Sunday, March 12, 2017

The Shame of our Immigration Policy

Romulo Avelica-Gonzalez of Highland Park, California is 48 years of age. He entered the United States illegally as a young man, more than 20 years ago. He has married here. He has four children who were born here.  He worked at a Mexican Restaurant. Ten years ago he had a drunk driving conviction, but he has had no other brushes with the law.

Romulo Avelica-Gonzalez has paid taxes in this country for 20 years. He is an upstanding family man.  He has paid into social security and unemployment insurance, but because he lacks proper documentation he will never see a dime of it. Although most undocumented workers cannot collect Social Security payments, they paid about $12 Billion into the system in 2010. It's a vulnerable population and we are effectively stealing from them. 

On February 28, 2017 Avelica-Gonzalez was driving his 13-year old daughter to school. Immigration and Customs Enforcement officers pulled him over a block from the school and arrested him. His daughter and wife recorded the arrest on the daughter's phone.  

Is anyone proud of what our country is doing here? Join the Marines, they are "Looking for a few good men." "The proud. The few. The Marines." So goes the slogan. What's our slogan for ICE?  "Join ICE: We are bullies who make little girls cry!" I hear they're hiring. Tell me, are you proud?

Read further examples at VOX. 

As I read and hear these stories, and there are more every day, I wonder: what's the charge, what's the reason for such bullying and arbitrary, cruel deportations. What gives ICE, what gives us, the right to uproot and destroy these families?

Weak Rationales for Sealing the Border

As a nation state, we think, we have the right and authority to control who enters our sovereign space. We have the right to keep anyone we want out. We do, but this has its limits. As president Trump is finding out, the constitution prohibits the government from excluding people solely based on religion or national origin. We have violated these principles in the past, of course. Consider the Chinese Exclusion Act, for example. Nevertheless, we don't have open borders. We feel we have the right to control which non-citizens may enter the country and for how long.

Some say they want to keep out individuals who mean to do us harm. And so we should. It's noteworthy, however, that this rationale does not apply to migrant workers. Available evidence points to the fact that migrant workers, the undocumented and unauthorized as well as the documented and authorized, commit fewer crimes than the native population. Immigrant communities are safer. More of them work.

Some say they want to keep out individuals who would take the jobs that would otherwise go to native workers. Immigrant labor can steal jobs from native workers, and they can depress wages, but the evidence is not so clear. A lot of undocumented immigrant labor in the U.S. today fills jobs that native workers don't want to do--primarily farm labor, but also some jobs in construction. All those white, non-college educated, and underemployed whites who voted for Trump last November--in part because of his promise to "Build a Wall" to block migrant workers--are not flocking to fill seasonal farming jobs; they are not flocking to fill restaurant jobs busing and washing dishes; they are not flocking to apply for jobs cleaning hotel and motel rooms; they are not flocking to line up for cleaning jobs in houses and office towers. The chorus of "concern" about undocumented migrant workers, therefore, is not a political issue because they actually deprive citizens of work in significant numbers, it's a political issue because populist politicians have cynically exploited xenophobic and nationalist undercurrents for the past 30 years.

Politicians all promise economic growth. Jeb! Bush promised us 4% growth. Trump promises that and more. But the truth is economic growth is driven by two factors: 1) population growth, and 2) productivity growth. Our productivity growth has slowed to  around one percent per annum, and our population growth has similarly decreased to less than one percent per annum. Together these factors impose a speed limit on our potential economic growth.  If we want to maintain economic growth we need those migrant workers. This migrant population is younger; they are of working age. In order to support our elderly non-working population, we need them to continue to pay that $12 billion into social security every year.

In order to regulate who comes into the country we establish border controls. Those controls can vary in strictness over time.  But in general terms, hermetically sealing our southern border makes about as much sense as trying to live in Biosphere 2.

What About the Legal Basis?

When I was 21 I made an illegal border crossing at Blaine Washington. I was about to go travel for a year and was looking to stash my Honda 350c motorcycle at my parents' house in Vancouver, B.C. I had been attending the University of Washington on a student Visa and my motorcycle had Washington plates. All my papers were Canadian. I vaguely suspected that the story "I am dropping off my Washington State registered motorcycle at my parents's house for a year while I go traveling" would draw scrutiny. I wanted to avoid the hassle.

"What citizenship are you?" asked the Canadian border officer. "American," I lied.

The officer was suspicious. He didn't trust my response. I had long hair at the time; it fell down to my shoulders, below the rim of my helmet. "Go in and report to immigration, on the left," he directed me.  With concern I pulled up on the left, and slowly, deliberately, folded my rain gear, lifted the bike seat and clipped my helmet. I took a few tentative steps towards the door marked "Immigration Office," when I noticed a bathroom directly in front of me.  I entered the bathroom; I waited a few minutes.  I determinedly exited the bathroom, put on my gear and drove down the highway. I did not relax until I reached the George Massey Tunnel and safely crossed under the Fraser River.

Doing this maneuver in reverse, Canada to the U.S., is a misdemeanor punishable by a $250 fine and up to six months in jail. Like for all misdemeanors, there is a statute of limitations. In the U.S. the statute of limitations for border jumping is generally five years. I don't know what the statute of limitations is in Canada, but I venture I'm safely out of the woods on this illegal border crossing.

In the U.S. if a forged Visa, passport, or other immigration document is used in crossing the border, the statute of limitations is extended to 10 years.  For certain possessory crimes, being in possession of a forged Visa or passport, or other document necessary for admission to the country, the statute of limitations does not begin to run until you are no longer in possession of the document.  It's possible this includes a forged Social Security card used for employment.  See U.S. v. Kristic, 558 F.3d 1010, 1017-18 (9th Cir. 2009).

Romulo Avelica-Gonzalez committed no crime remaining in the country after having crossed illegally. To call undocumented workers "illegal" aliens is a misnomer. It's a term of political populism. Undocumented immigrants commit no crime by virtue of their presence in the country.  Nevertheless, they are unauthorized to be here and this subjects them to civil deportation proceedings at any time. ICE has the law on its side. Undocumented workers are at their mercy. But the law is cruel; the law's an ass.

The 11 million undocumented workers living in the U.S. live under the constant threat of being deported in summary civil proceedings, and (with exceptions) there's nothing they can do about it despite the fact that sixty percent of these people have been law abiding workers for more than a decade.

What Should we Do?

We should reform the law. 

To round up parents driving their kids to work is inhumane. To collect income taxes and social security taxes from migrant workers for years and then summarily deport them at the barrel of a gun, and confiscate their Social Security payments, is inhumane. To round up long standing workers who contribute to society, separate them from their families, and deport them, is inhumane. We shouldn't do these things. 

We should have reasonable border controls and security. We should focus on keeping out people who are truly a threat. Trump's targeting of religious groups and nationalities has no relation to enhancing our safety. We should not do that. 

We should bring our laws in line with reality. We have a sizable migrant work force in this country. This work force must be regularized. At a minimum, we must stop stealing their Social Security and  unemployment insurance premiums. 

We should recognize a statute of limitations for unauthorized entry. If someone has been in this country a decade, married, borne children, worked and paid taxes, then we should provide them a path to normalization, to some type of "authorized" status. It does not have to be citizenship. But we should stop deporting such people. 

We should continue to have border controls. We should continue to deport "not authorized" persons who are caught committing crimes. We should exclude petty crimes.

But above all, we should stop behaving like shameful bullies.

Follow me on Twitter @RolandNikles

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