Distinguishing Deserving and Less Deserving Legalization Candidates

Deciding to go ahead with a small grand bargain in which legalization for some illegal aliens is coupled with real and effective enforcement is one part of a large three-piece puzzle.

The second part of that puzzle requires answering the question: Which, if either, of the two should come first? The three options are legalization in practice if not in final, official status first; real and effective enforcement first, or both together.

Given the past immigration policy failures that came from putting legalization first, it seems fairly obvious that in order to not to be in a position where this divisive debate is repeated yet again a few years down the road, enforcement measures should come first. Giving “provisional” legalization at the same time that you try to implement effective enforcement, as the Senate bill does, is a vote to legalize first, repeating that same historic mistake.

However, for the sake of discussion, having resolved to couple legalization for some group/s of illegal aliens with effective enforcement procedures, and starting with enforcement, we now reach the third of the three puzzles: What do we do in the meantime?

Enforcement measures will obviously take some time to put into place. And if any formal legalization, even if “provisional” must await the implementation of enforcement measures, what happens to our immigration system in the interim?

Would we have to stop enforcing our immigration laws? No, we would not.

However, any new immigration law that contemplates legalization for some groups of illegal aliens would have to have an effective date that requires candidates to have been in the country for a certain number of years to be eligible, say somewhere between six and 10 years.

Further, as of the date of any bill’s passage, there would have to be a dramatic change in penalties for attempted or successful unauthorized entry into the United States.

It is an odd quirk of immigration law that entering the country illegally is a federal crime punishable by fines and up to six months in jail, or both. A second offense is punishable by a fine and up to two years in jail.

Yet, in truth, this law was never fully implemented. In the past, there were policies of “catch and release” or voluntary repatriation that imposed no penalty on trying to reenter the country. Moreover, many successfully did after multiple tries. And once they were here, they could avail themselves of legal strategies to stay.

Any immigration reform measure worth its name would therefore have to announce and take a new stance toward illegal migration. It would have to make clear that entering the country illegally is a crime with consequences.

That new stance might well include the following:

Any person caught trying to enter the county illegally would be arrested, deported on an expedited basis, and barred from making a legal application for a green card. Such persons would be photographed, fingerprinted, and required to supply other biometric data that would be entered into a database. Any person who subsequently tried to re-enter, or was found in the United States, and whose information was in the database would be subject to immediate and expedited removal. A third violation might require time in jail, and in cases of those who made it to the United States, forfeiture of property or a fine.

The purpose of new rules such as these is obviously deterrence, not punishment. They are meant to send a signal that there is going to be a real difference going forward after immigration reform measures are passed and de factotolerance of illegal migration can no longer be counted upon.

Any effort to forge a compassionate response to the circumstances of America’s illegal alien population must also include a strong and determined deterrent to those who will be tempted after any such law is passed to violate our immigration laws and wait for the next round of legalization efforts.

Any person who did so — who attempted to enter the United States illegally or who was successful — would, going forward, be considered in violation of our criminal laws, but also undeserving of our sympathy.

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