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Lessons From IRCA for the House Judiciary Committee

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The House Judiciary Committee has scheduled a May 22nd hearing on the Gang of 8's Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744). The hearing has been inauspiciously titled "S. 744 and the Immigration Reform and Control Act of 1986: Lessons Learned or Mistakes Repeated?" Judging from the title, the majority party will likely ignore the immense contributions of the nearly 3 million persons legalized under the 1986 Act ("IRCA"), but flog another obvious point, that IRCA did not (as promised) permanently stem the U.S. unauthorized population. They will then draw the wrong lessons from IRCA, and make a guilt-by-association argument against passage of S. 744. In fact, the lessons of IRCA argue strongly in support of passage of comprehensive immigration legislation (like S. 744) for four principal reasons.

First, IRCA highlights the need for a flexible legal immigration system that meets U.S. economic, labor and family needs. IRCA did not reform the U.S. legal immigration system, which offers a paltry 5,000 visas and two narrow temporary worker programs for lesser-skilled workers. During the 1990s and early to mid-2000s, hundreds of thousands of migrants risked their lives annually to enter the United States illegally. The overwhelming majority found jobs that natives would not fill in sufficient numbers. S. 744 would make a good-faith attempt to reform the U.S. legal immigration system. It recognizes that immigration enforcement alone cannot stem illegal migration.

Second, IRCA illustrates the need to provide "derivative" status to the close family members of legalization beneficiaries. Under IRCA, the legalized had to wait to become lawful permanent residents (LPRs) before they could petition for their family members, laying the groundwork for multi-year backlogs in the family-based immigration system. At latest count, 4.4 million persons languish in visa backlogs, 97 percent of whom have a qualifying family relationship to a U.S. citizen or LPR. S. 744 would provide derivative status for family members, clear existing backlogs, and reform the family-based immigration system.

Third, IRCA argues for a broad legalization program. It allowed four distinct groups to legalize: persons who had been continuously out-of-status over a four year period (even one day in status disqualified an applicant); special agricultural workers; a relatively small group of Cuban-Haitian "entrants"; and unauthorized immigrants that had arrived prior to January 1, 1972. These programs excluded as many unauthorized immigrants as they covered. Robert Warren and John Robert Warren have recently estimated that as of January 1, 1990, there were 3.5 million U.S. unauthorized residents. This population paved the way for subsequent growth in the unauthorized population. S. 744 provides for a legalization program that would cover a large percentage of U.S. unauthorized residents.

Fourth, IRCA supports robust immigration enforcement. It attempted to limit illegal migration and permanently reduce the unauthorized population through increased border enforcement and requiring employers to verify the eligibility of their workers. Its employer verification program, however, was undermined by insufficient enforcement, unscrupulous employers, and widespread document fraud. S. 744 would significantly increase funding for border enforcement, mandate the use of an electronic employer verification system, and strengthen the security of identity documents. Moreover, these measures would come on the heels of sustained expansion of U.S. immigration enforcement programs over many years. Between 1990 and 2002, the Immigration and Naturalization Service's (INS's) budget rose from $1.2 billion to $6.2 billion. In FY 2012, combined appropriations to Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) equaled $17.6 billion. While CBP and ICE have responsibilities beyond immigration enforcement, the $17.6 billion figure fails to include signature DHS enforcement initiatives like US-VISIT and the E-Verify program, as well as the immigration enforcement costs of other federal agencies, the federal court system, and states and localities.

The House hearing will not laud IRCA, but it would be worse than imbalanced if it ignored the extraordinary contributions of IRCA beneficiaries. One of them, a former colleague of mine, tells the story of her family's deportation proceedings. As her father scrambled to find an immigration attorney during a break in the proceedings, she announced that she had just decided to become an immigration attorney herself. Her father replied that the family needed an attorney immediately, not in 15 years. Instead, they received IRCA, which ultimately allowed the young girl -- something of a force of nature like many immigrants -- to become an immigration attorney, to work for a U.S. senator, to develop a model program to protect victims of domestic violence in rural areas, and to expand and improve charitable legal service programs for immigrants throughout the nation. She is now a foreign-service officer and, after learning Arabic, is serving our nation in the Middle East. The Committee should invite her to testify: she could teach its members a central lesson of IRCA and about the need for S. 744 as well.

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