Florida’s Sen. Marco Rubio is in a difficult position. As a rising star in the Republican Party and an oft-discussed vice presidential candidate, he embraces the conservative ideals of strictly enforcing the rule of law and opposing amnesty for undocumented foreigners. Yet he is also a Latino who personally understands the pain caused by harsh stances against immigrants. He is the perfect person to sell the public on the GOP’s new line of thinking on immigration—if there were one.
Last week, Rubio floated a conservative Dream Act compromise for undocumented youth who were brought to the United States by their parents: Legalize them, but don’t make them citizens. “You can legalize someone’s status in this country with a significant amount of certainty about their future without placing them on a path toward citizenship,” he said in an interview with Geraldo Rivera.
The proposal is an attempt to find a middle ground between amnesty and deportation for the country’s 11 million undocumented immigrants. Rubio’s idea is similar to a “red card” proposed by GOP presidential contender Newt Gingrich to establish “legality but no citizenship” for undocumented immigrants with deep ties in the United States. The centrist Democratic group Third Way has offered a similar concept, a new Permanent Legal Status visa for undocumented adults that would not allow them to petition for citizenship. (Immigrants who came to the country illegally as minors would have a path to citizenship under Third Way’s plan.)
Worried about the negative reactions to the crackdowns against illegals in states such as Arizona and Alabama, Rubio wants to defuse the political conflict over immigration. For the past year, he has been attempting to shift the tone. “I have challenged the Republican nominees and all Republicans to not just be the anti-illegal-immigration party,” he said last year at the Hispanic Leadership Network conference.
But his proposal for a noncitizen visa enters uncharted legal territory. The United States is unlike most countries in that it guarantees citizenship to all residents born on its soil, said Muzaffar Chishti, director of the Migration Policy Institute’s office at the New York University School of Law. “At the time of birth, everyone is equal,” he said. For people wishing to emigrate from their home country to the United States, the law creates “a tiered approach to gaining full membership”—émigrés must jump through certain hoops, but the end goal is still there. A solid ban against citizenship for a sizable group of immigrants “goes against the notion of ‘Americanization,’ to make them Americans as quickly as possible,” Chishti said.
The only legal permanent residents in the United States are people with green cards. The cards confer a series of rights and expectations, including the opportunity to apply for citizenship. Foreigners can and do live in the United States for long periods of time on renewable refugee, asylum, or work visas. But they are merely residing on the good graces of the government, a tenuous existence at best.
An outright ban on citizenship for longtime foreign residents is not unprecedented in U.S. law, but it recalls periods of the nation’s history that reflect a decidedly negative attitude toward immigration, particularly for certain racial groups. The Immigration Act of 1882 denied citizenship to “lunatics” and people likely to become wards of the state. The Chinese Exclusion Act of 1882 barred all immigration from China and prohibited Chinese residents already in the United States from obtaining citizenship. The prohibition was expanded to all Asians in 1917, and it wasn’t until 1965 that the U.S. did away with racial barriers to immigration.
More recently, lawmakers have banned some visa holders from applying for green cards as a way to illustrate that they are here only temporarily. For example, Congress banned green-card applications for people fleeing unrest in their home countries when it created a Temporary Protected Status visa in 1990, underscoring that the visa was solely an interim solution.
In 2007, conservative senators mired in tough, closed-door negotiations over a sweeping immigration bill repeatedly proposed several forms of noncitizen legal status for undocumented immigrants. Democrats fought those ideas, arguing, “You are ensuring this permanent underclass,” according to Mary Giovagnoli, the director of the Immigration Policy Center, who worked for Sen. Edward Kennedy, D-Mass., at the time. Still, the animosity toward a citizenship path for illegals was obvious when the Senate rejected the bill, which offered a long and tortured way forundocumented immigrants to apply for green cards.
Republicans’ hopes of attracting Hispanic votes hinge on softening the party’s stance on immigration. Rubio and Gingrich are trying, and, like Third Way, they are treading a familiar path to work through a stubborn conundrum—how to assimilate a large population of illegal immigrants yet not reward them with full legal status. But as those who have debated it before will tell them, that path could be a dead end.
This article appears in the March 24, 2012, edition of National Journal Magazine.