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Amnesty, Again

by Kris W. Kobach

Gingrich’s plan would reward criminals and make the law arbitrary

In a debate at the end of November, Newt Gingrich announced his plan for dealing with the 11 to 12 million illegal aliens in the United States. It was classic Newt. First he offered a brief history lesson on the 1986 amnesty disaster, then he laid out his solution, with his signature air of self-confidence and boldness. What he proposed is a standard mass amnesty, like those long supported by liberal Democrats, but with three twists: 1) Only illegal aliens who have been here for an unspecified but significant number of years will get the amnesty; 2) amnesty recipients will be allowed legal presence in the United States, but not citizenship; and 3) amnesty will be awarded by local neighborhood boards of citizens, based on the model of World War II Selective Service boards.

Often when Newt offers the “big ideas,” as he calls them, that are the mainstay of his campaign, they appear at first blush to be sensible and well considered. The former professor presumably does his research before delivering a lecture, right? Unfortunately, not this time. His amnesty proposal betrays a misunderstanding of why past amnesties have failed and an ignorance of how immigration enforcement actually works.

Before continuing, let’s define the operative term. Since most members of the American public — and Republican voters in particular — oppose amnesty, politicians go to great lengths to avoid using the word, preferring euphemisms such as “legalization program” or “pathway to citizenship.” So it is important to state what an amnesty is. It is any policy that awards lawful presence in the United States to large numbers of illegal aliens, whether it offers a path to citizenship or not. The opportunity to apply for citizenship may or may not be included, but it’s an amnesty (legally, a pardoning of illegal acts) either way. Newt cannot accurately claim that his proposal is not an amnesty merely because it does not offer citizenship.

Now let’s look at Newt’s big idea, which suffers from three fundamental flaws. First, when revealing his plan, Newt declared that it would not be “humane” to deport an illegal-alien household that had been in the United States for 25 years. After all, the illegal aliens might have friends in the community and might belong to a church, he suggested.

But since when does having community ties make compliance with the law optional? I lived in England for four years, made many good friends, and attended a local church. But I never dreamed that by doing so I could stake a claim to permanent residence in the country. And I was there legally. Social ties do not and should not create an entitlement to remain. Make Newt’s argument anywhere else in the world when your visa expires and you will politely be escorted to the nearest port of departure.

Equally puzzling is Newt’s assertion that the illegal aliens who have been here the longest are the ones who most deserve amnesty. Apparently Newt believes that the longer you continue to violate the law, the less culpable you are. He seems to be applying the property-law concept of “adverse possession” — a kind of squatter’s right to remain — to immigration law. But squatters are allowed to claim property rights only if their squatting has been done in the open and the property owner has chosen to do nothing about it. Illegal aliens conceal their status and evade law enforcement. Why in the world should we reward those who have been the most successful in committing federal crimes?

Newt also suggested that an illegal alien violates the law only once, when he first sneaks into the United States, and that if this one crime occurred a long time ago, it’s okay to overlook it now. But most illegal aliens, in the ordinary course of living, commit multiple crimes throughout their stay in the United States. For example, it’s a crime to enter the country without inspection (which many illegal aliens do repeatedly), it’s a crime to use someone else’s Social Security number to obtain employment, and it’s a crime to present false information to a law-enforcement officer.

Second, Newt served up the standard ACLU line that enforcing federal immigration laws “separates families.” This statement revealed that he’s not familiar with how Immigration and Customs Enforcement (ICE) actually operates. ICE officers go to great lengths to keep families together during the deportation process. If there are minor children in the household, in most cases either the illegal alien is not detained, or the children are allowed to be with the parent in a special facility. And when immigration judges issue removal orders, they do so with care to ensure that families stay together. If an illegal household includes a minor child born in the United States, that child is not separated from his family. He actually possesses dual citizenship — that of his parents’ home country and that of the United States. He will return with his illegal-alien parents to their home country, but when he grows up, he will possess a rare privilege: He may enter the United States as a citizen.

The third flaw in Newt’s amnesty plan is the biggest — his proposal that neighborhood boards review each amnesty application and decide whether to award the amnesty. The idea sounds thoughtful, if quaint, but makes no sense in practice. It fails to recognize the legal complexity, manpower requirements, and security problems that any amnesty entails.

Each illegal alien will have committed various violations of federal immigration law. The complexities of immigration law are unfamiliar to most attorneys, let alone laymen, so it is hard to see how non-attorneys without any specialized training could spot all the immigration violations at issue.

Having retired (or unemployed) people from different walks of life sit on these neighborhood panels might sound like a Norman Rockwell scene. But they would not be judging an essay contest; they would be judging the legal rights of individuals in a very complicated field, and the result would be uninformed and inconsistent treatment of the aliens.

In a subsequent candidates’ forum, Newt likened his neighborhood amnesty panels to juries: “I would rather have my fate decided by a jury of my peers than have my fate decided by a Washington bureaucrat.” Great line, but it misses one important point: Juries are forbidden to decide questions of law (e.g., what acts are necessary to constitute a crime); they decide only facts (e.g., whether the defendant committed those acts), and leave the law to the judges. On Newt’s panels, the citizen-adjudicators would be deciding issues of legal culpability and endowing amnesty recipients with legal rights (namely lawful presence and work authorization in the United States).

Or, to put it differently, a jury decides the narrow factual question, “Did he do it?” But Newt’s amnesty panel would decide the legal questions, “Which immigration laws did he violate?” (an inquiry that involves both law and facts) and “Did he violate those laws in such a way that we are inclined to forgive the violations?” These inquiries are vastly more complex and subjective — and likely would result in different panels’ treating similarly situated aliens unequally.

This is to say nothing of who would serve on these panels. How many minutes would it take the ACLU to set up a website urging its members to sign up for them? The system would be easily manipulated by community organizers on a mission.

Newt’s website also states that each amnesty recipient would have to pass a criminal background check before his case comes before a community board. Who would do those background checks? Presumably the same “status adjudicators” who review immigration applications under the current system. However, Newt fails to comprehend the manpower problems this would create. The Department of Homeland Security has only 3,000-odd status adjudicators at present, and they are already overburdened reviewing the 6 million or so applications for green cards, visas, and other immigration benefits that they receive every year from legal aliens. Doing a background check properly means more than simply running a name (or the multiple names that many illegal aliens use) through a database of those arrested for or convicted of crimes in the United States. It also means obtaining information from local law-enforcement authorities in the alien’s home country — a difficult and time-consuming task. The manpower to do the job right, while also serving those aliens who actually follow our laws, simply doesn’t exist.

Most important, any reasonable amnesty would require each application to be evaluated from a homeland-security perspective, with the benefit of classified information concerning aliens’ possible terrorist ties — something local neighborhood boards would be unable to do. During the 1986 amnesty, Mahmud “The Red” Abouhalima fraudulently obtained a form of amnesty designed for seasonal agricultural workers when he was actually driving a cab in New York City. His brother Mohammed did the same. The brothers used their newly acquired legal status to travel abroad for terrorist training and then became part of the terrorist cohort that carried out the 1993 bombing of the World Trade Center. It is a virtual certainty that more terrorists would be granted legal status if Newt’s amnesty were to become law.

Finally, on top of the 11 to 12 million illegal aliens already in the country, all of whom are potential applicants (legally or fraudulently) for Newt’s amnesty, there would be a mass influx of new illegal aliens who would try to obtain the amnesty by presenting easily forged documents, such as paycheck stubs or utility bills, indicating that they had been present in the United States the required number of years. That is exactly what happened with the 1986 amnesty: Hundreds of thousands of illegal aliens streamed across the border to apply for it fraudulently. The INS discovered 398,000 cases of fraud, and while nobody knows how many thousands went undetected, we do know that the undetected cases included the terrorist Abouhalima brothers.

Newt evidently didn’t research that bit of history concerning the 1986 amnesty. Defending his proposal, he naïvely declared that it wouldn’t create an incentive for illegal aliens to enter the country, since it would cover only aliens who had lived in the United States the required number of years. That’s exactly what the amnesty proponents thought in 1986. It never dawned on them how easy it is to forge the necessary documents.

As Mitt Romney correctly pointed out when Newt announced his plan, any amnesty would be a magnet for more illegal immigration. Even mere congressional discussion of amnesty may have this effect. During the last five years, each time Congress came close to enacting an amnesty, reports from the border indicated a spike in illegal entries.

In sum, Newt’s big amnesty idea is a poorly conceived proposal based on a misunderstanding of history and immigration enforcement. An immigration system cannot be “humane” if it makes a mockery of the rule of law and treats people arbitrarily and unequally. Any amnesty is a bad idea; but Newt’s amnesty would be a disaster.

– Mr. Kobach is the Kansas secretary of state. He is the co-author of Arizona’s and Alabama’s laws against illegal immigration, and he served as counsel to U.S. attorney general John Ashcroft during the George W. Bush administration.

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