Amnesty Is Not the Answer to Unlawful Immigration. On occasion, proposals arise that would grant amnesty to aliens who have entered the country unlawfully, or who entered lawfully but whose authorization to remain has expired. The term “amnesty” is often used loosely with reference to aliens unlawfully in the United States. Sometimes it refers to converting the status of an alien from unlawful to lawful, either without conditions or on a condition such as a payment of a fee to the government. Sometimes it refers to granting lawful authority for an alien unlawfully in the U.S. to remain in the U.S., become a lawful permanent resident, or even acquire citizenship by naturalization, either without conditions or on a condition such as payment of a fee to the government or performance of particular types of work for specified periods. Amnesty comes in many forms, but in all its variations, it discourages respect for the law, treats law-breaking aliens better than law-following aliens, and encourages future unlawful immigration into the United States.
Presidents may issue pardons for offenses against the United States, whether issued to an individual for an offense or to a class of people for an offense they have in common.[9] Although the President may pardon for crimes, including immigration crimes, aliens unlawfully in the U.S., the pardon does not constitute a grant of authority to remain in the United States, and the alien would remain subject to removal.[10] Congress, however, has the power to enact laws that both forgive an alien’s past crimes and change an alien’s immigration status from unlawful to lawful.[11] For example, when Congress enacted the Immigration Reform and Control Act (IRCA) of 1986 to deal with the large numbers of aliens unlawfully in the U.S. at that time, Congress included two broad amnesty programs.
The first IRCA amnesty program generally required the Attorney General to adjust to the status of lawful temporary permanent residence aliens unlawfully in the U.S. who had been in the U.S. since January 1, 1982, with subsequent adjustment to lawful permanent residence.[12] The second IRCA amnesty program generally required the Attorney General to adjust to the status of lawful “special agricultural workers” aliens unlawfully in the U.S. who performed 90 days of qualifying agricultural work during the 12 months preceding May 1, 1986, and who could qualify for immigrant status, with subsequent adjustment of their status to that of lawful permanent residence.[13] Over 2.5 million aliens unlawfully in the U.S. availed themselves of the IRCA amnesties to attain legal status.[14]
With respect to the IRCA amnesty programs, the House committee originating the legislation said “a one-time legalization program is a necessary part of an effective enforcement program . . . .”[15] When the Senate considered the final legislation, a Senator from Texas asked the floor manager of the legislation, a Senator from Wyoming, a question about amnesty:
. . . [O]ne of the things that has concerned me having looked at the problem on our borders, is that there may be those in other countries who will say that since we granted amnesty once maybe we will do it again. And rather than sign up to be on this list of 1.9 million people that have the dream of someday being able to come here, maybe people will just come on across the border thinking it will happen again.
So I ask my colleague, as one who has worked 6 years on this bill, and who clearly is going to have much to say about changes that will occur in the future, is it the clear position of the distinguished chairman that under no circumstances will there be another blanket amnesty in the future?
The Senator from Wyoming responded:
. . . I can assure the Senator from Texas that as long as I am involved in it that will be exactly the message that will be sent, that this is it. This is a generous Nation responding; instead of going hunting for you and going through the anguish of that in the cities and communities of America, this is it. It is one time.[16]
When Congress enacted the IRCA amnesty programs in 1986 for aliens unlawfully in the U.S., the population of aliens unlawfully in the U.S. was an estimated 3.2 million.[17] In January 2011, that population was an estimated 11.5 million.[18]
Grants of amnesty, regardless of the form of the reward they give to aliens who knowingly entered or remain the U.S., discourage respect for the law, treat law-breaking aliens better than law-following aliens, and encourage future unlawful immigration into the United States. If America suddenly awards legal status to aliens unlawfully in the United States, it will treat them better than aliens abroad who follow America’s immigration procedures and patiently await their opportunity to get a visa authorizing them to come to the United States. And, of course, if America suddenly awards legal status to aliens unlawfully in the U.S., it will, as the IRCA amnesty proved, spur more aliens to enter or remain unlawfully in the United States, in the confident expectation that Congress will continue enacting future amnesties that provide aliens unlawfully in the U.S. a shortcut to legal status. The government should pursue a measured set of approaches to a wide variety of immigration issues, but in all events exclude amnesty for aliens unlawfully in the United States.
Conclusion: Congress Should Encourage Lawful Immigration and Prevent Unlawful Immigration. For more than two centuries, America has encouraged and benefitted from lawful immigration. Congress should continue to search for appropriate ways to encourage lawful immigration, reducing the burdens of the immigration process on both the government and lawful immigrants, and making it easier for both America and the lawful immigrants to enjoy the economic and cultural benefits that result from lawful immigration. Congress also should continue to search for appropriate ways to prevent unlawful immigration and secure America’s borders. As Congress moves forward, it should not adopt failed policies of the past, such as amnesty, which discourages respect for the law, treats law-breakers better than law-followers, and encourages future unlawful immigration. When Congress implements step-by-step the proper policies, America will benefit greatly from the arrival on America’s shores of lawful immigrants who, as Ronald Reagan said, will find “a new and better life for themselves and their children in this land of liberty and opportunity.”
—David S. Addington is the Senior Vice President for Legal and Judicial Policy at The Heritage Foundation.
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