intelligence committees into the September 11 attacks uncovered a number of serious, structural breakdowns in the intelligence agencies that may have contributed to the attacks. One vivid example is the failure of the CIA to share with the FBI or immigration agencies the names of two Al Qaeda members for a period of eighteen months—by which time they had already entered the United States, traveling under their own names. Immigration agencies cannot be saddled with the blame for this fiasco; they cannot arrest or keep out potential terrorists about whom they have no knowledge.

… These failures were not the result of civil liberties protections or checks and balances, but rather represented organizational failures which will take resources, including dollars and political will, to address. No border security policy can be effective without solving these intelligence problems….

Adequate resources for information technology. The immigration agencies have done an extraordinarily poor job of keeping basic records. Rather than saddle immigration offices with new responsibilities to collect information which they already maintain, such as through special registration, Congress should insist on fundamental record-keeping reforms that hold the immigration agencies accountable for keeping timely and accurate paperwork.

Improved information-sharing. Immigration agencies and the State Department must have adequate technology to access information maintained by law enforcement and intelligence agencies, to find out whether a particular individual is a criminal or a terrorist and should be kept out of the United States. Prior to September 11, 2001, not all consulates and immigration inspectors had real-time access to this information.

Put terrorism enforcement, not immigration enforcement, as the top priority. Where the FBI is conducting a terrorism investigation, immigration enforcement should take a back seat because the FBI's need to obtain the cooperation of potential witnesses and to track down leads to uncover possible terrorists is more important than deporting undocumented immigrants. The FBI should adopt a policy of not deporting those who are mere immigration violators but who are uncovered in a terrorism investigation, and make sure that policy is adequately publicized and enforced.

Reverse legal opinion claiming state and local law enforcement have immigration powers. For the same reason, the Department of Justice should revert to its previous opinion holding that state and local law enforcement lack authority to enforce immigration laws. State and local law enforcement must have the trust of their communities to ferret out crime and terrorism.

Abandon mandatory detention policies to free up scarce resources for those who are dangerous. Immigration detention space is limited and expensive, and continuing policies that prohibit release even of those non-citizens who show they are not dangerous and are not likely to flee simply forces the government to release others who may be dangerous.

Conclusion

By working together to find solutions to immigration enforcement that respect civil liberties and fundamental values, we can avoid the false choice between civil liberties and safety. By abandoning false solutions that target immigrants, not terrorists, America can remain safe, free, and true to its fundamental values as a nation of immigrants.