Sunday, May 22, 2011

Response to Star Reader

My friendly response to a KC Star reader (who will remain anonymous) that took offense at Andrea's editorial on immigration reform, and took the time to email us directly.

Thanks for your email. It’s refreshing to see an actual name rather than the usual anonymous hate mail we too often receive. As you know, I didn’t write the article you refer to, but I do support its conclusions. But since you copied me on your email, I’ll take the liberty to respond.

An “amnesty” program, although not the term I would use, is not a hare brained idea, but one that has been a fixture in American immigration policy from its earliest days, including the most recent amnesty of 1986, signed by none other than President Reagan. That amnesty was followed by an unprecedented period of prosperity in the country and not a few economists have credited that prosperity, at least in part, to the legalization program. Similarly, as Andrea indicates, the non-partisan Congressional Budget Office (CBO) has estimated significant economic benefits from a legalization program, especially when contrasted with the status quo or an enforcement only program, which you seem to prefer. This economic effect has been confirmed by numerous other studies and economists. I can point to several if you want.

The point is, there are serious economic arguments in favor of legalization.

As for the moral arguments, I think you make too much of the supposed criminality of immigration lawbreakers. It may seem like semantics, but only a little over ½ of the undocumented immigrants here entered without inspection (EWI). Those people can be charged with a crime, but rarely are. It is a matter of prosecutorial discretion. Usually (in probably 99% of the cases or more), they are charged simply with being here without permission (a civil violation – like driving without a license), and are deported on that basis.

Even for the ones that can be charged with a crime for EWI, the result is a “misdemeanor” crime. A second EWI can be a felony. It’s hard for me to compare these “crimes” with truly serious crimes against our society such as murder, rape, theft, etc. In fact, one aspect of the seriousness of these “crimes” in the context of our immigration history is that illegal entries were not even treated as crimes in our law until about 15 years ago (I believe), with an unduly harsh law referred to as IIRAIRA. The penalty for illegal entry has historically been deportation (or amnesty), not incarceration.

But the possibility of being named “criminal” under our law only applies to about ½ of the people here illegally (maybe as much as 60%). The rest entered legally, and then either failed to maintain the conditions of their status or overstayed their approved period of stay. They can’t accurately be referred to as “criminals.”

But perhaps the label isn’t that important. They are still lawbreakers of some sort, right? But why do you assume that a path to legalization is not a valid option? To my thinking, the fact of “illegality” is just one factor in deciding what is best for the U.S., not the only factor. We permit other lawbreakers to “bargain” their punishment to something less than the full application of the law would allow. Why is permanent banishment from the U.S. the only option? What about a fine, or waiting period, or payment of back taxes, or learning English, before receiving legal status? Only 10 years ago, the law was such that persons who had violated status, even EWIs, but who had otherwise the necessary relationships to immigrate, were allowed to still immigrate legally by paying a fine. That option vanished as a casualty of the fears of 911, but we have inherited in its place a weaker, more unjust system because of it.

I know many families that were recipients of the benefits of the 1986 amnesty. They, and their children, are lawyers, doctors, soldiers, and other professionals. Even this week, a Texas state representative indicated that she (Ana Hernandez Luna) had once been “illegal” and had benefitted from the 1986 amnesty program. These amnesty folks are a true credit to their adopted nation, and the same would happen today with some kind of legalization program.

On the other hand, a simple enforcement only program would be devastating economically, as well as to the moral fiber of the country. Did you know that about 1 in 10 of all of the children in the U.S. are in families of mixed status – that is at least one of the parents is here illegally? What would be the effect of mass deportation of those parents without papers? As the President said recently, we should not be in the business of separating families.

Couple this with the fact that about ½ of the undocumented people here have been here at least 10 years, and you realize that a lot of the people here have families, jobs, and long standing ties here, but don’t have, under our present law, the ability to become legal. Our ancestors had that opportunity. Comparing their supposed legality with the “illegality” of today’s immigrants is like comparing apples to oranges. The only real difference between our ancestors and today’s immigrants is that there existed for our ancestors a system to assimilate virtually everyone who arrived in the U.S. legally into the U.S. Even people that slipped in undetected were allowed to become legal simply by registering after proving they had been here for a period of time, such as five years. That’s a far cry from the immensely complicated and restrictive system we have today.

I’m not suggesting that our borders be open or that we return to the Ellis Island days of almost 100% admission, but there are very good reasons for trying to give a path to legalization to many of the people here without papers who have already become de facto members of our society – and their “illegal” or undocumented status should only be one of the factors to consider in drafting a more just law to deal with the situation.

This isn’t an outrageous position. In addition to President Reagan, it was supported by former President Bush, as well as (at one time, at least) such conservatives as John McCain, Sam Brownback, Orrin Hatch, Lindsey Graham, Michael Bloomberg, as well as most leading economists.

Thanks for the opportunity to respond. I went into more detail than I ordinarily would have because of your courtesy in writing directly to us. I don’t expect you will agree with most (or perhaps any) of my conclusions, but I hope you have a better idea of where we are coming from, and trust that we both care about doing the right thing for our country. Thanks.

Andrea, Hi.

I see that you are in the press again with another hair-brained scheme to justify amnesty for illegal immigrants. Streamlining deportation procedures and curtailing meritless legal objections would significantly reduce costs. We could also vigorously help Mexico straighten out/speed up its legal visa application process.

Also, deported illegal immigrants who "soon return to the United States" should face mandatory jail time. Splitting hairs over criminal and non-criminal immigrant behavior is spurious, since illegal immigrants are by definition criminals. And, yes our ancestors all immigrated to America, but they did so legally.

Friday, May 13, 2011

Cockroaches and Feral Hogs

For about 10 years, I lived in a variety of apartments in New York City. One particular fleabag was roach infested. Any time of day, you could look in any direction and see hundreds of the creatures scurrying across the floor, up the walls, and across the kitchen table. Each night, I would come home to find my toothbrush wrapped carefully in a plastic baggy – and covered with cockroaches. Sometimes, we would abandon the apartment and light a roach bomb. All of our guests would flee the room and end up somewhere else, but then our neighbor would do his own bombing, and they would all be back.

Sadly, that’s how some people think about immigration law. It’s called “attrition through enforcement,” and you’ll often hear people like Kris Kobach invoke it on television as if it is some kind of humane middle measure to deal with the immigration problem. Recently, one of Kansas’ own state representatives opined that the way to deal with illegal immigration in Kansas might be to shoot them from airplanes like “feral hogs.”

Mr. Peck no doubt intended the comment as a joke, but Mr. Peck’s bushelful of nonsense nevertheless revealed some thought that was really going on in his heart – that immigrants here illegally are no better than animals trespassing the farm, and should be treated the same way.

This, of course, depends on how you define the problem. If you see illegal immigrants as people who are lawbreakers, welfare takers, lazy, criminals, etc. then the law that you imagine solving the problem is one that does its best to drive them out of your state and somewhere else – like roaches to the next apartment. If you see them as hardworking, poor, moral, churchgoing, with significant ties here such as family and jobs, then you imagine a law that tries to find a way to help them get legal.

Our present law doesn’t do that. It takes good people who have overwhelming, long ties here – ties that would have warranted a clear path to legal immigration in the past – and dashes their hopes against a wall of illegality.

In times like these, our highest moral goal is not the unthinking service to an unjust law, but our highest moral goal is to see the law changed. I think it’s helpful to revisit the words of Martin Luther King, Jr., in his letter from that Birmingham jail in the midst of the civil rights movement:

“There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.”

Now consider where our current immigration laws fall on that spectrum.

"Illegal no; legal yes"

“Illegal no; legal yes. It’s as simple as that.” I often hear this and it sums up many people’s view of the immigration debate. “Illegals” are bad and should be deported. “Legals” are good and can stay. I have often been criticized for being a lawyer, but seeming so easily to criticize or disregard the law in talking about immigration. As if just because something is a law today, I should bow to it. Despite our desire to turn this debate into this simple dichotomy (“legal good; illegal bad”), the topic does not lend itself well to that and those that push this slogan are engaging in a false dichotomy. The immigration debate is not between those that favor legality and those that favor illegality. We all favor legality, but law is not our God and we have to examine whether the laws are just and reflective of our values as a nation.

First, the question of simplicity. The immigration laws are notoriously complex. Not only are they extremely difficult to navigate, even for the most straightforward case, but full of pitfalls for the unwary, or careless, or even those who did their best and couldn’t quite get it right.
It is even difficult to tell who is legal and who is not. Often the federal agency charged with making that determination, the USCIS, gets it flat wrong. Sometimes in the midst of removal proceedings we discover that someone is in fact, a U.S. citizen, and they were not even aware of it. Very often we see people who do not know in fact whether they are legal or not. The U.S. has, on numerous occasions, deported U.S. citizens, thinking that they were not. At this point, I should mention that the terms “legal” and “illegal” are not utilized in the U.S. immigration laws to describe people and the terms are quite inadequate to describe the various states that people find themselves in here.

For example, we’ve seen young adults graduating from high school who have assumed their entire lives that they were U.S. citizens, when in fact their parents brought them as children to the U.S. and never did anything about their status. They first discover it when they are applying for college, or for a driver’s license and find out that they were not born here. And worse, they find out that there is nothing they can do to become “legal.”

There are some people who come here legally and then either overstay their approved period of stay, or do something else that violates the conditions of that stay (their “status), and they become “illegal.” Sometimes that illegality is not based on anything they have done, and they may not even be aware of it. For example, if a legal worker with an H-1B work visa has an employer who mistakenly informs the USCIS that they no longer work there, the USCIS will issue a revocation of the H-1B approval and suddenly, the employee is “illegal,” even though they did nothing wrong and were not aware of it until someone notifies them (this is a real case, and not an unusual example).

I’ve seen legal workers become “illegal” because their employer forgot to file a timely extension of their stay, even though the worker thought it had been done, and it is the employer’s responsibility to file it. In other words, through no bad action on their part, they go from “legal” to “illegal.”

Some people can be “illegal” and take a certain action that transforms them into “legal.” Some “illegalities” can be forgiven; some cannot. For example, workers who are getting their green cards based on the sponsorship of their employer can have up to 180 days of certain kinds of “illegality” and it will not affect their ability to get the green card. A spouse of a U.S. citizen can have certain kinds of illegalities forgiven when they are sponsored for a green card (such as overstaying a legal visa – thus making them “illegal”), and certain kinds can not (such as entering the U.S. without authorization) unless they leave the U.S. and apply for a waiver (very difficult to get) or wait outside the U.S. for ten years before applying to return.

Some “illegalities” create permanent bars to lawfully being in the U.S. (such as a false claim to U.S. citizenship – even on a job application form, or a college application; or entering the U.S. without permission, staying for a year, leaving, and entering again without permission – even if done as a child).

I could go on with numerous similar examples of “illegality.”

Surprise. None of these “illegalities” are criminal in nature, with the possible misdemeanor exception for those who enter the U.S. illegally. It is not even a crime to be in the U.S. illegally. It is a civil violation of our immigration laws that subjects one to removal, but not to fines or incarceration.

The significance of this is that immigration restrictionists are constantly trying to equate non-criminal civil immigration violations with serious crimes. Hence, the use of the term “illegal.” Civil immigration violators are constantly being compared to robbers and thieves, and described as “invading” the U.S. or engaging in a “war” against the U.S. They treat “illegality” in the immigration sense as the “unforgivable sin” against the U.S. No matter what ties they have to the U.S., they can never become “legal,” or it is some kind of affront to our entire legal system.

But if an immigration violation is such a serious sin, why are some forgiven (even without fine) and some not? And why were some immigration violations forgiven with a fine ten years ago (even for people that entered the U.S. without permission), but that option is no longer available today?

The answer is that the law is extremely complex, constantly changing, and subject to sudden policy whims of congress which often lead to tragic and unjust results. But the “illegal means illegal” lobby (despite the obvious tautology) never wants to consider the complexities of the law or the disastrous effects the law can have on human lives because they don’t care about human lives and they don’t really care about the law either.

That’s why they are often accused of being racist. They are indifferent to the effects of unjust laws on people – most of whom are from a different ethnic or racial classification.

Because of this inherent complexity, our approach to immigration reform will also necessarily be complex. Some immigration violations should be treated more seriously than others, but a simple “illegal no; legal yes” approach will not produce just results. Instead, the penalty for immigration violations should fit the nature of the violation and also give deference to other U.S. policy considerations to be preserved – such as the policy that families not be easily or arbitrarily separated.