While government should shoulder 99 percent of immigration policy-making, individual citizens (and aliens) can make a contribution in specific situations by going into the courts.
I am not now, and never have been, a lawyer, but have been writing about immigration policy for decades, and sense that some individual lawsuits on migration matters — usually against private sector organizations — are more useful than others. I also have some family background in these matters: a step-daughter who is a class-action lawyer in the disability area has, as one of her specialties, the treatment of deaf inmates in prisons and jails, a tiny population I never thought of before.
Two of the many kinds of self-starting immigration court cases come to mind (and do get coverage here at CIS). They are class action cases usually brought against biased or cheating employers by citizen workers, and EB-5 (immigrant investor) cases brought by alien investors against alleged corrupt middlemen, often citizens.
In both types of cases those bringing the suit sense an injustice that government has failed to correct; both are civil, not criminal, cases. Some of these cases, those on behalf of low-income workers, for example, represent gambles on the part of the lawyers involved; they will only get paid if their clients win. In others, such as in the EB-5 cases involving rich people suing other rich people, all the lawyers are likely to be paid.
Both kinds of cases, if they are won, can help bring about justice in the migration field, including better wages for citizen and alien workers in low-income situations and lower levels of theft from alien investors. But improvements occur only when two things happen: the plaintiff wins and the case gets public attention.
There is a third variable that makes some of these victories more valuable than others, and that is the longevity of the disputes. All else being equal, the cause of immigration reform should be in the news week after week, day after day.
Let’s take a low-income work force that feels it has been cheated by our immigration policies: sheep herders or au pairs, or their citizen competitors, to take two examples. These are class action cases, in which the plaintiffs seek a change in the employers’ practices, more money for the workers involved, and the payment of fees to their lawyers. These are often settled by the employers (who do not want more negative publicity) and by the plaintiffs and their lawyers, both of whom want to be paid.
The trouble with these settlements, from a broader perspective, is that they are routinely private, with the terms unknown to everyone but the parties. Obviously, some progress has been made or the plaintiffs would not have settled, but the terms are kept quiet and thus cannot make a useful contribution to the dialogue about foreign workers and their damage to the U.S. labor market.
Meanwhile, in another kind of court case, those involving the alleged theft of moneys from alien (EB-5) investors, there is a different, and far more useful pattern: The cases keep going for years as the accused malefactors use every trick in their lawyers’ books to avoid or postpone payment of the looted money. I have lost track, for example, of how many times I have seen reporting on a single mismanagement of EB-5 funds by the single developer of the $50 million project involving the never-built Carillon Towers in Chicago; the investors sue; the case begins; the court rules against the developers (the developers say that they will pay with a loan they are getting in the Middle East, but the loan is delayed because of an eight-day long Muslim holiday); and the developer fails to meet another payment deadline.
The EB-5 scandals seem to go on forever and forever and keep reminding us of the perils of the EB-5 program, while the problems with the au pairs and sheep herders disappear from the screen.
There may also be a volume of money question here. The au pairs and sheep herders want a dollar or two an hour increase in pay; each and every one of the alien investors — and there are lots of them — want to get their half-million dollars back. Routinely it costs much less to settle a wage dispute than an EB-5 case.