A Third Way on Immigration

The debate over U.S. immigration policy has been rebooted. There now appears to be bipartisan support for what’s generally called comprehensive reform. But a stumbling block remains: What to do about the estimated 11 million illegal immigrants among us. Deportation? Complete amnesty? A “path” to citizenship?

There is a way forward, and it can be best summarized by “none of the above.” It lies, instead, between these choices. It’s legalization without citizenship.

With as few conditions and as broadly as possible, we should offer undocumented immigrants status as “permanent noncitizen residents.” Unlike current green card holders, these individuals would never have the option of naturalizing and becoming U.S. citizens. The only exception would be for minors who arrived here with their parents. Provided they have not committed any serious crimes, such individuals should be immediately eligible for citizenship.

Simplicity is one distinct virtue of this approach. The prospect of mass deportations (or the hope of mass self-deportations) is both unpalatable and impractical. And establishing and implementing a complicated pathway to citizenship — or even to a lesser legal status — requires more faith than most Americans have in our government’s ability to administer programs effectively and fairly.

For example, one proposal has called for the undocumented to return to their native countries for some period of time and then apply for a visa and “get in line” to return to the U.S. legally. But how would the return trip be monitored? And after that, how effectively would the visa quotas and readmission processes be administered? What would happen when an aging grandmother is returned to a “home” she left 30 years ago, or when illegal parents and their U.S.-born teenagers find themselves on different sides of the divide?

Most Americans understand that undocumented immigrants came here primarily because there were jobs waiting for them, and that American employers and consumers have benefited from their labor. They find it difficult to avoid the conclusion that all Americans are complicit in this problem.

Yet in an era of increasing inequality, others insist they do not see themselves benefiting from the presence of illegals, or of unskilled immigrants generally. And while economic studies consistently demonstrate that there is substantially less competition with immigrants for jobs than many believe, opponents of immigration, especially of illegal immigration, are not wrong when they point to negative impacts on the quality of life in their neighborhoods and to the fiscal burdens on their schools, hospitals and other social service providers.

My proposal — let’s call it “mere legalization” — speaks directly to these Americans. To be sure, it would not treat undocumented immigrants as criminals, as many insist. But neither would it treat them as mere victims. It would, as President Obama put it at American University in 2010, “demand responsibility from people living here illegally.” Those who chose as adults to take enormous risks and break our laws would be held accountable as responsible agents who must now pay a clear and enduring penalty. Looking forward, any such initiative would have to be accompanied by rigorous and comprehensive enforcement efforts not only along our borders and ports of entry but at work sites throughout the land.

Immigrant advocates and their supporters may reject mere legalization as too punitive, as “second-class citizenship.” Yet a quarter of a century after President Reagan’s amnesty went into effect in 1987, only two-fifths of those who became legal permanent residents through that program have gone on to become citizens. In light of restrictions imposed in the 1990s on noncitizen eligibility for various federal social welfare benefits, and subsequent programs to increase naturalization rates, such low numbers are particularly striking. Traditionally low levels of naturalization among eligible Mexican-origin immigrants are one factor at work here. Yet the point remains: The overwhelming majority of those covered by Reagan’s amnesty have settled for less than full citizenship. So what exactly are we arguing about?

To those who think that permanent noncitizen status is too lenient, I would respond that much would depend on the specifics of any such program, about which Congress would have enormous latitude to do as it sees fit. Even so, under current law and policy, green card holders are treated differently from citizens. Besides not being eligible for certain government jobs and social programs, they are not permitted to serve on state or federal juries. And of course noncitizens do not vote in federal and state elections, though they may in a few local jurisdictions.

When green card holders travel outside the U.S., especially for extended periods, they currently risk being not allowed to reenter. As UCLA law professor Hiroshi Motomura concludes, under prevailing rulings “the Constitution protects a returning lawful immigrant no more than a first-time entrant.”

More generally, noncitizen residents have no absolute assurance that they will be allowed to remain here. Failing to keep documents current or committing various crimes, including tax evasion and shoplifting, could result in their deportation. So the status of green card holders is highly contingent on their own behavior and on global politics. And unlike U.S. citizens, they cannot obtain visas for immediate family members outside the usual numerical quotas.

The underlying point is easily lost in the fog of rancorous debate over punishment or amnesty for the 11 million undocumented immigrants among us: The United States is a remarkably absorptive and open society, where newcomers and their children put down roots and develop ties very quickly. Indeed, our openness is so powerful that many among the undocumented have been noisily demanding relief. Why not allow ourselves to feel good about this and use it to propel us toward a middle path?

We don’t have to choose between granting citizenship to lawbreakers or imposing onerous penalties that we lack the will and means to implement and enforce. We can choose instead a practical, achievable policy that acknowledges Americans’ share of responsibility for this mess, but that also requires illegal immigrants to acknowledge theirs.

This piece originally appeared in the LA Times »