Courts Dismiss Claim That Amnesties Trigger Migration

On August 14 a federal appeals court dismissed as “speculation” one of the most persistent of the anti-immigrant right’s many fantasies: the claim that any sort of humane treatment of undocumented immigrants by the U.S. government will lead inevitably to a “flood” of foreigners pouring over our borders.

At issue was a suit in which Joe Arpaio, the rightwing sheriff of Arizona’s Maricopa County, is seeking to block President Barack Obama’s November 2014 plan for giving a temporary reprieve from deportation for as many as half the country’s more than 11 million unauthorized residents.  The plan includes the new Deferred Action for Parental Accountability (DAPA) and an expansion of the existing Deferred Action for Childhood Arrivals (DACA).  Both programs would protect qualifying immigrants from deportation for three years and would grant them a work permit for the period.

The suit, Arpaio v. United States, isn’t so important in itself; it’s basically just the latest of the sheriff’s notorious publicity stunts.  The more significant DAPA-DACA case is Texas v. United States, with which 26 states have managed to win a February injunction putting a hold on the programs.  But Arpaio’s suit accomplished one thing worth noting: it provided a test in court of an old anti-immigrant favorite: the notion that giving some undocumented immigrants legal status — or even a temporary deferral of deportation, as in DAPA and DACA — creates a “magnet” drawing more unauthorized immigrants into the country in the hope of getting legal status themselves.

Blaming the 1986 Amnesty

Supporters of the magnet claim cite the example of the 1986 amnesty, the legalization process in the Immigration Reform and Control Act (IRCA) through which nearly three million undocumented immigrants regularized their status.  The number of unauthorized residents then tripled in the 1990s and early 2000s, a development that anti-immigrant groups say was a result of the amnesty.

The problem with this argument is a total lack of evidence.  Demographers who study immigration flows conclude that the amnesty had no long-term effect on unauthorized migration to the United States, and most observers agree that the real causes for the wave of border crossings in the past quarter century lay in conditions in the immigrants’ home countries.  Undeterred by the absence of a factual basis for the amnesty claim, conservative and even liberal politicians and commentators have continued to use the argument.  It was the basis of a 1999 New York Times editorial, for example, and it still sometimes appears in news articles there.

Arpaio’s lawyer, the rightwing conspiracy theorist Larry Klayman, decided that the amnesty-magnet claim would be useful as a way to establish the sheriff’s standing to sue the federal government.  Klayman contended that DAPA-DACA would bring an increase in the undocumented population of Maricopa County.  The increase would strain the resources of the sheriff’s office, and this, he argued, entitled Arpaio to bring the suit.  For evidence, Arpaio’s suit alleged that an uptick in border crossings by Central American unaccompanied children and family units in the summer of 2014 was caused by the 2012 announcement of the original DACA program.

Arpaio v. United States went before Federal District Judge Beryl Howell in Washington, DC, in December 2014.  One day after a hearing for oral arguments — during which the judge apparently had trouble keeping a straight face — Howell threw the case out, rejecting Klayman’s arguments for the sheriff’s standing.  She dismissed the magnet claim as “largely speculative.”

“Jousting at Windmills”

Arpaio and Klayman then took their case to the U.S. Court of Appeals for the District of Columbia Circuit, possibly the country’s most important federal appeals court.  After considering the case, a three-judge panel of the court unanimously upheld Judge Howell’s dismissal of the suit.

The court’s August 14 opinion, written by Circuit Judge Nina Pillard, a 2013 Obama appointee, was especially scathing on the magnet argument.  Arpaio’s claim that DACA caused the increase in Central American border crossings in 2014, Pillard wrote,

suffers from the logical fallacy post hoc ergo propter hoc (after this, therefore because of this).  Just as we do not infer that the rooster’s crow triggers the sunrise, we cannot infer based on chronology alone that DACA triggered the migrations that occurred two years later.

Sheriff Arpaio provides no factual allegations to link the 2014 “flood” of minors to DACA.  The record reveals only speculation about the complex decisions made by non-citizens of the United States before they risked life and limb to come here.  While immigration policies might have played into that calculus, so, too, might the myriad economic, social, and political realities in the United States and in foreign nations.  Even assuming that it is conceivable that inaccurate knowledge of DACA could have provided some encouragement to those who crossed the southern border, the Supreme Court precedent [in a 1976 decision] requires more than illogic or “unadorned speculation” before a court may draw the inference Sheriff Arpaio seeks.

It’s possible that Arpaio and Klayman can find a higher court willing to accept the sheriff’s claim of standing, but it would be difficult.  The magnet argument also fell flat in the more important Texas v. United States case.  In his February 16 injunction temporarily blocking DAPA and the DACA expansion, Andrew Hanen, a district judge for the Southern District of Texas, granted standing to the 26 plaintiff states, but not because of the magnet claim.  Instead, he based his decision on Texas’ assertion that it would lose millions of dollars in processing costs when thousands of DAPA beneficiaries applied for driver’s licenses.

Hanen, a Texas conservative appointed by George W. Bush in 2002, was more sympathetic to the amnesty argument than judges were in the District of Columbia, but he too dismissed it as basis for blocking the programs.  “The decision to immigrate illegally is motivated by innumerable factors,” he wrote, “and a court would be jousting at windmills to craft an injunction to enjoin all of these activities.”

In other words, the magnet claim has had its day in court — three times — and it hasn’t done too well.

Through the Looking Glass

None of this will stop conservative pundits and politicians from endlessly blaming increases in immigration on the 1986 amnesty and later policies favorable to immigrants.  In fact, the right-wingers have come to the point where they pretty much apply the word “amnesty” to any immigration policy they don’t like.

Rightwing outlets like and the Unification Church’s Washington Times routinely describe DAPA and DACA as “amnesties.”  In reality, an amnesty is a pardon, a legal act that wipes the recipient’s record clean; the English term comes from a Greek word that translates literally as “not remembering.”  The two deferral programs are nothing of the sort: in these the recipients get a reprieve for a few years, but the threat of deportation — of exile from their current homes, and in the case of many DACA recipients, the only home they have ever known — continues to hang over their heads.

The anti-immigrant right simply ignores the actual meaning of “amnesty.”  The politicians and pundits find the word useful because it seems to trigger a sort of conditioned reflex from nativists, like the salivation of dogs in Ivan Pavlov’s experiments.  There even seems to be a competition to see who can misapply “amnesty” most often.  Numbers USA, which the Southern Poverty Law Center classifies as one of the “faces of intolerance,” claims there have been six “amnesties” since 1986.  Michelle Malkin, who is almost a caricature of a rabid rightwing columnist, adds Temporary Protective Status (TPS) to the Numbers USA list, making a total of nearly a dozen “amnesties” since the last real one 29 years ago.

It appears that these people accept the logic that Humpty Dumpty expounds in Through the Looking-Glass:

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

This is further evidence, if any was needed, that the anti-immigrant right is now living in a fantasy world worthy of a new Lewis Carroll.

David L. Wilson and co-author Jane Guskin are working on a revised edition of The Politics of Immigration: Questions and Answers (Monthly Review Press, July 2007).