By Michelle Martin, PhD, MSW
I’m in the process of writing a summary of the pertinent legal issues involved in the family separations that occurred among the Central American political asylum-seekers at the southern border. In the process, I realized the importance of providing some background on our country’s immigration laws. By the time I was done, I had over 4500 words! So I decided to split this post into two posts (you're welcome! 😉). This post will focus on a brief history of key immigration laws in our country, and the second post will focus on the Flores Settlement Agreement, and post-settlement decisions, including the ruling of the 9th Circuit Court of Appeals.
Immigration policy in the United States is developed in three primary ways:
So for the most part, federal legislation establishes a legal framework, with executive orders and court decisions determining how the laws are to be interpreted and implemented. We have had no new immigration laws passed since Trump became president, and yet most people would agree that how the laws are being interpreted and implemented have changed pretty dramatically.
The laws that govern who can come into our country have changed over the years, depending on our country’s economic needs, humanitarian need and our various foreign policy stances. An example of U.S. immigration policy based on economic need is the Bracero program, which brought in Mexican laborers to work in our fields for very low wages, from 1942 to 1964.
An example of U.S. immigration policy based on humanitarian need and/or U.S. foreign policy stance is the development of special programs that place certain groups of immigrants (refugees and political asylum-seekers) into priority status, such as giving Cuban refugees priority during the “Cold War,” and prioritizing Syrian refugees (up until the ban).
While this isn’t an exhaustive list, I’ve summarized key immigration policies below, outlining the basic goals for each:
The Immigration Act of 1924 (passed under Calvin Coolidge - R)
The Nationality Act of 1952 (Bipartisan bill signed into law by Harry Truman - D)
The Immigration and Nationality Act of 1965 (bipartisan bill initiated under Truman - D, passed under Johnson – D)
The Refugee Act of 1980 (bipartisan amendment signed into law by Jimmy Carter – D)
Immigration Reform and Control Act of 1986 (IRCA) (bipartisan bill passed under Reagan - R)
Immigration Act of 1990 (Drafted by Kennedy in 1989, signed by Bush I - R)
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (passed under Clinton – D)
In addition to dramatically increasing border enforcement and penalties, the IIRIRA also had a significant Impact on asylum law, by
Homeland Security Act of 2002 (passed during the Bush II administration).
There are some additional immigration laws that have passed, that while they are not comprehensive, are important such as the Enhanced Border Security and Visa Entry Reform Act of 2002, and the Real ID Act of 2005. The DREAM Act, which would provide a specific cohort of immigrants who came to the United States when they were children a path to citizenship, has not yet passed.
In summary, our immigration laws have increasingly become more strict, with a growing focus on controlling undocumented immigration. How these laws are interpreted and implemented is determined for the most part by court rulings when the government and its agencies are sued on behalf of immigrants (class action suits). When a ruling is made on a class action case, that ruling then becomes national policy.
Not all of these laws have an impact on our current situation with the Central American refugees (particularly the older ones), but many of the newer ones do have an impact. It's also helpful to see how the priorities, concerns and goals have shifted over the years, including how some Republican and Democrat presidents have actually had very similar stances with regard to immigration priorities, and stances on undocumented immigration.
My next post will attempt to make sense of the various laws the Trump administration is relying on in making decisions pertaining to the Central American political asylum-seekers at the border….
Dr. Michelle Martin is a social worker, policy specialist and Assistant Professor at California State University, Fullerton in the Department of Social Work, where she teaches social welfare policy, and researches dynamics related to immigrants, political asylum-seekers, refugees and other displaced populations.