Dafydd at Big Lizards ("Please enjoy the blog while you wait with breathless breath and baited hook for the rest of this fershlugginer web site.") had a reasonable enough suggestion.
Money quote(s):
"I mean that quite literally: We need to discriminate between different classes of illegal alien.
Patterico has for some time pushed -- desultorily, to be sure -- a welcome policy suggestion; he calls on the feds to "deport the criminals first."
No, he's not saying that, since all illegal aliens are by definition "criminal," we should deport them all immediately; by contrast, Patterico says that there already is a subgroup, within the larger group of illegal aliens, comprising those illegals who commit crimes apart from the crime of being here illegally (and its associated crimes of document fraud and such)... and that we should focus first on deporting those who come to this country in order to live a criminal livestyle.." (Emphasis in original text. - CAA.)
This idea has much to commend it; such as The Principle of Low-Hanging Fruit.
Which is to say that criminals, being that class of people prone to commit criminal acts, are more prone (than the merely law-abiding) to come to the attention of law enforcement, whereupon their illegal alien status can come to light and be addressed by our immigration enforcement apparatus.
(So midnight raids and the sorts of police-state actions that alarm the citizenry are unnecessary to implement this kind of program.)
"It makes a lot of sense, and it's a perfect example of discrimination: Patterico discriminates between illegals who want to try to fit into and contribute to American society, and illegals who see America as a vast piggy bank to be looted, abused, and despoiled." (Emphasis in original text. - CAA.)
This also serves as an exemplar of both The Principle of Low-Hanging Fruit and The Principle of Self-Defense, plus The Principle of Practicality. While more-or-less law-abiding (leaving aside their immigration violations) illegal immigrants aren't to be encouraged, it's just good sense to prioritize or, as Dafydd says, discriminate between the two classes of illegal aliens.
"I hereby initiate my own program that I believe complements Patterico's pontification noted above. He says, "deport the criminals first;" I say, legalize the most innocent first.
Who are the most innocent of all illegal aliens? Those who were brought here as little children, too young even to understand what a national border is or what it means to cross without permission, let alone mature enough to consent in an informed way to illegal entry. Such innocents need a name, so let us call them "unwitting aliens," UA -- they illegally entered the U.S. without their own consent or even knowledge.
(Do you want to call it amnesty? I don't mind; I don't even care. Does anybody deserve amnesty more than a person who never even committed the crime of which he stands convicted, since he was a little kid when it happened?)
There are a great many such UAs, in raw numbers; and for nearly all of them, the United States is literally the only country they have ever known. They grew up here, went to school here, made friends and enemies here; they are completely assimilated into American society; they think of themselves as Americans; they have no recollection of having lived in Mexico or Argentina or El Salvador; and likely in quite a lot of cases, they don't even speak Spanish or Portuguese. Their parents may have falsely told them all their lives that they were born in the United States; they may even have shown the UAs a false American birth certificate.
Should we really tell these kids that they don't deserve in-state tuition, even if they have lived in one American state all their conscious life, because they're criminals? Do we want these young men and women to be forever barred from living legally in the only home they remember, the only country to which they feel loyalty, unable to establish residency anywhere in that country because of something their parents did when the UAs were still infants? Do we for God's sake want to deport these very American "illegals?" Deport them to where -- a country they cannot even remember, whose citizens speak a language the unwitting aliens might not even know?" (Emphasis in original text. - CAA.)
Dafydd raises several excellent points as well as asking some (possibly) rhetorical questions along the way. I'll address them in damnall order:
1. "Who are the most innocent of all illegal aliens? Those who were brought here as little children, too young even to understand what a national border is or what it means to cross without permission, let alone mature enough to consent in an informed way to illegal entry."
Question asked and answered, with enough justification that he makes it stick. The consular officer in me wants to ask though, how old? Where are we going to draw the line, specifically, because if implemented, some person on our side is actually going to need guidance and a legal basis and authority to make a hard and permanent decision that's going to have a decisive impact on another person's entire life.
2. "Such innocents need a name, so let us call them "unwitting aliens," UA -- they illegally entered the U.S. without their own consent or even knowledge.".
The use of the term "unwitting" appeals to former counterintelligence professional who lurks just below CAA's surface, since "witting" and "unwitting" are CI terms of art having very long standing.
3. "Do you want to call it amnesty? I don't mind; I don't even care. Does anybody deserve amnesty more than a person who never even committed the crime of which he stands convicted, since he was a little kid when it happened?"
In consular work, unlawful presence by a minor (under age 18) doesn't count in terms of constituting a visa ineligibility. That is, if someone walks up to the visa interview window at a U.S. consular section and applies for a U.S. visa, none of their unlawful presence (if any) prior to their 18th birthday counts as an automatic visa ineligibility. Unlawful presence that counts begins acruing on their 18th birthday, and an automatic visa ineligibility doesn't trigger until six months of unlawful presence are achieved.
Now, the fact that someone lived in the U.S. illegally as a minor and, presumably, may have strong ties in the U.S. (and, presumably, correspondingly weak ties in their county of citizenship) are certainly factors that a consular officer has to (and will) consider in terms of evaluating that former illegal alien minor in terms of their being a likely visa overstay. And that will get them a visa refusal under INA Sec. 214b.
But it's not automatic; it's based on the interviewing (and adjudicating) officer's best judgment considering the totality of the visa applicant's circumstances. So it can go either way. CAA has encountered more than one of these situations himself and made visa decisions each way.
Frankly, CAA has tended to be favorably impressed by young persons who, upon reaching age 18 as illegal aliens in the U.S., made sure to leave the U.S. before acquiring six months of unlawful presence as an adult. They took the trouble to learn the law and, as legal adults, comply with it.
(As a general rule, consular officers are inclined to view positively those instances where someone takes the trouble to comply with our sometimes opaque or arbitrary immigration law. That sort of law-abiding behavior is to be encouraged.)
This also can cut the other way; encountering those sorts of responsible acts by former illegal aliens has made CAA much less patient and understanding when he encounters someone who didn't hie themselves out of the U.S. before reaching the age of 18 and six months, but stuck around until they themselves ran into trouble and found themselves deported.
4. "There are a great many such UAs, in raw numbers; and for nearly all of them, the United States is literally the only country they have ever known. They grew up here, went to school here, made friends and enemies here; they are completely assimilated into American society; they think of themselves as Americans"
This the part that pulls your heartstrings, assuming you still have them. And most consular officers still do.
(CAA must be excepted from those ranks since he has no personal feelings on any subject. Okay, that's a lie.)
They say that most FSOs come into the Foreign Service with a fairly (politically) liberal outlook, and that after doing their first consular assignment, particularly visa work, they're still liberals, but not when it comes to illegal immigration.
(They are always saying things.)
I don't know if that's wholly true, but I do think that nobody joins the Foreign Service because they hate foreigners, because they're xenophobic and don't like other countries. Since we're all volunteers in this profession, we're a group self-selected to be at least interested in foreign countries, and at least respectful of other cultures and peoples.
Of course, a year or so of having people lie to you, bold-faced and un-embarrassed, every single day of visa work can tend to wear on one; plus, working on the implementation side of U.S. immigration law does at least produce someone who's become educated about the issues and implications of illegal immigration.
My second point (and I do have one) is about the nature and essence of citizenship.
Citizenship is like unto love and marriage; everyone thinks they know what they are but definitions are hard to pin down and there's a broad spectrum of them.
Consular officers have to implement the laws and regulations as they're written (and not as they would have written them themselves). That means we don't have discretion about facts and rules; our only areas of discretion are in areas where we are required to exercise judgment, as in when making adjudications.
So if the 14th Amendment and the relevant portions of the Immigration and Nationality Act (INA) lay out the definitions of U.S. citizenship in lawyerly and orderly fashion, then those are the criteria we have to use. And we don't have discretion in terms of extending the privileges of citizenship (and I'm talking specifically about the right to reside within U.S. territory) to people who feel American.
That being said, I think that our Founding Fathers, the Framers, and even our congressional legislators today understand that citizenship, if it means anything at all beyond residential permission or preferences, involves a personal attachment beneath purely legalism. This goes under the heading of allegiance, which is a personal attachment or feeling that goes beyond the simply rational and enters the realm of the mystical and spiritual.
So forgive me if I don't get too upset about establishing a "path to citizenship" for persons who grew up in the same country I did and love it just like I do. Rules (and laws) aren't written to be broken, but some laws were just written to be amended.
Which brings be to this:
5. "Should we really tell these kids that they don't deserve in-state tuition, even if they have lived in one American state all their conscious life, because they're criminals? Do we want these young men and women to be forever barred from living legally in the only home they remember, the only country to which they feel loyalty, unable to establish residency anywhere in that country because of something their parents did when the UAs were still infants? Do we for God's sake want to deport these very American "illegals?""
Minor children can't be criminals because they're minors, unless a court says otherwise. This is where Dafydd goes a bit off the beam; illegal alien children don't generally get charged tuition until they're old enough (i.e., no longer children or "kids") to attend tertiary institutions such as universities or community colleges.
As I discussed in my "3." above, once illegal alien children reach age 18 they're legal adults (at least for purposes of this discussion) and thus responsible for their own actions and immigration violations.
That being said, the topic of in-state tuition for illegal aliens is muddied by the competing notions of resident status within states and that of legal (or illegal) residence in the U.S. as a whole. These are separate concepts, and under our federal system each state gets to decide not only who qualifies for "residence" within that state but who qualifies for "in-state" tuition for that state's public (i.e., state-funded) universities.
States are free to decide that persons who are unlawfully in the U.S. but physically residing in their state deserve (or don't deserve) to receive the benefit of reduced university or college tuition, presumably since they pay taxes in the state in which they physically reside. But there may be a political cost to individual politicians in those states (such as governors or legislators) who chose to take that stance.
(They knew the job was dangerous when they took it.)
"Most American family courts, in the case of divorce, will take the ages of the children into consideration when determining custody; when a child is deemed old enough to make an informed decision, he can decide whether to live with the father, the mother, or under some joint custody plan. Certainly any adult child (over the age of eighteen) can freely decide whether to live with one of his parents or move into his own place.
I call for the same sort of program for unwitting aliens as we have for the children of divorce: If a UA's parents are discovered and ordered deported, and if the UA is deemed old enough to give informed consent, he should be allowed to freely choose which country he will live in; and we should grant him permanent residency in the United States, if that's what he chooses.
That doesn't mean his parents get to stay as well; if they're subject to deportation, they're still subject to deportation. The UA can be raised by a legally resident relative, or in the extreme case, can be made a ward of the court and sent either to a foster home or adopted out. But any good parent should want the best for his child, correct?
If a UA comes to the authorities' attention by some other means -- say by applying for university and claiming, in all innocence, the in-state tuition of the local state university -- then the same applies: He is told that he is an unwitting alien and that he must choose.
In either case, once obtaining permanent residency, he is eligible to work towards citizenship, just as would be any other legal permanent resident.
(If such a law is passed, and a reasonable period of time elapses -- time for people to understand the system -- then UAs who don't apply for residency but instead take criminal steps to conceal their alien nationality should lose their UA status; they are no longer "unwitting;" they have become co-conspirators with their parents.)" (Emphasis in original text. - CAA.)
It's a thought. What do you think?.
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