Mike Kueber's Blog

June 27, 2011

An open letter to Mayor Castro re: illegal immigration

Dear Mr. Mayor:

At this year’s annual meeting of the State Bar of Texas, I had the pleasure of attending a “Civil Conversation about Immigration Reform.”  Most of the panelists provided relevant information, but failed to explore possible solutions to the intractable problem of twelve million illegal immigrants.  By contrast, you failed to provide much relevant information, but suggested a new mindset that might help us resolve the problem.  I agree that a new mindset would be helpful, but there are problems with your suggestion and I think there is a better alternative.

Your suggestion was that a path to citizenship should not be associated with amnesty, but rather it should be considered as analogous to deferred adjudication.  Application of this analogy would enable government to assess some penalties and require certain conduct, and upon the satisfaction of those terms, individuals would become legally documented.

The problem with this analogy is that individuals typically aren’t allowed to pocket their gains under deferred adjudication.  Instead they are required to cough up any gains through restitution.  By allowing illegal immigrants to earn legal status, you are allowing them to “profit from their illegal acts.”  (I’m sure you have heard that sound bite coming from opponents to amnesty.)

My suggested alternative is to apply the legal concept of adverse possession (squatter’s rights) – i.e., title to real property can be obtained without compensation by holding the property in a manner that conflicts with the true owner’s rights for a specified period.  Based on this analogy, America can be found to have waived its right to deport an undocumented immigrant who has lived in America and set down roots for a specified period (e.g., five to ten years).  This analogy not only enables illegal immigrants to benefit from their acts, but also limits the benefit to those
immigrants who have been productive residents in America for a significant period of time.

As you probably know, providing a path to citizenship for long-term illegal residents was a cornerstone to George W. Bush’s proposal.  Thus, this is a position for bipartisan compromise if the timing is right and the presentation is done right.

Good luck.

Sincerely,

Mike Kueber

June 25, 2011

Immigration and the State Bar of Texas

Earlier this week, I attended the two-day annual meeting of the State Bar of Texas.  One of the more promising sessions was titled, “A Civil Conversation about Immigration Reform,” and it did not disappoint.  The 90-minute session was the longest that I attended during the meeting,  but it seemed like the shortest.

The topic of immigration was touched on in an earlier session called, “Overview of the 82nd Legislative Session,” presented by State Representative Joaquin Castro.  Although Castro has the demeanor of a rational, dispassionate analyst, his words belie that.  He described the pending sanctuary-city bill (S.B. 9) as enabling a citizen to sue his local police department if it fails to enforce the federal immigration laws.  Arizona’s notorious H.B. 1070 doesn’t even go that far.  In fact, Texas’s S.B. 6 merely prohibits local government entities from adopting sanctuary policies – i.e., instructing their law enforcement officers to not ask anyone about their immigration status.  Because Castro did not take questions, his misstatement of the law went uncorrected.  Before leaving the session, Castro reported that two prominent Texas businessmen (liberal San Antonio grocer HE Butt and conservative Houston construction magnate Bob Perry) recently came out in opposition to S.B. 6 and this development might result in the bill being significantly watered-down.

Joaquin’s identical twin Julian, the mayor of San Antonio, was a part of the six-member panel for “A Civil Conversation about Immigration Reform.”  Unfortunately, there was not much conversation with Julian because he was the last of the panel to give 10 minute presentation, and then he left, leaving the other panel members to engage in a conversation with the audience.

Two things of note presented by Julian:

  1. People who opposed illegal immigration tended to treat these immigrants “more like animals than people.”
  2. We should start thinking of a path to citizenship as not some sort of amnesty, but rather as analogous to the legal concept of deferred adjudication.  Application of this concept would involve the imposition of some terms, and once those terms were satisfied, the immigrant’s  unauthorized entry would be forgiven.  Personally, I think this is a distinction without a difference, but I have to admit that I initially felt the same way when the New York Times recommended that we re-characterize the Death Tax from being a tax on an estate (double taxation) to being a tax on the income of a recipient.  Eventually I came to agree with the Times recommendation.

Julian’s suggestion for deferred adjudication has the same weakness as amnesty – i.e., it rewards an individual for breaking the law; it allows a lawbreaker to stay in America although millions of potential immigrants are patiently waiting in line to be legally permitted into America.

Julian would be better served if he were to apply the legal concept of adverse possession (squatter’s rights) – i.e., title to real property can be obtained without compensation by holding the property in a manner that conflicts with the true owner’s rights for a specified period.  Thus, America can be held to have waived its right to deport an undocumented immigrant who has lived in America and set down roots for a specified period (e.g., five to ten years).

In contrast to Julian, the other members of the panel provided substantive information on the illegal-immigration issue.  Dr. Steven Murdock from Rice University provided a plethora of statistical information suggesting that immigrants were critical to the economic future of Texas and America.  As is the wont of most immigration proponents, Dr. Murdock sometimes failed to distinguish between legal immigration and illegal immigration, but generally he provided cogent information.  The most interesting was his report that illegal immigrants are a slight financial positive to the federal government (they send more money in than they take out), a break-even factor for state government, and a huge negative for local government because of their drain for education and medical expenses.

Kathleen Walker is an immigration lawyer, and the dominant theme of her talk was to complain that illegal immigration is a civil matter, not a criminal matter, and these people should not be treated like criminals.  Toward the end of her talk, Kathleen confused this distinction by telling us that it was incorrect to say the people were here illegally, but it was proper to say that their presence was unlawful.

An anti-terrorist government lawyer followed Kathleen.  He was the only panelist who was opposed to amnesty for illegal immigrants, and he chided the panel for all of their semantical variations in describing – illegal immigrants, undocumented aliens, unauthorized immigrants, unlawful presence, and about four other similar terms.  He also asserted that it is impossible for the federal government to physically close our borders, but that a pending bi-partisan bill for a national ID card might be effective.  From an anti-terrorist perspective, he said that the Canadian border was much more problematic than the Mexican border.

The government lawyer was followed by an AFL-CIO person from Houston.  He contributed little to the discussion other than noting that businesses were taking advantage of illegal immigrants and that “theft of salary” charges were seldom prosecuted.

According to the program, one member of the panel was a DREAM candidate, but it turned out she was a mother of three DREAM  candidates.  She could barely speak English and broke down shortly after beginning her talk.

The moderator for the panel was federal judge Xavier Rodriguez.  At the conclusion of the presentation, he revealed that he hadn’t been listening by asking the panel a long question regarding whether illegal immigrants were a net financial benefit or expense to various governmental entities.  Everyone who was listening knew that Dr. Murdock had definitively provided this information in his presentation, and to humor the judge he regurgitated it.

During the Q&A part of the session, the first comment came from a quintessential bleeding heart.  She started by saying that she was not a  lawyer (her squirming husband was alongside her), but she felt compelled to describe the shame she felt as a person who was taking advantage of illegal immigrants by living in a house that was likely build by those immigrants who received substandard pay and eating in restaurants that likely employed illegal immigrants for substandard pay.  After two long minutes of her confession, Judge Rodriguez cut her off and tried to  assuage her guilt by saying that these immigrants were making five times as much as they would make back in Mexico, so she shouldn’t feel so bad.  She refused to be assuaged.

In response to another question, Dr. Murdock got on a soapbox about America’s shameful immigration record.  According to him, America’s immigration policy was horribly racist until the Voting Rights Act of the mid-60s, and he said that it had never been welcoming to immigrants, such as the Chinese or even Irish or Italians.  At this point, I asked him why an “unwelcoming” America, throughout its history, has a record of receiving more immigrants than any other country and whether the “huddled masses” invitation on the Statue of Liberty was a cruel hoax.  Murdock responded by backing off his accusations and shifting toward a position that America has made mistakes and can improve.  Agreed.

What was the result of the “civil conversation”?  I learned some information, but there wasn’t enough discussion – either within the panel or with the audience – to evaluate the information.  I pointed out during the Q&A part of the session that it wasn’t fair to give amnesty to illegal  immigrants while I have a friend in the Philippines with a graduate education who has been on a waiting list for ten years, and a lady responded that we shouldn’t complicate the issues by tying them together.  As a practical matter, that may be right.