Crisis of Faith in the Nation of Immigrants

Law & Theory Sep 25, 2019

By Kemal Kongar

"Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!"

-Excerpt from The New Colossus, by Emma Lazarus (1883)

When President Trump claimed that the Mexican government was sending rapists into the United States, it was obvious that the national conversation on immigration was going to take a drastic turn. While legal immigration, and the complications that come with it, can and should be written about, the poster child of the American immigration debate is the state of illegal immigration.

Throughout the past several years, the political press has been bombarded with policy proposals ranging from repealing Deferred Action for Childhood Arrivals (DACA) to building a full-fledged wall on the U.S-Mexican border. As the 2020 presidential race heats up, so does the intensity in which these proposals are received by people on either side of the political aisle. The way in which immigration law is enforced continues to be a major focal point in almost all federal level election campaigns, going so far as to cause widespread backlash against certain government agencies. As an issue which a large number of people have personal stories or connections to, it is important to explore the current state, and possible future, of illegal immigration in the United States. This article will focus on the current legal statutes, actions taken by the Immigration and Customs Enforcement (ICE) and the White House to curb immigration numbers, and the policy proposals that are being introduced by presidential hopefuls.

As this is a topic that is being actively debated in current-day politics, the first two sections will refrain from presenting personal views or commentary. The third section will evaluate the applicability of some of the proposals from presidential nominees, comparing them to policies and ideas put forth by individuals from a wide range of political beliefs.

Part I. The Current Statute on Illegal Immigration

“8 U.S. Code § 1325. Improper entry by alien” states that:

“Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.”

This applies to the kind of illegal immigration that is most commonly talked about in the news: immigrants, or refugees, crossing the U.S. southern border to gain access to the country. Although it remains the focus of arguments advocating for increased border security, illegal border crossings do not account for a majority of illegal immigration. In fact, for the past seven years, visa overstays have outnumbered border crossings by an almost two-to-one ratio. Most people arrive into the U.S. through airports, or other access points, in a perfectly legal manner. Then, after a while, rather than honour their visa requirements of vacating the country, they remain within the borders. This makes it hard to enforce sovereignty over U.S. territory which would require constant tracking of visa statuses to keep up-to-date with expiration dates.

While a bill aimed at penalizing such visa violations has been introduced in Congress (H.R. 147 – Visa Overstay Enforcement Act of 2019) to amend the Immigration and Nationality Act, it is hard to predict if it’s going to garner enough support to turn into law. Even then, due to the ambiguous nature of correctly predicting the number of illegal immigrants in the country, the law’s efficiency would be in question. A much more expansive and capable bureaucratic apparatus would be needed to keep track of, and penalize, individuals with expired visas. That would mean that the funding for government organizations in charge of detaining and deporting individuals without valid legal reasons to stay in the country would have to go up. In short, enforcing strict visa-checks would mean revamping large portions of the U.S. immigration system.

On the other hand, border security is perceived to be a much easier thing to implement from an administrative point of view. Rather than having to track people on a set time basis, to ensure that they are still in the country legally, a state can make it harder for undocumented aliens to cross its physical borders via increased security provisions. This is what the current president has advocated for since starting his bid for office back in the summer of 2015.

What has made the debate on immigration inflammatory, however, has more to do with the perceived overextension of government organizations in detaining and deporting illegal aliens. Without making distinction on the method of entry, “8 U.S. Code § 1227. Deportable aliens”refers to aliens who were deemed inadmissible, were refused reentry, or violated their visa conditions as apt for removal. This would apply to students with expired permits, high skilled workers, family members of citizens, and seasonal employees alike. In short, according to the current statute, any alien currently within U.S. borders illegally can be detained, and possibly deported pending verdict from immigration courts.

With that being the case, and the law being quite cut-and-dry in terms of being indiscriminatory on the reasons for deportation, why is the debate over illegal immigration still on the forefront of politics in the modern United States? Well, in order to examine the everlasting popularity of this subject, one must also look into the normative ways in which different governments administer the application of legal provisions on immigration

Part II. Actions of the Current Administration

While President Trump has made immigration the principal issue of his presidency, the detention numbers show an interesting trend when compared to those of the Obama administration. According to a Vox Media report, between February 2017 and September 2018, an average of 436 arrests were made on a daily basis. Compared to the 300 that were reported during the Obama administration, one may be inclined to assume that the process has seen a dramatic increase in efficiency. However, the underlying causes for these arrests have changed drastically. Under the Obama administration, 47 illegal aliens without criminal records on average were detained per day. Under President Trump, this figure has jumped to 139. Making up the majority of the difference in numbers between the two eras, the detention of illegal immigrants without criminal records has resulted in major political blowback from those who believe that such actions are cruel and unnecessary.

The primary way in which the administration has increased the number of detained aliens has been through the U.S. Immigration and Customs Enforcement. Thus, it is important to understand the workings of this organization for the sake of providing background information to the topic at hand. A subbranch of the Department of Homeland Security, ICE was founded in 2003 during the Bush administration. While it consists of three operational branches, the one that has garnered he most media attention is the “Enforcement and Removal Operations” (ERO). Mandated with upholding U.S. immigration law, the ERO is responsible for detaining, and if deemed applicable, removing illegal aliens from the country. The increase in removals of illegal aliens without criminal records has led to widespread outrage within portions of the American electorate, who claim that ICE breaks up families and communities for no reasons other than to fuel the current administrations perceived crusade against illegal immigration. The blowback has resulted in calls to “Abolish ICE” by prominent progressive Democrats, reflecting the reality of increasing division within the country on the issue of illegal aliens.

It must also be mentioned that this increase comes at a time where the rhetoric against certain kinds of immigrants has taken a malicious turn. The primary example of this would be the “Muslim ban,” which refers to a series of executive orders signed by President Trump aiming to curb the entry of people from several Muslim-majority countries. While struck down by the Supreme Court twice, the third iteration has been deemed legal, going into effect and making it harder for citizens of targeted countries from entering the United States. This is important to mention as actions such as these play into the ‘bad-faith’ argument one can make about the actions of the administration and the methods they have employed. Overt references to citizens of certain countries as ‘inherently-dangerous’ creates the backdrop in which ERO actions can be linked to malicious rhetoric supported by the White House.

As we move close to the 2020 presidential election, it’s hard to think of a topic that divides Americans as much as immigration. With “Build the Wall” chants being ever popular at Trump rallies, and with jabs at Democrats for being ‘weak’ on the issue still ongoing, the recent presidential term has become synonymous with ‘tough on immigration’. That being said, as we approach the first Democratic caucuses, it is also of paramount importance to examine the policies put forth by presidential hopeful that aim to shape the future of immigration law in the United States.

Part III. Proposed Changes and the Future

As the Democratic Party embarks on the long journey of finding its presidential nominee, several candidates continue to dominate the debates, and the news cycle, with their ‘radical’ approaches to immigration. While the issue is diverse enough that more than a couple key policy proposals are needed to properly evaluate a candidate’s position on the future of (illegal) immigration, one can still examine the most striking positions, and the arguments against them, presented by the candidates.

Firstly, there is the issue of decriminalizing border crossings. Spearheaded by former Secretary of Housing and Urban Development Julián Castro, this proposal would make it so that individuals apprehended trying to cross the U.S. border would not face criminal penalties. Instead, the matter would be handled as a civil issue. Of the highest polling, and thus most likely, Democratic nominees, the proposal is supported by Senator Bernie Sanders and Senator Elizabeth Warren. The more ‘moderate’ candidates on the other hand, such as former Vice President Joe Biden and Senator Klobuchar, oppose the proposed changes. Unpopular with the electorate at large, easing up on punishing those who cross the U.S. border illegally would be an almost unprecedented move. The argument presented is that, with the act being a criminal offense, it gives those in charge of government functions ammunition to separate families or treat individuals in ways some would categorize as inhumane. Those opposed to the proposal have stated that they would be in favor of expanding the methods of legal immigration to the United States, including seeking asylum, but would be against easing the government’s grip on border control.

As stated before, this policy does not have the backing of a large enough portion of the electorate to be efficient fuel for the election. It could instead be ammunition for the Republicans as, with the President continuing to use illegal immigration as a rallying cry, appearing ‘weak’ on immigration remains a major issue for Democrat, especially in Republican dominated demographics. Even without the looming election, it is an interesting policy from a political science point of view. Countries that are known for having working, competitive immigration systems (such as Canada or Australia) do not shy away from enforcing border security and criminal prosecution for violations. It seems like such a change would actually be in a similar vein to what the Republicans have been calling an ‘open-border’ policy. In the era of nation states, keeping control of one’s borders is of paramount importance for upholding sovereignty. It seems like an odd hill to die on given the unpopular nature of the policy.

Following up on the first proposal the majority of Democrats, including certain ‘moderates’ such as Mr. Biden, support extending government-run healthcare to undocumented immigrants. Education is also covered under the proposals of nominees such as Senator Sanders. While this is not as controversial as the first proposal, it still makes an awkward distinction between ‘residents’ of the United States and illegal aliens. With those currently residing in the country being slowly detained and deported by ICE officials, it is hard to imagine how such a system would work concurrently with efforts to remove illegal aliens. The most likely answer is: It wouldn’t. Despite this, all of the current Democratic candidates support creating a pathway to citizenship for the estimated 11 million illegal aliens residing in the United States. To clarify, this is independent of the support some candidates have shown to targeting and removing aliens who have committed serious crimes.

In terms of the ‘Abolish ICE’ movement being actual proposed policy, no major candidate has embraced such a view. However, a majority of the field have stated that ICE’s functions should be redefined or redistributed to other agencies. This may be due to the disparity between rhetoric the progressive wing of the Democratic party employs, which is useful for getting young people to vote, and the perceived negative optics that it would bring to a nation-wide election campaign.


The immigration debate in the United States keeps raging on. With reports of inhumane living conditions for those being ‘kept in cages’ and with the ‘Muslim ban’ creating a dramatic backdrop for federal politics, the 2020 election seems like it’s going to represent a fork in the road. With changing demographics and shrinking low-skill job opportunities, immigrants have been the scapegoats for modern U.S. woe. It seems like the next president will have the chance to curb this trend, or possibly, augment it.


Bonn, Tess. “Poll: Plurality Backs Criminal Prosecutions for Illegal Border Crossings.” The Hill, July 8, 2019.

Gonzales, Richard. “For 7th Consecutive Year, Visa Overstays Exceeded Illegal Border Crossings.” National Public Radio, Inc., January 16, 2019.

Janes, Chelsea, Kevin Schaul, Michael Scherer, and Kevin Uhrmacher. “Where 2020 Democrats Stand on Immigration.” The Washington Post, n.d.

Lind, Dara. “Supreme Court Rules in Favor of Trump’s Travel Ban.” Vox, June 26, 2018.

Lind, Dara, and Javier Zarracina. “By the Numbers: How 2 Years of Trump’s Policies Have Affected Immigrants.” Vox, February 5, 2019.

Rappaport, Nolan. “Illegal Immigration, by the Numbers: Visa Violators and Border Crossers,” June 9, 2019.

Ye Hee Lee, Michelle. “Donald Trump’s False Comments Connecting Mexican Immigrants and Crime.” The Washington Post, July 8, 2015.