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Opinion: Complex Truths Versus Simple Thinking About the Undocumented

Being in the United States without documentation is about as “illegal” as jaywalking or shoplifting. Let’s treat it that way

potter
Credit: Amanda Brown
R. William Potter

“These aliens are here illegally. They’re breaking the law and deserve to be deported pronto.” 

Variations of this simple — and simplistic — rationale for rounding up and deporting an estimated 11 million undocumented immigrants in the United States, including some 550,000 in New Jersey, can be heard at almost any hour on 24/7 pro-Trump cable news programs.

Like most simplistic ideas, this one sweeps aside some inconvenient truths and does not stand up to minimal scrutiny. For starters, being here illegally is not a crime. 

Even Gov. Chris Christie, when he was campaigning for the Republican presidential nomination, told a church crowd that “illegal presence” (the technical term for being here without proper authorization) is a civil law violation, not a crime. That’s right, being in the United States without documentation is not even a minor misdemeanor like shoplifting, littering, or being drunk and disorderly in public.

“What?” you ask. How can something be illegal and not “criminal”?

Well, most of us have been issued the occasional parking ticket or jaywalked or gotten a speeding ticket. We broke the law. But what happened to us? As dangerous as stepping into traffic or driving too fast can be, committing such offenses means a warning, a ticket and a fine — not imprisonment or worse. After signing the ticket and driving away, we go on about our daily routines hoping our car insurance doesn’t go through the roof.

For civil law violations, we are never held in detention centers or jails until being brought before a judge who works for the attorney general's office that is prosecuting you for sentencing. We aren’t banned from state highways for life — the rough parallel to deportation for “illegal presence,” a civil law violation.

And yet Immigration and Customs Enforcement (ICE) officers (not local police) are picking up undocumented residents for this civil law violation. These undocumented people are often held for months and sometimes years. It tears their families apart. They lose their jobs and may eventually be deported to a country they barely remember. Imagine if this happened to you for jaywalking or exceeding the speed limit!

According to an NBC News report, on one day alone ICE picked up and held 32,000 detainees;18,690 of them had no criminal convictions, and more than 400 of those with no criminal record were incarcerated (detained) for at least a year.

These detainees (who are not criminals) are placed in a kind of double jeopardy. Since they did not violate a criminal code, no matter how harsh or cruel the penalty of deportation, they have no right to an attorney if they can’t afford one. It’s “only” a civil law offense — but that usually results in an order to pay a fine, not indefinite detention in jails euphemistically called “detention centers,” awaiting expulsion.

This is the core issue: Since being here without documentation — overstaying a visa or being brought here as an infant — is not a crime, why should these civil law violators, many of them our neighbors, co-workers, or co-worshipers, be deported, instead of being told to pay a fine, the typical penalty in other civil law violations?

What harm are they causing, these “illegals” who mow our lawns or shovel our sidewalks or care for our children? What could justify such harsh penalties as imprisonment and forced removal from their communities, and the nation they call home, where they have lived peaceful, productive lives?

Except for the removal of “illegals” who commit violent crimes, the Obama administration deportation priority, forced removal for the mere act of being here violates our most fundamental notions of justice, often summed up as “make the punishment fit the crime” — or in this case, the civil offense.

That brings us to the essential question of “proportionality.” This doctrine, as old as law itself, is the moral principle that the penalty for violating any law, whether categorized as civil or criminal, should be proportionate to the harm caused by the illegal act.

We apply this principle all the time. If the Department of Environmental Protection catches an otherwise law-abiding company polluting a stream by exceeding the effluent limits allowed in its DEP permit — typically a civil violation — the offender will be required to pay a “civil administrative penalty” tied to the gravity of the offense or the harm done to the environment. 

What we don’t do in such cases is close the facility and detain its officials; this deportation-equivalent penalty would cause collateral damage to innocent workers who would lose their jobs and to their families, as well as have a ripple effect throughout the local economy, with merchants closing shops, and taxing districts losing revenues.

In short, it would be disproportionate and therefore unjust.

So why do immigration officials and most courts ignore the collateral damage done to families and whole communities before ordering undocumented residents or their children deported? It’s not because they’ve committed a serious crime but solely because they were caught being here “illegally.”     

For starters, immigration laws limit what a judge can do. Mercy and temperance are in short supply in our legal system for undocumenteds. 

But if deportation were limited to those undocumented New Jerseyans causing serious harm, very few would be detained and deported. Numerous agencies and think tanks have studied the impacts of undocumented workers in this country. Most show a slight economic cost from first-generation immigrants but with clear economic benefits to some sectors, such as agriculture, and overall benefits exceeding costs from second- and third-generation immigrants.

The Pew Charitable Trusts has documented the vital importance of undocumenteds for agriculture, where they make up an estimated one-half of all farm workers. Overall, they represent 5.2 percent of the labor force, mostly in lower-wage positions, providing benefits in taxes paid in excess of the cost of government-funded services.

In New Jersey, according to a 2014 study by the Huffington Post, unregistered foreign-born individuals represent 8.6 percent of the labor force, paying all manner of taxes, even though they are ineligible for most social service benefits such as Medicaid, Medicare, and social security.

Not all studies show “net economic benefits,” however. The Congressional Budget Office’s review found a slight cost impact on wages and jobs of native-born workers with less than a high school education.

But contrary to President Donald Trump’s claim that Mexico is sending us “rapists” and other “bad hombres,” a recent New York Times report showed that of the 11 million undocumented immigrants in this country, 820,000 committed some crime (7.5 percent) – but only 300,000 were felonies or 2.7 percent, compared to 6 percent for “native born.” Having fraudulent social security cards was the most common offense.

So the next time a colleague or friend maligns the undocumented in our midst as criminals who deserve deportation, consider how you might reply:

They commit no crime by simply being here without “proper papers”; they are like jaywalkers who walked across the border; they support our labor force, especially in low-wage jobs; they are the backbone of our vast agricultural economy; and they commit far fewer crimes than native-born Americans.

What these people deserve is a welcome mat and a reasonable path to citizenship. Right now, the system makes them worse than criminals; we need a system that makes them good citizens.

R. William Potter is a partner in the Princeton-based law firm Potter and Dickson. The views expressed are his own and do not necessarily reflect the views of the firm or any client.

Clara S. Haignere, PhD, is professor emeritus of public health at Temple University.

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