Learn before you legislate

The law of unintended consequences, often cited but rarely defined, is that actions of people, and government, always have effects that are unanticipated, unintended, unwanted or all three. Here is a classic example.

Passage of “the 1986 Immigration Reform and Control Act” or “IRCA” as it was euphemistically called, and its companion legislation, “The Immigration Act of 1990”, or “IMMACT 90” brought talk about immigration reform in America to a screeching halt.

After years of give and take from both sides of the aisle, legislation was finally in place, which would solve our immigration miseries, or so most of us believed. Yet, forty years on, talk about the need for meaningful immigration reform still fills the air in the nation's capital. Unfortunately, that's all it does. How can this be?

In 2001, fifteen years after implementation of the 1986 legislation, the cowardly 9/11 attack on the homeland served notice that our immigration system was broken. The immigration debate in America immediately mutated from an economic argument to a national security nightmare. The solution called for putting all our security eggs in one basket and we did.

In 2002 the Department of Homeland Security (DHS) was created through the combination of all or part of twenty-two different federal departments and agencies ostensibly creating a strengthened homeland security apparatus and a more secure America. Because the perpetrators of 9/11 were foreigners, immigration was subsumed into the new behemoth department. But nothing has changed. If anything the problem has grown worse.

Since DHS opened its doors in 2003, most indicators of change have been in decline. I feel like we are pouring billions of dollars down a rat hole with minimal and dubious results. So, before we are asked to accept more “get tough” legislation lawmakers need to figure out why a durable solution to the vexing problem of spontaneous migration has been so elusive. Thus far it has been a “ready, fire, aim” operation. If you get the assumptions wrong nothing else matters. Your project is doomed to frustration and failure. We have forty years of failure to prove that point.

One of the major difficulties DHS and Congress must face stems directly from their inability to correctly distinguish the difference between the terms “migrant” and “immigrant.” I know it sounds like I am being pedantic but hear me out. Knowing the distinction is critical. This is where the door to unintended consequences is opened.

While there is no formal legal definition for migrants, most experts agree they are those who change their country of usual residence in search of temporary refuge, freedom, work, or a better life. Sometimes the migration is across international boundaries with or without permission or legal status. Immigration officer's interview detained migrants to determine if they qualify for a legal status. Sadly, most do not.

Generally speaking, an immigrant is a person who moves to a foreign country to reside permanently. However, for purposes of national security, DHS has wisely amplified this definition. They define immigrants as those who, before leaving their country of residence, have requested, and been granted permission to enter the United States as “lawful permanent residents.” The subtle, but clear implication from DHS is that if you have not been “lawfully” accorded the privilege of residing permanently in the United States, you have not immigrated; ergo, you should never be referred to as an immigrant.

So, immigrants are always lawfully admitted by immigration officers through ports of entry. Migrants arrive in gaggles, between our ports of entry; seeking temporary relief for which they may or may not qualify. More often than not, they overwhelm our ability to process them in accordance with our laws.

Migrants and immigrants are as different as apples and oranges. Painting them with the same brush is patently wrong and it creates the impression that immigration can be illegal. Immigration is a lawful process. The same way you can't have legal and illegal crime you can't have legal and illegal immigration. Period!

Yet, people who know better, President Biden, former president Trump, Congress, and the “Immigration Elite” insist on making almost daily references to the evils of “illegal immigration” and “illegal immigrants.”the same way you can't be a little bit pregnant you can't be a little bit immigrant. There is no in-between. The same way attending a weekend concert on the MSU campus doesn't confer a degree on you, simply living here doesn't make you an immigrant.

The use of these bureaucratic oxymoron's only further obfuscates the problem and keeps the average American confused and agitated about immigration, which isn't the problem! Those heartbreaking scenes from our southern border where thousands of families are in distress showcase the real problem --- unregulated migration and our inability to anticipate and plan for it. There isn't a single immigrant among these poor souls. Our immigration program works fine for immigrants who use it properly.

Using terms like migrant and immigrant as though they are synonyms creates the false impression that reforming our immigration system is somehow going to stop people from spontaneously migrating and staying here without a valid immigration status. Most of the eleven million sojourners currently residing here without an immigration status never used our immigration program. They simply entered without inspection, or more recently, they were admitted through a port of entry on non-immigrant visas and violated the conditions of their visas by not departing when the visas expired. Reforming the immigration system or building a 2,000 mile wall alone won't solve the problem of spontaneous migration.

By more precisely defining the term immigrant DHS moved in the right direction. However, in and of itself, this amplification is not enough. While this definition of immigrant may pass legal muster, to be useful in the formulation of meaningful immigration policy, it must be expanded to include the individual's mindset. Here is why.

As Americans, we are justifiably proud of our immigrant stock. We proudly proclaim that much of the credit for what is good about America today belongs to those hardy souls who committed their brains, brawn, and bravery to the development of this great Nation. But let us not forget that when our forefathers immigrated to this country, they arrived not only physically, but they also arrived psychologically. In other words, they not only came here to reside permanently, but more importantly, they came here to become Americans.

This decision, to burrow into the fabric of America, embodies the principal characteristic, which distinguishes migrants from immigrants. Migrants reside here physically, but psychologically they remain wedded to the sending countries. They didn't come here to become Americans. They migrated here for more important reasons. That, in and of itself, is a noble aspiration. Is it any wonder then that assimilation doesn't appeal to migrants?

Further, what this should be telling our lawmakers is that not everyone here without an immigration status is clamoring to be an American, so let's stop acting like they are. And better yet, let's stop passing laws, which expect migrants to display the same patriotic zeal as immigrants. They won't. That expectation is destined to frustration along with all legislative efforts, which mistakenly cleave to this misguided notion.

The practical problems presented by use of these slipshod definitions are real and far more serious than may be readily apparent. For example, most Americans who supported the 1986 legislation were led to believe passage of IRCA was actually going to put an end to spontaneous migration once and for all. It didn't matter that the title of the act promised reform and control of immigration not migration. In actuality, the legislation had little or nothing to do with immigration. It was a “spontaneous migrant” bill, masquerading as immigration reform, but Congress, so confused by its own imprecision, didn't know it.

Think about it, IRCA had three main components; enhanced enforcement, employer sanctions and a legalization program, none of which has anything to do with immigrants. Enhanced enforcement more than doubled the size of the Border Patrol so we could regain control of our borders. The Border Patrol does not apprehend immigrants, they can't. Immigrants are lawful permanent residents.

Employer Sanctions made it illegal to hire anyone not authorized, by the Department of Labor, to work in America. This also has nothing to do with immigrants. All immigrants are authorized to work if they desire to do so.

The legalization component of IRCA promised to legalize non-immigrated residents without an immigration status if they applied for enrollment in the Legalization Program and met the same conditions all immigrants must meet. Immigrants don't require legalization.

Congress duped us into believing that reforming our immigration system would somehow solve the problems created by folks who completely by-passed the immigration process. No wonder it failed. Here are further examples of how Congressional confusion and imprecision adversely affects us and leads to unintended consequences.

Under the legalization provisions of IRCA, Congress made it possible for roughly 4.5 million persons residing here without an immigration status to apply for and obtain immigrant status, which was fitting and proper. Applicants were given the following option; become immigrants or go home. Renouncing their national character in favor of an American identity was not something they ever contemplated.

So accepting LPR status suited them perfectly. It conferred a lawful status on them, which meant that they could reside here permanently without assuming an American identity. The unintended consequence of this congressional action is that a large group of individuals reside here legally with no intention of becoming American.

Their hearts now, as when they arrived, remain firmly wedded to their homelands. Our legislators, confused by their own ambiguity, actually believed these residents embraced an immigrant's mindset and over time would become American citizens. Then they would support the Party that bestowed this benefit on them. Imagine the political disappointment when this didn't happen. Here is another example of why knowing the distinction between migrant and immigrant is imperative when formulating immigration policy.

When IRCA cut immigrants off of certain federally funded programs they had been receiving, the former INS was deluged with applications for citizenship. This drove INS crazy since it overloaded an already beleaguered agency. However, the real tragedy was that most of those citizenship applications were filed for the wrong reason. Instead of asking to become citizens because they wanted to be Americans, most of these applications were filed in order to continue eligibility for federally funded programs, which is understandable. Here too, the law of unintended consequences was in play. Congress caused one of our most cherished rights, citizenship, to be trampled on in the misguided name of sham immigration reform.

Congress still exhibits no understanding of the dangers inherent in using the terms migrant and immigrant interchangeably. However, this need not spell defeat for current attempts to develop coherent policy. After all, if Americans were smart enough to realize that immigration and naturalization are two different things, how difficult can it be to see migration and immigration as two different concepts? Hopefully, Congress and the American people are now sufficiently dissatisfied with the pathetic results of previous attempts at meaningful immigration reform to take this message seriously. Further, now, when we are asking Congress to do more with less, it is more important than ever to “learn before you legislate”.

Ricardo Inzunza, PHD, a native of San Diego, California, was posted in the Pentagon and the Departments of Energy and Justice in the Administration of President Ronald Reagan. He was appointed Deputy Commissioner of the former Immigration and Naturalization Service (INS) by President George H. W. Bush. During his tenure with INS, his office was the central source for the development, implementation and oversight of all immigration service policies and practices including the “Sanctuary Movement.” Now, as CEO of RIA International, Ltd, Ricardo is often asked to serve as a business consultant to clients such as the World Bank and the People’s Republic of China. He can be reached at 662 694 2650 or riatria@aol.com