The debate over illegal immigration continues to rage in this country.  And, as it does, I personally find it to be particularly interesting.  During my third year of law school, I had an academic article on the interaction between identity theft and illegal immigration published in Villanova’s Law Review.  It discussed how Congress can better address identity theft by illegal immigrants, who require identification documents to work in the United States, by strengthening prosecutors’ ability to prosecute offenders of the Identity Theft Penalty Enhancement Act.  Currently, if an illegal immigrant purchases a fake social security card with your social security number on it, he/she will not be subject to mandatory imprisonment under ITPEA because he/she was unaware of the fact that the number on the fake card actually belonged to someone, even if they knew the card was a fake and there was likelihood that the number belonged to someone.

Currently, opponents of immigration reform are employing a diversion tactic to try to win ground in the illegal immigration debate in this country.  Rather than debating the merits of efforts to address illegal, unauthorized immigration, they lose the “illegal” and try to frame the debate on immigration generally.

This past week the New York Times ran an article on the new illegal immigration laws in Massachusetts (http://www.nytimes.com/2010/05/28/us/28mass.html?sq=Massachusetts%20Move%20On%20Immigration%20Law&st=cse&adxnnl=1&scp=1&adxnnlx=1275321708-5RHHIDrFTUgvQJJpsFg/oQ), which highlights this tactic.  The new laws strengthen the state’s ability to enforce existing illegal immigration law by forcing government contractors to confirm the employment status of their employees, as well as barring illegal immigrants from qualifying for resident-tuition rates at state colleges and increasing priority for citizens with respect to public housing agencies.  Rather than addressing the issue, an opponent, Frank Soults, who is a spokesman for the Massachusetts Immigrant and Refugee Advocacy Coalition, stated, “It’s a reaction to a political climate that has been successfully manipulated by extremist element... Lawmakers who always supported immigrants before have suddenly turned and voted for the most anti-immigrant bill we’ve seen in Massachusetts in years.”  I find this infuriating!  I have yet to meet someone who opposes illegal immigration and also opposes legal immigration.  It is a ridiculous proposition considering that most of this country descended from immigrants.

HISTORICAL BACKGROUND OF “ILLEGAL” STATUS – DID YOU DESCEND FROM AN ILLEGAL IMMIGRANT?

In the beginning, this country had strong immigration laws, but around 1800 they were either repealed or not renewed.  From 1801 to 1875, when a lot of our patriarchs and matriarchs immigrated to the United States, this country’s immigration policy was very liberal and welcoming.  We were a blossoming nation with wide-open spaces and untapped resources.  During this period, the status of “illegal immigrant” did not really exist.  Aliens did not even need to register with the federal government.  This caused our population to dramatically rise and allowed the nation to meet its high labor demands.  Any immigration control was loosely operated by the states.  This changed in 1875, however, with the Supreme Court’s decision in Henderson v. Mayor of New York, which essentially nullified state immigration controls.  This decision forced immigration to be a national issue, which meant that the federal government had to get back into the immigration game.  In response, after dragging its feet, Congress passed two pieces of immigration legislation: the Immigration Act of 1882, which borrowed most of its language from the nullified state statutes, and the Chinese Exclusion Act of 1882, which was the nation’s first and only race based immigration act and halted any and all immigration of Chinese citizens.  The acts were followed up by legislation in 1885, which was a response to pressure from labor parties and prohibited prepaid passage and contractual arrangements for the recruitment of unskilled aliens, and the Immigration Act of 1891, which created the Immigration Bureau that operated on Ellis Island.  All four pieces of legislation tighten the federal government’s control on immigration, but continued to allow a free-flow of immigrants into the United States from European countries, which accounted for almost forty-percent of the country’s total population growth.  This period, essentially, was also the genesis of the “illegal immigrant” status in the United States.

Nonetheless, right before the turn of the twentieth century, the pendulum continued to return a position of strict policy as the nation’s attitude towards immigration grew sterner.  The attitudinal shift led to several contentious debates over immigration reform from 1895 until 1921 and included several failed attempts to institute literary tests for incoming immigrants.  Then in 1921, in the wake of the First World War and the onset of the Red Scare, the United States plunged into isolationism, which included the passage of the Quota Act of 1921.  The Quota Act, extended through 1924, was regarded as an “emergency act” and established national quotas for immigration based on the number of foreign-born residents of each nationality living in the United States at the time of the 1910 census.  Then in 1924, Congress updated the legislation and utilized the National Origins Formula, which based the quotas on the makeup of the national origins of the American population as a whole, and restricted immigration from Europe and Asia.  The legislation also instituted the utilization of visas.

Therefore, in case you’ve always wondered, most of us did NOT descend from illegal immigrants.  Our forefathers were native American, immigrated before restrictions existed on immigration or they entered in conformance with the quota system through Ellis Island.

ILLEGAL IMMIGRATION DEBATE: SHIFTING THE ARGUMENT

Times have changed, however, and we are no longer a country with vast unexplored territories and seemingly limitless resources.  Our society is overloading our social systems as we simultaneously face new threats from terroristic organizations who too often slip into our country undetected.  Therefore, opposition to immigration into this country that does not conform to our laws (in other words, illegal), regardless of whether the intentions of the illegal immigrants are noble (i.e., providing for a family), is an understandable position.

Those opposed to either the enforcement of current immigration law or the tightening of our current laws know this and, as a result, they feel the need to rely on deceptive debating tactics.  They are trying to make this an issue about immigration generally, rather than illegal immigration.  Its successful because it forces someone arguing for immigration reform to go on the defensive and establish that they support legitimate immigration — the lifeblood of this melting pot of a nation.  It shifts the argument in order to exhaust the debate, waste political capital, and stunt reform.

I challenge those opposed to immigration reform to step-up and actually debate the arguments.  Explain why immigrants should not follow federal procedure.  Explain why we need to be registered with the federal government but they do not.  Explain why we should not be required to verify our status when stopped law enforcement officers.  Explain why illegal immigrants should be entitled to government benefits such as resident-instate tuition.  Explain why uncontrolled borders do not contribute to a growing national security problem.  Please argue these topics.  Our public discourse would benefit more from legitimate points being made related to this issues than by mudding the debate with ridiculous accusations related to immigration generally.

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