Americans argue, persuasively I might add, that immigrants who qualify should be able to adjust to lawful status in the United States and eventually take steps to obtain lawful permanent residence by virtue of time spent as good and valuable residents.
A counter argument advanced by President Trump calls for forced removal. The president argues that we are a nation of laws and leaving the country is the first step in making things right. He believes that rewarding law breakers by permitting them to adjust to lawful immigration status in the United States is a prescription for chaos.
These points of view have supporters as well as opponents. Thus, for me, the argument turns on where to draw the line.
Since Trump is president of all Americans, it’s important to know where Americans stand on the issue. Recent polls indicate that nearly 70 percent of Americans favor a plan to permit non-legal residents who have resided here for more than 5 years, have developed equities and set roots in America, and have become productive members of society to have a path to lawful permanent residence. Only 1 in 5 American adults (19 percent) favor any type of forced deportation. Support from a majority of Americans for a path to lawful residence for individuals without legal immigration status has been stable for more than a decade.
As the nation tries to divine a course of action that will provide the greatest national good, we need to know which federal statutes were violated by individuals here without legal status. There are normally two types of violations: improper entry and unlawful presence. Both infractions are now and have always been civil, not criminal, violations of the Immigration and Nationality Act. Subsequent deportation and associated administrative processes that flow from these violations are civil, not criminal proceedings.
The distinction between civil and criminal law turns on the difference between redress and retribution. Lawmakers must be careful not to confuse redress with revenge. Civil 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 the instant case, the INA calls for a minimum of a $50 fine for first time violations of either statute.
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, that sentiment is to satisfy the public sense that wrongdoing ought to meet with strong punishment.
In ethics and law, the phrase “Let the punishment fit the crime” is a principle that means the severity of penalty for a misdeed or wrongdoing should be reasonable and proportionate. Proportionality requires that the level of punishment be scaled relative to the severity of the offending behavior.
Yet, when trying to conjure up comprehensive immigration reform legislation, there remains a temptation on the part of some in Congress to seek retribution by treating these infractions as if they were criminal acts. They seek to create heavy penalties in exchange for a path to lawful residence. They believe offenders must pay dearly for entering or remaining in the country unlawfully. Like Shylock, in the Merchant of Venice, they are determined to extract their pound of flesh.
Deporting the roughly 11 million non-legal men, women, and children who now live in the United States, three-fifths of whom have been here for more than a decade, for a violation of civil law would be horrendously cruel, inhumane and totally out of proportion to America’s sense of justice. The destruction of lives, families, and communities would be immense, with the worst trauma inflicted upon those children who have never known any home other than the one they had in this country. This is not redress; this is the most drastic form of retribution.
If the moral and ethical arguments along, with humanitarian concerns, aren’t persuasive enough, there is the question of cost. Rounding up, detaining, obtaining deportation orders and removing 11 million individuals will require an increase in the immigration enforcement budget of hundreds of billions of dollars. Plus, removing 11 million workers and consumers from the country would inflict significant damage on the U.S. economy. It’s much like throwing the baby away with the bath water.
Soon, I expect some type of immigration reform legislation to be initiated. Nearly all Americans believe that a successful adjustment program should combine measured penalties with clear and achievable goals which will enroll the maximum number of people into a benefit program, identify the relatively few who do not belong here based on criminal activity, and integrate those who can contribute their talents as quickly as possible.
In 1987, Alan Bock wrote that our immigration problem is caused by the American Dream. “The Dream,” he wrote, “although tattered around the edges and undermined by an accretion of rules, regulations and conventions is still alive. Those of us who have had the privilege of living here all our lives may have complaints about many things, but for those who view us from afar, whether from across the oceans or from across the border, this is as close to the Promise Land as this troubled world affords.”
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’s draw the line at doing the right thing, America.
Dr. Ricardo Inzunza was appointed to serve as deputy commissioner of the former Immigration and Naturalization Service by President Reagan. During his 8-year appointment, his office was the central source for the development, implementation and oversight of all immigration service policies and practices.
