A couple of years ago, a California Highway Patrol officer stopped me for speeding. I was issued a ticket where it clearly stated a violation of the specific provision of the motor vehicle code. It was also in that ticket where I was instructed to attend a hearing before a traffic court. The clerk of court, where I reported said that I was eligible to attend a traffic school to clear my record of the speeding violation.
In compliance, I attended traffic school. Rushing from work, I was careful not to be caught again for speeding. So I arrived late for traffic class. The instructress stared at me as I was entering the room and yelled out loud, “here comes another criminal! Take your seat.”. I was surprised by her remarks. Sure, I violated the vehicle code. But does that make me a criminal? From the instructress’ perspective, I was a criminal and so be it.
This is the same backlash I received from readers who commented negatively on my May 16, 2010 column. One of the readers said “it is a crime to be illegal in America just as in every other country in the world”. A few more readers emphasized that “any person who is in the US illegally has broken some law, therefore they are criminals”. Just like my traffic school instructress, if you believe they are criminals; then from your perspective, they are.
From a practitioner’s standpoint, we all know that undocumented immigrants violate immigration laws and they are responsible for the consequences of their acts. Sometimes, however, the actions that led to their violations are involuntary and are the result of circumstances beyond their control. I have, for example, served countless clients who were victims of domestic violence perpetrated by their abusive US citizen spouses. Many of these victims find themselves in unlawful status after running away and refusing to take any more abuse from their US citizen spouses. There are also countless situations of workers who become victims to unscrupulous employers who refuse to extend their visas in order to force their employees to continue working for them (at virtual slave terms and wages) by threatening to report these employees if they do not comply with the employers’ demands.
In applying for a green card, an applicant is asked to respond to a question in the immigration application form whether or not they have committed a crime. There is a distinction between committing a crime (which means the violation of a penal law) and violation of an immigration law (which is also a violation law but is not a crime). In both cases, they are violations of the law. Being a convicted criminal may disqualify one from getting a greencard. However, being an illegal alien does not, of itself, disqualify one from getting a greencard. Hence, even under US immigration law, there is a clear distinction between being merely an illegal alien as opposed to being a “criminal”.
In any case, an illegal alien breaks the law and must suffer its consequences. This is what I have always emphasized to immigrant clients and their families. That the reality is that while immigration laws may be harsh, it is still the law and must be followed.
Approaches to Fix the Law
Passing a comprehensive immigration law is one of three options for fixing the broken immigration system. In one of her school visits this week in Silver Spring, Maryland, First Lady Michelle Obama responded to a second grader who asked if her mom is going to be deported. She expressed her fear in a soft voice, “my Mom…says that Barack Obama is taking everybody away that doesn’t have papers.” The First Lady’s simple response was that it is up to the US Congress to fix the broken system, referring to a comprehensive immigration reform.
The second approach was utilized by the past Bush administration, which is the heightened border security and stronger immigration enforcement. With this approach, the Bush administration allocated a $2.7 billion budget to enhance enforcement of immigration law. This resulted in an increase in worksite immigration raids, denial of driver’s licenses and engaging more employers in the e-verify program. This program mandates employers to check newly hired employees against the Department of Homeland Security databases to determine whether they are authorized to work in the US. This is basically intended to make life difficult for the undocumented so that they are left with no choice but to leave or “self deport.” However, instead of compelling undocumented to “self deport”, the E-verify was not effective in detecting fraud and sent inaccurate information on both US citizens and undocumented aliens. Aside from costing billions of dollars to implement, the desired result of reducing undocumented aliens was not achieved.
The third approach, which I previously mentioned in my May 16, 2010 column, is the mass deportation of the 12 million undocumented aliens. Aside from being too costly, there is a potential for serious impact on US businesses which will loose millions of workers, who are also at the same time consumers of goods and services in the US.
Reason to Advocate
President Obama, in his recent press conference during the State visit of Mexican President Calderon, reiterated that US immigration law is broken and needs a fix. The increase in undocumented immigrants through all these years is a result of an outdated system. There is a very small pathway to legalization that will allow those who are already in the US to become legal residents.
Laws should evolve to conform to the realities of the times. Advocacy for change does not necessarily mean advocating for violation of current laws just because they are bad laws. What we advocate for is a change. We advocate for change because we believe that US immigration law can be better. Laws need to change to confirm to the current realities. If laws had not changed with the times, maybe, women would still not be able to vote today. Without advocates for change maybe segregation would still be the law today and we may never even have a black US President in our lifetime. If there were no advocates and no changes in the law for the better, US society will not be where it is today..
Immigration reform is currently a very contentious issue in the US. Opinions vary between the conservatives and the liberals. Until, the majority of the policy makers are convinced of the need for change, the number of undocumented aliens will continue to rise.
(Tancinco may be reached at law@tancinco.com or at (02)887 7177)
