The Simpson-Mazolli Bill: Altering the Policy of Neglect of Undocumented Immigration from South of the Border, Vol. 18 in 1983, reprinted from Texas International Law Journal, The University of Texas School of Law
Jesus Ramirez, Note, The Simpson-Mazzoli Bill:Altering the Policy of Neglect of Undocumented Immigration from South of the Border, 18 Tex. Int’l L.J. 347 (1983).
Although Congress defeated the Immigration Reform and Control Act of 1982 (the Simpson-Mazzoli Bill)(1), the debate(2) over a comprehensive immigration policy continues. Had that Bill passed, substantial decreases in immigration were expected as the proposed legislation would have been the most restrictive United States response(3) to all forms of immigration-undocumented as well as legal (4). This Note analyzes the major provisions of the Simpson-Mazzoli Bill, and briefly examines the history of modern United States immigration law, the proposed changes in legal immigration ceilings, and the three provisions in the Bill responsive to undocumented immigration.
The long-term objective of the proposed legislation was to limit net annual global immigration to 425,000 persons(5) by restricting legal immigration to the "immediate relatives"(6) of United States citizens. Immigration visas for all other persons would have been available only in the years when the global quotas were not filled by preferred "immediate relative" immigrants.(7) Two provisions of the Bill were designed to channel all temporary alien labor migrations(8) to the United States through legal ports of entry: (1) the imposition of civil sanctions on United States employers who knowingly hire undocumented workers(9) and (2) the temporary foreign agricultural worker provisions,(10) which would have liberalized the entry of temporary foreign workers. Finally, the Bill's alien status adjustment procedures(11) were an attempt to regularize the status of some of the estimated 3.5 million undocumented aliens(12) who have set up permanent households in the United States.
The amendments proposed by the Simpson-Mazzoli Bill can be classified as either changes in legal immigration policy(14) or disincentives to undocumented immigration. The former reflect changes in provisions governing numerically limited and unlimited immigration. The latter constitute a departure from the United States de facto policy of neglecting(15) labor migration to the United States.
A. Legal Immigration Policy Changes
The Bill proposed no changes in what had traditionally been unlimited immigration. Existing United States policy permitted the unlimited immigration of all immediate relatives(16) of United States citizens. Pursuant to the Bill, the spouse, children, and parents of a United States citizen would retain their right to unrestricted immigration.(17) The Simpson-Mazzoli Bill however, would have set annual global immigration ceilings at 425,000(18) for nonimmediate relative immigrants. Of this number, a maximum of 350,000 visas would be granted annually to "family reunification "immigrants."(19) Additionally, a maximum of 75,000 visas would have become available each year to "independent" and "non-preference" immigrants.(20) The Bill would also have amended the system of preferences that allocates visas within the quotas among several categories of immigrants.(21) The number of immigrants from any one country would have remained limited to 20,000 persons annually.(22)
Under the Bill, 425,000 annual visas would have been available only to the extent they had remained unused by immediate relatives the previous year. For example, the 350,000 reunification immigrant visas would have been available only to the extent that unlimited immigration by preferred immediate relatives did not reach 350,000 the previous year.(23) Similarly, the number of visas available for independent and nonpreference immigrants would have depended on vacancies not filled the previous year by "special immigrants" and their children.(24) Immigrants from Mexico and Canada were given favored nation treatment under the Bill.(25) All the general provisions of the Bill would apply to visa applicants from these two countries with two exceptions: (1) a maximum of 40,000 persons from each of the two bordering countries would have been granted immigration visas annually,(26) and (2) unused visas from either country would have been awarded to immigrants from the other.(27)
B. Undocumented Immigration Policy Changes
Undocumented immigration to the United States is perceived as a much greater threat than legal immigration.(28) In 1967, for instance, 162,000 undocumented aliens were apprehended.(29) Ten years later, apprehensions had increased to over one million annually.(30) Congress has recognized that the most important factor contributing to labor immigration and migration from south of the border is the availability of jobs in the United States.(31) The Simpson-Mazzoli Bill would have taken unprecedented steps in an attempt to restrict the alien labor supply. First, the Bill would have subjected United States employers to fines and penalties for knowing employment of undocumented workers.(32) Second, alien workers would have had an opportunity to enter the country legally on a temporary basis, but only for employment in jobs that domestic workers would not or could not fill. The objective of these provisions was to make more jobs available for American workers.
In addition, the Simpson-Mazzoli Bill provided a solution to the substantial permanent undocumented population by creating a status legalization procedure through which undocumented aliens would receive either permanent or temporary alien status and eventual United States citizenship via naturalization.(33)
1. Employer Sanctions
The Simpson-Mazzoh Bill proposed implementation of employer sanctions in an attempt to reduce labor migration by substantially restricting the number and types of jobs available to undocumented aliens. The Bill would have made it unlawful for an employer of four persons or more to hire anyone without verifying the worker's documents.(34) The employer would also have been required to retain employment records for inspection by the Immigration and Naturalization Service (INS) for up to five years or one year after the employee's termination date.(35) The bill would have subjected all employers to graduated civil penalties for "knowingly" employing unauthorized aliens. First-time violators would have faced fines of $1000 for each undocumented alien on the payroll.(36) Repeat offenders would have been subject to fines of $2000 per alien employed.(37) Finally, if the INS found a "pattern or practice" of violations, it was to be empowered to seek imposition of a maximum fine of an additional $1000 and a six month prison term.(38)
2. Temporary Agricultural Workers
The Bill also provided for the temporary entry of foreign agricultural workers as nonimmigrants.(39) Admission of temporary workers was made conditional on the Secretary of Labor's certification (1) that there was an insufficient supply of farm laborers, and (2) that employment of aliens would not adversely affect wages and working conditions of United States workers.(40) The Attorney General would have had responsibility for entry permits and exit requirement procedures.(41)
3. Status Adjustment
The Simpson-Mazzoli Bill created a bifurcated status adjustment procedure for those undocumented aliens who had maintained a continuous residence(42) in the United States. Those aliens who maintained continuous residence prior to January 1, 1978 would have immediately qualified for permanent resident alien status.(43) Aliens continuously residing in the United States after January 1, 1982, and Cuban and Haitians on "entrant" status, would have immediately qualified for temporary resident alien status.(44)
II. MODERN UNITED STATES IMMIGRATION POLICY:
A HISTORICAL PERSPECTIVE
United States immigration policy during the twentieth century can be conveniently divided into pre-and post-World War II policy.(45) During the former period, immigration was disproportionately European.(46) European immigration was desired; immigration by others, particularly Asians, was severely restricted if not entirely prohibited.(47) The latter period, with its underpinnings in the Walter-McCaffan Act of 1952,(48) reflects a more tolerant attitude of Congress toward non-European immigration.
In 1917 a major codification of immigration laws(49) provided the basic immigration law for the future. The 1917 law prohibited the immigration of natives of China, India and other Asian countries to the United States.(50) Other immigration, however, was virtually unrestricted. The subsequent adoption of the Quota Law of 1921(51) established a quota system that survived virtually without substantive modification(52) until 1965.(53) The Quota Law provided for both quota and nonquota immigration. Minor alien children of United States citizens were exempt from the quota provisions.(54) The quota provisions made nationality(55) the sole basis for qualification for an immigration visa to the United States. Every nationality was assigned an annual immigration ceiling equalling three percent of the foreign-born persons of that nationality living in the United States in 1910.(56) In 1924 Congress adopted a modified version of the quota system -the national origins system.(57) Although the formula changed, nationally remained the fundamental basis of United States immigration policy.(58) Only the alien wife and minor children of a United States citizen(59) were exempted from the quotas. This law favored labor immigration from the Western Hemisphere.(60)
During the 1940s major changes were made in United States immigration policy. The Chinese Exclusion Act was repealed in 1943.(61) In 1946 natives of the Philippines were granted admission and the right to naturalization.(62) After World War II Congress passed a series of acts designed to permit the immigration of alien spouses and children of service personnel,(63) alien fiancees of war veterans,(64) displaced persons,(65) and expellees(66) from Europe.
During World War II the need to provide manpower for the war effort decreased the available domestic labor force. The United States imported hundreds of thousands of men from Mexico to work in American agriculture and industry.(67) From 1950 to 1960, roughly 3.3 million Mexicans were imported legally into the United States to raise thirty-three million tons of agricultural products.(68)
Contemporary immigration law in the United States is derived from the Walter-McCarran Act of 1952.(69) Although hailed as a revolutionary reversal of the previous exclusionary immigration policy,(70) the Act expressed no such intent and attempted no major policy change. For example, although the law permitted the naturalization of persons of Asian ancestry, it retained the quota system that had been in place since 1924.(71) At most, two thousand persons of Asian ancestry were allowed admission annually under the new law.(72) The unlimited entry of the alien spouse and children of United States citizens, however, continued.(73) Furthermore, consistent with the policy under previous laws, immigration from the Western Hemisphere, especially from Mexico, continued without restriction.(74)
The Walter-McCarran Act serves as a prelude to the introduction of some of the provisions included in the Simpson-Mazzoli Bill. The Act authorized the temporary importation of foreign workers to alleviate labor shortages and the adjustment of status of illegal aliens. The Walter-McCarran Act created a new "non-immigrant class" of aliens and permitted their temporary importation upon the request of employers.(75) To placate American labor, the Department of Labor imposed a certification procedure that required, as a condition to importation, the Secretary of Labor to certify that the added labor supply would not adversely affect American workers.(76)
The law also included lenient provisions for the substantial number of aliens who had either overstayed a legitimate admission to the United States or had failed to maintain their immigrant status. Section 244(a)(1) of the Act established a status regularization policy that retained the family unit as the primary basis of immigration policy.(77) The Attorney General was empowered to prevent the deportation of an alien if the deportation would create an unusual hardship on the alien, or on his or her spouse or child who was either a United States citizen or a permanent resident alien.(78)
The unlimited immigration of persons from the Western Hemisphere to the United States came to an end in 1965.(79) The 1965 Act, while continuing the policy of unlimited immigration by the immediate relatives of United States citizens, imposed a ceiling on immigration by nonrelatives. Immigration from the Western Hemisphere was fixed at 120,000 persons annually; immigration from the Eastern Hemisphere was limited to 170,000.(80) Further, annual limits of 20,000 were imposed on persons originating from each country in the Eastern Hemisphere,(81) and a seven-class preference system for the Eastern Hemisphere replaced the system adopted in 1952.(82) In 1976 Congress amended the I.N.A. of 1952. The noncontroversial amendments extended the per-country immigration ceiling of 20,000 and applied the 1965 preference system to Western Hemisphere immigration.(83) In 1978 Congress combined the Eastern and Western Hemispheric ceiling to create a new global quota.(84)
III. THE UNDOCUMENTED ALIEN PROVISIONS
A. Employer Sanctions
The availability of jobs is undoubtedly the strongest incentive to undocumented immigration to the United States.(85) Indeed, it is well documented that United States immigration policy regarding its neighbors to the south has primarily reflected the needs of United States employers-in particular, the needs of agricultural producers in the Southwest.(86) Although economic conditions in Mexico and other countries of Central America and the Caribbean have permitted the labor migration,(87) the principal factors attracting migration are the needs of the United States economy for a labor Supply.(88) The employer sanctions contained in the Simpson-Mazzoli Bill were an attempt to change these active or "pull" factors. At the same time, however, the provisions were based on the recognition that certain sectors of the United States economy are substantially, if not entirely, dependent on inexpensive foreign labor.(89) These considerations resulted in a combination of employer sanctions that punish employers for hiring aliens and foreign labor provisions that permit the seasonal entry of aliens.
B. Temporary, Alien Workers
The temporary alien worker provisions(90) would have been indispensable if employer sanctions had been enacted. For decades, Mexico has supplied much of the United States demand for inexpensive, seasonal labor.(91) An abrupt cessation of the labor supply resulting from employer sanctions would stagger the fruit and vegetable industry in California and other parts of the Southwest.(92) Therefore, the temporary alien worker provisions, which have heretofore been relied on primarily for importation of non-Mexican workers(93), would have become more valuable after the un documented labor market was foreclosed.
The proposed amendments to the temporary alien worker provisions would have retained an available economical, seasonal supply of agricultural labor. These provisions have not been used previously, as agricultural producers could simply rely on the undocumented alien market to supply labor.(94) The liberalized provisions for H-2 agricultural workers would have lessened both the delay in supplying foreign labor (95)and the burden of showing that imported alien workers would not displace Americans.(96)
The intended benefits were two-fold. American workers would have moved into vacant jobs created by the sanctions and, at the same time, undocumented workers would have had the option either to return home or to obtain the documentation necessary to work in the United States in the less attractive, low-paying seasonal jobs. The result in either case would have been politically attractive. American workers would have been protected from foreign workers taking the choice jobs and foreign workers would have been available for jobs that American workers could not, or would not, perform.
Expenditures for the enforcement of immigration laws would have been reduced as a by-product of the employer sanctions and the temporary worker provisions. Legal entry by alien workers would have substantially decreased the costs of policing the United States-Mexico border. Similarly, increased documentation of foreign workers would have reduced the need for expensive seizure and deportation procedures(97).
C. Would Employer Sanctions Have Resulted in New Jobs?
The success of the employer sanctions in creating jobs for American workers would have depended largely on the extent to which alien laborers actually displaced American workers prior to the imposition of the sanctions(98). Some evidence suggests that thousands of undocumented aliens have been employed in jobs requiring some industrial skills.(99) Such jobs are apt to be the most attractive to American labor. (100) On the other hand, demographic data obtained from undocumented aliens apprehended upon their entry along the United States-Mexico border show that the typical alien is essentially non-English speaking, rural and can perform primarily unskilled manual labor(101). The range of jobs he can perform, therefore, is very limited.
Whether American workers would have taken the jobs presently held by aliens would have depended on how American workers perceived those jobs. In the past, because of the working conditions and wages of agricultural employment in the United States, few skilled American nationals have entered the agricultural labor force.(102) Restricting the supply of alien labor, however, could have improved wages and working conditions sufficiently to attract domestic workers.(103)
The provisions of the Bill as written, however, might not have actually increased the number of domestic agricultural jobs. Liberalized provisions for the entry of temporary foreign agricultural workers would have maintained the supply of seasonal alien labor from Mexico.(104) In the agricultural sector the Simpson-Mazzoli Bill might only have converted undocumented aliens to documented ones without any significant increase in domestic employment.(105) In the industrial sector, however, the existing H-2 provision gave employers more limited access to temporary foreign labor. Given the relatively higher wages and job security of even low skilled industrial jobs, the number of domestic workers might have increased in these jobs.
Other provisions in the Simpson-Mazzoli Bill might also have perpetuated, rather than diminished, the use of undocumented aliens by employers. The Bill provided for a one-year grace period prior to enforcement of the employer sanctions; during the first six months after passage, the government was to undertake a publicity campaign to alert employers of the law.(106) During the next six months, violators would receive warnings but no penalties.(107) Once employer sanctions became effective, various loop-holes in the law could have prevented the serious crackdown on violators that some observers believed the Simpson-Mazzoli Bill promised. "Transitional assistance" would have been available to help employers adjust to the new labor market situation. Initially, the employer sanctions would not have applied to employers with undocumented workers hired before the Bill was enacted.(108) Employers would also have been able to convert their present workers to documented H-2 workers.(109)
IV. LEGAL IMMIGRATION
As a result of changes in immigration policy that began in 1965, legal immigration from the Western Hemisphere has been significantly curtailed in recent years. Amendments to the I.N.A. of 1952 have limited total immigration by nonimmediate relatives of United States citizens to an annual global ceiling of 290,000(110). These provisions have had a substantial impact on individual countries. For instance, prior to application of the 20,000 annual immigration ceiling to countries of the Western Hemisphere, Mexico was one of the leading sources of immigration to the United States(111). Mexican immigration has dropped significantly, however, with the extension of this restriction. In 1978, approximately 92,000 Mexicans were given immigration visas.(112) But in 1979, after the amendments were implemented, only 52,000 were admitted.(113) The Simpson-Mazzoli Bill would have further reduced the total global immigration by its restriction of immigration to immediate relatives of United States citizens. Reunification immigrants would have been granted visas only in those years in which the 350,000 quota was not filled by immediate relatives.(114) Such a change would have been a withdrawal from the United States long-standing commitment to family reunification and could have resulted in permanent resident aliens being unable to reunify their families.(115)
Mexican immigration, however, might have fared better under the Simpson-Mazzoli Bill than in the period beginning in 1978. For instance, in 1978 and 1979, 25,538(116) and 27,889 (117)Mexicans, respectively, entered the United States as exempt immediate relatives. Under the existing law,(118) an additional 20,000 persons could have entered pursuant to the per-country ceilings on nonimmediate relatives.(119) As proposed in the Simpson-Mazzoli Bill, the per-country ceiling for Mexican reunification would have been 40,000 visas. If the 1978-1979 entry by immediate relatives remains constant, only approximately 15,000 reunification visas would be accessible. This is a reduction from the present ceilings. Mexican reunification petitioners, however, would have access to the Canadian allocation and could potentially increase their immigration to an additional 20,000 persons(120). This would increase future Mexican reunification immigration by approximately 15,000 persons annually beyond the 1978 ceiling.
V. RATIONALE FOR ADJUSTMENT OF STATUS
Two bases exist for the adjustment of status provisions in the Simpson-Mazzoli Bill. First, the burden and cost of deporting several million aliens are insurmountable obstacles that would make a massive deportation impossible.(121) Second, humane considerations for the aliens require the adjustment.(122)
The economic and social costs involved in a massive deportation of illegal aliens are clear. The cost of seizing, detaining and deporting several million aliens is itself prohibitive. In 1978, for example, the INS spent $23.6 million locating 10,607 deportable aliens in New York-a cost of $2225 for every man, woman and child.(123) Added to these costs is the considerable expense of compliance with statutory hearings and procedural due process.(124) It is also clear that the paramilitary deportation actions of the 1950s would be restrained under present day notions of due process.(125)
Even assuming arguendo that massive deportations could be economically feasible, they would prove highly visible and volatile. The resulting explosive situation would be aggravated because any efficient dragnet would inevitably catch substantial numbers of United States citizens-mostly Hispanics-and would be apt to revive tensions between enforcement agencies and members of this minority group.(126)
Supporters of the status adjustment procedures also base their justification for the procedures on humane considerations. They argue that significant numbers of undocumented aliens have acquired substantial equities during their presence in the United States and that forcing them to leave would be unfair(127). The Simpson-Mazzoli Bill tests those equities on the basis of continuous illegal residence in the United States.(128) Persons living continuously in the United States since 1978 would be permitted to seek permanent resident status and eventually citizenship.(129) The status of most other entrants would be made equivalent to that of a temporary resident alien who may subsequently receive permanent resident alien status.(130) These resident aliens, however, would be excluded from most forms of federal social services.(131)
Indications are that any adjustment of the status program would fan short of regularizing the status of the majority of the undocumented aliens unless strong incentives were provided.(132) This is because of two major constraints: the language barrier (133)and the fear and distrust(134) that aliens have for the host country. For the Mexican migrant(135), conversion to an H-2 temporary worker or a temporary resident alien may provide good incentives. If permitted to enter the United States pursuant to a temporary worker's license, the Mexican migrant may prefer this option to surreptitious entry(136). The migrant would have much to gain from legal status-access to public transportation to and from employment, less risk of injury and disease from surreptitious travel, freedom to complain of abuse by others, and, perhaps most importantly, no risk of detainment and expulsion. Even if this change of status did not increase the migrant's actual wages, the benefits of becoming a documented worker alone may be sufficient incentive for the migrant to seek regularized status. So long as employers are permitted to hire undocumented aliens, however, there is no incentive for the Mexican migrant to obtain work documents.(137)
Aliens in the United States who have decided to remain permanently(138) will require even stronger incentives. The Bill imposes the burden on them to prove their right to status adjustment(139). Most aliens would understandably be wary of applying for a status change that may also entail a risk of deportation. This is especially likely if some members of an alien family could meet the burden of proof while others could not. As a consequence, many aliens who could meet their burden of proof would probably forgo their right to legal status.
Some of these constraints could be alleviated by a better understanding of the proposed scheme. This could be accomplished by a public relations campaign through the mass media(140). The Simpson-Mazzoli Bill contained a small budget provision for such a campaign.(141) The grace periods in the Bill, however, favored employers as it gave them twelve months to learn of the new employer civil sanctions, while giving aliens only a twelve month period from enactment during which they could apply for adjustment of status. Another possible way to increase participation in a status adjustment program would be extensive use of outside organizations as intermediaries to assist aliens in applying for and proving their status.(142) Churches, foundations and minority organizations would play a viable role in helping aliens overcome their deep-rooted apprehensions.(143)
The 98th Congress has now been handed the opportunity to make comprehensive amendments to United States immigration law(144). Supporters of the Bill, however, still face serious opposition in guiding the Bill through the Congress.(145) The proposed law, if adopted, should succeed in fulfilling some of the Bill's objectives. First, its adoption would raise Mexican legal immigration ceilings. This increase in immigration ceilings should ease the strain on the visa application process, which is undoubtedly a cause of some illegal entry by Mexican aliens. Yet, as long as the demand for immigration to the United States is strong, the probability of continued illegal entry by those seeking permanent residence in the United States remains. Second, foreign agricultural worker (H-2) permits should become an attractive commodity for Mexican aliens. Agricultural producers should be pleased with the availability of a cheap alien labor supply. Although the immediate effect of the agricultural H-2 provisions will be the ability of undocumented farm workers to change their status to legal workers, some risk persists that news of the H-2 permits will attract additional thousands of Mexican aliens to the border in search of jobs(146). The result could be devastating to the Mexican border cities as the additional population overburdens vital municipal services. In turn, any substantial increase in border worker populations also increases the probability of illegal border crossings and undermines the purposes of the Bill.
Legislative status adjustment, as proposed, remains the most sensible element of the policy proposed in the Simpson-Maxilla Bill. No one has advocated a massive deportation of all undocumented aliens as a viable American policy. On the contrary, the INS, a law enforcement agency, has de facto authority to determine which groups of persons are to be deported. In its wisdom, the INS concentrates its efforts in deporting workers in key industries rather than in a wholesale deportation. Even if it were an acceptable American policy to deport some three million persons, it is unlikely that this would rank very high among policy priorities. Further more, the cost of implementing this policy on a consistent basis would be prohibitive. This may explain why administrative adjustment of status(147) has been a vital part of United States immigration policy since adoption of the Walter-McCarran Act in 1952. Status adjustment is a logical alternative to keeping in a state of limbo hundreds of thousands of persons who have increased their equity in the United States by residing there continuously, remaining employed and raising and educating an American family. Although the concept of status adjustment is sensible, serious concerns remain over how this adjustment can possibly be administered effectively.(148) No current official government estimate yet exists of the numbers of undocumented aliens now residing in the United States. In fact, no single federal agency has been authorized to conduct studies of illegal im migration patterns or to coordinate immigration policy. In short, there could be two, or six, or as many as twelve million undocumented aliens in the United States today. This lack of accurate data only complicates the function of, and increases the risk of error in policymaking. The Simpson-Maxilla Bill, for instance, would limit to one year the period during which qualified aliens may apply for status adjustment. This period can neither be explained as rationally related to the time required to complete the status adjustment process for the number of aliens who would qualify for status adjustment, nor to the existing administrative capability of the INS to manage a massive status adjustment program.
Finally, employer sanctions are the backbone of the Simpson-Maxilla Bill. Without these sanctions there is neither a disincentive for aliens to enter the United States illegally, nor a need for them to legalize their status. The strength of the sanctions has already been substantially diluted in Congress. During the one year period during which qualified aliens must apply for status adjustment, employers would not be subject to any penalties(149) for employing undocumented aliens. Therefore, for the twelve months following adoption of the Simpson-Maxilla Bill, the availability of jobs for aliens-the primary incentive for illegal immigration-would persist despite the new law. Whether the Immigration and Naturalization Service can and will enforce the employer sanctions or whether there win be a reversion to the policy of benign neglect of undocumented immigration from south of the border is a question whose ultimate resolution will reflect the self-definition of a nation of immigrants.
1The Immigration Reform and Control Act of 1982, S. 2222, 97th Cong., 2d Sess., 128 CONG. REC. 10,619 (1982) [hereinafter cited as Simpson-Mazzoli Bill]. The Bill would have amended the Immigration and Nationality Act of 1952, also called the Walter McCarran Act of 1952 [hereinafter cited as I.N.A. of 1952], 8 U.S.C. §§ 1101-1553 (1967 & Supp. V. 1981).
2. For a history of the immigration legislation proposed over the past 10 years see S.REP.No. 485, 97th Cong., 2d Sess. 20-30 (1982).
3. A paramilitary action aimed at massive deportation of undocumented aliens, although more restrictive and probably more efficient, would be constitutionally and politically unpalpable. See United States v. Brignoni-Ponce, 422 U.S. 873 (1975) in which the Supreme Court held probable cause to be a general requirement for a reasonable seizure; Mendoza v. Immigration and Naturalization Service, No. EP-82-CA-76 (W.D. Tex.) May 17, 1982 (order granting preliminary injunction). In the 1930's and 1950's, however, the President authorized the Immigration and Naturalization Service to deport persons who were in the United States illegally as alien labor migrants. See, e.g., 1955 INS ANN. REP. 13. See also Scruggs, The United States, Mexico and the Wetback, 1942-1947, 30 PAC. HIST. REV. 149, 150 (1961). Stern measures against aliens have been taken on the high seas. Exec. Order No. 12,324, 3 C.F.R. 180 (1982), reprintedin 8 U.S.C. & 1152 (Supp. V 1981). The order applies, inter alia, to vessels of United States citizens and corporations, 3 C.F.R § 2(b)(1), and authorizes the Coast Guard "[t]o stop and board defined vessels, when there is reason to believe that such vessels are engaged in the irregular transportation of persons or violators of United States law. . . ." Id. §2(c)(1). The Coast Guard is further authorized "to return the vessel and its passengers to the country from which it came." Id. § 2(c)(3).
4. President Carter used the phrase "undocumented aliens" in his 1977 immigration policy proposal to describe aliens who (1) enter the United States in violation of the immigration law, (2) enter legally but remain past the expiration of their visas, or (3) violate the terms of their immigration status, thereby becoming deportable. Undocumented Aliens, Message to the Congress,  2 PUB. PAPERS 1416, 1417 ( Aug. 4, 1977) [hereinafter cited as Message to the Congress,  2 PUB. PAPERS 1416, 1417 (Aug. 4, 1977) [hereinafter cited as Mesage to the Congress]. See also DEPTS. OF JUSTICE, LABOR AND STATE, STAFF REPORT, INTRA-AGENCY TASK FORCE ON IMMIGRATION, at iii (March 1979).
5. S. REP. No. 485, supra note 2, at 15. Legal annual immigration was 300,000 in 1965, 540,000 in 1976, and approximately 800,000 in 1980 (the 1980 figure includes Cuban and Haitian refugees). Id. at 4. But see Senator Kennedy's admonition against reliance on these figures. Id. at 120-21.
6. "Immediate relatives" are the adult parents, spouse, and children of a United States citizen. In cases of petition by alien parents, the citizen child must be at least twenty-one years of age. I.N.A. of 1952, 8 U.S.C. §1151 (b)(1976).
7. Simpson-Mazzoli Bill, supra note 1, §201(a)(1) & (2).
8. " Alien labor migration" refers to undocumented persons who enter the United States with no intent to stay permanently. These migrants, who are predominantly Mexican, go back and forth from their permanent homes in Mexico. See. e.g., Schmitt. Los Companeros: A Rational Mexican Migration Policy, 4 IMMIGRATION & NATURALIZATION L. REV. 29, 36 (1980-81).
9. Simpson-Mazzoli Bill, supra note 1, §101(a)(1). The Bill would have added a new section 274A to the I.N.A. of 1952, 8 U.S.C. §§1101-1553 (1976 § Supp. V 1981).
10. The Simpson-Mazzoli Bill, supra note 1,§211(a) & (b) would have amended the I.N.A. of 1952, 8 U.S.C. §1101(a)(15)(H)(ii)(1976).
11. The Simpson-Mazzoli Bill, supra note 1, §301(a) would have added a new section 245A to the I.N.A. of 1952, 8 U.S.C. §1255 (1976).
12. Estimates of the undocumented population range all the way up to six million. S. REP. No,. 485, supra note 2, at 4. United States Attorney General William French Smith has adopted the six million figure. United States Attorney General William French Smith Remarks to the Joint Meeting of the San Antonio Bar Association and the Grater San Antonio Chamber of Commerce (Apr. 19, 1982). But see Passel, Robinson & Siegel, Preliminary Review of Existing Studies of the number of Illegal Residents in the United States, U.S. BUREAU OF THE CENSUS, Jan. 1980; Keely, The Shadows of Invisible People, AM. DEMOGRAPHICS Mar. 1980, at 24, reprintedin STAFF OF SENATE COMM. ON THE JUDICIARY, 96TH CONG., 2D SESS., SELECTED READINGS ON UNITED STATES IMMIGRATION LAW AND POLICY (Comm. Print 1980).
13. This Note was originally prepared under the assumption that the Simpson-Mazzoli Bill would pass the United States House of Representatives as it did the Senate. Similar legislation is expected to be proposed in the next congressional session. Seeinfra note 144.
14. "Legal immigration" refers to entry pursuant to an immigration visa that is authorized by immigration statutes and regulation. See generally I.N.A. of 1952, 8 U.S.C. §1181(1976 & Supp. V 1981); 8 C.F.R. §211.1-212.9 (1982); 8 U.S.C. §§1421-1435, 1444-1449 (1976 & Supp.V 1981); 8 C.F.R. §§334.1-342.9 (1982).
15. One Commentator contends that United States public policy toward undocumented labor migration from Mexico has been to ignore it when there is an under supply of domestic workers and then to use deportation actions during times of worsening economic conditions. Lopez, Undocumented Mexican Migration: In Search of a Just Immigration Law and Policy, 28 U.C.L.A. L. REV 615, 631-33 (1981). See also D North , CONFERRING LEGAL STATUS ON ILLEGAL IMMIGRANTS A-7 (1980). For an excellent commentary on this cycle see Bustamante. The "Wetback" as Devianta: An Application of Labeling Theory, 77AM. J.SOC. 706 (1972); Bustamante, The Immigrant Worker: A Social Problem or a Human Resource in MINORITIES IN THE LABOR MARKET 10 (P. Bullock ed. 1977) (proceedings of a conference held Mar. 31-Apr. 1, 1977 in Los Angeles, Cal. by the Institute of Industrial Relation, Univ. of Cal.).
16. United States immigration policy has always preferred the immigration of relatives of United States citizens and aliens intending to become citizens. The Quota Law of 1921, for example, accomplished this goal by use of a prefatory preference provision. Act of May 19, 1921, Pub. L. No. 67-5, 42 Stat. 5. Subsequently, the national origins system initiated a mandatory preference system permitting up to 50% of the annual quota allocation to be assigned to the immediate relatives of United States citizens. See Immigration Act of 1924, Pub. L. No. 68-139, 43 Stat. 153.
17. Simpson-Mazzoli Bill, supra note 1, §201(a). The I.N.A. of 1952, 8 U.S.C. §§1101-1553 (1976 & Supp. V 1981), gave all immediate relatives of adult citizens a right to immigrate without numerical limitations. See I.N.A. of 1952, 8 U.S.C. at §1151(b) (1970). For a definition of "immediate relatives", see supra note 6. For administrative procedures to classify an alien as an "immediate relative", see 8 C.F.R. §§204.1-204.5 (1983).
18. See supra note 5 for present immigration figures.
19. The Bill designated children, spouses, and parents of resident aliens as "family reunification immigrants" who would be issued a limited number of visas annually. Simpson-Mazzoli Bill, supra note 1, §201(a)(1).
21. Id. §202(a). The 350,000 "reunification immigrant" visas would be allocated as follows:
(1) Unmarried sons and daughters of U.S. Citizens.
(2) Two groups: 1st spouses and children of aliens lawfully admitted to permanent residence.
(3) Married sons and daughters of U.S. citizens.
(4) Adult brothers and sisters of U.S. citizens who havereceived approval of an immigration petitioneras of March 1, 1982.
15%, plus unused visas in the 4th preference.
65%, plus unused visas in the 1st preference.
10%, plus unused visas in the 1st and 2nd preference.
10%, plus unused visas in the 1st, 2nd and 3rd preference.
The 75,000 "independent" and "non-preference" immigration visas will be approves as follows:
(1) Aliens with exceptional ability in the arts, sciences, and professions.
(2) Skilled workers.
(3) Investors (foreign entrepreneurs with a minimum of $250,000 investment capital).
(4) Non-preference aliens.
Up to 75,000.
Vacancies from the first category.
Vacancies from the 1st and 2nd categories but may not exceed 7,500 annually.
22. Id. §201(b). The per-country annual quotas of 20,000 were initially adopted for all Eastern Hemisphere immigration. Immigration and Nationality Act Amendments of 1965, §2(a) [hereinafter cited as I.N.A. of 1965], 8 U.S.C. §1152(a) (1970), and later extended to Western Hemisphere immigration as well. See infra note 80.
23. Simpson-Mazzoli Bill, supra note 1, §201(a)(1). The Senate Judiciary Committee reported:
Although "immediate relatives" of U.S. citizens will continue to be exempt from numerical limitations the number available for the family reunification preference categories would be determined by subtracting the number of such immediate relatives admitted in the prior year from 350,000. Therefore, any increase in the number of "immediate relatives" will be compensated for by a reduction in the visa numbers available for other family reunification categories.
S.REP. No. 485, supra note 2, at 15.
24. Simpson-Mazzoli Bill, supra note 1, §201(a). "Special immigrants" include returning employees of the Panama Canal company and Canal Zone Government and their families, certain foreign medical students, and employees and former employees of international organizations and their families. Simpson-Mazzoli Bill, supra note 1, §204(a); I.N.A. of 1952, 8 U.S.C. at §1101(a)(27) (1976 & Supp. IV 1980).
26. Simpson-Mazzoli Bill, supra note 1, §201(b)(3). The Bill would have amended the I.N.A. of 1952, 8 U.S.C. at §1152(a)(1976) to make this exception for visa petitioners from Mexico and Canada.
27. Simpson-Mazzoli Bill, supra note 1. The statistics indicate that Mexico would probably use half of the Canadian allocation. IMMIGRATION AND NATURALIZATION SERVICE, 1978 STATISTICAL Y.B. OF THE IMMIGRATION AND NATURALIZATION SERVICE 2 [hereinafter cited as 1978 YEARBOOK]. See also IMMIGRATION AND NATURALIZATION SERVICE, 1979 STATISTICAL Y.B. OF THE IMMIGRATION AND NATURALIZATION SERVICE 2 [hereinafter cited as 1979 YEARBOOK].
28. S. REP. NO 485, supra note 2, at 4. The House Judiciary Subcommittee of the 92nd Congress concluded that "the adverse impact of illegal aliens was substantial, and warranted legislation both to protect U.S. labor and the economy." H.R. REP. No 506, 94th Cong., 1st Sess. 5 (1975). The Carter Administration also laid some blame for this country's economic troubles on undocumented workers: "In the last several years, millions of undocumented aliens have illegally migrated to the United States, displaced many American citizens from jobs, and placed an increased financial burden on many State and local governments." Message to the Congress, supra note 4, at 1. Senator Harrison Schmitt strongly rejects the general view that Mexican laborers displace American workers. He believes, on the contrary, that alien workers complement American labor. Schmitt, Rational Mexican Migration Policy, 4 IMMIGRATION & NATURALIZATION L. REV. 29 (1980-81).
34. The Simpson-Mazzoli Bill, supra note 1, §101(a)(1) would have inserted a new section 274A into the I.N.A. of 1952, 8 U.S.C. at §1324 (1976 & Supp. V 1981). The employment verification requirement has been challenged by members of Chicano organizations who are concerned that devious employers would rely on the verification requirements to refuse employment to Chicanos. See Cohodas, Immigration Reform Measure Dies in the House, 40 CONG. Q. WEEKLY REP. 3097 (1982). Others believe that most of the jobs filled by aliens are unattractive to domestic workers; therefore, even a racist employer would not be likely to refuse jobs to domestic Hispanic workers who would purportedly "replace" the deported aliens. See Lopez, supra note 15 at 708-13.
35. The Simpson-Mazzoli Bill, supra note 1, §101(a) would have inserted a new section into the I.N.A. of 1952, 8 U.S.C. at §1324 (1976 & Supp. V 1981).
39. Simpson-Mazzoli Bill, supra note 1, §211(a). See supra note 10.
40. Simpson-Mazzoli Bill, supra note 1, §211(b)(3). The Secretary would not have been allowed to exercise discretion if the requesting employer was involved in a labor dispute. See, e.g., 20 C.F.R. §655.203(a) (1982) and 8 C.F.R. § 214(h)(10) (1982), which preclude certification during a lockout or strike. Galarza charges that Mexican workers have previously been imported with the intention of breaking up strikes. E. GALARZA, FARMWORKERS AND AGRI-BUSINESS IN CALIFORNIA 1974-1960, 256 (1977).
42. For the rationale behind a continuos residency requirement, see W. C. VAN VLECK, THE ADMINISTRATIVE CONTROL OF ALIENS 27-32 (1932). One commentator believes that the requirement of continuous residency as a condition to status adjustment presents a needless complication to the status adjustment program. D. NORTH, supra note 15, at B-19.
43. The Simpson-Mazzoli Bill, supra note 1, §301(a) would insert a new section into the I.N.A. of 1952, 8 U.S.C. §1255 (1976). Had the Bill passed, the Attorney General would have had discretionary authority to adjust the status of aliens entering prior to 1978 and applying within one year of enactment of the law. The burden of proof was to have been upon the alien to show (1) continuos residence, (2) in an unlawful status, (3) since the date of entry, and (4) that he is otherwise admissible as an immigrant. See S. REP. No. 485, supra note 2, at 48.
44. Simpson-Mazzoli Bill, supra note 1, §301(a). Some 135,000 Cuban and Haitians entered the United states in 1980. S. REP. No. 485, supra note 2, at 4. These aliens must apply for status adjustment along with other persons seeking permanent status. Simpson-Mazzoli-Bill, supra note 1, §301(a). But temporary aliens are precluded from federal financial assistance programs that are furnished on the basis of financial need (i.e., loans and grants). Id. They will qualify, however, for assistance provided because of old age, blindness, disability, or health care. S. REP. No. 485, supra note 2, at 49.
45. For background on colonial immigration policy see H.R. REP. No. 1365, 82d Cong., 2d Sess. 6-7 (1952), reprintedin 1952 U.S. CODE CONG. & AD. NEWS 1655 [hereinafter cited as Walter-McCarran act Legislative History]. Incentives used by te American colonies to entice immigration included the issuance of letters of denization and the right to transfer property to one's heirs. J.M. JONES, BRITISH NATIONALITY LAW AND PRACTICE, 34-39 (1947). See also CURRAN, XENOPHOBIA AND IMMIGRATION, 1820-1930 (1975).
46. Between 1840 and 1940, approximately thirty-four million immigrants entered the United States from Europe. P. HILL, THE ECONOMIC IMPACT OF IMMIGRATION INTO THE UNITED STATES (1975). From 1900 to 1965, 75% of all immigrants were of European origin. Pastor, Our Real Interests in Latin America, THE ATLANTIC, July 1982, at 35.
47. Walter-McCarran Act Legislative History, supra note 45, at 8-23, reprinted in 1952 U.S. CODE CONG. & AD. NEWS 1665-73.
48. See I.N.A. of 1952, 8 U.S.C. §§1011-1553 (1976 & Supp. V 1981). For a complete legislative history see Walter-McCarran Act Legislative History, supra note 45, reprinted in 1952 U.S. CODE CONG & AD. NEWS at 1653.
49. Act of Feb. 5, 1917, Pub. L. No. 64-301, 39 Stat. 874 (repealed 1952).
50. Id. Congress enacted the first restrictive immigration legislation on Mar. 3, 1875. The law was aimed at Japanese and Chinese immigration. Act of Mar. 3, 1875, ch.141, 18 Stat. 477. A series of Chinese Exclusion Acts followed in 1882 (Act of May 4, 1882, ch.126, 22 Stat. 58), 1888 (Act of Oct. 1, 1888, ch. 1064, 25 Stat 504), 1892 (Act of May 5, 1892, ch. 60, 27 Stat. 5), 1902 (Act of Apr. 29, 1902, ch. 641, 32 Stat. 176), and 1904 (Act of Apr. 27, 1904, ch. 1630, 33 Stat. 394, 428). The Senate Committee reporting on the Asian immigration "problem" found the following rationale for the exclusion:
[I]t will become painfully evident that the Pacific Coast must in time become either American or Mongolian. There is a vast hive from which Chinese immigrants may swarm, and circumstances may send them in enormous numbers to this country. These two forces, Mongolian and American , are already in active opposition. They do not amalgamate. The Mongolian race seems to have no desire for progress, and to have no conception of representative and free institutions.
S.REP. NO. 689, 44th Cong., 2d Sess. (1877). See also STATE BOARD OF CONTROL OF CALIFORNIA, REPORT TO GOV. WILLIAM D. STEPHENS (June 19, 1920, revisedto June 1, 1922). Compare the concerns expressed in 1877 with those outlined a century later by some Congressmen to justify the strict limitations on immigration from south of the border:
This nation does have a right...to expect that those who are allowed to enter will seek to assimilate into American society, adopting and supporting the public values, beliefs and customs underlying America's success
If...a substantial portion of these new persons and their descendants do not assimilate into the society, they have the potential to create in America a measure of the same social, political and economic problems which exist in the countries from which they have chosen to depart.
STAFF OF SENATE COMM. ON THE JUDICIARY, 97TH CONG., 2D SESS., REPORT ON S. 2222 S. REP. NO. 485 (Comm. Print 1982). But cf. R. Johnston, The Assimilation Myth, A Study of Second Generation Polish Immigrants in Western Australia, RESEARCH GROUP FOR EUROPEAN MIGRATION PROBLEMS XIV (1969) (arguing that the assimilation process is not a unilateral act). See also M. GAMIO, MEXICAN IMMIGRATION TO THE UNITED STATES; A STUDY OF HUMAN MIGRATION AND ADJUSTMENT, 172-77 (1971).
51. Act of May 19, 1921, Pub. L. No. 67-5, 42 Stat. 5.
52. The Water-McCarran Act of 1952 adopted the basic nationality quota formula of the 1924 law. See I.N.A. of 1952, 8 U.S.C. §1151 (1952).
53. The nationality quota was finally replaced with hemispheric quotas and equalized per-country ceilings. I.N.A. of 1965, 8 U.S.C. §1151 (1970).
56. Id. § 2(a). Compare the 1921 quota allocations with the quota allocations adopted in conjunction with the Water-McCarran Act of 1952. See Walter-McCarran Legislative Act History, supra note 45, reprinted in 1952 U.S. CODE CONG. & AD. NEWS at 1681. The 1921 law further forecast a system of "preferences" within the quotas, which would become part of all future immigration laws:
That in the enforcement of this Act preference shall be given so far as possible to the wives, parents, brothers, sisters, children under eighteen years of age, and fiancees of  citizens of the United States, and  aliens now in the United States who have applied for citizenship in the manner provided by law...
Act of May 19, 1921, §2(d).
57. Immigration Act of 1924, ch. 185, 43 Stat. 153.
58. Id. § 11(a), (b), (c), (e). The national origins system provided:
The annual quota of any nationality for fiscal year beginnings July 1, 1927, and for each fiscal year thereafter, shall be a number which bears the same ratio to 150,000 as the number of inhabitants in continental United States in 1920 having the national origin...bears to the number of inhabitants in continental United States in 1920, but the minimum quota of any nationality shall be 100.
Id. § 11(b). Within the quotas, a mandatory preference system was included that permitted up to 50% of the quota allocation by (1) the unmarried minor children, the parents, or the spouse of a United States citizen over age 21, and (2) an immigrant skilled in agriculture and his family. Id. § 6(a),(b).
60. Id. § 4(c). Immigrants born in the Dominion of Canada, Newfoundland, the Republic of Mexico, the Republic of Cuba, the Republic of Haiti, the Dominican Republic, the Canal Zone, or an independent country of Central or South America, and their wives and unmarried children were admitted to the United States without restriction.
61. Act of Dec. 17, 1943, Pub. L. No. 78-199, 57 Stat 600. Chinese immigrants entering the United States thereafter were restricted to the 1924 quotas of 205 Chinese persons annually. See Walter-McCarran Act Legislative History, supra note 45, at 1681.
62. Walter-McCarran Act Legislative History, supra note 45, at 1673.
63. Alien Spouses Act of 1947, Pub. L. No. 80-213, 61 Stat. 401. The 1947 amendment to the Immigration Law of 1917 read: "Sec. 6. The alien spouse of an American citizen by a marriage occurring before thirty days after the enactment of this Act, shall not be considered as inadmissible because of race, if otherwise admissible under this Act." Id. The House committee that was assigned the Bill did not want to encourage marriage between United States servicemen and racially inadmissible aliens and therefore initially intended to limit the benefits of the Act to marriages taking place before Jan.1, 1947, approximately one and a half years prior to the law's enactment. The committee found, however, that many servicemen were awaiting enactment of the bill so they could marry and return to the United States with a new bride. H.R. REP. No. 478, 80th Cong., 1st Sess., reprintedin 1947 U.S. CODE CONG. & AD. NEWS 1327. Nearly 96,000 wives, husbands, and minor children of service personnel entered the United States pursuant to this legislation between 1946 and 1948. S. REP. No. 1515, 81st Cong., 1st Sess. 65-66 (1948).
64. G.I. Fiancees Act of 1946, Pub. L. No. 79-471, 60 Stat. 339.
65. See Displaced Persons Act of 1948, Pub. L. No. 80-774, 62 Stat. 1009.
66. The Displaced Persons Act was later amended to admit a total of 341,000 displaced persons, and 54,744 expellees and refugees from Germany. See Walter-McCarran Act Legislative History, supra note 45, at 1674.
67. STAFF OF THE SENATE COMM. ON THE JUDICIARY, 96TH CONG. 2D SESS., REPORT ON THE HISTORY OF THE IMMIGRATION AND NATURALIZATION SERVICE 50-51 (Comm. Print 1980). For the classic study of United States agri-business reliance on Mexican labor see E. GALARZA, MERCHANTS OF LABOR: THE MEXICAN BRACERO STORY (1964). See also E. GALARZA, FARMWORKERS AND AGRI-BUSINESS IN CALIFORNIA 1974-1960 265 (1977); Scruggs, supra note 3, at 152; J. SAMORA, MOJADO, THE WETBACK STORY (1971).
68. E. GALARZA, MERCHANTS OF LABOR, supra note 67, at 15.
69. I.N.A. of 1952, 8 U.S.C. §§1101-1553 (1976 & Supp. V 1981).
70. See Walter-McCarran Act Legislative History, supra note 45, at 1679.
71. See I.N.A. of 1952, 8 U.S.C. §1151 (1952). "The annual quota...shall be one-sixth of 1 per centum of the number of inhabitants in the continental United states in 1920, which number...shall be the same number heretofore determined under the provisions of section 11 of the Immigration Act of 1924...." Id.
72. Given the small Asian population in the United States upon which the one percent formula operated, Asian states qualified for the 100 minimum annual quota. See Walter-McCarran Act Legislative History, supra note 45, at 1681.
73. Nonquota immigrants included "the child or spouses of a citizen of the United States." I.N.A. of 1952, 8 U.S.C. §1101(a)(27) (1952). This section has since been modified by 8 U.S.C. §1151(a) (1970).
75. Id. §1101(a)(15)(H) (1952). The importation of foreign labor was an established practice by 1952. Previous legislation had exempted foreign labor from the exclusionary laws. In 1864, the Congress had gone as far as passing a law for the enforcement of contracts in which immigrants pledged wages to repay immigration expense. Act of July 4, 1864, ch. 246, 13 Stat. 385 (replacedby Consular and Diplomatic Act of 1868, ch. 38, 15 Stat. 56).
76. I.N.A. of 1952, 8 U.S.C. §§ 1101(a)(15)(H)(ii), 1184(c). Pursuant to this authority, the Department of Labor promulgated regulations governing the recruitment and employment of foreign workers and the certification that labor shortages existed. See 20 C.F.R. §§ 655.200-655.212 (1982). The regulations provide that the Department of Labor is to certify that foreign workers may be imported unless "[e]nough qualified U.S. workers have been found to fill all the employer's jobs opportunities; or the employer...has adversely affected U.S. workers by offering to, or agreeing to provide to alien workers better wages, working conditions, or benefits..." 20 C.F.R. § 655.206 (1982).
78. I.N.A. of 1952, 8 U.S.C. §1254(a) (1970). The Attorney General was granted the authority to adopt regulations allowing suspension of deportation proceedings, and the eventual adjustment to legal status, of persons whose deportation would result in "exceptional or extremely unusual hardship" to the alien or his spouse or child, either of whom was a United states citizen or lawfully admitted as a permanent resident alien. Id.
79. I.N.A. of 1965, 8 U.S.C. §1151(a) (1970); see 1965 U.S. CODE CONG & AD. NEWS, 89th Cong. 1st Sess. 3328.
80. The limit on Western Hemisphere immigration did not go into effect until 1968. 1965 U.S. CODE CONG & AD. NEWS at 3329.
81. I.N.A. of 1965, 8 U.S.C. §1152(a) (1970). Because the 20,000 per-country ceilings were not imposed on Western Hemisphere countries, immigration from this area continued on a first-come, first-served basis. The effect was that traditional originating countries such as Mexico used up the greater portion of the Western Hemisphere allocation.
92. SeeThe H-2 Program and Nonimmigrants: Hearings Beforethe Subcomm. on Immigration and Refugee Policy of the Senate Comm. on the Judiciary, 97th Cong., 1st Sess.86 (1981) (testimony of R.L. Williams, Pres. Agricultural Producers) [hereinafter cited as H-2Hearings].
93. In 1977, the existing H-2 program used only 27,760 workers, only 977 of whom were Mexicans. In 1978, only 1089 were Mexicans. See Temporary Worker Programs: Background and Issues, Congressional Research Service 36 (1980).
94. One of the reasons the Bracero program failed was that employers encouraged aliens to break the law. The employers preferred the simplicity of hiring illegal aliens to using properly documented workers. See Scruggs, supra note 3, at 163-64.
95. These objectives were sought by agricultural producers. See, e.g., H-2 Hearings, supra note 92, at 92-94.
98. General Chapman, former Commissioner of the I.N.S., claimed that he would be able to free up at least one million jobs if given the financial support for law enforcement personnel. Keely, supra note 12. The Senate Judiciary Committee reporting on the Simpson-Mazzoli Bill reported that actual job displacement is probably greater than two percent of the American labor force. The Committee estimated that the indirect welfare and unemployment burden created by this displacement exceeds $840,000,000 per year. S. Rep. No. 485, supra note 2, at 9. For the displacement effect of Canadian workers see H-2 Hearings, supra note 92, at 157 (testimony of Margaret D. McCain).
99. A congressional committee reported that 64.2% of all undocumented aliens working from January to June 1976 were doing so in six major cities (Chicago, New York, Los Angeles, Houston, Dallas, and San Francisco) and were employed in light and heavy industry, earning over $2.50 an hour. H.R. Rep. No. 506, 94th Cong., 1st Sess. 7 (1975). In 1978 one study found the pattern of alien employment to be as follows: 45% in agriculture, 20.8% in industry, 14% in commerce, 10.6% in construction and 8.6% in service. W. Cornelius, Mexican Migration to the United States: Causes, Consequences and U.S. Responses 54-56 (1978).
100. Most of the jobs held by aliens in the first half of 1976, however, were low status and low security jobs. Only 14% held skilled or semiskilled jobs. W. Cornelius, Supra not 99.
101. See generally U.S. Comm'n on Civil Rights, A Survey of the Undocumented Population in Two Border Towns 30-37 (1978)
102. Ironically, any real job displacement by aliens in the Southwest is very likely to be that of semi-skilled or lower skilled Mexican-Americans, who are themselves recent immigrants or descendants of immigrants. See S.A. Levitan, G.L. Mangum, & R. Marshall, Human Resources and Labor Markets 415-26 (2d ed. 1976); see also Wachter, The Labor Market and Illegal Immigration: TheOutlook For the 1980s, 33 Indus. & Lab. Rel. Rev. 342,351-53 (1980). One commentator has described the ideal agricultural worker as "an immigrant... who showed up for harvest work and who 'disappeared' in the off-season." R. Fernandez, supra note 86. Former Senator Schmitt claims that about two-thirds of the aliens in the United states are employed in small businesses, primarily run by Hispanics who could not afford to continue in business if they were required to hire more expensive and less available United States workers. See Schmitt, supra note 8, at 37. Senator Schmitt's claims are questionable. See, e.g., S. Rep. No. 485, supra note 2, at 31 (contending that small businesses employ only 5% of all undocumented workers). It is undeniable, however, that 300,000 to 500,000 aliens enter the southwestern United States every year to harvest crops. See, e.g., Address by Attorney General Smith before the California Chamber of Commerce (May 20, 1982) (available from Dept. of Justice). These workers may be directly displacing domestic farm laborers. See U.S. AgenciesOrdered to Admit 400 Mexicans for Presidio Harvest. Houston Chronicle, May 27, 1978 at §1, P.18.
103. This process has been called the restructuring or rationalization of low-skilled job categories. See infra note 104. The Select Commission on Immigration and Refugee Policy (Public Law 95-412) recommended "increased enforcement of wage and working standards legislation" as one of several actions necessary to control illegal immigration. S. Rep. No. 485, supra note 2, at 23-24.
104. The experience with guestworker programs in Wester Europe has been that "dependency on foreign labor for the most unrewarding tasks becomes a self-feeding phenomenon. This inhibits restructuring or rationalization of low-skilled job categories over the long run." Martin & Miller, Guestworkers;Lessons from Western Europe 33 Indus. & Lab. Rel. Rev. 315,322-23 (1980).
105. This was the result of the Bracero program in the 1950s. North, The Canadian Experience with Amnesty for Aliens: What theUnited States Can Learn, reprinted in Staff of Senate Comm. on the Judiciary, 96th Cong., 2D Sess., Selected Readings on U.S. Immigration Policy and Law, 164, 166-67 (Comm. Print 1980). Employers of alien workers are not willing to give up this attractive labor supply without a fight. See, e.g., WhereBraceros Once Worked, supra note 89. It is also clear that the liberalized H-2 provisions make it easier for agricultural producers to retain their traditional labor supply rather than adjust and restructure their production to the available domestic labor force. See Scruggs, supra note 3, at 150. For insight on the reliance of agricultural producers on seasonal farm laborers see L.H. Fisher, The Harvest Labor Market in California 20 (1953).
106. Simpson-Mazzoli Bill, supra note 1, § 101 (a)(2)
115. House Comm. on Judiciary, 97th Cong., 2D Sess. Report on Immigration Reform and Control Act of 1982, 97-98 (Comm. Print 1982) For instance, during 1976-1981, the category of immediate relatives entering from all over the world grew from 114,000 ro 152,000. S. Rep. No. 485, supra note 2, at 4. Even at this rate, the global ceiling for nonimmediate relative (family reunification) immigration would be frozen at 200,000 persons. But with over 500,000 legal admissions in each of the last five years, including 800,000 in 1980, id., the number of potential immediate relatives of those previously admitted should increase substantially. In all likelihood, for a period of time, the Simpson-Mazzoli Bill would limit immigration entirely to the immediate relatives of United States citizens. As a result, permanent resident aliens would not be permitted to reunify their families.
119. Present law admits from each country a maximum of 20,000 persons who would in all probability fall in the reunification category proposed in the Simpson-Mazzoli Bill. To that extent, the existing law is more reflective of "reunification" policy than the Simpson-Mazzoli Bill. Because of the 290,000 global immigration ceiling, however, a country will not necessarily qualify for the full 20,000 allocation.
The third [objective] is to eliminate the illegal subclass now present in our society. Not only does their illegal status and resulting weak bargaining position cause these people to depress U.S. wages and working conditions, but it also hinders their full assimilation, and they remain a fearful and clearly exploitable group within the U.S. society.
123. Buck, The New Sweatshops- A Penny for Your Collar, 79 N.Y. Mag. 44 (1979). There are an estimated 750,000 to 1.5 million undocumented aliens in New York alone. Id. See S. Rep. No. 485, supra note 2, at 19.
124. For example, in deportation proceedings the INS must give seven days notice of any charges against an alien. 8 C.F.R. §242-1(b)(1982). Deportation hearings must be held near the alien's home. After the hearing, an aggrieved alien may appeal to the court of appeals. 8 U.S.C. §1105(a)(1976). See also 8 U.S.C. §1252 (1976 & Supp. V 1981) Compare the procedure permitted for exclusion proceeding at the border. An alien apprehended at the border is subject to immediate proceedings at the point of apprehension during entry. He can challenge an exclusion order only by petition for writ of habeas corpus. 8 U.S.C. §1105 (1976). The type of hearing also determines the burden of proof. In deportation hearings the burden of proof is on the INS; in an exclusion proceeding the alien has the burden of proof. Plasencia v. Sureck, 637 F.2d 1286 (9th Cir. 1980) rev'd and remanded 454 U.S. 1140 (1982). The Simpson-Mazzoli Bill would alter the existing judicial review procedure. See Simpson-Mazzoli Bill, supra note 1, § 123.
125. The INS "area control operation" a dragnet tactic used to raid a given urban area and randomly interrogate patrons and employees has already been enjointed by the courts. See, e.g., Mendoza v I.N.S., No. EP-82-CA-76 (W.D. Tex., filed May 17, 1982.
126. Because the majority of undocumented aliens in the Southwest are Mexican and Hispanic, all such persons would become suspect if massive deportations were implemented. Dragnet operations require detaining large numbers of people and subjecting them to questioning. Even a person carrying an identification card could be suspected of carrying fraudulent documents.
127. Status adjustment provisions are not a new concept. See, e.g., I.N.A. of 1952.8 U.S.C. §§ 1101-1553 (1976 & Supp. V 1981). Presidents Carter and Reagan both proposed the amnesty provisions to the Congress. S. Rep. No. 485, supra note 2, at 25. Circuit Judge Learned Hand summed up the equitable reasons for not deporting alien families who had maintained a continuous residence in the United States:
Whether the relator came here in arms at the age of ten, he is as much our product as though his mother had borne him on American soil. He will be as much a stranger in Poland as any one born of ancestors who immigrated in the seventeenth century..Deportation is to him exile, a dreadful punishment abandoned by the common consent of civilized peoples. Klonis v. Davis, 13 F.2d 630 (2d Cir.
128. See supra note 42, But see Schweiker, Is Amnesty forIllegal Aliens a Sound U.S. Policy? 56 Cong. Dig. 235 (1977)
129. Simpson-Mazzoli Bill, supra note 1, §301(a). See S. Rep. No. 485, supra note 2, at 19.
131. Id. One commentator challenges claims that aliens adversely affect government by using substantial social services. He argues that on balance, aliens pay more in taxes than they use in social services. W. Cornelius, supra note 99, at 38. Although that may be so, to the extent alien workers displace the lower and unskilled domestic workers, they indirectly force domestic workers to use unemployment compensation, welfare, and other social services. See, e.g. supra note 100.
132. Legalization of Illegal Immigrants, Hearings on S. 2222 Before the Subcomm. on Immigration and Refugee Policy of the Comm. on Judiciary, 97th Cong., 2nd Sess. 157-61 (1981) (testimony of Antonia Hernandez) [hereinafter cited as LegalizationHearings]. See also id. at 73-76 (testimony of Lawrence H. Fuchs)
133. See generally D. North, supra note 15. North argues that the Canadian success with immigration is partially explained by the fact that the overwhelming majority of those responding to amnesty in Canada were American draft resistors and aliens from Hong Kong. In both cases, the aliens were reasonably familiar with the language and Anglo-Saxon jurisprudence. Id. at A-40.
134. See, e.g., Message to the Congress, supra note 4, at 4. Fear and distrust have been cited as major reasons why aliens do not seek citizenship in European countries. Martin & Miller, supra note 104, at 322-23.
136. Legalization Hearings, supra note 132, at 29 (testimony of Manuel Iglesias). In 1957, for example, 450,422 Mexicans signed up under the temporary Bracero program. "Most are poor peasants from central and northern States in Mexico who come to the United States only to find work to survive. They are willing to accept anything-good or bad treatment, illness, starvation, low wages, poor living conditions; all are taken philosophically and accepted without struggle." Bustamante, The "Wetback" asDeviant; supra note 15, at 709. But the availability of an alien worker documentation program could also serve as an incentive to immigration and thereby increase the flow of illegal alien entry. See, e.g., Scruggs, supra note 3, at 151-52.
138. See Cornelius, The Future of Mexican Immigrants inCalifornia: A New Perspective for Public Policy in Working Papers 27-37 (U.S. Mexican Studies, No. 6, 1981) for a profile of the "permanent" Mexican settler.
140. The Canadians spent $2 million in a massive public campaign to regularize the status of aliens. An equivalent expenditure by the United States would be $18 million. D. North, supra note 15, at A-24. North believes a "forced amnesty" would have more chance of success in the United States. Id. Such a plan would require strict enforcement of the deportation laws to force aliens to legalize or depart. Id. at A-42.
142. The Simpson-Mazzoli Bill would require the Attorney General to seek out the help of voluntary organizations. Simpson-Mazzoli Bill, supra note 1, §301.
143. The Canadians relied heavily on voluntary outreach organizations in their status adjustment program. D. North, supra note 15, at A-25. For a list of voluntary organizations already participating in the INS Outreach Program, see Directory of Nonprofit Immigration Counseling Agencies M-233, U.S. Dept. of Justice (1981).
144. See S. 529 & H.R. 1510, 98th Cong., 1st Sess. (1983). Senator Simpson and Congressman Mazzoli have reintroduced their Bill in the 98th Congress. See also Immigration Bill, 41 Cong. Q. Weekly Rep. 357 (1983).
145. The Simpson-Mazzoli Bill died in the closing minutes of the 97th Congress as a result of numerous amendments by opponents of the Bill. See Cohodas, supra note 34.
146. See Scruggs, supra note 3,at 151-52. Former INS Commissioner Leonel Castillo disagrees. He contends the guestworker program suggested earlier by the Reagan Administration would have had this effect, but that the H-2 provisions should not attract a significant number of Mexican workers from the interior of Mexico to the border. Telephone interview with Leonel Castillo, Former Commissioner, Immigration and Naturalization Service, in Houston (Apr. 6, 1983) [hereinafter cited as Castillo].
148. Castillo contends the agency would likely be required to employ and train a substantial number of immigration judges to handle the additional workload. Castillo also believes the fair adjudication of a petitioner's claim of continuous residency will require significant additional funding from the federal government. He cites as an example the hypothetical case of an alien who meets the continuous residency requirements for status adjustment but who has used several assumed names during his residency in the United States. The petitioner would have the burden of proving that all the names represent one person, but immigration judges must be prepared to deal with these difficult cases. Castillo, supra note 146. The Simpson-Mazzoli Bill creates a new Immigration Board and allows the employment of up to 70 immigration judges to hear exclusion, deportation and rescission of adjustment of status cases. Simpson-Mazzoli Bill, supra note 1,§122(a),(C).
149. See The Immigration Reform and Control Act of 1982 at § 101(d)(2)(B)(i),(ii).