Monday, August 10, 2020

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 Abstract

Excerpted From: Mariela Olivares, The 1986 Immigration Reform and Control Act as Antecedent to Contemporary Latina/o/x Migration, 37 Chicana/o-Latina/o Law Review 65 (2020) (77 Footnotes) (Full Document)

MarielaOlivaresThe history of the sociopolitical conflict surrounding the U.S.--Mexico border and the concomitant status of Latinas/os/xs in the United States predates formalized immigration law. The federalization of immigration law began at the end of the nineteenth century, setting the cornerstone for current law and changing the legal status of the people living in the region. As a result, native Latina/o/x people were forcibly deterred and had to seek admission into the United States through an increasingly complex system of immigration law. But the imposition of formal restrictions could not stop the migration of people from Mexico and Central American countries, including Guatemala, Honduras, and El Salvador--the four countries from which the highest number of immigrants in the United States originate. These four countries serve as the focus of this discussion on the effects and role of the Immigration Reform and Control Act of 1986 (IRCA) on Latina/o/x migration trends since its passage.

In this Article, I discuss the effects of IRCA on Latina/o/x migration through a historical and critical legal studies lens. First, I discuss the history of immigration law and policy and the important and undeniable intersections between immigration law and formal and informal racial and ethnic discrimination. I provide a brief review of the history prior to the enactment of IRCA to understand the political context of its passage and of its effects.

The Article then explores the passage of IRCA and its immediate effects on the legalization of millions of previously undocumented immigrants, while also noting the gendered implications of the legalization program. In fact, IRCA helped set the stage for continued gendered discrimination against women migrants by favoring the traditional male workforce in agricultural industries. Moreover, despite its antithetical purpose, the legalization program resulted in increased rates of undocumented migration from Central America.

Next, the Article contextualizes this historical perspective to more contemporary times by noting how IRCA-era migration trends are reflected in recent Central American migration patterns and in current political movements to bring legal relief to certain undocumented groups. Such efforts include the advocacy for the Deferred Action for Childhood Arrivals (DACA) program and the now-failed Deferred Action for Parental Accountability (DAPA) program. More recently, these IRCAera migration trends have influenced increased numbers of families and children to take the risk of migrating to the United States. The Article concludes by commenting on the continuation of these entrenched historical trends.

 

In discussing Latina/o/x immigrant migration, it is important to recognize that racial and ethnic systemic discrimination has been intrinsic to U.S. immigration law and policy since its inception. This system in many ways set the stage for IRCA. Federal immigration law developed in part as a reaction to Chinese immigration, with the intent to stop the flow of Chinese people into the United States. In the 1889 case of Chae Chan Ping v. United States, the U.S. Supreme Court upheld congressional plenary power to restrict the immigration of Chinese immigrants to the United States, noting that Chinese immigration brought “consequent irritation, proportionately deep and bitter, [which] was followed, in many cases, by open conflicts, to the great disturbance of the public peace.” Concluding that Chinese laborers had a “baneful effect” on the country, the Court upheld the Chinese Exclusion Act, which prohibited certain immigration of Chinese nationals to the United States.

The United States' explicit targeting of immigrants of color continued throughout the nineteenth and into the twentieth centuries. While restricting or forbidding Asian, Latina/o/x, and African immigrants and other members of the “Black race,” it welcomed white immigrants from western and northern Europe. In fact, the Immigration Act of 1924 restricted migration so that new migrants did not constitute more than 2 percent of the number of noncitizens from that country who were represented in the 1890 U.S. census. This national origins quota intended to “confine immigration as much as possible to western and northern European stock” and disfavor immigrants of color.

Through much of the twentieth century, U.S. immigration law and policy continued to favor white immigrants, who, it was believed, would more easily assimilate into a dominant white American culture. These efforts manifested in various ways, including policies aiming to slow the rate of migration and expel Latina/o/x immigrants--especially Mexicans. Perhaps one of the most notorious plans was the Bracero program, which operated from 1924 until its formal end in 1964. The program brought Mexican laborers from rural parts of Mexico to the United States to work agricultural and other manual labor jobs. The Mexican temporary workers received no form of permanent lawful status and ultimately were deported during the program and at its end. Many of those deported were U.S citizens of Mexican ancestry.

Immigration law and policy continued to target Latina/o/x immigrants in the twentieth century through indirect tactics. Although the Immigration and Nationality Act of 1965 (INA) repealed the national origin quota system and utilized race-neutral language, it also created a new limit on migration from the Western Hemisphere to only 120,000 individuals per year. This provision was “part of a compromise [for] those who feared a drastic upswing in Latin American immigration.” Moreover, the INA and its 1976 Amendments imposed an annual immigration limit of 20,000 people per country, a ceiling that drastically slowed migration of immigrants of color from certain “developing” countries, affecting Mexicans especially.

In response, then-President Gerald Ford predicted ill effects on Mexican migration, noting: “I am concerned ... about one aspect of the legislation which has the effect of reducing the legal immigration into this country from Mexico. Currently about 40,000 natives of Mexico legally immigrate to the United States each year. This legislation would cut the number in half.” Although Ford vowed that he would advocate for reform to increase the number of immigrant visas for Mexican nationals, he was unsuccessful in getting any legislation through Congress during his presidency.

In 1977, Jimmy Carter pushed legislation to (1) raise the ceiling for the amount of Mexican nationals who could migrate, and (2) establish a legalization program for undocumented immigrants already in the United States. Though this effort was unsuccessful, it did result in the creation of the “Select Commission on Immigration and Refugee Policy” to “study and evaluate the existing laws, policies and procedures governing the admission of immigrants and refugees.” Ronald Reagan, an ardent proponent of free markets who viewed undocumented migration as a result of unmet labor demands, assumed the presidency and considered the findings of the committee. Ultimately, Reagan advocated for regularizing the immigration status of migrant workers:

It makes one wonder about the illegal alien fuss. Are great numbers of our unemployed really victims of the illegal alien invasion or are those illegal tourists actually doing work our own people won't do? One thing is certain in this hungry world: No regulation or law should be allowed if it results in crops rotting in the fields for lack of harvesters.”

Reagan's call for more open agricultural labor markets led to the introduction of the IRCA bill, first introduced to Congress in 1982. Congress eventually passed IRCA in 1986 with heavy bipartisan support in both the House and the Senate. Reagan celebrated the new legislation and, at its signing, remarked: “Future generations of Americans will be thankful for our efforts.”

[ . . .]

As scholars and activists determine how the current subjugation of Latina/o/x immigrants will shape short and longterm political and social results, the DACA and DAPA programs provide illuminative lessons about IRCA's legacy. First, the IRCA legalization programs were incredibly far-reaching, affording status to approximately 3 million undocumented immigrants. Similarly, it is estimated that there are approximately 2 million undocumented young people who would be eligible under DACA. As of April 2019, U.S. Citizenship and Immigration Services (USCIS) approved approximately 1.582 million DACA applications. Although DACA has a precarious future, the possibility of immigration legislation that will eventually benefit young immigrants continues to be a possibility--especially as the 2020 presidential campaign season creates opportunity for such conversation. Some Democratic party presidential candidates voiced support for policies that, like DAPA, would regularize the status of other immigrants, including the parents of the DACA population. Like IRCA a generation ago, such legislation could have widespread effects. For example, data shows that 3.61 million undocumented immigrants would have been eligible for the DAPA program. Although programs like DACA and DAPA do not go as far as the legalization programs of IRCA and simply provide deferred action status rather than a direct pathway to lawful immigration status or United States citizenship, such regularization of status would provide stability for millions of people.

Moreover, though the DACA and DAPA programs do not rise to same level of the benefits as the IRCA 1986 legalization provisions, the DACA and DAPA beneficiaries were directly affected by IRCA, including its legalization program, and the lack of subsequent reforms. Even if the more recent arrivals of undocumented immigrant children and families from Central America are not as clearly related to direct beneficiaries of IRCA, the trend indicates a continued migratory pull and push from Central America. Further, these recently arrived immigrants are family units with children and/or unaccompanied children--all of whom, if allowed to stay in the United States, will contribute to the Latina/o/x population.

Importantly, efforts must continue to protect families and vehemently resist the breaking apart and jailing of migrant mothers and children. Thus, as advocates and policymakers evaluate history to determine how best to implement immigration reform, it is imperative that longterm repercussions be considered. It is a lesson that immigration law and policy is not of the individual but, very often, of the family. The lessons and effects of IRCA teach us that law and policy must include pathways to unify and reunite families, regularize the status of longterm immigrants already here, and welcome the most vulnerable among them.

[. . .] 


Mariela Olivares, J.D. is a professor of law at Howard University School of Law.


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