Part of my practice is devoted to immigration law. I represent a vulnerable population, many without status, many of whom are considered “Dreamers.” So I have a perspective on the issue that is different from the rhetoric being played out for partisan points.
First, to understand the conflict it is necessary to understand the evolution. During the Reagan administration an immigration law was passed giving amnesty to past immigrants present in the United States with the promise of future enforcement. That did not occur. Instead, what has happened is over the past 30 years, more than one generation has made its way across porous borders, mostly the southern border, and settled in the United States, raising children in limbo. The Obama administration named this generation “Dreamers.”
Under immigration law, anyone who arrives in the United States illegally cannot, except in rare circumstances—and with limited exceptions—ever get legal status living here as a resident or a citizen. “Dreamers” are people who arrived in the country as children, their parents crossed the borders with them, but since they were not American citizens when arriving, but had no say in the matter of entering the United States illegally, they are in limbo. In the majority of cases, the United States is the only land they really know, and the only culture they know. English is their first language. They were educated in our schools, and it would be cruel to send them “back” to the land of their birth, which is not really their own. Everyone knows this: both Democrats and Republicans. But for political reasons, Republicans, mostly, are holding Dreamers hostage because, and with valid cause, they do not want to repeat the same thing that occurred under Reagan. Amnesty in exchange for a promise—just to have the same problem occur 30 years from now. And that, too, is a valid point. Part of being a country is being able to have defensible borders—to know, and to be able to control, who is coming into the country—and there is a whole separate dynamic that has made that much more difficult over the past third of a century.
American immigration enforcement has been based upon a policy of “catch and release.” That is, when immigrants enter the United States and are stopped by officers they are detained and traditionally given a desk appearance ticket to appear in an immigration court. More than 90 percent never show up—and that is the last time most will ever be heard of unless they run afoul of the law. That is because many major cities in the United States, and several states, have become what are called “sanctuaries.” Sanctuary policy has a sound basis: we do not want immigrants to avoid medical care, which could spread disease; die in the street from hunger; or avoid law enforcement, which could spread crime—out of fear that exposure of their status could lead to deportation. So we have developed a general policy of “don’t ask, don’t tell.” But the unintended consequence of sanctuary is that, together with “catch and release,” an immigrant without status moves to a sanctuary state like New York or California, and they remain. While they will have an outstanding warrant for failing to appear in court, unless they ever get in trouble with the law (which is rare because most immigrants understandably lay low) they will never be heard from again. They marry, they have children who become American citizens, and they live their lives.
That they have children creates a whole other set of circumstances: most illegal immigrants in America are not, although conventional wisdom might say otherwise, from Mexico. Most are from three Central American countries with weak governments: El Salvador, Honduras and Guatemala. The problem is that the nations are so weak, that law enforcement is basically run by gangs.
Most of the people who leave those countries are poor economic immigrants. They are not escaping for their lives, which generally under current American law does not qualify them for asylum. But that is part of the problem. They pass through Mexico, and Mexico has no interest in stopping them; because they come from nations poorer than Mexico, the Mexicans do not want them there. If they are caught at the border, they are generally turned back—to Mexico. Which generally means that they wait and camp out in Mexico for a day or two, until they try to cross the border again.
Once in the United States, assuming they make their way past immigration checks, they blend into immigrant communities and make lives. These are our restaurant staff, our landscapers, our harvesters, our non-union construction workers and a host of other menial jobs. Still, by doing so, they make much more money than they would have had they stayed in their home countries—and that is where the problem comes in.
Most immigrants coming into America are young—late teens or 20s. They have no real family ties and are not thinking of consequences. But once here they make lives, and money—albeit still without status. However, if they have children, their children are citizens.
Inevitably, they get a traffic ticket, or otherwise fall under immigration enforcement’s radar, and become subject to deportation. It is at that point that many, for the first time, seek asylum. It creates a real dilemma: If they are deported they will need to make the choice of taking their “Dreamer” or even American children to a land they do not know, or essentially make them orphans. Additionally, since these lands are controlled by gangs, most notably the MS-13 but others as well, they place themselves and their children at risk for their lives.
Local gangs in Central America see those who moved to America as “wealthy.” Comparatively, they are. That makes them vulnerable for extortion and their children for kidnapping and ransom. When they leave, the Central Americans are not necessarily in danger, but upon returning they most certainly are. Their children even more so. It is as if one were to take a domesticated animal and send it off into the wild.
As Americans, the children of illegal immigrants are entitled to the protection of their nation of citizenship.
The bottom line is that there are genuine and competing interests beyond the political struggle. America, like any nation, has an interest—if not a duty—in controlling its borders and knowing who is passing through. That being said, all residents living here, with status or without, have a right to decency and humane treatment. As long as immigration policy is seen through a partisan lens, nothing is going to change. But right now it seems that the courts and enforcement apparatus is in limbo. Deportations are rare, but there is no real mechanism or guidelines. Everyone is waiting for Congress to act—and the hour is getting late.
By Stephen Loeb
Stephen R. Loeb heads the Law Office of Stephen R. Loeb, a civil practice in New Jersey and New York. He can be reached at [email protected].
