Everyone-from President Bush to his critics to Ted Kennedy-is
dead set against "amnesty," and yet the word overshadows all else
in the immigration debate. Despite its proponents' claims to the
contrary, amnesty is the cornerstone of the Senate's immigration
bill. Indeed, this legislation, with its many provisions,
guarantees one thing only: that a population of
individuals defined solely on the basis of their illegal status
will receive legal status and a privileged path to permanent
residency and citizenship. Everything else in the bill-border
security, worker verification, the temporary worker plan, a new
merit-based immigration system-would be contingent on future
political decisions. A few amendments around the edges will not
change this overriding fact.
What Is Amnesty?
Amnesty, from the same Greek root as "amnesia," forgives past
crimes and removes them from the record for future purposes. In the
context of immigration, amnesty is commonly defined as granting
legal status to a group of individuals unlawfully present in a country.
Amnesty provides a simple, powerful, and undeniable benefit to
the recipient: It overlooks the alien's illegal entry and ongoing
illegal presence and creates a new legal status that allows the
recipient to live and work in the country.
The textbook example of such an amnesty is the Immigration
Reform and Control Act of 1986. The act's core provision gave
amnesty to those who could establish that they had resided
illegally in the United States continuously for five years by
granting them temporary resident status, which in 18 months was
adjustable to permanent residency, which led to citizenship five
Look up "amnesty" in Black's Law Dictionary, and it
says this: "The 1986 Immigration Reform and Control Act provided
amnesty for undocumented aliens already in the
Note that the 1986 law's path to citizenship was not automatic.
The legislation stipulated several requirements to receive amnesty,
including payment of application fees, acquisition of
English-language skills, understanding of American civics, a
medical exam, and registration for military service. Individuals
convicted of a felony or three misdemeanors were ineligible.
Despite these requirements, all agree that the 1986 law amounted to
An Amnesty Checklist
The Secure Borders, Economic Opportunity and Immigration Reform
Act of 2007 resembles the 1986 amnesty in several ways. Like that
law, it would grant amnesty to individuals unlawfully present in
the United States. That its effect would be "amnesty," which its
proponents deny, is proven by its provisions:
- Only illegal aliens are eligible.
Title VI, euphemistically entitled "Nonimmigrants in
the United States Previously in Unlawful Status," creates a new "Z"
visa exclusively for illegal aliens, granting legal status to those
who have willfully violated U.S. laws and denying that benefit to
law-abiding aliens who have played by the rules. Only
illegal aliens can qualify. (Section 601 (c)(1))
- Legal status is immediate. Section 1 (a)
allows probationary Z visas to be issued immediately after
enactment, and Section 601 (f)(2) prohibits the federal government
from waiting more than 180 days after enactment to begin issuing
probationary Z visas. These probationary visas are nearly as good
as non-probationary Z visas, giving the alien lawful status,
protection from deportation, authorization to work, and the ability
to exit and reenter the country with advance permission. (Section
- Immigration laws are set aside. Before anyone
even applies for a probationary Z visa, the legislation would set
aside the immigration laws that currently criminalize the presence
of illegal aliens. The bill waives compliance with several laws as
a condition for eligibility for the amnesty, including those
concerning illegal entry, failure to appear for a removal
proceeding, fraud in obtaining a documentation to enter the United
States, falsely claiming citizenship, violating terms of a student
visa, failure to obtain valid immigration documents, unlawful
presence for more than one year, and reentry after having been
ordered removed. (Section 601 (d)(2)(A))
- Eligibility leads to permanent residence.
Probationary Z visas could be valid for years, depending on when
the government begins issuing non-probationary Z visas (Section 601
(h)(4)). The Z visa can be renewed every four years indefinitely
(Section 601 (k)(2)). No later than 8 years after enactment, the
Secretary of Homeland Security must determine the number of Z visa
holders who are eligible for legal permanent residence (LPR) and
grant LPR status to all such persons over the following five years
at a rate of 20 percent per year. (Section 503 (f)(2) and Section
- Amnesty is unlimited. The bill grants legal
status to virtually all of the 12 million to 20 million illegal
aliens who are in the country today, and there is no cap on the
total number of illegal aliens who could receive Z visa status.
Expect a mass influx once the 12-month period for accepting Z visa
applications begins, because the legislation is an open invitation
for those intent on U.S. residence to sneak in and present two
fraudulent documents indicating that they were here before the
beginning of the year.
There should be no doubt that the current legislative proposal
is an amnesty. Like the amnesty bill of 1986, the current Senate
proposal would grant legal status to those who have resided
illegally in the United States and place them on a privileged path
to citizenship. As in 1986, these individuals must pay fees and
fines and meet certain conditions. And once again, the granting of
legal status is still "amnesty" even if it is conditional and not
automatic or does not necessarily end in citizenship.
In short, the bill's conditions and requirements do not turn
amnesty into "earned" legalization or citizenship.
Requiring a "touchback" (meaning a visit to a consulate outside
of the United States) after illegal aliens have received a legal
status that gives them a guaranteed return to the United States
does not alter this conclusion. Such a requirement does nothing of
substance other than impose a minor additional burden on those
That the Senate bill would grant amnesty is underscored by the
very breadth and generosity of that grant. To initially qualify for
a Z visa, an illegal alien need only have a job (or be the parent,
spouse, or child of someone with a job) and provide two documents
suggesting that he or she was in the country before January 1,
2007, and has remained in the country since then. A bank statement,
pay stub, or similarly forgeable record will do. Also acceptable
under the legislation is a sworn affidavit from a non-relative
(Section 601 (i)(2)). Further, if an Immigration and Customs
Enforcement agent apprehends aliens who appear to be eligible for
the Z visa, the agent cannot detain them (Sections 601 (h)(1, 5)).
Likewise, if an alien in the removal process is "prima facie
eligible" for the Z visa, an immigration judge must close any
proceedings against the alien and offer the alien an opportunity to
apply for amnesty (Section 601(h)(6)).
A Better Path
Those who enter, remain, and work in the U.S. illegally are in
ongoing and extensive violation of its immigration laws. Forgiving
or condoning such violations by granting amnesty increases the
likelihood of further illegal conduct. The failure to enforce
immigration laws is deeply unfair to the millions who obey the law
and abide by the rules to enter the country legally. And
disregarding the open and intentional violation of the
law-especially on such a massive scale-ultimately undermines the
rule of law.
The sensible way to resolve the problem of a huge illegal
population without granting amnesty is to insist that individuals
who are unlawfully present in the U.S. return to their countries of
origin and then apply, in line and on par with other applicants,
for legal entry. This pathway would allow illegal aliens to apply
for legal entry to the United States as lawful visitors,
temporary workers, or legal residents without partiality
or prejudice-or fees and penalties.
A practical program for repatriating those who are illegally
present in the United States is the only viable option that offers
a fair and reasonable alternative to the objectionable extremes of
blanket amnesty and forced deportation. It is also the best way to
avoid having to confront the problem of a huge, illegally present
population yet again in the future.
Making repatriation attractive, along with serious enforcement
of immigration laws and controlling the illegal inflow at the
border, would significantly reduce the current population of
unlawfully present persons. It is the only way to resolve this
seemingly intractable situation in accord with the principles of
governance and the rule of law.
Ph.D., is Director of the B. Kenneth Simon Center for
American Studies at The Heritage Foundation.