US Immigration Reform Battle Begins

Flickr user: xomiele

Last week the bi-partisan group of Senators known as the "gang of eight" released their draft plan to reform America's immigration system. The bill, called the "Border Security, Economic Opportunity, and Immigration Modernization Act" (SB744), is ambitious (but not overly so) and may stand the best chance of passage of any bill in a generation.

The legislation is built around three broad pillars: border security, work authorization, and a path to citizenship. At first glance, it is clear that this bill is heavily oriented towards soothing the concerns of those who claim the bill amounts to an "amnesty" for undocumented workers; it's no coincidence that "border security" comes first in the title. The concern of course, is that with any pathway to citizenship for some 11 million undocumented aliens living in the country at the moment (add to that somewhere between a few hundred thousand and several million family members that could follow in the years after they gain citizenship) would encourage increased illegal migration from the southern border in the years to come--a common criticism of the Regan era immigration reform bill. In this sense, the bill is in fact a form of amnesty--the whole point is to start bringing these people "out of the shadows"--but does its best to mitigate against the impending flood of migrants that many conservatives fear.

To counter this, the bill includes several "triggers" related to stepped up border security. In it's current form, within five years of passage, the administration will need to certify that they have achieved a 90 percent effectiveness rate at "all high risk sectors," which presumably refers to parts of the southern border but may include other ports of entry.

"Our bill will appropriate $3 billion to implement this strategy. This money will be used for acquiring, among other things: 

o Surveillance and detection capabilities developed or used by the Department of Defense;
o Additional Border Patrol agents and Customs and Border Protection officers at and
between ports of entry along the Southern border;
o Fixed, mobile, and agent portable surveillance systems; and
o Unmanned aerial systems and fixed-wing aircraft and necessary and qualified staff
and equipment to fully utilize such systems...."

It will also provide funding for 3,500 additional Customs agents nationwide, Border Protection, and State, local, and tribal law enforcement agencies, and will:

"Provide Authorization for the National Guard to be deployed to the Southwest border for the following purposes:
(1) to construct fencing, including double-layer and triple-layer fencing;
(2) to increase ground-based mobile surveillance systems;
(3) to deploy additional unarmed, unmanned aerial systems and manned aircraft sufficient to maintain continuous surveillance of the Southern Border;
(4) to deploy and provide capability for radio communications interoperability between U.S. Customs"

At this point, the "border security goal" will have been achieved and the provisions for citizenship can continue for those in process. It isn't clear to me whether the entire process needs to wait for this certification, or if a failure to achieve 90 percent effectiveness would just stop the process five years in. There is a lot of ambiguity here, and I've heard some complaints that the vague language could allow the Secretary of DHS to simply say the 90 percent target has been reached. And, as if deciding on a metric wasn't hard enough, DHS will of course issue its own guidance on implementation, which could really affect how the border protection strategy looks on the ground. I imagine this will be hashed and rehashed over the coming months before anything is settled.

The second major aim of the reform bill is the path to citizenship. The bill creates a new status for non-citizens in the country: Registered Provisional Immigrant (RPI). Those who meet the eligibility criteria (below) will obtain this new status, after passing a background check and paying a $500 fine, which allows them to work for any employer. The 10 year period during which these individuals (what do we call them at this point?) have RPI status, they can work and travel, but not vote or obtain means-tested federal benefits (welfare). They also become ineligible if:

o Convicted of an aggravated felony;
o Convicted of a felony;
o Convicted of 3 or more misdemeanors;
o Convicted of an offense under foreign law;
o Unlawfully Voted; and
o Inadmissible for Criminal, National Security, Public Health, or other morality grounds.

I'm not sure what "other morality grounds" means, but it (worryingly) seems to leave a lot of room for interpretation. After 10 years, individuals with RPI status can "adjust" to lawful permanent resident status provided:

o The alien maintained continuous physical presence
o They paid all taxes owed during the period that they are in status as an RPI
o They worked in the United States regularly;
o And demonstrated knowledge of Civics and English
o All people currently waiting for family and employment green cards as of the date of enactment have had their priority date become current.
o A $1,000 penalty fee is rendered

The legislation also includes the basic provisions of the so-called DREAM Act, which creates a five-year path to citizenship for young undocumented immigrants brought by parents to the U.S. illegally or in the country on expired visas. Last, according to NPR, the bill revamps the foreign worker visa scheme, creating up to 10,000 new "start up" visas for foreign entrepreneurs who create a minimum of five jobs and raise a half million dollars from investors; more visas for highly skilled foreigners with advanced degrees; increases the number of H-1B visas awarded annually from 65,000 to 110,000, in part to bump up to 25,000 visas available for those in science, technology, engineering and mathematics; and establishes low-skilled guest-worker program and new agricultural-guest-worker visa program that allows undocumented farm workers to obtain legal status.

The third major provision in the bill involves the (mandatory) use of a government database by American employers to certify that potential hires are in the country legally. This system, known as E-Verify, has been a darling of immigration hawks for years now, and will (assuming passage) be phased in within two years for firms with over 5,000 employees, three years for those with over 500, and five years for all others. When I was working in a congressional office in 2011, I remember receiving hundreds of calls and emails supporting widespread and mandatory use of E-Verify as a "demand-side" solution to illegal immigration. The proponents of E-Verify argue that if businesses both have the tools and the mandate to weed out illegal workers before hiring them, then the draw for potential undocumented migrants would be less, as they would know they couldn't get a job.

The logic here isn't wrong, but rests on some weak assumptions. First, it assumes that firms who hire undocumented workers do so unknowingly; this is demonstrably false. There may be some employers who, with E-Verify in place, eliminate their hiring of illegal workers, but I expect that those who have hired undocumented workers in the past will continue to find a way around the system. At the very least, I suppose that the mandate to use E-Verify could provide the legal tools to prosecute such employers. Another concern relates to privacy issues, as well as the potential for mistakes. Civil libertarians worry (rightly, I think) that creating another large scale database of employment information that would include US citizens creates all kinds of potential privacy hazards, and, in the case of a clerical or technical error, could wrongly deny lawful citizens their right to work.

It's still early in the debate on immigration reform, and this plan is likely to face an assault of amendments and delay before it passes the senate. As with many legislative projects these days, Representatives of the House will likely have the final say. Whereas even Senators representing "red" states such as North and South Carolina, Texas, Virginia, etc. may support a plan, their colleagues in the House may not, because their individual districts are less likely to provide an incentive due to lower numbers of migrants. In other words, whereas Marco Rubio or John McCain, for example, have a strong incentive to address immigration because their states, even if conservative, have huge Latino populations, the homogenized make up of many conservative districts allow their representatives the luxury of being more myopic. I would expect to see a clamor from these members (and their conservative PACs) to "enforce the laws already on the books," despite the fact that the Obama administration has done the most of any in recent memory to both secure the southern border and punish those in the country illegally. According to the Financial Times, "the number of deportations has hit record highs under Mr. Obama, up to about 400,000 a year." We'll see if the language in the first sections of the draft law is strong enough to assuage coopt these arguments, some of which are genuine, others are disingenuous attempts to block any reform.

Immigration reform in this country is long overdue, and I am optimistic that the gang of eight plan at least has a chance of living up to the "Economic Opportunity" promise of its title. I tend to agree with the vast majority of literature that shows immigration to be a net positive for the country. I agree with the Cato institute's assessment that immigrants are advantageous to American society because they are "self-selected on the basis of motivation, risk taking, and work ethic; they often come to the US during their prime working years; they make huge contributions to our otherwise unsustainable social safety nets (social security); and fill niches in the labor market where demand is high relative to supply, complementing rather than directly competing with American workers." Another Cato article dispels the toxic myth of the "immigrant welfare queen," noting that non-citizen immigrants are far less likely to use social welfare services than their native-born peers. This Huffington Post article digs a little deeper into the issue of how much immigrants pay in taxes and other withholding verses how much they use; it turns out immigrants, including undocumented, are a clear benefit to national budgets because they pay much more than they receive in benefits. Their impact on state and local budgets is mixed, however.

Unfortunately, (legal or illegal) immigration to the US is not a simple function of American immigration policy and border protection: it is almost as much a result of economic and security concerns in sending states. This is especially true with Mexico, which now has a net migration rate of zero, as this Pew Research Center report shows, but also with Central America. As the security situation continues to deteriorate, especially in the northern triangle, the numbers of Central Americans taking risks and crossing the border will continue to be high. In an ideal world, Congress would look at elements of foreign assistance and trade policy in conjunction with the domestic aspects of immigration. Nevertheless, this may be a step in the right direction. Its announcement by the gang of eight, and their apparent sincerity in heading off criticism in advance of its consideration in the Judicial Committee and then on the Senate floor, is a good sign.

Paso a paso - progress on Mexican judicial reform

Garrison Photography, Boise, ID

The Wilson Center recently released a good report on the progress of Mexico's judicial reform, which began back in 2008. I think this is one of the more important reform efforts under way in Mexico, for a variety of reasons, but especially because these reforms--if done well--could hugely improve the legitimacy, efficiency, and protection of basic civil rights within the judicial system. This in turn could have a positive effect on the country's ability to combat organized crime and drug trafficking, as well as the deeper, associated social ills such as poverty, inequality, and corruption.

The reforms contained in the 2008 legislation are broad and ambitious. They seek to move from an inquisitorial, European-style system to an accusatorial system similar to the British and American common law system. What's the difference? In the simplest sense, the former system, a descendant of the Napoleonic code, is oriented around finding out the facts of a case whereas the latter system focuses more on the parties caught up in the case, oriented more towards restorative, rather than punitive justice.

The accusatorial system has spread rapidly throughout the Americas in recent decades and, where implemented correctly, tends (or hopes) to result in greater protections for individuals involved in trials (plaintiffs and defendants alike); more public and transparent proceedings; and greater efficiency stemming from the use of alternative sentences and plea bargaining.

These are certainly some of the goals of the Mexican reform, which, like many Latin American systems, has been strongly criticized for its mistreatment of civilians, its lack of transparency, and a tendency to create huge bureaucratic burdens. In response, the groups behind the reform law included improvements in the treatment of victims and defendants, including a presumption of innocence and access to qualified public defenders (a novelty in Mexico); limitations on pre-trial detention procedures guaranteed by a judge; and oral proceedings at all stages of a trial.

The reforms have also been subject to some criticism, though, by groups opposed to the practice of arraigo. This procedure allows police and prosecutors to detain individuals suspected of involvement with organized crime for up to 80 days to allow officials to gather evidence and build a case--often an obstacle in prosecuting savvy, well-connected individuals associated with the drug trade. Unfortunately, the practice has been widely abused, and in practice often results in the use of torture to build cases against a wide array of individuals suspected of activity relating to a loose definition of "organized crime."

The new measure mandated the federal government and the 32 states (including the Federal District) to pass and implement enacting legislation by 2016. Enactment has been slow but steady through 2012. While 22 jurisdictions have now passed enacting legislation (strong progress), in practice the reforms are being adopted at a tortuous pace, and progress varies considerably among and within enacting states. Only 12 have implemented their reforms, with only three having fully done so.

This is a tall order, for sure. Reforms require changing not just forms and procedures country wide, but also improving and updating the legal education system while training police, prosecutors, defense attorneys, judges, and clerks. The reforms also face ample political challenges, in addition to technical and resource constraints. There remains strong opposition from sectors concerned that the reforms are too soft on crime, or go too far in protecting criminals. There is also a strong and legitimate debate as to whether the proposed system necessarily will result in a more "just" system. President Pena Nieto has signaled his intent to press forward with implementation, though action at the federal level has been slow.

La Mordida - Corruption in Mexico

With the return of the PRI (Institutional Revolutionary Party) to the Mexican presidency in December last year, plenty in the policy community and blogosphere have begun to worry that the kind of corruption and nepotism that overtly characterized PRI rule would again dominate. I don't suggest that Mexico has fixed its corruption problem, but observers rightly worry that substantial but fragile democratic gains and improvements in governance (including a major reform of the country's judicial system, initiated in 2008) could be reversed.

Corruption is notoriously hard to measure, not just in Mexico, but globally. Transparency International (TI), authors of one of the most widely used measures, is based on perceptions of corruption, a standard criticized as a crude attempt to universally operationalize an inherently subjective definition of the phenomenon (to be fair, I believe TI does disclaim that its measures are not to be used as a comparative indicator of corruption, internationally).

In democracy and governance circles, "democracy" is often seen as an anecdote to corruption. This view, which replaced the theory advanced by Sam Huntington (and others) in the 1960s that corruption acted as a kind of economic "lubrication," has itself become increasingly complicated and questioned in recent years.

The theory works like this: if X agents' corrupt behavior is tolerated by political elites, increased political competition should provide an incentive for political challengers to expose shady dealings. Thus, as political competition increases (and power subsequently changes hands regularly), the costs of exposed corruption (or, increased public discussion, debate, and opprobrium) rise. In addition, with true competition, voters have viable alternatives to which they can turn--providing a mechanism for punishing corrupt incumbents.

I did a study that used a measure of corruption developed by Transparencia Mexicana (TM, a national TI affiliate), which measures actual experiences with corruption at the state level (rather than a kind of national "poll of polls"), to test how increased competition over the last decade has affected corruption. I looked at the relationship between state TM corruption scores and a proxy measure for competition based on state level voting for deputies (congressmen). This measure accounts for competition based not on the winners of state elections, but by the percentage of the vote gained by various parties: those with more, competitive parties, were more competitive (see Laakso and Taagepera 1979, here).

What I found was that experience with corruption in Mexico actually increased slightly as electoral competition increased. These findings square with previous work on the subject by Stephen Morris (2009), who found that while electoral competition does eventually lower corruption, this happens only after an initial period of rising experience with corruption. Others have shown that this period could last years, and, without getting too much in the weeds, some would even question whether a rise in corruption would necessarily be "initial" (rather than permanent--I'm thinking of Carothers, T.).

The logic here isn't complicated. As newly competitive parties use accusations of corruption to bludgeon their opponents, the public perceives an increase in corruption. Interestingly, while I noted that TM measures experience, literature on the issue (see Cleary and Stokes, 2006) shows that one's experience with corruption is highly dependent on their perceptions of corruption in society, not to mention awareness of extant social norms that dictate what behaviors are corrupt. This awareness is, in turn, affected by socioeconomic status and education. So the two (experience and perception) are closely related and nearly impossible to isolate. Whether the egg came before the chicken, here, is not clear, though I am optimistic about the prospects for lower corruption.

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Corruption has a myriad of terrible effects on countries where it is rampant. There's a wealth of literature exposing the way in which corruption undermines investment and growth, not just lowering investment, but distorting the allocation of scarce resources and public services in ways that harm the poor. This exacerbates inequality and undermines the rule of law, two areas where Mexico has made fragile but important progress since the democratization that began in the late 1990s.

The election of Pena Nieto's PRI doesn't reverse Mexico's democratization necessarily; state and local politics--the incubator of democratic oppositional strength that began this trend--remain competitive. But the new president has a lot to gain by attacking corruption and, hopefully, a lot to lose by allowing a return to patronage politics. One way to do this is to support the judicial reform transition from an inquisitive (Napoleonic code-based) system to an accusatory (common law, rights-based) system.

Another is to support free access to public information. Several studies (see for example, DiRienzo, et al, 2007) show a strong positive relationship between increased access to public information, especially when aided by the proliferation of information technologies, tends to result in lower levels of corruption (based on several measures). Mexico has one of the world's best right to information laws, on paper, but seriously lacks political support--from the highest levels--to enforce compliance and the provision of access to information as provided in the legislation.

International impacts of U.S. gun policy

One of the most stimulating things about international affairs, for me, is the struggle to grasp and understand the complex interactions of people, politics, and policies on events around the world, or in neighboring countries. The Western Hemisphere is place I find especially interesting because events in North, Central, and South America very often have impacts on, or (more likely) are influenced by the people, politics, and policies in the U.S., and my city of residence, Washington, D.C.

The issue of guns and gun control is one of those complex and messy issues I love to grapple with. The politics of guns is, as we see every few months in this country, highly personal and deadly serious. Yet, despite ubiquitous attempts to do so, solutions to gun-related crime (including, but not limited to spectacular mass shootings) do not fit on bumper stickers. The issue becomes more complex when we examine U.S. federal and state gun policies in an international context.

The Atlantic had a great writeup on the impacts of liberal U.S. gun policies on violence in Latin America. The article notes that 70 percent of guns seized by Mexican authorities from drug cartels in 2011 were U.S.-made. Importantly, these massive caches of high-calibre weaponry are generally purchased legally but used to disastrous (illegal) ends. The escalated conflict against violent cartels that began in 2006 has left over 60,000 dead in Mexico (the number may well be higher, as the Mexican government stopped releasing official figures, and exact tallies are unreliable).

While it is unreasonable to place the blame for all of these deaths on U.S. policy, the ease with which cartels access military grade weapons (not withstanding Operation Fast and Furious' allowance of some arms to cross the southern border) should at least give pause to those who defend current policies solely on the basis of 2nd amendment rights.

The problem doesn't stop in Mexico. The northern triangle countries of Central America (Guatemala, Honduras, and El Salvador) are awash in guns--again, many of which purchased in or provided by the U.S. (over the course of Cold War-era civil wars). Honduras has the highest murder rate in the world. El Salvador is not far behind. Easy access to guns is undeniably part of the problem.

While violence is the manifestation of decades (or centuries) of complex and tortured political histories in many Latin American countries (the frequent U.S. contribution to which is the subject of ample literature), Americans have a moral, if not legal responsibility to assess the impacts of their policies on their neighbors.

As if the question hasn't been asked before, where does one's right to carry stop, and another's right to live in security begin? The international dimensions of this question are not irrelevant.

I'm sure many gun advocates would take issue my separating rights to carry vs. right to live in security. My intention is not to question one's right to bear per se, (this is a topic for another conversation, which really shouldn't be separate from the international discussion but...) but to question the unfettered, increasingly unrestricted enjoyment of that right.

The right to buy (or sell) without restriction is not necessarily the same as the right to bear.

Thankfully, the debate following the shootings in Newtown may be pushing Americans to reconsider the ease with which military grade weapons are bought and sold. West Virginia Senator Joe Manchin and Virginia Senator Mark Warner (both enjoy high marks from the NRA) recently signalled their willingness to countenance more restrictive gun legislation. We'll see what happens.