Saturday, February 9, 2013

Vaporlaw immigration reform

There is a term in computer circles for programs that are promised, announced, trumpeted to the high heavens but not released. They're called "vaporware." And I think its about time we coined a term for similar legislation: talked about, debated, and bitterly fought over ... but nobody knows what it actually says because no text has been released.

In fact, sometimes it turns out that no text has even been drafted. Such was the case with Sen. Marco Rubio's alternative to the Dream Act, very much like the regular Dream Act that John McCain helped draft and used to sponsor, but Rubio's version eliminated the Republican nightmare of millions more Latino voters by denying these young people who came her as children and were raised partly or totally here permanent residency, which after five years gives access to citizenship. Once president Obama pulled DACA out of his executive branch hat (basically a sort of temporary legalization for those yhoung people) --and Rubio lucked out by having Romney pass him over for Ryan, keeping the GOP's Latino poster boy fresh for 2016-- Rubio's alternative to the Dream Act vanished without as much as a puff of smoke.

And that's all it ever was ... a "vaporlaw." Everyone debates its provisions, but no one has actually seen it.

And that is right now the status of immigration reform. If President Obama is to be believed (and if you're tempted to do so, remember this), he's got a complete bill sitting in the drawer of his desk in the oval office that he'll roll up into a club to chastise Congress with if these Washingtonian Ciceros keep shucking and jiving and don't put out their own draft.

The congresscritters in the Lower House (and don't ask me why the adjective is comparative [-er] instead of superlative [-est]) have even begun to hold hearings on the exact provisions of the non-existent bill, arguing that unauthorized immigrants should be granted permanent residency but not a path to citizenship. The problem is, if you are a permanent resident of the United States you automatically have the right to apply for citizenship after X number of years (usually 5). To revoke this means going back to the good old days of the Chinese Exclusion Act and Jim Crow apartheid.

But someone I respect and admire tremendously --GLAHR Executive Director Adelina Nicholls-- commented to me the other day that, sure, the citizenship issue is huge, but an even bigger question is how many undocumented people would be covered by the reform, even a vindictive, mean-spirited partial legalization like the Republicans have been raising as a possible alternative to their stance of the last few years of "deport them all."

Something we've talked very little about is the English-language requirement. Some of the "outlines" and "principles" of immigration reform laid out by Washingtonians  as well as speeches by Obama and others, say learning English should be a requirement for passing from some sort of "provisional" legal status to permanent residency, or even for qualifying for legalization at all.

Not just for citizenship, mind you, as is required now, but simply to gain legal status -- something that has never been required and is not required today of any other immigrant who comes to live permanently in the United States today. It is an especially ridiculous requirement when you consider that the United States is home to the second-largest number of Spanish speakers in the entire world (after Mexico), and that Spanish is, after English, the second most widely spoken language in the world.

So the absurdly idiotic English requirement is one thing to be on guard against. And it would be really great if the reform, instead of requiring English, had programs to help immigrants learn English.

Another set of barriers is established through the cost of legalization. At the very absolute minimum, almost certainly it is going to be at least $500/person, what getting Obama's quasi-legalization cost young people. For a migrant farm worker couple with three kids, a couple that has  no bank accounts, no credit cards nor savings, even that amount may be beyond their reach, especially if the fee is assessed for the kids as well as the adults.

But the various ideas being floated talk about immigrants paying a "fine," with figures as high as $5,000/person having come to my attention.

This is an absolute, shameless outrage.

First, it is something called a "Bill of Attainder." That's where a legislature declares someone or a group of people guilty without charges and without a trial. Not very common now, but so common "back in the day" that the Constitution explicitly forbids it --and not in the bleeding heart liberal Bill of Rights, but in the original text itself, Article 1, Section 9.

Second, what is the "fine" a punishment for? Breathing without a permit? Walking without a license? At least so far, BEING is not a crime in the United States. Entering the country without going through an official immigration point is a misdemeanor, returning after deportation a felony, but simply being here is not a crime. You might say, well, their simple presence here shows they came illegally. But in a court of law, the government (supposedly) has to prove that. A defendant supposedly never has to prove anything. The government must show --beyond a reasonable doubt-- that the defendant(s) entered illegally, an action that took place somewhere and at some point in time. There are statutes of limitations --time periods-- after which the government may not bring a charge; there are jurisdictional requirements in terms of where (and not just when) the alleged infraction took place to bring the case in a given court. Immigrant-bashers are always insisting, "the law is the law." Well, the requirements for criminal charges, prosecution, a trial where you have the right to legal representation, and a finding of guilty before you can punish someone are also "the law."

Such a fine would also be a classic case of an ex-post-facto law, one that criminalizes past actions even though the action wasn't against the law at the time. Which, curiously enough, is the second thing that Section 9 of Article 1 of the Constitution prohibits. For the obvious reason that this would be another way for Congress to target people for punishment.

Another obstacle is requiring a clean "criminal" record. I'm not going to prioritize arguing that murderers, rapists, kidnappers and so on should be included along with everyone else and subject to the exact same criminal penalties as anyone else, although that's what I believe.

But the truth is unauthorized immigrants are ipso facto considered guilty, even after being proved innocent.

This idea is pushed by the politicians and the media (even the august New York Times). We are dealing with "illegal immigrants," "illegal aliens," or just "illegals," creating a climate, an anti-Latino hysteria that has even led to murder.

Now, I've been getting paid as a hack -- a journalist -- for 40 years, including more than two decades at CNN and before that a stint at TIME. And I learned that, say, if you take an ax and smash a precious little baby's skull at the 50-yard line before 100,000 fans and 70 million TV viewers during the halftime at the Superbowl  then you're an "alleged" ax murderer, an "accused" baby killer.

[In Britain they go further. Once the event becomes the subject of a police inquiry, you're not allowed to characterize the perp's actions, even with weasel words like alleged, supposed, or accused. All you are allowed to say is that the person that everyone saw smashing the baby's skull and then being handcuffed and put in leg irons ïs "helping the police with their enquiries."]

But if you're a spic in the US of A, forget it. Not just your actions, but your very being is "illegal," no alleged about it. And the browner you are, the clearer your indigenous roots are, showing your ancestors have been here for thousands of years before Columbus lost his way to India, the more "illegal" you get.

So for a real immigration  reform, the slate needs to be wiped clean of all these "crimes" that simply come down to what people have been doing since the hominid branch of the chimps abandoned the trees for African savannas and coastal caves, going from place to place looking for a better life for themselves and those they care about and feel responsible for.

Yet, especially starting under the reign of Bush the Lesser, and continuing under "yes we can" Obama, untold numbers of immigrants have been declared criminals under U.S. laws: for "illegal" entry or reentry; for driving without a license and its twin brother, failure to have insurance; for "fraud" or "identity theft" for using someone else's social security number or a made up one to get a job and feed their children; even for having a .22 caliber rifle to keep the coyotes (the animal ones) at bay because you live in the countryside. (And, yes, there are such cases. I was at the sentencing of a man for the simple and only crime of exercising what the politicians all say is his right under the second amendment, to keep and bear arms. Most heartbreaking was hearing his 10-year-old-son and 7-year-old daughter plead --fruitlessly-- not to have their Dad taken from them. The judge pretty much said  he could not do what the kids and dozens of community members (who came to the sentencing to speak for the man) wanted done, which is simply to let him go. Congress has stripped the federal courts of all authority over la migra. He sentenced him to time served, which meant he would be turned over to la migra.

I say that man was exercising his rights although the second amendment doesn't talk about the right of citizens to bear arms, but says instead: "the right of the people to keep and bear arms shall not be infringed." Got that? "Of the people." If you want to argue that the second amendment right is an individual right (as the Supreme Court ruled a few years ago, overturning precedents that had been set for more than two centuries), then the "crime" the man was accused of --having a rifle to protect his little homestead from predatory animals-- was preempted by the constitution..

Further, the 14th amendment --adopted in the wake of the civil war, and promising equality for all-- doesn't guarantee equal treatment in these sorts of things just to all citizens but to all persons: "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

And the folks that wrote that amendment very clearly distinguished between being a citizen and being a person. The first section of the amendment reads: " All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Yet today, we have an apartheid legal system: one rule for the citizen, another for the immigrant. In  Padilla v. Kentucky, the Supreme Court recognized that "deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes."

Referring to "the unique nature of deportation," Justice Stevens wrote for the majority that "Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century, [citation omitted]  And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it 'most difficult' to divorce the penalty from the conviction in the deportation context."

But what happens to "the equal protection of the laws" promised to "any person" by the 14th amendment? By the subterfuge of calling deportation a "penalty" that is a consequence of conviction rather than a "punishment" for the alleged crime, the Supreme Court turns a blind eye to the reality that in this country, there are two different criminal codes: one for "Americans," another one for "aliens." And this iks true not just for an unauthorized immigrant, but for anyone who is not a citizen.

As in the South of old and in Apartheid South Africa, there is one punishment for the white man, a different one for those the government brands "illegal" or "alien" or "negro," depending on the case.

*  *  *

Hence Adelina's worry ... and now mine. That the congresscritters are diverting us by talking about the path to citizenship to keep us from the most important question of all: will our community finally be protected from the nativist jihad of the last decade?

For that we don't need hearings nor press conferences by Republicans about how much they love us spics ... provided we don't vote.

We need --we must demand-- the actual text of the proposals to make sure immigration reform isn't going to turn into one more swindle that covers only a small percentage of the undocumented.

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