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{1} “The Border Protection, Anti-Terrorism, and Illegal Immigration Control Act of 2005,” H.R. 4437, (December 16, 2005). For an overview of the bill, see Weisman, Jonathan, “House Votes to Toughen Laws on Immigration,” The Washington Post, (December 17, 2005). Available at:
http://www.washingtonpost.com/wp-dyn/content/article/2005/12/16/AR2005121601814.html
{2} For the Senate bill see, “Comprehensive Immigration Reform Act (CIRA),” S. 2611, (May 25, 2006); for the Bush proposal see, “Bush Immigration Reform Proposal,” White House Office of the Press Secretary, (May 15, 2006). Available at:
https://usinfo.state.gov/xarchives/;
for a comparison of the House, Senate, and Bush policy prescriptions, see “Key Facts: Immigration Reform Proposals, The Washington Post, (May 25, 2006). Available at:
http://www.washingtonpost.com/wp-dyn/content/article/2006/03/27/AR2006032701201.html
{3} For Dobbs’ views on unauthorized migration, see Dobbs, Lou, “U.S. Policy on Immigration is a Tragic Joke,” The Arizona Republic, (August 28, 2005).
{4} Bailey, Holly, “A Border War: Tom Tancredo is Pulling the Immigration Debate to the Right–and Away from Bush,” Newsweek, (April 3, 2006). Available at:
http://www.msnbc.msn.com/id/12017855/site/newsweek
{5} See CIS’s website at: http://www.cis.org
{6} Kant, Immanuel, To Perpetual Peace: A Philosophical Sketch, Trans. By Humphrey, Ted, (Indianapolis, IN: Hackett Publishing, 2003), 15-18.
{7} Id. at 16.
{8} Zolberg, Aristide R, A Nation by Design: Immigration Policy in the Fashioning of America (Cambridge, MA: Harvard University Press, 2006), 246.
{9} Hutchinson, Edward P, “Immigration Policy since World War I,” Annals of the American Academy of Political and Social Science 262, (1949), 15.
{10} For example, the Nationality Act of 1790 only allowed free white persons to become naturalized citizens, and even when it was amended to include African Americans after the Civil War, undoubtedly, few whites took the idea of African emigration to America seriously (or even viewed it as a practical potentiality), let alone considered African-Americans on an equal social footing as whites. In other words, the amendment was little more than a formality.
{11} Ngai, Mae M. “The Architecture of Race in American Immigration Law: A Reexamination of the Immigration Act of 1924,” The Journal of American History 86, no. 1., (June, 1999), 81.
{12} Supra note 1, at 248.
{13} Id. at 248.
{14} Historically, the sentiment that foreigners crowd out domestic jobs has been championed by labor unions and has played a large role in the enactment of restrictionist policy. For example, in the 1880s a board member from the Workingman’s Trade and Labor Union of San Francisco helped pave the way for the Chinese Exclusion Act of 1882, which barred most Chinese from immigrating to the United States; and in that same decade, the Knights of Labor lobbied for a ban on the importation of contract labor. See Seller, Maxine S. “Historical Perspectives on American Immigration Policy: Case Studies and Current Implications,” Law and Contemporary Problems 45, no. 2, (Spring, 1982), 150.
{15} Alexander, Charles C., “Prophet of American Racism: Madison Grant and the Nordic Myth,” Phylon 23, no. 1, (1st Qtr., 1962), 75.
{16} Supra note 7, at 151. As cited by Seller, see Higham, John, Strangers in the Land: Patterns of American Nativism 1860-1925, (New Brunswick, NJ: Rutgers University Press, 1955), 131-157.
{17} Id. at 151.
{18} Grant, Madison, The passing of the Great Race or, the Racial Basis of European History: New Edition Revised and Amplified with a New Preface by Henry Fairfield Osborn (New York: C. Scribner’s Sons, 1919).
{19} Supra note 2, at 16.
{20} Id. at 16-17.
{21} Supra note 1, at 257.
{22} Id. at 17.
{23} Supra note 7, at 154.
{24} Supra note 2, at 17.
{25} Id. at 17.
{26} Supra note 7, at 155.
{27} Bernard, William S., Ed., American Immigration Policy–A Reappraisal (New York, NY: Harper & Brothers, 1950), 34.
{28} Supra note 1, at 307.
{29} Although the act removed the bar against Asian immigration, Asian countries received the lowest quotas on average. The act implemented a new quota formula that allowed only one-sixth of one percent of the residents within the continental United States for a given country to immigrate each year, as determined by the 1920 census. As a result, severe restrictions governed immigration from the Asia-Pacific Triangle, an area encompassing some twenty countries and almost half the world’s population. As defined under the Immigration Act of 1952, only a little over 1,000 residents of the Asia-Pacific Triangle were allowed to immigrate to America each year. See Bennett, Marion T., “The Immigration and Nationality (McCarran-Walter) Act of 1952, as Amended to 1965,” Annals of the American Academy of Political and Social Science 367, (September, 1966), 128-131.
{30} S. Rept. 1515, 81st Cong., 2d Sess. (1950), 455.
{31} Keely, Charles, “Effects of the Immigration Act of 1965 on Selected Population Characteristics of Immigrants to the United States,” Demography 8, no. 2, (May, 1971), 158.
{32} Id. at 159.
{33} Briggs, Vernon M., “Immigration Policy and the U.S. Economy: An Institutional Perspective,” Journal of Economic Issues 30, no. 2, (June, 1996), 379.
{34} It is worthy to note that in keeping with the theory of “Nordic superiority” that had been historically favored by Congress, the Bracero Program was prejudicial insofar as it contained no means for Mexicans to gain permanent residence in the U.S. Similar to Asians, Africans and Eastern Europeans, Mexicans were viewed as an “unfavorable race.”
{35} Supra note 24, at 161.
{36} Supra note 1, at 335.
{37} Supra note 26, at 379.
{38} Supra note 1, at 336.
{39} Johnson, Lyndon B, “Remarks at the Signing of the Immigration Bill, Liberty Island, New York, October 3, 1965,” Public Papers of the Presidents of the United States: Lyndon B. Johnson, Volume II, Entry 546, (Washington D.C.: Government Printing Office, 1966).
{40} This preference system contained seven sequentially-ordered tiers. While the first, fourth, and fifth preference categories applied to the immediate and extended families of U.S. citizens, the second tier permitted the entry of the spouses and unmarried sons and daughters of aliens lawfully admitted to the U.S. Notably, the third and sixth preference levels applied to professionals of “exceptional ability” and workers in high demand, respectively. Finally, the seventh tier pertained to refugees. In display of an apparent hiccup of logic, Congress failed to extend Western Hemisphere immigrants a similar courtesy. For description of the preference categories, see “Report of the Visa Office,” Bureau of Security and Consular Affairs, (Washington D.C.: Department of State, 1968), p. 68.
{41} Supra note 1, at 338.
{42} Keely, Charles B., “The Development of U.S. Immigration Policy since 1965,” Journal of International Affairs 33, no. 2, (Fall/Winter, 1979), 256-258.
{43} Id, at 258.
{44} Massey, Douglas S., Beyond Smoke and Mirrors, (New York, NY: Russell Sage Foundation, 2002), p. 44.
{45} Id.
{46} Id. See INS graph at top of page 44.
{47} Id, at 49.
{48} Orrenius, P. and Zavodny, M.; “Do Amnesty Programs Reduce Undocumented Immigration? Evidence from IRCA,” Demography 40, no. 3, (August, 2003), p. 439.
{49} Supra note 37, at 49-50.
{50} Bowers, Faye, “U.S.-Mexican Border as a Terror Risk,” The Christian Science Monitor, (March 22, 2005).
{51} Massey, Douglas S., "Closed-Door Policy," The American Prospect 14, no. 7, (July 3, 2003).
{52} “Estimates of the Size and Characteristics of the Undocumented Population,” Pew Hispanic Center, (March 21, 2005).
{53} Fears, D. and Fletcher, M.; “Temporary Worker Program is Explained,” The Washington Post, (October 19, 2005).
{54} Although much of the moral argumentation that follows is predicated upon Rawlsian ideas, it is not based exclusively upon Rawls’ theory of distributive justice or his liberal, contractarian notion of international relations. Therefore, it deserves evaluation based upon its own premises.
{55} Rawls, John, A Theory of Justice, (Cambridge, MA: Harvard University Press, 2003), p. 11.
{56} Id.
{57} It would seem relevant to note that, in the context of international relations, Rawls had a separate understanding of the original position. In particular, in The Law of Peoples, Rawls comments, “The content of a reasonable Law of Peoples is ascertained by using the idea of the original position a second time with the parties now understood to be the representatives of peoples” (17). While the utility of this conception of the original position as applied to global justice is hotly debated, it is not dealt with in this work. Rather, Rawls’ first order definition is discussed not in reference to a larger theory of international morality, but only in order to ensure that all relevant interests are adequately considered during the crafting of immigration policy. For a detailed discussion of Rawls’ second order definition of the original position, see Rawls, John, The Law of Peoples, (Cambridge, MA: Harvard University Press, 1999).
{58} Id. at 11. Note that the concept explained here, of using a Rawlsian original position in the context of a “realistic utopia,” was previously expounded upon in an unpublished paper by Joseph Falit that was written for a Princeton University class. The paper was written in the Fall of 2006 and is entitled, “Global Justice, Self-Determination, and the Occasions for Humanitarian Intervention.”
{59} Meyers, Eytan, “Theories of International Immigration Policy–A Comparative Analysis,” International Migration Review 34, no. 4, (Winter, 2000), 1245-1282.
{60} Walzer, Michael, Spheres of Justice: a Defense of Pluralism and Equality, (Oxford, England: Blackwell, 1983), p. 32.
{61} Black, Richard, “Immigration and Social Justice: Towards a Progressive European Immigration Policy,” Transactions of the Institute of British Geographers 21, no. 1, (1996), p. 68.
{62} As an example of an imperfect duty in the context of a domestic analogy consider a toddler drowning in the ocean. From a moral point of view, many will argue that if a beachgoer were to happen to see this occurring, he or she would have no ethical obligation to save the toddler, since it would involve some level of risk, regardless how minimal, to the bystander. (Of course, a utilitarian like Peter Singer would, in most cases, consider the bystander to have a moral duty to save the toddler, but since immigration occurs within the confines of a system of self-determining states, such a philosophical position is impracticable for the purposes of this work.) Nonetheless, assuming the beachgoer were a decently strong swimmer, saving the child would require some, but probably not much, risk exposure on his or her behalf. As a result, even though the beachgoer does not have a moral obligation to save the drowning toddler, one could argue that he or she ought to do so since such an act would not require supererogatory action or be unduly dangerous.
{63} These “practical constraints” that should govern the immigration policies of nations will be discussed in the later sections of this chapter.
{64} Carens, Joseph H., “Aliens and Citizens: The Case for Open Borders,” The Review of Politics 49, no. 2, (Spring, 1987), p. 262.
{65} Weiner, Myron, “Ethics, National Sovereignty, and the Control of Immigration,” International Migration Review 30, no. 1, (Spring, 1996), p. 176.
{66} Beitz, Charles R., “Justice and International Relations,” in International Ethics, ed. Beitz, Cohen, Scanlon and Simmons, (Princeton, NJ: Princeton University Press, 1990), p. 290-291.
{67} Id. at 290.
{68} Supra chapter 1, note 44. This concept will be further developed in later sections of this chapter.
{69} King, Timothy, “Immigration from Developing Countries: Some Philosophical Issues,” Ethics 93, no. 3 (April, 1983), p. 532.
{70} See, Borjas, George J., “The Economic Benefits from Immigration,” The Journal of Economic Perspectives 9, no. 2, (Spring, 1995), 3-22.
{71} Note that recent scholarly work finds immigrants to be imperfect substitutes with natives, largely due to the human capital they add to the labor market. For example, see, Ottaviano, G. and Peri, G., “Rethinking the Gains from Immigration: Theory and Evidence from the U.S.,” NBER Working Paper 11672, (September, 2005). This concept will be further expounded upon within this section.
{72} As Borjas comments, “It is easy to relax the assumption of inelastic supply curves. However, the calculation of the gains from immigration would be more cumbersome because we would have to account for change of utility experienced by native workers as they move between the market and nonmarket sectors.” See, Id. at 6, footnote 2.
{73} Note that this cost-benefit analysis doesn’t include any of immigration’s externalities on a host country’s economy. In particular, two main externalities exist, one positive and one negative. Both will be discussed in turn shortly.
{74} See, Chang, Howard F., “Liberalized Immigration as Free Trade: Economic Welfare and the Optimal Immigration Policy,” University of Pennsylvania Law Review 145, no. 5, (May, 1997), 1147-1244.
{75} Id. at 1148.
{76} Id. at 1159.
{77} See, Borjas, George J., “The New Economics of Immigration,” The Atlantic Monthly 278, no. 5, (Nov., 1996), 72-80. Borjas states, “Economic research teaches a very valuable lesson: the economic impact of immigration is essentially distributional. Current immigration redistributes wealth from unskilled workers, whose wages are lowered by immigrants, to skilled workers and owners of companies that buy immigrants’ services […]” (80).
{78} Borjas, George J., Friends or Strangers: The Impact of Immigrants on the U.S. Economy, (New York, NY: Basic Books, 1990), p. 81.
{79} Gaston, Noel and Nelson, Douglas, “Immigration and Labour-Market Outcomes in the United States: A Political-Economy Puzzle,” Oxford Review of Economic Policy 16, no.3, (2000), 104-114.
{80} Id. at 104.
{81} Although this goes somewhat beyond the purview of this work, even if it were universally agreed upon that immigration held negative distributive effects and positive macroeconomic consequences, the negative distributive consequences would not provide sufficient justification for protectionist policy. Rather, as long as net macroeconomic gains accrued, a tax and transfer system could be set up to benefit the “losers” of liberal immigration policies using some of the “winners’” capital. Of course, while economists most often use a cost-benefit analysis with a purely domestic focus, justifying policies only when domestic benefits outpace domestic costs, this approach seems to have much too narrow a scope in reference to the issue of immigration. Based upon the moral arguments laid out in the first section of this chapter, citizens of wealthier countries ought to allow reasonably liberal immigration policies, even if doing so requires that they accept certain costs (or inconveniences). In other words, the ideas espoused in this work could feasibly support an immigration policy that posed, to a certain degree, a fiscal burden for the U.S. government. For a detailed economic discussion concerning the creation of a “welfare” system that could redistribute gains from immigration, see supra note 21, at 1207-1210.
{82} Supra note 24, at 78.
{83} Id.
{84} Hayter, Teresa, Open Borders: The Case Against Immigration Controls, (London, England: Pluto Press, 2000), p. 161.
{85} Jacoby, Tamar, “Immigration Nation,” Foreign Affairs, (November/December, 2006).
{86} Id.
{87} Id.
{88} Ottaviano, G. and Peri, G., “Gains from ‘Diversity’: Theory and Evidence from Immigration in U.S. Cities,” (March, 2005).
{89} Supra note 31, at 159.
{90} Supra ch. 1, note 37, at 16.
{91} Taylor, J.E., “International Migration and Economic Development,” United Nations Department of Economic and Social Affairs, (Turin, Italy: International Symposium on International Migration and Development; June, 2006), p. 7.
{92} Massey, Douglas S., “Economic Development and International Migration in Comparative Perspective,” Population and Development Review 14, no. 3, (September, 1988), 383-413. See, especially 390-396.
{93} Id. at 391.
{94} Id. at 392-393.
{95} Supra note 36, at 7.
{96} Id.
{97} Supra ch. 1, note 37, at 144. In reference to this argument, it is relevant to bring to light the fact that, historically speaking, very few people in the world have permanently moved outside their country of origin. Hania Zlotnik remarks, “[G]iven the concomitant increase in the number of distinct units (countries and territories) constituting the world and the persistence of sharp economic and demographic disparities among countries and regions, the percentage of people who have left and remained outside their countries of origin is remarkably small and has been relatively stable for a long period, oscillating between 2.1 and 2.3 percent of the world’s population during 1965-1990” (465). See, Zlotnik, Hania, “International Migration 1965-96: An Overview,” Population and Development Review 24, no.3, (September, 1998), 429-468.
{98} See Pogge, Thomas, “’Assisting’ the Global Poor,” in The Ethics of Assistance: Morality and the Distant Needy, ed. Deen K. Chatterjee, (Cambridge, England: Cambridge University Press, 2004), 260-288.
{99} Id. at 262.
{100} Id. at 264-269.
{101} Id. at 268.
{102} Id. at 270.
{103} Id. at 265.
{104} Supra note 39, at 384.
{105} Nuñez-Neto, Blas and Viña, Stephen, “Border Security: Barriers Along the U.S. International Border,” CRS Report for Congress RL33659, (December 12, 2006), p. 1.
{106} Id.
{107} Andreas, Peter, Border Game: Policing the U.S.-Mexico Divide, (Ithaca, NY: Cornell University Press, 2000), 87-88.
{108} Clinton, William, “Remarks by the President, the Vice President and the Attorney General during Immigration Policy Announcement,” White House Office of the Press Secretary, (July 27, 1993).
{109} Lake, Jennifer and Nuñez-Neto, Blas, “Homeland Security Department: FY 2006 Appropriations,” CRS Report for Congress RL32863, (June 29, 2005), 20-21.
{110} “Fact Sheet: Securing America’s Borders CBP 2006 Fiscal Year in Review,” Department of Homeland Security, (October 30, 2006).
{111} “Fact Sheet: The Secure Fence Act of 2006,” White House Office of the Press Secretary, (October 26, 2006). In total, there are three government bureaus that are chiefly involved with immigration services: CBP, Immigration and Customs Enforcement (ICE), and U.S. Customs and Immigration Services (USCIS).
{112} Referenced in supra note 1, at 2. For pertinent IIRIRA provisions, see IIRIRA, P.L. 104-208, Div. C.
{113} Referenced in supra note 1, at 2. For pertinent Real I.D. Act provisions, see REAL I.D. Act of 2005, P.L. 109-13, §102. It is worthy to note that the REAL I.D. Act was tacked on to an emergency appropriations bill that held the main intention of continuing to provide funds for U.S. military efforts in Iraq and Afghanistan. Even though the emergency funding bill passed in the House with the REAL I.D. Act included, the Senate version of the bill contained no such section. Upon referral to a House-Senate conference committee in order to resolve the discrepancy, some of the REAL I.D. Act provisions were removed or modified, but in the end, it remained largely intact.
{114} Supra note 7.
{115} Bush, George W., “President Bush Signs Secure Fence Act,” White House Office of the Press Secretary, (October 26, 2006).
{116} Ch. 1, supra note 45, at 4.
{117} Id. at 6 (see Figure 5) and at 2-3. Although Mexican-born people are not the only unauthorized migrants crossing the southern border into the U.S., they represent the vast majority of illegal border crossers and thus serve as a reasonable proxy for the total amount of undocumented immigrants crossing the southern border. Specifically, in FY 2005 Mexican nationals represented 1,023,930 of the 1,189,108 people apprehended by CBP [See “Fact Sheet: Border Apprehensions 2005,” Office of Immigration Statistics, (November, 2006), Table 1.]. In addition, since it is estimated that between one-third and one-half of the unauthorized residents in the U.S. have arrived at their status by overstaying their visas, it is difficult to determine which portion of the more than 11 million undocumented immigrants currently in the U.S. entered illegally by crossing the southern border. Nevertheless, overall flows of illegal migrants have remained relatively constant over the last decade, and as discussed below, the marginal cost to U.S. tax payers per apprehension along the southern border has greatly increased over time.
{118} Supra note 1, see “Summary” section at beginning of report.
{119} Id. at 25.
{120} Supra note 13, “Fact Sheet: Border Apprehensions 2005.” Apprehension statistics represent a count of all individuals apprehended during a designated time period. Since some individuals will be apprehended more than once, the total number of apprehensions will be greater than the total number of individuals apprehended.
{121} Supra note 1, at 9.
{122} Ch. 1, supra note 37, at 118.
{123} Supra note 13, See “Fact Sheet: Border Apprehensions 2005,” at Table 1.
{124} Zimmerman, Eilene, “Against the Wall,” Salon.com, (September 12, 2005). Available at:
http://dir.salon.com/story/news/feature/2005/12/12/border_wall/index.html?pn=1
{125} Id.
{126} “Border Crossing Deaths have Doubled since 1995; Border Patrol’s efforts to Prevent Deaths have not been Fully Evaluated,” GAO, (August, 2006).
{127} REAL I.D. Act of 2005, P.L. 109-13, §102(c).
{128} Supra note 20.
{129} Id.
{130} Hing, Bill, “Deporting Our Souls: Values, Morality, and Immigration Policy,” (New York, NY: Cambridge University Press, 2006), p. 147. For a brief discussion of the legislative history of the REAL I.D. Act refer to Ong Hing’s book or footnote 9 of this work.
{131} Supra note 20.
{132} Supra note 26.
{133} Referenced in supra note 20.
{134} Quoted in supra note 3, at 99. Originally from, Dallas Morning News, (September 11, 1994).
{135} “Semiannual Report to the Congress: April 1, 2006 – September 30, 2006,” DHS Office of Inspector General, (October 31, 2006). For ICE misconduct report, see pages 33-41.
{136} Orrenius, Pia M., “Illegal Immigration and Enforcement along the Southwest Border,” Federal Reserve Bank of Dallas, (June, 2001).
{137} “Alien Smuggling: Management and Operational Improvements Needed to Address Growing Problem,” GAO, (May, 2000), p. 6.
{138} Ch. 1, supra note 37, at 130.
{139} Id. at 129.
{140} Id.
{141} Id.
{142} Supra note 3, at 88.
{143} “Immigration Enforcement: Weaknesses Hinder Employment Verification and Worksite Enforcement Efforts,” GAO-05-813, (August, 2005), p. 8.
{144} IIRIRA, P.L. 104-208.
{145} Supra note 39, at 8. The penalty for employers who engage in a pattern of hiring undocumented residents ranges from several thousand dollar fines to six months in jail.
{146} Stana, Richard M., “Identity Fraud: Prevalence and Links to Alien Illegal Activities,” GAO-02-830T, (June 25, 2002), p. 8.
{147} Id. Also see, “Becoming an American: Immigration and Immigrant Policy,” U.S. Commission on Immigration Reform, (September, 1997), 113-114.
{148} Supra note 42, at 8.
{149} Id.
{150} Stern, Marcus, “Low-Skill Labor Market Full of Illegal Workers, but Employers are Seldom Fined,” San Diego Union Tribune, (November 2, 1997).
{151} “Immigration Enforcement: DHS has Incorporated Immigration Enforcement Objectives and is Addressing Future Planning Requirements,” GAO-05-66, (October, 2004), p. 4.
{152} Id. See Executive Summary.
{153} Id. at 11-12.
{154} Lake, Jennifer and Nuñez-Neto, Blas, “Homeland Security Department: FY 2007 Appropriations,” CRS Report for Congress RL33428, (July 5, 2006), p. 38.
{155} Id. The Compliance Enforcement Unit uses such expensive technology as the US-VISIT system and the National Security Entry/Exit System. These types of systems document and monitor foreigners who are entering and exiting the country.
{156} Stana, Richard M., “Homeland Security: Challenges to Implementing the Immigration Interior Enforcement Strategy,” GAO-03-660T, (April 10, 2003), p. 7.
{157} Brownell, Peter, “The Declining Enforcement of Employer Sanctions,” Migration Policy Institute, (September, 2005). Available at:
http://www.migrationinformation.org/Feature/display.cfm?ID=332
{158} Referenced in supra note 3, at 101.
{159} Additionally, it is worthy to note that some “foreign-looking” Americans experience discrimination when seeking employment authorization and applying for jobs. For example, vigilante employers may more heavily scrutinize the I-9 forms of “foreign-looking” or “foreign sounding” individuals, assuming that these workers are necessarily undocumented.
{160} “IRCA Antidiscrimination Provisions,” U.S. Department of Agriculture, (July 2, 2001). Available at:
http://www.thecre.com/fedlaw/legal19/ircadisc.htm
{161} Ch. 1, supra note 37, at 120.
{162} Id.
{163} Id. at 121.
{164} Id.
{165} Id. at 122, see Figure 6.6.
{166} Gordon, Jennifer, “We Make the Road by Walking: Immigrant Workers, The Workplace Project, and the Struggle for Social Change,” 30 HARV. C.R-C.L. L. REV. 407, (1995), at 414.
{167} Bosniak, Linda S., “Exclusion and Membership: The Dual Identity of the Undocumented Worker Under United States Law,” 1988 WIS. L. REV. 955, 1007, at 1015.
{168} Hoffman Plastic Compounds, INC. v. NLRB, 535 U.S. 137, 1275, (2002).
{169} Garcia, Ruben J., “Ghost Workers in an Interconnected World: Going Beyond the Dichotomies of Domestic Immigration and Labor Laws,” 36 U. Mich. J.L. Reform 737, (2003), at 747.
{170} Id. As Garcia comments, ‘back pay’ is defined as follows: “Back pay is what the worker would have earned after the unlawful termination, minus any earnings the worker actually earned with another employer, plus interest.” See Id.
{171} Supra note 64.
{172} Sure-Tan, INC., v. NLRB, 467 U.S. 883, (1984).
{173} Supra note 65, at 748.
{174} H.R. Rep. No. 99-682, (1986), pt. 1, at 49.
{175} Supra note 64.
{176} Supra note 39, at 9.
{177} Id.
{178} Id.
{179} The following summary of the Basic Pilot Program was adapted from information contained within the 2005 GAO report: “Immigration Enforcement: Weaknesses Hinder Employment Verification and Worksite Enforcement Efforts.” For a detailed description of this program, refer directly to the GAO report; see Id. at 9-12.
{180} For a flow chart that presents the various steps in the Basic Pilot Program, see Appendix III.
{181} “Accuracy of the Social Security Administration’s Numident File,” Office of the Inspector General: Social Security Administration A-08-06-26100, (December, 2006), ii.
{182} Supra note 39, at 22-23.
{183} “The Basic Pilot Program: Not a Magic Bullet,” National Immigration Law Center, (March 13, 2007), 3-4. See this article for a detailed overview of all of The Basic Pilot Program’s shortcomings.
{184} “INS Basic Pilot Evaluation: Summary Report,” Temple University Institute for Survey Research and Westat, (January 29, 2002), p. 39.
{185} Supra note 39, at 23.
{186} In the case of a tentative non-confirmation, where the SSA or DHS database might contain an error, the third-party could contact the employee directly. The period of time where the employee could contest a tentative non-confirmation would be included within the time frame within which the employer would be notified by DHS of the employee’s final employment eligibility status. Informing employers of tentative non-confirmations only gives them cause to fire an employee who may or may not be eligible to work. Thus, it is best to keep tentative non-confirmations within internal bureaucratic channels. By providing employers final non-confirmations and not tentative decisions, they are implicitly forced to do one of two things. Either they could comply with the law and discharge the employee or notify DHS of his presence, or they could allow the employee to continue working illegally. Under the latter option, if DHS or another government agency happened to audit the employer and find the unauthorized employee on the payroll, the employer would not be able to claim that he did not know the worker was unauthorized. Furthermore, if an audit of any business produced workers who had failed to undergo the electronic employment verification process, the employer as well as the employee would be guilty of violating labor laws.
{187} Significantly, this statement depends to a certain extent on the government demonstrating a sustained commitment to enforcing the employment and labor rights of all workers without regard to their immigration status.
{188} Supra note 79, at 1-2.
{189} See “Remarks by President George W. Bush and President Vincente Fox of Mexico in Joint Press Conference,” White House Office of the Press Secretary, (February 16, 2001). In addition, see Gribbin, August, “Mexican Amnesty Plan Resurfaces,” The Washington Times, (February 15, 2002).
{190} See Cole, David, “Enemy Aliens,” 54 Stan. L. Rev. 953, (2001), 966-974.
{191} Turnlin, Karen C., “Suspect First: How Terrorism Policy is Reshaping Immigration Policy,” California Law Review 92, Issue 4, (July 2004), p. 1177.
{192} Id. at 1178. See Homeland Security Act of 2002, 6 U.S.C., §291 (2003) and 6 U.S.C. §251; the former provision abolishes the INS and the latter creates the DHS.
{193} See Id.
{194} See ch. 3, Supra note 43, at 153-160.
{195} Id. at 154.
{196} “Securing Our Homeland: U.S. Department of Homeland Security Strategic Plan,” DHS, (2004), p. 4. Available at:
https://www.dhs.gov/xlibrary/assets/DHS_StratPlan_FINAL_spread.pdf
{197} Generally, TSA is responsible for protecting the air, land, and rail transportation systems within the U.S. See ch. 3, Supra note 50, at 32.
{198} Id.
{199} “U.S. Citizenship and Immigration Services: Backlog Elimination Plan,” USCIS, (April 7, 2006), p. 2.
{200} Rudolph, Christopher, “Homeland Security and International Migration: Toward a North American Security Perimeter?” Prepared for: IRPP Conference on North American Integration, (March 21, 2004), p. 13.
{201} “Visas to the United States: Return of the Preying Mantis,” Current Science 84, no. 9, (May 10, 2003), 1174-1175.
{202} Supra note 12, at 13.
{203} Id. at 13-14.
{204} “Visiting Scholars Stuck in Anti-Terror Screening; Thousands of Visas are Stalled, Denied,” Chicago Tribune, (December 26, 2003).
{205} “Border Security: Improvements Needed to Reduce Time Taken to Adjudicate Visas for Science Students and Scholars,” GAO-04-371, (February, 2004), see Executive Summary. Notably, the 67 day average adjudication time does not include the average waiting time of one to two weeks before someone can be interviewed by a consular post. This interview process necessarily precedes Visa Mantis procedures.
{206} Yale-Loehr, Papademetriou, and Cooper, “Secure Borders, Open Doors: Visa Procedures in the Post-September 11 Era,” Migration Policy Institute, (2005), p. 20.
{207} Id.
{208} Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), Pub. L. No. 107-56.
{209} Doyle, Charles, “The USA PATRIOT Act: A Legal Analysis,” CRS RL31377, (April 15, 2002), p. 50.
{210} Supra note 2, at 970. Also see: Brandenburg v. Ohio, 395 U.S. 444, (1969), at 447.
{211} Supra note 21, at 51.
{212} Supra note 2, at 971.
{213} See, Korematsu v. U.S., 323 U.S. 214 (1944).
{214} Chishti, Muzaffar, et al., “America’s Challenge: Domestic Security, Civil Liberties, and National Unity after September 11,” Migration Policy Institute, (2003), 12-13.
{215} Id.
{216} Palko v. Connecticut, 302 U.S. 319, (1937), at 319. Also quoted in Cole, supra note 2, at 980.
{217} Supra note 2, at 980.
{218} Johnson, Kevin, and Trujillo, Bernard, “Immigration Reform, National Security after September 11, and the Future of North American Integration,” UC Davis Legal Studies Research Paper Series, Paper no. 101, (February, 2007), 33-40.
{219} Id.
{220} Id. at 36.
{221} Meyers, Deborah, “Security at U.S. Borders: A Move Away from Unilateralism?” Migration Policy Institute, (August, 2003). Available at:
http://www.migrationinformation.org/USfocus/display.cfm?ID=149
{222} “United States-Canada-Mexico Fact Sheet on Trade and Migration,” Migration Policy Institute, no. 11, (October, 2005).
{223} Id.
{224} Supra note 12, at 18-19.
{225} Meissner, Doris, “Immigration in the Post 9-11 Era,” 40 Brandeis L.J. 851, (Summer, 2002), 858.
{226} “U.S.-Canada Smart Border / 30 Point Action Plan Update,” White House Office of the Press Secretary, (December 6, 2002). Available at:
http://www.whitehouse.gov/news/releases/2002/12/20021206-1.html
{227} Id.
{228} Ch. 3, supra note 26, at 157.
{229} “Smart Border: 22 Point Agreement–U.S-Mexico Border Partnership Action Plan,” White House Office of the Press Secretary, (March 21, 2002). Available at:
http://www.state.gov/p/wha/rls/fs/8909.htm
{230} Meyers, Deborah M., “Does ‘Smarter’ Lead to Safer? An Assessment of the Border Accords with Canada and Mexico,” Migration Policy Institute, no. 2, (June, 2003), 8-9.
{231} See Massey, Douglas S., “Backfire at the Border: Why Enforcement without Legalization Cannot Stop Illegal Immigration,” CATO Institute–Center for Trade Policy, (June 13, 2005), at 4-5; supra note 30, at 23-24; Johnson, Kevin, “Free Trade and Closed Borders: NAFTA and Mexican Immigration to the United States,” 27 U.C. DAVIS L. REV. 397, (Summer, 1994), at 971-974.
{232} “The Security and Prosperity Partnership of North America,” Office of the Prime Minister of Canada, (March 23, 2005). Also see, “Fact Sheet: Security and Prosperity Partnership of North America,” White House Office of the Press Secretary, (March 31, 2006). Available at:
http://www.spp.gov/factsheet.asp
{233} Ackleson, Jason, “Achieving ‘Security and Prosperity’: Migration and North American Economic Integration,” Immigration Policy Center 5, Issue 2, (February, 2006), p. 5.
{234} Id. at 5-6.
{235} Id. at 6.
{236} Massey, “Backfire at the Border,” supra note 43, at 3-4.
{237} Id. at 12.
{238} Johnson, “Free Trade and Closed Borders,” supra note 43, at 942.
{239} Information about FAIR is available at their website:
http://www.fairus.org
{240} Jacoby, Tamar, “Distinguishing Terrorists from Busboys: How to Think about Immigration,” The Weekly Standard 7, Issue 19, (January 28, 2002), p. 31.
{241} Supra note 43, at 11.
{242} Supra note 52, at 31.
{243} Massey, ch. 3, Supra note 43, at 12.
{244} See ch. 2, Supra note 2.
{245} Id.
{246} See ch. 2, Supra note 39.
{247} Many of the ideas for this guest worker program are derived from the considerations and proposals forwarded by Douglas Massey, Manuel Pastor, and Susan Alva. For Massey’s recommendations for a temporary worker program, see, ch. 1, Supra note 37, at 158-163. Also see, Pastor, Manuel and Alva, Susan, “Guest Workers and the New Transnationalism: Possibilities and Realities in an Age of Repression,” Social Justice 31, (2004), 92-112.
{248} These figures are based on conservative estimates of annual undocumented migration from Mexico. See ch. 1, Supra note 45, at 8.
{249} Since there is significant evidence that the longer a migrant spends residing in a country, the more likely he or she is to pursue permanent residence (see, ch. 2, Supra note 39), weighing time in America against time in Mexico would help to ensure that the desires of most temporary workers would not shift towards permanence.
{250} Ch. 1, Supra note 37, at 160.
{251} Id.
{252} Pastor and Alva, Supra note 5, at 103.
{253} It is worthy to note that providing a path to legalization within the temporary worker program is really a de facto way to expand Mexico’s immigration quota of 20,000. This quota is absurdly low for a country with deep historical, geographic, and political ties to the U.S. By expanding the quota for legal immigration from Mexico via a temporary worker program, the U.S. government can effectively pre-screen petitioners based upon level of integration and assimilation. Moreover, the program would act as a “trial period” for Mexican migrants, allowing them to decide if permanent residence in the U.S. is really what they want for their future. Of course, the exact criteria for such a program would need to be determined.
{254} Ch. 1, Supra note 37, at 159-160.
{255} Ch. 3, Supra note 64.
{256} President Bush typically uses this jargon when discussing his proposal for an “earned legalization” program. For example, see “President Discusses Comprehensive Immigration Reform,” White House Office of the Press Secretary, (April 24, 2006).
Available at: http://www.whitehouse.gov/news/releases/2006/04/20060424-2.html
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