— President Obama, interview on ABC News’ “This Week,” Nov. 23, 2014
This column has been updated with a new Pinocchio rating
Who knew that an article that appeared on Page 3 of the metro section of the New York Times nearly a quarter-century ago could have such resonance in today’s policy debates?
As part of its justification for President Obama’s executive action on immigration, the White House and its allies have repeatedly stressed that Obama’s action, in impact, is roughly equivalent to a step that George H.W. Bush took in 1990. The United States had about 3.5 million illegal immigrants in 1990, so 1.5 million would be about 40 percent of that number. Given that about 40 percent of the current number of undocumented immigrants would be covered by Obama’s actions, that 1.5 million figure is crucially important to the White House’s defense of the president’s decision.
Much of the news media, including The Washington Post, has repeated the 1.5 million figure as a fact in recent weeks. But it turns out that the number hangs on a slim reed.
Bush’s action in 1990 was designed to ease family disruptions caused by the landmark 1986 Immigration Reform and Control Act, which allowed nearly 3 million illegal immigrants to gain legal permanent residency.
Under typical immigrant patterns, families do not all arrive together. Thus some family members qualified for residence but others still faced deportation. President Ronald Reagan at first eased the rules for minor children, and then Bush in early 1990 extended it to cover children and spouses, including authorization to work. However, the new rule did not make them legal residents, and they were required to renew their ”voluntary departure” status annually; they also had no legal basis to return to the United States if they left the country.
Here’s how The Post reported the Feb. 2 announcement on the front page at the time:
The Immigration and Naturalization Service yesterday reversed a stance that had drawn strong protests from Hispanic and human-rights groups by announcing a new policy to prevent the deportation of as many as 100,000 illegal aliens who are the children and spouses of newly legalized immigrants.
The new “family fairness” guidelines announced by INS Commissioner Gene McNary represent a potentially significant modification to the amnesty program created by the 1986 Immigration Reform and Control Act. That program has provided amnesty to up to 3 million illegal immigrants who entered the country before Jan. 1, 1982.
Under the new policy, children and spouses of those newly legal immigrants will be granted a temporary status that will permit them to receive work permits and protect them from deportations. However, it will apply only to illegal immigrants who have been residing here since Nov. 6, 1986, when the amnesty program took effect.
Note that the figure given at the time of the announcement was 100,000. This number was broadly cited, in just about every article that appeared on the day after the announcement. “The new policy is likely to benefit more than 100,000 people, INS officials and immigration lawyers said,” the San Francisco Chronicle reported.
The Times ran a short Associated Press dispatch that said, “Thousands of illegal aliens who are the spouses or children of legal immigrants will be allowed to stay in this country under a new Government policy.”
However, the Philadelphia Inquirer said the number was possibly higher: Officials “said they could not predict how many dependents would come forward, although they did not dispute estimates from immigrants’ advocacy groups of 500,000 or more. ‘There’s no way to count them. It may run to a million,’ said INS spokesman Duke Austin.”
That’s certainly not billed as a precise estimate. But big round numbers are often catnip for journalists.
That 1 million figure soon turned up in a Los Angeles Times article on Feb. 15: “Although there are no firm figures, the immigration service estimates as many as 1 million aliens could be affected by the new policy.”
On March 5, the Times ran another article on the policy shift that included this sentence: “The Federal Immigration Commissioner, Gene McNary, said recently that as many as 1.5 million illegal aliens could be affected by the new policy, called ‘family fairness,’ and intended to allow close family members of legalized immigrants to remain in the country under certain conditions.”
The Times article suggested that McNary had made a public statement to this effect, but if so, it does not turn up in news databases.
Administration officials noted that a 2012 Congressional Research Service report said, “At the time, McNary stated that an estimated 1.5 million unauthorized aliens would benefit from the policy.” CRS is nonpartisan and respected. But the CRS report provides no source for this comment.
McNary initially told The Fact Checker that he is fairly certain he never used that figure. “I was surprised it was 1.5 million when I read that” in the recent news reports, he said. “I would take issue with that. I don’t think that’s factual.”
We then obtained the full testimony of a congressional hearing at which McNary testified, on Feb. 21, about three weeks after the initial announcement of 100,000. In one section, shown below, McNary appears to confirm the 1.5 million figure.
But the exchange is confusing because it also appears to refer to an earlier exchange at the hearing concerning a different category of 1.5 million people. Moreover, McNary goes on to say the potential universe of affected people could be as much as 3 million, which is certainly surprising, given that was the estimate of all undocumented immigrants in 1990. The entire transcript is embedded at the end of this column.
McNary said that, 25 years later, he was puzzled by the exchange. “I can’t remember saying 1.5 million. I don’t even remember testifying on the subject,” he said. “The 1.5 million does not fit with the other facts,” he said, including the INS estimate of 100,000 at the time of the announcement. He suspects the exchange was based on a misunderstanding with his questioner, then-Rep. Bruce Morrison (D-Conn.): “Morrison was trying to get a figure out of me, and I guess I gave him one.”
The figure did not appear in McNary’s prepared text that day. It appears to be a random one-off comment, apparently never repeated by McNary or any other Bush administration official.
With the exception of The New York Times a few weeks later, no other news organization appears to have reported on the exchange.
Administration officials also pointed to a 1989 Los Angeles Times article about a Senate vote predating Bush’s action, which quoted an unnamed aide to a senator as saying that such a move would affect 1.5 million immigrants; other news articles on the vote said “hundreds of thousands.” None of the estimates appeared especially well-grounded.
First, although 42 percent (1.3 million) of the 3.1 million legalization applicants were married, 704,000 applications were still pending or on appeal, so those family members were unable to apply, the newsletter said. So that reduced the number of potential married applicants to 1 million. The INS also had no reliable data on how many applicants had children, how many spouses had been legalized, how many marriages took place after Nov. 6, 1986 (date of enactment of the Reagan law), how many were divorced, and how many were ineligible for other reasons, the newsletter said.
“The INS’s own current ‘guessimate’ is that no more than 250,000 aliens will apply for the family fairness program,” the newsletter said.
In fact, that estimate was even too high. On Oct. 1, 1990, the Miami Herald reported that the program was largely a bust: “In the eight months since McNary announced the family fairness program, INS received more than 250,000 inquiries about the program — but only 46,821 applications have been received nationwide.”
In any case, a month later Bush signed the Immigration Act of 1990, which superseded the family fairness program. The new law changed the eligibility date from 1986 to 1988 and raised the eligibility age for children to 21, thus protecting even more people than under Bush’s initial action.
Nevertheless, the numbers still remained relatively small: 52,272 in 1992, 55,344 in 1993, 34,400 (projected) in 1994, according to a 1994 report on the 1990 law.
In other words, even with the broader criteria, the number of immigrants who took advantage of Bush’s action and the subsequent law was far less than 1.5 million. That’s significant because INS officials had said during the initial news conference that they had no idea how many people would actually come forward.
White House Press Secretary Josh Earnest, citing the transcript, the Congressional Research Service and The New York Times, said the White House will continue using the 1.5 million figure.
Update, Dec. 9: Rep. Zoe Lofgren (D-Calif.) released documents (embedded below) at a hearing on Dec. 2 that she said shed more light on the numbers associated with the family fairness program: a decision memo for McNary and an INS implementation plan. The decision memo, dated six days after the announcement, says “potentially millions of individuals” could be affected by the action; the implementation plan said “current estimates are that greater than one million” people will file for the benefit.
The Fact Checker contacted Thomas Andreotta, a retired career official listed as the author of the implementation plan. He did not have a specific recollection of the memo but he dismissed the numbers in it.
“A million sounds like the kind of hyperbole I might have written,” he said, but “100,000 is more likely to be closer to the real number.” He explained that for internal purposes, estimates were routinely inflated into order to get the resources necessary, as at the time the agency was part of Justice Department and (he said) frequently got short-changed. “As the quartermaster said, if you want five, ask for ten and then they will give you four,” he quipped.
Andreotta added that he did not view the family fairness program as providing a precedent for Obama’s action, because it was simply “tying up the loose ends” of a law previously passed by Congress. (A chronology posted by the American Immigration Council on Dec. 9 indicates the issue did prompt substantial debate in Congress prior to the administrative action.)
Louis D. Crocetti Jr., another career senior INS official at the time, echoed Andreotta’s recollection about inflated internal estimates being necessary to obtain funding. “You wanted to be sure you estimated high,” he said. Crocetti said the fact that fewer than 50,000 people applied for the benefit in 1990 indicated that “the 100,000 was even a high estimate.” He also did not regard the family fairness program as providing a precedent for Obama’s action.
Regular readers know The Fact Checker generally regards official documents as important evidence. But the comments by Andreotta and Crocetti suggest why, in most instances, officials at the time publicly said 100,000, not 1.5 million. The gap between the numbers continues to be a mystery.
The Pinocchio Test
The 1.5 million figure is too fishy to be cited by either the White House or the media. As best we can tell, this is a rounded-up estimate of the number of illegal immigrants who were married (1.3 million became 1.5 million.)
McNary actually believes the congressional exchange that spawned the number was based on a misunderstanding. In any case, it certainly was not a widely reported estimate in 1990. The number was buried in a single news article — and just because it was in the New York Times does not mean it was true. Eventually, however, it also got picked up by CRS, even though it does not appear to have been an official estimate.
Let’s recall that even the Times’ article indicated this was a high-end estimate — “as many as 1.5 million.” Other news reports were careful to say INS officials had no firm numbers. It’s now hardened in White House statements as “more than 1.5 million.”
Indeed, the 100,000 estimate that the INS gave on the day of the announcement might have been optimistic. Fewer than 50,000 applications had been received before the policy was superseded by a new law. The numbers generated by that law — a little more than 140,000 — further indicate that the universe of potential applicants was much smaller than 1.5 million, especially given that the law eased restrictions even more.
To be fair, however, the “take-up rate” could be affected by other factors, such as a reluctance to pay fees or provide documentation to federal authorities. But in the end, 200,000 amounts to about 6 percent of the illegal immigrant population at the time, not 40 percent.
We initially gave this claim a rating of Four Pinocchios. But the discovery of congressional testimony with the 1.5 million figure, no matter how confusing or disputed, does explain how the number could end up in a news report and ultimately in a CRS report–even though it is contradicted by all other INS statements at the time. So we are reducing this rating to Three Pinocchios.
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Congressional Testimony, Feb. 21, 1990 (Key pages are 52 and 59)