I read an article in the Bender’s Immigration Bulletin (Vol. 13 p. 513, May 1, 2008) that moved me so much that I want to summarize it in this Blog.

The following is a portion of a letter from a child to his deported father:

Dear Dad, I miss you and I hope to see you soon. Today was my award ceremony and I wish you could have been there. I received 5 awards and a special prize of $35.00 on a gift certificate for a perfect score on my science test which you helped me with. I am also letting mom take the awards with her for you to see them. I was very happy that mom was at the ceremony but upset you couldn’t come. Anyway, I miss you very much and hope to see you soon because I have a lot planned for the summer and something special for your birthday. I miss our walks and little talks that we used to have and I am looking forward to doing more of that.

            This child’s father was born in Guyana and came to the U.S. as a Lawful Permanent Resident in 1993 at the age of 32. He married a U.S. citizen and had a U.S. born son. After working initially a number of minimum wage jobs, he attended a technical school in New York and became a skilled heating and air conditioning technician. He was a religious man and a talented musician who regularly performed at Hindu services. He also paid taxes.

            However, his American Dreams came to an abrupt end in 2002 after taking a brief trip to Guyana to visit his ailing mother. Upon his return, he was detained by the immigration authorities because of a five-year-old conviction for possession of $5.00 worth of cocaine for which he had been fined $250.00. The immigration judge that ordered the deportation expressed regret that he had to do so, as he was constrained by the current immigration law, which gave him no discretion. According to our laws, his productive life in the U.S. did not matter, his U.S. citizen wife did not matter, his U.S. citizen son did not matter, his work history, his religious activities, and the numerous letters of support did not matter. He was deported in April 2004 after spending two years in immigration detention, for an offense that he had committed many years earlier and for which a U.S. citizen may not even spend one day in jail.

            Those are the consequences of our unforgiving immigration laws, compounded by the Draconian requirement of mandatory detentions causing pain to family members for a criminal offense to which our criminal justice system might not even impose a single day of jail. This person’s child is not alone. According to a recent study, there are millions of U.S. children who are at risk of losing their parents because of either distant criminal activity that comes to light at some point to the immigration service, or their parents lack of proper immigration papers.

            In the above case, the person affected was a Lawful Permanent Resident (a Green Card holder). His wife and children will now have to face the choice of uprooting themselves from the United States and joining their dad in a country where they have never been, a language they never speak, and culture they never knew, or to be separated for decades to come. All of this for an offense whose criminal law consequence was a penalty of $250.00.

In our today’s society, there is little debate about what is happening to a family such as this one. There is a lot of bragging about our family values and moral values, there is a lot of rhetoric about national security and rule of law, but very little talk about the destruction that is befalling millions of American citizens because of an immigration law where family values apparently hardly mean anything.

            Congress decided in 1996 to label non-citizens who commit certain offenses “aggravated felons”. The offenses they commit are called “aggravated felonies”. Such perpetrators are barred from the United States practically for life, with little possibility of relief. It does not matter if they are married to U.S. citizens, or if they have children who are born and raised here. The law simply devastates such families, forcing them to be either separated or uprooted and moved elsewhere.

            The average citizen may very well agree with Congress that those who commit heinous crimes should be uprooted from the United States. And, should their families suffer, that is the responsibility of the wrongdoer, and not of Congress. This may be a feasible conclusion, until one realizes that many of those “aggravated felonies” are either misdemeanors, which are offense that are considered light under our legal system, or felonies with otherwise light sentences.

            In effect, Congress had chosen to label such offenses “aggravated felonies”, even though the offense itself under state or federal law sometimes is not even a felony, but a misdemeanor. Hence, a U.S. citizen who commits such offense might not even get a day in jail, whereas the same offense committed by a non-citizen will destroy the non-citizen and his family’s lives.

            Why did Congress choose to use such drastic labeling, portraying such aliens in a most negative light? Mislabeling those wrongdoers as “aggravated felonies” might convince the public that those individuals are getting what they deserve. Few politicians will have the courage to speak out in defense of individuals whom our laws label as “aggravated felons”. Therefore, the labeling had shut down debate and have discouraged subsequent lawmakers from correcting this inequity.

            One can only guess as to why Congress used the terminology it did. In the last decade or so, it has become fashionable for some policy makers to blame non-citizens for much of society’s failures. Immigrants are by definition a very weak group who cannot vote, and cannot defend themselves effectively in our political system. Stereotyping and scapegoat tactics are traditional tools used, throughout history, by some unscrupulous politicians to blame certain sectors of population for all of society’s problems. Apparently, the policy works. Many lawmakers are openly proud of their tough policies with regards to non-citizens, even if the toughness is nothing short of unnecessary brutality.

            Examples of offenses that had been labeled as “aggravated felonies,” but might not be as aggravating under state or criminal federal law include: sale of marijuana, even if it is viewed as a misdemeanor under state law, unauthorized use of vehicle, theft of services, violation of selected services laws, traveling to areas restricted because of national emergency, protective order violations, damaging property, forging of certain documents, burglary of a non-residential structure or vehicle, certain unauthorized trespassing, telephone facilitation offenses, use of a communication device to sell controlled substances, using the telephone or mail to threaten individuals, assaults or offenses where there was an intent to harm, assaults in the second and third degree, stalking, driving under the influence, attempted possession of stolen property, possession of stolen mail, theft involving fraud,  commercial bribery, forgery, bribery of a witness, any attempt or conspiracy to commit any of the above offenses, certain firearm violations, violations of domestic violence injunctions, etc.

            I am not saying that people who commit the above listed offenses have done no wrong. On the contrary, they deserve to be punished, and they should spend whatever time in jail the criminal justice system imposes. However, when considered for deportation, it would make sense that consideration be given in unusual cases, especially when there are kids, a spouse, or other substantive ties to the U.S., etc. But, currently, a U.S. citizen convicted of those crimes might spend little time in jail, if at all, whereas a comparable non-citizen, in addition to the criminal punishment, is often banished from the U.S. without any consideration as to his family, kids, spouse, and other ties to the U.S. And that appears to be inconsistent with many of the civilized values we are often proud of.

            The desire of society to be safe from criminals makes this a very difficult subject to debate, or matter to rectify. Nonetheless, those who have been labeled as “aggravated felons” are after all human beings. Whatever law we apply to them should be guided by our knowledge that many U.S. citizens, who have committed similar mistakes, have paid their debt to society and thereafter, with time, became upstanding citizens. To banish someone from the U.S. forever for an offense that a U.S. citizen would hardly spend any time in jail for, and thereby destroy his ties to his family, appears to be an overreaction by a legislature that has little consideration for issues of compassion, family values, and giving second chances.

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.  

 Many who oppose the H-1B visa category for high-skilled professionals argue that we should focus instead on our own students, improving math and science, and avoid having foreigners compete with the U.S. work force.

However, I believe that even as we make our math and science programs the best in the world, and even as our own work force should be our first focus, the H-1B program is still worth keeping and expanding.  Under the H-1B visas, U.S. employers usually employ young foreign professionals who mostly are in the upper percentile of their home country ability-wise. It is simply not cost effective to bring a mediocre professional here with costs running in the thousands in legal and government filing fees, and in relocation expenses. Because of that, the program is cost effective only when employers bring the brightest, or hire foreign graduates of our schools who are usually the top from their own country.While there may be some abuse, and some H-1bs might be here for their cheap labor and not for their talent, the remedy is to punish the abusers, and not to destroy a good program.   

Therefore, even if America’s study standards improve and even if we spend more effort at training our professionals (which we should),  the question remains whether we, as a nation, should continue to welcome the best and the brightest of mostly young professionals of the world to work and live among us. I think that the answer should be yes.

Those high-skilled professionals, even if a few of them may compete with American for jobs, are at the same time adding to the consumer base since they have to live and spend money here. Many of them will end up being inventors, enhancers and creators of businesses who would, in turn, employ numerous Americans. E-bay, Yahoo, Cisco, Google, and numerous other high tech companies are all examples of extremely successful businesses started by immigrants or their descendants that ultimately created far more jobs for Americans than the ones supposedly initially taken by them.  

In addition, if we don’t allow this type of talent to enter the U.S., these individuals will go elsewhere and we will lose the tax base they would otherwise provide. Many US companies are starting overseas offices to avoid the hassle of the H-1B visa. Such outsourcing has a negative effect on the United States in comparison to bringing the workers here and making him part of our consumer and tax payment base.  

Considering that we accept almost a million of family based immigrants and many more undocumented aliens every year without labor competition analysis, we need to reassess the many obstacles placed to the much fewer numbers (and much more talented) H-1bs. Those young bright H-1b professionals, and their children in the future, will enrich us, be good for us and for our future generations as well as for our own work force and its competitiveness in the global economy.                                

As I was preparing for my law school lecture in immigration law, I came across the definition of torture under the international Convention Against Torture “CAT”, to which the U.S. is a party. 

You may wonder why torture issues are included in an immigration law course. Well; CAT prohibits the signatory countries from deporting aliens to a place where they will be tortured. Hence, one needs to know the meaning of torture to determine if a country is practicing it.  

Under CAT, torture includes governmental acts where severe physical or mental pain or suffering is intentionally inflicted on a person for an improper purpose, such as for confessions, intimidation, or coercion. However, torture does not include acts arising out of lawful sanctions. 

Since I had heard a lot of talk about Guantanamo, I decided to compare the definition to what is happening there. I do not doubt our government’s assurances that we are treating the prisoners physically well: feeding them plenty, allowing them time for prayer, sports, and contact with family through mail, etc. It is possible that they are treated in Guantanamo better than they would be in their own country. Therefore, I assume they may not be suffering physically. 

However, pain as defined under torture includes not only physical pain, but severe mental pain as well. We know that, after more than 5 years of confinement, most of them have not been charged with any crime yet, nor do they know if they will ever be charged, or whether they will spend the rest of their life confined, without the ability to defend themselves. Confinement over five years on a deserted island, not knowing if one is ever going to be charged with a crime against which he can raise a defense, may qualify as mental pain or suffering. 

But, that may still not be enough to constitute torture. For under the definition, torture does not include pain or suffering arising from lawful sanction. Therefore, if the detention at Guantanamo is lawful, then an indefinite detention without charge would not constitute torture. But, I do think that it is hard to argue that indefinite detention without charge for over 5 years can be lawful, under basic human rights concepts.    

It could very well be that many, and perhaps all, of those who are in Guantanamo deserve to be locked up for life for their heinous participation in the activities of Al-Qaeda. However, for us to know that, we need convictions under constitutionally sanctioned proceedings. But, unfortunately, and after many years of detention, our government is unable to bring charges, let alone convictions. I am not convinced that trials will endanger our security, for trials can be had with secret evidence, or with the judge reviewing evidence in private, and can also conducted before military tribunals with national security issues protected. But, until there are convictions, it appears to me that what is happening in Guantanamo may be approaching torture, at least under the definition of the CAT Convention.   

My concern is not in essence for the prisoners in Guantanamo, although I sometimes wonder if any of them is a victim of mistaken identity (my suspicion is enforced by the many that were quietly released without explanation as to why they were detained or released). My real concern is about our own moral standing in the world. I happen to think that our Founding Fathers would have agreed with me; at least Thomas Payne with those immortal words: He, who would seek liberty, must first defend his enemies from oppression, lest he sets a precedent that will reach himself. 

 Several months ago, I met a bright, young lady who had just completed high school but was unable to go to college or to work because of her illegal status. She was so talented that a potential employer was willing to sponsor her if there was any avenue available for her to become legal. 

This girl was brought by her undocumented parents to the United States when she was an infant. She has since been in the U.S. for her entire life. She knows no country but the U.S., where her friends, family and familiar surroundings are present. Yet, under today’s law, she can neither go to college, nor work legally. Worse, she is in constant fear of being detected by the immigration service and deported to a country that she has never known, and where she would have to live among people who are total strangers to her.   

It is incredible that we allow a group of potentially talented young individuals, who are ready and willing to learn and to contribute to our society, to be paralyzed in knowledge and productivity, when in all likelihood they will continue to reside in this country since they know of no other.  

Luckily, many decent Senators and members of Congress have introduced legislation (called the "Dream Act") that would allow students such as the lady I met to adjust their status within six years if they had entered the U.S. before the age of 16, have been here for over 5 years, have not got into trouble with the law, and either earn a degree from a U.S. institution of higher education, or serve honorably in the armed forces. Nothing in this act is a handout, as the students will need to pay tuition, just like any other student. This legislation has been introduced before in 2005 and again in 2006 but failed to become law. Senator Richard Durbin (D-IL) is expected to offer it again soon.  

Anyone reading this blog who believes in the wisdom of this legislation ought to call their Senator and request support for this bill. It will be a great disappointment if it fails to pass again. Our nation is known for its generosity to other nations. Its time to show generosity to some young students among us who are victims of their parents’ actions and who are caught up between the choices of continuing a life without hope, or be exiled to a place they have never known. 

 "BUT, THEY VIOLATED OUR LAWS!" is a common, sometimes angry, response of many who oppose any legalization of illegal aliens who entered or stayed in our country in violation of our immigration laws. While I do not know for sure, it is an answer that perhaps makes many people feel good about themselves; that they are being righteous about upholding our laws. Perhaps responding this way makes them feel that they are good citizens, and consequently, feel a need to demand that others do the same. Although it is a legitimate answer of course, I, on the other hand, despite being an attorney who has studied and respects the law, intuitively, and for reasons that I have not always analyzed, never felt that way. I will attempt to articulate my position and defend it. 

Yes, those who enter illegally commit a misdemeanor under Federal Law, punishable by up to 180 days in jail, a $250 fine or both. However, in our civilized criminal justice system, we normally do not, and should not, attach perpetual consequences to violations of law; instead, he who violates the law is usually assessed a penalty and then allowed to continue his life. For example, those who are caught speeding must pay a fine; they are not prohibited from driving forever. Even those who rob a bank may open a bank account after their release; for after they serve time, society does not prohibit them from ever again entering a bank. Contrary to this reasoning, those who enter our country or stay illegally seem to elicit from our righteous society a need for perpetual consequences for that transgression. Thus, despite the fact that some of those illegals may work productively in the U.S. for decades, may have a U.S. citizen spouse and children, may pay taxes and otherwise be responsible members of society, under today’s law, they will never be able to be legalized, despite the passage of decades and despite beneficial conduct. This appears to be somewhat harsh. 

Those opposing immigration reform have convinced the public that any reform smacks of amnesty. But amnesty in most dictionaries is defined as "an exemption from punishment; a pardon granted to an individual, a pardon that obliterates all legal remembrance of the offense." Therefore, attaching adequate penalties to legalization should remove it from the ambit of amnesty, and makes it analogous to other legal violations for which the offender pays the prescribed debt to society and moves on. Reform is not amnesty. 

Another concern is that reform rewards undocumented aliens for their illegal act. This is based on a presumption that reform means citizenship. But those who desire to become permanent residents and ultimately citizens can, and should, be required to qualify, just like anyone else, and must stand at the end of the line.  The road to permanent resident status involves a process that sometimes takes decades. As long as there is fairness and preference for those who played by the rules, prior violations of immigration law should not permanently handicap someone from achieving a legal status. 

Our immigration laws already waive prior violations in certain cases. For example, those who enter legally but overstay, are usually allowed to legalize their status if they have an immediate U.S. citizen relative, such as a spouse. Others who entered illegally, but had a petition pending before April 2001 are also allowed to become legal. Therefore, Congress already grants relief to some who violated our laws, depending on their date of application or their level of familial relations to U.S. citizens. Consequently, there is no moral absolute, as some may claim, to the issue of granting relief to those who have violated our immigration laws in the past. It is a matter of degree, and these same sometimes-forgiving laws can be expanded to cover other compelling humanitarian situations, without violating the sacred principle of our society’s respect for the law, as some may claim.  

About 30% of those residing illegally in the U.S. are visa overstays. Before 1997, the laws were more liberal, allowing those who overstayed, or entered illegally, to be legalized in ways that are no longer available. Therefore, our nation includes many citizens who, either they or their ancestors, came in ways no different than those currently utilized by those whom we call “illegals”. Had today’s unforgiving laws always existed, many of us would not be here today.  

There are many compelling reasons why someone may risk his life, leave his country and family behind and come to America illegally. Such a person might be fleeing persecution, famine, or other bad conditions; or they may need to better provide for their children. They may not have thought of their actions as a violation of U.S. law as much as an escape to find a better future for their families. Such individuals never had the chance to comply with U.S. law; for if they did, they would not be here today.  

What is also important to consider is that a violation of immigration law is not necessarily indicative of a criminal personality. Illegal aliens range from someone seeking a better future for his children to a gang member here to traffic drugs. Therefore, the illegal status alone tells us nothing about that person’s morals, nor about his future actions or possible contribution to our society should he become legal. Surely, not all illegals are good people, but, with over 12 million of them here, and similar to our society at large, one cannot predict, when dealing with such large group, each individual member’s potential for criminal behavior. 

The violation of entering and staying illegally should also be viewed in context of the economic environment. Illegal aliens do not force themselves on the millions of U.S. employers that hire them. Those employers represent and serve a huge percentage of our population. Our nation has provided, through our corporate and business needs, the incentive for those illegals to come and work here. This is an economic issue whereby those illegals have subsidized, and not in a small way, our life style. Our society shares the responsibility, in part, for the difficult situation that exists today, so we cannot fairly place the full blame for its existence only on the illegal aliens.           

Finally, many of those who are here illegally were brought to this country with their parents when they were infants, toddlers, or minors. They know no other country but the U.S. and it is a shame that there is no relief for them under our current law. What results in many of these situations is the potential deportation of an illegal alien at young age by to a country that, for all intents and purposes, is foreign to them. Many of those who finish high school find that the world of higher education or work advancement is shut for them. This appears to be unjustly harsh for persons who never committed any violation themselves. 

This article is not meant to promote or glorify violation of U.S. immigration laws. Ideally, everyone should obey the law. But, the world is not perfect. We all make mistakes and difficult conditions present human beings with difficult choices. As Americans, it is part of our value system to look at problems from various perspectives, including humanitarian ones, and not just legal ones. It is inhumane to lump tens of millions of illegal residents together and to deny them, forever, the right to sleep peacefully at night without the fear of immigration raids and deportation. That is an extremely harsh punishment for a human being, even if they happen to have had the misfortune of violating our immigration laws sometime in their past.  

Newt Gingrich published an article with the American Enterprise institute, also posted on National Review online on August 16^th, asking the President to call Congress from recess for an emergency session to pass a “simple and straight-forward” bill to protect Americans from criminal illegal aliens. He also introduced his plan during the Iowa campaign. Under his plan, anyone arrested for a felony will be checked against a federal database, that has the “speed of an ATM machine.” Unless the check affirms that the accused is legally in the United States, he will be presumed to be illegal and detained.

Mr. Gingrich’s goal is to protect Americans from what he calls “preventable” killings. The triggering incident for his plan was the tragedy in Newark where an illegal immigrant, recently indicted for repeatedly raping a five-year-old relative, threatening the lives of her family, and assaulting patrons at a bar, participated in the execution-style shooting of three students.

When a former Speaker of the House and a potential candidate for the Presidency repeatedly urges the President to call Congress from recess to enact an emergency law, and when the elite AEI (with whom Mr. Gingrich is a senior fellow scholar), publishes that opinion, one should analyze it seriously. It is the intent of this article to review the advantages and disadvantages of Mr. Gingrich’s proposal.

To start with, no database can detect undocumented aliens, since they are not in the system. Accordingly, one has to establish a database for all those who are here legally so that a “no-hit” would reflect illegal presence in this country. Therefore, such a database must begin by recording all U.S. citizens and legal permanent residents. That means approximately 300 million individuals must first be entered into the proposed database.

The next relevant fact is that there are many people legally present in the United States who do not fit the above two categories. The US accepts hundreds of millions of visitors annually through its airports, ports and land entry points. These individuals must also be added to the database immediately for the system to instantly reflect all individuals lawfully present in the U.S. In addition, those who leave pursuant to the terms of their visas should be removed from the database so that the database will identify those who overstay illegally. Registering all those millions may cause huge delay lines at points of departure. The effect may be particularly hard to America’s trade with Canada, since Canadians, who currently do not require visas to travel to the U.S., would no longer be able to enter and leave with ease.

In addition, there are numerous individuals who, while not in current legal status, have prerequisites to become legal in the future. Those include, for example, asylum applicants who have to wait for years to get green cards. Also included are those who marry U.S. citizens, and those who have immediate US relatives and have resided in this country for a long period of time. Many of those individuals require a court hearing to determine their legality. Mr. Gingrich’s program will have to register them currently as legal so they do not appear in the system as illegals.

The database will also have to be updated to allow for those who die (taken out of the system), those who are born (inserted into the system), those who change their names as a result of marriage, and many others whose names may have to be added or deleted from the system for whatever reason.

Therefore, the program appears to literally require billions of dollars and an army of new government employees constantly updating the database with millions of new and revised data entries on a daily basis. This daunting and costly prospect is difficult to envision at this time.

Now, lets look at the advantages of the program. Mr. Gingrich wants the database to detect the undocumented from those accused of felonies, so they can be detained. In order to better assess any advantages of the program, let’s compare Mr. Gingrich’s proposal with what we have now.

Under the current system, our courts notify the Immigration Service of any non-citizen who is convicted of a serious felony. The Immigration Service then places a hold on the criminal while he is serving jail time. Upon completion of his sentence, the convict is not released, but rather is turned over to the Immigration Service, which can puts the alien under detention until deportation. Therefore, Mr. Gingrich’s proposal will only make a difference in cases where the accused is an illegal alien who is released prior to conviction. The reason being that if convicted, the current consequences are the same as they would be under Mr. Gingrich’s program.

However, under our current systems, those accused of felonies should not be released, whether legal or illegal, but must instead be detained unless the judge sets appropriate bond. The bond should be high enough to ensure that the accused will not flee. If that does not happen, the matter becomes a failure of the criminal justice, not the immigration system.