The Border Security and Immigration Improvement Act: A Modern Solution to a Historic Problem?

Article excerpt


The United States is essentially a country of immigrants; however, current United States immigration policy fails to adequately safeguard the rights of certain immigrant groups. Our nation's views toward immigration have changed considerably over the decades.1 Today, there is a marked focus both in the political arena and in general public discourse on the problems caused by illegal immigration from Central and South America, and in particular from Mexico, to the United States.2 The United States government estimates that over 200,000 Mexican immigrants came to the United States in 2001 alone,3 and as of 1996, half of the undocumented population, or more than 2.7 million immigrants, were from Mexico.4 According to the 2000 census, Mexicans make up 30% of all foreign-born people in the United States,5 qualifying as the largest group of immigrants, both legal and illegal, in this country.

In July 2003, Arizona Representatives Jim Kolbe and Jeff Flake, and Arizona Senator John McCain, introduced into Congress the Border security and Immigration Improvement Act.6 The bill's main proposal is to establish two new categories of nonimmigrant work visas.7 It also provides for admission of temporary H-4A workers,8 adjustment of alien status to that of H-4B nonimmigrant status in certain circumstances,9 and allocation of additional funds to the United States Employment Service.10 Most recently, President George W. Bush unveiled a similar immigration reform.11

This Note will analyze the likely effectiveness of the proposed legislation and its possible consequences on the migration relationship between the United States and Mexico. Part I of this Note will briefly examine the history of United States immigration policy with respect to Mexican migration. Part II will compare some of the key provisions of the Border security and Immigration Improvement Act with similar provisions of past legislation, focusing on the relative successes and failures of these previous attempts at immigration regulation and the lessons to be learned from them. It will also look briefly at Canadian and European migration legislation for comparative purposes and for novel approaches to immigration policy. Part III of this Note will conclude with possible alternative solutions to the problems facing immigration policymakers today.


A. Predominant Pieces of Legislation Influencing Migration from Mexico to the United States

The late 1800s and early 190Os marked a period of relatively unrestricted immigration from Mexico to the United States.12 As the supply of Chinese workers decreased with the enactment of the Chinese Exclusion Act of 1882,13 United States employers in the southwest began to recruit large numbers of Mexican laborers to lay rails and harvest crops.14 The legislation passed during this period reflects a preference for Mexican immigrants over those from other parts of the world.15

While the Chinese Exclusion Act granted Mexican migrants an overarching degree of protection, United States policies regarding Mexican immigration shifted in response to the changing economic situation in the country.16 The Border Patrol was created in 1924 to control illegal immigration into the country.17 The 1924 Act also established a visa requirement for all people wanting to immigrate to the United States;18 however, Mexicans largely ignored this requirement and crossed the border without the necessary paperwork.19

The deportations of the 1920s marked a high point in restrictive United States immigration policy, but the institution of the Bracero Program two decades later signified a shift toward more liberal attitudes regarding immigration from Mexico.20 In response to the labor shortages caused by World War II, Congress entered into a series of bilateral agreements with the Mexican government21 that allowed for the importation of temporary laborers into the United States. …