National Review, May 3, 2001
On Tuesday, President Bush asked Congress to reopen a window that allowed illegal aliens on the waiting list for a
green card to get legalized here, rather than go home first. The measure, named after Section 245(i) of the Immigration and Nationality Act, expired April 30 after a four-month run. Both the substance and the language of Bush's letter to Congress, with its talk of "undocumented immigrants" and "family reunification," suggests that the White House has contracted out immigration policy to the immigration lawyers and other high-immigration advocacy groups which are not, at the risk of understatement, animated by a concern for the national interest. Meanwhile, "conservatives" such as Sen. Chuck Hagel of Nebraska and Rep. Peter King of New York are actively working to reopen the 245(i) window so as to allow even more illegal aliens to get green cards.
The 245(i) loophole allows illegals to avoid a provision of the 1996 immigration law that barred from re-entry to the United States for a period of up to 10 years any illegal alien who had lived here for an extended time. The re-entry bar was intended as a penalty for illegal immigration, since really there is no other penalty. The effect of 245(i) is to render this penalty moot. This is why immigrants have been lining up around the block to get married, so their new legal-resident or citizen spouses could submit a green-card application for them before the window closed.
If the number of people involved were small, it might not be worth making a fuss. But the numbers are quite large. The INS has estimated that 640,000 illegal aliens took advantage of the loophole before it expired Monday, and the Bush letter estimates another 200,000 were eligible but missed the deadline. And during a prior incarnation of this 245(i) loophole, fully one-fourth of all "legal" immigrants were illegal aliens using the immigration system to launder their status.
In the short term, a loophole like 245(i) hurts mainly those prospective immigrants stupid enough to actually try to obey the law. But in the long term, quasi-amnesties like this undermine our ability to regulate immigration. We are legitimizing illegal immigration — defining deviancy down, if you will — by effectively incorporating illegal immigration into our policy structure. In other words, sneaking across the border, or entering on a legal visa but failing to leave when it expires, is becoming just an alternative means of moving to the United States — a little irregular, perhaps, but nothing to be especially concerned about.
If any benefit comes from this, it will be a belated realization that legal and illegal immigration are not separate phenomena, but rather two sides of the same coin. Legal and illegal immigrants come from the same countries, live in the same households, and even, as 245(i) shows us, are the same people. The lesson to be drawn is that in the modern world, a policy of high legal immigration inevitably gives rise to mass illegal immigration — and any attempt to reduce illegal immigration must begin with cuts in legal immigration.