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September 9, 2005
Jan C. Ting is professor of law at Temple University’s Beasley School of Law and an FPRI senior fellow. He was Assistant Commissioner at the Immigration and Naturalization Service, 1990-93. This FPRI E-Note is a condensed version of a forthcoming article in Orbis based on a lecture he gave on July 12, 2005, as part of FPRI’s “Summer School” Lecture Series.
This summer’s terror bombings in London have brought new attention to the Islamist threat. They also highlight the striking difference between U.S. and European views over the Islamist threat. In Europe, the greatest concern is the threat from its own resident immigrant population, particularly the young second and third generations, born in Europe. In the U.S., the greatest concern is not its own population, but the threat of those sent from abroad to attack America.
With acts of violence from Muslim citizens in Europe increasing in number and scale, many Europeans feel that the Islamist threat needs to be addressed at home, not in Iraq. But four years after 9/11, America’s national borders remain open and uncontrolled, even as the government spends billions of dollars and thousands of lives in Iraq and Afghanistan fighting terrorism, and even as it worries about protecting the nation’s ports, power supply, mass transit, and every other possible target against terrorist threats.
Every night, thousands of foreigners covertly enter the U.S. The official estimate is that the U.S. Border Patrol intercepts only 1 out of every 4 illegal border crossers. But current and former Border Patrol officers say that the ratio of those intercepted is much lower-probably more like 1:8 or 1:10. And because of the illegals’ remittances of U.S. dollars back to their home country, Mexico in particular has been supportive of its citizens who choose to enter the U.S. illegally.
Data on Border Patrol apprehensions for fiscal years 2000-05 show that apprehensions were highest in 2000, over 1.5 million, and then declined over the next three years, following 9/11. They rose again in 2004 and 2005, after President Bush announced his proposal for guest-worker amnesty in January 2004. Apprehensions along the southern border make up about 98 percent of total apprehensions. Most of those apprehended near the U.S.’s southern border are Mexicans, but there are also numerous “other than Mexicans,” or OTMs.
Research by Wayne Cornelius of the Center for Comparative Immigration Studies at the University of California, San Diego suggests that 92 percent of Mexicans seeking to enter the U.S. illegally eventually succeed. Meanwhile, the number of OTMs apprehended near the southern border has been clearly and dramatically increasing since 2000, from 28,598 that year to 65,814 in 2004 and 100,142 OTM in the first eight months of fiscal 2005 alone.
What happens following apprehension is very different for OTMs than for Mexicans, who can be immediately returned to Mexico in what is described as voluntary departure. (In the case of adult Mexicans, U.S. authorities simply take them back to the border.) In contrast, the Mexican government does not allow the U.S. to send OTMs back into Mexico. That may be understandable, but since these OTMs clearly entered the U.S. through Mexico, Washington might usefully and legitimately put some diplomatic pressure on Mexico City either to take the OTMs back or to prevent their entry into the U.S. in the first place.
An OTM has to be scheduled for a hearing with an immigration judge, who can issue a removal order. A scheduled immigration hearing may be weeks later, and even if a removal order is issued, the alien has the right to appeal to the Board of Immigration Appeals and then the federal courts. The government therefore has a dilemma. It can either detain the alien until the hearing (and, if a removal order is issued, until all appeal rights are exhausted), or it can release the alien on his “own recognizance,” and hope that the alien will voluntarily appear for the scheduled hearing and, if ordered removed and after exhausting all appeals, voluntarily appear for deportation.
Because the government has only authorized and funded a small number of detention spaces (a total of 19,444 in 2004, with another 1,950 added in May 2005), increasing numbers of OTMs are released on their own recognizance. Fewer than 6,000 OTMs were released on their own recognizance in each of 2001 and 2002, but the number increased to 7,972 in 2003 and jumped to 34,161 in 2004; 70,624 were released in just the first 8 months of fiscal 2005.
The failure-to-appear rate at one Texas immigration court is 98 percent. A removal order is typically issued in absentia for those who fail to appear. When the statutory appeal rights all expire, the names are added to the list of alien “absconders” who have actually been caught by the government, ordered removed by an immigration judge, exhausted all their appeal rights, but are still in the country anyway. The list of such absconders is now 465,000 and growing, out of a total illegal alien population of 8 to 12 million, per a December 2003 estimate by Tom Ridge, then Secretary of Homeland Security. Lou Dobbs of CNN, among others, uses 20 million as a more realistic number.
The release rate for apprehended OTMs is now so high, Border Patrol agents report that instead of hiding from the authorities, illegally entering OTMs actually seek them out in order to obtain the document charging them with illegal entry. They call this “Notice to Appear,” which informs them of the date and place of their scheduled hearing before an immigration judge, a permiso; some agents call it a “Notice to Disappear,” since that is what it permits them to do. If they are challenged while moving deeper into the U.S. from the border, they can produce the document to show that they have already scheduled an appointment before immigration judges.
The overwhelming majority of the millions of illegals, and even of the absconders, are not terrorists. But the sea of incoming illegal aliens provides a cover and a culture in which terrorists can hide, and a reliable means of entry. And as we know from the case of the 2004 Madrid train bombings, many Islamist terrorists are fluent in Spanish. Border Patrol apprehension figures show that among the OTMs apprehended in 2004 and 2005 were hundreds of persons from 35 “special interest” countries, almost all of which are Muslim. These countries include Afghanistan, Egypt, Iran, Iraq, Lebanon, Saudi Arabia, Somalia, Sudan, Syria, and Yemen; the number-one country in the group is Pakistan. Again, these are just the apprehensions: for every alien apprehended entering the U.S. illegally, an estimated 3 to 9 others succeed.
The main barrier to tightening the border is the absence of political will. On no other issue is the gap wider between the views of ordinary Americans, who overwhelmingly want to see the uncontrolled influx of illegal aliens halted, and those of the national political elite of both parties, who overwhelmingly feel that nothing can or should be done about our porous borders.
Politicians are pressured on two fronts when it comes to addressing the illegal alien population. First, by American business, an important source of campaign funds, which needs the plentiful, cheap labor that illegal immigration supplies. This also helps keep the wages of American and legal resident workers in check. Second, there is the electoral pressure. Politicians fear that any action to restrict illegal immigration will create a backlash among ethnic voters. This latter fear may be misplaced. It is precisely those who have recently immigrated legally to the U.S. who feel most keenly the competition from illegal labor. But the two considerations, business and political, act together to maintain a political majority in favor of doing nothing to curb illegal immigration.
In 2004, following some DHS worksite raids in Los Angeles, rumors spread that more raids were coming. Businesses complained that their workers were afraid to come to work, and political activists attacked any immigration enforcement actions as racist. In response Asa Hutchison, then DHS’s undersecretary for border security, announced publicly that there would be no more worksite raids and stated that ending racial profiling was a DHS priority.
President Bush’s plan for immigration reform is a guest- worker program that would allow illegal aliens in the U.S. to obtain legal status if they can find a job. Business interests thought this was a fine idea, and for pro-illegal alien activists it was better than nothing. But it amounts to amnesty for illegal aliens, a reward for those who have violated our immigration laws, disadvantaging foreign nationals who have respected our immigration laws by waiting their turn to immigrate legally. Millions of fully qualified would-be legal immigrants have remained in their home countries pending approval to come to the U.S. Some have been on a waiting list for twenty years or more. To reward illegality makes those who respected and complied with our immigration laws appear foolish.
Congress did the same thing with the last large-scale amnesty of illegal aliens, in 1986, in conjunction with new sanctions it was introducing for those who employed illegal aliens. In order to qualify for the amnesty, aliens had to prove they were in the country in violation of our immigration laws. Those who had kept their student and work visas current were ineligible for the amnesty. Only those who had flaunted the laws got legal status. Nor did the employer sanctions work. The law was written so as to protect employers, requiring only the most superficial efforts at compliance, and there was no enforcement.
A month after President Bush’s announcement of his guest- worker amnesty proposal, more than half the aliens being apprehended in the San Ysidro sector of the border near San Diego, and 90 percent in South Texas, were reporting to the Border Patrol that they were coming in order to get amnesty. Washington thereafter ordered Border Patrol to stop collecting this information. Indeed, Washington seems determined to prove that nothing can be done to tighten our borders. Border Patrol sources say they were ordered in May to stop arrests of illegal aliens along the Arizona border. The Minuteman Project, an anti-illegal immigration group of volunteers, had conducted a one-month patrolling campaign in April, and Washington did not want the number of arrests to show an increase after those ceased.[1]
While it will be difficult to secure our entire 2,000-mile- long southern border, there’s plenty that we could do if only we had the political will. We can put more people on the border, using either volunteers like the Minutemen or the U.S. Army Reserve and the border states’ National Guards. We can resume worksite raids. And we can make employer sanctions work. A few years ago a pilot project was carried out to see whether employers would comply with a requirement to verify that a prospective employee’s social security or other work authorization number was in fact a legally issued number. The project had good results but was never implemented nationally. Today it might be done through the Internet, which could make it even faster and less burdensome for employers.
But the biggest thing that could be done is to change the cost/benefit calculation of illegal immigration. The benefits of illegal entry into the U.S. remain large, with plentiful job opportunities versus a low risk of apprehension and deportation. Defenders of the status quo try to blur the distinction between legal and illegal immigration, calling opponents of illegal immigration “anti- immigrant.” This misleads those who are mindful that we are a nation founded upon immigration. Our legal immigration system is in fact the most generous in the world, admitting each year more 1 million legal permanent resident immigrants with a clear path to full citizenship, more than all the rest of the world’s nations combined. Those who would restrict illegal immigration are often strong champions of legal immigration, while even those who would alter our legal immigration system can agree that the illegal immigration problem needs to be addressed in order to give legal immigration any meaning.
Prior to 1986, the U.S. required visas of nearly all foreigners traveling to the U.S., except for Canadians and Mexicans with border-crossing cards. To obtain a U.S. visa, a foreigner had to apply for one at a U.S. consulate, submitting his or her foreign passport, which was inspected to determine whether it was counterfeit or stolen. Consular officials had the opportunity to ask questions before issuing a visa, or to withhold a visa in appropriate cases. To board an airplane headed to the U.S., a foreign national had to show a U.S. visa in his or her passport.
But in 1986, Congress enacted a reciprocal visa-waiver program to allow the citizens of certain favored countries, mostly in Europe and now numbering 27, to enter the U.S. for up to 90 days without a visa, and vice versa. Visa-waiver entrants may board an airplane to the U.S. merely by showing their passport. Visa waiver had long been sought by the U.S. tourism industry and by the airlines, and was also supported by the U.S. State Department, whose staff was freed from having to process visa applications.
Under visa waiver, Zacarias Moussaoui, sometime referred to as the 20th hijacker, was able to enter the U.S. before 9/11 by showing his French passport. Richard Reid, the “shoe bomber,” was able to board an airplane headed for the U.S. by showing his British passport. And one of the 1993 World Trade Center bombers, Ramsi Yusuf, was able to enter the U.S. though visa waiver by presenting a counterfeit European passport.
One might think that after 9/11, the visa-waiver program would have been eliminated. But its supporters have defended the program, calling the number of visa-waiver entrants intent on mass murder statistically insignificant, and arguing that persons deemed unacceptable upon arrival could always be turned away. But how would this latter mechanism help against someone such as Reid, who boarded with the intent of blowing up the airplane?
Congress tried to demonstrate concern by requiring better passports of visa-waiver applicants. The USA Patriot Act required that by October 2003, visa-waiver applicants present machine-readable passports, but implementation was delayed until June 2005. Deadlines for additional requirements under the Enhanced Border Security and Visa Reform Act of 2002 have been extended to October 2005, for inclusion of a digital photo, and to October 26, 2006, for new passports issued by visa-waiver countries to be e- Passports equipped with integrated computer chips capable of storing other biometric information. But it is not clear how these passport requirements will mitigate the national security threat presented by visa waiver.
Especially since the London bombings and with our growing awareness of the large Islamic populations in Europe qualifying for visa waiver, commentators have begun to note the danger visa-waiver presents, since it permits entrants from nations known to have populations of Islamist terrorists, such as Spain, Germany, France, and the UK. But observers often conclude that nothing can be done because ending visa waiver would adversely impact the airline and tourist industries and burden our State Department with visa applications. Washington’s consensus on visa waiver is the same as on our porous border: nothing can be done.
When a legal immigrant is admitted to the U.S., he or she becomes a legal permanent resident (LPR) and receives a green card. Typically, after five years of residence, LPRs become eligible for U.S. citizenship, and it has been U.S. policy to encourage them to apply for citizenship and to naturalize. Applying is not required, however, and perhaps it should be. The current policy allows millions of non-citizens who owe no loyalty to the U.S. to reside and work here permanently. Limiting the duration of LPR status would encourage and facilitate the assimilation of immigrants.
Current U.S. policy actually encourages dual citizenship and the divided loyalty that comes with it. Unless U.S. citizens explicitly give up their citizenship, they may vote in foreign elections, serve in a foreign army hostile to the U.S., or take an oath of allegiance to a foreign power without relinquishing their U.S citizenship. Potential benefits of dual citizenship include the ability to travel on two different passports, to work freely in each country, and to transmit dual citizenship to one’s children. The Supreme Court ruled in 1967 that U.S. citizenship may not be involuntarily removed if a citizen intends to retain it, but Congress could legislate and State Department give appropriate notifications that certain specified actions inherently express a citizen’s intent to relinquish U.S. citizenship.
The illegal immigrant himself or herself is not primarily to blame for the tide of illegal immigration which conceals and facilitates the presence of those hostile to our national interests. The problem continues to be the lack of political will to recognize and respond to the flaws in our immigration system. Concerned citizens might consider running for elected office themselves on an anti-illegal immigration platform. They don’t have to win, only to get politicians to see that their inaction on immigration reform could affect the results on Election Day.
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