Illegal v. Undocumented


On pretty much any day in this country you see the difference between Democrats and Republicans played out in different ways. Some of them are spectacular (rioting, looting, etc.). Some of them are rhetorical. When an illegal immigrant raped a 9th grader, Zeke Cohen, a Democrat in Baltimore, refused to refer to him as an “illegal immigrant” and instead consistently used the term “immigrant.” This is sort of like saying to all the people who came here legally, waiting their turn, that they’re idiots.

Zeke, appearing on Tucker Carlson (and getting beaten up pretty badly) suggested that a Honduran “fleeing persecution” came to the US and was arrested and shipped out by ICE, and that this was like the Nazi-era holocaust tactics. If that doesn’t make you mad, you’re not paying attention.

Congress, which presumably includes both Democrats and Republicans, passed immigration laws in 20s, 50s, 80s and in each iteration of those laws it has been unlawful for someone from another country to cross over into this country and remain. It’s not a “traffic ticket” kind of offense, it’s a crime.

Lawyers, God help us, like to split hairs. So, the general advice is that while illegal entry is a misdemeanor crime, “unlawful presence” is a civil law violation that is punished with fines and removal. This category applies mainly to people who overstay visas. That’s a different discussion. Here we’re talking about border-sneaks.   Nevertheless, the distinction is practically meaningless: a person who crosses the Texas-Mexico border and remains here is guilty of illegal entry and has committed a crime. When ICE catches him, no matter if he is a bricklayer or a Ph.D., he should be deported.

Now, while children who were brought here by their parents, or who were born here after their parents committed illegal entry are in fact blameless, they too (in the case of the former) have committed illegal entry and must be deported. Those born here could remain, but not if they are of tender years or wish to remain with their family. In that case they can leave and return as adults as full citizens. But what they cannot do is operate a back door into the US immigration system. Congress needs to fix the Anchor Baby problem by law.  It’s a simple fix.  “No child born in the US to parents who are non-citizens shall be considered a US citizen.”

But irrespective of whether we call them “undocumented” or illegal aliens, unless they where transported off the holodeck on the Enterprise and suddenly materialized here, they crossed the border illegally. They must be deported. Every last single one.

Democrats scream that this is too harsh, too mean-spirited. Indeed, I know many hard-working aliens. Many are building houses in my new neighborhood. Many are doing jobs that, if they were not doing them, would be available for local American carpenters. That contractors can get by with paying slave wages to people whose families sleep in vans and cook over sterno at night is a separate crime in my book. These people are being taken advantage of, and by people with every economic incentive to keep doing it.

So, if Congress wants to fix this problem, here’s how they do it.

First, make it a misdemeanor to hire any undocumented worker. The penalty on the first offense should be stiff $1,500, but not so draconian as to be unreasonable. The second offense should be a felony. ICE should be able to either close the business and impose additional fines. No matter if the company is a Fortune 100 or a mom-and-pop, the company CEO and COO should receive jail time.

On the third conviction the company should be shuttered, all personal and real property associated with the enterprise should be seized, the corporate officers should be sent to federal prison.

If you don’t think this would not dry up the job market for cheap Mexican/Guatemalan/Honduran/Salvadoran labor, you’re not alert enough to drive.

The key, however, is to enforce these laws rigidly yet fairly. Goldman Sachs undocumented cleaning lady should cause the same consequences for it that the undocumented lawn mower working for the landscape company (with an annual income of $30,000) suffers. If you enact this reform and

8 USC § 1324a already provides that hiring undocumented workers is unlawful. Unfortunately, it does not create a criminal penalty, but rather, an administrative one. An employer that hires undocumented workers can be fined up to $10,000 if it has previously been ordered to cease hiring illegals. But the only criminal penalty in the statute is for a “pattern and practice” of hiring illegals, and seems to rarely result in significant criminal penalties.

The reason that the problem must be attacked on the demand side (as well as the supply side) is that without the demand – without knowing that a job waits for them here – the tide of illegal migration would slow to a trickle and likely stop. If everyone in Company A, making widgets, knew that they could likely close down their competition in Company B, also making widgets, if Company B hired unlawful workers, then Company A would be exceptional scrupulous because they would know that the same thing could happen to them. In effect, you would not need to police the border so hard if you just shut off the flow of jobs for migrants.

So here’s the real question: if a lawyer in the Midwest can figure this out, why hasn’t someone in Congress figured it out. The reason: big companies LOVE the idea of cheap labor because it permits them to make cheap products and still charge big prices. They would lobby hard against it. But if we want real change in Washington, the voters, not the money men, need to be making the changes.

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