Who Cares about Security?

In the current debate over funding of Homeland Security, both sides are predictably accusing the other of putting the nation’s security at risk by refusing to cooperate with the other side.  Without an agreement, funding for Homeland Security, which guards our borders, processes immigration benefits, etc., will be at unavailable.

But look at what is below the funding debate and ask which path is more secure.  The President issued an executive order deferring deportation for certain non-criminal long term residents without legal status, but with strong relationships in the U.S. or strong equities for being permitted to remain (e.g. immigrants brought here as children without legal status).  Opponents don’t like the executive order granting temporary legal status to those that qualify and won’t pass funding for Homeland Security unless the executive order is rescinded, or at least made incapable of being carried out.  They have also sued to enjoin it from being carried out, and a federal judge in Houston has agreed, although that decision is widely expected to be overturned in due course, and the executive order will take effect eventually.

Apart from the legality of the executive order, which I strongly support (along with over 100 constitutional law scholars across the country), which option makes more sense for the security of the country?  The status quo is a haphazard roundup of whoever may fall into the hands of Immigration and Customs Enforcement (ICE), the enforcement arm of Homeland Security.   This can be anyone from migrant workers to scientists who have fallen out of status, to parents of U.S. citizens (in the hundreds of thousands) to criminal aliens.  It can be recent border crossers to residents with over 10-20 years of peaceful work in the U.S.  In fact, over half of the 11.2 million estimated unauthorized immigrants in the U.S. have been here 10 years or more.

The agencies all recognize that they are simply incapable of removing every unauthorized alien in the U.S., even if they wanted to.  The costs would be in the hundreds of billions of dollars, and the economic damage would be severe.  There has been untold human suffering already in the over two million persons removed from the U.S. during the current administration.  The destruction that action has caused and continues to cause for immigrant and U.S. families, many of whom have mixed status people in the household, is enormous. 

But would attempted continuation of the current failed effort to remove every unauthorized immigrant make us more secure?  Absolutely not.  A deferred action plan, such as proposed by the President, would require people to come forward and register.  They would be fingerprinted and their criminal histories checked.  Those with criminal history would be ineligible and would likely not come forward or would and be referred to ICE for removal.  The administration estimates about 5 million would be eligible for this temporary relief.  They would be allowed to remain temporarily and receive work authorization while waiting for Congress to fashion a permanent solution.  Enforcement resources could then be directed toward those who do not register and those who do not qualify.  In the President’s scheme, this would be criminal aliens, and recent arrivals, including those attempting to cross at the border. 

With all the focus on giving a temporary reprieve for those mentioned above, it is forgotten that the President’s plan would also shift significant resources to apprehending criminal aliens and those attempting to cross at the borders, rather than the more expensive interior enforcement aimed at settled immigrant communities.

Law enforcement groups widely support this kind of plan, as do a large number of mayors of large U.S. cities.  Why?  Because they need immigrant communities to cooperate with them in law enforcement.  If the immigrant communities fear going to the police, or even talking to them, because they might be turned over to ICE, they won’t cooperate, and crimes will not be solved and criminals will not be punished.  Even persons here with legal status are often afraid to go the police because they have a relative living with them that has no status.  If a significant portion of these immigrant communities are permitted to come forward and get temporary legal status, it will allow law enforcement to focus on those who don’t come forward, and those attempting to enter illegally now.   

The executive action is a more secure situation for the nation, and long overdue.  To oppose the executive action because one simply cannot stomach some kind of "executive amnesty" is to value a random, ineffective, but too harsh punishment of non-criminal immigrants over national security.

To be clear, this is not a substitute for congressional action, but until Congress can find the will to act, the President’s executive action is a perfectly sensible, moral, and more secure action to take on behalf of the country.

Immigration Critics Paint Themselves in a Corner with Cries of “Amnesty”

The President’s Executive Order deferring deportation for millions of unauthorized immigrants who may qualify for his plan is loudly derided by critics as “amnesty” or “executive amnesty” (I love Colbert’s take that the President wasn’t just satisfied with giving them “amnesty” he had to offer them “executive amnesty” – which must mean some special perks.)   

Critics have learned that if they can label something as “amnesty,” it will lose public support.  But when some of those same critics are asked what they would do – take, for example Cong. Tim Huelskamp’s recent awkward and painful squirming when asked that question on Bloomberg News – they have no answer.  They say they don’t support gestapo style mass deportations, but what can they support?  Well, they don’t know yet.  They just know they don’t support amnesty (defined in the broadest way imaginable) and they don’t support mass deportation, so what is left?  Apparently, the status quo, which means about 400,000 deportations a year, including thousands of non-criminal parents of U.S. citizens, immigrant children fleeing persecution and gang recruitment, and untold human suffering and family disintegration.

It isn’t as if critics haven’t been given a chance to do something.  A comprehensive bi-partisan Senate bill was passed over 500 days ago and sent to the House.  The President would have signed it.  The House refused even to allow a vote on the bill (and it had a good chance of passage).  And yet those same people are now saying that the President’s plan fails constitutionally because he won’t work cooperatively with Congress.

Something needed to be done and, frankly, it should have been done long before now.  A bandage was applied by executive action, but it’s Congress that needs to perform the surgery, if only they will. Instead, their plan seems to be to declare the President’s action unconstitutional, while offering nothing positive in return.

Rest assured, the executive order by the President is constitutional.  Without a doubt.   It was also constitutional two years ago when he, by executive order, granted deferred action to childhood arrivals (the “Dreamers”) to stay their deportations.  About 500,000 deserving immigrants benefitted from this.  Two times the constitutionality was challenged in the courts (in Texas and Florida).  Both times, courts found it constitutional, and the program continued.

If lawsuits are filed again, they will fail again.  Fox News commentator, Geraldo Rivera, stated on Fox News that he would stake “his mortgage” on the constitutionality of the executive action.  While I can’t afford that kind of wager, I feel the same.  By the way, there is a good 33 page legal opinion from legal counsel for the White House explaining the constitutionality of the action, and why they didn’t go as far as we might have wanted in the action.

So apart from lawsuits challenging constitutionality, what can critics do?  If everything short of deportation is “amnesty,” what to do?  That’s the problem.  They have said paying fines and staying is amnesty, long paths to legalization (17 years in the Senate bill) is amnesty, etc.  Anything except immediate removal from the country, regardless of how much social and economic damage that may do, is amnesty.   

In 2010, the Center for American Progress studied the effects and costs of mass deportation verses a comprehensive immigration strategy that provided a path to legalization.  The direct costs of deportation were about $285 billion (if it could even be done).  There would be a resulting economic impact in reducing our gross domestic product by $2.5 trillion over a ten year period.  In contrast, a program of legalization could increase GDP by a cumulative total of $1.5 trillion over that same ten year period.  Other studies have confirmed this impact as well.

That’s the economic impact of a “no amnesty” stance.  The social impact is much worse as families are torn apart and exploited.  Neither our economy nor our national character can take a hit of this magnitude.

Yet we all know that amnesty is unacceptable, or is it?

A wonderful friend from church told me once that he loved immigrants, but could never accept amnesty.  And I said, “why not?” “What is your problem with forgiveness?”  I’m still wondering that.  Christians believe in forgiveness (and if we don’t, then we don’t have much to offer the world).  “Forgive us our trespasses as we forgive those who trespass against us.”  “Trespass” is an appropriate word to use in the Lord’s Prayer in this context.  Apparently, we have a really hard time forgiving those who trespass over that which we have trespassed before them.

Whatever flaws there are in the executive action (and it’s certainly no complete or lasting solution to the immigration issues), Congress can supersede the President’s action by enacting positive legislation in the area. 

Congress, it’s time to grow up and work on a solution that recognizes the dignity of the good people that work among us, marry our children, and worship with us, while setting future policy that meets the needs of families, workers, and employers in the U.S.

Brief Analysis of the Bipartisan Framework for Comprehensive Immigration Reform

 

A Brief Analysis of the Bipartisan Framework for Comprehensive Immigration Reform

 

A bipartisan group of eight Senators have issued a document referred to as the “Bipartisan Framework for Comprehensive Immigration Reform.”  It purports to set out principals for developing a compressive immigration reform package.  This is very significant in that it is bipartisan, and involves key players in the past on the immigration issue, including Senators Schumer, McCain, Durbin, Graham, and Menendez.  It is significant also in that it is a comprehensive proposal rather than the piece meal proposals that have been debated over the past few years.  The last time Congress considered a comprehensive immigration reform package was in the 2007-2008 congressional term, which was rejected, even though supported by President Bush.  In some ways this is a better outline than we had in 2007 from an immigrant standpoint and I think that partly reflects the reality of the last election.

 

If you recall, there was a strong component in the GOP that took a very strict anti-immigrant position.  It opposed the Dream Act, any amnesty or path to legalization, and took a basically deportation first and enforce the borders policy.  Minorities, who are becoming a larger voting block significantly, rejected this approach in the presidential election (the GOP got only 21% of the Latino votes and less than that of the Asian American vote). 

 

In my opinion, Governor Romney made a serious strategic mistake in enlisting for advice people like Kris Kobach.  The positions taken by the GOP did much damage to perceptions of that political party and its attitude toward immigrants.  It is unfortunate because historically that was not necessarily the case.  I am glad to see Republican Senators like John McCain, Lindsey Graham and Marco Rubio weighing in on immigration reform.  At least McCain and Graham have been supportive of some of the previous attempts at immigration reform. 

 

It is also evident now that the President largely agrees with the principals laid out in the bipartisan framework, so let’s see what those are.

 

There are four basic legislative pillars. 

 

1.  Create a path to citizenship for unauthorized immigrants contingent upon securing the border and combating visa overstays.

 

Securing the Border.  The key words here are “contingent upon” and “securing the border.”  The path to citizenship is going to wait until there is confidence that the border has been secured.  What this means will differ greatly in the minds of many people.  Not long ago Secretary Napolitano indicated that she thought the border was the most secure it had been ever in the U.S. history, which threw cries of outrage from officials in Arizona.  Others point out that the benchmarks indicated in the 2007 legislation for securing the borders have already been met.  There are legitimate concerns that in some peoples’ minds the border will never be secured and thus the path to citizenship will never be implemented.

 

It all depends on how we define “securing the border.”  The Framework indicates a committee or commission comprised of governors, attorneys general and community leaders living along the southwest border to monitor the progress of securing the border. 

 

I am a bit apprehensive of this since I am confident that Governor Jan Brewer of Arizona will never agree that the border is secure as long as one person without authorization crosses it.  This is, of course, an impossible standard to fulfill.  That would be like saying that Kansas City will not be a safe place to work and raise a family until we can show that there is absolutely no crime in the city. 

 

I think what also bothers me about the way this is stated is that it almost implies that there is nothing being done right now to secure the border.  That is absolutely not the case.  Congress spends more money securing our border than it has in its history.  We deported more people (most of whom were non-criminal) last year than we ever have in our history and tens of thousands of those people were non-criminal parents of U.S. citizens.  Since the creation of the Department of Homeland Security in 2003, the budget for Customs and Border Patrol (CBP) has nearly doubled from $6 billion in fiscal year 2003 to $11.7 billion for fiscal year 2012. 

 

Nevertheless the Framework proposes to increase efforts of the border patrol with a focus more on technology such as drones rather than boots on the ground.  The Framework also proposes completion of an entry/exit system that can determine whether all persons entering the U.S. on temporary visas at airports and seaports have left the country as required by law. 

 

Probationary Legal Status.  The Framework also indicates that while the security measures are being put into place, they will require those who have come and remained in the U.S. without permission to register with the government.  This would involve a background check, paying a fine, and back taxes in order to earn “probationary legal status.”  The probationary legal status will allow them to live and work legally in the U.S. (similar, I think, to what we have with the beneficiaries of the “deferred action for childhood arrivals program”).  People with serious criminal backgrounds or who pose a threat to national security will be ineligible for legal status and subject to deportation. 

 

So although the probationary status can be attained before there is a determination that the border is secure, immigrants will not be eligible for a green card until that has taken place. 

 

Lawful probation immigrants will not be eligible for federal public benefits.  To get the green card, they will have to “go to the back of the line of prospective immigrants, pass an additional background check, pay taxes, learn English and civics, demonstrate a history of work in the U.S. and current employment, among other requirements……..”   

 

This is a fairly high standard, even higher than what we expect of persons naturalizing in the U.S.  If an immigrant cannot show current employment, will they not be eligible?  What about the elderly or disabled? 

 

The “back of the line.”  Moreover, “go to the back of the line” is a very fuzzy concept.  I am not sure what line they are referring to.  There are certainly mass backlogs in visa number availability, but unless those numbers are increased by Congress the wait could be decades.

 

And what line do they stand in?  There is no line for persons who entered the U.S. without inspection and don’t have qualifying petitioning relatives.  The framework says that persons present without lawful status “will only receive a green card after every individual who is already waiting in line for a green card at the time the legislations has acted and received their green card.”

 

Well, if you are the brother or sister of a U.S. Citizen and you are from Mexico, the USCIS Ombudsman recently estimated that the wait for the visa number to be available is 131 years.  Does this mean that probationary immigrants have to wait until all of those visas have been processed?  If so, then I would not call this a “path to citizenship” unless we are willing to award citizenship posthumously. 

 

Regarding children, the Framework does indicate that people that entered the U.S. as children will not have the same requirements.  This is recognizing the principals of the Dream Act.  The Framework also intends to apply a lesser standard to people who have been working in the agricultural industry, which reflects some of the principals of the “Ag Jobs Act.”  Neither the Dream Act or Ag Jobs ever passed Congress. 

 

2.  Attracting the World’s Best and Brightest. 

 

Although the U.S. remains a magnet for the world’s most talented people, our immigration system has done a lot to discourage those people from coming in recent years.  The Framework recognizes the long backlogs and wants to do something about that although it is not clear what.  One significant statement is that they want to “award a green card to immigrants who have received a Ph.D., or Masters’ Degree in Science, Technology, Engineering, or Math from an American university” (the “STEM” fields).  This was something similar to what Governor Romney said in one of his campaign speeches. 

 

That kind of provision would be a tremendous benefit to U.S. employers who have trouble finding enough of the particular kind of talent they need and to professionals waiting for discouragingly long periods to complete the green card process (current estimates for certain professionals from India may be 15-35 years).  Many of our clients that have already have been waiting years and years in line to get green cards that are in the STEM fields could benefit greatly from such a proposition, although we have no details on how it might work.  For example, would they have to show a job offer or just the diploma etc.? 

 

3.  Strong Employment Verification.  The Framework will require a “fast and reliable” method for employers to confirm employment eligibility for their workers.  This sounds reasonable, but so far this kind of program, such as e-verify, has been a burden for employers and rife with errors.  Nevertheless, we can expect something like this to be required eventually.

 

4.  Hire lower skilled workers in a timely manner when Americans are unavailable or unwilling to fill those jobs. 

 

This would be significant because at the moment there is virtually no system for an employer legally to bring in a lower skilled worker for a permanent position.  That is primarily because of the backlogs.  An employer can go through the process of testing the U.S. labor market and demonstrating that there are no qualified and available U.S. workers for the position, and then still have to wait ten years or more to bring that worker in.  That is not a workable system. 

 

The Framework does indicate that they want a system that will allow more lower skilled immigrants to come here when the economy is creating jobs and fewer when the economy is not creating jobs.  This may sound appropriate, but sometimes the infusion of additional workers in a stagnant economy will provide a stimulus to the economy and actually create more jobs.  I am not sure the economic principal stated in the Framework actually holds up. 

 

The Framework also indicates that they want to “permit workers who have succeeded in the work place and contributed to their communities over many years to earn green cards.”  That is a good principal, but I am not sure how it would work.  Will this be different than the probationary legalization? 

 

Conclusion.  Of course, as in all things dealing with immigration, the devil will be in the details, but I see this as a very promising start to immigration reform.  Consider that only a couple of years ago Congress could not even pass the Dream Act which is supported by a large percentage of the American public.  It is quite astonishing and exciting then that we have gone from that low to the kind of principals espoused in this Framework in such a short period of time.  What a difference an election can make. 

 

Hope Deferred

Despite the criticism of politicians who use the word “Hope” as a campaign slogan, “hope” is a good thing.   When Gov. Palin derided Pres. Obama and the state of the economy by saying, “how’s that hopey changey thing goin’ for ya,” it came across as not only mean-spirited but misguided.  Does she prefer no change and no hope?

That has been mostly the case for immigrants in the U.S. for the past 10 or more years.  No change; no hope.    I trace this, of course, to the events of 9.11.2001.  Anti-immigrant groups successfully seized on the temporary national crisis to identify “immigrants” with “terrorists” in the popular consciousness.  It is a consciousness that is still pervasive today, and even accepted as the norm in some circles.  Somehow, fighting terrorism became the same as restricting immigration.

On June 15, 2012, a glimmer of hope was announced by the administration.  It was much less than what we hoped for a few years ago when immigration reform was being considered, but also much more than we have come to expect since then.  The administration announced that it would no longer deport persons who came here as children, have graduated from high school, not committed serious crimes, been here continuously since 2007, etc.  I don't intend to give all the details here because those are easily accessible in other web sites.  If they qualify, then can get temporary permission to be here (2 years at a time), and temporary work authorization.  The hope is that they can stay until Congress finally finds a way to pass the Dream Act, or some similar reform legislation. 

Of course, the policy initiative is frought with questions and uncertainty, and lawyers are understandably cautious about approaching it and advising clients to apply for this "benefit."  What if the information they give will just be used later to deport them?  What if the administration changes and the policy is revoked?  What about their parents? 

But no uncertainty exists with the Dreamers (as they are called, because they would be the ones that would also benefit from the Dream Act if it ever passes).  They have already lived their lives here with the daily uncertainty that without warning, either they or their parents might be scooped up, put in the removal system, and sent out of their homes here, to a country they barely know, possibly never to return.  And with good reason.  After all, some 40,000 plus parents of U.S. citizens were deported in just a six month span last year.

This past weekend, I had the unexpected pleasure of volunteering at two pro bono clinics assisting Dreamers with their DACA (Deferred Action for Childhood Arrivals) applications.  I was impressed with the beautiful people I saw.  I poured over their papers that proved they had been here during the requisite time:  school transcripts, immunization records, honor roll certificates, perfect attendance certificates, certificates from their churches regarding first communions, service as altar boys, etc. 

Here was the typical profile of what I saw.  They were from 15-22 years old.  They had been brought to the U.S. when they were about age 5-10 and enrolled in school, not knowing English.  They graduated from High School as honor students.  Some were already in college.  Their English was flawless.  Many had brought their parents with them, even though the parents were not eligible for any relief.  The parents still had no legal opportunities to "get papers." 

The parents were interesting.  Still watching over the children they had brought to the U.S.,   making sure they took advantage of this opportunity, whatever it turned out to be.  They had the weathered look of honest, hard working people who knew had to do things for long hours with their hands.  Their English was broken.  They were, after all, adults when they came to the U.S.  Every now and then, their children would turn to them and translate into Spanish what I had just said.  The parents would nod and smile at me. 

The kids themselves, some now adults, were intelligent, bright eyed, determined people.  They looked me in the eye and told me they really wanted to go to college and make something of their lives.  I realized that for most of their lives, they have had to serve an unusual role in their families -- they've had to help their parents transition into new lives while growing up themselves.  They seemed mature beyond their years.  They've had to show a lot more courage in their lives at those ages than I think I ever considered.

And they have had to hope.  I saw that in the parents' eyes too.  Some 15 years ago, they crossed the desert, or waded across the river, or came legally and then just stayed without papers after their authorization expired.  They brought children with them with the singular hope that these children would have better lives than their parents had known.  The parents have sacrificed everything to give their kids this hope, and I could tell the kids respected their parents for it.  In the parents' eyes, you could see that the day they had imagined some 15 years ago was just beginning to dawn.

I've talked with these kinds of kids before, while they were in school.  They are universally told that if they stay in school, work hard, and stay out of trouble, our government would eventually let them stay.  They recite this as a kind of credo.  That had, after all, been the pattern many times in the past.  Knowing the law now, however, I knew that was only a hope.  There was nothing in the law that gave them a basis for this kind of hope.  It was a faith they held based on the past, the dreams of their parents, and an idea about the U.S. and its essential goodness that has somehow escaped the American people in the past decade.

But now the door was opening, just a crack, and the excitement was palpable.  Maybe they were actually going to get ID's, work cards, insurance, sign leases, open bank accounts, pay tuition.  Maybe they would be able to walk the streets without fear of deportation to a country they've never really known. 

Of course, I'm stereotyping here based on the people I met.  I'm sure there are some Dreamers who dropped out, joined gangs, etc.  But that's not what I saw in these young adults.  Courage is the word that comes to mind.  Despite the warnings of us well-meaning, cautious lawyers, these Dreamers are going to go for it.  They've waited too long not to.

Labor Day

Labor Day is that day every year where we celebrate the accomplishments and influence of workers in the U.S. Organized labor comes under assault frequently (witness the governor of Minnesota’s attack recently on unions and collective bargaining rights) and is often unfairly scapegoated for economic problems in the U.S. But in a broader sense, Labor Day is about honoring those that work. It’s a kind of collective national Sabbath day of rest for laborers. Jesus says, “the workers are worthy of their wages.” They are also worthy of a day to celebrate their contributions to our society.

But there is another brand of workers that never gets their day of recognition in the U.S. – the undocumented immigrant worker.

Yesterday, I ate with my family at an IHOP restaurant in Olathe. It was interesting to observe the social dynamic going on there. All of the table waiters were cheery, clean-cut young teenagers, probably either college or high school students. All of the workers cleaning and bussing tables were somewhat older (probably in their 20’s or early 30’s) Latinos who tried to move about their jobs as silently and inconspicuously as possible. I looked in the kitchen and all (and I mean all) of the cooks were Latino. The manager was also a middle aged Latino man who obviously spoke both English and Spanish. One of the ladies bussing the table next to us glanced over at me and I gave her a big smile. She smiled back, but no words were spoken. I figured she didn’t get a lot of smiles. The Latino workers spoke Spanish to each other, but very quietly, lest anyone should hear and be offended.

The restaurant was filled with middle-class white people, like myself, who seemed to have no problem that much of the staff waiting on them and cooking their meals were undocumented workers. How do I know they were undocumented? Because there is no visa to come to the U.S. to work at IHOP. There isn’t a legal way to do it. If they were born and raised in the U.S. and attended school here, they would be speaking English (and probably working at better jobs). And they are probably still working today – Labor Day.

This is what I have observed in the U.S. regarding undocumented immigrant workers. Privately, we enjoy the fruits of their labors, the good service, and the cheap prices. We enjoy the roofers, the landscapers, the cooks, the croppers, the slaughterhouse workers, who labor their hearts out at minimum wage or worse and struggle to feed their families. Even Lou Dobbs privately employed undocumented workers in his horse stables. But publicly, we demonize them and deny them the dignity that labor should enjoy. We declare they should all go home (wherever that is) and forfeit whatever their hard work has earned them here, often accompanied by the imposition of hard Sophie’s choices of family separation or hopeless poverty.

And then we celebrate in the U.S. those who enjoy fabulous wealth from little or no work at all – the Kardashians, the Hiltons, those idiot reality stars from shows like Jersey Shore, etc. This is not right. In what other context is hard work considered disrespectful, or even criminal, and lazy opulence considered a worthy goal to attain?

This is what the Preacher, Qoheleth, says:

“This is what I have observed to be good: that it is appropriate for a person to eat, to drink and to find satisfaction in their toilsome labor under the sun during the few days of life God has given them—for this is their lot. . . The sleep of a laborer is sweet, whether they eat little or much, but as for the rich, their abundance permits them no sleep.” (Ecclesiastes 5)

I’m looking for a better Labor Day, when those that work are able to enjoy and find satisfaction in their labors, and ultimately, to find a day of rest and celebration.

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.
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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.

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.

Thoughts on the Dream Act.

“The parents ate sour grapes and the children’s teeth are set on edge.” In Ezekiel, this ancient proverb is referenced with respect to the Babylonian captivity of ancient Israel. In Israel’s captivity in Babylon, the children believed they were suffering for their parents’ sins. They didn’t eat the proverbial sour grapes, but they were suffering just the same. Generations before them made mistakes, but it’s their descendants that pay the price. The Lord speaks through Ezekiel and says that the Lord will change that. No longer will the children say that. Everyone will suffer for their own “sins.”

Reminds me of the once again failed Dream Act.

The children of undocumented immigrants may feel like the ancient children of captive Israel. Their migration to the U.S. was not of their choosing, but they still suffer for it. They can’t go to college, can’t get driver’s licenses, can’t open bank accounts, can’t get insurance, can’t hold their heads up with dignity when they walk the streets. They are subject to abuse and failed dreams. They are snatched up at unexpected times and sent back to countries they do not know, and to learn languages they do not speak.

In God’s economy of things, it is not his intention for the children to suffer for the sins of the parents, although sometimes that is unavoidable. Children grow up in homes where mistakes cause much suffering, even among the innocent.

But with respect to the immigration consequences of children raised in the U.S., but born in another country, we have [had] an option. The Dream Act. Children brought here before the age of 16, who graduate from high school here, who go to college or spend two years in the U.S. military, can get permanent residence after many years of fulfilling all sorts of conditions and jumping through hoops (including criminal checks).

This seems like a “no brainer.” These children are raised here and stand to contribute significantly to our economy, our military, and our country. In their minds, they are already Americans. But for some people, the supposed “crimes” of the parents are so heinous that the continued suffering of the children is warranted as a kind of deterrent to future behavior.

But honestly, is there any real deterrent effect here? Do parents about to cross the border to find jobs to feed their families really stop and ask whether their children will be punished at some distant point in the future? Or do they think about what their children need right now, and so they cross the border and hope the future can be brighter?

It is unjust and it is immoral for the U.S. to deny children the opportunity to stay and contribute to this country, when those children have been brought here and raised here through no fault of their own. The Dream Act will come up again. Matters of justice tend to do that, and one day it will be adopted.

Charity is no substitute for justice withheld

Charity is no substitute for justice withheld.
- St. Augustine

A visit to a Kansas congressional office in Washington, D.C. in March to lobby for immigration reform brought this idea home from St. Augustine. This representative (who is also now running for higher office in Kansas) has voted previously 1) to criminalize immigration violations, including visa overstays; 2) to take away birthright citizenship by being born in the U.S.; 3) against the Dream Act; and 4) for just about any other anti-immigrant legislation ever proposed.

Yet, in his office he was surprisingly warm and engaging (perhaps not so surprisingly considering he is an elected official). He seemed sympathetic.

“These are mostly good people,” he said. “But it’s a very complicated issue and there are no easy solutions.”

And then came the cop out.

“But we are a very generous country.”

Not that he had any intention of advocating any kind of generous position going forward. It seems like whenever someone is about to advocate a heartless position, utterly lacking in compassion or grace, they start talking about how generous we are as a country.

After all, we admit a handful of refugees every year, etc. So whatever failings we might have in compassion and justice, it’s all o.k., because, after all, we are “generous.”

Charity is no substitute for justice withheld.
- St. Augustine
I have to say this is true. People will put up with a lot of poverty and hardship. But injustice? No.

Is the failure to consider immigration reform a lack of charity, or a lack of justice? It is unjust to reap the fruits of people’s labors, and not dignify them with status. It is unjust to exact punishment, such as permanent banishment from home and family, for minor immigration infractions. It is unjust to abuse workers with impunity because they are powerless and without status. It is unjust for honest employers to have no legal options to recruit foreign workers when no U.S. workers are available. It is unjust for asylum seekers to be detained indefinitely, then deported to a country where they face persecution without the opportunity to see a judge. It is unjust for family members to have to wait decades to join their relatives in the U.S. It is unjust for foreign professionals to wait for years and years to fight their way through the legal green card process only to be denied because of a lost job or minor immigration status violation. It is unjust for hard working compassionate immigrants, documented or not, to be labeled as criminals and vilified by persons whose only claim to superiority is the accident of their birth in the U.S. I could go on.

Charity is no substitute for justice withheld.
- St. Augustine

Immigration and the RNC

Haven't been blogging much. Caught up too much in election issues.

But I couldn't help but notice the Republican National Committee's approach to immigration issues. You can see the entire platform document at http://platform.gop.com/2008Platform.pdf. The immigration section is on pages 10-11.

First notice that immigration is discussed in a section titled, "Immigration, National Security, and the Rule of Law." That pretty much tells you where they are going with this. Before 9/11 no one thought of immigration as a national security issue. It is the nativist crowd that constantly (and unfortunately, successfully) drumbeats a connection between the two. Somehow 9/11, which is primarily about a radical muslim agenda, has become the battle cry for building a wall between the U.S. and Mexico.

Thinking of immigration only in terms of national security issues is a recipe for xenophobia. Every immigrant is a potential terrorist, rather than a potential nobel prize winner, or potential reunited family member, or potential solution to U.S. employer's needs for specialized labor, or potential model citizen and patriot.

The focus on the "rule of law" rather than justice or compassion is also a telling sign of the approach to immigration. Apparently, it doesn't matter how stupid or unjust the law is, our moral imperative is simply to abide by it, rather than change it to reflect our true values.

There is much more that could be said about this document, but I did want to point out one amusing irony. On page 11, the platform talks about the English language, as a sign of our national unity. They support English as the "official language in our nation." Although this seems innocuous, it is often code for immigrant bashing and intolerance. I regularly see letters to the editor where people complain about having to "press 1 for English" on telephone calls to their banks, as if somehow this inconvenience of an extra click is undermining our national integrity.

At any rate, the "English Only" section ends with this statement

English is the accepted language of business, commerce,
and legal proceedings, and it is essential as a
unifying cultural force. It is also important, as part of
cultural integration, that our schools provide better
education in U.S. history and civics for all children,
thereby fostering a commitment to our national
motto, E Pluribus Unum.

Maybe someone should point out that "E Pluribus Unum" is Latin. I guess English only is important unless we are talking about national mottos.

Jesus and Immigration

My post at ILW.com in response to a person quoting Jesus ("enter ye at the strait gate") to justify nativist or racist immigration policy.

Dear Editor,

I had to laugh out loud at Jim Roberts’ use of scripture to defend Mr. Tanton and his nativist opinion ("Enter ye in at the strait gate" (Matthew 7:13)). Surely he must know that in that context Jesus was talking about entering the kingdom of heaven, not the U.S. (and they aren’t the same). What an awful example of proof texting. Anyone who knows anything about our immigration laws knows that they are anything but "straight." A more informative passage from Jesus would be later in the same gospel of Matthew (chap. 25) where he tells a story about the end of the age when Jesus (the "Son of Man") "comes in his glory" to judge "the nations." He separates them into the righteous and the unrighteous, calling them the sheep and the goats. To the righteous, he says,

’Come, you who are blessed by my Father; take your inheritance, the kingdom prepared for you since the creation of the world. For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I WAS A STRANGER AND YOU INVITED ME IN, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.’ [emphasis added]

To the unrighteous, he says,

’Depart from me, you who are cursed, into the eternal fire prepared for the devil and his angels. For I was hungry and you gave me nothing to eat, I was thirsty and you gave me nothing to drink, I WAS A STRANGER AND YOU DID NOT INVITE ME IN, I needed clothes and you did not clothe me, I was sick and in prison and you did not look after me.’ [emphasis added]
Jesus spoke a lot more about the "weightier matters of the law" such as "justice, mercy, and faith" (Matthew 23) than about our adherence to unjust, punitive, and merciless immigration ordinances. Where the law is unjust, it should be changed, not held up as some sort of measure of morality.

Roger McCrummen

Cajun French

NPR just had a story about the revival of Cajun music among a younger generation and that the Grammy awards have now added a category for Zydeco music. One of the nominated band members explained that none of them grew up speaking French, but they sing all of their songs in French, so they have been going to Quebec for French immersion programs to reacquire the language, etc.

I wonder if the "English only" crowd has a problem with this? Or does that just apply to Spanish?

What is an Illegal Alien? Essay

What is an “Illegal Alien?”

In a recent interview, political commentator Pat Buchanan said that to allow the current 12 million plus “illegal aliens” in this country to remain would be to continue a situation of “rampant criminality.” The natural result of employing this kind of inflammatory (and patently incorrect) language is that the hearers become motivated to execute punishment for the supposed criminality at whatever the cost. Anything short of deportation only encourages further “criminality.” “Illegals” are not worthy of consideration for membership in our society because they don’t value the rule of law, unlike us and our ancestors who “did it the right way.”

Sadly, this kind of attitude has already resulted in a dramatic increase in crimes and harassment directed at the Latino community in the U.S., regardless of whether the recipients of such actions are “legal” or not.

Surely, we suppose, our ancestors came legally to this country, and we can be proud of that fact. If we accept this myth, then we can more easily distance ourselves from the present day “illegals.” Surely, they cannot be valuable contributors to society, like our forebearers, because they are starting off their stay in America illegally. If they are criminals now, what kind of citizens can they become? So the argument goes.

We may not want to consider the human misery that will result from policy based on such a black and white view of illegal immigration, so we keep it simple. The mantra of the Minuteman Civil Defense Corps is “What part of illegal don’t you understand?” This statement is repeated in every letter to the editor and at every public discussion of illegal aliens. Apparently, all one has to say is the word, “illegal,” and the discussion is ended.

If I ask the question, “who is an illegal alien?” (rather than what is an illegal alien?) then the answer is simple. Illegal aliens are our neighbors. They work with us, play with us, go to church with us, and marry our children. But to ask “what is an illegal alien?” is to focus on the conditions that make someone “illegal” rather than “legal.” We should consider whether words like “illegal” and “criminal” are the appropriate words to use in this situation. It’s not as simple as we might think. If we really understand what it means to be “illegal,” then perhaps we can assign an appropriate amount of moral responsibility to the condition and consider the appropriate punishment that is due to such condition.

But exactly what does it mean to be “illegal?” Most statistics show that of the 12 million plus undocumented population in the U.S., only about 60% entered the country without documents, e.g. the “illegal border crossers.” The rest were authorized or “legal” at one time and somehow slipped into “illegality.” Let’s consider that group first.

How does someone start out “legal,” then become “illegal?” Every foreign person entering the U.S. must have permission to enter the U.S. Until someone becomes a permanent resident or citizen, every entry into the U.S. is limited. The limitation is based on the kind of visa used to enter the U.S. and the conditions of that visa category. There are many types of visas and each visa category has its own terms and conditions for “maintaining status” or not violating the conditions of the stay in the U.S. Most entries to the U.S are given a fixed period of stay, reflected in a white card affixed to the passport, called an “I-94 card.” For some categories of visa, that I-94 period of stay is not tied to a certain date, but is limited to persons who maintain the conditions of their permitted entry, such as students.

Therefore, a person can become “illegal” by either staying past the date on the I-94 card or by violating the conditions of their status. Most persons with only a casual acquaintance with the immigration law would be astonished at its complexity and surprised at just how easy it is to fall out of status. The U.S. immigration law has been compared to the U.S. tax law in terms of its complexity – and it changes constantly. Couple that with the fact that many persons trying to navigate this complex law speak English as a second language, if at all, and the fact that the agency designated to help them navigate this system is just as likely to arrest them as help them, and you have a recipe for disaster. Imagine deportation for making a mistake on your tax return – prepared in another language!

Let’s look at some common examples of falling out of status. A foreign student goes out of status and becomes “illegal” when he or she drops below 12 credit hours a semester. I’ve seen students drop a class and while attempting to replace it with another, handcuffed and led out of class for violating status. Students also become “illegal” by taking a job off campus without permission, or by switching schools without permission first, etc. Often they are not aware they have violated status, yet they can be deported for it. Is this what we usually think of as “criminality?”

Workers in the U.S. go out of status and thus, become “illegal”, if they fail to file for an extension of status on time. This is true even if it is not their fault. Maybe their lawyer filed the case late and the foreign worker doesn’t even know about it. Maybe they tried to file it timely and the case was rejected because the filing fee check wasn’t signed, or a form was missing or not signed, or because it was filed in the wrong USCIS service center, etc. When it is re-filed after the rejection it is late because of the delay from the rejection of the case. Filing fees and filing locations, and forms themselves, change routinely in this area and even lawyers who do nothing but practice immigration law have a difficult time getting it right and make frequent mistakes. Foreign workers with permission to be here and permission to work can also go out of status and thus, become “illegal,” by switching employers without permission. Sometimes they get an extension of their stay, but fail to file also for their spouses because they don’t understand that it is required. These kinds of status violations happen every day.

Visitors can go out of status by overstaying their period of stay, or by working without authorization, etc. Foreign workers who maintain their status in the U.S. scrupulously for years are astonished to find that they are suddenly out of status and have to leave the U.S. for the simplest of mistakes. They often are not even aware that what they are doing is a violation of status and their attorneys and employers often do not know it either.

This situation is compounded by the fact that persons who overstay their visas for 180 days or more are subject to bars to returning to the U.S. So they can’t even fix their status by leaving and coming back in. They often simply stay when they realize that it won’t help if they leave.

Do these examples suggest “rampant criminality” or even criminal intent?

In fact, these kinds of “illegal aliens” are NOT criminals by virtue of their immigration violations, although this fact is very often misrepresented by anti-immigrant groups. Immigration violations are almost exclusively violations of our civil laws. We sue people to leave the country because they have lost their license to be here, or never had one. They are, in fact, “unauthorized,” not “illegal.” We do not fine or imprison them for immigration violations (with a few recent exceptions in the law for repeat offenders). In fact, many people are surprised to hear that the immigration law never refers to persons with immigration violations (including unauthorized border crossers) as “criminals” or even “illegal aliens,” although that latter term is so freely used now that many people assume it is the correct term.

In 2006, the House of Representatives proposed a bill that would have criminalized most immigration violations. The result was massive demonstrations in the streets, and the bill never became law. The reason is that our country has historically not considered unauthorized immigration to be a criminal offense. There are some recent exceptions, which will be discussed below.

Let’s consider the other group of immigration violators; those who entered the U.S. without permission. Should we have a different standard of looking at them? What about their children? Under our immigration laws, children are tagged with the same brand of illegality as their parents – because they don’t have the license to be here, not because of criminal activity on their part. And worse, there is no way for children of unauthorized immigrants to fix their unauthorized status in the U.S. without leaving the U.S. with the possibility, and likelihood, of never returning -- regardless of how old they were when they came and how many years they have been here, who they may have married, or how many U.S. children they may have had.

Consider the so-called “Dream Act.” That act, which has been introduced into Congress repeatedly now for several years, but never passed, provides an opportunity for persons brought to the U.S. as children and educated in the U.S. to go to higher education or serve in the military and get the opportunity to apply for permanent residence.

Doesn’t it sound reasonable that we won’t punish children for the “sins” of the parents? Yet each time it is presented, a firestorm of opposition arises under the battle cry that to allow these benefits to be enjoyed by children just excuses the illegal behavior of the parents and encourages further “criminality.” Opponents call this “amnesty” as if hardened criminals are being pardoned from death row. Is it fair to call these children brought here by their parents "criminals"?

But what about the parents who came in illegally? Surely they are “criminals” aren’t they? An illegal entry can be a federal misdemeanor offense, with a fine of up to $250 and/or a week in jail, but is almost never prosecuted. Repeat offenses can rise to the level of being a felony, but even these are relatively recent changes to the immigration laws. We have historically not considered it a criminal act to cross our borders. Persons who cross the borders to take up employment, or get married, etc., are simply “undocumented” or “unauthorized.” Historically, they could still apply for resident status regardless of how they came in because we valued preserving the relationships (such as marriage or employment) more than the fact of the illegal entry. That in itself is evidence that we considered undocumented border crossings as a minor violation at best. At various times in our history, persons who managed to stay in the U.S. for a certain length of time (e.g. two years or five years), whether documented or not, could get legal resident status by simply coming forward and registering. Even now, a person who has been in the U.S. continuously since 1972, whether with or without documentation, can get permanent residence or the “green card” simply by registering. What does that tell you about how the law views those who came in without documentation or otherwise violated their immigrant status? The answer is, the law views them as not being authorized to be here and subject to being removed -- not as criminals.

Permanent residence in our country is generally based on the immigrant having important relationships with this country – that is, sponsorship from immediate family members to preserve family unity, or sponsorship from employers to fill a labor shortage. Historically, we deemed those relationships important enough to provide a way to overcome minor immigration violations – even illegal border crossings. The law, by the way, refers to these kinds of entries as “entries without inspection,” not “illegal” or “criminal” entries, and certainly not an “invasion” as immigrant opponents often state.

Until as recently as 1996, immigrants who came in without inspection or otherwise violated the conditions of their visas could leave the U.S. and re-enter with proper documents, without penalty. In 1996, Congress, in a harsh enforcement-only piece of legislation, created a three year bar to returning to the U.S. for persons who overstayed by 180 days or more. If they overstayed for a year or more, the bar was for ten years. They also added several permanent bars to ever immigrating to the U.S. Even with this new bar, which only applied upon departure from the U.S., undocumented immigrants who were otherwise eligible to obtain permanent residence (e.g. through family or employment sponsorship) could still become “legal” and fix their status violations (including an entry without inspection) by paying a fine of $1,000 and processing the necessary paperwork. This changed in 2001 when Congress failed to renew that provision after the events of 9/11. So until 2001, despite unauthorized presence in the U.S., which may have lasted for many years, immigrants with the necessary relationships to family or employers could still get proper authorization to stay simply by paying a fine.

Under the scenario that exists after 2001, unauthorized immigrants simply cannot fix their status, regardless of their marriage to U.S. citizens, or their U.S. citizen children, or sponsorship for them by employers offering them permanent employment. They can’t get right with the law. If they leave in order to return legally, they are faced with a bar to returning. In some cases, the bar can be permanent. And they don’t have the option of fixing their status by paying a fine. So why leave? They simply stay underground, with their families and their employers, and pray for a change in the law. And the undocumented population continues to grow.

This is not evidence of “rampant criminality.” It is evidence of a broken system that does not serve the needs of either families or employers and has forgotten our historic priorities. It creates a permanent underclass of human beings who deserve better from their fellow human beings, almost all of whom are also descendants of immigrants.

The absurdity of the situation can be seen in this example. Suppose a person entered the U.S. without inspection, married a U.S. citizen, had U.S. citizen children, and otherwise was a model citizen. If the U.S. citizen spouse, or U.S. employer, filed an immigrant petition for this immigrant on April 30, 2001, the immigrant would be allowed to pay a fine and adjust status to permanent resident (“green card”) and live a normal life. If the U.S. citizen spouse or employer filed the immigrant petition on May 1, 2001 -- one day later -- that same immigrant would not be able to adjust status to permanent residence, and would face at least a ten year bar to returning to the U.S., notwithstanding the support of citizen children, spouses, and employers. What a difference a day makes! Is the beneficiary of the petition filed on May 1 more of a criminal than the beneficiary of the petition filed on April 30?

The point is this. A very large group of “illegal border crossers” came here with the expectation that they would be treated the same as their ancestors and previous generations of immigrants. That is, if they behaved, worked hard and developed the necessary relationships with this country they would be allowed to stay. In truth, most of our ancestors came the same way. They didn’t get permission to come. They simply got on a boat and came here and figured out the legalities later.

Objectification requires distance. That is, in order for us to treat “illegal aliens” like objects to be abused and scorned, rather than human beings to be respected, we must create a distance between them and us. Hitler and the Nazis were good at this. They could label the Germans as the Meistergeschlect (master race) and Jews as subhuman Untermenschen. That way, killing a Jew wasn’t like killing a human being. It was rather like killing an animal. And 6 million were killed in a few years. In Rwanda, the government ordered genocide against the Tutsis was inflamed by radio announcers who shouted, “Kill the Cockroaches!” And half a million were killed in a few weeks.

In the immigration debate, it is the word “illegal” that creates this distance and permits objectification. To human beings, we owe respect, dignity, civil rights, and due process.

It should be clear from this discussion that the word “illegal” is really not the appropriate term for aliens in this country without status because it permits this objectification and because it is inaccurate. There is no question that undocumented immigrants are “illegal” in one sense – they have lost or perhaps never had the license to be here – but they are not criminals, either legally or morally. And despite the best efforts of anti-immigrant groups to obscure the issue by labeling them as “criminals” or “illegal aliens,” these are not the terms or concepts employed by our law.

In the discussion of our national values, the term that should be debated is not whether they are “illegal,” as if that determination ends the discussion. Instead, we should debate whether our treatment of undocumented immigrants is “just.” What is justice for those who are here without permission? Do they deserve the opportunity to remain here as full members of society and is our national interest served by their presence?

Our national aspiration should be for justice. Is it justice for families to be permanently ripped apart for minor non-criminal immigration violations, or is it more just to allow them to pay an appropriate fine and remain with their families in the U.S.? Is it justice for hardworking persons with employer sponsors (who we have determined are filling shortage occupations and not harming U.S. workers) to be banned for technical violations of status, or is it more just to provide a way for them to get right with the law and remain with the employers that want them?

Today’s national approach of harsh dealings is not consistent with our national history and is certainly not consistent with basic notions of fairness or morality. Our current immigration laws are unjust in the sense that they do not provide a way to preserve the relationships (family and employment) that we previously valued in this country. If the rule of law is unjust, it should be changed.

I find it interesting that in our founding fathers’ Declaration of Independence, one of the specific grievances cited against the King of England as a justification for independence was the King’s attempt “to prevent the population of these states; . . . obstructing the laws for the Naturalization of Foreigners; refusing to pass others to encourage their migrations hither. . .” Apparently they thought an unjust immigration law was sufficient moral grounds for revolution – an “inalienable right” had been breached. Surely, we should also give at least as much careful consideration to our national heritage and the “justice for all” to which we aspire as we give to the notion of “illegality.”

Roger McCrummen 2008
www.kcimmigrationlaw.com

Dream Act Failed

If we sent them home, there wouldn't be a home to go to.
- Sen. Kay Bailey Hutchison (R-TX).

How pathetic that our Senate could not muster enough votes to move forward on the Dream Act. How dishonest for the opponents to characterize this as amnesty. What a bunch of cowards for our elected representatives to let themselves be influenced by the screaming nativists. Just once, I would like for a rep to say that they were going to do the right thing even if the calls were 10 to one against it. If the Senate can't get together to pass a bill like this -- that has already been adopted by several states with no problems -- then how are they ever going to get together to pass any comprehensive immigration reform that permits a path to legalization for undocumented immigrants? This would seem to be the most innocuous of concepts -- allow undocumented students who were brought here as minors to get on a path to permanent residence by going to college or joining the military. We shouldn't be punishing children for the "sins" (and that is most certainly not the correct word for the actions of their parents) of their parents. How are we better off as a nation to keep these children in the hidden world of undocumented immigrants? How can we be so lacking in grace? And Tom Tancredo, the epitome of mean-spiritedness, actually tried to get the students who lobbied in Washington on behalf of the bill arrested! But on the other hand, why expect Congress and the administration to care about innocent immigrant children when they apparently don't even care much about the health care needs of U.S. citizen children? e.g. the SCHIP bill.

"Blessed are the merciful, for they shall receive mercy." Matt. 5. If I were Tom Tancredo, FAIR, Lou Dobbs, the Minutemen, and all those nativist groups out there, I would be concerned about the state of my soul.