By Muzaffar Chishti and Claire Bergeron
Migration Policy Institute
September 15, 2009
As Congress and the Obama administration grapple with immigration reform in the coming months, they will be doing so without the assistance of the most dominant political figure in the immigration policy debate for the past four decades: Senator Edward M. Kennedy.
Kennedy was the longest-serving member of the Senate Judiciary Committee's subcommittee on immigration. While people across the political spectrum do not agree on his role, he had a greater impact than any other lawmaker in crafting many of the immigration bills of recent history.
As a junior senator from Massachusetts, Kennedy helped lead efforts to pass the Immigration Act of 1965, which incorporated proposals for immigration reform that his brother, President John F. Kennedy, had submitted to Congress in 1963.
The 1965 act marked a major milestone in US immigration history by repealing the national-origins quota system, which had served as the basis of US immigration policy since the 1920s.
That system favored migration from western European countries, while severely limiting migration from eastern and southern Europe and barring most migration from Asia. Several attempts to eliminate the quota system failed, most famously in 1952, when Congress overrode President Harry Truman's veto of the 1952 Immigration and Nationality Act.
The 1965 act created an immigration framework that was based less on national origins and more on family unification and the admission of immigrants with needed skills. In the process, it shifted the predominant immigrant-origin sources from European countries to Asian and Latin American countries, permanently altering the country's demographic makeup.
Kennedy authored the Refugee Act of 1980, designed to end a different kind of national-origins bias in the US refugee system. The act replaced a series of ad hoc policies that favored refugees from communist countries and the Middle East with an ideologically neutral, coherent policy governing the admission of refugees and their resettlement.
The 1980 act also adopted a definition of refugee that conforms to the 1951 United Nations Convention Relating to the Status of Refugees, thus greatly expanding the number of people who could qualify for refugee status. The act also created the first statutory right to apply for asylum and established a program for federal assistance for refugee resettlement.
In 1986, Kennedy provided critical support to the legalization initiatives contained in the Immigration Reform and Control Act (IRCA). While Kennedy ultimately voted against IRCA, citing concerns over its employment verification provisions, he championed the portions of the bill that dealt with legalization for unauthorized immigrants.
Four years later, Kennedy cosponsored the Immigration Act of 1990, which increased the number of immigrants permitted to enter the United States permanently each year and prioritized the admission of "high-skilled" immigrants, such as scientists, engineers, and computer professionals.
In the 1990s, Kennedy cosponsored several immigration bills aimed at assisting specific groups of immigrants. The 1994 Violence Against Women Act allows immigrants who are victims of domestic violence perpetrated by their US citizen or lawful permanent resident spouses to gain immigration status.
Other bills include the Nicaraguan and Central American Relief Act (NACARA) and the Haitian Refugee Immigration Fairness Act (HRIFA). Together, these acts have permitted certain Nicaraguan, Cuban, and Haitian nationals to apply for lawful permanent residence.
In the beginning of this decade, as a consensus formed that the current immigration system was "broken" and needed to be overhauled, Kennedy began advocating for comprehensive immigration reform.
Keen on obtaining a bipartisan consensus on immigration, Kennedy cosponsored comprehensive immigration reform bills with Senator John McCain (R-AZ). The 2005 Secure America and Orderly Immigration Act — as well as the the Comprehensive Immigration Reform Act of 2006 and the 2007 Secure Borders, Economic Opportunity, and Immigration Reform Act — ultimately failed to pass in the Senate.
In 2008, after being diagnosed with brain cancer, Kennedy left the Senate Judiciary Committee and ceded leadership of the immigration subcommittee to Senator Charles Schumer (D-NY).
Throughout his Senate career, Kennedy frequently referenced his own family's immigrant history, telling reporters, immigrant advocates, and members of Congress that his support for immigration reform was rooted in the stories he had heard about his Irish grandparents' experiences in coming to the United States. He called on Congress to admit more refugees because of the country's "long humanitarian tradition," and often referred to the United States' history as a nation of immigrants.
Kennedy's strong support for immigration measures won him his fair share of critics. They argued that his policies contributed to a new era of high immigration by allowing family-sponsored immigrants to petition to bring their extended family members to the United States. Others have said that many of Kennedy's immigration policies led to a surge in illegal immigration.
With Kennedy's departure, Schumer has inherited the role of leading the immigration debate. Since assuming leadership of the Senate Judiciary Committee's immigration subcommittee in February, Schumer has held hearings on prospects for comprehensive immigration reform.
Before discussing future legislation, Schumer began his first hearing as subcommittee chairman by paying tribute to his predecessor: "For the last 46 years, Senator Kennedy has been at the forefront of every major immigration debate in this country."
Read the text of the
Read more about Kennedy's efforts to pass comprehensive immigration reform legislation in the May 2007 Policy Beat.
ICE: No More Arrest Quotas in the National Fugitive Operations Program
The head of US Immigration Customs and Enforcement (ICE) said the agency will no longer use arrest quotas in its National Fugitive Operations Program (NFOP), an initiative aimed at apprehending immigrants who have failed to depart the United States after receiving final orders of deportation.
ICE Assistant Secretary John Morton stated the program should aim to apprehend criminal aliens who have ignored past deportation orders, rather than meeting numerical quotas. But Morton also made it clear that ICE would not ignore other unauthorized immigrants discovered in the course of NFOP investigations.
NFOP came under heavy criticism last spring after reports issued by the Migration Policy Institute and the Benjamin Cardozo School of Law found that large numbers of immigrants arrested through the program were "ordinary immigration status violators" who did not have outstanding deportation orders or criminal convictions.
The budget of the program, created in 2003, grew dramatically between fiscal year (FY) 2003 and FY 2008. Congress allocated roughly $218 million to NFOP in 2008, more than 23 times the amount allocated in 2003 ($9 million).
In 2006, the Department of Homeland Security (DHS) changed its NFOP guidelines to require annual arrest quotas of 1,000 arrests for each NFOP team of immigration agents.
Because the guidelines did not mandate that a certain percentage of those arrested through the program had to be immigrants with outstanding deportation orders or criminal convictions, the new quotas provided an incentive for ICE agents to arrest large numbers of ordinary immigration status violators, rather than high-interest criminal aliens.
Policy Beat in Brief
E-Verify Executive Order. A federal judge in Maryland has dismissed a lawsuit that sought to stop a 2008 executive order requiring all federal contractors and subcontractors to enroll in the E-Verify program. E-Verify allows employers to check whether new employees are authorized to work by entering their biographic information into an online database. Although the business groups bringing the suit have appealed the district court's decision, a judge denied their request to delay implementation of the E-Verify rule, which took effect on September 8.
Petition Asking for Termination of 287(g) Program. More than 500 immigrant advocacy organizations submitted a petition to President Barack Obama asking the new administration to terminate the 287(g) immigration enforcement program. The program allows ICE to enter into agreements with state and local law enforcement agencies through which designated law enforcement agents are trained to enforce certain aspects of immigration law. Since July, the Obama administration has announced that it will expand the 287(g) program to 13 new local law enforcement agencies. Immigrant advocates have charged that the program undermines cooperation between the police and immigrant communities and can lead to racial profiling.
TRAC Report on Criminal Prosecutions for Immigration Violators. The number of criminal prosecutions referred to the US Department of Justice (DOJ) by ICE has increased, according to a new report released by the Transactional Records Access Clearinghouse (TRAC). The report found that in May 2009, ICE referred 2,147 new prosecutions to DOJ, 29.8 percent more than the agency referred in May 2008 and 18.9 percent more than in April 2009. According to the report, in the first five months of the Obama administration, the number of such criminal prosecutions did not drop.
- Read the TRAC report on the increase in ICE prosecutions.
Global Entry Program. US Customs and Border Protection (CBP) has expanded its "Global Entry" program for expedited immigration processing to 13 airports. The program allows preapproved travelers to use automated kiosks for processing their arrivals in the United States, rather than wait in CBP inspection lines. According to CBP, it takes an average of 56 seconds for a Global Entry traveler to be processed through an automated kiosk, while other travelers may have to wait as long as 60 minutes. More than 18,000 individuals have signed up for the program since its June 2008 inception.
FGM Asylum Case Ruling. A federal appeals court overturned a Board of Immigration Appeals (BIA) decision in which BIA found that an Indonesian girl subjected to forced female genital mutilation (FGM) had not suffered "past persecution" sufficient to warrant a grant of asylum. In denying asylum to the Indonesian girl, BIA had found that FGM in Indonesia was "of a less extreme variety" than FGM in other countries and thus did not rise to the level of "persecution." In reversing the decision, the US Court of Appeals for the Ninth Circuit found that the BIA decision was "fundamentally flawed and contrary to Ninth Circuit and BIA precedent."
Drop in Number of Cuban Immigrants. Far fewer Cuban immigrants arrived in the United States between October 2008 and July 2009 than during the same period a year ago, according to recent media reports citing statistics released by DHS. The reports state that approximately 6,000 Cubans reached the United States between October 2008 and July 2009 compared to about 13,000 in the same period in 2007-2008.
Decline in Graduate School Admissions of International Students. US graduate schools offered admission to 3 percent fewer international students in 2009 than in 2008, according to a report from the Council of Graduate Schools. The report also found that the overall rate of increase in applications from foreign students applying to US graduate schools slowed in 2009. Most of the schools surveyed stated that they saw a greater increase in applications from US students than from foreign students.
New Directives on Technology Searches. DHS has issued two new directives clarifying the process through which DHS officers may search the computers and electronic media of individuals entering the United States. The directives state that DHS officers should conduct searches in the presence of the person whose information is being examined, and they may seize electronic devices if an agent has probable cause to believe the device contains evidence of a crime or information that poses serious harm to the United States. Critics of the policy argue that the new directives do not include adequate protections against privacy violations.
State and Local PB in Brief
Lawsuit against Maricopa County, Arizona, Sheriff's Office.
The American Civil Liberties Union (ACLU) has filed a lawsuit against the Maricopa County Arizona Sheriff's Office on behalf of a US citizen and a lawful permanent resident who were detained in an immigration raid in February 2009. The complaint alleges that the plaintiffs were victims of racial profiling and that their constitutional rights were violated. Immigrant advocates have long criticized the county sheriff's immigration enforcement operations, saying that they amount to mass roundups of suspected unauthorized immigrants. In March 2009, DOJ initiated an investigation of the office's immigration enforcement activities.
Los Angeles County and Secure Communities. The Los Angeles County Sheriff's Department has joined ICE's Secure Communities immigration enforcement program, which checks the fingerprints of individuals detained in state and local jails against national immigration databases. If the checks reveal that an individual is an unauthorized immigrant, the electronic system immediately notifies ICE. The government has stated that in implementing the program, it will prioritize the detention and removal of unauthorized immigrants who have committed violent crimes.
Fraud at Three New York Immigration Firms. New York State Attorney General Andrew Cuomo shut down three immigration-assistance agencies in New York that were allegedly defrauding immigrants by filing phony immigration applications with US Citizenship and Immigration Services. Under the terms of an agreement reached between the agencies and the attorney general's office, the three businesses are permanently barred from offering immigration assistance and must collectively pay $118,000 in penalties. Cuomo also announced that he was filing civil lawsuits against three other immigration agencies.
287(g) in Danbury, Connecticut. The Danbury Police Department could become the latest law enforcement agency to participate in ICE's controversial 287(g) immigration enforcement program. Currently, few law enforcement agencies are being recommended for the program, which already has 66 participating agencies. No new agencies have been enrolled in the program since fall 2008. The 287(g) program allows ICE to train designated state and local law enforcement agents to enforce certain aspects of immigration law. In August, ICE approved Danbury to negotiate the terms of a Memorandum of Agreement governing participation in the 287(g) program.