A Bailout for Illegal Immigrants? Lessons from the Implementation of the 1986 IRCA Amnesty
By David North

January 2010

David S. North is a fellow at the Center for Immigration Studies.

By now most of us realize that the government handled the $700 billion bailout of the big banks badly. The money went out in a whoosh to the Wall Street outfits that had created the crisis, but without the needed regulatory changes to prevent its repetition.

Is Congress about to make a parallel mistake about the illegal alien population and give that group a blanket amnesty like the one it lavished on the (much smaller group of) bankers, without giving a thought to the inevitable impacts of such an action?

With that dubious prospect on the horizon, it is a good time to take a careful look at the dysfunctional inner workings of the last major bailout of America’s illegal alien population, the alien legalization program that Congress created with the passage of the Immigration Reform and Control Act of 1986 (IRCA).

It is well known that some 2.7 million aliens secured legal status — many of them fraudulently — in that program, but there has been little discussion of the strange inner machinations that caused so much of the problem.

It so happened that, at that time, both a major foundation (Ford) and a minor federal agency (no longer surviving)1 asked me to evaluate the on-going operations of IRCA’s amnesty. A colleague and I spent nearly two years examining the program, visiting amnesty facilities across the nation and talking with hundreds of people involved in the program, from the Immigration and Naturalization Service Commissioner to the shakiest of applicants.2

It is now clear that:

The agency running the program, the old Immigration and Naturalization Service (INS), far from being the tough law-enforcement agency the immigrants’ advocates feared, turned out to be a typical governmental agency with a strong case of client-itis, one that usually said “yes” to its applicants.

Operating without many useful precedents, INS created a new and questionable decision-making process that severely hampered the detection of fraud.

A great deal of money intended for the legalization program was diverted to other government programs.

As a result, there was a tremendous amount of fraud, largely ignored by INS. A subsequent Center for Immigration Studies estimate, based on population estimates, found that fully one quarter of those granted legal status had secured that status through fraud.3
The Setting for IRCA Decision-Making

The Political Background. IRCA was an omnibus immigration law, an attempt to form a grand bargain that would take care of many immigration policy disputes. Part of it was the introduction of “employer sanctions,” saying that it would be illegal, in the future, for employers to hire illegal aliens; the other part was the legalization package. The promise was that sanctions would eliminate the lure of jobs in the U.S. economy and the legalization package would put several important groups of illegal aliens on the path to citizenship, thus shrinking the size of both the current and future illegal populations. There were extensive hearings and much public discussion of the various issues.

The grand bargain was supported by President Reagan and his Attorney General, Ed Meese, as well as by the leaders of the GOP-controlled Senate and the leaders of the Democrat-controlled House. The chairman and ranking member of the Senate immigration subcommittee, Sens. Alan Simpson (R-Wyo.) and Ted Kennedy (D-Mass.), had devoted considerable time and energy to its drafting, as had the House subcommittee chairman, Rep. Romano Mazzoli (D-Ky.). House Judiciary Committee Chairman Peter Rodino (D-N.J.) was similarly supportive.

Meanwhile in separate, off-stage negotiations, three key young Democratic members of the House put together a compromise that satisfied representatives of both the (largely Hispanic) farm workers and the California growers. Working around a kitchen table in one of their bachelor apartments on Capital Hill, then-Rep. Leon Panetta (D-Calif.), who spoke for the growers, Rep. Howard Berman (D-Calif.), who spoke for the illegal farm workers, and the broker, then-Rep., now Sen., Charles Schumer (D-N.Y.) created a compromise provision for Special Agricultural Workers, or SAWs. The trio then convinced other members of Congress to accept their provisions for farm workers.4

In short, legalization came into being with a considerable head of steam. It was only later that it became apparent that no serious effort would be made to either enforce employer sanctions or to create a national ID card that would make it easy for employers to identify legal, as opposed to illegal, immigrants.

IRCA’s Terms. The new statute (Public Law 99-603) was very complicated and was fully 100 pages long. It provided for four separate alien legalization programs, two of them quite narrow and never subject to much controversy,5 and two much broader programs.

Section 245A of the newly-amended Immigration and Naturalization Act gave legal status to applying aliens who: a) applied between May 5, 1987, and May 4, 1988; b) had been in the country more or less continuously since January 1, 1982; c) who did not have serious criminal records; and d) who met some other stipulations. A total of 1,763,434 aliens applied under this provision.6

The other major activity, the SAW program, gave legal status to those aliens who had done seasonal farm work in the United States for at least 90 days in 1984, 1985, or 1986 and who applied between June 1, 1987, and November 30, 1988. This provision drew 1,277,041 applicants.7……

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