But what is different this year is that the chances of undocumented individuals who do make the trip actually getting back into the U.S. will be significantly diminished as a result of new and enhanced screening of travelers at U.S. points of entry, be they airports, land crossings or seaports.
At the same time, there is also the possibility of a Christmas gift for some undocumented, albeit a slim one. A new effort to secure some measure of immigration reform was recently launched in Congress.
A bill sponsored by House Minority Leader Richard Gephardt, the Missouri Democrat, has been presented for consideration in the waning days of the 107th Congress.
The tightening of border checks and the birth of Gephardt’s bill are polar opposites as far as the undocumented are concerned. The question now is which of the two will be the main determining factor over the coming months in the decisions that govern what passes for normal everyday life.
In one sense, the undocumented have become reluctant spectators to a race in which they themselves will turn out to be the winners or losers.
In the meantime, it is not surprising that a common line of advice from Irish immigrant advocates this year is to spend Christmas in America and hope for the gift of legalization before the next time an unavoidable decision on whether to travel to Ireland presents itself.
But hope is not a lot to bank on when it’s stacked up against what is already daily reality.
The grimmer side of that reality is that since 9/11 there has been a fusing of the Immigration and Naturalization Service’s attitude toward people it does not consider suitable for entry to the U.S. Those who are considered national security risks and those who are simply undocumented immigrants hoping for a better life in the U.S. are now coming under the same kind of scrutiny as a result of legislation such as the Enhanced Border Security Act and the Patriot Act.
In one sense, the new scrutiny is a national borders form of a crime-fighting technique introduced in New York City during the Rudolph Giuliani years.
By stopping a subway turnstile jumper, cops sometimes laid their hands on far more serious criminals. In the case of border security, the undocumented are now the turnstile jumpers.
At the same time, no simple turnstile jumper was ever slapped with a 10-year prison sentence. The undocumented, if caught, do face exclusion from the U.S. for as long as that.
The INS is now looking ever more carefully at each border crosser, not just because it expects to find far more serious offenders or security risks among them, but because it has the tools to catch offenders big and small all at the same time.
Those tools come with acronyms such as “IBIS,” “APIS” and “ADIS.” The likely future wrought by such as the Advanced Passenger Information System and its close cousins, was explained to Congress recently in testimony delivered on behalf of the INS.
APIS, according to the INS testimony, “allows the INS to conduct analysis and identify and apprehend national security threats as well as criminals.”
“With the addition of electronic departure data, the INS will be able to improve not only our ability to identify and apprehend National Security Threats and criminals but also improve our ability to provide valid overstay data,” the INS said.
“Overstay data” means information on the undocumented.
The INS statement to Congress also pointed to the next move in scrutinizing those entering and departing the U.S.: “The next step involving electronic manifest,” the statement said, “will occur on January 1, 2003 when air and sea carriers will be required to transmit electronic arrival and departure data for all arriving and departing passengers including new data elements which will aid in the identification of mala fide travelers.”
Again, the final words in the paragraph, “mala fide travelers,” refer to the undocumented.
“New data elements” will include information that not just identifies an individual, and that individual’s departure and arrival point, but also, for example, where the individual will be staying in the U.S. and for how long.
The INS testimony added that information “captured” from the electronic manifests “feeds” into the ADIS.
“The ADIS will be the repository for arrival and departure records for non-citizens. The ADIS will match arrival and departure records to accurately identify those individuals who are out of status,” the INS testimony continued.
Against this steady advancement of data-based scrutiny, those undocumented who are guilty of just being undocumented will be casting an eye in the direction of the Gephardt initiative in the House of Representatives.
The bill will be debated in the next, 108th, congress, although there is a precedent for immigration action in a lame duck session.
This was the case in 2000 when 245i, the provision that allows the undocumented to apply for legalization without having to leave the U.S. — and by doing so face the three or 10-year exclusion bans — was given a 4-month extension.
That extension was given effect five days before Christmas. The likelihood of the Gephardt bill arriving intact under the Christmas tree courtesy of the departing 107th Congress is, however, remote.
For one thing, it is a far bigger matter than an extension to 245i. The Gephardt bill, though no supporter dare utter the name too loudly, is in fact an effective amnesty for a significant portion of the undocumented population in the United States.
It is not being called an amnesty. Given the sensitivity over such a word, it is presented as an immigration reform bill.
“It is,” as Tom Conaghan, director of the Irish Immigration and Pastoral Center in Philadelphia put it, “the beginning of a positive conversation in Washington, D.C., with regard to immigration reform.”
Gephardt’s bill, the Earned Legalization and Family Reunification Act of 2002, proposed that any undocumented immigrant can secure legalization if he or she meets a series of listed requirements.
A main requirement, and one that will both include and exclude undocumented Irish from the bill’s provisions, is that an individual has had “continuous residence in the United States for at least five years prior to the date of the bill’s enactment.”
There is an ironic twist in this. If the bill should pass in its current form, applicants will be in a stronger position the longer they have been living out of status in the U.S.
Clearly, there would be a temptation for an undocumented applicant to exaggerate the length of time spent in the U.S. in an effort to get over the five-year barrier.
Gephardt, obviously aware of forces in Congress hostile to any measure that smacks as an amnesty, has been playing up a national security angle to his bill by suggesting that successful passage will free up resources in the INS and other agencies that can be used to track and apprehend people who actually do harbor ill intent toward the U.S.
The Gephardt bill, though aimed at the undocumented, will be different from the Donnelly and Morrison Visa programs of a decade and more ago. Both those initiatives were dressed up as immigration reform measures and criticism that they amounted to amnesties was blunted by virtue of both being made available to people living in Ireland as well as undocumented Irish in the U.S.
The Gephardt bill focuses entirely on the undocumented, and of all nationalities.
The critical question for any undocumented Irish who hope to benefit from it is whether it passes into law and does so before an unavoidable visit home to Ireland turns into a one-way ticket.