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Tuesday, March 28, 2006

Immigration Reform

There has been quite a furor recently over HR 4437, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005. The bill is 237 pages long, and I quite obviously have not read all of it. As is usually the case with hysteria over a bill, neither have the people having conniptions, probably. However, I did find the section that lots of Catholics, especially those involved in charity work, are concerned about. The rumor has circulated among such people that the bill would make helping or assisting an illegal immigrant a Federal crime. So, the soup kitchen that Sr. Kindhearted runs will get shut down because it feeds whoever comes needing help, regardless of who they are.

The bill doesn't say this, though. The pertinant section is 202(C), which reads thus:
[Whoever] assists, encourages, directs, or induces a person to reside in or remain in the United States, or to attempt to reside in or remain in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to reside in or remain in the United States [shall be imprisoned for up to 5 years].

Now, lots of people read this, and they only look at part of the first line, and think "if I assist an illegal immigrant, I'll go to jail -- that's horrible!" But the text doesn't say that. It says if a person"assists [the illegal immigrant] to reside in or remain in the United States," with the knowledge that this person is an illegal (or with "reckless disregard" for that fact, which is legalese for "you know it, but nobody ever actually says it so that you can later deny having known"), he or she will go to jail. Feeding someone is not, in any reasonable reading of the law, "assisting a person to remain" in a place. That's assisting them to live, which is entirely different. If you give an illegal immigrant a house, or let him live in your basement, or give him forged documents, or give him a job, or take some other positive action to facilitate his evasion of the law, THEN you are violating the provision of this act. Giving a man a sandwhich isn't any of that.

This provision rests upon the fact that illegal immigration is a crime (that's why it's "illegal"). And surely we're all at least vaguely familiar with the concept of being an accessory to a crime, which is more or less what the crimes of facilitating illegal immigration are. So consider an analogy. Bob decides to rob a bank. He asks his friend Joe to take him to the bank, which he then robs. Joe sees Bob rob the bank, and when Bob runs out, he lets him get in and zooms off, even though he didn't know when they got there that Bob was going to rob the bank. Joe and Bob are hungry, and so they stop at a McDonald's on their way out of town. Jimmy serves them each a Big Mac, and then they leave.

In this scenario, who commits a crime? 1) Bob commits a crime -- bank robbery. 2) Joe commits a crime -- being an accessory after the fact to bank robbery. 3) Jimmy does NOT commit a crime -- his serving hamburgers, and Jim and Bob's eating of those hamburgers, are completely unrelated to the act of committing and fleeing from a bank robbery; also, Jimmy serves hamburgers to anyone who comes in and orders one -- he does not make presumptions about his customers, and it would be absurd for him to say to every patron "Welcome to McDonald's. Have you committed a felony in the last 48 hours, or are you fugitive from justice? If not, try out new spicy grilled fish sandwhich!" Now, if Bob and Joe had been stupid enough to say "yes, we just robbed a bank -- but we'll pass on the fish, thanks," Jimmy would have had an obligation to call the police. But lacking that sort of admission, Jimmy -- and charitable organizations -- can't be charged with being accessory to the illegal acts of people they cannot reasonably be expected to believe are criminals.

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Blogger Deep Furrows said...

The intention of the law and the use of the law are two different things also. Did you ever think that RICO would be used against protestors?

I can easily see a prosecutor charging the Good Samaritan from the parable. By paying for the injured man to stay at the inn, the GS was "recklessly disregarding" the man's immigrant status and facilitating his continued stay in the country.

6:57 PM  
Blogger Paul said...

No, I would never have imagined using RICO against abortion protesters, because, as the Supreme Court rightfully held, the law doesn't prohibit what they do. What laws do and are used for is purely a function of what they say -- the two are inherently inseperable, because the law has no existence outside of what it says. Are there abuses by the judiciary? Of course there are. But while the legislature has an obligation to write sound laws (which I admit, they often fail to do), you can't forsee every abuse -- the writers of the 4th and 14th Amendments never forsaw their words being used to invent a right to abortion, because nothing they wrote says that. The judges who want to advance their own policy preferences from the bench aren't going to pay attention to what the law says, and so past a certain point it's nearly impossible to insulate legislation from them.

But your Good Samaritan example doesn't work because nothing he does can be construed as "reckless." Rather, the Samaritan acts very deliberately: he picks up an unconscious man (one who cannot give any clues as to his status, and who has no papers of any sort), takes him to an inn, and provides for his care. But he has no reason to believe that the man is an illegal: nothing about being robbed or unconscious on the side of the road says "illegal immigrant!"

Avoiding acting "recklessly" doesn't mean that you have to act with extraordinary care (which would be checking papers for everyone you come across -- this is still America, after all). It just means you have to act reasonably. It means you can't get out of a speeding ticket by saying "but I didn't see the sign -- I had my eyes closed." Why? because driving with one's eyes closed is reckless and unreasonable, it fails to demonstrate the ordinary care for the safety of others that people should normally have in their every day life.

7:20 PM  
Blogger Deep Furrows said...

you can't forsee every abuse
Ok, but one should address evident abuses else one risks passing a law that will be challenged immediately, abdicating the difficult decisions to the judiciary.

nothing about being robbed or unconscious on the side of the road says "illegal immigrant!"
I wonder what visible signs might indicate that someone in this country is here illegally.

It just means you have to act reasonably
The concept of vir bonum, while quite handy, leaves the determination of reasonableness to the judiciary, whose judgement is questionable. I would rather see laws that give judges a better guideline of reasonableness from the outset.

9:37 AM  

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