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Conservative Put Themselves In An Immigration Pickle

by Alan Lee, Esq.

It's morning in America again. The Republican conservatives in Congress overplayed their hand in passing a House bill making felons of all undocumented immigrants, and their hand is now caught in the proverbial cookie jar by the vast numbers of such and their supporters who have risen up to oppose the conservative measure. The conservatives were arrogant in believing that those illegal in the country were too afraid to protest and certain conservative members expressed indignation that illegals actually dared to show their faces rather than remain hiding in the shadows. The Senate compromise (currently stalled as of the date of this writing) with its multilayered approach in the form of comprehensive immigration legislation is not perfect and requires improvement, but at least offers the hope of an earned legalization at the end of a long road. It is not an amnesty as opponents of legislation have suggested, but the culmination of a long and difficult journey which includes fines, constant work, payment of back taxes, learning English, and waiting in the back of the line to obtain permanent status.

What is fast becoming accepted fact is that the Government cannot deport the 10-14 million illegals already in the country. The Center for American Progress estimated the costs of mass deportation efforts to be at least $206 billion over five years, with the costs reaching as high as $230 billion or more. These figures approach the total amount of money requested by the 33 federal agencies responsible for homeland security efforts for fiscal year 2006. President Bush acknowledged in late April, 2006, to a business group in Orange County, Calif., that "massive deportation ... is unrealistic. It's just not going to work. "

Conservatives are realizing now that Americans are mystified why being illegal in the country should be classified a felony, whereas it has always in the past been regarded as no more than a civil offense. (A civil offense generally involves a fine or other punishment but not jail time while a felony is defined as an offense punishable by one or more years imprisonment.) They will likely in the near future take the idea off the table in the hope of putting the genie back into the bottle or put up so much opposition in the House (assuming that a Senate compromise can be brokered) that any hopes for comprehensive immigration legislation will be doomed.

But the genie will not be put back into the bottle if the protests and marches continue in the numbers that have already been seen. Conservatives and their supporters have attempted to characterize the huge turnouts as not indicative of the views of most Americans, and that the flags of other countries which are being shown in the rallies indicate the divided allegiance of the marchers. They have further attempted to instill fear into illegals with recent highly publicized raids, and at least one member of Congress has envisioned a massive pickup of people at the protests remarking that they were all at one location. These measures to dampen the massive pro-immigration activities are easily seen for what they are - acts of desperation. Pulling the proposed felony law at this time would be seen as too little too late. In the same vein that the King of Nepal's late April attempts to appease the protesters of his monarchistic rule by satisfying their initial demands failed, such an attempt to mollify pro-immigration supporters should equally fail as the swelling rallies' demands will not be satisfied with such a resolution. The debate has gone far beyond that narrow provision, and is now centered upon the demand for some legally recognizable permanent status which will involve much time, multiple steps and hard work, and thus not be regarded as an amnesty.

The attention of the nation is now focused on immigration only because of the pouring out onto the streets of undocumented immigrants and their allies. The only way that the debate on immigration will quiet is if they stop marching. Then the conservatives hope that the immigration issue will fade from the public eye and they can use their political skills to defeat comprehensive legislation. It should be remembered that prior to the huge march in Los Angeles on March 10th, the most realistic hope for immigration reform was a guest worker program only and liberal senators viewed the immigration issue as such a no-win issue that they were more interested in appearing at Irish than Hispanic rallies.

The major problem for the Republican conservatives is the timeline. Unfortunately for them, 2006 is the year of November midterm elections. The Republicans are widely perceived as the anti-immigration party, and if the perception lasts until November, they stand to suffer losses in both houses of Congress. Hispanics who are now the largest minority in the United States, have for the most part coalesced on a pro-immigration view for comprehensive legislation, particularly since most believe that the felony provision was mainly aimed at Hispanics. The Republicans understand the real possibility of long-lasting damage from the Hispanic backlash that would hurt the party for many years to come. This is central to Republican strategy as the Party has assiduously courted Hispanics in the past decade, attempting to balance their numbers against the mostly Democratic black vote. Republicans also understand past surveys that show that immigration is not a driving force sending white voters to the polls. They can therefore not afford to sit on the immigration bills, and must come off as either passing some form of comprehensive immigration legislation or put the blame for such failure on the Democrats. Part of that strategy was already at work in the Republicans recently pointing the finger at Senator Harry Reid, the Senate minority leader, for slowing down the Senate compromise in not allowing unlimited amendments to be introduced and in seeking assurances that Senate negotiators would defend the compromise in conference with House leaders - points without which Senator Reid feared that the compromise would be eviscerated.

The good of this country demands increased immigration such as would become available in a comprehensive immigration package with hope of earned legalization at the end. Besides the positive economic factors in helping to replace the 30 + million retiring baby boomers for whom there are no replacements in present-day America and keeping the rate of inflation down, the cost to society will be great if the immigration issue is not taken care of at this time and allowed to continue boiling. This past decade has seen millions of undocumented immigrants coming into the U.S. and educating their children in the nation's schools. Does Congress throw away the potential of all the children that we have trained to keep labeling them illegals unfit to fulfill their dreams or even worse, felons? The Government should be stamping green cards on their foreheads as soon as they graduate from high school. Congressmen and Senators should look at the situation as a whole and not just content themselves to intervene in highly publicized sympathetic cases that reach the newspapers. For the few high profile persons and the millions of other undocumented immigrants, it is much better for this society to put them under the big tent rather than keeping them on the outside looking in. They are not leaving, and the Government is undoubtedly aware that there is a long history in other countries of the fomenting of civil unrest and conflict for groups which think themselves oppressed. Currently the protests and marches are peaceful, but is there any guarantee that this will hold in the future? Law enforcement agencies are currently being drafted into fighting the immigration battle. This is a waste of law enforcement resources, promotes distrust in immigrant communities, but even more, will make encounters in the future with undocumented immigrants dangerous, and if they are labeled felons, possibly deadly, if they face the possibility of real jail time. The time for a realistic policy is now in a new morning for America.

With their hand deservedly caught in the cookie jar, continued peaceful protests with American flags flying could be the impetus to bring comprehensive immigration legislation home.

2006 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 25+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

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