Incentives to be Here Illegally

Immigration has definitely been a hot issue ever since Arizona passed SB 1030. However, we need a basic understanding of the law before we can engage in a civil and informed debate, regarless of which side you are on.

First of all, we need to understand who illegal immigrants are. There are three kinds of illegal immigrants: 1) foreigners who enter the U.S. without proper inspection by our custom and immigration officers; 2) foreigners who entered into the U.S. legally but have failed to leave the country after their authorized period of stay expires and 3) those who does not comply with their condition of stay in the U.S., such as students working off campus without authorization.

Second, we need to understand what it means to violate a law and the consequences of different violation. Obviously, there are different kinds of law. Laws that are enacted by the government to protect the society as a whole are generally criminal law. On the other hand, laws that are enated to protect a specific group of citizens and customers are generally civil laws, such as contract. Of course this is a pretty basic generalization and sometimes the two interwine with each other. When someone violates a criminal law, such as committing a murder, the government, i.e., district attorney, will file the charges against the suspect. If the government prevails, the defendant would usually serve time behind the bars. In contrast, violation of civil law does not impose jail time usually. Instead, the offending party would have to compensate the victim in monetary terms.

Third, our legal system has long been a balancing act between mercy and justice. A violation of the law does not automatically put the offending party into jail or impose a fine. Instead, the offending party can raise some so-called affirmative defenses to justify their violation. A classic example would be to kill someone when the defendant himself is in jeopardy of losing his own life if he did not kill.

Our immigration law is a very unique set of law. We punish those who violate our immigration law by expelling the violators from our country. No jail time or fine is imposed for violating our immigration law. In addition, we have allowed affirmative defenses and afford those who are in our country due process to present their case and why they should not be deported in most situations.

I think these are some of the facts we need to understand before we engage in a debate of what we should do with our immigration system. Some people say illegals are illegals and they should be deported. Saying so is simply to saying criminals are criminals and they should be jailed without trial. However, our system does not work this way. In fact, it is the Constitution, which we support and are proud of, that says we cannot put people in jail and expel them out of this country without due process.

Moreover, as much as I hate to admit that, but I think our immigration system provides far too many incentives for people to disobey it. Take a married couple for example. I doubt how many of us would ask our date whether he/she has legal papers. Moreover, if you marry a legal permanent resident/green card holder, you are subject to immigrant visa quota and have to wait for a few years to gain residency in the U.S. Because of the wait, you may have to make a hard choice when your current visa or authorized period of stay expires: do you go home and leave your spouse behind or do you break the law but stay with your family? Why can't our law treat spouses and minor children of permanent residents the same as US citizens, namely giving them residency right away without imposing a quota system? Can you see why our immigration ststem helps create illegals?

Our immigration system does not punish employers who hire illegal aliens hard enough. This is simply a supply and demand calculation. The benefits and costs saved for hiring illegal workers simply outweigh the penalties of breaking the law. Although companies who hire illegals can be subject to criminal liabilities, the burden of proof is often so high that prosecutors simply cannot meet. Again, our system encourages people to break the law.

People often complain that our federal government fails to enforce our immigration law. But how is the federal government going to enforce the law when they do not have funds to hire agents and border patrols that could safeguard our coastline or our land border? Are we willing to pay more taxes and expand our government in the area of immigration?

I think we need to enforce our law, but I also think we need to enact laws that will not encourage people to disobey it. Also, I am not sure how much our country is willing to sacrifice to provide the resources that our immigration authority needs to enforce the law.

Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquires, please contact my office for an appointment.