Thread: Talking past one another

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The Daily Texan - Opinion
Issue: 9/26/05

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Talking past one another
By Matthew Nickson


Last week, the pages of The Daily Texan served as a forum for an extensive debate about illegal immigration and vigilante enforcement of federal immigration laws.

Too often, the debate was bitter and counterproductive. Writers made little effort to understand each other's positions.

A tenable response to the deliberations is the urging of two fundamental principles. The first is that vigilante activity is illegal and immoral. The second is that migration to the United States is a privilege, not a right.

Once we have accepted this pair of principles, we can enjoy a civil and productive debate.

The first observation has been made convincingly by activists such as Ray Ybarra, the American Civil Liberties Union Immigrant Rights Project organizer and Stanford law student. Self-styled "Minutemen" who discover and surround exhausted immigrants in the desert - in effect arresting them until border patrol agents arrive on scene - could be guilty of assault, unjust imprisonment or unlawful restraint.

Such state crimes - which are on the books in Arizona, California, New Mexico and Texas - often do not require that an offender actively employ physical force against his victim as a condition of guilt. "Intimidation" or a victim's "reasonable apprehension" of imminent bodily injury is frequently sufficient.

Aside from criminal penalties, Minutemen also risk civil liability under Title 42 of the United States Code - and especially under California state law - for the deprivation of restrained immigrants' civil rights.

It is reasonably clear that federal law forbids vigilante enforcement of laws prohibiting illegal entry or re-entry into the United States. A related law, section 274(c) of the Immigration and Nationality Act, provides that only employees of the Department of Homeland Security and other officials who enforce criminal laws - not ordinary civilians - may arrest individuals suspected of smuggling or harboring undocumented immigrants.

To the degree ranchers are aggrieved by property damage caused by trespassers, or employers feel disadvantaged by their competitors' illegal hiring practices, the only legitimate legal remedy is to report suspected wrongdoing to competent law enforcement officials.

Extrajudicial enforcement of our immigration laws is morally wrong. It reinforces racist stereotypes. It says to people of color: Look warily over your shoulder! Depending on how you are dressed and where you live, your citizenship status and your right to be present in this country are subject to examination at any time by any civilian.

This menacing atmosphere makes America feel like a dictatorship.

Of course - the legal and moral prohibitions upon vigilanteism notwithstanding - it is important to recognize a second fundamental principal. Migration to the United States is not a birthright.

The U.S. cannot assume responsibility for all the economic and social failings of developing countries. Detained undocumented immigrants who do not possess a legally cognizable reason to stay in our country - like a legitimate asylum or withholding claim - must be sent home.

This is not to smugly embrace all aspects of the status quo. Some immigration laws are unconstitutional and unjust. For example, an only recently enforced "expedited removal" provision of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act - which permits border patrol agents to deport non-Mexican illegal immigrants found within 100 miles of the U.S.-Mexico border without a hearing - must immediately be repealed. The Due Process Clause of the Fifth Amendment demands it.

There are workable alternatives to dismantling constitutional protections for immigrants. For example, to alleviate concerns about the estimated 70 percent of bonded detainees who jump bail, immigration judges should begin setting bail much higher. Under no circumstances should a judge ever grant bond to suspected terrorists or their sympathizers.

Americans will always be somewhat divided about immigration. Vocal minorities will continue to demand the equivalents of open or closed borders. But hopefully, by agreeing on two fundamental principals as starting points, reasonable minds can help civilize this often intemperate and occasionally violent debate.

Nickson is a third-year law student and an executive editor of the Texas International Law Journal.

He will make a decent lawyer, here is where word parsing comes to its art.

"in effect arresting them until border patrol agents arrive on scene - could be guilty of assault, unjust imprisonment or unlawful restraint".

Note; "In effect"...not in actual fact.

Note; "could be guilty of"..but not necessarily, in actual fact.

There is no law that says citizens cannot follow and determine the whereabouts of suspected FELONS, and then report such information to the authorities. Just don't impede their movements.

What fun! cheers glenn