NYT: Immigration Policy Indecent
Thu Mar 15, 2007 at 02:12:01 PM PDT
In an editorial in today's edition of the New York Times,entitled Immigration Miserythe grey lady describes our current immigration policy as being "indecent."
The focus of the editorial is clearly on recent headline grabbing enforcement activities like family detention and workplace raids. It describes the unintended consequences on families, not only families of immigrants (e.g., those children forced to be jailed with their parents and children who lose their parents when they are picked up at work) but also on U.S. citizens who are denied access to health care because they lack the documentation needed as a result of requirements intended to keep illegal immigrants from seeking health care.
But more so than enforcement related activities, our overall immigration policy is indecent because of the impact it has on Americans. Come with me over the flip for examples.
Our current immigration laws are a hodgepodge of lawsthat have been accumulated over the past half-century by tacking on whatever amendments were politically popular at the time. Today, building a fence seems popular so we have an authorization to build one, even though not enough money has been made available to actualy do it.
Because it's dry and tortuous, I have placed a basic Immigration 101 outline at the end. You may read it if you wish, or not. It is there to illustrate that our immigration policy is extremely complex and mind-bogglingly discouraging to US families and US employer who seek to follow the law. Indeed, one of my favorite extracts from a court opinion is:
Immigration laws bear a "striking resemblance ...to King Minos's labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress's ingenuity in passing statutes certain to accelerate the aging process of judges
This is from a 1977 case known as Lok vs. Immigration and Naturalization Service and was penned by Judge Learned Hand, one of our greatly esteemed judges. If this is how he felt about immigration law decades ago, I wonder how he would feel about it today after changes made since he made this observation.
The point that I am trying to make is that our immigration policy is broken. Not only is it broken, it has become indecent. Regardless of your personal stance on border control, workplace enforcement, guest workers, or legalization, OUR.IMMIGRATION.POLICY.MUST.BE.FIXED. Until it is US families and US employers and the people that they wish to sponsor will have no way to engage in legal conduct. Implicit in being a nation of laws is the corrollary that our laws will at a minimum work for us.
I urge you to make up your own minds on what you want our policy to be and let your legilators know what you would like to see. More importantly, let your legislators know that the time has come to fix what is broken.
ITS.THE DECENT.THING.TO.DO.
<large>Immigration 101 (Optional)</large>
The basic scheme of our immigration laws is actually very simple:
Everyone who is not a United States citizen or national is an "alien."
All aliens are presumed to be immigrants unless they can prove that they are nonimmigrants who only intend to come into the U.S. temporarily. Immigrants are classified based upon sponsorship by qualified family members or employers (a 2-step process involving approval by the USCIS first and a final verification by a consulate which issues a visa) or because the person is a refugee (determined abroad at a US embassy) or an asylee (determined here in the US after a previous entry - lawful or otherwise). Nonimmigrants are classified based upon submitting proof of meeting the qualification for the category sought (e.g., visitor, student, media, investor, temporary worker, etc.). The nonimmigrant may in some cases have to have a prior USCIS approval before applying for a visa at the consulate.
All aliens may be denied entry to the U.S. (excluded) if they are found inadmissible (e.g., criminal history, ideology, health risks, and at risk of becoming public charges. Similarly, all aliens may be removed (deported) if they engage in certain prohibited conduct.
Actually entering the U.S. is a multi-step process. First, the alien must be properly classified not only as an immigrant or nonimmigrant, but also into a specific sub-category. Then the appropriate visa must be issued. A visa is a document that allows an alien to board a vessel or cross a border. A visa does not confer any status whatsoever. The alien must present the visa at the border and submit to an inspection by the border officer to verify that the alien is entitled to the classification sought. If the alien is admitted, then the border officer confers the appropriate status on the alien and gives the alien the correct documentation demonstrating what status was confered.
At several of the steps, not only must a determination on the fact and law occur, but also, the deciding officer has considerable discretion to deny or approve the result requested. So what happens if the officer makes a mistake of fact, or a mistake of law, or abuses his or her discretion?
Historically, every time a restrictive clause has been added to the immigration laws, aliens seeking classification or entry have been denied based upon mistakes. Initially, people wrongfully denied were able to obtain court review. Invariably, the government would lose. To address this, laws were passed giving even more discretion to the administration. The idea is that if the denial is based upon discretion, judicial review is limited solely to whether the discretion was exercised, and if the exercise was abusive. The courts of course, while deferring to this discretion, would, in terrible cases, come up with limits. Modernly, the laws now attempt to eliminate judicial review as much as possible.
The institutional complexity of our basic laws:
Our immigrant laws are based upon a quota system. So classification is important as each classification has its own quota.
For family members, there are 5 basic categories. But it is not that simple. Everything is based upon either being a spouse or a child. Spouse is fairly straight forward, but "child" is a two page definition. And the definition changes just by operation of time when someone turns 21.
For employment-based immigrants, again there are 5 basic categories, with various subcategories.
As an example of how unresponsive these laws are to actual sponsor, married sons and daughter of US citizens are in line waiting to come in. For Mexico, clearly the country with the largest number of US citizen sponsors, the first 5000 or so applicants whose petitions were filed on or before June 8 1994 may finally get a visa after October 1st this year. It would be very interesting to know how many of the 12 million people here now unlawfully are from this group. Incidentally, there is a current law that will allow this group to become lawful just by applying when they reach the head of the line. Of course, if they are caught before then, they can be removed, and if removed, will face a 10 year bar against coming back.
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