Immigration is integral to the American national identity. Before they became “Americans,” the nation’s first citizens were English, Scottish, Irish, Welsh, Dutch, or German. Notwithstanding recurring waves of anti-immigrant sentiment, and intense controversy over policies aimed at managing the flow of immigrants, the United States largely prides itself on being a “nation of immigrants.” Most Americans consider the diverse population and pool of talent attracted by the country’s unique freedoms and opportunities to be crucial to its economic, political, and cultural achievements. Vital to the country’s ongoing allure as a destination for immigrants from every part of the world is its policy of assimilation, which contrasts with the approach taken by most European democracies and many other countries.
Immigration is a political issue that often stokes powerful emotions. All Americans regularly experience the effects of immigration policy as it influences the labor market, the cost of consumer goods, the ethnic composition of neighborhoods and school districts, popular culture, and national security efforts. Pundits and politicians routinely exploit the presence of immigrants in America, particularly during times of economic, political, or military uncertainty.
Indeed, the September 11, 2001, terrorist attacks on the United States have drawn increased attention to the relationship between immigration and national security, and terrorism concerns have driven many of the changes in immigration and especially visa policy over the last six years. These changes are often seen to disproportionately affect the freedoms enjoyed by residents from predominantly Muslim countries, most of whom are in the United States legally. Also at play, however, is the dilemma presented by the roughly 12 million immigrants currently living in the country illegally—a figure that has quadrupled over the past two decades. Most of these men and women seek to integrate themselves and their families into American society through hard work and education, as earlier waves of immigrants, legal and illegal, have done. In addition to simmering concern about the cultural implications of their assimilation, the ubiquity and status of millions of undocumented workers and their families presents a bracing rebuke to Americans’ desire to establish a secure homeland in a period of anxiety about terrorist threats and heightened appreciation for the rule of law. The presence of these workers ranks as the single most important factor behind an increasingly contentious immigration debate
In June 2007, a bipartisan congressional initiative to modernize decades-old immigration laws, backed by President George W. Bush and key cabinet members, collapsed in the face of a determined opposition that, while including liberals and Democrats, was animated largely by conservative Republicans. “The American people understand the status quo is unacceptable when it comes to our immigration laws,” said President Bush after a critical procedural vote killed the proposal in the Senate. “A lot of us worked hard to see if we couldn’t find a common ground—it didn’t work.”1
Other immigration controversies at present include the matter of whether the United States will provide a haven to refugees from Iraq, in particular those whose families have been endangered by their service to the American armed forces or civilian organizations. Between October 2006 and August 2007, only 719 Iraqi refugees were admitted to the United States—an embarrassing abdication of national responsibility for men and women who have allied themselves with the American effort in Iraq.2 In addition to the ever-present discussion about the differences in treatment given to migrants arriving by boat from Cuba versus those from Haiti (and other locations in the Western Hemisphere), there is disquiet about the failure of the executive branch to provide entry to refugees from North Korea, despite a 2004 law requiring that it be done.3
In assessing the effect of U.S. immigration policy on the freedom enjoyed by today’s American, it is important to consider that while the Universal Declaration of Human Rights guarantees everyone the “right to seek and to enjoy in other countries asylum from persecution,”4 no international human rights law or treaty guarantees noncitizens the absolute right to enter and remain indefinitely in a country.5 Furthermore, while the U.S. Constitution does not give foreigners the right to enter the country, it does guarantee their right to fair and equal treatment once they arrive, including protection from discrimination based on race or national origin and from arbitrary decisions by the government.6 How welcoming the United States is to new arrivals depends, as ever, on a mix of personal, cultural, economic, and security considerations, and is the subject of everlasting discussion in our society. The national debate, like this chapter, largely omits explicit reference to the two portions of the population that are not of immigrant origin: the Native Americans who resided here before Europeans arrived, and those involuntary migrants who came from Africa as slaves. Descendants of these communities, along with successor generations of purposeful immigrants, comprise important parts of the American social fabric that continues to attract newcomers.
Early Immigration Policy
America’s founding fathers opposed massive, unrestricted immigration,7 but they largely agreed that immigration would be essential to building the new nation and expanding it westward. Early American entrepreneurs advertised overseas for immigrant laborers to work the new country’s farms, mines, factories, and mills. Congress played a role as well, actively helping Polish exiles to settle in Illinois and Michigan in 1834, and passing the Homestead Act in 1862 to draw additional settlers with cheap land grants.8
As the nineteenth century advanced, however, nativists gained strength and succeeded in tightening immigration policies. The first cohesive, politically influential nativists were the Know-Nothings, a movement with primarily Protestant membership that opposed the mass influx of Irish and German Catholics in the 1840s and 1850s. Its formal expression in the American Party was short-lived; though it won 21 percent of the national vote in the presidential election of 1856, with former president Millard Fillmore as its standard-bearer, the party disappeared by the following election.
Race soon replaced religion as the driving force behind nativism, with attention turning from European to Chinese immigrants. By 1870, more than 60,000 Chinese had entered the country and—following the completion of the Union Central Pacific Railroad—approximately 10,000 of them had entered the California labor market. This alarmed Western laborers and contributed to a widespread fear of Chinese encroachment on American society.9 The “Chinese issue” reached the Senate floor as a result of political concerns that illegal or nonnaturalized Chinese immigrants might commit election fraud, to the benefit of the Democratic Party.10 The national immigration debate in the late nineteenth century thus revolved around the same issues that would animate U.S. immigration policy for the next 125 years: jobs, culture, and politics.
The discussion in Congress led to the Chinese Exclusion Act of 1882, the first significant reversal of the country’s historical openness to immigration. The new law prohibited the entry of both skilled and unskilled Chinese laborers and imposed burdensome paperwork requirements on many Chinese who had already arrived.11 A series of subsequent acts expanded Chinese exclusion and made it permanent in 1902. In 1892, every Chinese person already living in the United States became an illegal resident “unless he or she could demonstrate otherwise.”12
While Chinese immigrants were perceived as the greater cultural threat in the years between 1850 and 1910, the number of immigrants from Asia was dwarfed by the wave of immigrants who arrived from more and more parts of Europe, and by the vast numbers arriving overall. From 1881 to 1890, for example, a total of 4,735,484 immigrants arrived from Europe while just 69,942 came from Asia. Between 1900 and 1910, a massive 8,795,386 immigrants from all nations arrived in the United States—roughly four times the number that had entered in each of the decades between 1850 and 1880, and more than 11.5 percent of the country’s population at the start of that decade.13
The turn of the century saw a spike in immigration from Southern and Eastern Europe. The newcomers’ languages, religions, and cultures differed from those of earlier Northern European and British immigrants, galvanizing anti-immigrant forces. The result would be two decades of intensifying restrictions on immigration.
Overriding a veto by President Woodrow Wilson, Congress in 1917 established a literacy test for all immigrants and an “Asiatic Barred Zone” that further restricted immigration from Asia.14 The Red Scare that followed Russia’s Bolshevik Revolution inspired the Immigration Act of 1918, which for the first time allowed aliens to be deported because of their ideological beliefs or membership in certain organizations. A bombing traced to anarchists in 1919 provoked the Justice Department to compile lists of thousands of suspected radicals and their affiliations, and to conduct massive raids that resulted in the arrests of more than 10,000 people. Setting a precedent for some of the actions taken after the September 11, 2001, (or 9/11) terrorist attacks, the government’s effort to root out alleged foreign and leftist subversives compromised the due process rights of many and led to the deportation of hundreds of people.
World War I temporarily slowed immigration. In its aftermath, though, Congress passed the 1921 Quota Act, sometimes referred to as the “Emergency Quota Act” or the “Johnson Act.” This law established an overall quota of 358,000 immigrants per year and set quotas for particular nations of origin as well. The 1924 Immigration Act, or Johnson-Reid Act, tightened these restrictions further and made the system permanent and preferential.
The new limits imposed in 1924 significantly favored immigrants from Northern and Western Europe. Quotas for these countries were cut by only 29 percent, whereas quotas for Southern and Eastern Europe were cut by 87 percent. Italy’s quota alone was slashed from 42,057 to 3,845 persons.15 The 1924 act also prohibited all immigration from Asia, including Japan for the first time. On the other hand, all Western Hemisphere countries were excluded from the quota system because the U.S. government did not want to estrange its neighbors, and because the U.S. economy depended on Mexican agricultural labor.16
The 1924 act marked the peak of nativist influence on federal immigration policy. It reflected postwar concerns about job competition, the fear that immigrants’ willingness to work for lower wages would reduce living standards, and—especially for American Protestants—the fear that immigrants from Southern and Eastern Europe, most of them Roman Catholic, Orthodox Christian, or Jewish, threatened American values.17 Congressional support for the bill was nearly unanimous; only six senators cast dissenting votes. The number of immigrants from Europe fell sharply, while immigration from the New World grew from 8.6 percent of the total in 1910 to 45.1 percent in 1924, with the clear majority of those coming from Canada and Mexico.18
During the Great Depression, President Herbert Hoover stepped up immigration controls administratively, and the number of migrants fell significantly. The first net outflow of migrants occurred in 1934, when roughly 10,000 more people left the country than entered, leaving large portions of most quotas unfilled.19 Even the number of Mexican immigrants dropped markedly, as there were fewer low-level jobs available.
World War II brought strict policies governing “enemy aliens,” including the notorious internment of nearly 120,000 Japanese and Japanese Americans in “relocation centers.” Nonetheless, immigration policy was liberalized during the 1940s in important ways, with the repeal of Chinese exclusion laws in 1943 and the extension of naturalization and full-quota immigration rights to other Asian groups.
The United States had long been a haven to political refugees and failed revolutionaries. The Displaced Persons Acts of 1948 and 1950, however, introduced the first formally articulated U.S. policies for admitting those fleeing persecution. Refugee policy has come to represent one of the most generous aspects of immigration in America and, at the same time, provides a clear example of the ties between immigration and foreign policy considerations. By the 1940s, racist and economic motivations for restrictionism were outweighed by concerns about the political loyalties of the American population and, for some, a need for immigration policy to support foreign policy. Mindful of the country’s past failure to give refuge to Jews fleeing Nazi oppression and a new obligation to welcome those whom the U.S. government was encouraging to leave oppressive Communist societies, U.S. leaders began a dramatic shift away from restrictionism in the 1950s that would culminate in the abolition of the old national quotas in 1965. The 1953 Refugee Relief Act (RRA) authorized the admission of 214,000 refugees from European and especially Communist-dominated countries, outside of the national-origins quota system. Other refugee legislation (for example, the Refugee Escapee Act of 1957, the Fair Share Law of 1960, and subsequent legislation prompted by the Vietnam War in the 1970s and 1980s) admitted 29,000 Hungarians after the unsuccessful 1956 Hungarian revolution, 700,000 Cubans after leftist guerrillas toppled President Fulgencio Batista’s government in 1959, and more than 400,000 Southeast Asians after the fall of South Vietnam and Cambodia to Communist forces in 1975.20
The shift toward a more open immigration policy arguably began with President Harry Truman’s 1952 veto of the McCarran-Walter Act, which prescribed a rigid and ethnically biased national quota system that clearly contradicted the country’s international campaign for freedom and against Communist oppression. Congress overrode Truman’s veto, however, partly to ensure the enactment of the bill’s domestic security provisions. McCarran-Walter authorized the deportation of any alien who engaged or had purpose to engage in activities prejudicial to the public interest or subversive to national security.21
The most fundamental change occurred when President Lyndon Johnson signed the Hart-Celler Immigration Act in 1965, making family reunification—and not national origin—the cornerstone of U.S. immigration policy. The 1965 law was the product of both foreign policy concerns—competition with the Soviet Union and the decolonization of Asia and Africa—and the civil rights movement in the United States. It allocated 170,000 visas to the Eastern Hemisphere, with a ceiling of 20,000 per country, and 120,000 to the Western Hemisphere, with no per-country limit. However, a seven-category preferential system for visa admissions gave priority not to nationality, but to relatives of U.S. citizens and individuals with needed skills and abilities. McCarran-Walter had introduced similar preferences for U.S. relations and job skills, but only within the strict national quotas.22
Supporters of the 1965 Act, which the Senate approved in a vote of 76 to 18, did not anticipate drastic changes to the existing pattern of immigration. The bill was intended to eliminate discrimination among immigrants, not to encourage all races to immigrate; few Asians and Africans were expected to arrive because, according to one of the bill’s sponsors, the family-ties and job-skills provisions would “hold the numbers down.”23
In a dramatic illustration of the law of unintended consequences, the 1965 Immigration Act catalyzed an era of mass immigration and a fundamental demographic overhaul. The prioritization of family reunification caused the number of nonquota immigrants to skyrocket. Three times as many legal immigrants crossed U.S. borders between 1965 and 1995 as during the 30 years before, and unprecedented numbers came from Asia and Latin America. Within five years of the bill’s passage, 27,859 immigrants entered the country from India alone.24 An amendment passed in 1976 extended the 20,000 per-country ceiling and the preference system to Western Hemisphere countries, and another passed in 1978 merged the separate hemispheric ceilings into one worldwide limit of 290,000 visas.25
Meanwhile, a new debate over immigration policy was fueled by heightened job competition amid stagflation and recession in the late 1970s; the Mariel boatlift crisis of 1980, in which some 124,000 undocumented Cuban migrants entered the United States in 25 overcrowded vessels;26 and a continuing influx of Haitians. In 1981, the Select Commission on Immigration and Refugee Policy identified undocumented (illegal) immigration as the country’s primary immigration problem.27
The 1986 Immigration Reform and Control Act (IRCA) was primarily designed to reverse the sharp increase in the number of immigrants entering the country illegally. It was the product of deep congressional divisions, however, and it effectively expanded both legal and illegal immigration.
On the one hand, the law established penalties for employers who “knowingly” hired, recruited, or referred aliens who were not authorized to work in the United States. It also strengthened U.S. border controls, through improved technology and a 50 percent increase in Border Patrol staff. On the other hand, IRCA established a Visa Waiver Pilot Program that enabled the admission of certain nonimmigrant foreigners without visas for educational, business, and other purposes (a system now notorious for allowing the entry of some of the 9/11 hijackers), and authorized a new classification for seasonal agricultural workers (SAW). In a provision that continues to generate controversy, the law also legalized all aliens who had resided in the United States unlawfully since before January 1, 1982.
Controlling America’s Borders: The Ongoing Debate
The restrictive provisions of the 1986 law proved to be largely ineffective, and with the exception of a few recent enforcement measures, they remain so today. Despite a series of hikes in the number of Border Patrol agents and funding for improved technology, the border has remained largely permeable. Moreover, many of these border control efforts have encouraged immigrants to seek alternative points of entry that are more dangerous for them to cross and harder for the government to police.28 Since 1986 the government has passed a host of laws to stem illegal immigration—from the so-called Kennebunkport Order in the early 1990s, which authorized the Coast Guard to forcibly repatriate more than 20,000 Haitians,29 to the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which streamlined the deportation process and devoted still more resources to securing the border. Yet the number of illegal immigrants in the United States has continued to increase, from an estimated 3 million in 1986 to some 12 million in 2006. Many perceive this population to be a source of competition for native-born workers, an affront to the rule of law, and—since 9/11—a threat to national security, but policymakers struggle to agree on a remedy. It remains unclear how the country can control its borders without damaging the economy, violating the rights of legal immigrants, and fundamentally contradicting the nation’s historical commitment to offering American freedoms and opportunity to newcomers. As the U.S. government continues to grapple with this vexing dilemma, the heightened attention is leaving a sizable, hardworking part of the population increasingly vulnerable.
The congressional debate over two immigration bills—one supported by the House and another backed by the Senate and President George W. Bush—during the run-up to the 2006 midterm elections hinged on many of the same issues addressed 20 years earlier: border security and workplace enforcement, a temporary-worker program, and legalization of undocumented immigrants (usually characterized by its opponents as amnesty).30
In keeping with the consistent emphasis on border security, the only piece of immigration legislation that was passed in 2006 was the Secure Fence Act, which called for two layers of new fencing along 700 miles of the 2,000-mile U.S.-Mexico border. The fence has generated considerable controversy. For many Americans it clashes with the country’s history of open doors and freedom-based ideals; for others it represents a necessary precaution against external threats.31 Generally speaking, however, lawmakers of every political stripe tend to agree on the need to protect national security, and those who appear to differ expose themselves to criticism. Therefore, the number of Border Patrol agents on the U.S.-Mexican border has tripled over the last two decades; since 9/11 it has increased by roughly 15 percent. In 2005, Congress granted the secretary of the Homeland Security Department the authority to waive any law that stood in the way of border security.32 In the same year, the department launched the Secure Border Initiative, a “comprehensive, multi-year plan to secure America’s borders and reduce illegal migration” through increased numbers of Border Patrol agents and procedural and technological improvements.33
Workplace enforcement, like border security, is supported across much of the political spectrum. The 2006 House and Senate bills both would have required employers to verify their workers’ legal status through a national database of Social Security or work-identification numbers, and would have imposed criminal penalties on those who hire unauthorized workers. Still, attempts to control illegal immigration by monitoring the workplace remain highly sensitive. Unauthorized immigrants are estimated to comprise nearly 5 percent of the nation’s workforce, and perhaps as much as 70 percent of the seasonal agricultural workforce;34 both parties hesitate to upset the economy by attempting to send them home.35
Only about 66,000 unskilled immigrants are permitted to enter the country legally to seek work each year. Businesses seeking unskilled labor say that native-born Americans will not take such jobs and that 66,000 is not enough. They also object to being tasked with worker verification, saying it amounts to a law enforcement function.36 On the other hand, the workplace is the most likely place to identify those who enter the country legally but overstay their visas. That group makes up an estimated 40 percent of the country’s 12 million illegal immigrants.37
Under current law, companies are required to review two forms of government-issued identification to verify employees’ legality. Employers are likely to take immigrant workers at their word, however, because the alternative is to hire American-born workers who would demand higher pay. The government, for its part, has been inclined to look the other way because such wage hikes would raise the cost of living for everyone. Workplace enforcement has thus been infrequent at best, and declined further in the aftermath of 9/11 as the government diverted its resources to fighting terrorism. The Washington Post reported that the government scaled back workplace enforcement operations by 95 percent between 1999 and 2003, while the number of employers prosecuted each year for unlawfully hiring immigrants dropped from 182 to four.38
U.S. policymakers and especially the Republican Party have been sharply divided on whether immigration reform should include a guest-worker program and a path toward citizenship for illegal aliens. The 2006 House and Senate bills largely reflected the two approaches to this issue. The House version represented the “enforcement first” camp, which supports—in addition to the border fence and increased penalties for employers of illegal immigrants—making it a crime to assist illegal immigrants and raising illegal immigration from a civil violation to a felony. An “earned citizenship” approach, supported by the 2006 Senate bill, would have instituted a guest-worker program and a path to citizenship for many illegal immigrants already living in the country.
Various proposed guest-worker programs would allow businesses to give temporary work visas to resident illegal immigrants or new migrants if the employers can document that American workers will not take the jobs they are seeking to fill. The president and many Democrats insist that such a program would provide a legal way to fill these jobs while encouraging the undocumented to “come out of the shadows” and helping to win Mexico’s cooperation in securing the southern border.39Current temporary-worker programs admit only 250,000 to 300,000 individuals annually, with most slots reserved for highly skilled, specialized workers.40
Opponents argue that guest-worker programs would only aggravate the current problem of immigrants taking jobs from low-skilled American workers and depressing wages. Labor economist George Borjas has lent support to this point of view. Backing his arguments is a recent report from the Center for Immigration Studies, which asserts that only 9 percent of the net increase in jobs for adults between March 2000 and March 2005 went to people born in the United States.41 Moreover, immigrants comprise more than 40 percent of adults in the labor force without high school diplomas, as opposed to 15 percent of the total adult workforce.42 However, other economists have conducted studies showing that native-born Americans with less education are not significantly harmed by immigration. David Card, an influential member of this camp, argues that the price paid by native workers is small and that, overall, immigrants stimulate the economy by diversifying the skill set within it.43
Advocates of the enforcement-first approach see any plan that offers guest-worker status or eventual citizenship to illegal immigrants as tantamount to amnesty. They point specifically to IRCA’s legalization of between two and three million undocumented workers in 1986, arguing that any repetition of that move would only perpetuate the problem.
The guest-worker program and the possibility of a path to citizenship for illegal immigrants again proved to be the most controversial provisions when a revised immigration reform bill reached the floor of Congress, now controlled by the Democrats, in 2007. The 2007 bill would have allowed the legalization of illegal immigrants who paid a series of significant fines and fulfilled other requirements. It also marked a departure from the 2006 debate with the introduction of a new points-based system that could fundamentally shift the criteria of immigration from family relations to job skills, education, and English-language proficiency. President Bush and some senators saw the proposed system as an effective means of tying immigration policy to long-term economic growth, but others argued that points-based systems, such as those employed by Canada and the United Kingdom, contradict the United States’ long-standing tradition of social mobility and undermine its very identity as a land of opportunity.
In the aftermath of the latest legislation’s defeat in June 2007, the administration pledged to enhance its enforcement of existing sanctions on illegal workers and their employers, though the funding that would have facilitated greater diligence in this regard was lost with the collapse of the bill. In one aspect of this enforcement effort, the Social Security Administration collaborated with the Homeland Security Department to warn employers that discrepancies in social security records would oblige them to fire the workers in question or face prosecution. By the end of the summer, a federal judge had ordered a halt to this program, based on a lawsuit citing a December report by the Social Security Administration inspector general that said 17.8 million of the agency’s 435 million records contained errors that could result in doubts about a worker’s legal status.44 Meanwhile, efforts are multiplying in localities across the country to enact rules restricting access to public services for residents without documentation, and the courts are being asked to rule on whether it is the proper function of these governments to enforce immigration laws.45
The debate over how to control American borders has been tied tightly to national security interests since 9/11 and to economic concerns for a good deal longer. All of the current discourse over illegal immigration, however, appears to underestimate the extent to which today’s immigrants—both legal and illegal—comprise contemporary American society and contribute to the country’s strength.
Assimilating American Immigrants
In a July 2006 interview, Representative Tom Tancredo, a Colorado Republican, presidential hopeful, and one of the strongest advocates for an enforcement-first approach, decried the rise of multiculturalism in America and declared, “We’re losing sight of who we are.”46
Tancredo takes a harder line than most, but he is not alone in believing that immigration threatens American culture and identity. Never before in the history of the United States has immigration been so dominated by a single region and, indeed, by a single country. Some 58 percent of all immigrants who arrived between 2000 and 2005 were from Latin America.47 An estimated 42 million ethnic Latinos live in America today, comprising about 14 percent of the U.S. population, and more than a third are younger than 18. The vast majority of U.S. Latinos are of Mexican origin or descent.48 As of late 2005, 10.8 million Mexican immigrants were living in the United States, comprising 31 percent of the immigrant population and almost six times the combined total for China, Taiwan, and Hong Kong. Moreover, Mexicans account for a clear majority of the illegal immigrant population.
These unprecedented levels, coupled with the fact that Latino immigrants have tended to concentrate regionally (Mexicans in Southern California and Texas and Cubans in Miami, for instance), have helped spark a national debate over whether today’s immigrants are assimilating into American culture as well as the national economy.
Such concerns are fueled, to some extent, by the wage gap between Mexicans and natives and between Mexicans and other immigrant groups. At $22,300, the average annual income of Mexican immigrants is currently half that of native-born workers.49 While immigrants are slightly more likely than natives to have an advanced degree, in 2005 about 30 percent of all immigrants aged 18 and over in the labor force—a group in which Mexicans comprise a clear majority—did not have high school diplomas.50 Poverty rates among Mexicans are therefore higher, and while noncitizen, first-generation immigrants do not qualify for public assistance, their U.S.-born children do. Immigrants’ use of public services has been a long-standing source of concern for nativists seeking more restrictive immigration policies. California’s Proposition 187, although struck down soon after its easy passage in a 1994 referendum, made “illegal immigrants ineligible for public social services, public health care services (unless emergency under federal law), and public school education at elementary, secondary, and post secondary levels.”51 Federal welfare reform legislation that passed in 1996 authorized states to prevent legal immigrants who arrived after the law’s date of enactment from receiving “means tested” public benefits—such as food stamps, Supplemental Security Income, Temporary Assistance for Needy Families, Medicaid, and the State Children’s Health Insurance Program—for at least five years. Furthermore, those immigrants who enter under the family unification provision of immigration law are often barred from receiving means-tested benefits because the sponsor’s income is transferred to the immigrant until he or she establishes a work history of roughly 10 years, which often makes the immigrant’s income too high to qualify.52
Refugees are eligible for more public benefits after arriving than other immigrants and are much more likely to use them. Studies by the Urban Institute and the Migration Policy Institute have otherwise found that immigrants’ use of most public benefits has declined significantly since the 1996 reforms and is substantially lower than that of U.S. citizens.53
Public education remains the exception to this broader trend and is central to the issue of assimilation. The children of immigrants now account for 19.2 percent of the total school-age population in the United States,54 and about a third of these children have parents who lack high school educations.55 In California, 55 percent of all students are the children of immigrants, and in Texas the figure is 25 percent.56 Especially in these states with the largest immigrant populations, the debate over assimilation has played out in battles between advocates of bilingual education and those who support “English immersion” programs. A successful 1998 California ballot initiative, Proposition 227, marked one of the first significant victories for the latter. The law requires all California public schools to teach “limited English proficient” (LEP) students in special classes that are conducted almost entirely in English, eliminating bilingual classes in most cases and shortening the amount of time LEP students spend in special classes before moving into regular classes.57
Public funding for immigrant education and English-language learning is complicated by the fact that 75 percent of the country’s immigrant population is concentrated in a handful of states: California, New York, Texas, Florida, Illinois, and New Jersey.58 At the same time, recent growth rates have been most dramatic in states with little prior experience in educating immigrant children, such as Kansas, Georgia, Oregon, and North Carolina.59 The No Child Left Behind (NCLB) Act, an education reform initiative proposed by the Bush administration and passed with broad bipartisan support in 2001, replaced the Bilingual Education Act (BEA), or Title VII, with the English Language Acquisition Act. The change amounted to a major overhaul of the priorities and kinds of language programs supported by federal funds. Since 1968, the BEA had reserved a significant share of funding for language programs that employed students’ native languages in instruction, fostering the autonomous development of bilingual language programs in many districts; a 1974 Supreme Court ruling went even further, requiring schools to provide special instruction to non-English-speaking students.60 The new NCLB-linked legislation focuses exclusively on English-language skills and makes English-language proficiency a critical part of the state learning standards on which NCLB as a whole is centered. The former federal Office of Bilingual Education and Minority Languages Affairs (OBEMLA) is now the Office of English Language Acquisition, Language Enhancement, and Academic Achievement for Limited-English-Proficient Students. Rather than being administered by the federal government through a competitive grant system, funding is now distributed through formulaic grants by the states based on the number of English-language learners and immigrant students in each district, giving state education agencies much greater control over funding decisions.61
The Emergency Immigrant Education Program (EIEP) was established in 1984 to help state educational agencies serve the influx of immigrant children in their schools. As of 1999, the Department of Education identified the purpose of the program as the provision of “high-quality instruction to immigrant children and youth…to help [them] make the transition into American society and meet the same challenging State performance standards expected of all.”62 NCLB changed the criterion for EIEP funding from the overall number of immigrants to high growth in the immigrant population. As a result, the number of immigrants who qualified in California fell from 206,000 to 133,000 the year after NCLB was passed, while funding per student fell from $153 to $67.63
Public schools have not been the only battleground in the struggle over language in America. An “English Only” movement has promoted legislation that would restrict or prohibit the use of languages other than English by government agencies and, in some cases, by private businesses. This movement gained momentum in the early 1980s, and 16 states now have such laws. Critics of English-only laws, such as the American Civil Liberties Union, argue that they violate the Equal Protection Clause of the Fourteenth Amendment and could result in non-English speakers being deprived of critical services.64 Advocates of these laws believe that knowledge of the English language is essential to productive membership in American society, and say the laws will ensure that immigrants learn it. They also argue that English is an important unifier of the country’s diverse population.
In May 2006, the U.S. Senate voted 63 to 34 vote to designate English as the national language. While the measure stopped short of the “official language” status sought by English-only advocates, it did say that no one has “a right, entitlement or claim to have the government of the United States or any of its officials or representatives act, communicate, perform or provide services or provide materials in any language other than English.”65
Meanwhile, evidence suggests that many immigrants have the desire but lack the means to learn English. A study by the New York Immigration Coalition found that, as of 2002, one million immigrants in New York State were in need of English classes but there were seats for only 50,000.66 According to the Arizona Department of Education in 2004, 5,009 adults were on waiting lists for English classes and 5,686 more were turned away.67
Latino immigrants’ frequent trips home to their native countries and adherence to the Spanish language are cited as evidence that they are diverging from the assimilationist path of previous immigrant groups. Some say Latinos have been slow to assimilate because native-born Americans discriminate against them, while others argue that Latino immigrants and their children are simply less committed to assimilation than their European predecessors.
However, studies indicate that today’s immigrants, including Spanish speakers, are no exception to the generational pattern. Typically, first-generation immigrants make some progress in learning the new language, but speak mostly in their native tongue. The second generation is typically bilingual, and the third generation speaks English exclusively. A study conducted by a team at the State University of New York at Albany found that 72 percent of third-or-later-generation Latino students spoke English exclusively.68 One study notes some evidence of a decline in education among the grandchildren of Mexican immigrants specifically. But other studies show that Latino immigrants and their children, including Mexicans, have done much to close the educational and economic gaps between themselves and native-born whites, and that their progress is just as rapid as that of earlier generations of immigrants.69 Importantly, one study notes that generational assimilation today may be less visible than it was in the past. While the earlier wave of European immigration largely came to a halt with the restrictionist policies of the 1920s, today’s immigrant population is in a constant state of replenishment, so that “each generation is a mix of cohorts and each cohort has a mix of generations.”70
Intermarriage rates, often cited as a measurement of assimilation, may be the wild card among current trends. While interracial and interethnic marriage rates began to rise in the 1970s and continued to grow through the 1980s, a 2007 study published in the American Sociological Review found that intermarriage rates began to decline in the 1990s, particularly between whites and Asians or Latinos; the latter two immigrant groups have traditionally had the highest intermarriage rates with whites. The study maintains that the growth in the immigrant population in the 1990s, especially among these two groups, has led “more native-born Asian Americans and Latinos to marry their foreign-born counterparts.”71 Interracial marriages involving African Americans significantly increased during the 1990s, although the rates remained far behind those of other minorities.72
It is worth noting that non-Latino immigrant groups consistently outperform natives in each generation. They arrive in the United States with a lower high-school drop out rate than that of natives, and these rates fall farther below the native average in each subsequent generation.73 Highly skilled immigrants are increasingly visible in medicine, computer science, and engineering, and they make key contributions to the country’s knowledge-driven economy. Immigrants as a whole have comprised 46 percent of the growth in the U.S. labor force since 2000,74 and refugees and immigrants, both legal and undocumented, are estimated to contribute a net surplus of nearly $30 billion to the U.S. economy each year.75
Moreover, the rapid pace at which immigrants are opening new businesses has made immigrant communities an essential source of neighborhood and city revitalization. A February 2007 study by the Center for an Urban Future found that the number of businesses opened and the job growth experienced in immigrant-dominated neighborhoods from 1994 to 2004 in the New York City region far exceeded the corresponding figures the city as a whole.76 Census results dating as far back as 1880 reveal that immigrants are more likely to be self-employed than native-born residents.77 The 2007 study showed that, in New York, the number of self-employed, foreign-born individuals grew by 53 percent between 1990 and 2000, while the self-employed number for the native-born decreased by 7 percent. More generally, the study found that more businesses are being started by foreign-born than native-born entrepreneurs in major cities nationwide.78 Beyond providing essential services, immigrants are thus driving growth in a range of sectors including restaurants and food, real estate, and health care, while also helping to boost tax revenues and create jobs.
Muslim Immigration Since 9/11
The 9/11 attacks greatly intensified Americans’ awareness of the link between immigration and national security, and it is not surprising that immigration policy has since been employed in the larger effort to prevent further attacks. At the same time, it is important to recognize the extent to which the national security issue has also been used to galvanize bipartisan support for broader and otherwise highly contentious immigration legislation. In an effort to revive the 2007 revised immigration reform bill after it was shelved yet again by a clearly divided Senate, Commerce Secretary Carlos Gutierrez said, “This is a national security bill. We are fixing a national security problem.”79
Whether the government’s new security-related immigration measures are essential or effective has been a matter of intense national debate, as have the measures’ implications for the rights of immigrants. It is indisputable that most Muslims in the United States are immigrants, many fairly recent, and that they have come under heightened scrutiny from law enforcement agencies and others. Anxiety, hostility, and bias regarding Arab and Muslim immigrants is not inconsiderable in the population at large. A 2006 Gallup survey found that one-third of Americans believe Muslim Americans sympathize with al-Qaeda, and 39 percent think Muslims should be required to carry a special identification card. The survey also found that only 49 percent of Americans consider Muslim Americans to be loyal to the United States.80
In the immediate aftermath of the 9/11 attacks, Attorney General John Ashcroft authorized the detention of foreign citizens indefinitely and without congressional or judicial oversight “in the event of an emergency or other extraordinary circumstance.” Soon thereafter the Immigration and Naturalization Service (INS) was empowered to override an immigration judge’s order allowing an individual’s release.81 By early November 2001, some 1,147 primarily Arab and Muslim noncitizens had been arrested, 60 percent of them on immigration charges.82 Many were held for long periods and in solitary confinement before they were charged. The Justice Department conducted closed immigration proceedings for many detainees and would not disclose their identities or whereabouts.
A task force report published in August 2007 by the Chicago Council on Global Affairs notes that since 9/11 “more than 80,000 Arab and Muslim nonnational residents of the U.S. have been required to undergo fingerprinting and registration, 8,000 have been identified for questioning, approximately 5,000 have been arrested or detained, and at least 400 have been criminally charged in terrorism-related investigations,” although the report also says these estimates are considered low by many in the Muslim American community.83 The inspector general of the Justice Department has reported that between 2001 and 2005, many cases that had been attributed to antiterrorism efforts in fact involved crimes such as drug trafficking or marriage fraud.84
The 9/11 attacks have not fundamentally changed who may enter the United States, nor have they fundamentally altered U.S. immigration law. They have, however, made the visa process much more security conscious and led to new, mandatory procedures for applicants from Muslim-majority countries.85 The State Department slowed the process for granting visas to men aged 16 to 45 from specific Arab and Muslim countries by roughly 20 days.86 Heightened security procedures in the first two years after 9/11 caused a greater number of visa applications to be rejected. The Department of Agriculture in February 2002 abruptly discontinued its sponsorship of the J-1 visa waiver program, which had allowed citizens of certain countries to come to the United States for limited tourism or business stays without obtaining a visa. The number of Muslims granted permission to live in the United States through the Diversity Immigrant Visa Program—a congressionally mandated program that allocates a certain number of resident visas to eligible persons from countries with low immigration rates—decreased by almost 14 percent by April 2002 as a result of prolonged security checks. The issuance of student visas became particularly complicated with the establishment of the Student and Exchange Visitor Information System in 2003. This system requires colleges and universities to provide consular officers overseas with electronic notification of all nonimmigrant visa applicants’ acceptance as students.
Because some of the 9/11 terrorists were in the United States on expired visas, the government is also paying closer attention to visa overstays. In November 2001, the INS began an initiative in San Diego to arrest students who had violated the terms of their student visas. The program was geared particularly toward nationals of Iran, Iraq, Sudan, Pakistan, Libya, Saudi Arabia, Afghanistan, and Yemen.87 The Alien Absconder Initiative—launched at the end of 2001 by the INS and the Justice Department and now operated by the Homeland Security Department—had by 2003 provided local law enforcement agencies with the names of 314,000 immigrants with orders for deportation or removal; the initiative allows law enforcement to enter information about civil immigration violations into the National Crime Information Center database. Thousands of men from “countries in which there has been al-Qaeda terrorist presence or activity” were designated as “priority absconders” in January 2002.88
Implemented on the one-year anniversary of the attacks, the U.S. National Security Entry-Exit Registration System requires male nationals of certain countries—Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Jordan, Kuwait, Libya, Lebanon, Morocco, North Korea, Oman, Pakistan, Qatar, Somalia, Saudi Arabia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen—to register with the Bureau of Citizenship and Immigration Services at specified points of entry and departure. Amnesty International reports that by the end of the program’s first year, 177,260 men and boys were registered and 13,799 men were placed in deportation proceedings, but not one was charged with “terrorism.”89 Re-registration was required annually until December 2003. In effect, the program restricts the airports that nationals of these countries can fly into and out of, and requires that after receiving their boarding passes, participants present themselves to the U.S. Customs and Border Protection office. Another measure, the US VISIT program, requires that visitors from almost every country be fingerprinted and photographed each time they leave or return to the United States.
All of these measures have been controversial. A study by the Migration Policy Institute argues that by basing such requirements on national origin rather than intelligence-driven criteria, the government is violating the Fifth Amendment guarantee of equal protection.90
There is no doubt that these policies should be scrutinized, both to assess their utility in combating terrorism and for their civil liberties implications. The reality, however, is that national origin has always played some role in U.S. immigration policy, and that the United States has often expected its immigration policies to serve its perceived national security needs. During times of national security crisis, this formula has always affected the rights and treatment of various immigrant groups to some extent.
A survey released in May 2007 by the Pew Research Center for the People and the Press found that a majority of Muslim Americans—53 percent—believe it has become more difficult to be a Muslim in the United States since the 9/11 attacks, and that “most also believe the government ‘singles out’ Muslims for increased surveillance and monitoring.”91 However, the Pew survey more generally found that Muslim Americans are highly assimilated into American society, especially as reflected in income and education levels. In fact, the average salary of immigrants from Muslim countries is roughly 20 percent higher than that of other U.S. residents, and a larger percentage of Muslims have graduate degrees.92 Moreover, according to the Pew survey findings, fully 71 percent of Muslim Americans feel that “most people who want to get ahead in the U.S. can make it if they are willing to work hard.”93
While the number of anti-Islamic hate crimes spiked in 2001 to a high of 481 “incidents” as recorded by the U.S. Federal Bureau of Investigation, the number had dropped significantly to 128 by 2005. To help put these figures in context, it may be worth noting that the number of reported incidents against Jews was 1,043 in 2001 and 848 in 2005.94
After a sharp post-9/11 decline in the number of immigrants from Muslim countries (the figure dropped by more than a third in 2003),95 nearly 96,000 people from Muslim countries became legal permanent U.S. residents in 2005—more than in any single year in the previous two decades.96 Some 40,000 of these people had arrived in the country the same year. Notwithstanding clear reservations about U.S. policy in the Middle East and some frustration with America’s new security measures, large numbers of Muslims continue to come seeking political freedom and economic opportunity, just as other immigrants have done since the country’s founding.
Since 1965, the United States has had a relatively liberal immigration policy that prioritizes family reunification and permanently resettles a greater number of refugees each year than any other country in the world.97 Unlike in a number of European countries, where the right to family reunification was first implemented only in 2005 in compliance with a new European Union directive, a large number of refugees and an estimated 60 percent of all legal immigrants reunite with family members in the United States.98 In 2006, for example, 63 percent of the grants of lawful permanent residence in the United States were based on family relations with a U.S. citizen or permanent legal resident.99
Furthermore, the REAL ID Act of 2005 eliminated the annual cap of 10,000 asylum seekers permitted to change status to legal permanent residence in the United States, while a number of European countries have tightened their asylum systems in the last few years. In 2003, right-wing parties and candidates campaigned on anti-asylum platforms in Denmark, Austria, Switzerland, and the United Kingdom. Austria may have implemented the most stringent rules, deporting most asylum seekers whose cases were being appealed and refusing to accept asylum applications at land borders.100 Sweden remains an exception, and is a highly sought destination for refugees; it took in 9,000 Iraqis in 2006—almost half of the entire 22,000 seeking asylum in the industrialized world.
The different approaches to the asylum issue in Europe and the United States reflect a more general divergence in the roles immigrants play and the sentiments they arouse in each society. Despite the prevalence of immigrant-dominated neighborhoods, ethnic enclaves, and clear socioeconomic gaps in the United States, American immigrants are largely assimilated into the national culture, and especially the national economy. This is not the case in many European countries. The socioeconomic differences between immigrants and natives are often more profound in Europe, with immigrants experiencing far higher levels of unemployment than their counterparts in the United States. These conditions generate higher levels of resentment among native-born residents, politicians, and the immigrants themselves.101
Still, in the aftermath of 9/11 and a series of subsequent terrorist attacks and plots in the United Kingdom, Germany, and Spain, the United States and Europe are confronting many of the same challenges. The immigration policies of the European Union and its member states, like those of the United States, are being reshaped around the need to provide secure borders, prevent future attacks, maintain the rule of law, attract skilled labor, ensure economic growth, and preserve national cultures and identities. Each country has weighed these often conflicting priorities for itself. For example, recent changes to immigration law in Germany, where significant terrorist plots have been detected, established vague criteria for deportation and require that all immigrants undergo a check by the country’s security service before being granted citizenship. Recruitment of foreign workers has been halted altogether. The United Kingdom, on the other hand, launched a revamped highly-skilled-migrants program in 2003.
In the United States, many of the fundamental dilemmas that have confronted lawmakers for the last two years have also been major obstacles in the past, and they are likely to persist. Questions of amnesty, the benefits and liabilities of guest-worker programs, points systems versus family unity, and a legitimate path to citizenship will continue to incite passions and divide Americans. While advocates of the latest immigration reform proposal voice serious concerns about some of its content, they recognize the extent to which immigration legislation has always been and will continue to be a matter of political compromise. And even with the right legislation, enforcement is uncertain. Nevertheless, a recent study by the Pew Research Center for the People and the Press shows that most Americans—a full 63 percent, with nearly identical portions of Republicans, Democrats, and independents—support providing a way for current illegal residents to gain legal citizenship under certain conditions, specifically by passing background checks, paying fines, and holding jobs.102
The U.S. government may not be obligated by any international treaty to make this happen, but a failure to do so would contradict the inclination of almost two-thirds of Americans across the political spectrum and clash with the country’s history of thriving on diversity and the American promise of opportunity. The reality is that most of today’s illegal immigrants just want to provide better opportunities for their families, and that as they do so, they are also enriching American culture and helping to maintain the country’s economic strength. The government owes it to the country’s significant immigrant population—and to the American democratic tradition—to push through a revised immigration policy that acknowledges this reality and makes the immigrant contribution legitimate. In fact, immigration reform provides a rare chance to advance both national security objectives and the freedoms enjoyed by many Americans. Our elected national leaders should seize the opportunity.
1 Michael Sandler, “Immigration Bill Appears Doomed After Cloture Vote Fails in Senate,” Congressional Quarterly, June 28, 20
2 Associated Press, “U.S. Admits More Iraqi Refugees,” Los Angeles Times, September 5, 2007, http://www.latimes.com/news/nationworld/world/la-fg-refugees5sep05,1,283....
3 North Korean Human Rights Act of 2004, Public Law 108-333, enacted October 18, 2004. On March 1, 2007, the State Department’s special envoy for North Korean human rights, Jay Lefkowitz, testified to a congressional committee that only 30 such refugees from North Korea had been admitted to the United States at that point. House Committee on Foreign Affairs, Subcommittee on Asia, the Pacific, and the Global Environment, North Korean Human Rights: An Update