A few weeks ago on a private message board that I participate on I had a bit of a meltdown, for lack of a better word. Let’s just say that my response to a fellow poster was less than Christian and leave it at that. I make no excuses; my response was “over the top” (as another fellow poster put it). However, in my defense I’ve only ever claimed to be Mormon and never claimed to be particular good at being a Mormon.
The topic which raised my ire was the question of the Church’s stance on immigration, and specifically illegal immigration. I will not rehash the Church’s stance here as it’s not really relevant to my post nor was it the focus of my ire on this particular equation. My problem came from the way another poster was talking about such immigrants and the “facts” that he cited in support of his claims.
Before I start this, I need to make a disclosure: I work and make my living as an immigration attorney. My practice focuses on the defense of immigrants, both legal and illegal, who are in removal (deportation) proceedings. I also practice a fair amount of criminal defense work trying to help immigrants who’ve had run-ins with the law in an attempt to salvage their immigration status. So, yes, I have some skin the game.
Let me, then, address a few issues immigration issues which are quite commonly misunderstood.
1. Illegal immigration (i.e. crossing the border without being admitted and inspected) is a criminal offense.
This one often comes from the defenders of illegal immigrants who claim that illegally crossing the border is a civil infraction and not a criminal offense. This is not true. 18 USC 1325 makes crossing the border illegally a crime. It states:
“(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts
Any alien who
(1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or
(2) eludes examination or inspection by immigration officers, or
(3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.”
Thus, illegally crossing the border is a crime with a maximum sentence of 6 months in jail. In Utah, where I reside, this would equate to a class B misdemeanor, or the second lowest level of crime which can be committed in Utah. Equivalent crimes would be driving without insurance or a license, shoplifting, simple assault, etc. In other words, while it is a crime, it is not considered a serious offense under the law. Furthermore, one of the reasons so many people believe that it is not a crime is because it is so seldom prosecuted in federal court. The vast majority of illegal immigrants who are caught in this country are placed into the immigration court system, which is completely separate from the criminal system.
I suspect that there is a fair degree of talk past each other that goes on in regards to this specific topic. If a person enters the country legally (i.e. with a visa of sort or as part of the visa waiver program) and then over stays her visa, that is not a criminal act but is, in fact, a civil violation. Since a good many illegal immigrants in this country arrived this way it’s a good bet that this is what many of the defenders are thinking of when they claim that it is not a crime.
Lastly, the “crime” begins and ends when the person crosses the border. Contrary to what many people think it is not an on-going violation. After an immigrant crossed the border illegally he or she begins to accrue “illegal presence” but the accrual of illegal presence is not, in and of itself, a crime.
2. There is no such thing as an “anchor baby.”
One of the more vile accusations that my fellow poster made was that many immigrants sneak into the country with the intent of having a child here in order to have that child become a U.S. citizen by virtue of his birth on U.S. soil. (See 14 Amendment, U.S. Constitution). These children are often derogatorily referred to as “anchor babies.” The reason for this is that many people believe that having a U.S. citizen child grants the parents some immigration benefit. However, anyone with a basic understanding of U.S. immigration law will know that this is patently untrue.
First, a U.S. citizen can file a relative petition for his or her foreign-born parents. However, he cannot do so until he reaches the age of 21. So, any immigrant who sneaks into the country with the hope of having a baby who will be able to get them legal status is in for a long wait.
Second, when the child reaches 21, he files a form known as an I-130. This is the basic relative petition and does nothing more than establish that a legitimate parent/child relationship exists between the petitioner child and the beneficiary parent. Once that petition is approved, the case is then sent to the National Visa Center (NVC). It is at this point that the actual request for a visa is submitted via the form DS-260. The NVC also requests the tax returns and W-2 from the Petitioner child for the past 3 years. This is because the child must establish that he is financially capable of supporting his parents.
Third, once the NVC has finished their processing of the case, the file is sent to the U.S. consulate in Ciudad Juarez, Mexico. This is currently the only consulate that adjudicates these types of petitions and they are currently adjudicating approximately 90,000 a year. The consulate then sends a letter to the Parent, indicating the date and time of their visa interview.
It is at this point that things break down for the parent. First, they must leave the country and go to Mexico for the interview. At that interview, it is 100% guaranteed that they will be denied the visa. Why? Because the immigration act states that any person who enters the U.S. illegally and remains here for more than one year is barred from legal entry into the U.S. for a period of 10 years! (See INA §212(a)(9)(C)(i)).
In a normal situation there is a waiver available in this situation. People eligible for the waiver must show that if they are not allowed to return legally to the U.S. it will result in “extreme hardship” to the U.S. citizen petitioner. “Extreme Hardship” is a term of art which means a hardship which goes beyond the normal and typical hardships that a person would be expected to experience upon the deportation of a spouse or child. However, this waiver is only available to the spouse of a U.S. citizen or Resident, or the child of a U.S. citizen or resident. It is NOT available to the parents of a U.S. citizen.
So, after waiting 21 years, spending hundreds (if not thousands) of dollars, the Parent travels to their home country only to discover that have a U.S. citizen child hasn’t afforded them any benefit. They must now wait outside of the country for 10 years before then can attempt to re-enter legally. Furthermore, if that U.S. citizen parent travelled back to Mexico for any length of time after residing illegally in the U.S. for more than one year then came back to the U.S., they face a life-time ban due to their multiple entries. The system is not exactly forgiving.
The only other instance in which having a U.S. born child can afford any relief to an illegal immigrant parent happens if the U.S. citizen parent has been caught by Immigration and Customs Enforcement (ICE) and placed into a deportation proceeding. In that case, the parent might qualify for a form of relief known as “cancellation of removal”. If successful, this form of relief can result in the parent receiving their status as a Legal Permanent Resident. However, in order to qualify for this relief the immigrant must show: (1) that they have resided in the U.S. continually for now fewer than 10 years; (2) that they have qualifying U.S. citizen or Resident relative (parent, spouse or child); (3) they have no criminal convictions which disqualify them; (4) their removal would result in “extreme and exceptionally unusual hardship” to the qualifying relative(s).
This is a common form of relief sought in the immigration court. However, the burden of showing “extreme and exceptionally unusual hardship” is so heavy that fewer than 4000 people are granted this form of relief every year in U.S. immigration courts. Typically, such a showing can only be made when the U.S. citizen spouse, child or parent suffers from some serious illness or condition which can only be treated in the U.S. Due to the backlog in U.,S. immigration courts, it takes approximately 18-20 months for case to be presented and the only benefit that the U.S. parent gets during that time is a work permit which allows them to work legally during the pendency of their case and the appeal of their case should that become necessary. In other words, about the only benefit that having a U.S. citizen child will do in that instance is give the Parent between 2-4 years of legal work before they are removed from the country.
In short the “anchor baby” is nothing more than a racist myth which needs to be stamped out.
3. Illegal immigrants do not commit more crime nor are they a drain on the welfare system.
My fellow poster made some audacious claims about illegal immigrant crime rates. In fact, they just are not true.
The same must be said for the claim that immigrants place a burden on the welfare system:
Also, it must be remembered that many of the children of immigrants are citizens and, as such, have a right to access the benefits for which are eligible.
I will make one concession here and it’s one that many defenders of illegal immigrants won’t like. In fact, the crimes of forgery and identity fraud are a problem among the illegal immigrant population. Many immigrants use fake and forged documents to obtain employment. There is simply no doubting this fact. However, most immigrants who use forged documents use their own name and simply invent a number at random to be their social security number. A much lower number actually steal the numbers and identities of others, however it is an issue. Also, the vast majority of illegal immigrants do pay their taxes. They do so by obtaining a taxpayer ID number from the IRS. You see, the IRS doesn’t care about your immigration status, they just want your money and so they’ve made it easy for people without proper documentation to pay their taxes. In six years of immigration work I have never had an immigrant client who did not pay taxes. Not a single one.
So, regardless of your political stand on this issue (and this post wasn’t really intended to sway you one way or the other), these are the facts that you should, at the very least, base your opinion on.