Post-Postville America

Though it only occurred last May, the ICE raids in Postville, Iowa, keep resurfacing to the forefront of immigration policy in the United States. On February 25, Department of Homeland Security Secretary Janet Napolitano ordered a review of a raid the day before. This raid on the Yamato Engine Specialists engine repair shop in Washington resulted in the arrest of 28 individuals and the first such raid under the new Obama administration (Stark, John and Anna Walters. Bellingham Herald). A top official suggested that Napolitano did not know of the raid beforehand, stating that, “She was not happy about it because it’s inconsistent with her position, and the president’s position on these matters.” The fate of these workers, most of whom await trial in a Tacoma detention center, will also signal the resolve of the Obama administration to focus more on noncompliant employers rather than the employees. So close to the events of Postville where nearly 400 immigrants were arrested and adjudicated in rapid fashion, Napolitano’s review of the raid will demonstrate how far we’ve come as a nation in ten months. (http://www.nytimes.com/2009/02/26/washington/26immig.html?emc=tnt&tntemail1=y)

Also last week, the Supreme Court heard the oral arguments of Flores-Figueroa v. United States. This case is a test case aimed at getting the Supreme Court to issue a binding national ruling on identity theft. 18 U.S.C. §1028 is an aggravated identity theft statute which extends criminal sentences by two years per charge. §1028 intersects with immigration law, however, when undocumented immigrants make up Social Security numbers which happen to belong to real people.

Six District Courts are evenly split over the extent of mens rea (foreknowledge) required for this crime. Currently, six District Courts are evenly divided in the interpretation of the ambiguous term “knowingly” within 18 U.S.C. §1028(a). The 4th, 8th, and 11th Courts have ruled no mens rea as to the person’s identity is necessary, while the 1st, 9th, and D.C. Circuits have ruled it a requirement. United States v. Villanueva-Sotelo, 380 U.S. App. D.C. 11, 515 F.3d 1234 (D.C. Cir. 2008)(explaining necessity for mens rea because theft is not mere misappropriation); United States v. Sanchez, 2008 U.S. Dist. Lexis 35460 (E.D.N.Y. April 30, 2008)(requiring government to prove scienter for identity theft); United States v. Mejorada-Cordova, 2008 U.S. Dist. LEXIS 44634 (D. Utah, June 5, 2008); United States v. Salazar-Montero, 520 F. Supp. 2d 1079 (N.D. Iowa 2007) (mens rea needed due to statutory ambiguity).

“There’s a basic problem here,” said Chief Justice John G. Roberts Jr.. “You get an extra two years if it just so happens that the number you picked out of the air belonged to somebody else.” Kevin Russell, attorney for the defendant, is arguing that, at the very least, the rule of lenity requires that ambiguous statutes such as §1028 be resolved in favor of the defendant in criminal cases. Ignacio Flores-Figueroa worked with false identification for years at a steel plant in Illinois. After six years, he changed his false identification documents and was arrested shortly thereafter. The Eighth Circuit convicted Flores on the basis that he knowingly used false identification, despite the fact he was ignorant of a true person’s identity. (Faitek, Adam. New York Times)

10 months ago in Iowa, 270 of the 400 immigrants working in a kosher meatpacking plant were criminally charged with using false identification. A marked departure from past instances where immigrants had faced only civil charges, the predominantly Guatemalan Spanish-speakers were penned in a cattle-barn and hurried through the mobile trailer-courthouse. Prof. Erik Camayd-Freixas of Florida International University, an interpreter who risked his professional life to speak out against the atrocities he witnessed that May, stated that most of the immigrants had no idea what a Social Security card was, let alone that they had “stolen” someone’s identity.

While much of this may seem like obscure legal arguments, what this realistically means for immigrants charged under §1028 is that, rather than the speedy deportation for which they were hoping, they may have to spend years in an American jail. Anxious to return to any jobsite to earn precious money for their families, the long sentences associated with §1028 condemn them and their families to a meager existence. Moreover, the arbitrary nature of §1028’s application means that some unlucky individuals who picked the wrong number are serving the same jail sentence as professional thieves who bilked thousands of dollars from unsuspecting internet users.

With the oral arguments in, the Supreme Court is now deliberating. Their published opinion will be released later this year, and it will certainly have far-reaching repercussions for the immigrant community. Hopefully their decision will ensure that in a post-Postville America immigrants will be guaranteed a fair civil trial.

The Unilateral Contract for Immigrants

Nate was sitting in a bar a week after an innocent woman was killed by a repeat offender who had gone untracked for an indefinite amount of time. He was sitting in a bar across from a well-known member of the Justice Department of the State of Minnesota. As a Target Public Relations Executive, he says, the problem was piercingly clear. “Man, you’ve got an inventory-tracking problem.”

As a result of this casual evening encounter, the statewide “Suspense File” of criminals with aliases or uncertain whereabouts has dwindled from well over 30,000 to under a couple hundred. Bringing together township, local, and regional governments under the statute 299C.111, this information is finally being efficiently shared and these precincts are realizing their part in the larger community.  Nate brings up this anecdote as proof of the power of benevolent self-interest. “Self-interest is the only sustainable source of benevolence or volunteering. Your goal must be to broaden people’s sense of self-interest to include those around them, their community, their workplace.”

This idea of community is core to the idea of nonviolence. The philosophy of nonviolence only has credence if, as Dr. King said, “we are caught up in an inescapable network of mutuality, tied in a single garment of destiny.” As our communities grow and change, as immigration changes the face of Americans, and as globalization destroys the traditional view of bordered states or bounded communities, this expansive self-interest must cultivate a healthy respect and active work to improve the plight of those near and far.

Nate points out that while politics is the business of solving problems (and so protects itself by never eliminating those problems completely), public policy is the art of dilemma management. Dilemmas, or unsolvable problems, are the realities of life, but it is our duty and responsibility to mitigate the effects of those dilemmas. We will never end poverty, but we can continually work to mitigate the effects of poverty in our Beloved Community.

As Nate preaches an interdisciplinary mode of approaching problems, our nation’s immigration system and its needed reform ring in my mind. Essentially, immigrants have always come to the United States on implied unilateral contracts. Our media and our economy have always lured hard-workers hoping to better themselves and contribute to the American Dream. Since the Alien & Sedition Act of 1798 and the first nation-specific discrimination via the 1882 Chinese Exclusion Act, our nation has been unjustly enriched on the backs of immigrants. Notwithstanding remittances and return migration, immigrants have always contributed more to our economy than they have taken. Despite what popular bombastic talk-show rhetoric may repeat, immigrant populations traditionally work harder than native residents and will generally integrate as much as they are allowed by that nation’s institutions.

For the more than 12 million extralegal immigrants contributing to America right now, they labor without hope of compensation. Since the failed immigration reform bills in 2006, nothing has been forwarded to offer a path to citizenship for hard-working immigrants who are performing everything we expect of citizens. At what point does an extralegal resident earn the right to an American driver’s license or a Social Security Card? How long must someone work 80 hours a week to provide for their family before they are given the chance to naturalize?

If our great nation were to adopt immigration policies more akin to a unilateral contract, then so many immigrants’ good faith demonstrations of citizenship would finally be awarded with the meager promise of the bottom rung in American society. But at least it would be a starting point, an entry level to all the rights and protections of our Constitution and legal system, something more than 12 million people live without as Americans in all but documentation.

As civilization moves forward and borders get more confused, nationalities become more arbitrary, and human capital becomes even more mobile, the nonviolent concept of benevolent self-interest must begin to inform our policies, laws, and community standards. I hope I live to see the day when there are no undocumented and unprotected workers in the U.S., that everyone here would have some legal status and all would be somewhere on the continuum of achieving full citizenship.

Hanen’s New Decision, Our New Resolution

In addition to waiving 39 laws through its use of the REAL ID Act, the federal branch of the U.S. government notched another victory in its continuing lawsuits against homeowners on the border. UTB Professor Eloisa Tamez, who has been refusing the government access to her land since January, was just ordered by Judge Hanen on Thursday to allow the government to survey her land for six months.

73-year-old Eloisa Tamez wanted to know the government’s intentions in detail, but the government stated that it wouldn’t know those intentions or the scope of its construction until it surveyed her Spanish land-grant acreage. This deliberate murkiness has permeated every phase of the U.S. government’s efforts to raise a wall on la frontera. From the Environmental Impact Studies (EIS) report, which gave two different proposed trajectories of the wall so that no one is quite sure where it will be built, to the indiscriminate waiving of laws to expedite a process which is either top-secret or undecided or both – every interaction of the government with the people of this Rio Grande Valley has been evasive and less than honest.

For a $50 billion project, the American public deserves the right to know exactly what it is going to look like. The EIS report shows metal fencing, plexi-glass, concrete walls, and double-thick walls, all of which are “possibilities,” yet none of which are decided upon. The government report shows tiny paths of entry for small lizards and rodents, but government officials have also promised people like Jimmy Paz, the manager of Sabal Palms Audobon Sanctuary, that they will have a gate and a key for such a wall. Even the intended purpose of the wall, which began as a piece of immigration legislation, has been touted as a solution to terrorism, drug-smuggling, Social Security, and borderland trash. No one is quite sure how the wall will look, how it will impact the communities, and what effects it will have. Yet still, it has managed to pass through our legislature and dozens of local courts on its way to presumably land in the Rio Grande Valley by the beginning of next month.

Although members of the Smart Borders group will continue visiting local communities along the RGV corridor in order to alert them to their rights and register them to vote, we must also begin training and preparing for a nonviolent campaign of direct action. Should bulldozers come to our peaceful Valley, we must be prepared to engage in the civil disobedience which transformed India and Jim Crow. These apparent defeats for the rights of border residents must not discourage and enervate but encourage and inspire us to bring this issue to national attention. Please join us as we oppose an unjust law in a morally ascendant manner.

An Exercise in Free Migration

    Sitting in Reynosa, Mexico’s immigration office, my mind easily wanders to frustration with the lines, the forms and formalities. One and a half hours later, my companions and I leave tired yet overjoyed to finally be legally on our way to Monterrey. Our 1.5 hours of inconvenience is but a flicker of the reality of so many immigrants hoping to get in through the unresponsive current quota system. My students, some whose grades beg for the best colleges, are symbolically stuck in this same immigration office with their families, waiting for their number to come up in this life lottery of the highest gravity.

    Idling though a security checkpoint, young Federales no older than my students hold automatic guns to highlight the government’s hard stance on trafficking and immigration. I am struck by the ease with which our car glides past these camouflaged jovenes with their red berets, faces softened as soon as they saw our American license plates. The grace of my United States birthright is overwhelming, utterly unwarranted, and it is striking that the chance of my birth in a Tennessee hospital should allow me to migrate freely and pursue my happiness to the ends of the world. In neutral behind us, stalled at Mexico’s southern border, parked at U.S. Customs and withering in refugee camps – so many other children of God are blacklisted by their birth. The Bible clearly states in Ezekiel 18:20b, “The son will not share the guilt of the father, nor will the father share the guilt of the son. The righteousness of the righteous man will be credited to him, and the wickedness of the wicked will be charged against him.” Our immigration system must model for countries everywhere that birthplace and the home of one’s father should not give one undue privilege or unjust disadvantage. Yes, there must be criteria for immigrants, but to discriminate applicants based on their place of birth is all too similar to the Jim Crow laws we abolished not so long ago.

    Eating cabrito at El Rey Del Cabrito, I am assumed to be upstanding and respectable as an American. The waiter treats me with deference, even though I am wearing the wrong futbol jersey. The restaurant’s signs are in English, and throughout the meal we are treated with utmost respect. We are assumed to be legal visitors. How different must it be for those sojourning in Los Estados Unidos? How different to have your skin a synonym for illegality, your accidental accent a sign of guilt, and your work ethic derided on populist television talk shows. Reading the definition of cabrito as “kid,” my mind wanders to wonder how many kids feel trapped and dreamless en la frontera of the American dream, in the shadowlands of public society, squeezed out by the liability of their legality and native language.

    Visiting the Diego Rivera exhibit at the Museum of Contemporary Art in Monterrey, I verge on guiltiness as I feast my eyes on his larger-than-life paintings so vibrantly campaigning for the proletariat, for his working-class people. Wondering how many Latin Americans could enter this museum to see the paintings that rightfully belong to them, I am humbled that my unearned American status, and not my occupational prowess, are the real price of admission into this grandiose museum. Outside, teachers in the plaza chant chants of change, striking for living wages, trying to gain respect and quality education in their country. I finger my museum ticket and my high-school teacher id card, pondering how my two-years’ experience as an American educator warrants my salary being 5x that of these veteran teachers.

    The sun is setting as I look askance at anti-scalping laws and negotiate for what I want – Tigres tickets. Americans disregard laws all the time for convenience sake – speeding, ticket scalping, parking. When laws seem ridiculously restrictive, petty, or at odds with our happiness, most Americans are fine with suspending law and order. When we begin to see an immigration system as legislation opposed to the happiness and dignity of millions, when we begin to see the quota system as a trivial method of separating legal from illegal, when we start to see the thanklessly vital contribution of our nation’s immigrants to the GDP and Social Security, we begin to understand the image of God in others and the will of God on the side of the immigrant.

    During the soccer game, I was caught up in the fraternal feeling of an entire stadium of people. As the chants of thousands propelled Los Tigres to a 3-0 victory, I was caught up and accepted into this community. Even though America, with its symbol of the united American continent, lost the game, I felt profound harmony with my southern neighbors and with everyone’s border-less hearts.

    Returning to Brownsville, under stars which Canadians, Latin Americans, and United States citizens all refer to by the same names, I am struck by the similarities and differences. I am driving from the richest city in Latin America to the poorest city in the United States. I drive from a city which welcomes immigrants to a nation which is contemplating a wall to keep out certain immigrants. I drive from the North of Mexico to the South of the United States, both famed for their rugged cowboy country. I drive from a city which viewed Spanish as a chic business tongue to a nation which equates it with the sub-proletariat language.

    Less than a week from now on March 8, I will be walking with the Border Ambassadors and many other groups to protest the border wall while supporting immigrants and borderlands. I protest because so many would-be immigrants are trying to escape countries in which nonviolent demonstrations are illegal. I am walking because immigrants in every city and every township in the United States are threatened by these damaging border policies. I am nonviolently demonstrating because it is my right, a right which so few global citizens have and which is being denied so many qualified immigrants caught in the never-ending lottery system. I would be proud if you joined me, in prayer or in person, in this year’s No Border Wall Walk.