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The Open Society

America is pro-immigration after all.

To hear many immigration advocates tell it, Americans in the 1990s have slammed the golden door shut in a fit of xenophobic hysteria, bolting it against newcomers and expelling lots of law-abiding, long-resident aliens. Pro-immigrant academics have just published a book ominously titled Immigrants Out!:The New Nativism and the Anti-Immigrant Impulse in the United States. Ethnic advocacy groups like the Mexican American Legal Defense and Education Fund depict U.S. immigration policy as nativist and brutal. Amnesty International lumps an attack on American policies together with its critique of dictatorships. Hardly a week goes by without a genuinely heart-rending column by Anthony Lewis of The New York Times about the pending deportation of an immigrant who committed some minor crime in his youth.

Is this an accurate picture? Restrictionists have certainly beaten the drums lately. California voters passed Proposition 187 in 1994, and Pat Buchanan campaigned on a nativist platform in 1996. Some recent changes in immigration law do pose real threats to the procedural rights of foreign-born persons in the United States. What's more, federal immigration policies often seem self-contradictory. Congress has amnestied millions of illegal aliens, but it has also enlarged the Border Patrol to the point where it is now the government's largest domestic uniformed service. Congress regularly bashes the Immigration and Naturalization Service's incompetence, but it has doubled the agency's budget over the last four years.

The larger truth is that, even after the recent changes by Congress, American immigration policy is more generous, less racist, and (if we are careful) more politically sustainable than ever before. In 1996, the same year Congress made it easier to deport illegal aliens quickly and without court review and ended public benefits for many legal immigrants, it also admitted a cohort of 916,000 legal immigrants that was the largest and most ethnically diverse since 1914. This at a time when Europe accepts few immigrants and even fewer nonwhites (except refugees). Congress also refused to lower future quotas and facilitated the legalization of over 400,000 currently undocumented aliens. (By contrast, the United States admitted 300,000 immigrants in 19 65, the great bulk of them European or Canadian whites.)

How can this be when recent immigration trends have presented restrictionists with explosive political ammunition? The vast majority of today's legal immigrants are nonwhite and non-English-speaking; many come here with few job skills. Their presence makes bilingual education a major curricular and fiscal battleground and sharpens the affirmative action debate as newcomers who never suffered discrimination in the U.S. compete for preferences with the descendants of African Americans who were slaves. Immigration probably accounts for a significant share of the wider wage gap between high- and low-skill workers, especially blacks. The illegal alien population is already at record levels and grows by a quarter of a million each year. Federal indictments allege the falsification of over 13,000 naturalization exams. The General Accounting Office reports that taxpayers bear significant costs because U.S.-born children of illegal aliens are automatic citizens entitled to welfare benefits.

Yet, while Americans are frequently depicted as anti-immigrant, they actually hold nuanced views. Most people want to admit fewer immigrants, oppose illegal immigration, and don't want immigrants to receive bilingual education, affirmative action, or welfare. (As it happens, most immigrants hold similar views.) But, at the same time, Americans also treasure this country's ethnic diversity and immigrant tradition (which means honoring our own ancestors). Generally, Americans admire the immigrants they know personally.

In policy terms, this means that Americans will tolerate relatively high levels of immigration, and even increases in certain categories, as long as they are satisfied that newcomers pay their own way, don't get special breaks, and obey the law. And the policies enacted by the Congress in 1996 and 1997 are largely consistent with this. Congress has tempered the high annual quota of legal immigrants set in the liberal 1990 immigration law with strong measures to exclude illegal aliens, deport criminals, reduce aliens' access to welfare, and limit their procedural rights. This is a hard balance to strike, and there have been some harsh, unjust, and downright foolish excesses. But it's absurd to speak of "a new nativism."

The most extreme of the new laws is the AntiTerrorism and Effective Death Penalty Act of 1996 (AEDPA), which was passed in reaction to the Oklahoma City bombing. It mandated swift detention and removal of criminal and illegal aliens and secret deportation tribunals for those who could be linked, perhaps tenuously, to foreign terrorist groups. It also cut back traditional hardship waivers and appeal rights for certain categories of aliens and made many of these changes retroactive.

Yet even these often arbitrary provisions do not violate the basic American consensus on immigration. They were anti-criminal in both intent and implementation, not anti-immigrant. They did not aim at legal aliens other than convicted felons and suspected terrorists.

The same is true of welfare reform. Although it made legal aliens ineligible for public assistance, it also cut off millions of citizens. Many voters objected to benefits for aliens not out of anti-immigrant animus but because immigrants arrived under the explicit proviso that they have jobs or citizen sponsors. It is not nativist or anti-immigrant to believe that poor citizens have a stronger claim to shrinking resources than immigrants who have been admitted on the condition that they not become "public charges." Though some immigration advocates will never be satisfied with it, the fact is that the savings generated by this compromise helped preserve benefits for destitute U.S. citizens.

Even so, Congress and the Clinton administration recently restored many of the lost benefits to those who had been eligible in 1996 and to the newly disabled, and Clinton vows to restore Food Stamps to immigrant families with children. Meanwhile, high-immigration states have filled some of the remaining gap with their own funds. These changes refute those who claimed that immigrants are so politically friendless that the states, in a headlong "race to thebottom," would cut immigrants' benefits even more in an effort to force them out the door.

This brings us to the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Here, the critics of the new laws are on firmer ground. Passed by Congress and signed by President Clinton just before the November 1996 election, IIRIRA is the most radical reform of immigration law in decades—or perhaps ever. It thoroughly revamps the enforcement process and extends AEDPA in ways that even many INS officials find arbitrary, unfair, and unadministrable. For example, it requires the INS to exclude aliens at the border summarily and without judicial review if they seem to lack proper documentation. This gives the lowliest inspector broad discretion, and practically final say, over such life-and-death issues as whether an asylum claimant faces persecution back home. (Since the INS had recently instituted reforms in the asylum process, this hasty change may have been unnecessary as well as unwise.)

IIRIRA bars the INS from granting discretionary relief from deportation to many aliens, even for compelling humanitarian reasons, as the previous law permitted. It mandates detention of many removable aliens—perhaps forever if they come from a country, like Vietnam, that won't take them back. It equates the rights of aliens who entered illegally and live in the U.S. with those of aliens with no ties here. It limits the rights of illegal aliens to reenter legally. It further expands the category of "aggravated felon" aliens who can be deported summarily even if they have been long-term residents of the country. And it bars judicial review of INS administrative decisions to deport them. (The definition of "aggravated felony" was expanded to include even fare-beating on theNew York subway system).

To be sure, Congress was properly concerned about the endless procedural delays illegal aliens (or their lawyers) have employed to prolong their stays while they work and search for a way to remain permanently. But fair, accurate adjudication, back stopped by access to the federal courts for those at risk of deportation, is essential not only to aliens but also to the many Americans with strong family, employment, religious, and socialties to them. These high stakes, along with a long history of INS lawlessness and incompetence, make judicially protected due process all the more necessary.

Indeed, the Constitution demands it, providing that the "Great Writ" of habeas corpus may not be suspended except in national emergencies. Congress has also protected this right statutorily since 1789, and aliens have long used it to challenge the legality of detentions and deportations. Federal courts have so far interpreted IIRIRA narrowly to maintain judicial review for aliens in INS custody; otherwise, the law would be unconstitutional. (No relevant IIRIRA or AEDPA case has yet reached the Supreme Court.) Ironically, IIRIRA may increase courts' intrusion as they seek to control more of the frequent INS abuses that the new law encourages.

Still, IIRIRA's excesses should not obscure a fundamental fact about immigration politics: challenges to the high legal-immigration levels set in the 1990 law, such as a proposal by a national commission to reduce them by more than a third, have all failed. Tough on illegals and criminals, and arbitrary toward asylum-seekers and deportation hardship cases, IIRIRA's only serious effect on law-abiding immigrants was to raise sponsors' income requirements.

Perhaps the best evidence of the strength of today's pro-immigration consensus lies in Congress's treatment of illegals. Last fall, Congress granted a new amnesty, modeled on the 1986 provision that legalized some 2.7 million undocumented aliens (mostly Mexicans). The new law will protect almost half a million Central Americans who are now in legal limbo. (If President Clinton has his way, thousands of Haitians will soon join them.) It also grandfathered in still other deportable aliens under a no w-lapsed rule allowing them to gain permanent residence simply by paying a $1,000 fee and filing for their green cards in the United States.

Even convicted criminal aliens enjoy a perverse kind of protection. They manage to remain in the U.S. in large numbers—even when they are already under lock and key and thus should be easy to deport. Though aliens in general are apparently less crime-prone than citizens, the criminal alien population has nevertheless soared. In 1980, fewer than 1,000 federal inmates were foreign-born, 3.6 percent of the total. By 1996, that number had grown to almost 31,000 (29 percent of the total). The foreign-born population in state prisons has risen from 8,000 in 1980 (2.6 percent) to 77,000 (7.6 percent) in 1996. Nationwide, 300,000 or more deportable criminal aliens are in custody or under other legal supervision, at an estimated cost of $6 billion a year. Despite a high-priority INS effort, only 50,000 of these criminals—fewer than 15 percent of the total—were shipped home last year. The real scandal is that this is actually a major improvement in the INS's performance.

The pro-legal-immigration consensus that has produced these policies seems likely to endure even if the economy falters. In addition to the continuing strength of the lobbying coalition—made up of ethnic organizations, business, human rights groups, and big agriculture—that helped pass the 1990 law, perhaps the most important reason for this is the split within the Republican Party. In 1994, the Republicans displayed little interest in a balanced approach to immigration. That year, Pete Wilson, the Republican governor of California, had made Prop 187, which proposed to bar illegal aliens from public schools and other state-funded social services, a central motif of his successful reelection bid—and of what was then a prospective presidential run. Although Prop 187 was aimed at illegal aliens, not legal ones, its proponents' coded language (illegals "flooding" the state) helped blur the distinction. Prop 187 was supported not only by a majority of white, black, and Asian voters but also by many Latinos who resented having to compete with illegals for jobs, housing, and public services. Politicians in other states, emboldened by Prop 187's success, jumped on the bandwagon. On the Hill, Republican Representative Lamar Smith of Texas, the chairman of the House immigration subcommittee, held hearings on proposals to cut back on admissions and even end birthright citizenship for the U.S.-born children of illegal aliens.

In hindsight, however, the passage of Prop 187 was the high-water mark of restrictionism. Similar proposals got nowhere in other states. (Even in California, a federal court promptly blocked Prop 187's implementation, and it remains a dead letter.) Leading Republican politicians realized that, while it is good politics to attack undocumented and criminal aliens, it is politically costly to cut back on legal immigrants who enrich the economy or to deny them public benefits that their taxes support. Cheered on by The Wall Street Journal editorial page, Newt Gringrich, Dick Armey, Jack Kemp, William Bennett, William Kristol, and other party strategists argue that restrictionism violated party principles of free markets, economic growth, entrepreneurialism, and social optimism. In contrast to Wilson, Governor George W. Bush praises Texas's many immigrants as economic assets. The Republican chairman of the Senate immigration subcommittee, Spencer Abraham, is now seeking to increase the quota for high -skill immigrants, as is House subcommittee chairman Smith.

These Republicans understand that many legal immigrants will soon become voters and that their friends and relatives already are. They know that in Los Angeles, New York, and other big cities successful Republican politicians are appealing to first - and second-generation Asians and Hispanics. The social conservatism, upward mobility, and entrepreneurial spirit of many immigrants may make them natural Republican voters in the future. Many of the party's corporate allies, especially high-tech companies that depend on skilled foreign-born workers, are pressing Congress to admit more of them.

This feisty Republican debate augurs well for the high-immigration status quo. As the majority party in Congress, the Republican Party is the arena in which American ambivalences over immigration policy are being debated and politically resolved. The results have been good, bad, and sometimes ugly. But even liberal groups exhibit this ambivalence, as evidenced by the fight within the Sierra Club and labor unions over whether or not to support restriction. For advocates of moderate legal immigration expansion (I am one), the best way to sustain the pro-immigration consensus is not to idealize all immigrants as ethnic Horatio Algers but to attend to legitimate concerns about criminal and undocumented aliens, naturalization fraud, welfare abuse, bilingual education, affirmative action, and unfair competition for low-income domestic workers. We should decry the new laws' excesses while celebrating Americans' openness to self-supporting, law-abiding newcomers. And we should stop crying wolf about nativism.

Peter H. Schuck teaches law at Yale and is the author of, Citizens, Strangers, and In-Betweens: Essays on Immigration and Citizenship.

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