This post is part of The Next Agenda, a series that explores the main policy challenges facing the next Congress and presidential administration on issues from immigration and infrastructure to economics and energy. Check back regularly for future installments.
One of the central issues in the immigration debate in the country is what to do about the estimated 11 million unauthorized[i] immigrants living in the United States. Polls have consistently shown that a majority of Americans—including a majority of Republicans—support legalization, in spite of campaign rhetoric and political disagreement over how to address the unauthorized population. Bipartisan public support notwithstanding, it has been decades since Congress has passed major legislation to address the immigration system. As perhaps the most high-profile and controversial of immigration issues, the unauthorized population will be a key policy challenge for the next president and Congress.
Unauthorized Population by the Numbers
The unauthorized population has decreased from a peak of 12.2 million in 2007 to an estimated 11.1 million today—essentially unchanged since 2009. California, Texas, New York, and Florida have the highest statewide estimates, with California having the highest concentration at over 3 million. Around 40 percent of the unauthorized population is estimated to have arrived legally but overstayed their period of admission (so-called “visa overstayers”). Two-thirds of unauthorized adults have lived in the country for at least a decade and 40 percent have U.S.-born children. Unauthorized immigrants are predominately from Mexico (52 percent), Central America (15 percent), and Asia (13 percent). Because of a variety of factors, including enforcement and economic conditions, the number of unauthorized immigrants from Mexico decreased from 6.9 million in 2007 to 5.8 million in 2014. However, there has been a slight increase in unauthorized immigrants from Asia, Central America, and sub-Saharan Africa.
Strategies Proposed to Address the Unauthorized
Most proposals to address the unauthorized population aim at shrinking its size through one or a combination of varying strategies, including legalization, attrition through enforcement, and removals.
Legalization: Legalization generally refers to a proposed process that grants some form of legal status to unauthorized immigrants allowing them to live and work in the country and eventually gain permanent residence. Recent legislative proposals would create a new temporary legal status or visa that individuals can apply for if they meet certain criteria. They would then be provided a path to Legal Permanent Resident status (or “green card”) after maintaining the temporary status for a certain period of time and/or meeting additional requirements. The green cards may be acquired through either existing immigration channels or new categories added by law. The most recent legalization proposal came in 2013 as part of the Senate-passed comprehensive immigration bill, S.744, which provided a ten-year path to a green card and an additional three years to be eligible to apply for citizenship. Targeted legalization programs for parts of the population have also been proposed or implemented, such as President Obama’s Deferred Action for Childhood Arrivals, or DACA, for unauthorized who came to the United States as children.
The unauthorized population has decreased from a peak of 12.2 million in 2007 to an estimated 11.1 million today—essentially unchanged since 2009.
Attrition through enforcement: Attrition through enforcement strategies seek to decrease the unauthorized population by encouraging them to voluntarily leave the country through intensive across-the-board enforcement of immigration laws. Attrition through enforcement proposals include policies like mandatory electronic employment verification to make it difficult for the unauthorized to get a job; increasing enforcement resources to remove unauthorized immigrants and investigate workplaces; stronger federal-local law enforcement cooperation and local autonomy in immigration enforcement; and enactment of state and local laws to make it more difficult for the unauthorized to settle. The idea is to make day-to-day life as difficult as possible to encourage the unauthorized to leave the country.
Removal: There have been some calls for broad removal (“mass deportation”) of the unauthorized population. The agency responsible for removing unauthorized immigrants is Immigration and Customs Enforcement (ICE). ICE removed an average of 345,000 people per year, or about 3 percent of the unauthorized population, over the last five years. Because of limited funds and capacity—ICE has resources to remove up to 400,000 people per year—removals are prioritized based criminal and security threats.
Current Rhetoric and Proposals
Proposals reflecting the different strategies to address the unauthorized are hotly debated on the national stage. Republican nominee Donald Trump has called for mass deportation throughout the race, but has seemingly pulled back to an immigration plan that reflects an attrition through enforcement strategy instead, stressing the need to “enforce the immigration laws,” tripling the number of ICE agents, and ending sanctuary city policies and unauthorized employment. Democratic presidential nominee Hillary Clinton has prioritized legalization and a path to citizenship for the unauthorized.
The cost of enforcing all current immigration laws to remove the unauthorized population has been estimated at around $400 billion to $600 billion.
Opponents of legalization criticize it as “amnesty,” rewarding people that broke the law. Proponents argue that the requirements for legalization—criminal background checks, payment of fees and fines, payment of taxes, and lengthy waiting periods—reflect more of an “earned path” to legal status. On the other hand, opponents of mass deportation and attrition through enforcement attack its practicality and draw attention to economic impacts and costs. For example, the cost of enforcing all current immigration laws to remove the unauthorized population has been estimated at around $400 billion to $600 billion.
Challenges and Opportunities for Compromise
Regardless of which candidate wins the upcoming election and which party controls the Senate and House, immigration is expected to come up. How this issue is handled will likely determine the success of broader reform legislation. Both sides are dissatisfied with the system and have incentive to push for reform, but neither will have unified control of government or a large enough majority to push their own ideal version of a plan to address the unauthorized. If there is a genuine desire to make any kind of progress, both parties will likely need to concede parts of their agenda and conceive of new ideas and proposals to break the political deadlock and build trust.
For Democrats, challenges could include more fully embracing the role of border security and enforcement as critical to protecting the integrity of the system and as a deterrent to future unauthorized immigration. S.744 had a mechanism for having border security benchmarks trigger parts of the legalization process. It is unclear whether that is still acceptable or ideal, but considering the Republican position of “border security first,” sequencing of legalization and enforcement might be necessary to pass any plan and build trust that enforcement will be addressed. It may also mean pulling back from demands for a path to citizenship or automatic green cards, which has been highly controversial with some Republicans. There is evidence that the immigrant community could support such an incremental step. Polling in 2014 showed that Hispanics prioritize legalization over citizenship. Under current immigration law, there are several existing policy options for providing protection from deportation or quasi-legal status that could also eventually allow individuals to seek legal status through either existing temporary or permanent channels.
Regardless, Democrats will not likely support enforcement only or enforcement first bills on the promise of unknown future legalization. Therefore, for Republicans, there will be political challenges to accepting a legalization program deemed acceptable and not seen as “amnesty” by their constituents and opponents from among their own ranks as the price of increased enforcement. Republicans have previously fought the idea of a legalization and border security compromise because of a lack of trust that the Obama administration would enforce the enforcement piece of any deal. But the trust issue goes both ways, and continued skepticism or aversion to any compromise from either side will stymie any progress on enforcement or legalization, resulting in the current status-quo continuing indefinitely.
Hunter Hallman contributed to this post.
[i] While often the term “undocumented” is used for the population of immigrants living in the United States illegally, many of them do have documents, including passports or other identification documents, and some may have had legitimate visas or work permits. We use the term “unauthorized” to emphasize that their presence is not currently authorized under immigration law, regardless of what documents they may possess or what past immigration status they may have had.
KEYWORDS: PRESIDENT BARACK OBAMA, IMMIGRATION AND CUSTOMS ENFORCEMENT, 2016, HILLARY CLINTON, DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA), SANCTUARY CITIES, DONALD TRUMP, 115TH CONGRESS, THE NEXT AGENDA SERIES