Why Can’t We Stop Unauthorized Immigration? Because It Works.

‘We’re getting no support on this national crisis,’ Mayor Eric Adams said in September at a town-hall-style gathering on Manhattan’s Upper West Side. He was talking about the influx of transnational migrants who have landed in the city’s shelter system: more than 118,000 since the spring of last year, with about 10,000 more arriving each month. There are now about 115,000 people in the city’s care, and more than half of them are migrants. In August, the city projected that it would spend $5 billion caring for migrants during this fiscal year.

“This issue will destroy New York City,” Adams told his audience. “Every service in this city is going to be impacted.”

Responding to the sense of crisis in New York and around the nation, the Department of Homeland Security recently announced that it would grant temporary protected status to about 472,000 Venezuelans, allowing them 18 months to live and work in the United States. This measure may help New York because many of the migrants there have traveled to the state from Venezuela (via Texas). But as Adams pointed out on the Upper West Side, New York now also shelters migrants from “all over the globe,” including Ecuador, Eastern Europe and West Africa — so the Biden administration’s decision on temporary protected status is, at best, a partial and fleeting solution.

The three most recent presidents have tried and failed to fix the problem of mass unauthorized migration into the United States. President Obama tried to balance empathy with enforcement, deferring the deportation of those who arrived as minors and instructing immigration officers to prioritize the arrest of serious criminals, even as he connected every jail in the nation to Immigration and Customs Enforcement (ICE). President Trump emphasized enforcement at all costs: revoking deferred action for minors, declaring the arrest of every undocumented person a priority, separating migrant families and trying to terminate temporary protected status for about 400,000 people — though Trump also extended deferred action to about 200,000 Venezuelans during his last full day in office.

So far, President Biden has revived the empathy-and-enforcement strategy: resuming deferred action for minors and helping Venezuelans while also making it more difficult to qualify for asylum.

But these variations in policy have had almost no effect on the number of migrants trying to enter the United States through the Southern border. Obama and Trump chose mostly opposing strategies, but each prioritized the arrest of unauthorized migrants in the Rio Grande Valley. Yet in 2019, before the pandemic gave Trump legal standing to force asylum seekers back into Mexico, Customs and Border Protection (C.B.P.) arrested about 82,000 more migrants there than they had at the peak of migrations in the Obama years.

Already, a new group of presidential candidates promises that things will be different if they’re elected. But barring a major reorganization of America’s immigration system, these problems are unlikely to improve over the long term. That’s because the “solutions” rarely address the root cause: Unauthorized immigration, for all the obstacles America throws at it, remains a boon for countless U.S. employers and a reasonable bet for migrants who seek a better life.

To begin with, it’s important to recognize that our world is simply a more mobile place than it ever has been before. The number of people who leave their homes to seek better lives in foreign nations has been rising, in absolute and proportional terms, for decades. According to the United Nations, 281 million people were living outside their birth countries in 2020. That’s 3.5 percent more than in 2019 — despite the travel restrictions imposed in response to Covid-19 and before Russia invaded Ukraine.

The U.N.’s report lumps together all kinds of international migrants. It includes professionals with visas working abroad, asylum applicants seeking to permanently change residence and undocumented laborers doing seasonal work. But its figures are useful, nevertheless. They demonstrate both the world’s increasing fluidity and America’s unique status as a favored destination. Though only about a fifth of international migrants head to North America, the United States has attracted more migrants than any other nation for the past 50 years. In 2020, the U.N. notes, the United States held about 51 million international migrants. The runner-up, Germany, had about 16 million.

Migrants dream of America because they are an entrenched part of our economy. This is nothing new; America’s economy has always relied upon a mass of disempowered, foreign-born laborers, whether it was enslaved Africans picking cotton, Chinese building railroads, Irish digging coal, Italians sewing garments or Mexicans harvesting fruit. Even today, some sectors in the U.S. economy seem almost reserved for workers who have been deliberately kept vulnerable. When Congress passed the Fair Labor Standards Act in 1938, establishing a minimum wage, they excluded most farmworkers and domestic workers from its protections. These workers were largely excluded again when Congress passed the Occupational Health and Safety Act in 1970. “These spaces that were once filled by slaves are now filled by immigrants,” Anita Sinha, a professor of law at American University told me. “They are exploitative by design.”

Other sectors use foreign-born labor as a more recent strategy. When the anthropologist Angela Stuesse investigated the history of the poultry industry in Mississippi, for example, she found that when African American workers organized for better wages and working conditions in the 1970s, businessmen cultivated an alternative work force of Latin Americans, whom they found in Texas and Florida. As they recruited and transported these migrants, she demonstrates, they catalyzed the demographic transformation of central Mississippi and the poultry industry across the South.

Today migrants are routinely employed in almost every blue- and pink-collar industry in America. Recent Times investigations by Hannah Dreier found unaccompanied minors packing Cheerios, washing hotel sheets and sanitizing chicken-processing plants. The United States has laws banning these and other abusive labor practices, but many companies have found a workaround: staffing agencies. “They’re all designed to skirt litigations,” Kevin Herrera, the legal director of Raise the Floor Alliance, in Chicago, once explained to me. Many of these agencies specialize in hiring people who will suffer any number of degrading or dangerous conditions because they are desperate for work. Their offices are sometimes inside the company factories. But if one of their employees files a complaint, is injured on the job or is caught working illegally, the agency runs interference so that the company avoids legal responsibility.

A migrant worker on a farm in Homestead, Fla., earlier this year.Credit…Chandan Khanna/AFP, via Getty Images

American consumers benefit from these systems every time they find exceptionally inexpensive ways to get their lawns cut, their bathrooms cleaned, their houses built, their apples picked, their nails painted and their young and old cared for. The prices we pay for these services have been subsidized for generations by transnational migrants. In 2015, economists at Texas A&M concluded that if immigrant labor were eliminated from the dairy industry, the retail price of milk would nearly double. More recently, in Florida, construction projects stalled and their costs rose after the state passed new laws targeting undocumented residents. Economists say that recent migrants have also blunted the worst effects of post-pandemic inflation.

In the United States, versions of these economic dynamics have always been in play, but what has changed over the past 100 years is the way that immigration policy has created a permanent class of disenfranchised “illegal” workers.

Until the 1920s, America received migrants with an almost open border. Our policies emphasized regulation, not restriction. A few general categories were barred from entry — polygamists and convicted criminals, for example — but almost everyone else was permitted to enter the United States and reside indefinitely. The move toward restriction began in 1882 with laws that targeted the Chinese then evolved to exclude almost every other national group as well.

Legal immigration today is close to impossible for most people. David J. Bier of the Cato Institute recently estimated that around 3 percent of the people who tried to move permanently to the United States were able to do so legally. “Legal immigration is less like waiting in line and more like winning the lottery: It happens, but it is so rare that it is irrational to expect it in any individual case,” he wrote in a comprehensive review of the current regulations. He concludes that “trying the legal immigration system as an alternative to immigrating illegally is like playing Powerball as an alternative to saving for retirement.”

In other words, illegal immigration is the natural consequence of the conflict between America’s thirst for foreign labor and its strict immigration laws. The world’s increasing connectedness and fluidity have just supercharged this dynamic. There are now more than 11 million undocumented immigrants inside the United States, three times the number that lived here in 1990. And during the last fiscal year, the number of C.B.P. arrests in the Rio Grande Valley hit a record: more than half a million.

Periodically, American presidents have tried to release pressure from these systems by granting amnesty or temporary protection from deportation to large groups of migrants, as Biden recently did for Venezuelans. But these are short-term Band-Aids that do little to affect the ongoing causes of illegal immigration and still leave millions of workers vulnerable to abuse.

Congress, for its part, has proved itself incapable of passing the kind of legislation necessary to recalibrate the economic incentives. Though five major immigration reform bills have been brought to a vote since 2006, none of them made it through both the House and the Senate. To be fair, perhaps no single legislative act or executive order could ever change these dynamics. But some people have suggested targeted measures that could make unauthorized migration less chaotic, less exploitative and less profitable to unscrupulous actors.

The National Association of Immigration Judges has made a strong case for increasing the funding for immigration courts. There are now more than 2.5 million cases pending in these courts, and their average processing time is four years. To handle this backlog, the nation has fewer than 700 immigration-court judges. According to Mimi Tsankov, president of the association, this disparity between manpower and caseload is the primary reason many immigration cases, especially complex asylum cases, take years to resolve. To speed processing times, Tsankov explained, the courts need more judges but also more interpreters, legal assistants and law clerks. Improved efficiency would benefit those who merit asylum. Others say that it would also decrease the incentive to submit frivolous asylum claims in order to reside legally in the United States while waiting for an application to be denied.

Among academics, another idea keeps resurfacing: a deadline for deportations. Most crimes in America have a statute of limitations, Mae Ngai, a professor of history at Columbia University, noted in an opinion column for The Washington Post.The statute of limitations for noncapital terrorism offenses, for example, is eight years. Before the 1924 Immigration Act, Ngai wrote in her book about the history of immigration policy, the statute of limitations for deportations was at most five years. Returning to this general principle, at least for migrants who have no significant criminal record, would allow ICE officers and immigration judges to focus on the recent influx of unauthorized migrants. A deadline could also improve labor conditions for all Americans because, as Ngai wrote, “it would go a long way toward stemming the accretion of a caste population that is easily exploitable and lives forever outside the polity.”

One of the most curious aspects of American immigration politics is that Congress tends to invest heavily in immigration enforcement but not in the enforcement of labor laws that could dissuade businesses from exploiting unauthorized workers in the first place. Congress more than doubled the annual budgets for ICE and C.B.P. from 2006 to 2021. At the same time, it kept the budgets for the three federal agencies most responsible for preventing workplace abuse — OSHA, the Wage and Hour Division of the Department of Labor and the National Labor Relations Board — essentially flat. There are now only 750 Department of Labor investigators responsible for the country’s 11 million workplaces. “As absurd as it sounds, the enforcement of labor standards is a very controversial thing to do in this country,” David Weil, the former administrator of the Wage and Hour Division, told me earlier this year. The laws needed to protect the interests of workers are already on the books, he said; the Department of Labor just needs funding adequate to enforce them.

There is one more reason the problem of unauthorized immigration has become so intractable. Over the past 20 years, incendiary rhetoric about migrants has become a powerful and popular political tool, and many elected officials now or recently in office have built their careers by wooing voters with such rhetoric. This path to power makes it difficult for them to compromise on any issue related to immigration, no matter how rational such flexibility might be given the facts of global migration and the demands of American businesses and consumers. For many of these politicians, blocking all or nearly all immigration to the United States is a top priority.

And though the Biden administration and congressional Democrats have cast themselves as more realistic on matters of global migration, they are also unlikely to spearhead much significant reform. Over the past three years, they have prioritized objectives that affect a larger portion of the electorate, like infrastructure and education bills. This also makes sense. Most voters, even Latino voters, rank immigration below the economy, education, gun policy and health care as a top concern. By definition, voters are already citizens. For most of them, rationalizing our immigration system is not a bread-and-butter issue.

Democrats like to blame Republicans for their own inaction on reform, but that’s only part of the story. The day Biden took the oath of office, his administration introduced a plan for comprehensive immigration reform, one designed to secure the borders, keep communities safe and “better manage migration across the Hemisphere.” Legislation based on that plan was introduced in the House weeks later as the U.S. Citizenship Act of 2021, with 80 co-sponsors. The Oval Office, the Senate and the House were all under Democratic control. But the act died in subcommittee, along with several more modest immigration bills.

The only immigration policies that Congress can bring itself to enact, it seems, are funding more border security and ICE raids. But these actions alone will never fix America’s immigration problems. No matter what anyone says on Capitol Hill, migrants know that if they can just make it inside the United States, they will find relative safety — and plenty of work.

Top Image: Source photograph from Getty Images.

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