The 11 Million Undocumented Immigrants

A Proposal, ImmigrationProposal.docx, 5/26/2019, version 2

William A. Barrett, San Jose, CA

 

We propose a way of solving the problem of the 11 million illegal immigrants now in the U.S. in a humane way, without falling into the trap of just granting amnesty for them all, or deporting them all.  Either of these extreme measures applied to every case would be considered unjust by a majority of the American public and any reasonable Congress.

As an alternative, let us consider the time spent in the U.S. without a criminal record as a mitigating factor in offering citizenship to an illegal immigrant.

In short,

We recommend that Congress set a statute of limitation of five years on the crime of entering an unregistered foreign person, or remaining on an expired visa, then offer citizenship to those who can demonstrate their residence in the U.S. as a peaceful, reasonably productive, law-abiding person during their period of residency.

 

We discuss the issues in some depth here.  We provide arguments, mostly from the point of view of the overall benefit to our nation and its citizens, but also from a sense of respect for common humanity, for enactment of this proposal.

In particular, we contend that any period of five years of "illegal" residency ("illegal" in the sole sense of unlawful entry or residency) carries with it many financial and other penalties, including a continual fear of arrest and deportation, that would be absent with citizenship.

We further contend, through evidence, that the body of illegal immigrants, numbering some 10 million or more persons, contribute positively to the overall wealth and well-being of the American public, despite their reduced status as non-citizens.

We offer the period of five years as a reasonable compromise between the time needed to identify and indict an illegal, and a time through which the illegal can prove that he can become a productive, honest citizen fully entitled to the benefits of citizenship.

We will also estimate the number of illegal residents to be somewhere between 90% and 95% of all those eleven million illegals.  In short, most of them deserve citizenship after their ordeal of five years or more as a hunted illegal, and have also demonstrated both the stamina and the determination to be a law-abiding, productive citizen of the United States.

An Easy Problem?

This should be an “easy” problem, as David Brooks pointed out in a NYTimes op-ed column (The Easy Problem, Jan 31, 2013).  Brooks claims that many of the reasons cited by those favoring deportation or restrictions on immigration are myths, and that, overall, the United States has historically benefited from a reasonable immigration policy.

Yet, the public at large clearly has conflicting views on immigrants.  If any poll question uses the word “amnesty” to justify some policy of granting citizenship to an illegal, a majority favors deportation and/or a heavy fine, perhaps even returning any culprit to the native country and put at the end of the line of legal applicants. 

On the other hand, those who know some immigrants as neighbors or friends, or have studied the issues in some depth, feel they are a great asset to the country, are decent people, and should be allowed to remain somehow, even if as an illegal alien resident. 

There’s also plenty of evidence that middle-class Americans rather like hiring a gardener, nannie, odd-job laborer or housekeeper cheaply, on a cash basis, with no questions of citizenship asked.  And those workers are very likely illegals. 

See http://usatoday30.usatoday.com/news/nation/2006-04-10-immigration-divide_x.htm

for a 2006 review of various polls.

Illegal Residency as a Victimless Crime

We consider an illegal residency in the absence of any other real crime as the crime that we all agree it is, but then ask how serious is that crime, and what should be an appropriate penalty for committing it?

 

First of all, this is a victimless crime, one that has some impact in general on a community or the state as a whole, but one in which it is impossible to point to any particular victim.  One can only measure its impact in a statistical way, by estimating the impact of large numbers of immigrants on American citizens. 

That negative statistic impact may be felt in several different ways. 

·         Competition for living space - mostly low-end rental apartments,

·         Cost of public schooling for immigrant children,

·         Cost of emergency health service,

·         Cost of policing from crimes committed by immigrants or their children,

·         Long-term hidden cost of citizen children raised under near-poverty conditions,

·         Environmental costs of the larger population, and concern about the larger family size of immigrants,

·         Rising cases of false arrest of legal Latinos, especially in states like Arizona and Alabama with strict policing guidelines,

·         More cases of identity theft, through the use of false social security cards and/or driver’s licenses by illegals.

Please note that in any particular situation, none or only a few of these may apply and be felt negatively by a particular community.  In short, these are mostly victimless, i.e. felt through a larger need for community services, but not otherwise felt by particular victims.

The David Brooks article cited above suggests that many of these costs are low, certainly lower than claimed by many myths in circulation.  Also note that most of these would not be considered a special cost, if the "culprits" were citizens and not immigrants.  Finally, many of these are paid for through taxes, and even an illegal immigrant will generally be required to pay various taxes to cover these costs.

There’s also a positive benefit from immigration, both legal and illegal, that is usually omitted from articles critical of illegal immigration, as follows:

·         Low cost labor services, e.g. nannies, home cleaning, yard and garden service, low-end construction, farm labor, etc., many of which mostly benefit upper-class Americans,

·         Social security payments made to fictitious accounts (false SS cards), which redound to the social security system’s trust fund,

·         Income tax payments through companies hiring immigrants,

·         Measurably lower costs in certain industries (farming, food processing, construction) from hiring cheaper immigrant labor,

·         A certain segment of legal immigrants are highly skilled technical workers, who have historically brought more patents, inventions and growing industries to the U.S.  How many of these routinely ignore the time limits on their visas, or easily get their employers to extend them?  That favoritism rarely applies to garden crews or farm workers.

 

In general, many studies have shown that, overall, there is a positive benefit to society from immigration, legal and illegal. 

A dramatic demonstration of this benefit - rather, the loss of it - came in 2012, when the state of Alabama passed HB 56 and 658.  These bills made it almost impossible for Alabama’s farmers to hire undocumented farm workers for temporary field work.  Latino laborers, who were skilled in harvesting various crops, fled the state.  The farmers then discovered they could not hire enough native labor for a harvest, even when offered a premium over the minimum wage.  As a result, many farmers lost an entire crop, and the state as a whole lost millions of dollars in income.

Cost to the Illegal Immigrant

Let’s look at the situation from the point of view of  the illegal immigrant.  I list these not to ask that we “feel sorry” for the immigrant, but to make a point regarding their crime and what amounts to a build-in criminal sentence imposed by their vulnerability to being deported:

·         Unable to work at any but in certain hard labor, low wage jobs, e.g. gardening, house work, low-level construction work, hourly line worker in a food processing plant, usually at minimum wage or less;

·         Unable to establish a bank account, get bank credit, set up an independent business, obtain a contractor’s license, or obtain a driver’s license;

·         Unable to borrow money at reasonable rates through a bank.  Often forced to turn to a paycheck lending house with interest rates of 400% or more, since no questions asked;

·         Forced to rent space, rather than purchase a home, often at exorbitant rates for mediocre quarters;

·         Living in continual fear of deportation through an ICE raid or inspection;

·         Subject to exploitation (sexual, being underpaid, or forced to work unpaid hours) with no legal recourse or union protection;

·         Unlikely to appeal to any law-enforcement agency about working conditions or being underpaid;

·         Unable to belong to an established union that might protect one’s rights, hours and wages;

·         Unable to legally drive a car, bus or truck in most states, and one’s car subject to impounding if stopped by a police officer for any reason;

·         Unable to vote, become involved in U.S. politics, or appeal to one’s political representative, also usually cut off from one’s native politics;

·         Deportation to one’s native country after several years in the U.S. means returning to an unwelcome situation.  After ten years in the U.S., one likely has no family connections or friends, and no easy way to establish oneself;

·         The very act of successfully crossing the border is fraught with personal danger, often with a considerable dollar fee paid to an agent, and with a high risk of being cheated or abandoned by the agent.

 

Most of these stem from a fear of being “discovered” by the ICE, resulting in deportation.  The illegal is not likely to file an income tax return out of fear of its being used by the ICE, yet taxes may be deducted and sent to the IRS in any case.  Opening a bank account, applying for a driver’s license, registering to vote, even applying for a library card, all involve some exchange of personal information with the “government”, thereby risking exposure and deportation. 

Crime in an immigrant community is likely not to be reported or corroborated from a fear of some innocent member of the community being deported.

The only reasons for an immigrant to illegally cross the border are to reunite with a family in the states, or to engage in crime (e.g. drug trade), or to find some legal, safe employment and a safe life impossible in the native country.  These were clearly powerful enough motivations to accept the long-term disadvantages of living as an undocumented immigrant.  The illegal person will often have relatives or trusted friends in the U.S., and that helps smooth the transition to a fugitive life in the U.S.

Real criminal activity deserves an indictment, a court trial, imprisonment or deportation. 

However, most of the 11 million illegals now resident are law-abiding, and came here because conditions in the home country were worse. 

So let’s focus on that crime, and the otherwise law-abiding immigrants, whom we’ll call border llegals.

Time Served for the Crime of Illegal Entry

There are two ways of looking at a border illegal stay of, say, five years, free of criminal activity:

·         One way of viewing this crime is that the U.S. has provided more economic benefit and safety to the immigrant than could have been obtained in the native country.  That’s why the immigrant chose to move to the U.S. in the first place.  In other words, there’s a positive benefit to the illegal of living in the U.S. compared to life “back home”.  One could reasonably claim that positive difference should be repaid to the U.S. through a fine.

·         The other way of viewing this crime is by comparing the illegal’s life condition with what might have been the condition if the illegal had full citizenship rights from the outset.  In other words, there’s a negative benefit to the illegal caused by the illegal status.  For example, an illegal trained as a nurse in, say, Peru, cannot be a well-paid nurse in the U.S. without risking deportation, and over time that difference is appreciable. 

I claim that both the negative and the positive differences should be considered and used to mitigate or forgive this victimless crime.  I cannot point to studies designed to place a dollar value on these costs, but both have to be considerable.

Most political speech focuses on the positive benefits to the immigrant and the negative costs to society.  But in considering an illegal entry as a crime, any court must consider time already served in prison, i.e. the negative side of life as an illegal immigrant.

Life as an illegal could be viewed as a kind of prison life, as I’ve pointed out above.  It’s lacking in what we citizens regard as our protections and rights.  And - worse than prison - for the illegal, there are no paid meals, no free place to live, and no paid health service.  A single illegal might actually prefer a prison sentence in an American prison - it would be a boring life, but at least he or she would get something to eat and reside in a protected place.

 

So, I claim that the penalty paid by a border illegal should be considered as time served on a sentence of guilty of the crime of illegally entering the country.

 

The fact that immigration is a positive benefit to the nation as a whole suggests that eliminating some of these negative benefits should also benefit the nation as a whole.

A Statute of Limitation on Illegality?

Some conservatives consider an illegal entry as a crime that can never be repaid over time except through deportation.  Just saying that “a crime is a crime and deserves punishment” gets us nowhere as a nation under just laws, especially when this crime has been committed by over ten million law-abiding people, living as a subclass with no citizenship rights, often over a decade or more.

Most crimes have a statute of limitation attached to them.  These set a fixed limit between the time of the crime and a future time of conviction.  In short, if the police and a court cannot convict a criminal of some crime, then the criminal is exonerated.  Exceptions include many non-violent bodily crimes, theft and murder.  Low-level theft has a statute of limitations.  Even child molesting has a statute of limitations in most states.

 

So let there be a statute of limitation on illegal border-crossing.  Five years is a reasonable limit.  Thus anyone guilty of illegal immigration -- overstaying one’s visa, or just crossing the border -- five or more years ago, with no other significant criminal record, should be “released from prison”, that is, offered full citizenship.

A Proportional Penalty?

Between 0 and 5 years, I suggest that the penalty for violating this crime should be roughly proportional to (5-N), where N is the number of whole years spent in the U.S., free of other crime or dependence on welfare.  Thus, if the ICE catches an immigrant working in a chicken plant, who cannot prove  residency for more than a year or two, the penalty might as well be  imposing a large fine, asking someone to sponsor the person, or -- failing those remedies -- deportation.  A longer residency should be weighted toward a smaller fine and a smoother path to citizenship.

Dream Act children would pretty much be treated as long-term residents (N > 5), and given an immediate path to citizenship.  They would have to have at least five years residency.

Notice that this is not a blanket amnesty, nor an enticement for further illegal border crossings.  It will not benefit those with a short residency, but only those with established long-term residency.  Those in line for legal immigration should not feel foolish for following the law.

The five-year statute limitation is a suggestion -- it may be too small.  The public seems divided over how to deal with the illegal immigrant.  If “amnesty” is mentioned in a poll question, the response is negative.  Yet a majority seems to accept the idea of a “decent” illegal (crime-free, apparently a good citizen) remaining in the country, provided “amnesty” is not mentioned.  (See http://usatoday30.usatoday.com/news/nation/2006-04-10-immigration-divide_x.htm for a 2006 review).

How to Assess and Collect a Fine

How would a large fine be paid by an illegal?  Demanding cash immediately is certainly unreasonable, especially given that most illegals will have no credit, and are unlikely to carry large amounts of cash under their mattress.  Also, a large cash hoard suggests the illegal has been in the drug business, and should be investigated for that while kept in prison.  Indeed, your typical law-abiding illegal will have been working at a low-level job, and likely surviving from one paycheck to the next, with little or no savings.

So what should be done if the illegal is unable to come up with the cash for a fine?  Immediate deportation?  I suggest that those most able to pay a cash fine, if caught, would be those involved in some form of criminal activity, most likely drug-running.  Are these really the illegals that should be given a path to citizenship?  I think not.

Instead, I suggest finding a way for lending agencies to float a long-term loan to pay a fine, something like a student loan.  If, by floating the loan and paying the fine, the illegal is suddenly granted full citizenship rights, he/she should be capable of finding more productive work.  It’s rather like graduating from college -- while in college, one’s income prospects are low, but graduation means a considerably higher income prospect.

So, if a fine must be levied, let the illegal work out a loan to cover it through some private lending agency or bank.  The lender will want to do a background check, and also be assured that the borrower will be granted sufficient citizenship rights to qualify for any job, and not be further threatened with deportation.

This is a way of recognizing that the immigrant’s presence in the U.S. is not negative overall, and may well be positive.  Yet the illegal has committed the crime of crossing the border, and some compensation to the nation is due.  A bond would also distinguish an illegal from a legal immigrant, who would not be required to post a bond.  It needs to be sizeable, sufficient to cover a major medical emergency, theft or other social cost, including the cost of deportation, should that be necessary.  The bond fee paid to the bonding agency would also be significant, for example 10% per year for a bond of $100,000 would seem reasonable.

The bond’s face value should decline to zero, proportional to (5-N), which of course should also reduce both the fee paid for the bond and the exposure to the bonding agency.  Its initial face value should be proportional to (5-N), where N is the residency years of the immigrant.  The immigrant would be expected to pay the bond’s fee, set by the private bonding company, and failure to do so would forfeit the bond, exposing the immigrant to a risk of deportation.  The risk might be small or large, depending on how the bonding agency assesses the risk of having to make good on the bond.

And why not?  Most bail bond agencies would jump at the chance to offer a long term bond for an illegal that would make it possible for him/her to remain in the country.   In exchange for the bond, the illegal suddenly becomes “legal” and can seek legal employment from a larger pool of potential employers.  The illegal could also open a small business, obtain bank credit, sue an employer for lost wages, etc.  In most cases, that larger income would more than cover the bond fees.

The bail bond agency would have to figure out how to investigate potential clients, and how to competitively charge a fee for the bond.  Private bond agencies would be competing for the business and would rather quickly develop means of assessing the risk of bond default, setting the bond rates competitively.

Summary

·         Consider the crime of illegal border-crossing as one in which the criminal has already served time (proportional to 5-N), living for N years under sub-citizenship conditions, though not in a formal prison.

·         Set a statute of limitations on the crime of illegal border-crossing, say five years.

·         Make the penalty for illegal crossing proportional to (5-N), where N is the number of years of proven residency without a serious criminal record.

·         Consider accepting something like a bail bond, which might be offered by an employer, a friend, or a private lending agency, as a way of meeting a court-designated fine for illegal entry or visa overstay.