The Wall Street Journal is reporting that Senators Michael Bennet and Mike Crapo are attempting to put together an amnesty for illegal alien farmworkers that can pass both the Senate and House in the lame duck session and get enacted into law before Republicans take control of the House in January. Of course, Senate Majority Leader Charles Schumer would have to agree to such a scheme.
Congress has not pulled this off since 1986, when the Immigration Reform and Control Act of 1986’s (IRCA) “special agricultural worker” (SAW) amnesty program provided temporary and later permanent legal status for aliens who had performed seasonal agricultural work in the U.S. for at least 90 days during the 12 months ending on May 1, 1986. According to the U.S. Department of Labor, the SAW program gave amnesty to 1,077,000 illegal aliens (out of 1,278,000 applicants) as of August 12, 1992.
Notoriously, the SAW program was “one of the most extensive immigration frauds ever perpetrated against the United States Government”, as Roberto Suro, now Professor of Journalism and Public Policy at the University of Southern California, concluded in the New York Times in 1989.
How did SAW come about, and why was it so flawed? The blame for the SAW debacle rests largely with Senator Schumer. He had a leading role in devising the program as a member of the House of Representatives at the time. He himself remarked at a Judiciary Committee markup of the legislation that:
The area that I particularly labored in [was to] come up with a compromise on agriculture. . . . That is the sine qua non of any kind of compromise on [immigration legislation], because it is no secret that . . . the agriculture provisions . . . has [d]one in this bill more than once.
Mr. Schumer was also up-front about the fact that his SAW amnesty was specifically designed to meet the needs of special interests. He stated at the markup that:
Significantly, with this compromise, we have harnessed the same special interests who formerly opposed immigration reform and now have their support in working for a bill. . . . [W]e have met the needs of special interests without sacrificing the general interests which propel immigration reform.
Scholars agree that Schumer’s SAW program was the key to getting IRCA, and its mass amnesty, across the finish line. University of Maryland Professor James Gimpel and James Edwards, Jr., write in their book "The Congressional Politics of Immigration Reform" that:
In the full [House Judiciary] committee, the sticking point [for IRCA] proved to be the farm worker program. Labor-connected Democrats insisted that foreign guest-workers would have an adverse impact on the wages and working conditions of domestic workers. But influential Democrats on the House Agriculture Committee . . . had insisted on a farm worker program as a condition for supporting the bill. Arguments about the farm worker program had stalled the legislation in 1984. Fearing that the bill could die without an agricultural provision, Judiciary Committee Democrats Howard Berman (D-CA) and Charles Schumer (D-NY) drafted an amendment to grant permanent resident status to agricultural workers who had been employed at least 60 days between May 1985 and May 1986.
According to the Congressional Research Service (in a report prepared for the Senate Judiciary Committee):
The issue of seasonal agricultural labor continued to dominate consideration . . . in part because of [Judiciary Committee Chairman Peter] Rodino’s objection to a large-scale guest worker program as being exploitive of both domestic and alien workers. . . . [A] group of Congressmen had begun trying to devise a compromise alternative to a guest worker program. The key members of this group as it evolved were Rep. Charles Schumer (D-NY), Rep. Howard Berman (D-Calif.), and Rep. Leon Panetta (D-Calif). Their task was to arrive at a program which would be satisfactory to both the influential and well-funded agricultural interests, and to those opposed to a large temporary guest worker program. . . . The issue . . . dominated House Judiciary markup . . . [T]he bill reported by the full Committee included . . . . the Schumer amendment, drafted after months of negotiations . . . . [When the bill reached the House floor, further] intensive bipartisan negotiations . . . led to a successful compromise . . . . [that] made House consideration of the bill possible . . . . President Reagan signed [IRCA] into law . . . on November 6, 1986 . . . .
Monica Heppel, who was Director of Research for the U.S. Commission on Agricultural Workers, and Sandra Amendola write in their book "Immigration Reform and Perishable Crop Agriculture: Compliance Or Circumvention?", that:
With immigration reform . . . stalled . . . Schumer . . . attempted to develop an acceptable compromise regarding agricultural labor. During most of 1986, key parties met in closed meetings in such an attempt. The primary stumbling block was the foreign farm worker provision. . . . The . . . compromise . . . eliminated any additional temporary worker program, but allowed for the legalization of undocumented workers currently employed in perishable crop agriculture, as well as provided for replacement agricultural workers . . . should the need arise. . . . Again resurrected, this bill included the slightly modified Schumer compromise . . . .
Finally, Daniel Tichenor writes in his book "Dividing Lines: The Politics of Immigration Control in America" that:
When the House reconvened in 1984, a number of young legislative entrepreneurs . . . worked behind closed doors to harmonize conflicting versions of the Simpson-Mazzoli bill. With the blessing of party leaders . . . junior members like . . . Schumer . . . and . . . Panetta . . . took the lead in trying to fashion a compromise package . . . . [including] efforts . . . to quietly devise a farmworker program that satisfied growers while meeting union demands for worker protection. . . . Finally, the House farmworker package was adopted as a compromise between grower labor interests and liberal demands for worker protection.
And, as to the fraud? Suro reported in the Times in 1989 that:
- [A] variety of estimates by Federal officials and immigration experts place the number of fraudulent [SAW] applications at somewhere between 250,000 and 650,000.
- Given the limited law-enforcement effort, no precise count of fraud in the agricultural amnesty program is possible. But some rough estimates are possible based on information from the aliens themselves. An extensive survey conducted in three rural Mexican communities by the Center for U.S.-Mexican Studies at the University of California in San Diego found that only 72 percent of those who identified themselves as applicants for farm worker amnesty had work histories that qualified them for the program. A similar survey conducted by Mexican researchers in Jalisco in central Mexico found that only 59 percent qualified.
- The Immigration and Naturalization Service [INS] has identified 398,000 cases of possible fraud in the program, but the agency admits that it lacks both the manpower and the money to prosecute individual applicants. . . .
- Evidence of vast abuse of the farm worker amnesty program has already led to important changes in the way immigration policies are conceived in Congress. . . . [R]ecent legislation . . . was modified specifically to avoid the uncontrolled influx that has occurred under the agricultural amnesty program.
- [A couple] pleaded guilty to immigration fraud charges after [INS] investigators alleged that the[y] were part of an operation that helped about 1,000 aliens acquire amnesty with falsified documents showing they had all worked on a mere 30 acres of farmland.
- John F. Shaw, [INS] Assistant Immigration Commissioner . . . . said law-enforcement efforts had been limited to the people who sold false documents to applicants for the farm worker amnesty. The immigration service has made 844 arrests and won 413 convictions in cases alleging fraud in the amnesty program. The people involved ranged from notaries public to field crew leaders. “It was a cottage industry . . . . It was a weak program and it was poorly articulated in the law[.]”
- Unlike almost all other immigration programs, which put the burden of proof on the applicant, the farm amnesty put the burden on the Government. Consequently, aliens with even the most rudimentary documentation cannot be rejected unless the Government can prove their claims are false.
- Mr. Shaw said the fraud conspiracies often involved farms that actually did employ some migrant labor. So it is frequently impossible to separate legitimate from illicit claims.
Heppel and Amendola observe that:
Recognizing that undocumented farm workers were likely to have worked for a number of different employers, possibly under assumed names, and for employers who might not have the required payroll and tax records, the documentation required in the application process for SAWs was substantially less rigorous than it was for general legalization applicants. . . . The extremely large number of SAW applicants surprised Congress, the INS . . . and almost all observers of farm labor in the United States. To explain the large number, most persons involved in the legalization process assume high rates of fraud in the SAW program. The ease with which application could be made is believed to have encouraged ineligible aliens to take this route to legalization. A study using California unemployment insurance . . . data indicated that, assuming the entire universe of SAW-eligible workers were undocumented, there should have been between 115,000 and 188,000 applicants in the state. . . . With over 650,000 applicants from California alone, the author concludes that there must have been an extremely high rate of fraud in the SAW program. Although they provide little evidence, INS officials have estimated an approximate 50 percent fraud rate in the overall SAW program.
The U.S. Commission on Agricultural Workers reported that:
[M]any observers assume that . . . there were high rates of fraud in the SAW program as a result of the relative ease with which applications could be made. . . . [T]he number of applications filed far exceeded all planning assumptions. The official administration estimate of the number of undocumented workers in agriculture was 300,000-500,000, developed by [the U.S. Department of Agriculture] during the IRCA debates in 1983. Most other estimates fell within that range. The INS planned on 800,000 SAW applicants. The more than 1.27 million SAW applications filed . . . overwhelmed the system. . . . Many aliens who did not qualify for either the general or the [SAW] legalization programs . . chose to probe the more ‘vulnerable’ of the two programs. They opted for filing a SAW application. With some luck, eventual U.S. permanent resident status could be gained through the purchase of a single fraudulent affidavit and the ability to maintain one’s composure in an interview. . . . [T]he Government was sorely taxed by its burden of disproving the evidence presented in each application. There is widespread consensus among observers and analysts, regardless of political persuasion, that there was significant fraud in the SAW program. Assessing the magnitude of this fraud – or even its range – is an inherently difficult exercise. . . .
University of California, David, professor Philip Martin observed in 1990 that while “the extent of SAW fraud is impossible to determine”, data suggested that half to two-thirds of applications may have been fraudulent. A decade later, he concluded that “at least half of those who became immigrants through the SAW program did not satisfy the requirement that they performed at least 90 days of farm work in 1985-86.” Martin also noted that “applicants . . . proved willing to pay several hundred dollars for [affidavits] from employers . . . the business of selling false employment histories mushroomed” and applicants made preposterous claims such as having climbed trees to pick strawberries.
The 9/11 Commission’s staff report noted that Mahmud Abouhalima, a participant in the 1993 attack on the World Trade Center, received SAW status after claiming to have picked beans in Florida.
This sorry history of fraud was preceded by Mr. Schumer’s promise during the markup that fraud would not be a problem:
[T]he bill . . . is tough on fraud. There are rigorous criminal penalties for aliens making fraudulent applications, which ultimately permanently exclude offenders from entry into the United States. In addition, we have given the Attorney General . . . the authority to review green card applications, and we fully expect the government to be tough in its assessment of these applications.
By 1989, Schumer had sort of admitted he had been mistaken. Suro reported that Schumer “said that in retrospect the program seemed ‘too open’ and susceptible to fraud. But he argued that budget decisions had made the battle to combat fraud more difficult.” Schumer promised that “in developing immigration policies in the future, Congress will be much more wary of the potential for fraud and will do more to stop it.” Gee, thanks, Mr. Schumer.
Though, in all fairness, it might simply be impossible to design a farmworker amnesty that isn’t fraud ridden. Stephen Rosenbaum, staff attorney for California Rural Legal Assistance, points out that “there was no other way to structure an immigration program for an occupation ‘that does not produce a paper trail.’ . . . You can argue the wisdom of a farm worker amnesty, but if you have one, you have to recognize the immense logistical problems involved in producing evidence”.
Just about every other prediction Schumer made about the SAW program likewise turned out to be false. He claimed during the markup that the program would “shut off one of the prime magnets to illegal immigration: an agricultural job.” As it turned out, SAW actually encouraged illegal immigration. The U.S. Commission on Agricultural Workers later found that:
[T]he SAW program . . . appears to have formed the foundation for continued illegal immigration through the following factors: (1) by facilitating the settlement of immigrants in the United States, thereby increasing the number of “anchor” households whose presence facilitates the transition into U.S. work and society for future authorized and unauthorized immigrants, (2) by facilitating cyclical migration, thereby reducing the costs for unauthorized immigrants to journey .north and enter the United States with legally returning SAWs; (3) by stimulating unauthorized family unification in the United States as spouses join their husbands in the agricultural labor force; and (4) by “sending the message” that the route to legal status comes through illegal entry into the United States.
Schumer also claimed during the markup that:
“The bottom line, my colleagues on this committee, is that the number of workers involved in the [SAW] plan are small compared with overall legalization . . . or compared with the millions of illegal immigrants coming across our borders at an increasingly rapid rate.”
Lastly, Schumer claimed that the SAW recipients would not abandon jobs in agriculture, stating in the markup that:
[I]t is the assumption of just about every party that I have talked to, the vast majority of them will continue to work in agriculture, for the very reason, first of all, that they have done it before; second of all, that there are not large employment opportunities in the cities; and third, that they have – most people tend to work in jobs for which they have the skill and for which they are accustomed to. So that it is my guess, and it is only a guess, it is anyone’s guess, that you will find an extremely high percentage of people continuing to work in agriculture.
Again, the actual outcome was quite different. Professor Martin finds that:
The exit of SAWs from the farm workforce since the early 1990s reflects [the fact that] falling real wages and shrinking benefits encouraged SAWs to seek non-farm jobs as the economy improved in the 1990s. The SAWs who left farm work were replaced by newly arrived unauthorized migrants. By 1997-98, it was estimated that SAWs were [only] about 16% of crop workers, and that half of the farm workers on crop farms were unauthorized.
With his dismal track record, will Congress and the country again allow Sen. Schumer to sell America a mass amnesty for farmworkers? Will we again accept his baseless assurances as to the consequences of his grand schemes? Let's hope the answer is no.