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A Troublesome Fence

by Leon Wildes

Although most people don't think that a border fence will prevent a hardworking Mexican from finding a way to feed his family abroad, no serious person really objects to our government building such a fence, if that will help solve any part of the problem. Unfortunately, building a fence is not likely to do the trick and the United States government seems to be doing everything backwards anyway.

During 2007, our Congress failed miserably in its meager effort to amend the immigration law in order to reduce the need for non-citizens to enter illegally. Everyone realizes that the number of workers allowed into the United States does not nearly meet the needs of the U.S. economy. As a result, a lack of sufficient manpower in the United States continues to cause one American industry after another to be outsourced abroad. Keeping out needed workers is bad for the U.S. economy.

So long as the U.S. immigration law does not allow enough needed workers to come in under our inadequate visa quotas and other immigration restrictions, some workers will find their way to available jobs and employers will happily employ them if American workers cannot be found. This is the case across the board: construction workers, farm hands, restaurant and hotel workers, plasterers, and hundreds of other lesser skilled jobs cannot be filled by the available American workforce. As the American work force, increasingly beyond working age, turn to more professional and technical areas for employment, lesser skilled jobs go begging. Even highly skilled workers are not being permitted in: witness the H-1B visa lottery. H-1B workers require Labor Department confirmation that they will be paid the prevailing wage of their American counterparts and qualify only for professional and technical jobs based upon a minimum requirement of a college degree. This year, in the first day when applications could be filed to fill positions for the 2009 fiscal year, there were over 163,000 applicants for the H-1B category, which Congress had limited by law to 65,000 visas a year, so the government had to conduct a lottery to choose which applications would be adjudicated. Bill Gates of Microsoft and other industry leaders have complained that they are unable to fill important technical and professional jobs in the United States because of this unnecessarily severe limitation. This quota hampers our competitive position in the world to compete for the best and the brightest workers.

Since last summer, when Congress found it impossible to legislate necessary changes to correct our immigration system and thus to remove the need for foreign workers to enter illegally, our federal government has made several additional missteps. In an effort to scare illegals into leaving, the Homeland Security Department's "ICE" has resorted to a cruel pattern of "enforcement only" efforts to get the word out that it is simply dangerous to remain in the United States illegally. These efforts, however cruel and relentless, are not likely to have a significant effect on the undocumented; so long as they have mouths to feed back home. While estimates vary, it is commonly acknowledged that there are over 12 million undocumented workers, although the unemployment rate remains low.

Under the guidance of the Secretary of Homeland Security, Michael Chertoff, a pernicious program of enforcement has been undertaken to arrest simple overstays. Armed ICE officers in packs of three or four, daily force their way into the private homes and apartments of undocumented aliens and take them out in chains, detain them often without notifying family members, and, before their whereabouts are discovered, ship them to far off jails where they are housed with criminals, often denying them needed medications or medical attention. These raids have been taking place across the country. In addition, worksite raids of large industrial concerns and factories are also staged in such a way that workers are incarcerated, typically undocumented workers (but occasionally a lawful permanent resident or citizen who appears foreign) are arrested, jailed and transferred to out-of-state jails in areas where legal services are not conveniently available, while spouses wonder what happened, and children are occasionally left without parental care Although these raids are scheduled based on information known in advance, and the persons sought are known and identified, never has a raid been based upon a search warrant or arrest warrant to the knowledge of this writer!

Observers could not have predicted this kind of reaction by the U.S. Government. Laws requiring employers to document the legality of each employee have been on the books since 1986, and should have always been enforced, but not by the cruel methods now being used. Michael Chertoff, himself, a former federal judge, was an unlikely person to have commenced so inappropriate an enforcement technique.

And the government's most recent step is worse yet. Just recently, Chertoff was authorized to issue waivers suspending more than 30 state and local laws which he believes interfere with the construction of the US-Mexican border fence across Arizona, California, New Mexico and Texas. Among the laws he was authorized by President Bush to forego enforcement, were, according to the New York Times, laws "protecting the environment, endangered species, migratory birds, the bald eagle, antiquities, farms, deserts, forests, Native American gravesites and religious freedom". Worse yet, this was authorized by Congress and in addition, Congress restricted the Courts of Appeals from considering challenges to Secretary Chertoff, in a complete abdication of its responsibility to legislate in the immigration field.

The Congressional Research Service finds this delegation of Congress' power to Mr.Chertoff as unprecedented and it is expected that the U.S. Supreme Court will consider his acts and rule in the matter shortly.

This latest action by the same Congress which failed to pass necessary corrections to the immigration law which could be helpful has now abdicated its responsibility to govern immigration and ceded to the executive branch of government vital areas delegated, by the Constitution, to the legislative branch. This fence project now creates a real danger of undoing the delicate constitutional system of separation of powers.

No one would object to the arrest of non-citizen criminals, gang members or persons charged with crimes, but the steps being taken to instill fear among hardworking law abiding non-citizens amounts to a pernicious misapplication of government power. Finally, but removing jurisdiction from the federal courts to review these unprecedented Executive Department activities further complicates the delicate constitutional system which requires federal court involvement to assure a proper balance of power in the system.

Congress has long guarded and preserved its broad and plenary authority over the enactment of immigration laws, so this abdication of its authority is without historical precedent. It leaves the impression that fixing our broken immigration system is simply a matter of creating an immigration czar to rid us of this distasteful problem.

As a nation of immigrants, we deserve better.

About The Author

Leon Wildes senior partner and founder of Wildes & Weinberg, PC, has practiced immigration law for almost 50 years. Mr. Wildes holds J.D. and LL.M. degrees from the New York University School of Law and serves for the past 29 years as an Adjunct Professor of Law at the Benjamin N. Cardozo School of Law in New York City, where he teaches immigration law. A past national president of the American Immigration Lawyers Association, he regularly publishes scholarly articles in the field and lectures widely to practitioners. He has testified before the U.S. Congress as an expert in immigration matters, and was awarded the Edith Lowenstein Memorial Award for Outstanding Contributions to the Field of Immigration Law. He is best known for his successful representation of former Beatle John Lennon and his artist wife, Yoko Ono, in deportation proceedings.

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