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.
Showing posts with label illegal alien. Show all posts
Showing posts with label illegal alien. Show all posts
Friday, May 13, 2011
"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.
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.
Thursday, May 6, 2010
Facebook Response
This is a popular, albeit uninformed, sentiment expressed on facebook. My response is below.
JUST SO I UNDERSTAND THIS...YOU PASS THE
NORTH KOREAN BORDER ILLEGALLY YOU GET 12 YRS. HARD LABOR.YOU PASS
THE AFGHAN BORDER ILLEGALLY YOU GET SHOT.YOU PASS THE AMERICAN
BORDER ILLEGALLY YOU GET A JOB, DRIVER'S LICENSE, AND ALLOWANCE FOR A
PLACE TO LIVE, HEALTH CARE, EDUCATION, BILLIONS OF DOLLARS SPENT SO YOU
CAN READ A DOCUMENT. WE CARRY PASSPORTS IN OTHER COUNTRIES OR FACE JAIL
TIME. REPOST IF YOU AGREE
No, you don’t really understand this very well. Are you suggesting that North Korea and Afghanistan are good models for U.S. immigration policy? Here is a more accurate view on what it is like to come into the U.S. illegally. You suffer in poverty, discrimination, or abuse in some Central or South American country and hear that there are jobs and employers, or maybe even family, in the North. You ask about work visas for unskilled labor in the U.S. and discover that there is no such thing. In desperation, you risk your life crossing the desert or paying thousands of dollars to some smuggler or coyote who would just as soon leave you for dead as get you to your destination. If you are a woman, you are probably raped. You find a job and work harder than anyone else there only to find out that you are being paid ½ of what everyone else gets. When you complain, your employer beats you and tells you that if you ever open your mouth again, he will call immigration. You pay your taxes, go to church, encourage your kids to excel in school, and do your best to stay out of trouble and make a positive contribution in your community. You pay billions of dollars into the social security system, but will never see a dime of that money. You can’t get a drivers license, can’t get insurance, can’t open a bank account, or get credit cards. You hide in fear of discovery. You pray that you don’t get taken from your children and leave them to fend for themselves. You don’t talk to police when you are a crime victim because they may ask you for your papers. You ask an immigration lawyer if there is anything you can do and (if the lawyer is honest and not out to rip you off by collecting fees for benefits that you are not eligible for) are told that there is nothing, and if you do leave the U.S., you face a ten year or even permanent bar to ever returning to the U.S. Your family is ridiculed because of its legal status. And worst of all, many of your Christian brothers and sisters don’t have compassion on you, but despise you because you are “illegal.” Still, Jesus loves you and you keep going and praying that the law will some day allow you to become legal.
JUST SO I UNDERSTAND THIS...YOU PASS THE
NORTH KOREAN BORDER ILLEGALLY YOU GET 12 YRS. HARD LABOR.YOU PASS
THE AFGHAN BORDER ILLEGALLY YOU GET SHOT.YOU PASS THE AMERICAN
BORDER ILLEGALLY YOU GET A JOB, DRIVER'S LICENSE, AND ALLOWANCE FOR A
PLACE TO LIVE, HEALTH CARE, EDUCATION, BILLIONS OF DOLLARS SPENT SO YOU
CAN READ A DOCUMENT. WE CARRY PASSPORTS IN OTHER COUNTRIES OR FACE JAIL
TIME. REPOST IF YOU AGREE
No, you don’t really understand this very well. Are you suggesting that North Korea and Afghanistan are good models for U.S. immigration policy? Here is a more accurate view on what it is like to come into the U.S. illegally. You suffer in poverty, discrimination, or abuse in some Central or South American country and hear that there are jobs and employers, or maybe even family, in the North. You ask about work visas for unskilled labor in the U.S. and discover that there is no such thing. In desperation, you risk your life crossing the desert or paying thousands of dollars to some smuggler or coyote who would just as soon leave you for dead as get you to your destination. If you are a woman, you are probably raped. You find a job and work harder than anyone else there only to find out that you are being paid ½ of what everyone else gets. When you complain, your employer beats you and tells you that if you ever open your mouth again, he will call immigration. You pay your taxes, go to church, encourage your kids to excel in school, and do your best to stay out of trouble and make a positive contribution in your community. You pay billions of dollars into the social security system, but will never see a dime of that money. You can’t get a drivers license, can’t get insurance, can’t open a bank account, or get credit cards. You hide in fear of discovery. You pray that you don’t get taken from your children and leave them to fend for themselves. You don’t talk to police when you are a crime victim because they may ask you for your papers. You ask an immigration lawyer if there is anything you can do and (if the lawyer is honest and not out to rip you off by collecting fees for benefits that you are not eligible for) are told that there is nothing, and if you do leave the U.S., you face a ten year or even permanent bar to ever returning to the U.S. Your family is ridiculed because of its legal status. And worst of all, many of your Christian brothers and sisters don’t have compassion on you, but despise you because you are “illegal.” Still, Jesus loves you and you keep going and praying that the law will some day allow you to become legal.
Friday, January 25, 2008
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
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
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