Mexican families & United States immigration reform.

• Author: Trujillo, Bernard

ABSTRACT

This essay argues that we should understand U.S. immigration policy as a series of bi-national relationships rather than as a single, user-indifferent interface. Applying this regulatory approach to Mexican labor migration (i) allows a more accurate definition of the migrating person in the context of the family he seeks to support; and (ii) highlights the United States' duty to provide for Mexican families.

Abstract Introduction I. Field Definition A. Bi-State Methodology B. Choosing Mexico C. Defining the Migrating Person II. If You Have the Facts, Argue the Facts III. If You Have the Law, Argue the Law Conclusion INTRODUCTION

"If you have the facts, argue the facts. If you have the law, argue the law." This old lawyers' adage captures the profile of current debates about reforming U.S. immigration policy. Well-intentioned people, some armed with the facts and others with the law, talk past each other. Advocates of strict enforcement finger well-worn copies of the statutes and color their opponents as scofflaws. Proponents of a comprehensive legal re-write brandish social and economic data and suggest that their antagonists are being fastidious about the ancillaries.

This essay suggests that immigration reform should correlate the law with the facts. Part I of this essay clarifies several elements necessary to define the field and initiate the analysis. The essay utilizes a bi-state approach to immigration. I will argue that U.S. immigration policy ultimately owes a duty to Mexican families.

Part II briefly reviews some of the data describing migration patterns, and Part III shows the lawful means of entry that the immigration system provides for migrants from the defined field. The essay concludes by summarizing some recommendations of how the U.S. may better regulate Mexican migration.

1. FIELD DEFINITION

It is important to first define, then to measure, and finally to regulate. Therefore, Part I offers a "field definition" for the phenomena the United States is trying to regulate. (1)

1. Bi-State Methodology

   One general (and generally admired) characteristic of the law is its use- rindifference. No matter who violates the law or applies for its benefits, the law is the same for everyone. Immigration law, just like tax or criminal law, is no respecter of persons. Thus, U.S. immigration law is organized like any other domestic law; it provides benefits and burdens to all potential immigrants alike. (2)

   Observations of migration to the United States, however, demonstrate that migrants always come from somewhere. Migrants do not drop out of the sky or appear mysteriously at points of entry. Every migrant to the United States comes from a certain sending country. These measurable patterns of sending provide crucial regulatory information. Ignoring the sending country as an explanatory variable yields a sad sort of policy solipsism.

   United States immigration law is typically seen as an expression with two terms: a single receiver-country (the United States) interfacing simultaneously with applicants from a vector of 194 sender-countries. (3) It might be more useful, however, to re-imagine U.S. immigration as an expression containing 194 terms, each representing a bi-state relationship: (4) United States and Slovenia, United States and Togo, etc. Attempting such a series of pair-wise analyses would establish U.S. immigration regulation as an extension of U.S. diplomatic strategy generally.

   When we re-imagine U.S. immigration policy as a series of bi-state analyses, new regulatory horizons open up. Particular expertise for immigration regulation would come less from the Department of Homeland Security (DHS), and more from the Department of State (DOS). The DHS is charged with the task of defending one homeland from many potential threats, ranging from terrorists to tornados. The DOS, on the other hand, is charged with the task of developing specific relationships with various and unique countries. To do the job well, the DOS cultivates country-specific databases and relationships. These resources, already at the disposal of the DOS's diplomatic mission, could also be made available to the immigration regulators.

   More generally, immigration could be regulated as a continuous, rather than binary, phenomenon. A binary variable always takes one of two values: it is either on or off, either zero or one. (5) When immigrants seek entry, a binary regulatory approach views them as either the right or wrong kind of immigrants, and they will either be admitted or rejected on this basis. A continuous variable, on the other hand, can take any value along a range. (6) Instead of categories that are coarse and stark, continuous regulation allows gradations, fine-tuning, and just-in-time adjustments. With binary regulation, the United States has no responsibilities for immigration until the migrants materialize at its doors or are discovered in its interior. With continuous regulation, the U.S. shares responsibility for the ongoing patterns of sending and receiving migrants. (7)

2. Choosing Mexico

   Because resources are limited, simultaneously pursuing 194 unique immigration policies is not feasible. It is obvious that a bi-state approach to immigration regulation requires some prioritizing. It is equally obvious that the U.S./Mexico policy would quickly make its way to the top of the priority list.

   Table 1 estimates the relative flows of immigrants from the top sending- countries. (8) (8) Suppose that a bi-state method of immigration regulation has some competitive advantage over the conventional, user-indifferent interface. The United States could capture a tremendous amount of that advantage by developing bi-state policies for the six countries on this list, while keeping the user-indifferent interface for the remaining 188 potential sending states. (9)

   A glance at Table 1 confirms that Mexico is, far and away, the most important piece of the U.S. immigration puzzle. Specifically, the size of the Mexican-born population is more than six times the size of the secondlargest population, the Chinese-born. Following the numbers, this essay attempts to contribute to the literature on U.S./Mexico immigration regulation.

3. Defining the Migrating Person

   The next step in designing a Mexico-specific user interface is to establish the characteristics of a population of relevant users. In the U.S./Mexico field, as the essay has defined it, the "Migrating Person" (MP) represents a member of that set of Mexicans who intend to migrate to the United States in order to support his family with his low-skilled labor. (10)

   The MP is thus understood as a migrant-in-context. The individual migrant is seen in the context of both his actual community (the family he supports and by whom he is sustained) and his operational community (the means of his labor, by which he supports his family). Because of the significance of support, the members of the MP's family must be defined narrowly to include only spouse, minor children, and elderly parents of both MP and spouse who lack other means of support. (11)

   At first glance, this focus on the Mexican worker/provider might seem to be an instance of the law-and-economics approach to immigration law, which also argues that we should increase our attention to the migrant-as- worker. (12) A notable example of the law-and-economics approach to immigration is the work of Adam Cox and Eric Posner, who have clarified the role that "screening" plays in immigration policy. (13) To Cox and Posner, "[t]he world presents a large pool of potential immigrants, and states have to figure out how to separate those immigrants it considers desirable from those it does not." (14) Other work has suggested that the U.S. should shift its focus away from family-based immigration and move more resources towards employment-based immigration, perhaps learning from Canadian immigration policies that are designed to attract skilled and employable migrants. (15)

   If one accepts the premise that migrants are primarily resources to be harvested for the economic benefit of the receiving-state, then one may conclude that the State's job is to screen migrants. This essay questions both that premise and that conclusion. We thus focus on two questions: (i) what is a migrant; and (ii) what is the role...