The nation is currently engaged in a fractious debate over what to do about the more than 800,000 individuals, euphemistically called “Dreamers,” residing here without the benefit of immigration authorization.
President Trump argues that we are a nation of laws and says “Dreamers” are lawbreakers. He contends that leaving the country is the first step this criminal element can take to make things right. The President maintains that rewarding criminal behavior, by permitting them to adjust to a lawful immigration status here, is a prescription for chaos and a de facto rewarding of lawlessness. The President’s policy pronouncement includes supporters as well as detractors, but what course of action offers the nation the best possible outcome?
I am frequently asked if I believe the United States Government has a moral obligation to assist “Dreamers.” The question can be approached from several angles, but for me the most compelling argument is the inhumanity of deporting long term non-immigrated residents. “Dreamers” belong to America and to American society. They are just waiting for America to realize it.
Deporting “Dreamers” would strip them of membership in the only communities they have ever known. Forcing them to leave their homes and disconnecting them from family and the place where their most meaningful social and cultural connections were formed is grossly out of proportion to the harm caused by entering the country without inspection.
If these are the kinds of ties that make life meaningful and worthwhile, that help us flourish as human beings, then I believe there is a powerful moral argument to be made against immigration policies that undermine them.
Support for a path to lawful residence for children brought here through no fault of their own has been stable for more than a decade. The most recent polls indicate that nearly 85 percent of Americans favor a plan which will permit these long-term residents who have developed equities and set roots in America and have become productive members of society to have a path to lawful permanent residence. Yet, the thought of granting "Dreamers" a permanent immigration status is deeply disturbing to some Americans. I wonder why this possibility arouses such vitriol in these Americans.
Rationally speaking, we cannot deport everyone who is here without an immigration status. Trying to do so would be equal to deporting the entire populations of Alaska, North Dakota, Delaware, New Hampshire, Vermont, Idaho, Rhode Island, Washington D.C., Montana, South Dakota and Wyoming. Moreover, such an action would force millions of US citizen children into foster care and devastate the US labor force. Clearly, this option is not in the nation’s best interest.
It’s also not in the national interest to refer to persons who are here without an immigration status as criminals or the criminal element. Distinguishing between civil immigration violations and criminal violations can be confusing. Here is what you need to know about whether being in the country without authorization is a criminal offense.
Fortunately, there are only two laws we must grapple with: improper entry and unlawful presence. Both infractions are violations of civil immigration law, not criminal violations. The difference in the penalty phase between criminal and civil immigration law turns on the distinction between redress and retribution.
Civil immigration law seeks redress of wrong doing by compelling compensation or restitution from offenders. The offender is not punished but suffers as much redress as is necessary to remedy the venial wrong that has been committed. In this case, the Immigration and Nationality Act normally calls for a minimum of a $50 fine for first time violations of these civil statutes.
On the other hand, when considering violations of criminal statutes, the main objective of the law is to seek retribution by punishing the criminal in a way that will provide a strong inducement not to commit another crime; in other words, we must satisfy the public sense that punishment should be severe enough to deter future criminal behavior.
Most of the folks here without immigration authorization have never been convicted of any criminal activity and there is nothing for which the Government can charge them because the statute of limitation on these infractions has tolled. Statutes of limitations are established on certain crimes because Americans do not believe it’s morally right to make people live indefinitely with the threat of serious legal consequences hanging over their heads for long-past actions. If persons without an immigration status have not been arrested and charged within 5 years, the immigration offense becomes non-chargeable.
Therefore, when referring to non-immigrated residents, policymakers would be well advised to refine their language to properly distinguish civil immigration violations from criminal violations of federal law. Falsely labeling “Dreamers” as criminals only serves to keep Americans confused, agitated and divided on a proper course of immigration policy.
If we are prepared to let time erode the government’s power to pursue actual crimes, it makes even more sense to let time erode the government’s power to pursue immigration violations, which are not normally treated as criminal acts and should not be viewed as such. In ethics and law, the phrase "let the punishment fit the crime" is a principle that means that the penalty for a misdeed or wrongdoing should be reasonable and proportionate. In our system of justice, proportionality requires that the level of punishment be scaled relative to the severity of the offending behavior.
Nonetheless, when it comes to “Dreamers,” there remains an almost overwhelming temptation on the part of legislators to go beyond redress or retribution by seeking what can best be described as retaliation for violation of these civil immigration statutes. They seek to create heavy penalties for “Dreamers” as the price to be paid for a path to lawful residence. They believe offenders must be harshly punished for being brought here by their parents and remaining in the country without authorization.
As Americans we share a common moral commitment to limit the range of acceptable policies we can accept as remedies. The destruction of lives, families and communities created by forced removal should never be acceptable. I believe forcefully deporting “Dreamers” who have lived here their entire lives for non-chargeable violations of civil immigration law would not only insult America’s sense of justice but would be totally out of proportion to the severity of the infraction being redressed and would rival our internment of Japanese Americans in its cruelty and inhumanity.
A more enlightened remedy is available. By creating an Immigration Benefit Program that identifies a population which has been living in the nation’s shadow for decades, we will greatly enhance our national security posture. Bringing them into the sunlight will free up valuable enforcement resources for more pressing national security and law enforcement concerns. It will also significantly add to government revenues by adding millions of workers to our tax rolls. This can all be accomplished at no expense to beleaguered taxpayers.
Erosion of trust in our political institutions, coupled with an absence of acceptable remedies for public wrongdoing, is expanding the nation’s impulse to punish. We must seek a shared moral vocabulary that will unite us in our pursuit of justice with mercy for the “Dreamers.” Shakespeare reminds us in The Merchant of Venice, “We are most God-like when we are most merciful.”
Soon, immigration reform legislation will reach the President’s desk. Nearly all Americans believe that a successful adjustment program should combine measured penalties with clear and achievable goals which will set the maximum number of people on a path to lawful permanent residence. The program should identify and remove the relatively few who do not belong here based on criminal activity and integrate those who can contribute their talents as quickly as possible.
As the “Dreamer” debate grinds on, just think how much richer America would be if we could re-discover our heritage of nourishing liberty and opening our hearts to those seeking the same legacy. Let us remember that mercy bears richer fruits than strict justice.
Ricardo Inzunza, a native of San Diego, California, was posted in the Pentagon and the Departments of Energy and Justice in the Administration of President Ronald Reagan. He was appointed Deputy Commissioner of the former Immigration and Naturalization Service (INS) by President George H. W. Bush; his office was the central source for the development, implementation and oversight of all immigration service policies and practices worldwide, including the “Sanctuary Movement.” Now, as CEO of RIA International, Ltd, Ricardo is often asked to serve as a business consultant to clients such as the World Bank and the Peoples Republic of China. He can be reached at 662-268-1115 (O), 202-664-3274 (M), firstname.lastname@example.org.
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