The question of how to implement a small grand bargain that couples legalization for some groups of illegal aliens with the introduction of serious and effective enforcement mechanisms starts with the question of which comes first.
Putting enforcement measures into place first makes sense in order to avoid past mistakes. Yet it also has the effect of helping to increase the level of support for Americans who would like immigration reform, but do not have confidence that their government has the will or ability to keep the problem of illegal migration from becoming an issue again, soon.
Still, the enforcement-first approach presents a knotty problem. What do we do with our present enforcement machinery? What happens to illegal aliens who have committed crimes? What happens to those here illegally who might be candidates for legalization of some kind?
Implementing enforcement measures before any temporary or formal grant of legalization requires us to answer the question: What do we do before enforcement measures are implemented and before any even provisional grant of legalization is made?
The answer will be different for each of three distinct groups:
- Criminal illegal aliens;
- Non-criminal illegal aliens, a group that would further be subdivided into those who came here illegally as adults and those who were illegally brought here by their parents as children; and
- Those who are here legally on work or student visas who wish to change their immigration status to that of legal permanent resident.
The first and last groups are easily dealt with under any agreement that starts with putting enforcement measures into place before any formal legalization implementation process takes place.
As to the first group, criminals should be treated as criminals. Those convicted of a range of serious crimes should be subject to expedited removal and barred from applying for legal entry.
Any immigration reform bill passed by Congress should make clear that it is not only "felony convictions" or several serious "misdemeanor convictions" that should be considered, but every charge brought against such persons, whether plea-bargained down or away. Included would be anyone who has a standing order of deportation on record against them, who has failed to appear at an immigration hearing, or who has been caught before trying to illegally enter the country.
The reason for casting this kind of criminal net is simple. Federal, state, and local definitions of "serious" crime vary, and what's more they vary by state. You can get some sense of what is at stake in a previous blog of mine concerning the New York State "Dream Act":
Nonviolent felonies in Classes B though D were originally included in the state Dream Act as disqualifying, but they no longer are.
So those covered by the act now will be deemed in compliance with the good character requirement even if they are convicted of any of the following: aggravated vehicular homicide, grand larceny in the first degree, and welfare fraud in the first degree (all Class B felonies). The list also includes forgery in the first degree and health care fraud in the second degree (both Class C felonies) and vehicular manslaughter in the second degree, criminal trespass in the first degree, and burglary in the third degree (all Class D Felonies). Class E felonies include stalking in the second degree, criminally negligent homicide, rape in the third degree, unlawful imprisonment in the first degree, and identity theft in the second degree.
Misdemeanor crimes include menacing in the third degree, stalking in the fourth degree, sexual abuse in the third degree, and criminal trespass in the third degree.
Even violations, the least severe class, include crimes that should give us pause, including disorderly conduct, harassment in the second degree, and failing to respond to an appearance ticket.
The obvious point here is that illegal aliens who have committed criminal offenses, in addition to entering the country illegally, have no right to our understanding and even less to our sympathy.
Barring criminal illegal aliens from consideration for legalization should be relatively easy and uncontroversial. Certainly the American public would support it.
Lowering the legalization bar for criminality, as the New York State "Dream Act" proposals did, and as the Senate bill does, is a signal to Americans and to future illegal aliens that some lawmakers are still not serious about enforcement of the public's preferences.
Illegal aliens who commit serious crimes do not merit consideration for any potential legalization. Period.
Next: Distinguishing Deserving and Less Deserving Legalization Candidates, Part 3