Archive for the Immigration, security, and fear Category.

Our Hypocritical Immigration Laws

What is meant by hypocritical law? There is no formal definition. My own is that a law is hypocritical when it punishes individuals for doing things many of us had done, when we would certainly consider such punishment unthinkable or unconscionable if applied to us.

Consider the following example: Someone who is a non-citizen and who was caught at any time is his life experimenting with marijuana would now face serious threat of deportation, or refusal of entry into our country. If he was caught twice, then deportation or exclusion becomes probable. If someone tries to smoke marijuana cigarette during his college years, but did not like the taste, and chose instead to sell it to a friend for five bucks, then this person will now be deported or excluded permanently as drug trafficker, regardless of the passage of decades. Under our immigration laws, offenses committed at any time often count as offenses committed yesterday, without regards to how the person developed or who is the person today.

But, how is the experimentation of marijuana in young age reflective of how a person might develop? The answer is that the correlation is zero. We have multiple Presidents who admitted to experimenting with worse than marijuana. We have had Supreme Court nominees who had admitted to the same. Thus, smoking marijuana is clearly not indicative of what the person might become at a later time of his/her life.

Note that the example above does not deal with undocumented aliens. It involves legal immigrants or visitors to our country. In case of green card holders, the deportation would destroy families and often separate kids from mother or father.

Other examples involve individuals who have committed relatively minor or non-violent crimes, such shop lifting, or other mistakes in their life, decades ago, and have been completely rehabilitated. Some might not have spent even one day in jail; yet, decades later our government is spending billions of dollars in salaries for federal agents trying to deport them. Does this make sense?

Our law justifies this travesty under the fiction that deportation is not a punishment, but administrative procedure of simply returning someone to the country they came from. And while that might be true for someone who jumped the border fence recently, it is a tragic fiction for those with families who had lived here for many years and have nowhere else to go. Unfortunately, our courts are happy participants in this fictitious nonsense since it gives them easy way out rather than face the difficult reality that deportation for some people is worse than jail.

I am convinced that if our current immigration law was in effect since the start of our country, and if somehow by magic the background history of those immigrating here could have been disclosed, many Americans, including some at DHS, would not be living here, as their ancestors would certainly have been denied entry. I am also convinced that in many cases, the federal agents or government officials doing the deportation have done in their life not much better than those they are deporting. It is just that even if caught, the fact they are US citizens meant that the consequences are minor.

What does that say about our society? We are spending fortunes in the billions of dollars trying to deport people, who otherwise are fully rehabilitated, for things they did decades ago, for which they have paid dues to society and some of which are minor, and in the interim, we are destroying families and devastating many lives. A society is best judged by how it treats its most vulnerable. Immigrants can not vote and hence are indeed among the most vulnerable among us. And how we are treating them does not make us look very good.

Posted in Bills & Laws, Immigration, security, and fear, Recent Posts | Leave a comment

Common Misconceptions about Immigrants and Immigration

A law professor in Kansas City, Missouri has recently renewed his efforts to deny non-citizen, undocumented children access to in-state tuition in Nebraska. Kris Kobach, whose previous attempt in Iowa failed, now represents three families whose U.S. citizen children are charged higher tuition rates because they do not qualify for in-state tuition. He argues that non-citizens should not be permitted to pay less than citizens. I am simply unable to understand why anyone believes innocent children should be punished, and with such harsh punishment at that; it is in this nation’s best interest to encourage and permit children to attend college. It is in the States’ best interest to retain autonomy and determine financial benefits afforded to residents.

Aside from those issues, however, it is clear that at the heart of this and similar debates are three major misconceptions about immigrants and immigration: the concept of “citizen” versus “resident,” the demography of Taxpayers, and the civil nature of Immigration Law.

Citizenship

Only recently did I learn that U.S. law provides for citizenship by birth on U.S. soil because of slavery. Lawmakers did not know how to treat slaves; slaves were not considered citizens, and Congress was not willing to grant them citizenship. The solution was citizenship to anyone born in the U.S.

As someone lucky enough to have been born in the U.S., I can say that until studying law, I did not fully recognize the advantages my U.S. Citizenship confers. It was nothing I had ever needed to consider. In learning law generally and immigration law specifically, however, I learned that in many cases, citizenship confers no legal advantage. Often, no distinction is made between citizenship and non-citizenship. At the state level, most laws and regulations focus on residency, rather than U.S. citizenship. In addition to college tuition, non-citizens may get divorced in state court, for example, but only where the court has jurisdiction; jurisdiction is determined in large part on residency in that state, county, or district. Citizenship is irrelevant. Likewise, non-citizens can sue in federal courts. In fact, the U.S. Constitution limits its reach to non-citizens in only a few instances, namely the right to vote and hold public office. The U.S. Constitution generally applies to all residents of the U.S., although the laws have been limited in many instances. Prison inmates, for example, have been deemed to have fewer rights. Notably, this applies to U.S. citizen prisoners and non-citizen prisoners alike. The Bill of Rights, however, does generally apply to all persons residing in the U.S.

So what does citizenship mean? A U.S. passport. The right to enter and exit the borders of the U.S. freely. The right to vote. The right to run for public office. But what else? Is a U.S. citizen more likely to know the history of this country? To be politically aware and engaged? Does it mean citizens actually exercise the right to vote? Are citizens more likely to open a business? Support local businesses? Have access to health care? Be nice to neighbors? Donate to charities? Volunteer in the community? Not necessarily. Citizenship is irrelevant.

I know a lot of immigrants – visitors, temporary residents, undocumented persons, persons out of status, permanent residents, and naturalized citizens. All of them, without exception, love this country. They take pride in it, which they often wear on their sleeves. They explore the beautiful lands that make up the U.S., delve into their communities, eagerly help their neighbors, and even educate themselves politically – despite not having the right to vote in many cases. This is not to say all immigrants are more patriotic or engaged than U.S. citizens; certainly that is not the case. However, it begs the question: why do so many U.S. citizens harbor such resentment towards non-citizen immigrants?

Perhaps it relates to taxes…

Taxes

The second greatest misconception is that immigrants do not pay taxes. The Federal Tax Code is not based on citizenship. Here again, residency is the determining factor. Generally, anyone who lives and works in the U.S. for any amount of time must pay taxes. This applies to all immigrants. This is why a Tax Identification Number (TIN) is made available – so that non-citizens, or anyone who does not have a Social Security Number, can still pay taxes.

In my experience, I have not met any immigrants, documented or undocumented, who do not pay taxes. Of course I am not saying that everyone pays taxes, but the point is that it is a huge misconception that just because someone is an immigrant, documented or undocumented, they do not pay taxes. There is a disconcerting leap in logic in that notion, and is one that simply does not hold water. Further, many surveys of all immigrants indicate that they use fewer social services than any other portion of society, despite being a population that overall pays a high percentage of taxes nationwide. Thus, the allegation that they simply feed off society by not paying into the very pool of money they drain, is a weak and ignorant one.

It is true that many immigrants work without legal authorization to do so. This is a large-scale problem, admittedly. The Department of Homeland Security has increased its efforts to enforce laws that are meant to prevent unlawful hiring practices. This cuts both ways, though. Mass deportation of employees of the Posteville, Iowa factory has devastated that town and left it in financial ruin. Many employers, farmers in particular, hire undocumented persons because they cannot afford to pay minimum wage, or because they cannot fill an unsavory position (think slaughterhouse cleaning crew) otherwise. Yet, minimum wage is in place to protect workers. The issue is far-reaching in our society, and the blame should not be squarely placed on the shoulders of immigrants.

“Illegal”

The term “illegal” in the context of immigration is largely a misnomer. Immigration laws are Federal Civil laws completely separate from Federal Criminal laws. To enter this country without the proper paperwork or to overstay a visa – these are not crimes. They are simply violations of civil law. No one can be sentenced to jail for doing that. In fact, the most severe penalty for violating an immigration law is a misdemeanor punishable up to six months in jail for crossing the border without inspection – roughly the equivalent of the punishment for driving under the influence. (Detention while proceedings are pending is also not criminal in nature, but rather a measure to ensure the detainee leaves the U.S. The conditions of detention, however, blur this line and must be reformed. I previously wrote about this topic.)

Anyone who continues to harbor such ill-will towards immigrants after a better understanding of the basics must know something I don’t, or be coming from a very different place than I am. I would be very interested to know what or where that is…

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How to handle overstays

Our government just announced that the budget for the Department of Homeland Security (DHS) has increased by several billion dollars, mostly to hire new agents. One of DHS’ tasks involves tracking all people who enter the U.S. to see if and when they depart. Those programs are not targeted against terrorists or criminals; rather they are widespread and cover everyone who enters this country.

There are clearly some in our government and in Congress who are obsessed with knowing how many people enter the country and do not leave. The estimated number of those who are currently undocumented in the U.S. averages about 12 million, out of which about 30-40% came legally but overstayed. That means that there are about 4 to 5 million foreigners who entered our country legally but have not left. Assuming that the number of new undocumented aliens increases by approximately 1 million per year, then about 300,000 of those every year are foreigners who enter legally but stay.

The task of finding all those millions seems to be of critical importance to some in our society. Some of our officials, even some senators, urge our DHS to identify those persons. What nobody really discusses is what to do about them once we know who and where they are.

Leaving aside the several million who are here already and have not left, for those who enter legally and do not leave at the end of their visits, which are estimated at about 300,000 annually, it will require literally an army of police officers and government agents to try to find them. Chances are many would have changed their place of stay since they typically become mobile after entering this country. Trying to locate them will require millions of new hires at our tax payers’ expense.

The real question is: Why do we care where they are and what they are doing? Other than the need for control, why do we care? And even if we get to them, most of them will have reasons for why they overstayed. Not only will we have to find them but we will have to detain, process them at immigration court, etc. Literally to be able to truly handle them we need to devote much of our resources to this task. This sounds silly. The U.S. has existed for over 200 years and has become a great country without the need to do this kind of fanatical surveillance on others, even if they are out of status in this country.

It appears to me that a far more intelligent way to handle this is to impose a financial penalty that would grow in time for those who enter legally but overstay. For example, the penalty can be $10 per day, or a couple hundred dollars per month. Thus, as an example, if someone enters our country legally but overstays for ten years and then married an American citizen and seeks a Green Card, we can at that time present them with a bill to pay approximately $30,000 for their overstay. Most of those who are here out of status want some way to cure their situation and adjust their status. Letting them know there will be a financial price to pay at the end, that would increase with time, would be the best possible motive for them to leave. And if they need to apply again in the future, the U.S. consulate will be aware of their overstay and can charge them the required penalty before issuing any other visas.

This solution will alleviate the need for us to have an army of agents costing tax payers tens of billions of dollars, and by creating a financial incentive for a foreign national not to overstay, we will at the same time generate substantial revenue from foreign nationals who do stay. The savings that we make and the revenues we get could be in the tens of billions of dollars that we can put to more practical, resourceful or wise use than fanatical surveillance of other human beings.

This is not to say that we should not monitor those that have characteristics that worry us or that may reflect an inclination towards terrorism or criminality. However, I do think that when we cast the net too wide, we lose the ability to focus on what really matters. When we check everybody and anybody and when we try to trace everybody without regard to the seriousness of their presence here, we simply are wasting resources that could be better be used to track those who really mean us harm. We need to replace the mindset of wide net paradigm with a more focused, intelligent one. As to the rest of the overstaying population, which is the harmless majority, they will pay their dues whenever they need to adjust or whenever they need to return to this country after they leave. Such system would preserve our security without wasting so much of our resources.

Posted in Immigration, security, and fear, Recent Posts, Reform | Leave a comment