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Immigration Law

What Is 'Comprehensive Immigration Reform?' Taking the Long View, by Professor Hiroshi Motomura

My main goal in this essay is to address one aspect of current debates about immigration law and policy. My focus will be ''legalization,'' by which I mean a program that confers lawful immigration status on a group of noncitizens who currently lack it. Legalization is worth addressing directly, precisely because it is so contentious and complex.

I will start with just a general sketch of the basic outlines of legalization proposals. One reason to keep this sketch general is that before any legalization proposal becomes law--if that should ever happen--it will undergo countless rounds of negotiation and compromise. The other reason to keep this sketch general is that any discussion of legalization needs to start by identifying the basic issues at stake.

One misconception is that legalization is the key component of any comprehensive reworking of our immigration laws. It is not. All that legalization accomplishes is that it corrects the shortcomings of immigration laws in the past. Legalization does nothing to fix immigration laws going forward. This is not to say that legalization is entirely backward looking; it does affect immigration patterns going forward. I will come back to explaining this.
My point for now is that the effects of legalization fade over time. If policymakers overlook or choose to ignore this fact, then the next generation will need to revisit the same issues. This, of course, is a way to evaluate the amnesty program in 1986. It is no accident that the same issues are up for discussion again, about one generation later, with the uncomfortable feeling that we found no durable solutions in 1986.

A second misconception about amnesty--or legalization--is that it is an unusual and infrequent occurrence in U.S. immigration law history. It is not. To be sure, a major component of IRCA was a legalization or amnesty program, but it is only the most visible example from among a vast array of legalization programs that have given lawful immigration status to hundreds of thousands--or even millions--of individuals who have come to the United States outside the law.

This legalization has sometimes occurred on an individual basis. At other times, these legalization programs have benefited large groups of noncitizens. Later in these remarks, I will say more about these programs and their significance. For now, let me just say that the second common misconception about U.S. immigration policy is that legalization is unusual.

Hiroshi Motomura is the Susan Westerberg Prager Professor of Law, School of Law, University of California, Los Angeles. This essay is an expanded version of hisHartman Hotz Lecture on November 12, 2009, at the University of Arkansas, Fayetteville. subscribers can read the entire What Is ''Comprehensive Immigration Reform''? Taking the Long View in the July 1, 2010 edition of Bender's Immigration Bulletin.

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