Immigration reform Obama style

by Jo Coghlan

America has more than 11 million (and as possibly as high as 20 million) people living inside its borders who do not have legal status. They account for 3.7% of America’s population. For American President Barrack Obama, immigration is the political elephant in the room particularly as he faces re-election next year. Recently Obama has significant speeches on immigration ‘reform’ but it is domestic politics that is driving his policies.

American immigration policy is largely family based. Residency is most commonly granted to the immediate family of existing citizens. For others, visas are granted based on skill levels, with highly skilled immigrants having a much easier time getting work permits than unskilled labourers. Skilled workers, usually people with a university education or professional training have a range of visa options. The most common visa, the H1B class, currently has a ceiling of 65,000 each year: a quota that is easily filled every year. For unskilled labourers, the U.S. grants just 5,000 work visas each year to people employed in fields other than agriculture. For many, the American dream means they live and work in America as undocumented ‘aliens’.

In Obama’s 2008 election manifesto ‘Blueprint for Change’ he argued immigration reform was necessary. He argued a failing immigration bureaucracy was forcing immigrants to wait years for processing and immigration raids followed by deportation was ineffective. Despite a sevenfold increase in undocumented migrant workers, immigration raids had netted less that 3,600 arrests (in 2006) and placed the entire burden of a failed immigration system onto immigrant families. Obama’s election promises included improving the immigration system and methods of processing, allowing undocumented workers the opportunity to become citizens, and the promotion of economic development with Mexico to decrease illegal immigration.

In August 2009 Obama announced an ambitious plan to overhaul the way America detained undocumented migrants and asylum seekers. His aim was to replace the patchwork of jails with a “truly civil detention system.” The plan aimed to establish more centralised authority over the system, which holds about 400,000 immigration detainees in any year. It would ensure direct oversight of detention centers that had come under fire for mistreatment of detainees and substandard, sometimes fatal, medical care.

While Obama shelved plans to build three detention centres and outlawed the sending of migrants and asylum seekers to the T. Don Hutto Residential Center (a former state prison in Texan that drew an American Civil Liberties Union lawsuit and scathing news coverage for putting young children behind razor wire), the Obama administration has embraced many of George W. Bush’s policies. This included expanding a program to verify worker immigration status, bolstering partnerships between federal immigration agents and local police departments, and rejecting a petition for legally binding rules on conditions in immigration detention.

The Obama administration did replace immigration raids at factories and farms with a quieter enforcement strategy: sending federal agents to scour companies' records for illegal immigrant workers. While the sweeps of the past commonly led to the deportation of such workers, the ‘silent raids’ as employers call the audits, usually result in the workers being fired, but in many cases they are not deported.

For anti-immigration campaigners, the most contentious of Obama’s reforms is the proposed immigration amnesty that would benefit those living in America without legal status. The amnesty forgives their “acts of illegal immigration” and implicitly forgives “related illegal acts such as driving and working with false documents”. The U.S. has granted amnesty to millions of undocumented immigrants through different amnesty and laws. However, before the first amnesty in 1986, amnesty was only given on a case-by-case basis. Amnesty was never given to a large group of individuals. The first (and supposedly only) amnesty in 1986 gave about 2.8 million immigrants the opportunity to change their status through the Immigration and Reform Control Act (IRCA).

More recently, in his 2010 State of the Union Address, Obama outlined the need to secure prosperity for all Americans, by out-innovating, out-educating, and out-building the rest of the world. To do this, said Obama, immigration plays an important role: “As we work to rebuild our economy, our ability to thrive depends, in part on restoring responsibility and accountability to the immigration system”. The chance however of the Obama administration passing any significant immigration reforms are low but this has not stopped the White House is taking high-visibility steps to show it is not abandoning a goal that has its roots in the 2008 campaign.

The political conditions in 2011 for introducing an immigration reform bill are worse than in the first two years of Obama’s presidency. Republicans, who won a majority in the House in the 2010 midterm election, have filled key committee posts with lawmakers who strictly oppose a pathway to legal status including any amnesty. To the dismay, particularly of Obama’s Hispanic supporters, the Obama administration did not make a push for comprehensive legislation during its first two years and instead focused on a stepped-up campaign of deportation, with nearly 400 000 immigrants deported in 2009-2010. Regardless, there are now more undocumented migrants in America than documented migrants. Republicans and Democrats have agreed for years on the need for sweeping changes in the federal immigration laws, until recently this included an amnesty.

In 2010 Democrats put forward legislation HR1751 (referred to as the ‘Dream Act’) that would have allowed immigrant students (whose parents were undocumented) to earn legal status through education or military service. The measure was meant to bolster support for Obama among Hispanic voters, an increasingly important voter group. Hispanic support proved crucial in saving some Democrat seats in the midst of the 2010 mid-term Republican sweep. The ‘Dream Act’ passed the House of Representatives but was blocked by Republicans in the Senate. The Republicans do not support an overhaul of immigration laws including amnesties and student-military earned citizenship. More recently immigration became a political issue. The 2010 Arizona stature, considered America’s toughest laws on undocumented migrants, has been the lightning rod.
In April 2010, Arizona Governor Jan Brewer signed Senate Bill 1070. It empowered police officers to detain people they reasonably suspected were in America without authorisation and to verify their status with federal officials. The laws made it a state crime not to carry immigration papers. In July 2010, federal court judge Susan R. Bolton blocked the law from coming into affect in a ruling that vindicated the Obama administration’s move to challenge Arizona’s law and to assert the primary authority of the federal government in immigration matters.
Under a torrent of criticism, the Arizona Legislature and Governor Brewer made changes to the law. It now bans the police from racial profiling though it still allows officers to inquire about immigration status of people they stop, detain or arrest in enforcing existing state law. The current Arizona laws now include civil violations of municipal codes as grounds to check papers. The federal ruling has seen political pressure shifted back to Obama. He needs to show that he can effectively enforce the boarder, and to move forward with an overhaul of the immigration laws, so that states will not seek to step in as Arizona did.
In May 2011, the Supreme Court upheld the Arizona state law that cracks down on employers of illegal immigrants. There was an immediate backlash from business that feared it would stunt economic recovery (caused by the global financial crisis and recent natural disasters) in sectors that rely on unskilled workers. The Supreme Court also found that Arizona could strip employers of a business license after a second violation of the Legal Arizona Workers Act, which bars hiring illegal workers. It also upheld the requirement that state employers use an electronic database system, E-Verify to check whether new employees are eligible to work in the U.S.

The Web-based E-Verify program allows businesses to check information provided by new employees against government databases. Three states, Arizona, Mississippi, and South Carolina, require all employers operating within their boundaries to use it. About a dozen other states require its use by employers with public contracts. In Utah, private employers with more than 15 workers are required to use it, but there is no penalty for failing to do so. Elsewhere, use is voluntary. Its introduction by the Bush government was opposed by an unusual coalition: the U.S. Chamber of Commerce, civil rights groups, labor unions and most Democrats. Business groups criticise the patchwork of state and local efforts regulating employers, while civil liberties groups worry about discrimination and racial profiling.

The broader impact of the five to three vote in the Supreme Court was that the Court rejected arguments that control over undocumented immigration is solely a federal responsibility and endorsed narrowly drawn state efforts to regulate the employment of those in the country without the correct visas. Eight other states, Colorado, Mississippi, Missouri, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia, have passed similar laws that would punish companies for hiring undocumented workers.

Illegal immigration is now a hot political issue. Obama is attempting to use the issue to wedge the Republican. In many respects Latinos should be conservative voters. They are overwhelmingly Catholic, socially conservative and entrepreneurial and many have strong reservations about abortion. For every undocumented migrant there's almost certainly a connection to a network of legal friends and relatives who vote and in the 2008 presidential election they voted overwhelmingly for Barack Obama. In some places he won 85% of the Latino vote and he wants to make sure he keeps as many of them as he can at the 2012 presidential election. Hispanic groups pressed Obama to halt workplace raids and to move forward with legislation opening legal pathways for undocumented immigrants and in particular their children.

The number of children born to at least one unauthorised-immigrant parent in 2009 was 350,000 and they made up 8% of all U.S. births. An analysis of the year of entry of unauthorised immigrants who became parents in 2009 indicates that 61% arrived in the U.S. before 2004, 30% arrived from 2004 to 2007, and 9% arrived from 2008 to 2010.

Arguing for an end to the policy of automatic citizenship for children born in the United States, which is rooted in the 14th Amendment of the Constitution, immigration hard-liners describe a wave of migrants stepping across the border in the advanced stages of pregnancy to have what are dismissively called “anchor babies.” Since the federal government decides who is to be deemed a citizen, lawmakers are considering instead a move to create two kinds of birth certificates in their states, one for the children of citizens and another for the children of illegal immigrants.

Constitutional lawyers argue states’ effort to restrict birth certificates are unconstitutional. “This is political theater, not a serious effort to create a legal test,” said Gabriel J. Chin, a law professor at the University of Arizona whose grandfather immigrated to the United States from China at a time when ethnic Chinese were excluded from the country. “It strikes me as unwise, un-American and unconstitutional.” The 14th Amendment, adopted in 1868, was a repudiation of the Supreme Court’s 1857 ruling, in Dred Scott v. Sandford, that people of African descent could never be American citizens. The amendment said citizenship applied to “all persons born or naturalised in the United States.” In 1898, the Supreme Court, in United States v. Wong Kim Ark, interpreted the citizenship provision as applying to a child born in the United States to a Chinese immigrant couple.

At least five states have agreed on a coordinated effort to cancel automatic American citizenship for children born in this country to unauthorised immigrant parents. Legislators from 14 American states have supported Arizona’s legislation aimed at ending the centuries-old practice of granting automatic citizenship to children born on U.S. soil. Opponents say that effort would be unconstitutional, arguing that the power to grant citizenship resides with the federal government, not with the states. Still, the chances of passing many of these measures appear better than at any time since 2006, when many states, frustrated with inaction in Washington, began proposing initiatives to curb illegal immigration.

In Australia as in America, immigration has shaped the nation’s growth and identity. It has been a source of social anxiety. Today, it is causing more than anxiety for the Democrat president. While his policies might be about wedging the Republicans, they more than likely are seeing the withering of the American dream from many who live there, documented and otherwise.

Dr Jo Coghlan is a lecturer in International Politics at the School of Social Sciences and International Studies at the University of New South Wales. Jo regularly writes on national and international public policy and rights. She is the author of Seeking Refuge: Asylum Seekers and Politics in a Globalising World (2005) and Western Media and Indonesian Politics: Gender, Religion and Democracy (2011).