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Societal responses on migration matters are manifested in the two countries in many ways. These include: legislation at the federal, state, and local levels; policies implemented at all these levels; decisions by the courts; advocacy from the private sector; and public opinion as reflected in polls and referenda.

To reach our overall conclusions, we draw upon the lengthy history of the two neighbors reaching back to the Bracero period and earlier. From this longer vantage, and with an eye toward today's events, our major conclusions are as follows.

· Episodic nature of U.S. responses. The debate on immigration into the United States waxes and wanes with the economic cycle. When the U.S. economy falters, restrictionist sentiment grows more intense. When the Mexican economy goes into a slump, this too leads to fear of an emigration push and anti-immigrant concern in the United States.

· Unintended consequences. Several important U.S. policy changes since 1965 have had unforeseen consequences often at variance with the policy intentions. One recent example is the growing immigrant visa backlog prompted by family unification requests stemming from the IRCA legalization provisions. The disjunction between policy intentions and actual outcomes has been a perennial feature of immigration history.

· Mexican engagement. The Mexican government has shifted from a position of deliberate nonengagement on migration matters to a stance of increasing dialogue with United States counterparts. The contrast is evident in Mexican unwillingness to comment when IRCA was under consideration compared with the Mexican authorities commentary regarding U.S. immigration and related legislation in 1996. The practical outcome of increased dialogue is still uncertain.

· Interplay between economic integration/political cooperation and immigration control. The bilateral engagement on migration began before NAFTA went into effect, but cooperation on this issue picked up after NAFTA facilitated a more elaborate framework for economic and political dialogue.

· Border opening for commerce and investment but not people. The flow of goods, services, capital, and the legal entry of people has been

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facilitated by NAFTA and other measures adopted in the 1990s. Simultaneously, the United States is increasing efforts to control unauthorized entries. This has the potential for increasing binational tensions.

· Official action and ineffectiveness of immigration restriction in practice. In the past, U.S. responses to deal with illegal immigration were riddled with loopholes or not carried out with vigor. It remains to be seen whether the current efforts will be more durable or will be pursued more seriously.

Based on observation of migration responses, the following model was used as a basis of analysis:

· An underlying context, one usually rooted in the U.S. economic situation, triggers a U.S. immigration response;

· This, in turn, leads to a period of debate in the United States and political compromises resolve some differences but leave other issues on the table;

· A Mexican reaction to the U.S. action, and perhaps a U.S. counter-

reaction follows;

· A new context for the next series of triggering events is thus born.

U.S. and Mexican responses also have a long-term trend: the intervals between the periodic debates has diminished.

United States responses to immigration are largely unilateral. This suits the U.S. style and had a practical logic when the Mexican authorities preferred not to be involved. This may now be changing, although to what extent is unclear.

Interest Group Influence. United States immigration responses usually are directed at immigration generally and sometimes Mexican immigration specifically. The U.S. has a diverse collection of politically active groups seeking to influence many aspects of policy and a long history of admitting large numbers of foreigners as permanent residents. Nongovernmental organizations,

Analytical Model

Responses in the United States

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both those favorable to increased immigration and others that support a more restrictive policy, play a large role in shaping U.S. immigration policies.

The political process translates these conflicting goals into policies that often have unanticipated outcomes. Given public opposition to increased legal immigration, the legalization provisions of IRCA in 1986 and the 1990 Immigration Act (both of which increased substantially the number of permanent legal residents admitted) were surprising. These outcomes stemmed from interest group influence on the legislation. In 1996, an effort to reduce certain categories of legal immigrants was unsuccessful, but new efforts are likely. Federal policy changes in the 1990s have reduced immigration backlogs, handled a quantum increase in naturalizations, and facilitated legal entries at the border through the use of commuter lanes and expedited preauthorized clearances.

State and Local Reactions. A less surprising development has been the government response to deter unauthorized immigration as manifested in IRCA and the rise in appropriations for border enforcement. Two other recent developments are the distinctions made between legal immigrants and U.S. citizens in their access to social services contained in the recent welfare legislation (the Personal Responsibility and Work Opportunity Reconciliation Act of 1996), and the expanding role played by state and local governments in (1) restricting services to immigrants (e.g., the passage of Proposition 187 in California) and

(2) the discretion given to state governments in welfare payments to legal immigrants. Because migration effects are local, a greater effort to bring states and localities into migration policy discussions would be desirable.

Immigrants are concentrated in a small number of states and metropolitan areas and, consequently, state and local officials differ in their reactions to immigration. States and localities with large numbers of immigrants typically face higher public costs to provide education and other services than those with fewer immigrants. But there have been significant variations in the responses of states and local governments with large immigrant populations. Proposition 187 was

actively supported by Governor Pete Wilson and other California public officials. It was promoted with arguments that underscored the view that denying public services to unauthorized immigrants would deter further illegal immigration. State and local officials elsewhere, e.g., the governor of Texas and the mayor of New York City, disagreed sharply with these views and tactics.

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More on Public Opinion and Interest Groups. Despite the substantial public support beginning in the 1970s for penalizing employers who "knowingly" hired illegal aliens, employer sanctions were not adopted until 1986. However, the means to identify persons unlawfully in the United States were slipshod and the law, even as written, was not rigorously enforced. These compromises reflected different views of the many interest groups and public officials involved. Public opinion has been less supportive of legal immigration than Congress and more inclined toward strong measures to deter illegal immigration. Public opinion on immigration tracks reasonably well with local

economic conditions: restrictionist views rise as the economy worsens. The correlation between growing unemployment and restrictionist sentiment shows up clearly in U.S. data for at least the last fifty years.

Generally, small-and-medium size businesses and fruit and vegetable growers in the southwest, especially California, favor increased immigration. They sought unsuccessfully to obtain a new temporary worker program in the last Congress. (They have not, however, supported an expansion of the existing H-2A program.) Agricultural growers of labor-intensive crops have had much success in the past in achieving their objectives in legislation, as the Special Agricultural Worker [SAW] and Replenishment Agricultural Worker [RAW] provisions of IRCA testify. Labor unions generally oppose substantial immigration. Mexican-origin persons legally resident in the United States are ambivalent and as likely to oppose as to favor large-scale immigration. There is no uniformity in the positions of similarly situated interest groups, but the broad outlines described above tend to prevail. Nongovernmental organizations [NGOs] vary in their views depending on their functions. There are anti-immigrant NGOs, pro-immigrant advocates, and others concerned with related issues, such as the protection of civil and human rights.

Many of the vocal interest groups have an ethnic orientation. At times, the immigration interests of one ethnic group conflict with those of others. For example, there is a large backlog of spouses and minor children of Mexicans legalized under IRCA, whereas the traditional backlog among legal Asian immigrants is more heavily weighted by siblings. Nevertheless, the NGOs of the two groups and their respective congressional caucuses have stuck together to fight against any reforms in legal immigration priorities. They have a common conviction that political empowerment is the best path for achieving their objectives, and this has led to a dramatic increase in citizenship applications of immigrants

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legally in the United States. This particularly affects legal Mexican immigrants who, as a group, have heretofore been slow to naturalize.

The 1996 United States Legislation. The year 1996 was an active one for legislation concerning immigrants [see table VI.1]. The full extent of the legislation enacted in 1996 will not be apparent for many months. The new immigration legislation should be viewed in combination with two other laws passed in 1996, those dealing with welfare reform and antiterrorism. Some of the significant elements of these three laws (the Illegal Immigration Reform and Immigrant Responsibility Act, the Antiterrorism and Effective Death Penalty Act of 1996, and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, i.e., the Welfare Act), coupled with related policy actions taken by the INS are summarized below in Table VI-1.

U.S. Supreme Court decisions have shifted away from the initial presumption that immigration officers are bound by traditional fourth amendment requirements enunciated in cases such as Almeida Sánchez v. U.S. (1973), and U.S. v. Brignoni Ponce (1975). These more recent decisions have allowed the INS considerable discretion in the conduct of workplace enforcement activities (INS v. Delgado, 1984), and more recently suggested that the fourth amendment may not extend to all unauthorized aliens present in the United States (U.S. v. Verdugo-Urquidez, 1990).

Migration is so prominent in Mexico's domestic and foreign affairs that a public stance is unavoidable. This need must be weighed against a long-standing

tradition of noninterference in the domestic affairs of other countries. The way out of this dilemma has been to pursue certain objectives related to migration, but not to have a migration policy as such.

Major Objectives and Strategies. The Mexican government has pursued three major objectives over the recent decades: historically, and most prominent, the protection of the rights of emigrants; second, avoiding abrupt changes in U.S. immigration policy and in the flow of migrants; lately, in reaction to the recent negative U.S. climate against immigrants, seeking recognition for their contributions to the receiving society.

Until the mid-to-late 1980s, the Mexican government had a policy "to have no policy" on undocumented migration to the United States. This approach was

Responses

in Mexico

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Table VI-1.

1996

Legislation

Affecting

Immigration

1. Number of border patrol officers increased annually for five years, a provision that has particular effect on illegal immigrants from Mexico.

2. New triple fencing installed between San Diego and Tijuana.

3. At same time, entry of legal immigrants and border crossers from Mexico

facilitated.

4. Old border crossing cards removed, to be replaced with new card with a

biometric.

5. Expedited removal is carried out without hearing of immigrants illegally in the U.S., unless there is a credible asylum claim or two-year presence.

6. Distinction between exclusion and deportation abolished.

7. New areas created for which administration decisions cannot be reviewed by the courts.

8. This includes lack of judicial review of final orders of deportation for most criminal aliens.

9. In addition, definition of "aggravated felony" is expanded even if imprisonment is suspended.

10. Certain legalization class action suits pending in courts are no longer subject to judicial review.

11. Standards for suspension of deportation (now "cancellation of removal") made more restrictive and burden of hardship increased from extreme to exceptional and extremely unusual hardship and harm must be to a U.S. citizen, legal permanent resident spouse, parent, or child.

12. Criminal penalties for immigration violations enhanced.

13. Legal immigrants barred from usage of supplemental security income [SSI] and food stamps until they obtain citizenship. (Proposals to ease some of these provisions are pending.)

14. Legal immigrants entering after enactment of Welfare Act barred for five years from most federal means-tested programs, including Medicaid.

15. Welfare reform amended to provide certain exemptions for battered spouses and immigrant children abandoned by parents.

16. Immigration affidavits of support raised to 125 percent of poverty level and made binding on sponsors until naturalization or forty quarters of employment by sponsored alien.

17. Aliens made inadmissible as legal immigrants for 3 years if illegally present in U.S. for 180 days to 1 year, for 10 years if present for 1 year or more, permanently if previously convicted of an aggravated felony; plus other grounds for inadmissibility.

18. Pilot programs to verify employment eligibility implemented.

19. Persons unlawfully in U.S. are not eligible for social security benefits or postsecondary education.

20. Attorney General permitted to enter into written agreements with state and local agencies to perform functions previously exclusive to federal immigration agents.

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believed to suit the principle of mutual respect and recognition of both national sovereignties. This approach began to shift when Mexico started to liberalize its economy and play a more active role in world economic affairs, exemplified by entry into the General Agreement on Tariffs and Trade and closer engagement with the United States in NAFTA. The cooperation and consultation with the Commission for the Study of International Migration and Cooperative Economic Development (Asencio Commission) was an early signal of increased Mexican engagement with the United States on migration issues.

Mexican authorities now lobby in the United States on political and economic matters, which they did not do prior to the NAFTA negotiating process. The Mexican government no longer operates solely via its Secretariat for Foreign Relations [SRE] communicating with the U.S. Department of State, but rather fans out across the spectrum of U.S. private interest groups, public agencies, and the Congress. The increased closeness of the economic relationship and its salience for Mexican economic recovery and growth also means that it is important to handle other problems in a way that avoids prejudice to economic cooperation. On migration, it is worth noting the participation of the Secretariat for Government Affairs [Gobernación].

Public Perceptions. Mexican public opinion and the media have become quite sensitive and critical of the way the two governments respond to migration. U.S. measures tend to be perceived not only as anti-immigration, but also as unfair to immigrants. This perception derives in part from a broad belief that the U.S. benefits even more than Mexico from Mexican migration. [See figure VI-1.]

Figure VI-1.

Perceptions

about the

Effects of

Migration

Source: Mori de México 1977, sample size is 1,150.

ON THE MEXICAN ECONOMY ON THE UNITED STATES ECONONY

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Immigrant and Immigration Legislation. Immigrants and immigration legislation in Mexico have a radically different significance than in the United States. Immigrants in twentieth century Mexico have been few in number and of marginal demographic significance. Foreigners usually have come to Mexico with capital and skills and, therefore, have had an impact disproportionate to their numbers. At various times, Mexico has received sizeable number of refugees, most recently from Central America. Central Americans also come as temporary workers. Central Americans, among others, also use Mexican territory in their transit to the United States. Immigration legislation emphasizes family connections and employment skills as a basis for admission, but also confers great administrative discretion on Mexican officials.

Mexican law requires that nationals demonstrate at departure that they have permission of the receiving country to enter. This requirement has not been enforced and probably is not enforceable, especially when departures take place away from designated exit points. For several decades, Mexicans have interpreted the constitutional right to free transit within Mexico as extending to the right to leave the country. This interpretation has not been tested by the Mexican judiciary, but there is a national consensus that the Constitution forbids the government from stopping the departure of nationals from its territory.

A feature of Mexican immigration legislation is that it indicates goals and priorities without going into much detail. Mexican immigration law gives great

administrative discretion to the executive branch to decide whether particular decisions are consistent with the overall policy goals. However, most recently in 1990, 1992, and 1996, immigration legislation has been modified to liberalize the entry of certain categories of foreigners, particularly to facilitate the entry of business visitors, investors, technicians, professionals, and others to conduct business in Mexicounder NAFTA, special facilities are given to American and Canadian businesspersonsbut at the same time to strengthen the criminal penalties for the smuggling of human beings.

Responses to Mexican Communities Abroad. Through the years, a sizeable Mexican communityMexican citizens and Mexican-origin populationhas been created in the United States. To strengthen the links

between migrants, recent or earlier, and their country of origin, as well as to support some of their demands, the Mexican government has developed various responses for these Mexican communities. Consular, cultural, and business activities have been expanded. One of the most recent responses has been to

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change the norms regarding Mexican nationality. In December 1996, consti-tutional amendments were passed that when implemented will allow Mexicans

to naturalize in another country and not automatically lose their Mexican

nationality.

The bilateral interaction on migration issues has altered in recent years from a lack of consultation to considerable discussion between the two governments. Negotiating NAFTA required a shift in bilateral political relations. Mexico's earlier reflexive opposition to U.S. international initiatives has given way to a more cooperative relationship. The United States gave political relations with Mexico a higher profile, and showed increased receptivity to Mexican overtures.

Economic-political contacts have been facilitated by embedding them in institutional arrangements. NAFTA created a number of such institutional arrangements and breathed new life into established consultation groups. The Working Group on Migration and Consular Affairs of the Binational Commission is the single most important body for consultation on migration matters. In May 1997, when President Clinton visited Mexico, the Working Group discussion dealt with the exchange of information on migration policies and legislation, consular protection, and increased cooperation at the border. The Joint Statement on Migration adopted by the two Presidents signals a commitment to enhance bilateral cooperation in the management of migration.

The bilateral engagement has led to a number of unilateral and cooperative

actions. Fast lanes were set up to facilitate crossing into the United States. The wait to cross at San Ysidro was reduced from two hours to twenty minutes. Cooperation to prevent drug smuggling was increased at the border. Grupo Beta is a Mexican effort to make the border safer. Mexicans participate in the Citizens' Advisory Panel on the U.S. side. There is a joint Border Liaison Mechanism. Both sides took steps to reduce smuggling of immigrants.

Based on the premise that economic development is the best and only long-term strategy to deter mass migrations, NAFTA is seen as a way to stimulate development and thereby slow emigration through enhanced employment and higher wages.

Currently, goods and services can pass more or less freely across the Mexico-United States. border, as can capitalbut not labor. NAFTA is a free-trade area,

Current

Context

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not a common market within which all factors can move freely. In the buildup to the NAFTA negotiations, Mexico raised labor inclusion, but the U.S. rejected this on the grounds that the Congress would not accept it.

There are proposals from time to time for a U.S. guestworker program with Mexico for the admission of less-skilled workers. A modest temporary worker program exists between Canada and Mexico. Such proposals recently have been suggested by some groups on the Mexican side based on the premise of more equal treatment of all factorslabor as well as capitalon the inability of Mexico to control emigration. They have also been proposed by some groups in the United States based on their inability to seal the border and the desire of some employers to have ready access to legal-temporary workers..

Despite the increased dialogue, disagreement between the two countries on

migration issues increased dramatically as a consequence of the 1996 U.S. enactment of legislation on immigration, welfare, and antiterrorism. All these laws will affect Mexican nationals. This increased tension came on top of the U.S. debate on whether to certify Mexico as cooperating with the United States in combating drug trafficking. This combination of problemsdrugs on the one hand, migration on the otherset back the cooperative atmosphere that had been developing. Although the Clinton presidential visit sought to mitigate the conflict, it remains under the surface.