Recently, as I, a U.S. Citizen, was returning from a short trip to Canada, I was interrogated by the Customs and Border Protection Officers, even after I presented my U.S. passport.  They asked me why I was in Canada, whom had I met, how long had I known my friend, how I first met him, and so on.  After awhile, I stopped answering questions because I thought my privacy was being violated.  The CBP inspector became angry but allowed me to proceed after he found out that I am an immigration attorney, although he accused me of evasive answers.

A federal statute states that once a person entering the United States has been identified as a U.S. Citizen, immigration inquiries should cease.  However, the officer at the border can continue to inquire about issues related to Customs.

In a recent presentation by a Director of Customs and Border Protection, he opined that they can ask any questions of anybody even if he or she proves to be a U.S. Citizen.  The impetus is that in their enforcement of Customs regulations, the CBP officer needs to know whether the entrant is a drug dealer, laundering money, or committing other possible violations.

However, the potential crimes CBP would be looking for are no different than the crimes a U.S. Citizen may commit when inside the United States.  Therefore, just as it does not make sense to inquire of a U.S. Citizen within the U.S. at random of potential criminal activities, it also does not make sense that the same inquiry can be had just because the U.S. Citizen happens to be entering the U.S.  Also, there does not seem to be any limit for what the CBP Officers can inquire since any question can hypothetically lead to some sort of disclosure of a criminal activity.

This is a slippery slope for our society.  Our individual rights, starting with the right of privacy, are being violated and we are starting to accept that as a normal part of our societal duty.  It is not.  We should question the government and a process of thinking that allows the government to arbitrarily and without cause to have their agent intrude into our privacy, even if it happens at the port of entry. 

The CBP Director assured us that his officers are professionally trained and that they will not abuse their power of inquiry.  However, that is a false hope, as history proves.  No matter how professional people are and no matter how well intended the policy is, granting too much power, even to the best-intentioned officers, will in time produce abuse.  If we accept that our constitutional right to privacy and against unreasonable interrogatories can be violated at the port of entries because of the societal need to explore potentiality of a criminal activity, even without any reasonable basis, it will only be a matter of time before the same can be had anywhere at our roads, our office buildings, and ultimately at our homes.  This is a path that will undermine the value of what America is all about, the supremacy of the freedom of individual against the tyranny of government.

We recently encountered a case where a young couple planning to get married had a difficult experience with our immigration system. The young woman was a U.S. citizen who was planning on a U.S. wedding to her Japanese friend.  A few days before the wedding, they decided to visit Canada, which is a few minutes ride from Detroit. When returning to the U.S., they innocently told the immigration officials at the border that they were planning to get married shortly. To their shock, the Japanese fiancé was denied entry into the U.S. because officials concluded that he possessed immigrant intent which violated his visitor status.

The legal reasoning behind this ridiculous result is that under our laws, foreigners visiting our country are required to have the intent to leave at the conclusion of their visit. If they are found to be planning to marry a U.S. citizen, then a visitor’s visa might no longer be considered applicable and a marriage-based visa has to be secured prior to that individual’s entry to the U.S. The problem is that a marriage based visa takes months and sometimes years to be procured.

In this case, the plea by the young bride-to-be that our officials allow her fiancé to enter the U.S. went in vain. The enormity of this situation was magnified as the hall for the wedding had been rented, the bands contracted, the guests invited, and the young man’s family had already arrived from Japan to attend the ceremony. At the end, the wedding had to be cancelled and the groom-to-be had to fly to back to Japan from Canada. His fiancée then followed him to Japan where they got married.  Many months later, following the grant of an immigrant visa, they returned to the U.S. where a second, make-up ceremony took place.

Our immigration officials cannot be blamed alone for this, because they were merely following the law. The problem appears to be in our immigration law, which is archaic, based on an early-20^th century mentality, and possibly reliant on the quicker processing times that existed then when there were no backlogs. Then, a marriage-based immigrant visa took only a few weeks to process as opposed to months and even years as it does today. The current immigration policy in the U.S. is also unsuitable to our current global economy where people need to move quickly back and forth between countries.

There is another conflicting aspect of our immigration law illustrated by the couple’s situation here. In this case, if Japan had restrictive policies similar to those in the U.S., then the Japanese authorities would have excluded the young American bride from entering Japan. Ironically, when our government advised the couple to get married in Japan, there was an implied presumption that the Japanese government would allow the U.S. fiancée to enter Japan. If, however, Japan had laws that were similar to ours, then they would have excluded the young American woman from entering Japan, just as we excluded her fiancé from entering the U.S. In such case, those two young individuals would have had to find a third country in which to get married. This does not make any sense. Luckily Japanese immigration law, as well as the laws of many other countries, is not as bizarre in this regard as our immigration law.

Our current immigration law is an impractical one that does not fit with today’s increasingly fluid and global reality. It views foreigners with suspicion and does not grant our border officials the discretion to waive the restrictive requirements that are plentiful within the current immigration policy. It conflicts with the values of a hospitable, generous and welcoming nation. One the contrary, it is based on the preconception that everyone entering into the U.S. has questionable intentions unless proven otherwise. Our existing immigration laws do not reflect the image that we should be displaying to the rest of the world, and is in need of a complete overhaul.

             There have been several articles in some of our nation’s most prominent papers, highlighting the contribution of various immigrant groups and dispelling some of the myths circulated around in the immigration debate. You would not hear about those articles on the Lou Dobbs program.

The following article in the New York Times titled “How Immigrants Saved Social Security” explains not only how legal immigrants contributed to our tax base, but also how illegal immigrants contribute even more so to social security without getting back anything from the system.

http://www.nytimes.com/2008/04/02/opinion/02wed3.html?_r=1&scp=1&sq=how+immigrants+saved+social+security&st=nyt&oref=slogin

Another article discussed the wall being built along the southern border and how it is causing damage to the environment and to property rights. The article is titled: “Disorder On The Border”   http://www.nytimes.com/2008/03/29/opinion/29egan.html?scp=1&sq=disorder+on+the+border&st=nyt

Another article highlights how, in its attempt to please the hardliners, our government has trashed many environmental laws and damaged hundreds of thousands of acres of fragile habitat on the southern border. The article is titled “Michael Chertoff’s Insult” http://www.nytimes.com/2008/04/03/opinion/03thu3.html?scp=1&sq=Michael+Chertoff+Insult&st=nyt

Several articles in the Wall Street Journal highlighted the need for more H-1B visas. One quoted Bill Gates’ testimony to Congress in which he cited studies showing that H-1B workers, through the innovation they bring, actually add jobs at the rate of 5 to 7.5 new jobs for every new H-1B worker.  http://online.wsj.com/article/SB120691381253875289.html

Bill Gates’ observation relates to his experience at Microsoft. However, a recent study by the National Foundation for American Policy verifies his experience and shows similar results with data showing that because of their innovative skills, every H-1b worker actually causes the creation of about 7.5 American jobs. See http://www.nfap.com/pdf/080311H1b.pdf

 Another article highlighted how other countries are using America’s ill-advised policy to their advantage by luring intelligent immigrants to their own countries. See http://online.wsj.com/article/SB120701430488579221.html

            Concern is often expressed about our security in light of the high influx of undocumented immigrants from our southern border.

            While unauthorized immigration is problematic, framing it as a security issue highlights the concerns. Hence, one needs to know if those are valid concerns, or if they are smoke screens.

            Looking at the map, one may notice that our borders with Canada run about three times the length of our southern border. Therefore, if one is concerned about terrorists coming in from the south, why not have similar concerns about the northern border? If we need to build a fence in the name of national security at our southern border, why not build one at the lengthier northern border as well?

            Indeed, security-wise, our Canadian border should raise more concerns. Not only is it much longer, but it is also less guarded and does not involve a hard-to-cross desert. Just as important, in the countries the terrorists are likely to come from (such as those represented in the 9/11 attack), English is spoken and taught as a second language. In contrast, Spanish is almost never taught nor spoken in the Middle East. Hence, it would be logistically much easier for terrorists to sneak through our borders via Canada than Mexico.

            Of course, we neither want to surround ourselves with fences, nor live in a cage. But, I suspect the reason no one has suggested a fence along our Canadian borders is that the security concern is a smoke screen intended to add fear to what is primarily an immigration issue. Ironically, the best way to protect us from terrorists coming from any border is to streamline the entry of needed workforce, so that they would not need to cross illegally. Once we achieve that, those who would then need to cross can be identified easily. Since there will be less incentive for legitimate workers to enter illegally, we can then assume that those who would attempt to enter illegally might be the really bad guys.  

             In a conversation I recently had with a friend, the subject turned into undocumented immigrants. I was taken aback by a sudden anger in her voice. She proclaimed that those “illegals” have violated our laws; that they should be deported “even if they came 20 years ago”. It mattered little that the law they broke was classified by our own government as a simple misdemeanor.

            Her anger puzzled me and left me wondering. The phrase “breaking our laws” is repeated so often these days that it merits a special reflection. Is that what really angers so many to the point of demanding deportation, even of aliens with families here?

            It is true that undocumented immigrants may have committed a misdemeanor when they entered unlawfully (I say “may” because those brought as children have no legal responsibility for their parents’ actions). But, how many Americans have in the last 20 years committed misdemeanors and gotten away with it? And, let’s say hypothetically that we find them, are we willing to impose upon them a punishment that would separate them from their kids, spouses and life here?

            For example, how many Americans had, in the last couple decades, driven after some heavy drinking? How many have experimented with marijuana or other drugs? How many took inflated deductions in their income tax? Each of those acts is a misdemeanor, a crime with the gravity in the eyes of the law similar to illegal entry. Yet, even if we hypothetically could find those people, no one in his right mind would suggest imposing a punishment that would separate them from their spouses and minor children. Yet, that is exactly what is happening to many who decades ago committed a misdemeanor of illegal entry. In fact, huge resources of our government are spent to impose on undocumented immigrants a punishment which would seem unconscionable if applied to US citizens.

            The issue then appears not only that those undocumented aliens broke our law; it is far more complicated than that.

            Perhaps the reason for this harshness is a deep seated insecurity among many of us; insecurity that has been exploited by many politicians, since it provides an easy, cheap political points. That exploitation also prevents any reasonable and humanitarian resolution.

            Perhaps some consider themselves the real, original “owners” of this country. Too much immigration would alter the traditional racial mix of our country, arousing the fears of those who envision what appears to them to be a loss of long held power.

            Others may have been swayed by the fear-based misinformation linking immigration to terrorism. Yet others may secretly be envious of the possibility that new immigrants might within a generation surpass them in wealth and success.  Some, including possibly new immigrants, may simply be reflecting a selfish desire to “close the door”, lest new immigrants may capture some of the prize that they wish to retain for themselves.

            Of course, many may legitimately be concerned about our open borders, but the anger and the draconian consequences tell me that for many, what’s in play here is insecurity, nativism , selfishness, stereotyping, and other complex and unhealthy inner tendencies. 

            There is no other logical reason why we are spending fortunes of our resources in separating families, depriving kids of their parents and destroying lives and futures; all for a misdemeanor committed decades ago. Punishing undocumented aliens can be done by other means. Illegal entry is the only law violation where we seem to insist that unless we reverse the original act (by deportation), we will be rewarding the violation. We do not for example extract alcohol from those driving under the influence, lest they would feel rewarded by their act.

            In summary, for those angry about the undocumented aliens who broke our laws and insist that no solution is good unless they are deported regardless of their family ties here; they need to look deep inside themselves. There may be other reasons in play, and they ought to have the courage to confront what could be unhealthy temperament inside themselves.

            Michigan’s Attorney General’s office has issued an opinion, which limits driver’s licenses to US citizens and Lawful Permanent Residents (known as green card holders). Many Michiganders may applaud this opinion as enforcing our laws, without knowing how damaging this simplistic interpretation will be, if implemented. 

            First, our society is comprised not only of citizens and green card holders versus the undocumented. In Michigan there are hundreds of thousands of foreign investors, executives, managers, professionals, experts, and other foreign workers who are legal, are needed here, and are contributing to our economy, but are neither citizens nor green card holders. Making it harder for them to a drive will make Michigan a less friendly State to foreign business. 

            In addition, there is a huge segment of potentially legal immigrants who are in the process of becoming legal, but have to undergo a process that takes years, and who otherwise are allowed by the immigration service to work. They include refugees, immigrants with close US family ties, immigrants with hardships, and other comparable situations. Making it harder for those to drive will impose undue hardship on them, and will hurt Michigan economy by making idle an otherwise productive group, who may then need to rely on public assistance. 

            This ruling will also impose a huge drain on the resources of the offices of the Secretary of State, since they have to become instant experts in immigration law, causing substantial more delays to everyone else. 

            The above does not even start to address the very notion of whether it is wise to drive the undocumented aliens underground, creating a segment of society who are driving without insurance, without testing, and who are unlikely to report crimes or to cooperate with police. 

Is it not better for our national security if we know who is living among us, with their addresses and what cars they drive? 

            The Attorney General’s opinion seems to be based on an erroneous common misconception that a driver’s license granted to an illegal alien would enable him to work. That is simply not true, because work authorization requires a social security card with work authorization from the Federal government. Nor would a to license to an illegal alien prevent the Federal Government from deporting that alien should it become necessary. I suggest Michigan’s officials reassess this ruling .

 There is a provision in our law which makes me dismayed whenever I encounter it. It allows those who are deported a remote chance to return (after lengthy months and years of paperwork) if there is a really extreme hardship shown, not to them, but to a family member as a result of their absence, and then only if that family member is a US citizen or resident. 

For example, let’s assume an infant female was brought by her parents into this country illegally. Their daughter grew up in the US and is now an adult, but out of status. If she is caught and deported, she may be able to return if she shows that her continued exile will cause an extreme hardship to a US immediate family member. 

So, in the example above, let’s assume she is married to a US citizen. If she can show that her husband will suffer extreme hardship if she remains in exile, she may be able to return (after months or years of paperwork). However, if her husband is neither a US citizen nor resident, or is she is single, she can not return no matter how much hardship her exile is causing her. Thus, despite famine, civil war or other calamities in her home country, or on-hold personal relationships, education, profession or business she may have in the US, our laws will not allow her back because the extreme hardship is affecting her and not a related US citizen or resident. 

In other words, we care only if someone of our own, who is a US citizen or resident, is affected, but, we do not care if she is the one devastated, no matter how extreme the hardship is to her. It is almost as if others cannot be worth caring about regardless of what may happen to them if they are exiled indefinitely. 

This law was enacted by a Congress many of whose members are proud of their Christian traditions. But, to my knowledge, those traditions are supposed to teach us not to be so self absorbed that we accept for others extreme hardships that we find too onerous for our own to endure. 

 There is a big debate going on these days about “Sanctuary cities”. Even some presidential candidates entered the fray; they wanted to assure their base that they do not, never did, nor will ever support sanctuary something, be it city, mansion, or whatever. So, what are Sanctuary Cities? 

There is no clear definition for that. But, the term itself started to be used in the mid 1980s to describe church movements that aimed to shelter refugees from Central America. Since this term started as a humanitarian gesture, how come it ended to be so bad that no one wants to associate with it? 

The term today refers to cities that try to limit the ability of their employees, including city police, to enforce federal immigration laws. You may wonder what’s wrong with that.  To start with, you need not worry much about convicted criminal aliens. There is a current system of reporting most convicted criminal aliens to the immigration service by the courts that enter their conviction. Therefore, illegal aliens who commit crimes are for the most part reported to the federal government regardless of whether the city they are in is or is not “Sanctuary City”. What we are talking about then is the ability of local police to investigate the immigration status of individuals regardless of whether a crime has been committed.   

But, how are our local police supposed to investigate that in absence of a crime? The only way is for them to ask. But, whom should they ask? People don’t walk around displaying their illegal status.  Thus, the police will have to ask persons who look different from the majority of us, turning the door wide open for abuse that comes with unlimited power. They may start asking citizens and lawful persons about their documents. When was the last time any of us walked around in a mall with our US passport ready to show to a police officer who may suspect us to be undocumented aliens? 

But even if all of our police will act with the best of intentions and will exhibit respect to those questioned, how will they know who to ask, and what to ask or look for?  How about the hundreds of millions who enter our country legally every year to visit, or to conduct business? Many of them do not have the type of papers citizens usually carry. Are we going to have those visitors, who are vital to our economy, be subject to the whim of a police officer who may not like their looks? 

Furthermore, the population of non-citizens includes not only legal and illegal immigrants, but also a huge number of illegal immigrants who are on their way to become legal; a process that sometimes takes years to conclude. Sometimes, even immigration judges and lawyers spend years figuring out whether someone from another country deserves to be legally here or whether he or she must be deported. How is a local police officer supposed to figure out the answer in a few minutes conversation with a suspected undocumented immigrant.   

In addition to the above, if the undocumented immigrant population is scared to have contacts with local police, there may be crimes that will go unreported, witnesses that may not come forward, and the general population will suffer when immigrant communities will be less likely to cooperate with the local police.    

 Immigration is a federal issue. Its problems should be resolved by the federal branch of government. Dumping this problem on a local police force that is totally untrained to handle this task will divert resources from investigations of serious crimes, will endanger the civil rights of all of us, and will reduce the cooperation of many communities with the local police force, to the detriment to the rest of us.     

Elliot Spitzer  was criticized for a plan to issue limited versions of driver’s licenses to undocumented aliens in New York.             

The presumption underlying those objections is that the proposed licenses are tantamount to legalization. But that ignores the reality that issuing a driver’s license to an undocumented alien does not make him legal, nor protect him from deportation, or grant him work authorization.           

Instead, driver’s licenses will ensure that the recipients will have to pass a driving test, thus making the roads safer for the rest of us. They will also make it more likely that those drivers have insurance, protecting others from financial loss in case of accidents.  

What driver’s licenses will also do is disclose where an alien resides so we can arrest him in case of a crime, or locate them when we need them as witnesses. Further, it will enable us to know more about who and how many live among us so we can better track others who pose the real danger; i.e. those who have more in mind than just providing for their families through hard work. Will this encourage others to come here illegally? Those who risk their lives to come here to support their families will use fake licenses anyway or drive without one. So, if they should be deported, having a license will not stop our government from doing so, and not having one does not appear to prevent them from coming here in the first place. So, we may as well focus on the safety aspects of this issue.         

This is not a call for open borders. Illegal entry is a problem needing a solution by our federal government through programs that streamline our society’s need for those low skill workers from abroad, while protecting our own workforce. But, until a reasonable and workable solution is enacted by Congress, let’s not scream foul whenever someone comes up with a temporary solution to a small part of the problem; in this case: undocumented aliens by the millions driving without proper testing or insurance, and endangering the rest of us.