Say it Ain't So, Sheriff Joe

Years ago a college classmate of mine from New York visited a mutual friend of ours who owns a ranch in southern Arizona.  Enchanted by the beauty of the place, Mark went for a walk by himself.  Finding himself in a peaceful valley, he laid down on his back and closed his eyes so that he could listen to the sounds of nature.  He may have dozed.  In time he became aware that there was someone standing over him. When he opened his eyes he faced a gun cocked and pointed at this head.  It was a border officer, who took Mark (who had no identification) into custody.  There they grilled him about whether he was a drug dealer or a smuggler.   Mark is a light-skinned African American with Native American blood.  He is also an extremely well-spoken lawyer who was able to talk himself out of his predicament.  Many other brown-skinned Americans in Arizona aren't so lucky:

• A 5 months pregnant woman living in Arizona pulled into her driveway after being followed by the police. She exited the car and the officer ordered her to sit on its hood. When she refused he pulled both of her arms behind her back and slammed her, stomach first, into the vehicle three times. Then he dragged her into the patrol car and pushed her into the back seat, where he made her wait for a half hour without air conditioning. He ultimately ticketed her for failing to provide identification, a charge which was later changed to failure to provide proof of insurance and was resolved when she brought it to the local court.
• Two officers followed a woman for a quarter of a mile to her home. The officers told the woman to remain in her car. When she attempted to leave the car to enter her home, the officers used force to take her to the ground, kneed her in the back, and handcuffed her. The woman was then taken into custody, cited for “disorderly conduct,” and eventually returned home. The disorderly conduct citation was subsequently dismissed.
• Officers stopped a car carrying four  men, although the car was not violating any traffic laws. The officers ordered the men out of the car, zip-tied them, and made them sit on the curb for an hour before releasing all of them after determining that they had legal status. The only reason given for the stop was that the men’s car was driving "a little low,” which is not a criminal or traffic violation.
• Officers entered a house adjacent to one they were raiding and searched it, without a warrant and without consent. Although they found no evidence of criminal activity, after the search was over, the officers zip-tied the residents, a man and his 12-year-old son. They required them to sit on the sidewalk for more than an hour along with approximately 10 other people  who had been seized from the target house, before being released.

What do all of the above people have in common?  They are Latinos.  They are Americans or permanent residents, lawfully present in the U.S.  And, according to a 32 page complaint filed by the Department of Justice this week, they are victims of racial profiling and discrimination by Sheriff Joe Arpaio of Maricopa County, Arizona.

Maricopa County, which includes Phoenix, is the 4th largest county in the U.S.  It covers  more than 9,200 square miles and according to the 2010 census, is 59 percent White and getting less so. In fact, the Hispanic population in the county nearly doubled during the decade between the 2000 census and the 2010 census.
The Maricopa County Sheriff's Office (MCSO) employs approximately 900 sworn deputies and 1,800 sworn detention officers  It also relies on the services of approximately 3,000 volunteer posse members.

Following years of investigation into the discriminatory practices of the MCSO, the Justice Department did something according to the Assistant Attorney General that it has done only once before in its 18-year history of  police reform work.  It  filed a contested lawsuit to stop discriminatory and unconstitutional law enforcement practices.  The complaint sets out three categories of unlawful conduct: (1) a pattern or practice of discriminatory and otherwise unconstitutional law enforcement actions against Latinos in Maricopa County; (2) discriminatory jail practices against Latino prisoners with limited English language skills; and (3) a pattern or practice of retaliatory actions against perceived critics of MCSO activities. These activities violate the Fourth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

According to the complaint, the Justice Department investigation found numerous examples of discriminatory conduct by MCSO,  including that Latino drivers in the Phoenix area are nearly nine times more likely to be stopped by MCSO officers than non-Latino drivers engaged in similar conduct. In addition to engaging in discrimination in determining whom to stop,  officers have been illegally detaining Latino passengers to determine immigration status. Once officers stop drivers whose passengers appear to be Latino, they will typically question the passengers regarding their immigration status and ask for identification.  When asked about an American Latina who was taken into custody for four hours to determine whether she was lawfully in the United States, Arpaio was quoted as saying: “That’s just normal police work. You sometimes take people in for probable cause for questioning and they’re released.”

The complaint also reports that in making immigration enforcement its primary focus, the MCSO has failed (among other things) to adequately respond to reports of sexual violence, including allegations of rape, sexual assault, and sexual abuse of girls.  This has exposed women and girls, who constitute the majority of victims of crimes of sexual violence in Maricopa County, to a disproportionate risk of physical and psychological harm. The complaint points out that a law enforcement agency ordinarily would be expected to prioritize more serious offenses, such as crimes of sexual violence, over less serious offenses, such as low-level immigration offenses.

An excellent editorial by Andrew Cohen in the Atlantic points out that while the allegations in the complaint are appalling, "it's hard to get through them without at least thinking about what the enforcement of SB 1070 might be like if the Court permits the state to expand its power to arrest its resident Latino population. What is the value of Arizona's in-court assurances that it will respect the constitutional rights of these people when the federal government itself is alleging such risible proof of how bad things are today?"

Last month, two years after Arizona enacted the  immigration law known as SB1070, the U.S. Supreme Court heard arguments regarding the law's validity. The law includes a provision (which has been temporarily halted through an injunction) that requires police to check the immigration status of all persons they stop or arrest if “reasonable suspicion” exists that they are in the country illegally. The U.S. government argued that requiring such status checks would disrupt the federal government’s focus on noncitizens convicted of serious crimes because it shifts the allocation of resources to non-serious offenders. While the questioning from the Justices suggests that it may lift the injunction, a number of  Justices asked how the provision would be applied in practice.

Depite the fact that Arizona Governor Jan Brewer continues to insist that SB1070 is not about race, we don't have to look too far to get our answer. Sheriff Joe and his "boys" have been taking matters into their own hands despite the injunction.  As a result, Justice Department complaint clearly spells out numerous examples of discriminatory conduct.  If anyone thinks it is just a necessary coincidence of immigration enforcement that Latinos are being targeted, check this out. On the very same day that the Supreme Court heard its arguments, Michael Hethmon, general counsel for the Immigration Reform Law Institute and one of the legal minds behind SB1070 shamelessly acknowledged  the real concerns underlying SB1070, "Immigration is on track to change the demographic makeup of the entire country. You know, what they call ‘minority-majority.' How many countries have gone through a transition like that — peacefully, carefully? It’s theoretically possible, but we don’t have any examples..."

He went on to explain how a Supreme Court victory in SB1070 would pave the way for similar laws to be passed in other states, particularly those where “nativist sentiment” runs high:

....(C)opycat legislation will explode. This is the classic environment for, if you will, sort of nativist-type sentiment. . . . It should explode at the states or — even better — [Congress] will be provoked to take action.

"Even better?"  Have we honestly reached the point in America where our highest court will let the nativists (also known as "white supremacists") take over?

A Lot of People are Dying to Come to the U.S.

Last fall I was at a local immigrant right’s benefit promoting Green Card Stories from a table that I had set up, with a portion of profits going to the Immigrant Law Center of Minnesota.  The movie Tony and Janina’s American Wedding, which is a powerful documentary about the long-term separation of a Polish family due to immigration complexities, was being shown and the event was open to the public. 

When the movie ended a number of people wandered over and perhaps because of the sign on my table saying Green Card Stories, began telling me theirs.  One woman who was with her teenaged daughter said, “I should be in your book, but I have had  temporary status for 21 years."  She explained that she is from El Salvador and fled the war at the end of the 1980's.  She has lived here ever since, annually renewing her work permit but unable to apply for her green card.

Temporary protected status (TPS) is granted to nationals of certain countries during times of emergency and political strife and is renewed annually, but only if the U.S. administration agrees that there are still dangers inherent in returning.  Salvadorans were granted something very similar to TPS called Deferred Enforced Departure (DED) back in 1992, followed by other legal protections but in 2001 were granted TPS as a result of earthquakes in the region. 

Twenty one years is an extraordinarily long time to be in “temporary” status.  It is unfathomable for most TPS holders, who have settled into permanent lives in the U.S., that at any point the U.S. government will decide that “the coast is clear” and it is time to go "home".  Living with that constant fear for decades is incredibly challenging for families.  These are, after all, people lawfully in the U.S. with work permission, who still worry daily about being told that they will have to leave.   

I commiserated a little with the woman and agreed that being on TPS for so long was very difficult.  Her U.S. citizen daughter was browsing through the information on my book and looked up to tell me that she was doing a report on immigration for her class in school and was looking for materials to use.  Her mother had already bought a CD of the movie and had signed up to buy a book, which I thought was generous.   Then the mother said, “My daughter really wants to tell her friends about what is happening with immigration.  Her father was deported a few years ago because he didn’t have TPS with me.” 

I said, “Wow, that must be really hard.”  She looked me in the eye and said without emotion, “He tried to come back four months ago but he was killed in the desert.”   I was stunned at the raw truth of this.  Now I understood why this mother had taken her daughter to the movie and was  buying materials for her to try to explain what had happened to her classmates. The girl said simply, “My dad wasn’t a criminal.  No one understands.”

Almost twenty years ago the Clinton administration launched Operation Gatekeeper, which was an effort at deterrence, to seal off traditional border crossing routes, making illegal border crossing more dangerous and more difficult.  Over the years, we have built hundreds of miles of fencing and armed Border Patrol agents not only with high-powered weapons but with sophisticated electronic sensor systems, stadium lights, infrared night scopes, and four-wheel-drive vehicles to hunt down immigrants. 

Prior to Operation Gatekeeper border crossing deaths were few and far between, estimated at only one or two a month.  Fifteen years after Operation Gatekeeper the ACLU released a 76 page report finding that there had been more than 5000 deaths in that time period, with the risk of dying 17 times greater in 2009 than in 1998.  Because migrants have been pushed to cross the border in increasingly remote and dangerous areas, deaths have increased substantially despite fewer making the attempt and a steady drop in apprehensions by the Border Patrol. In fact, today there is a net zero increase  in the influx of undocumented workers from Mexico, but this is seen to be more a result of our economic downturn than the result of increased border enforcement.

Still, the deaths continue to increase. It is now estimated that 1000 more people have died while attempting to cross the border in the two and a half years since the ACLU report, with Arizona being the deadliest state to cross into.    Recently the Pima County medical examiner referred to it as a “mass disaster” as the unidentified bodies in its cooler continue to pile up.

The number of people who have died on the Mexican border is the same as U.S. casualties in Iraq and Afghanistan.   People are dying from drowning, exposure, snake bites, debilitating blisters that make walking impossible, and dehydration. Humanitarian relief organizations set up water and aide stations in the desert but are thwarted by those sabotaging their efforts by slashing water containers or by local law enforcers prosecuting them as trespassers.

Some deaths are from other than natural causes, such as vans over-filled with immigrants crashing  as a result of deadly high speed chases or, according to the ACLU report, nails put onto the road to stop smugglers.  Some are killed directly by border patrol agents, as was the case with a fifteen year old shot and killed on the Texas border two years ago or the tasing and beating of the 25-year U.S. resident and father of five U.S. citizen children (shown in this recently released, appalling video).  Others are murdered by rifle-toting camouflaged border vigilantes, as happened to two innocent migrants in Arizona last month. 

Many more are dying on the Mexico side before ever making it to the U.S., as brutal drug cartels have expanded into the human smuggling business. Or gangs have made their money by demanding ransom from migrants’ families and killing them when those ransoms aren’t paid (as happened two summers ago when 72 migrants were massacred at once for refusing to pay ransoms to one of Mexico’s most powerful drug cartels.)

So, one wonders, why do people even consider attempting such a dangerous crossing into the U.S. with all of these obstacles?  Are they oblivious to the dangers?  Not at all.  The ACLU report found that most border crossers understand that there are serious risks involved but they are still willing to take them.  Why?  Just as with the father of the girl I mention at the beginning of this post, they are driven by the desire for a better life and most of all to be reunited with their loved ones who already live here.  As a business man  from Iowa who attended an event I spoke at on immigrant investment said to me in passing, “I tell you what, if my family was living in poverty and I knew that the only way I could provide a better life for them was by illegally crossing the border into Canada, I bet you that I would.”

So that is why – love of family.  I recently heard Illinois Congressman Luis Gutierrez give an impassioned speech about immigration in which he described the dangerous lengths to which people will go to be reunited with their families in the U.S.  He said something like this:

I know that our laws look harshly on someone who is caught trying to re-enter the U.S. after being deported, but I don’t want to know the person who would not try to come back to be re-united with family. To me, the father or mother who would not make every effort to come back is not a person I would admire. The good person, the one whom I would want to know, is the one who would risk everything to be with family again.

To illustrate this natural drive to reunite with family, the ACLU report described the death of 29 year old Jorge Garcia Medina, who died in the Japul Mountains of California in 2009.  His wife waited in vain for a call that he’d made it through so that she could pay off his smugglers.  A diabetic, he ran out of insulin during the arduous journey and was left behind with a blanket, a can of tuna and some water. When his body was eventually found, his cell phone indicated that he had called 911 at 3:30 AM.  And in his lifeless hands he still clutched the photos of his daughters.

NOTE:  I had a couple of weeks' hiatus from writing my blog due to the fact that I was in China and blogspot is banned there. But I'm back at it again.

DOMA's Tragic Impact on Immigrant Couples: Isn't it Time to Overturn it?

In my many years of practicing immigration law I have seen numerous loving binational couples (one a US citizen and the other a citizen anywhere else) who have sought out legal counsel so that they can remain together in the U.S. For opposite sex couples, the solution is usually pretty simple.  Our immigration system favors family relationships, particularly those between husbands and wives when one is a U.S. citizen.  Yes, there can be tricky timing and travel considerations but for the most part this process simply requires filing joint paperwork and waiting for the arduous bureaucracy to churn through the process.  I’ll never forget when I explained to one couple that they would be separated for many months waiting for approvals if the foreign spouse left the U.S. as initially planned after his 90 day visit.  The prospective husband asked me if I’d mind leaving my office for ten minutes or so, which surprised me but I dutifully did so.  I learned that he got on bended knee in front of my desk and asked his American girlfriend to marry him right then and there.  Fortunately she said “yes”, so I was comfortably able to return to my office, offer my congratulations, and start the paperwork.

Things do not happen so easily for same sex binational spouses, however.  Over the years I’ve met with numerous couples who simply want to be able to live together in the U.S., but despite state or foreign recognized marriages they cannot because the Defense of Marriage Act (“DOMA”) prohibits the granting of federal benefits, such as immigration status.   In the best scenarios, the foreign spouse has top level education, experience, and a cooperative petitioning employer to  file employment-based immigration paperwork.  For example, Canadian born Jack Gilad, whom who we profiled in Green Card Stories, was able to get immigrant status through his employer so that he could live permanently with his spouse, Doug Hauer, and their two parrots. 

Many others have to cobble together solutions such as extending scholastic programs far longer than normal for those on student visas or applying for annually renewable artist visas (for those who are talented enough to qualify). Some couples might also take turns visiting one another in their respective countries on tourist visas,  giving up stable jobs and time with other family members to do so.  None of these temporary solutions are satisfactory and my clients live in fear that one day something will happen to make it impossible to continue along these lines: a dancer’s injury; a denied visa renewal; a loss of financial stability.

In rare cases we have been able to get political asylum for gay or lesbian individuals who have a legitimate fear of persecution in their home countries.  These claims have been possible since 1994, when then Attorney General Janet Reno acknowledged that persecution for sexual preference is a basis for asylum. 

At present there are estimated to be at least 35,000 binational same sex couples living in the U.S. Some couples have given up on living in the U.S. altogether and have gone to live in one of 19 countries around the world that currently grant immigration benefits to same sex couples (provided the foreign national spouse has status there.)   It is difficult to know how many couples have left the U.S. to live abroad, but it stands to reason that there are at least as many as those who have remained. In a letter last year to President Obama, Richard Brendan described how difficult the decision he made over twenty-five years ago to leave behind his family has been. In seeking the President’s support for legislation that would unite same sex binational families, he wrote, “Please do not allow future generations to grow old without their parents, siblings, nieces and nephews, cousins, aunts, uncles and of course childhood friends. You are not expected to understand what this does to one’s spirit for life.”

In the worst cases, where there are no immigration options either to live abroad or to get visa extensions in the U.S., couples make the difficult decision for the foreign spouse to live in the underground hell of an undocumented person, unable to get work permission or even driver’s licenses in most states.  The DOMA Project tells numerous stories of couples in this situation on their site called, "Stop the Deportations". These couples live in fear not only of detection and permanent separation from their partners, but also of the appalling conditions that immigration detention facilities can present to LGBT individuals.  Currently, such facilities are not bound by the Prison Rape Elimination Act (PREA), which mandates that jails follow certain protocols to protect inmates against sexual violence.   The Department of Justice has found that PREA does not fall within ICE’s purview and civil rights complaints have been filed. 

DOMA, which is the only obstacle blocking the grant of immigration benefits to foreign nationals married to same sex spouses of U.S. citizens, was found to be unconstitutional by the Obama administration a year ago, at least as to Article 3, which is the clause prohibiting foreign spouses in lawful marriages from being granted immigration benefits. The administration announced back then that it would no longer expend resources in defending DOMA’s constitutionality.  This opened the door for a recent lawsuit, in which Immigration Equality has brought together five married, binational gay and lesbian plaintiffs, all of whom have been in long term relationships.  Their stories are in many ways the same as those of opposite gender couples who have remained together for years, sharing life’s joys, burdens and in some cases the experience of raising children together.

Some people agree that when same sex couples choose to live together they shouldn’t be discriminated against, but that it is going too far to grant them the rights and responsibilities of marriage.  After all, if they care so much about remaining together then they can prepare wills and directives that will pretty much have the same effect, right?   Well, no.  I’m witness to the significant and sometimes tragic burdens imposed on same sex binational couples and their families that cannot be fixed through these directives.  The problem cannot even be fixed by getting lawfully married in states that recognize their right to do so.   I have long thought that the time is ripe for us to do something about this and look forward to a favorable outcome in Immigration Equality’s challenge to DOMA.  Even before that, our administration has the power to stop deporting same sex marital partners, and it should take steps to do so immediately.  As the White House website states: President Obama believes [that]… Americans with partners from other countries should not be faced with a painful choice between staying with their partner or staying in their country.’

And if some of you are still not persuaded, let me end with a binational couple's story that illustrates the absurdity of our government trying to regulate these matters of the heart.  Years ago the foreign partner entered the U.S. as a male and had a sex change operation.  She then fell in love with an American woman who wanted to marry and sponsor her for immigrant status.  Told by other lawyers that their situation was hopeless under DOMA they came to see  me.  Based on my experience a number of years earlier with the denial of a transsexual woman’s marriage to an American man, I told them that in transsexual cases the government took the position (at that time) that the only gender that mattered (even with anatomy to the contrary) was the one on the foreign spouse’s passport.  In this case the foreign spouse’s passport listed her as male, so I suggested they just go ahead, get married, and file their paperwork.  I even called the Immigration Service to discuss it ahead of time and the supervisor agreed that this was an approvable case.  And as far as I know, this same sex bi-national couple approved years ago by the Immigration Service has lived happily ever after (and with no adverse consequences to anyone.)

Visiting the Hill: Where is the Political Will?

I just returned last night from the American Immigration Lawyer's Association's 2012 National Day of Action, which happens every spring as surely as Washington D.C.'s cherry trees blossom.

During this event hundreds of immigration lawyers of various political persuasions coalesce at the Capitol and then fan out to visit their respective Congressional representatives to discuss the important immigration issues of the day.  This being an election year, there is no new immigration reform legislation on the table to discuss, despite how badly broken our system has become.  We did have some important talking points that included:

• the importance of exercising prosecutorial discretion (prioritizing resources on the deportation of criminals rather than young adults who were brought here as kids or parents of U.S. children);
• the reauthorization of the Violence Against Women Act (which encourages crime victims to come forward, seek protection, and work with law enforcement to see violent perpetrators apprehended);
• supporting ICE's budget request for increased alternatives to immigration detention funding, which this year is over $2 billion for the detention of 34,000 immigrants per day, including 40% who have no criminal history;
• the redesignation of the EB-5 regional center program, which expires on September 30 and has brought billions of investment dollars to the U.S. in order to enhance job creation for Americans;
• and encouraging positive business immigration reform measures that will allow companies to secure visas for top employees and farmers (and others) to more easily get visas for badly needed skilled and unskilled workers.

In visiting representatives from Minnesota, South Dakota and North Dakota (which comprise our immigration district) I was struck by the fact that nearly all of the Congressional aides acknowledged the problems and were well aware of them. Even our most conservative representatives had heard repeatedly from farmers about how crippling and unworkable the current agricultural visa system is.  Their dilemma is that they fear their constituencies.  Immigration is such a hot button topic that they would rather remain silent on immigration than risk coming under political fire (the way that Rick Perry did for supporting in-state tuition for unauthorized residents of Texas.) And yet, recent studies show that 70% of Americans support immigration reform for farm workers.

This inertia isn't unique to immigration, either.  As one Senatorial aide told us, nothing significant is going to happen until after the next election.  He said that there is a window of about 18 months in every six year cycle when things can actually get done. 

There were still a few moments of fresh air on that beautiful spring day, such as an empassioned lunch-time speech by Illinois Congressman Luis Gutierrez, chair of the Congressional Hispanic Caucus Immigration Taskforce, who believes that immigration reform cannot wait simply because of the fears of politicians. He said, "Folks, we need you to tell your stories! These stories need to be heard!" This immediately led me to wait for him outside and hand him a copy of Green Card Stories, which does exactly that.  When he heard what the book was about he literally grabbed me and kissed me . My friend who was standing nearby reported that he saw tears well up in Representative Gutierrez's eyes on hearing that we'd created such a book, which is exactly the response we'd been hoping for in our campaign to get a book onto the coffee table of every member of Congress (which you can participate in here.) 

Next year, once the Presidential election hoopla is over, will be the most critical period for bringing about reform.  One measure is particularly on my mind, and it relates to many of the others mentioned above.  We need honest reform legislation that will allow our nation's agricultural and other essential workers to work legally in this country.  Every Congressional aide we spoke with in our district agreed that an unfair burden has been placed on farmers and similar business people who are trying to do the lawful thing in hiring badly needed workers to bring in the crops, milk cows, and process meat.  As I've seen from first-hand experience, our current migrant worker program is expensive, unwieldy and unworkable. The truth is that most employers in these industries hire workers whom they fear may have improper documents, but they have no alternatives.    As Mother Jones reports in this month's story on the impact on Alabama farmers of its recent immigration crack-down, there simply aren't enough American workers willing and able to do the back-breaking work that immigrant workers have long done in our country.  While most of the employers I see do not exploit these workers, it certainly is easier to do so in today's climate of detention, deportation, and separation from family.

Which brings us to the fact that today, March 31, is Cesar Chavez Day.  Today would be the 85th birthday of this great civil right's leader, who came from a family of migrant farm workers.  He fought for humane treatment and fair wages for farm workers through boycotts and marches back in the 1970's, when I was in high school.  I still remember my family doing its small bit by boycotting lettuce.  While his activism helped improve the lives of many, Cesar Chavez warned that the struggle would never end, which rings truer today than it ever has.  If only we could devise a fair and honest system of immigration for the   essential workers our country we would no longer need to worry so much about the devastating aftermath of our deportation policies, as we would see a major decline in deportation instead of the current, steady increase.

Finally, I want to mention a man of similar background to Cesar Chavez, who was honored at the American Immigration Council's annual Immigrant Achievement Awards Thursday night in D.C.  Dr. Alfredo Quinones-Hinojosa came to the U.S. at age 19 from Mexico without documents, picked cotton, shared a one room apartment with five family members, and aspired to something more.  He studied English, excelled in school, and graduated cum laude from Harvard Medical School, eventually becoming a professor of neurosurgery at Johns Hopkins Medical Center, working on a cure for brain cancer.

He reports that working in the fields was more difficult for him than going through medical school. When he received his award he didn't dwell on his accomplishments, but rather spoke about how much it pains him that today's young people in similar circumstances do not have the opportunity to utilize their talents because they have no practical way of becoming legalized.

As a society, we urgently need to change our immigration policies so that people like Dr. Q (as he is called) can come out of hiding and lend their talents to the development of our great immigrant nation.  We can overcome the lack of political will by showing our leadership that we care and that we support reform. Cesar Chavez is famous for something else, by the way, which is the expression, ""Si se puede."   Translation:  "Yes we can."

Words Matter

When I was a child and someone called me a name or said something hurtful I shielded myself with these magic words . . . "Sticks and stones will break my bones but names will never hurt me." Brave and sometimes helpful though these words were, they weren't true. Words really can hurt us deeply. We realize as we grow that in fact words are powerful and that the words we choose matter. We learn that there are evocative, racist, sexist, or hateful words that shouldn't be spoken.

My Grandma referred to African Americans as "nigros", which I thought was appallingly close to a really bad word and mortified me every time she said it. At first I cut her some slack, allowing for the fact that she was an older woman (born in 1900) unaware of  how the words describing race had changed in her lifetime. But then my brother dated a woman from India and Grandma asked, "But isn't she a nigro?" It confirmed my suspicion that the word wasn't spoken in innocence. In Grandma's mind the word "nigro" meant someone who is outside our acceptable circle. It was an ostracizing word that made clear that we white people were different, that we were better.

The word "illegals" has similar power. It connotes the idea of people who are far outside our circle of acceptable friends. We, the "legal" ones, are better than they are. When I think about the word "illegals"  the first thing that strikes me is that it is a descriptive phrase that has been turned into a noun, which has happened only recently.  When I first started practicing immigration law over twenty years ago no one ever referred to "illegals".  They might be "undocumented people", "people without papers", or even the offensive "illegal aliens" (how's that for a phrase connoting outsiders?)  but never just "illegals".  The use of nouns to distance ourselves from other groups of people is common. Overweight people are "fatties".  Homosexual people are "homos". We recognize, however, that these words aren't polite or kind and most of us know better than to use them.

We do call people who've committed crimes "criminals" because they've engaged in behavior that divides them from polite and civilized society.  Ostracizing them is considered ok because they've done something bad. They deserve it, at least up until the point at which they've paid their dues.  A friend of mine who is never soft on crime once argued that it is ok to call undocumented people "illegals" for the same reason that we call people "criminals".  Reasoning that the undocumented people among us have committed crimes, which is what has made them "illegal" in the first place, it is acceptable to shun them.

So let's examine what crimes have been committed by those who are unauthorized to be in the U.S. Those adults who enter the U.S. without inspection have committed a federal misdemeanor which carries a fine of between $25 and $250 or a maximum imprisonment of 6 months.  As such, it is a Class B federal misdemeanor, a petty offense which is on a par with a first time DUI.  There is no crime greater than this for first time offenders.  (Do we brand those who have first-time DUI's as "criminals" or do we look upon them more as petty offenders, who can redeem themselves and learn from their mistakes?)

For the vast majority of unauthorized people, however, it is critical to realize that NO crime has been committed. As my colleague Dan Kowalski argues eloquently, citing Keith Cunningham-Parmeter and his excellent law review article, Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, "[N]early half of all people described as 'illegal aliens' obtained their 'illegal' status by overstaying valid visas -- a civil immigration violation that involves no criminal conduct whatsoever."

Add them to the groups of people who were brought to the U.S. as innocent children, the asylum seekers who are awaiting their day in court, and the students who have failed to maintain their full course of study and you have a group far larger than those Class B petty offenders, all branded as "illegals" who have not committed any crimes.

The other thing at play here is race. If you close your eyes and imagine a person who fits the word "illegal" I would bet that you don't envision a Canadian (even though we see plenty of Canadians who've wandered south and for a variety of reasons have never gone home.) As Keith Cunningham-Parmeter says, "Through metaphor, the immigrant becomes the alien, the alien becomes the illegal, and the illegal becomes the Mexican."  This is why nearly half of all Latino voters polled find the term "illegal immigrant" offensive.  We're talking about Latino U.S. citizens who feel this way, which is something politicians would be smart to pay attention to.

If you still don't believe a metaphoric link has been created between Latinos and "illegals", watch this clip of the Southern Mississippi Band chanting "Where's your green card?" as a (very legal) Puerto-Rican born player from the other team shoots free throws.  It is likely no coincidence, either, that this happened within hours of the Mississippi house passing an Arizona-style immigration bill.

In response to the racism and hatred that the word "illegals" engenders, the on-line magazine Colorlines began a campaign two years ago called "Drop the I Word".  Even though this word remains pervasive in our media, the 7800-member Society of Professional Journalists recognized its powerful, insidious effect and  voted to drop it last fall.  We can do our bit too and take the pledge to relegate "illegals"  to that obscure place where my Grandma's offensive word "nigros" now rests.  I just did.

Let's Not Deny Our Kids Their Dreams...

One of the biggest moments in a parent's life is seeing his or her child off to school.  It first happens at age five or six, when the child climbs onto that bus in September, all dressed up and excited in new school clothes, Mom or Dad wiping away a tear and waving goodbye.  Here is my son, Jake, on his first day of kindergarten back in 1987:

And for many parents it happens again at age 18, when that child first steps foot on a college campus.  I will never forget my own experience with my daughter, who hastily waved me off at her new school hundreds of miles away from home, eager to shirk off her past and embrace her new life.  As I walked away quickly while trying to maintain composure I passed dozens of parents all doing the same.  We glanced at one another in our shared bond of one of life's most important moments - launching our children  into a world of their own making, a future spun by their own dreams.

Some kids make other important choices, such as going into the military.  Only a few weeks ago I was dropping a friend off at the airport and I witnessed two parents saying goodbye to their son, dressed bravely in his military fatigues but looking so young and scared.  As his mother hugged her son for the third time and wept, his father looked around uncomfortably and caught my eye.  We held that look for a moment in silent understanding that this marked the moment when his son had grown up.

All around us today we have children raised in American cities and towns who are eager to do likewise - to take their talents and aspirations and charge into their futures with the same level of hope and excited anticipation as their friends - but they cannot. Their parents, often out of desperation to find a better life for their children, made choices long ago that have now left their kids without documents - unable to get a driver's license, work, or in many instances attend school.  (See for example the recent bill passed by the Georgia senate that, if enacted, would join Alabama and South Carolina in prohibiting undocumented students from attending public colleges.)  Even if colleges will admit undocumented students, these students face serious financial obstacles because they are ineligible for federal and most state-based financial aid, including grants, work study jobs, or loans. According to E4FC (Educators for Fair Consideration), only thirteen states allow qualifying students to pay in-state tuition and most private colleges treat them as international students, requiring them to compete with students world-wide for only a few financial aid slots to cover the four-year $80,000 - $200,000 price tag.

E4FC reports that there are millions of children impacted, including 65,000 new high school graduates each year who have attended American schools for at least five years. It should be pointed out that for the most part their parents are working in skilled or low-skilled jobs in our country for employers who withhold taxes from their paychecks just as they do from their other workers - taxes which help to pay for the schools that all of their children attend (which is the reason that some states, like Texas, allow for in-state tuition.) There are those among us, of course, who blame parents for bringing their children into this situation in the first place. Perhaps they don't fully comprehend the fear and anxiety that has led those parents to seek a better life for their kids.  Or the despair that made one young mother in Tucson, an employee at Little America working with fake documents, kill herself and her eleven-year old daughter last month after being caught and targeted for deportation.  According to the report, she couldn't imagine bringing her child back to the life of domestic violence and crushing poverty from which she had escaped.

Even for those lucky enough to graduate from college, there are no legal jobs at the end of the rainbow.  I've really got to hand it to people like Cesar Vargas, who entered the U.S. at age five and worked his way all  the way through law school, hoping against hope that he'd be able to work in the legal profession upon graduation. For now, though, he will have to join the ranks of talented, well educated young professionals who not only cannot find jobs in their fields, they cannot lawfully do ANY work.  While there are some who will look at this situation and say, "So what? There aren't enough jobs to go around for American graduates," does it make any sense to force joblessness upon productive and talented people who might well turn out to become job creators in future?

I see the families who live under these conditions.  They often include multiple adults struggling together in one household, residing with the few who are either lucky enough to have lawful status or undetected false documents and who support all the others. Recently a grandmother (who has U.S citizenship) told me that she and her granddaughter (who also has U.S. citizenship) heard an unexpected knock on the door and both hid together under a table in panic because the girl's well educated and unemployed mother is undocumented.   Since the girl's mother was out buying groceries, the girl asked, "Grandma, why are we hiding?"  As they recounted this story, which in one sense was funny, the twelve year old girl could not stop crying.  She said all she thinks about is someone coming to take away her mother (which recently happened to one of her friends.)  Meanwhile, Grandpa, who got his green card through sponsorship by an employer after his daughter and son were too old to benefit, supports everyone. He feels guilty because he brought them into this situation. And they all worry about the adult son, who with nothing to do hangs around with the wrong crowd.

Probably more than any of our other complex immigration problems, this one has an easy and excellent legislative solution, and it comes in the form of the DREAM Act.  This is bi-partisan legislation (first introduced more than ten years ago) that would provide a path to U.S. citizenship for qualifying youth  (those high school or GED graduates who entered the U.S. before age sixteen, are of good moral character, have lived in the U.S. for at least five years when the bill is passed, and are between the ages of 12 and 35 at the time of application.)  Within a six year period after applying, these individuals must complete either two years of college education or military service. The latest version of the Dream Act was passed by the House over a year ago, but failed in the Senate after it was added to a defense-spending bill.

Impatient with the situation, some Silicon Valley executives have taken the matter into their own hands and are working with E4FC not only to provide scholarships to help kids through school, but are exploring the idea of providing them unpaid internships (since paid internships would violate the I-9 regulations).  They argue that the U.S. is losing its competitive edge in the fields of science and technology and that we really shouldn't be wasting this talent.  One undocumented engineering graduate reported that he had to turn down five jobs in the last month because there is so much demand for high-tech workers.

Dream Act kids, as they are called, are taking the matter into their own hands as well.  Recently they have coalesced and come out of hiding in large numbers, holding rallies around the country and gaining momentum.  Hopeful that maybe the DREAM Act will finally get passed, they are telling their powerful stories to American voters - stories such as Leonardo's (who, abandoned by his mother, left Mexico at age twelve when his grandmother became too ill to care from him, shuffled between homelessness and distant relatives in the U.S., and is now a Stanford student) or Daniela Palaez, the North Miami valedictorian who recently won a two year reprieve from deportation to Columbia and has become something of a poster child for the cause.

Our book, Green Card Stories, tells similar stories of individuals who were lucky enough to have figured out a rare (and now mostly defunct) path to permanent residence.  These include Randy Sealey  (who went from being an undocumented kid in Brooklyn to an orthopedic surgeon in Connecticut),

Cleto Chazarez (the child of a Mexican migrant worker who was rescued from being a drop-out and gang member by a very determined guidance counselor and went on to become an educator - recently honored by the Florida Hillsborough Counselor Association as High School Principal of the Year),  and Luis De La Cruz (who entered the U.S. at age seven and at sixteen was left alone to raise his younger brother in a small garage in Phoenix when his father was deported.)  Luis counted on the DREAM Act at first, but since many years had passed without its enactment and he was still young enough, he bravely revealed to his boss that not only was he undocumented, using a fake ID, but that he needed her to sponsor his brother and him as foster kids under a program that helps abused and abandoned children get green cards. In a tearful meeting, his boss told him that she would have to fire him, but then after consideration decided that she and her husband would make a life-time commitment to become the kids' foster parents. Luis is now completing his junior year in college and has a dream of going to law school and then into American politics.

The point of these stories is that given the opportunity, these undocumented children can pursue their dreams and become functioning, productive members of American society.  Some, as described in these stories, will excel magnificently. And as with children everywhere, not all will succeed.  But aren't they really our children - raised together in the same system?  Many of the above stories involve Americans who have surely thought so.  They have generously stepped in and extended these kids a helping hand - putting them through school, providing mentorship, and even taking them into their own homes. They recognize that these kids are entitled to at least give life a shot, the same as our own kids get. As a community and a nation, can we even imagine the alternative?  Who wants to live in a country where more and more talented graduates are required to languish in permanent, jobless, hopeless obscurity?  Please consider doing whatever you can to get the Dream Act passed this time around so that we don't have to.

What would Jesus do?

Those who know me may be surprised that I begin this post with a phrase that is most often associated with evangelical Christians. After all, as the daughter of a Lutheran missionary father who became Unitarian upon retirement, I am decidedly agnostic.  Maybe it is the fact that I spent my formative years in a south Asian land swirling with the world's religions, but I've never been able to say the Creed (which is a statement of faith that there is one and only one god before me.)  Still, I do notice when people of any faith stand up and do the right thing, as many religious groups are  beginning to do when it comes to the subject of immigration in America.

As the Rev. Gabriel Salguero, president of the New York-based National Latino Evangelical Coalition recently told a conference of evangelical leaders in Birmingham, "Because I'm a Christian I believe in comprehensive, common-sense, humane immigration policy...Hospitality is not at the margins of scripture. Jesus wasn't kidding around when he said, 'I was a stranger and you welcomed me.'"

Alabama's recent immigration law was designed to put such a tight squeeze on undocumented people that it would make life impossible, forcing people to depart.  Last summer, shortly after the bill was signed, twenty different faith groups joined forces with the American Civil Liberties Union, the National Immigration Law Center and the Southern Poverty Law Center to file a federal lawsuit arguing that the law is unconstitutional and would lead to racial profiling and unlawful searches and seizures that violate the 4th Amendment.  The faith based groups also raised 1st Amendment concerns that the law "violates core values of various faiths because it criminalizes acts of love and hospitality – commandments from our God of many names.”

This is not just happening in Alabama.  As conditions worsen for immigrants across the country, all kinds of faith groups are advocating for immigrant rights, such as in McAllen, Texas, where Catholics and Protestants coalesced for the Second Annual Interfaith Convocation for Immigration Reform.  In Chicago last October eleven religious congregations announced that they are "immigrant welcoming" communities.  A Rabbi in New York reminded his followers last summer that Jews have  been outsiders and strangers throughout history and that it is incumbent upon them to empathize with and support undocumented workers, advocating for reform.  The Mormon Church (which is at odds with Mitt Romney in this regard) supported  a law signed last year by Utah's governor that allows undocumented immigrants to remain in the state if they worked and didn't commit crimes. A statement issued by the U.S. Conference of Catholic Bishops back in 2003 even goes so far as to assert that all human beings have the right to migrate to support themselves and their families and that sovereign nations have the right to control their borders for the common good, but not when the human rights of individuals are violated.

 As a kid I always got a weekly dose of Sunday School, and I took the stories about Jesus to heart because they were stories about doing the right thing. I learned that Jesus was kind to strangers, turned the other cheek to his enemies, championed the cause of the oppressed, and stood up to authority when justice required it. As Rev. Joseph Darby, of the Morris Brown AME Church wrote in December, "(Jesus) added no qualifying terms about nationality...The words, deeds and life experience of Jesus don't describe someone who was hostile, divisive, mean-spirited or exclusionary, but someone who embraced all humankind and worked to better the lives of those shunned and oppressed by the religious and political powers who controlled his nation."

And speaking of people doing the right thing, here are shining examples from the last few weeks:

• Brody Smith, the opponent running against the undocumented student Jose Luis Zelaya in the Texas A&M student  body presidential election said when the subject was raised that he thought it an unfair question and that he would trust Zelaya if he was elected and that, "He has an Aggie ring on his finger...And we all bleed maroon."
• Los Angeles Police Chief Charlie Beck came out in support of the idea of granting undocumented people driver's licenses, stating, "Why wouldn't you want to put people through a rigorous testing process? Why wouldn't you want to better identify people who are going to be here?"
• On Friday more than 2000 students walked out of class at North Miami High School in a show of support for the school's valedictorian, Daniela Pelaez, who had just been ordered deported. "Over my dead body will this student be deported," said the school system's superintendent, Alberto Carvalho, who held her hand and walked with her.
• The Association of Departments of Family Medicine cancelled the location of its national convention , which was scheduled to be in Mobile, Alabama, citing its overly-strict immigration law.
• Baltimore Mayor Stephanie Rawlings-Blake issued an executive order prohibiting police from asking about a person's citizenship status days before the US Immigration and Customs Enforcement (ICE) was due to implement a program there that would check the immigration status of everyone arrested. She cited concerns that the program would have a chilling effect on people working with law enforcement.
• ICE announced Thursday that it was exerting "prosecutorial discretion" and would not be deporting undocumented protesters in North Carolina for disrupting a legislative meeting on immigration.

And finally, there's this: