Monday, June 11, 2007

Isn't "Amnesty" for Immigrants Just a Statute of Limitations?

As I read folks going crazy on the right-wing blogs about how "amnesty" for illegal immigrants would spell the end of civilization and the final abnegation of the rule of law, a nagging question recurs that I'll finally break down and pose to you readers, particularly the lawyers in the crowd:

What's the difference between "amnesty" for immigrants and the statute of limitations for any other crime?

An immigration violation is a nonviolent federal misdemeanor. Most nonviolent misdemeanors have a statute of limitations of two years. A marijuana smoker may have violated the rule of law lighting up a joint, just like the guy who swam the river, but after a couple of years the law makes the entirely rational judgment for the pot smoker that justice wouldn't be served by their punishment.

Is there any substantive difference between "amnesty" for immigrants and the statute of limitations for most other crimes? If so, what is it?

14 comments:

Poverty Lawyer 1 said...

You make a great point, Scott. The only difference I can think of off the top of my head is the fact that your pot smoker's criminal act is a one-time thing, whereas being an "illegal alien" is a recurring criminal act. I could see the argument that a SOL/amnesty provision should never begin for an immigrant because every day that he/she remains in the country illegally is a new criminal act. Personally I think this is a weak justification for the anti-amnesty crowd, but I can see the argument.

But the very existence of the SOL for other crimes weakens the pervsion of justice/abnegation of the rule of law argument against amnesty. We look the other way on crimes all the time (be it through the SOL, confidential informants, immunity, et cetera) and the foundation of our country hasn't crumbled yet.

Gritsforbreakfast said...

Thanks PL1. As I understand it under federal immigration law, only the illegal entry is a criminal act. There is no recurring criminal violation - being here without proper documentation is a civil, essentially regulatory violation.

Rorschach said...

But identity theft is fraud which IS a criminal act.
and since when is a "statute of limitations a good idea anyway. The only person that benefits is the criminal. Why is it a good idea to reward a criminal for being able to avoid capture?

David Rogers said...

Grits:

I see it's no longer a "victimless" crime. But it is analogous to trespassing, which is a continuing violation as long as the trespasser is in your house. I think you might (and should) object to a trespasser moving into your house and claiming that there is no "ongoing" violation since it has been years since he moved in.

Gritsforbreakfast said...

Rorchach: So by your logic if the documentation issue were resolved - e.g. if they could use a matricular consular card to get a drivers license and a SSN, as I think should be possible - that pretty much resolves the criminality problem entirely, right?

And the answer to your question "since when" are statutes of limitations good is "since time immemorial." Why? Because America is not a totalitarian nation but a free people who limit the authority of the state over our daily lives. A statute of limitations says we're not going to hold past sins against you forever, go forward and sin no more. And if they do sin again, they can be arrested. With immigration we're talking about a nonviolent, victimless misdemeanor. Some crimes like murder (or after the passage of Jessica's Law, child rape) have no statute of limitations, but those crimes are typically heinous and have victims who are traumatized or killed. The guy who swam the river to pick onions just doesn't pose as big a threat, just like the pot smoker doesn't.

David: They're not "trespassing" most of the time, if ever. Typically immigrants pay rent for their homes, and their employers want them there, as do the businesses they patronize, the churches the attend, and everywhere else they go. Meanwhile, the 14th Amendment guarantees public freedom for everyone, not just citizens.

Even under your analogy, if a trespasser squats in your house, after a certain period the law actually affords them squatters rights if they continuously use and improve the property for a prescribed period and the landowner is absent or doesn't proactively object.

IANAL, and immigration law is especially complex, but there seems to me to be a unique onus placed on immigrants that's far beyond what happens with much more serious crimes under existing penal law.

Anonymous said...

Round 'em up and send 'em back. Have 'em do it the legal way. Let 'em wait in line like the other legal immigrants. Are or they just too damn good to do it the right way? If not, throw 'em in jail.

Poverty Lawyer 1 said...

Yeah, let's do what anonymous suggested and just ship 'em all out. And we can watch our food prices skyrocket when all that food they pick rots in the fields. And essential services will go unperformed when there is no longer a work force to perform those not-so-glamorous jobs filled by immigrants. And our government will have to cut services further because they won't be collecting all those taxes paid (income, sales, etc) by "illegal" immigrants. Wow, what a wonderful world it could be. Sign me up!

Anonymous said...

Oh, illegals pay income tax? They actually report it? My grocery prices sure are going up. I guess the illegals must have unionized, huh.

Anonymous said...

"illegals pay income tax?"

Of course! That's what Rorschach is complaining about, people getting fake social security numbers to have taxes deducted from their paychecks. Almost all the identity fraud associated with illegal immigration is to ENABLE immigrants to pay taxes, utilities, etc.

Anonymous said...

The analogy between amnesty and SOL is flawed. And amenesty creates a new legal status that did not exist prior to the illegal immigration, by turning the alien into a legal resident. A SOL merely returns a lawbreaker to the pre-offense status of non-lawbreaker.

As you mentioned, amnesty would be much more analagous to squatting or common law marriage, both of which rarely if ever come into play today. You are certainly incorrect in your broad description of "squatter's rights."

Some corrections: Grits, of COURSE illegal aliens are trespassing. They have no legal right to be in the United States. Period. In other words, the soverign power controlling this land has posted a "No Trespassing" sign. And regardless of the 14th Amendment, the government has every right to pick them up at will, deport them to their home country, and ban them from future entry.

You also object to an "onus" being placed on illegal aliens. But why not? They are neither citizens nor legal residents of the polity of the United States. They are foreign nationals and do NOT possess the same rights as citizens.

Finally, poverty lawyer is serving up a deluded scare story. The price of labor as a fraction of the cost of produce is tiny. And, in any event, what would be the great shame in injecting a little inflation into the economy while significantly improving the wages of the LEGAL workers who pick it?

Gritsforbreakfast said...

They're not trespassing in the sense of enforceable criminal trespassing laws if everywhere they go the property owners welcome them. There is no trespassing law that applies to public spaces. The question is, are they committing an ongoing criminal act - if they are, it's not "trespassing."

And I readily admit I know nothing about property law or squatter's rights (or for that matter common law marriage). I do know that in Texas homes abandoned by folks who moved on West were later inhabited by folks who were granted squatter's rights to the property, and that some version of that concept is still in the law. And I know people in common law marriages are still married, just like immigrants who live here still live here. And just like with common law marriages, reason dictates that the extra-legal situation be tolerated for the sake of liberty and fairness.

It's true immigrants don't have "the same" rights as citizens, but I fear you and other immigrant critics confuse that for having NO rights - they actually have many legal protections, and should.

Finally, on the change in status - that's a good argument that's probably the correct legal distinction. As a policy question, though, I think the statute of limitations provides a good model for how immigration crimes should be reasonably treated. Despite 2:17's screed, there are dramatic limits to an enforcement only option, just like we can't jail everyone who ever sparked a joint, though that's illegal, too. best,

JT Barrie said...

Actually a basic legal tenet is that once an act has been recognized as legal for a certain time frame and not directly challenged it becomes legal. This occurs in property disputes a lot. If a fence between property lines has been unchallenged for decades and "new evidence" reveals that a home is in someone else's property that new evidence is ignored. It gives some stability to property owners to make decisions in good faith.
I don't know how this would translate to work status. If a worker has been recognized as legal for over 2 years he doesn't have to be deported when "new evidence" reveals his illegal status?

Anonymous said...

And where in this new age of light and reason is amnesty for SO's? They are branded forevr with a big scarlet SO on their forehead.

Anonymous said...

Look - the people who are trying to get across the border so they can work in this country are victimized at every turn, precisely because they are illegal and know it. Why not have a real immigration policy and issue workers visas to anyone who shows up at the border with identification. Put conditions on those work visas, such as the need to show up every 6 months (or whatever) and renew by bringing pay stubs for the previous 6 months. If the worker keeps employed, pays his/her taxes and stays out of trouble for 5 years, allow them to apply for a permanent visa and eventual citizenship. To placate the jingoists, (as well as to improve the survival skills of the immigrants) require them to take their citizenship tests in English. We call ourselves a Judeo-Christian society. Hmm. A basic tenet of ancient Judaism was providing care and justice to the sojourner in the land. All 4 of the New Testament evangelists beat up on the Pharisees for violating that principle.