Congress Should Delink Passage of the DREAM Act from Additional Enforcement Spending

Donald Kerwin
Center for Migration Studies


Congress Should Delink Passage of the DREAM Act from Additional Enforcement Spending

President Donald Trump eliminated the Deferred Action for Childhood Arrivals (DACA) program based on uncharacteristic qualms over executive overreach. In doing so, he urged Congress to “resolve the DACA issue with heart and compassion,” and then dismissed the possibility of using the only certain legislative vehicle available, a “must-pass” spending bill. In a December 29th tweet, the president conditioned “DACA” on funding for an unnecessary 2,000 mile border wall, and an end to family-based immigration and the diversity visa program. As a new study by the Center for Migration Studies (CMS) suggests, Congress should instead delink passage of the DREAM Act from enforcement spending, and pass a “clean” DREAM Act shortly after it returns to work later this week.

The CMS study, authored by Robert Warren, highlights what has been apparent for several years now: the United States has turned a corner in immigration enforcement. Its undocumented population has fallen well below historic highs and now mostly consists of long-term residents who are strongly embedded and invested in the country, including the DREAMers. The study focuses on visa “overstays”; i.e., persons admitted on non-immigrant (temporary) visas that remain in the United States beyond their allotted time period. The CMS report’s title, “DHS Overestimates Visa Overstays for 2016; Overstay Population Growth Near Zero During the Year,” implies criticism of the Department of Homeland Security (DHS). In fact, the report credits the agency for its “remarkable” success over the last 14 years in recording non-immigrant departures.

DHS has reported that in fiscal year (FY) 2016 nearly 99 percent of 50.4 million non-immigrants admitted at an air or sea port-of-entry, who were required to leave did so. While DHS could not verify the departure of 628,799 non-immigrants, the CMS study found that 323,000 of the reported overstays had, in fact, left the country, but their departure was not recorded. Another 275,000 left in 2016 who should have departed in prior years. In particular, CMS found that DHS significantly overestimated overstays from 36 countries, including Canada and many of the 38 nations that participate in the US Visa Waiver Program (VWP). The VWP allows citizens or nationals from participating nations to travel to the United States without a visa for tourism or business. The CMS study concluded that the net growth in the overstay population in FY 2016 was “near zero.”

Why do these findings matter? First, participation by countries in the VWP depends, in part, on their overstay rates and, by extension, the accuracy of US overstay estimates. Second, the CMS findings should have consequences for the allocation of US enforcement funding. Most importantly, however, the CMS study demonstrates that another pillar of the US enforcement system is operating effectively and will serve as a check on future growth of the undocumented population.

Earlier this year, CMS reported that nearly two times more visa overstays joined the undocumented population between 2008 and 2015, than persons who illegally crossed the border. However, this trend does not reflect an increase in the number of overstays, but the dramatic decrease in illegal crossings between 2000 and 2015. The new study shows that non-immigrants — one of the two main sources of the US undocumented population — overwhelmingly leave the United States when required and most of those who do not leave on time (overstays) ultimately depart on their own, many shortly after the expiration of their admission period. By contrast, more than 6.6 million of the 11 million US undocumented residents have lived in the United States for 10 years or more, and 3.5 million for more than 15 years. In short, the undocumented population has both decreased in size and stabilized over the last 15 to 20 years, making it a good time for a legalization program.

At one time, the term “comprehensive immigration reform” seemed to hold the promise of a solution to political gridlock on immigration. In return for a massive investment in border enforcement, the thinking went, Congress would pass legislation to reform the legal immigration system and provide a path to citizenship for a large percentage of the undocumented. This promise never materialized, despite great success in securing the border and, as Warren’s research indicates, in tracking entries and departures of non-immigrants. The enforcement build-up has come at a high cost to US families, civil liberties, and the social fabric, particularly of border communities. It has also come at an immense financial cost. The enacted budgets of the two DHS enforcement agencies – Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) – equaled more than $19.4 billion in 2016, a figure that substantially underestimates total immigration enforcement spending. The President’s 2018 budget would increase combined CBP and ICE funding to $24.3 billion.

How best to solidify US enforcement gains and minimize this system’s socio-economic and human costs? Ted Alden of the Council on Foreign Relations argues that further border enforcement spending will produce only “incremental” benefits and cannot prevent, for example, Central American refugees from trying to reach safety in the United States or deportees from trying to reunite with their US spouses and children. CMS has argued that the creation of a legal immigration system that responds in a timely, flexible way to the nation’s economic, family and humanitarian interests, would do more to promote legal, orderly migration and a permanent reduction in the US undocumented population, than additional, large-scale enforcement spending.

A large body of literature has demonstrated that the DREAM Act would serve the nation’s economic interests. Providing a path to citizenship for persons who are American in everything but status is also a moral imperative. The DREAM Act’s arduous legislative history, combined with the nation’s already massive commitment to immigration enforcement, makes it highly unlikely that the bill’s passage would incentivize overstays or illegal crossings.

More than 16 years ago, the first DREAM Act was introduced in Congress, and sixteen years later Congress and the administration are still holding this essential legislation hostage to political posturing and horse-trading. If there was ever a compelling rationale to link the DREAM Act with large-scale enforcement spending, it no longer exists. Instead, Congress should do right by the DREAMers and our nation, and expeditiously pass the DREAM Act.

This essay first appeared in the Huffington Post on January 1, 2018.