RD to immigration advocates: are there any limits?

I asked Esposito to explain why the personal hardship that a family undergoes when wrenched from what has been that family’s home for any length of time would not always provide a justification — now and in the future — to shield an individual from immigration law enforcement if he or she arrived undocumented after a one-time legalization process. First, she said she didn’t know what was going to happen in 2013 or 2015 or 2017 (after a legalization package). “I just don’t know,” she said. “You’re asking for a response to a hypothetical question.”

I wasn’t asking a hypothetical question, actually; instead I was asking about the applicability of the Coalition’s current argument and, as a matter of logic, why or whether it would stop applying to people who, in the future, were here “out of status.” The follow-up yielded a “no” — the application of the principle “would never stop.”

La Raza’s Martinez-de-Castro reached a similar conclusion, but did so under the name “prosecutorial discretion.” She did this after declining to address the proposition that every enforcement system in the immigration context — now or in the future — would seem to necessarily harm people who are innocent (that is, members of hard-working families who are productive members of their adopted communities).  “I’m not sure that I would just have an existential conversation,” she said.

But enforcement against people who are innocent in the terms described above is something that La Raza opposes. Could she assure people that, if there were a legalization process put in place now and new go-forward rules established (rules that were fair and equitable from the point of view of her organization), La Raza would support enforcement of that law 10 years from now even if that meant that some innocent families without documentation would be removed from the country?

She could not. Instead she turned to the notion of prosecutorial discretion as governing when law and regulation would actually be applied, something that she described as existing, in some form, in all aspects of law enforcement. Her illustration: deporting the sole breadwinner of a family would cause undue hardship and thus should be an occasion for the exercise of prosecutorial discretion on a go-forward basis.

But Martinez-de-Castro would not define or limit the scope of prosecutorial discretion, even though it sounded as though the bases for the exercise of such discretion — like sole breadwinner status — would commonly recur and perhaps swallow up the underlying enforcement rules.

And Tactaquin of the National Network proposed a system whereby, subsequent to a mass regularization of status, there would be an ongoing ability to regularize one’s status; that is, the process of regularization would not be a one-time opportunity, but something that existed as part of an ongoing system.

In short, each advocate seemed to be describing a system whereby — outside the circumstances of non-immigration security or safety considerations — enforcement would almost always give way to personal or familial factors. Either the factors preventing removal would be built into an underlying system that broadened legal access, or else would be part of a back-up or safety net system that prevented deportation even of those who ran afoul of more liberalized regulations.

Martinez-de-Castro, for example, initially described a side effect of La Raza’s desire to create an easier legal path in the future as “reducing the push for illegal behavior.” But, asked to clarify, she acknowledged that she was not claiming that overall demand for family unification would be reduced, but rather only that the portion of that demand dubbed illegal would lessen: “What I’m talking about reducing is illegal flows,” she said, failing to address the possibility that a system signaling greater friendliness to family unification would increase demand for that type of immigration.

To be sure, demand for immigration access to the United States does not go up in all circumstances — indeed, annual immigration flows have recently decreased — and some advocates, like the National Network’s point out that they are “certainly not saying ‘completely unfettered immigration.’” But at no point in any of the conversations was it clear — even in the context of employment-based immigration — how or when the desired post-reform system would actually operate to remove someone that was not a safety or security threat.

Perpetuating inequities of the past?

It seemed apparent that, by definition, one consequence of a system that focuses on family ties or on immigration from countries with an established pattern of its citizens migrating to the U.S. would be that people from countries without such an established pattern would continue to be disadvantaged in the legal immigration process. Remapping Debate asked each advocate whether this caused concern, especially in light of the discriminatory history of U.S. immigration policy (where immigration from many countries, especially non-European countries, was routinely discourage). The example I gave was of an individual or family from a sub-Saharan African nation.

Tactaquin first suggested that the desire to come to the U.S. is often “predicated on past or present economic or political relationships.” But challenged again on the point that such ties — or a focus on family unification — might perpetuate historical patterns of discrimination, Tactaquin said only, “With respect to family unity, this is something that the Kennedys proposed, so [my view is] ‘Ok. We’ll continue to support it; that’s as good [a basis] as any.’”