SB 744: Border Enforcement Run Amok? by Kevin R. Johnson

The passage of the Border Security, Economic Opportunity, and Immigration Modernization Act (Senate Bill 744) by the U.S. Senate is a major achievement. It includes provisions that would increase border enforcement, expand legal immigration, and create a path to legalization for eligible undocumented immigrants.

As with all political compromises, SB 744 will not please everyone. Still, the reform proposal will in my estimation could well turn out to be the first major piece of truly "comprehensive" immigration reform since President Ronald Reagan signed the Immigration Reform and Control Act of 1986 into law.

The new border enforcement measures in SB 744 build on previous enforcement measures, such as the expansion of the border fence along the U.S./Mexico border. More generally, the U.S. government has greatly ramped up border enforcement since the mid-1990s, for example, with the high profile border operation known as Operation Gatekeeper sought to seal the border immediately south of San Diego.

This post focuses on one troublesome aspect of the Senate bill. The "border security" aspects, including the amendment sponsored by Republican Senators Bob Corker and John Hoeven added immediately before its passage in the Senate, are deeply problematic. The "border surge" amendment dramatically increases unnecessary enforcement, adding thousands of Border Patrol officers along the U.S./Mexico border and billions of dollars into further militarizing the entire region. In my view, the border surge would not reduce undocumented migration and thus constitutes a big waste of money and resources. To add insult to injury, the surge would also exacerbate some of the worst excesses of the current enforcement regime.

Why More Enforcement?

The border enforcement provisions of SB 744, including the requirement that all employers verify employee eligibility to lawfully work through the computer database known as E-Verify, are a response to the claim that the Obama administration is failing to enforce the immigration laws. This is a difficult claim to substantiate based on the facts:

1. Record Deportations: The Obama administration has deported more noncitizens than any administration in U.S. history, setting annual removal records of about 400,000 a year.

2. Super-Aggressive Enforcement: The Obama administration has taken aggressive positions toward immigration enforcement, such as the Secure Communities program , which has allowed for record levels of removals and aggressive litigation positions, such as in Moncrieffe v. Holder, a case in which the Supreme Court rejected the U.S. government's efforts to classify a long term lawful permanent resident as an "aggravated felon" subject to mandatory removal based on one conviction for possession of the equivalent of 2-3 marijuana cigarettes.

3. Decreased Undocumented Immigration: Undocumented immigration has decreased due to the Great Recession and many Mexicans have returned to Mexico.

The Questionable Policy Impact of Increased Border Enforcement

The border enforcement measures of the Senate reform bill would do little to reduce undocumented immigration. While the requirement of the use of E-Verify by employers might diminish the magnet of jobs (although concerns abound that the database will be accurate or will wrongfully deny employment opportunities to many people eligible to work), other enforcement measures will not have do much to deter undocumented immigration. The stagnant U.S. economy has dramatically reduced undocumented immigration. Moreover, the border surge amendment has caused some pro-immigrant groups to oppose the immigration bill. To make matters worse, the various enforcement measures would continue some of the worst excesses along the border:

1. Destruction of Families: The removal of 400,000 noncitizens a year, many for relatively minor criminal offenses, has torn apart hundreds of thousands of families and communities across the country. U.S. citizen spouses and children have suffered as well as the noncitizens removed. This destruction of families is inconsistent with the goal of promoting family unity that long has been the linchpin of the U.S. immigration laws.

2. Racial Profiling: U.S. immigration enforcement long has been plagued by racial profiling of Latinos. By greatly expanding border enforcement and the number of Border Patrol officers, the bill will necessary expand racial profiling of Latinos, who are perpetually suspected of being foreigners. Profiling arguably has increased with increased state and local law enforcement involvement in immigration enforcement. Notably, a federal court in May 2013 ruled that Sheriff Joe Arpaio and his Maricopa County (Arizona) Sheriff's Office engaged in a pattern and practice of abusing the civil rights of Latinos in the name of immigration enforcement.

3. Border Deaths: One less well-known aspect of increased border enforcement has been the growing death toll along the U.S./Mexico border region. As enforcement has centered on major urban areas along the border, migrants have sought entry in more desolate locations where death due to exposure (i.e., heat in the desert) is more likely. Deaths on the border are a regular part of live in the border region. More enforcement, including extension of the border fence, will likely contribute to more deaths as migrants are redirected toward more desolate - and dangerous - locations.

Conclusion

Many observers see the border enforcement provisions of comprehensive immigration reform as a political compromise necessary to attract votes, especially from Republicans in the House of Representatives. That may be true. However, there is little, if any, reason to believe that the measures will in fact reduce undocumented immigration. And there is every reason to believe that the enhanced border enforcement will have negative impacts on Latina/os and other Americans, tearing apart American families, increasing racial profiling and discrimination, and resulting in more deaths along the U.S./Mexico border. Conmsequently, we should view the political compromise with those significant costs in mind.

Where does this analysis leave us? There are other parts of SB 744 that do make more policy sense, such as many of the changes to the legal immigration provisions (e.g., increasing the visas for high- and low-skilled workers, abolition of the diversity visa program, elimination of the long visa backlogs, etc.), and the path to legalization for eligible undocumented immigrants, including the DREAMers who were brought to this country as children by their parents. The enforcement provisions do not help the bill achieve the policy goals of immigration reform. Moreover, the decision to double down on border enforcement will result in horrible collateral damages. It ultimately is a legitimate question whether the costs of the enforcement measures outweigh the benefits of the more positive policy aspects of the Senate bill. we also should keep in mind that the Senate bill may be as good as it gets.

(Cross-posted from ImmigrationProf)