A bipartisan bill introduced in the Senate by Ted Kennedy and John McCain offers a plan for dealing with the nation's illegal immigration problem. Undocumented immigrants would be able to pay a fine, receive a three-year work visa, renewable once, and then, in McCain's words, "get in the back of the line for a green card and eventually become citizens." Foreigners could enter as temporary guest-workers and then apply for permanent residency.
The approach has merit: Giving visa-holders the opportunity to stay means that today's guest workers won't become tomorrow's illegal workers. But the bill sets a cap on the annual number of temporary-work visas at 400,000. With an estimated eight to 10 million undocumented immigrants now in the country, not to mention continued emigration pressures from Mexico, Central America and Asia, undocumented immigration will probably continue.
Even if Congress raised the ceiling on annual legal immigration, demand from some areas would probably continue to exceed the supply of legal admissions. Illegal immigration is a hard problem to solve because it involves myriad issues that are difficult to reconcile: domestic and international politics, competing economic interests, the need to prosecute lawbreakers, and the desire to be humane. But we often overlook simple solutions that have historical and legal precedent. We used to have one policy that is worth revisiting: a time limit -- a statute of limitations -- on prosecuting unauthorized presence.
Before 1891 there were no provisions in our immigration laws to deport an immigrant who entered without permission. (Indeed, hardly any requirements for admission existed.) Thereafter, Congress enacted statutes of limitations of one to five years for deportable offenses. This policy recognized an important reality about illegal immigrants: They settle, raise families and acquire property -- in other words, they become part of the nation's economic and social fabric. In the first decades of the 20th century, it was considered unconscionable to expel such people. Judge Learned Hand of New York said that deportation, especially when it tore people from their homes and families, was "barbarous and cruel."
After World War I a conservative Congress imposed both quantitative (numerical ceilings) and qualitative (national origin and racial) restrictions on immigration, ending the storied era of open immigration from Europe. And in a fit of hyper-nationalist vengeance it also eliminated the statute of limitations on unlawful entry.
We have long since repudiated the national origins quota system as a racist policy. But we have remained committed to numerical restrictions and to expelling undocumented immigrants, regardless of their length of stay, the contributions they make and the social ties that they establish. The few reforms that were made over the years, which allowed for suspending deportation in hardship cases or according to a balance of equities, were virtually eliminated by Congress in 1996.
Critics oppose legalizing undocumented immigrants on the grounds that it rewards bad behavior. This concern is, again, at the center of debate over the Kennedy-McCain bill. Yet, we should consider that nearly all offenses, civil and criminal, carry statutes of limitations. Time limits provide an incentive for plaintiffs to bring suit promptly. It is not the best use of the government's resources to pursue old cases in which the evidence is stale or difficult to obtain. The benefits of prosecution often diminish with time, as the offender has often reformed. Limiting the time of possible prosecution also thwarts the potential for blackmail by a third party that knows of the offense. (This is essentially how employers abuse undocumented workers.) Finally, the passage of time brings with it the need for closure. The U.S. Supreme Court recently explained: "The statute of limitations establishes a deadline after which the defendant may legitimately have peace of mind." Only the most serious crimes, such as kidnapping and murder, carry no statutes of limitations.
A statute of limitations on unlawful entry is therefore not anachronistic but consistent with basic legal and moral principles. It does not condone or reward illegal immigration: Unauthorized presence would remain a violation of the law and continue to carry the risk of apprehension and removal, at least for some period of time. But it would allow us to recognize that the undocumented become, for better or worse, members of the community, and to accept them as such.
Restoring the statute of limitations would not solve our immigration problems. But it would go a long way toward stemming the accretion of a caste population that is easily exploitable and lives forever outside the polity.
The writer teaches history at the University of Chicago. She is the author of "Impossible Subjects: Illegal Aliens and the Making of Modern America."