"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.