DOUBLING DOWN ON A GRIEVOUS ERROR

On Thursday, December 4, the Washington Post published an editorial, An Action without

Precedent, arguing that the presidents recently announced policy deferring the deportation of
nearly four million unauthorized parents of U.S. citizens or lawful permanent residents, and also
offering them work authorization, is unprecedented.
At issue is whether President Obamas action to cover approximately 40% of the 11.1 million
undocumented immigrants in the United States is comparable to an action by George H.W. Bush
in 1990, which extended similar protections to 1.5 million undocumented spouses and children
of applicants for the legalization programs authorized by the Immigration Reform and Control
Act of 1986. Citing Post reporter Glenn Kesslers Fact Checker blog of November 24, the
editorial argues that the 1.5 million estimate is wildly exaggerated. Unfortunately, it is the
Posts own editorial and Kesslers underlying reporting that are breathtakingly short on both
facts and logic. Furthermore, Kesslers responses to communications seeking to correct his
original posting have been, at best, disingenuous and, at worst, misleading.
The Posts case represents a classic apples-to-oranges false analogy. Similar to current estimates
of up to four million people who might benefit from President Obamas recent announcement,
the 1.5 million figure was an estimate of those who might be potentially eligible for the family
fairness policy. Because perhaps a couple of hundred thousand people at most actually
applied for family fairness protections, says the Post, the 1.5 million number is indefensible.
The Post should know better than to conflate those potentially eligible with those who actually
applied for and then received a benefit.
There are myriad reasons why the take-up rate for the work permit offered under family
fairness was lower than those potentially covered. In some cases, the statement of the policy
was enough. Having received an assurance from the government that their families would not be
broken up, many did not feel compelled to apply for formal protection. The majority of the
covered individuals were spouses and minor children of those legalized, who didnt need work
authorization because they werent in the workforce. In other cases, the fee for work
authorization was likely prohibitive, since the household had just incurred legalization
application fees for those eligible. The fee is $450 today; there would have been a similar fee,
adjusted for inflation, in 1990.
But perhaps more importantly, the family fairness route was not necessarily the easiest or
cheapest path to legal status for those affectedmost just applied for a green card through
normal channels as the immediate family member of a lawful permanent resident, instead of
applying first for family fairness and later for a green card, paying two fees in the process. In
fact, according to the 1995 report of the State Departments Office of Visa Services, spouses
and children of persons legalized under the terms of the Immigration Reform and Control Act
[IRCA]are estimated to represent 80% of the 1.1 million 2A applicants, referring to the
preference category for immediate relatives of lawful permanent residents. In other words, nearly
900,000 immediate family members of newly legalized persons, the vast majority already in the
United States, had applied for a green card as of 1995, not counting those who had already been
approved, and those who had yet to apply.

So, even by the Posts unfair false analogy, of the disputed 1.5 million potentially eligible,
perhaps 200,000 availed themselves of the family fairness policy, at least another 900,000
applied directly for a green card, and the rest didnt need to apply or were priced out of applying.
Viewed in this light, the 1.5 million figure appears reasonable and not wildly exaggerated.
Theres a second way of looking at this issue, which is to take the available data and see whether,
independent of take-up rates, the 1.5 million estimate of ineligible family members of IRCAs
legalization applicants is valid on its face. A quick analysis suggests it is eminently plausible.
First, consider the number of applicants: 3.3 million people applied for IRCAs two main
legalization programs, another 40,000 or so for a special Cuban-Haitian program, and perhaps
75,000 for a registry program for those who had entered prior to 1972. So we start with a base of
more than 3.4 million applicants.
But these were not the only applicants potentially covered by family fairness in 1990. Under
two major national class action lawsuits, hundreds of thousands of people claimed they had been
unfairly denied the opportunity to apply for legalization because of improper eligibility rules,
inaccurate information, or other reasons. The plaintiffs largely won on the merits in the lower
courts, although appeals courts later denied all but a few thousand the opportunity to apply. The
key point, however, is that as of 1990, when the Bush policy was announced, this litigation was
still pending, and thus several hundred thousand of these class members technically were still
potential applicants. Adding these potential applicants to those who had applied brings the
universe of total actual and potential IRCA applicants whose ineligible family members mightve
been covered by family fairness into the four million range.

Kesslers own reporting shows that 42% of IRCA applicants were married. Multiplying
four million by 42% produces a total of 1.7 million spouses. But many, arguably half,
likely qualified for legalization themselves, bringing the number of spouses ineligible for
legalization to perhaps 840,000.
How many kids mightve been covered? Here we have very good data on the
contemporary undocumented population, which we might apply to 19861990 in a
backward fashion. The Migration Policy Institute estimated last year that of the 11
million unauthorized immigrants in the country, there were more than 1.9 million
unauthorized youth who were brought to the country by their parents. In other words,
about 17% of the current undocumented population is made up of children analogous to
those who would have been covered by the Bush policy. Applying this 17% figure to the
estimated 5 million undocumented population as of 1986 produces a total of about
850,000 unauthorized children.
Some number of those were likely older than 21 as of 1990; adjusting for this produces
an estimated population of ineligible children of legalization applicants as of 1990 to
perhaps 640,000. Still, 840,000 spouses added to 640,000 children equals 1.48 million,
very close to the cited 1.5 million estimate.

Based on this quick and dirty analysis, there really were close to 1.5 million people eligible for
relief in 1990, and it is a completely defensible number. This is further buttressed by the 1997

report Binational Study: Migration between Mexico and the United States, including the leading
experts from both the United States and Mexico, who noted even then:
The volume of transitions from unauthorized status into lawful permanent residence among
family members of legalized immigrants and timely accounting of nonimmigrants in the
United States are not known with certainty. The future demographic characteristics of the
IRCA legalization programs could be considerable, involving as many as three million
eventual immigrants, including at least one million Mexican relatives.
Unstated in the report is how many of these eventual permanent residents were already in the
country as of 1990, but viewed through this lens the 1.5 million figure appears increasingly
reasonable.
Obviously, people may disagree about such things, especially when trying to reconstruct
statistical estimates from nearly three decades ago, when the science of estimating the size and
demographics of the undocumented immigrant population was still in its infancy. What does
seem unreasonable is the pattern of shifting, parsing, and shoddy reporting Kessler has engaged
in since his original posting.
Regarding the origin of the 1.5 million number, Kesslers original piece speculated that the
number originally indicated he could find no source for the estimate. After an outside critic
tweeted congressional testimony where then Immigration and Naturalization Services
Commissioner Gene McNary cited the 1.5 million number directly, Kessler revised the piece to
state we then obtained the hearing where McNary appears to confirm the 1.5 million figure.
One might have thought that a reporter would have at least acknowledged his original error.
But no, Kessler then went on to suggest that testimony was confusing because it also appears to
say the potential universe of affected people could be as much as three million. Actually,
anyone who bothered to undertake even a few hours of research wouldve found the above-cited
binational study. The answer is simple: those legalized by IRCA had as many as three million
ineligible family members, perhaps half in the United States and half abroad.
Later in his posting Kessler cites 3.1 million legalization applicants; the actual number, not
counting those pending litigation, was at least 3.4 million, as noted above, a figure that was
brought to his attention that he has yet to correct.
In his original posting, Kessler attributed certain statistics to a 1994 report by the Select
Commission on Immigration and Refugee Policy which actually went out of existence in 1978;
Kessler meant to cite the Commission on Immigration Reform, an entirely different body. The
later version changed the reference to a 1994 report without acknowledging the original error.
Finally, after acknowledging that the take-up rate would be affected by a number of factors, at
the end of his revised piece Kessler returns to the misleading comparison of those potentially
eligible to actual applicants. Kessler shouldve followed the suggestion of one of his Twitter
commentators who urged him twice on the day of his original posting to just issue a correction
and move on.

Instead, the Post doubled down on the problem by publishing an editorial relying on Kesslers
piece, compounding it by making yet another factual error in its conclusion:
Unlike Mr. Bush in 1990, whose much more modest order was in step with legislation
recently and subsequently enacted by Congress, Mr. Obamas move flies in the face on
congressional intent.
Actually, only half of that statement is true. Congress did subsequently ratify (and even slightly
expand) Bushs action, but its not true that it was unambiguously in favor of protecting
ineligible family members of legalized applicants before then. The report accompanying the
1986 legislation made clear that ineligible family members werent supposed to be given special
treatment. Moreover, while the Senate version of legislation that eventually became the
Immigration Act of 1990 did include family unity provisions, it had in another instance
specifically voted down an amendment by Senator John Chafee to provide such protections.
In 1984 and again in 1986, Speaker Tip ONeill was willing, however reluctantly, to bring the
Immigration Reform and Control Actlegislation that deeply divided his caucusto the floor to
allow the House of Representatives to work its will after the Senate had acted. In 1990, both the
House and Senate were able to make painful concessions, to pass bipartisan compromise
legislation that codified and expanded Bushs executive action. By contrast, in both 2006 and
2013, the Senate has acted on immigration reform consistent with the presidents action, but both
times the House has refused to act.
Thus, contrary to the Posts assertions, whether looking at the relative scope of the action, or
with respect to congressional intent, the two situations are almost exactly analogous. As the Post
editorial notes, facts mattereven in Washingtonand so do numbers. It would do well to
heed its own advice.