While I try to keep politics out of the posts to this blawg, I couldn’t help myself to write this after an experience I had yesterday as well as considering the news I’ve read concerning the law recently passed in Arizona that has caused a “firestorm” and heated debates between proponents on the right and opponents on the left.

If you ask me, the discourse going on in the national media outlets is very low brow, only appeals to the least common denominator, and seemingly is only aimed at energizing the fringe elements on both sides of the political spectrum.  On the conservative side, there is almost a fervor that we need to essentially militarize our border with Mexico and if the Federal Government won’t then the onus is on the State.  On the liberal side, the sentiment is that the Arizona law is an extreme and racist measure (don’t they mean xenophobic?).  What’s clear is that the right and the left are just talking past one another and in the process obfuscating the issues.  The net result is that the national debate suffers and whatever law winds up being enacted federally is likely going to just be a band aid solution appeasing only the fringe and not really solving anything.

So, yesterday I represented a client before the USCIS (A Division of the Dept. of Homeland Security) that was taking the oral portion of her English language citizenship exam, which my client had been studying for over the past approximately 3 months and the client had failed the exam the previous time she had been examined.. I had also produced various evidence showing that she was who she said she was (employment, birth certificate, immigration visa, passport from foreign country, etc.) and also showing that she met the criteria for lawful residence and citizenship in the U.S..  After the hearing before the USCIS administrator they made a determination that my client had passed the exam (there were some words my client really struggled with and they were pretty basic, but they still approved of her verbal skills, the client was nervous and that no doubt effected the responses) and the documentary evidence we submitted was deemed acceptable…. The long and short of it was that by passing this exam, which is one of the final stages of the process, it meant that my client will become a citizen of the United States of America…  When the USCIS officer said that she passed, my client knew exactly what the officer had said and exclaimed with a heavy accent “I passed!” covered her mouth and her eyes were wide open… We walked out of the examination room and there was a somewhat awkward expression of gratitude, but  I knew the exact sentiment that the client was trying to express and just shook the client’s hand and said “congratulations.”

I left the USCIS office and headed back to my office thinking about this event, I put on NPR where there was a discussion going on about the Arizona law making being in America without a visa or other immigration papers a state criminal offense.  While from the news reports I’ve seen and my limited knowledge of the contents of the law my initial instinct (aka my lawyer spidey sense) was that this law is unconstitutional on its face because it seemed to violate the Supremacy Clause of the United States Constitution and because it may be overly vague so as to leave it up to a police officers subjective opinion as to what an “illegal alien” looks like and therefore give probable cause to make an arrest if that person did not possess requisite documentation (i.e. Visa or Green Card).  Next, since the U.S. Constitution makes it the responsibility of the Federal Government, to handle foreign affairs and not the individual State’s (i.e. Montana can’t declare it’s own border policy with Canada, because that may have the same effect as implementing a foreign affairs policy, Federal law preempts, supersedes, or  or is supreme to that of the State on such issues).  There are arguments to be made that it is constitutional, but my gut tells me that on balance the AZ law won’t pass constitutional muster when it is scrutinized by appellate courts and even the Supreme Court.

Now back to my client, who followed all of the steps to become a citizen and now is getting ready for a Naturalization Ceremony… What I saw immediately following the exam and hearing was something easy to identify, it was a sense of pride, acceptance, belonging, and joy.  I can’t imagine that the people who have unlawfully entered the U.S. via a coyote (smuggler) or some other arduous and dehumanizing means ever develop those same convictions for this country…  I can imagine that they are just struggling to survive here after such an ordeal. I may be just speculating, but I think that people who come here and go through the process and ceremony to become citizens (while sometimes discouraged and angry about the bureaucratic nature and expense of it all) ultimately are more committed to the collective betterment of the United States.  So, I don’t have too much sympathy for the people who are not coming to the United States lawfully, but I understand that they are doing so out of a basic desire to survive.

The fact of the matter is that immigration policy can never be entirely fair for everyone, but the policy should aspire towards fairness and illegal entry into the U.S. should be a matter of concern to every citizen.

Another  point worth mentioning is that illegal workers are hired for all kinds of jobs (but primarily for menial labor) and in most cases the government doesn’t receive any tax revenue from them, they are often hired below minimum wage, not to mention it limits the number of people we can bring into this country through the legal process because there is less work for them for every person that is not in the U.S. lawfully… The people who hire illegal workers, which indirectly is just about everyone (I’d like to see the percentage of how many NYC restaurant delivery personnel are here on lawful visas or our citizens) are basically complicit or accessories to these violations of law, yet the people who do the hiring largely go unpunished and the practice of using illegal immigrant labor continues unabated.

So, in conclusion of this fairly long winded post, the character of the debate going on needs to be elevated, lawful immigration into the U.S. should be something that potential citizens will covet and be proud of, so immigration outside of those channels needs to be discouraged and if possible prevented.  Prevention however is not just incumbent on the government, it’s incumbent on everyone who hires illegal workers, and as I mentioned above, we’re all somewhat (albeit indirectly in the vast majority of instances) guilty of this.  There is not going to be an overnight fix to the system, but adequate attention needs to be given to the fact that illegal labor makes up a substantial segment of our economy and measures to discourage this should be created, implemented, and enforced.

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