America's immigration system isn't simply broken. It's immoral.
Our immigration laws are broken. Congress makes law and sets the numbers of immigrant visas issued each year. The Constitution declares “We the People”—not we who were born here, not we the citizens, not we the wealthy, not we who happen to have certain documentation—but we the people. Yet many immigrants are deprived of the protections of the Constitution. And many of the rest of us do not understand how our immigration laws work.
Coming here is not a criminal act. It is a civil violation. More than half of the undocumented population arrived with a visa. Yet we react as though all undocumented immigrants are criminals. As a nation we therefore divert resources trying to solve the wrong problem, which inflicts hardships on otherwise law-abiding people. Immigration laws have not had a comprehensive overhaul since the mid-1960s. To ask people to “wait their turn in line” would be valid if we had a functional system rather than laws that summarily exclude even those with U.S. citizen families. Contrary to popular opinion, being married to a U.S. citizen or having a child who is a U.S. citizen does not automatically allow a person to obtain legal status in the United States.
Changes in the law have been piecemeal, and most since the 1960s have had negative effects. The 1986 Immigration Reform and Control Act included employer sanctions that were not adequately enforced. Employers continued to hire and exploit immigrant workers. Changes made in 1996 created draconian punishments for immigrants. Retroactive grounds of deportability were added. Immigrants who had committed even relatively minor violations prior to obtaining permanent residence—violations that did not disqualify them at the time—became retroactively deportable. That law also eliminated the opportunity for people who had been waiting for a visa in the United States to pay a fine and obtain permanent residence when a visa became available. A mandatory return to the home country, followed by up to a ten-year bar on returning to the United States, once again changed the rules in the middle of the game. There were millions of immigrants caught in that Catch-22. Today we lump all undocumented immigrants in the same category even though they were playing by the rules at the time.
With the 1996 changes and subsequent revisions, immigration judges were stripped of discretionary authority to examine the facts surrounding an individual’s presence in the United States. Waivers and cancellations of removal became rare even in the most compelling humanitarian cases. Dispropor_tionate consequences became the rule. With no discretionary relief, good people are banned regardless of their circumstances or good moral character.
The failure of the federal government to fix our broken laws has led to Arizona SB 1070. Arizona law now makes it a crime to be present in Arizona without documentation; gives police the authority to conduct warrantless searches for immigration purposes; allows police to transport non-citizens outside the jurisdiction of the local agency; requires state and local law enforcement to investigate, detain, and arrest someone suspected of being undocumented; subjects law enforcement officers to lawsuits for failure to act; and makes it a crime to transport an undocumented immigrant and a crime to attempt to hire a day laborer. These are just the highlights. Some provisions have been temporarily enjoined until further court decisions. Many lawsuits are pending. Other states are considering similar laws. The struggle continues.
Our immigration system isn’t simply broken. It is also immoral. Families are separated for two to twenty years because of arbitrary ceilings. Is that moral? Spouses of U.S. citizens are barred for up to ten years from returning to the United States and are separated from their U.S. citizen children. Is that moral? When children brought to the United States by their parents become teenagers, they learn that they cannot obtain a driver’s license or a Social Security number, and so cannot reach their full potential. The law continues to blame the child for the mistakes of the parents. Is that moral?
Our immigration laws have disproportionate consequences for behaviors that sometimes come with adolescence, like misdemeanors, which can now result in deportation. What for U.S. citizens would be punishment and rehabilitation, for immigrants can be a life sentence in exile from the country they have called home. Is that moral? Being present in the United States without documentation is a civil offence equivalent to a ticket for loitering. We do not call a U.S. citizen who loiters or drives without a license an illegal citizen, but we deport immigrants for a similar offense. Is that moral? There are five million U.S. citizen children living in households in which at least one parent is undocumented. Now some politicians are calling for the repeal of the Fourteenth Amendment in order to deny citizenship to children born in the U.S. to undocumented parents. We need to get beyond the sound bites.
The moral implications don’t just apply to keeping immigrants out of the country, but extend to our influence on why they want to come here in the first place. NAFTA has put farmers out of business in Mexico because they cannot compete with the highly government-subsidized farmers in the United States. Mexican farmers are driven north to find work, which our broken immigration laws readily allow through lack of enforcement. Is that moral?
Most Americans know that the system is broken. Of those who support the Arizona law, 84 percent also support immigration reform leading to permanent residence and citizenship for undocumented immigrants. And 63 percent of Americans believe that there should be a way to legalize the status of undocumented immigrants. Given this information, we have an opportunity to fix the law with humane, comprehensive immigration reform.
Why should UUs be concerned and engaged? The Rev. Peter Morales, president of the Unitarian Universalist Association, said that, “As a religious people who affirm human compassion, advocate for human rights, and seek justice, we must never make the mistake of confusing a legal right with a moral right.” History is replete with this confusion.
We need immigration laws that are both legal and moral. Humane, comprehensive immigration reform has six key elements: legalization (not amnesty); employment verification (reliable and protected from abuse); enforcement (focused on genuine security risks); family (reduce the backlogs artificially created by Congress); future flow (a system to determine future employment and labor needs based on twenty-first century realities); and naturalization and citizenship (with an integration plan and English programs).
As founder of UURISE (Unitarian Universalist Refugee and Immigrant Services and Education), as a professor of immigration and nationality law, as a participant in the National Day of Non-Compliance, and as an attorney representing immigrants and resettling refugees for twenty years, I have known our broken laws up close. Going forward, the challenge is knowing the facts, calming the rhetoric, affirming our values, and then acting in love while confronting hate and immoral laws. The UUA’s 2010–2014 Congregational Study/Action Issue, “Immigration as a Moral Issue,” provides us with an opportunity to acquire the understanding required to make informed decisions and to take action.
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Daniel Stracka is an attorney who specializes in immigration and refugee law and is the founder of UURISE (Unitarian Universalist Refugee and Immigrant Services and Education, Inc.). He is a member of the Palomar Unitarian Universalist Fellowship in Vista, California.
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