Immigration

At the Law School, Martin has taught citizenship, constitutional law, immigration, international law, international human rights, presidential powers, refugee law and property.

While a student at Yale Law School, Martin served as editor-in-chief of the Yale Law Journal. After receiving his law degree, he clerked for Judge J. Skelly Wright of the U.S. Court of Appeals for the D.C. Circuit and then for U.S. Supreme Court Justice Lewis F. Powell Jr. He later practiced with Rogovin Stern & Huge in Washington, D.C., before accepting the post at the State Department.

As a German Marshall Fund research fellow in Geneva in 1984-85, Martin examined Western Europe’s response to rising numbers of asylum seekers. In 1988 he chaired the Immigration Section of the Association of American Law Schools, from 2003-05 he served as vice president of the American Society of International Law, and in 2004 he was elected to the Board of Editors of the American Journal of International Law.

He has twice served as a consultant to the Administrative Conference of the United States, preparing studies and recommendations on federal migrant worker assistance programs and on reforms to political asylum adjudication procedures. In 1993 he undertook a consultancy for the Department of Justice that led to major reforms of the U.S. political asylum adjudication system. In 2003-04 he was asked by the State Department to provide a comprehensive study of the U.S. overseas refugee admissions program, leading to recommendations for reform of that system.

He has very recently returned to the Law School after taking leave to serve as deputy general counsel for the U.S. Department of Homeland Security. In 1993, Dr. Martin was a consultant for the U.S. Department of Justice, which in turn led to significant reforms in the area of U.S. political asylum adjudication. In 2003 and 2004, he provided the State Department with a wide ranging study of the U.S. overseas refugee admissions program, which led to recommendations for system reform. His numerous books and articles include The Immigration Debate (Miller Center of Public Affairs, 2008), and Forced Migration: Law and Policy, with T. Alexander Aleinikoff, Maryellen Fullerton, and Hiroshi Motomura in 2007.

Thinking about the history of immigration in this country is very much like looking through a family album. Through it, you begin to recognize who we are, where we come from, and where we might like to go from here, for we are, as we all understand, a nation built by immigrants, and thus those who come here from other lands are, in a very real way, our own mirror image, our collective DNA. But family albums may also contain family skeletons and memories that we might just as soon forget. They are always a mix because families, like citizens of countries, have their disagreements. The great thing about families, though, is that we are united by blood and bone, and in the end need to pull together to survive. America has a rich tradition of having done just that, and the reason for this is precisely because America is the world. We are stronger for the collective force of our combined national personality if we choose to get along.

When you speak with people from other countries around the world, what is strikingly clear is the hope which the word “America” embodies. Foreigners may, rightly or wrongly, strongly disagree with our administration policies, but they generally champion and cherish the ideals and principals upon which our nation was founded in a profound sense. This may go a long way toward explaining why, when they come here, they are sometimes confused, dismayed and disheartened by the realities of the way our government responds to immigration in actual practice. “Come here, go away” is unhappily, at times, the experience for the immigrant in this country. We thought that it might prove useful at this time to look at the history of immigration and policy in this country as a way of honoring our collective family photos and those many relatives who risked it all in the pursuit of happiness and another, and hopefully better, life.

Welcome, Professor Martin.

David A. Martin: Thank you.

Jan Paynter: First of all, Professor, what are some of the reasons for your focus on immigration and refugee law and international human rights?

David A. Martin: Well, I never intended to get into that field. It all resulted from my experience at the State Department in the Human Rights Bureau. I went there in 1978. I was inspired by President Carter’s new emphasis on international human rights. I thought that’s what I would be working on, but the Refugee Office, it turned out, was part of the Bureau of Human Rights. There was a major crisis in the refugee field then because of the boat people coming out in very large numbers suddenly from Vietnam and I got to work on those kinds of issues. I worked with many people at the Immigration and Naturalization Service, had to learn the law a bit, worked on legislation that became the Refugee Act of 1980. It was very interesting and it remained quite interesting, to my surprise. When I went into academic life, there was a lot of interest in 1980 at that time when I joined the faculty in immigration and refugee issues, and there weren’t many people in the law schools who knew much about that area, so I was a rookie law professor and yet one of the real experts on those kinds of issues because I had been working on it in the government for two years. I was invited to do papers and presentations. I found it remained quite interesting for my academic agenda from then on.

Jan Paynter: For this discussion, I want to focus on the 20th century laws, but if we could go back to the beginning of our history a little bit and just give people an overview of some of the pivotal laws which we obtained. For instance, what constituted Congress’ first attempt to establish immigration policy in this country?

David A. Martin: The first sustained attempt came in the late 19th century. There was something of an attempt, an infamous attempt, in the Alien and Sedition laws, which gave the President, President Adams, broad authority to remove undesirable aliens. But that was then disavowed when Jefferson came into office. The Chinese Exclusion Acts were some early enactments in the 1880’s barring Chinese laborers, even though we already had a treaty that had committed the United States to allowing Chinese to come. Through that part of the turn of the 20th century, the main focus, though, was on qualitative limitations: people who had criminal convictions in their past, people who had contagious diseases could not come in, but there were no numerical limits on the number of people who could come, with the exception of the Chinese Exclusion provisions. There was a major push in the the early 20th century by people who were alarmed by what they saw as the new immigration coming from inassimilable parts of the world, in their view: Italy, Poland and Czechoslovakia. The pseudoscience that was used to document that — if you read it today, it’s really quite extraordinary — but there was an emphasis, a push, to try to get numerical limitations to block people coming from those countries, and that finally resulted in the national origins quota laws of the 1920’s that limited the number of people that could come, and had very small numbers from what were regarded as undesirable countries.

Jan Paynter: When was the ending of the Chinese Exclusion Act? When did that change?

David A. Martin: Well, there were various kinds of limitations on Chinese that — it was subsumed in the national origins provisions and basically continued that, and there were various kinds of limitations on the Chinese until the 1940’s when they were our allies in World War II.

Jan Paynter: That’s incredible. What guidance does the Constitution provide with respect to immigration? How did the ratification of the 14th Amendment affect the process of immigration, in your view?

David A. Martin: The Constitution — in so far as actual immigration decisions are concerned, our decisions about who it is that we will admit and how many — the Constitution basically leaves that to the political branches to make a policy decision: admit a lot, admit a little, exclude this category, admit that category. It says very little, and the 14th Amendment and the Equal Protection doctrine does not play a role in it. That’s why the national origins quota system was able to survive for as long as it did. When Congress did a major re-write of immigration laws in 1952, the McCarren Walter Act or the Immigration and Nationality Act — it is known by both those names — they continued the national origins quota system. Harry Truman vetoed that law, probably because of his objection to that provision. Congress overrode the veto. It wasn’t until 1965 that we eliminated the national origins quotas.

Jan Paynter: So what I understand is that Congress has full authority over immigration and the President’s responsibilities are where?

David A. Martin: Well, it’s Congress and the President, but a major feature of our laws for a hundred years has been an emphasis on very strict and closely defined limits appearing in legislation. Congress defines those, Congress sets numbers, and unlike several other countries that may have more flexibility for adjusting the numbers over time in response to changing conditions, for us the numbers are pretty much frozen and in statute. There has been a lot of criticism of that recently, many people think that’s a bad idea, the problem is finding a way to agree on something that might replace it. Congress holds onto that authority very closely, but there have been many proposals in recent years to provide a — to set up a kind of commission that would recommend adjustments based on changes in the world economy, changes in demographics, changes in U.S. needs.

Jan Paynter: So does the President determine the number of refugees admitted to this country?

David A. Martin: The President does have authority to determine the number of refugees that would be admitted. All the other categories are pretty much fixed in statute, and that was also granted in statute, but it specifically gives the President authority to decide before the beginning of a new fiscal year how many refugees should be admitted in a process that involves consultation with Congress. Congress could block it, conceivably, if they wanted to, by passing new legislation, but it has always gone through, the President’s numbers have been approved. So, Congress and the President share that responsibility, but the statute structures it pretty tightly, and that’s causing us some problems now, I think, in the 21st century.

Jan Paynter: What is the 1850’s Know-Nothing movement?

David A. Martin: That was a party that was motivated largely by Nativist sentiment, sought considerable restrictions on migration, even in that early time period, agitated strongly, had major support from some surprising significant public figures, and pushed for those kinds of changes. It didn’t result in changes at that particular time. The federal government had only minimal controls on immigration until the later part of the 19th century.

Jan Paynter: I see. What was the effect of the Great Depression on the immigrant flow in the U.S.? What decision did FDR make which affected immigration?

David A. Martin: The effect of the Depression was to drive down the numbers of immigrants considerably. We didn’t fill the quotas that were available during that period, which is, I think, not surprising given the economic distress felt here and in other countries. FDR didn’t have a role in that. He did have a role, which a lot of people make reference to, with regard to refugees who were seeking to flee Nazi controlled territories in Europe, and although there were some gestures in the direction of a refugee policy, it was really quite disappointing what the U.S. government did during that time to try to rescue or provide refuge for people fleeing Hitler.

Jan Paynter: That was going to be my next question. How many people did we actually admit? So, not many?

David A. Martin: I don’t know the numbers, but no, it was quite small and it was — some of the rationale, still had to fit within the national origins quotas, so there weren’t very high quotas for many of the countries that were the countries of the nationalities of the people who were trying to flee.

Jan Paynter: I was going to ask you what are the different categories of aliens? We have resident, non-resident, immigrant, non-immigrant, documented and undocumented. Describe that for people.

David A. Martin: It’s been a basic feature of our laws since the national origins quotas were put in to require most everybody who comes to get a visa. It’s relaxed a little bit in recent years for temporary visitors, but you have to get a visa and that establishes a category that you’re in from the beginning. You are either on a track — you’re coming in as a permanent resident, a green card holder, someone who is entitled to make their life here indefinitely, and to become a citizen usually after five years, a minimum of five years residence.The other group is called, somewhat confusingly, non-immigrants, people who are coming for a temporary purpose, for business, for tourism, for study. So those are the categories, and people who are non-immigrants sometimes can shift their status into the permanent categories, but it’s not automatic. The permanent categories, almost all of them, have ceilings, so some who might otherwise qualify still have to wait a long time to qualify there. And then, of course, outside that system, there are those who are here in undocumented status. Many of them come across the border without inspection, sneak across the border, but a large number of others who are here unlawfully are people who came in legally to begin with, in a temporary status, and then didn’t leave when that temporary status ended.

Jan Paynter: I was interested — again, this harks back to the beginning of our history — but the Declaration of Intent, which came from 1795 to 1952, and I was fascinated to learn that if you were an intending citizen, that is if you declared that intent, many people could vote.

David A. Martin: That’s right. Our naturalization process required for many, many decades, a process where you declared your intent to become a citizen well in advance of your actual qualification for that and many other benefits could follow: access to certain kinds of public service jobs, and particularly voting. Up until the 1920’s, many states allowed “declarants” as they called them, people intending, who are here lawfully, in a residence status and intended to stay, they were entitled to vote in elections run by the state.

Jan Paynter: That’s really fascinating. What is the significance of the 1986 Immigration Reform and Control Act?

David A. Martin: That was an effort during the 1980’s to try and deal with the overall issue of undocumented migration. The hope was that this would resolve it for once and for all. Obviously, that failed, but the idea was it would combine some new enforcement measures, particularly measures focused on employers, with a process for providing legalization to the, it turned out, roughly three million people who were here in unlawful status as of that time and who met the qualifications of the act. The idea, the initial idea, was to kind of wipe the slate clean for the people who were here and came under a broken system, who had equities in this country because they had worked here for awhile, or had children who were born here, but to be really serious about enforcement for the future. The idea was good, but the new measures for employer screening — which we have all gone through, the so-called I-9 forms when you apply for a new job — it turned out it was pretty easily defeated by false documents. Employers still check it, and I think there is a basis in that process for new systems that might well, at some point with a new verification mechanism, help us really to control illegal migration far better than we do right now. But the system, as it exists right now, only asks the employer to look at the documents, and the employer has to accept it if on its face it reasonably appears to be genuine. So, it turns out a lot of people can get work through that process. It didn’t work to control migration for the future, and that then has fed, of course, cynicism and distrust of new proposals for a new, similar kind of approach that would combine a legalization program with new measures both to improve enforcement and to adjust our permanent migration categories to match better with the kinds of demand for migration that we experience in the 21th century; demand from both potential immigrants and from employers or family members who are already here.

Jan Paynter: I think, as we have seen in the news lately, it is very interesting that President Obama is shifting the onus back toward employers.

David A. Martin: Well, that’s right, it has been a major policy decision early in the administration, the Obama administration, to change the focus of enforcement. The Bush administration went through many different phases, but toward the end, after the defeat of some major legislation in which there were high hopes in 2007, they decided they would really emphasize enforcement at the work place. But their model was large scale operations that might arrest maybe hundreds of workers perhaps to address the employers, but the focus was on the workers and putting them in removal proceedings or maybe charging them with crimes.The emphasis now is to focus on employers to address — to look closely at their records through audits of the I-9 materials, to give information to say, “No, you approved this, that was okay at the time, but this person is not authorized to work here.” They might then lose their job. And also to emphasize going after the the really egregious employers who combine immigration violations often with paying low wages, withholding overtime. So the emphasis has been on going after employers and actually seeking indictments of employers who have committed egregious violations of the immigration laws and other laws. The thought is that for the long run that will be a more effective deterrent to illegal migration, if we can really establish a pattern of that. But it really does need to be combined, the President has said this, with legislative activity to provide comprehensive reform.

Jan Paynter: That makes sense. When did the Department of Homeland Security replace the INS and how did things change with these three separate agencies?

David A. Martin: The Department of Homeland Security came into being on March 1, 2003. It was a major new undertaking. It involved not only absorbing and reorganizing the immigration functions, but also bringing in a number of other functions from other departments: the Coast Guard, Transportation Security Administration, Secret Service, and others. So it was a major effort on a very short time frame. The immigration functions were divided initially just to split off immigration enforcement from immigration benefit granting. That is, for example, when someone marries an American citizen and they apply for that person to get a green card based on the marriage. The net result was really a split into three components of the Department of Homeland Security that have immigration responsibilities: one for immigration benefits called U.S. Citizenship and Immigration Services, one for border enforcement, Customs and Border Protection and Border Patrol plus inspectors at the ports of entry, and ICE or Immigration and Customs Enforcement, which is essentially the interior enforcement agency. In retrospect, there are — this introduced new problems into the functioning because as much of a push as there was in the late 90’s and the early part of the century to spilt immigration benefits and enforcement on the theory that they were incompatible. In fact, you need to pay attention to both halves of it to make either one of them work. That is, when people apply for immigration benefits, sometimes they commit fraud, you have to be alert to enforcement priorities. We should have learned that, actually, from 9-11, and these are benefits that 9-11 attackers actually received. And similarly, enforcement needs to be mindful of the kinds of benefits that are available. So, there is an effort now to try to coordinate those three functions, but it is hampered by the division and it would work better if there were some better structure for coordinating without having to rely on — all the way up to the Secretary or Deputy Secretary of the Department to do that kind of coordination.

Jan Paynter: Looking at the past three administrations, how do you think they handled immigration policy, taking them one at a time, in your view, and how much of a role does politics play, how pervasive is it in immigration law?

David A. Martin: It’s a heavily political arena. There were a number of things that the administration said, and, as you noted, I was part of two of those administrations: the Clinton and the Obama administration. But the Clinton administration, I think, was notable for pushing for additional resources for the functions. Great demands on the system, it was under-resourced both for enforcement and for the granting of benefits, and there were efforts to clean up some of those processes through regulations, through changes, for example, to the asylum system, as you mentioned, but also primarily to provide enough resources to begin to come closer to mastering some of those problems. But it was highly political. It was a major issue leading up to the 1996 election when Bill Clinton was reelected and a major reform bill was enacted in 1996, about six weeks before the election. A lot of just hard politics went into that. It was thought that — I think rightly so — that immigration might be a major issue and both parties were contesting over that. The Bush administration worked hard from early on to try to find a comprehensive overall solution, to work closely with the government of Mexico, to try to find a solution with major allies that are still ones that are being talked about, that is, a kind of legalization for people already here, much better enforcement mechanisms both at the border and in the interior, and revisions to our permanent immigration — or our overall legal immigration categories to better accommodate demand. So those were the strong things and the good things that were done. I think some of it in the later periods were more heavy handed in terms of the way that the enforcement against employers went forward. The Obama administration tried to shift that, as we talked about earlier, to focus more on employers rather than on rounding up hundreds of people and to press for comprehensive immigration reform. But the legislative calendar was pretty much occupied by health care. It proved difficult to find the right combination of Republican supporters to really get the effort off the ground, although Senator Lindsay Graham and Senator Charles Schumer worked together to try to put together some kind of bipartisan package early on, but it didn’t gain much traction.

Jan Paynter: It’s always encouraging to hear about bipartisanship.

David A. Martin: Well, there was, but the problem was that they couldn’t really get another Republican cosponsor. There was some interest in going along with the bill if it got rolling, but it was hard to get it going. So there were contributions by each one. I will say the Bush Administration also contributed in a way by biting the bullet and raising the fees on immigration benefits, in a way that was quite painful. I know it remains painful for the individuals who get the benefits, but we had been suffering from very lengthy backlogs, processing backlogs affecting people who were applying, really just because of the math. There were not enough officers capable of keeping up with or making a dent in the backlog in that arena and Congress has mandated that all of that kind of adjudication function has to be funded by fees. The fees hadn’t been set at that level, so they did increase that, and that enabled us over the next several years now to pretty much catch up with processing backlogs. There are other kinds of backlogs, but the administration made some significant progress along those lines. The Obama administration has worked on the benefits side, changing of enforcement approaches and also really trying to develop a much tighter focus on applying resources, enforcement resources, to people with criminal involvement and to exercise prosecutorial discretion in the immigration field more soundly.

Jan Paynter: In your experience, Professor, working in this administration, what are some of the most commonly held misconceptions about the process of immigration and what it means to be American?

David A. Martin: I think one important misconception that a number of people who are new to the field or follow it only lightly often hold is a thought that the people who are here in undocumented status simply jumped the line, they just didn’t want to wait or do the paperwork to come here in a legal status. In fact, because we have significant statutorily mandated limitations on various kinds of categories, both temporary and permanent categories, many of the people who are here in undocumented status really, as long as they stayed in their home countries, had no realistic chance of qualifying for one of the categories. So some of the discussion is, “Oh, they should just go back home and come here legally.” Well, for many of them, if they went home, they couldn’t come here legally. We have to shape policy based on that understanding. We are not going to be able to accommodate everyone who wants to come to this country, so we are going to need a significant, and serious, and resolute enforcement effort on down the road if we look out ten years in the policy. But, on the other hand, I think we have to have a realistic stance and some polls show that most Americans would actually support this, a realistic stance toward the 10 million or so who are here now who came under a broken immigration policy and have established roots and ties in this country and are part of our economic system. So, we need — I recognize the dilemmas when you are dealing with people who have broken a law in the course of getting here. But we need to be realistic about that and, to my mind, what we need to focus on is the ability to deal with that situation and to be smart, develop new systems, which I think are within the definite realm of short term possibility, to have better enforcement for the future and concentrate on people that would come after the date of enactment of a comprehensive immigration reform bill.

Jan Paynter: I would like to thank Professor Martin very much for his informative and enlightening discussion today.

Thank you again at home for joining our conversation and we look forward to your coming back with us for the conclusion of our series on immigration next time. If you would like more information about our topics under discussion today, you will find a number of books on immigration and immigrant history on our website at PoliticsMatters.org. There is also a complete archive of all prior Politics Matters programs, which you may watch in their entirety at any time. We are always interested in hearing from you with any comments, questions and concerns and topics for future programs. You can email us at info@PoliticsMatters.org. We air every Tuesday and Saturday at 8:00p.m. Thank you again, and until next time, I’m Jan Paynter and this is Politics Matters.