TILTING AT WINDMILLS: A HISTORY OF AMERICAN IMMIGRATION LAW AND POLICY

서지정보

· 발행기관 : 부산대학교 법학연구소
· 수록지 정보 : 법학연구 / 51권 / 4호 / 387 ~ 445페이지
· 저자명 : 프리만, 트로이 크리스찬

초록

Given the United States’ unique position in the world as an immigration magnet, peoples from around the world have and express opinions about American immigration law. Such opinions have been heard particularly in light of the lawsuit over Arizona’s SB 1070, which was enacted in April 2010 in order to mandate state government enforcement of certain immigrant- and immigration-related matters. As has been evident in the debate surrounding SB 1070, American and international opinions are strongly divergent concerning immigration matters and they often lead otherwise rational people to engage in irrational argument.
Presently, immigration laws and policies of the United States are largely disjointed, being comprised of philosophically inconsistent policies that do not mesh with reality. Such system is a product of the American political and legal system, as expressed in its history. So, in order to understand where it comes from, we must have a clear understanding of its historic underpinnings. Accordingly, this piece is calibrated to inform opinions and arguments within and outside of the United States by presenting a mostly chronological account of American immigration law and its history, particularly noting the impact of human rights, economic and foreign relations events and considerations, as well as the American government’s repeated quixotic attempts to fashion reasonable and realistic immigration policies.
It takes recounts and analyzes the four major epochs of American immigration laws and the forces that shaped them, namely (1) the first American century, which was dominated by federal deference to state laws that largely focused on protecting communities from immigrants reasonably deemed undesirable, such as criminals and the diseased, as well as restricting entry of free blacks and then the Chinese; (2) the era of initial assertion of major federal authority over immigration matters from 1875 through 1952, in which the federal government focused its efforts on barring East Asians and then Eastern Europeans from entering the United States and then, in the wake of World War II, began to refocus its efforts from national origin exclusions to determining categories of immigrants to prefer for inclusion; (3) the post-World War II era, in which the federal government passed key laws and treaties that stand as the framework for current immigration laws that prioritize family unification over all other categories of immigration and also provides a solid basis for refugee and asylee treatment but allows entry of inadequate numbers of employment-based immigrants and (4) the period of 1986 to the present, when the federal government repeatedly and ineptly focused on decreasing illegal immigration flows and also tried to create better systems to protect Americans from criminal and terrorist aliens.
The history of American immigration law, particularly in the modern era, has been characterized by a patchwork of incoherent laws fashioned in quixotic efforts to attack minor or trumped up problems while repeatedly leaving major issues to fester. Presently, the three biggest issues facing the United States with respect to immigration law are (1) the overarching systemic failure of immigration controls that has allowed 11 million unauthorized aliens to enter and stay in the United States; (2) the question of what to do with those 11 million unauthorized aliens in the United States and how to normalize immigration flows primarily from Mexico and Central America so that such an imbalance of unauthorized immigrants does not reappear in the future; and (3) the failure to allow the adequate balancing of immigrant categories that should be most highly prioritized – (i) family of citizens, (ii) refugees and (iii) needed skilled workers. Each of these issues can be dealt with largely by using the 1997 recommendations of the US Commission on Immigration Reform, with some variations. Ultimately, Congress should revisit such recommendations and then revamp immigration priority categories and tighten physical controls at ports of entry and along borders by utilizing not just federal resources but also leveraging state and local resources better, so that the people who should get into the United States are easily allowed to gain entry, and the people who should not enter have little chance of getting, or staying, in.
There are many lessons that Korea can draw from law and policies of the United States, both past and present. Three suggestions for Korea, based upon American experiences outlined in this article, are the following: (1) Korea should only pass immigration laws that it intends to, and can, enforce; (2) Korea should carefully calibrate its employment-based immigration program to meet actual economic needs; and (3) Korea should consider emulating America’s example on human rights by taking in and resettling a significant number of refugees and asylees, particularly those from Asia.

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