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The Midnight Society

by Anthony Guidice

A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.-James Madison

Amidst the din, another young male Latino, focused and serious, approaches the table and sits down. He tells me his situation. Can I do anything for him? No, I can't. He entered the country "without inspection." He's "illegal, EWI." He Entered Without Inspection. Resigned to it, he listens, shrugs, shakes my hand, and walks away. It isn't any easier when an entire family comes to the office asking me the same thing; their eyes pleading, imploring, as big as saucers. You don't want to know how many times a month that happens to me. Apparently, neither do the folks in Washington, DC who are charged with the task of forming a set of functioning immigration laws.

A Quasi-Lawless Never Never Land

We are creating a culture of phantoms - the undocumented foreign nationals in the United States: a separate population of people who, having no legal pathway to residency, tiptoe warily in and out of existence and legitimacy. Tailing behind them, limp and flaccid, our spent system of laws staggers merely to keep them in sight.

In the US, we have the greatest system of laws in the world, and we Americans view those laws as our protections. Where as in most of the world laws are often used to oppress and restrict, in America the laws liberate and protect us. We have a magnificent Bill of Rights for example, and through the years we've had things like the marvelous Earl Warren Supreme Court. From 1954 to 1968 the confident, sweeping protections of the Warren Court brought us, among other things, Brown v Board of Education, and the wonderful Miranda v Arizona decision which comprehensively hogtied some questionable and brutal police practices. We Americans perhaps don't do a good enough job of telling the world about the protections the law gives us.

But we are under a very concrete danger of having that system of laws called into question because of the Congress's reluctance to enact a comprehensive immigration reform bill. The longer the national legislature stalls, the larger and more "authorized" this phantom nation-within-a-nation grows.

The broken immigration laws are making the problem a compound problem, one that grows exponentially. The Immigration and Naturalization Act (INA), last updated in 1996 through the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA), put forth some improved border and interior enforcement measures at a time when there may have been enough INS officers to track down a good portion of immigration violators. The IIRIRA also formulated new grounds for removal and deportation, put limits on litigation, and generally overhauled the provisions for getting illegal aliens out of the country, among other things.

The problem now is vastly greater and the available resources are laughingly insufficient. Laws designed to address a semi-manageable problem cannot now address the unmanageable one. Set resources for enforcement, routine processing, and adjustment are now spread so thin that all of these tasks are being badly handled. I don't need to tell any immigration lawyers about fiancé visas taking 10 months, or adjustment actions taking well over 1 year. The number of cases backed up in the Immigration Courts is now approaching 270,000; and the often suspect appeals process from the Board of Immigration Appeals (BIA) is clogging and choking the Federal Appellate Courts. So, " ya gotta say the laws ain't workin'too good no more."

Confusing Activity with Attainment

All the federal immigration agencies, authorities, and lawyers are working hard, that's not the concern. The problem is that the laws they're working under don't allow them to achieve any meaningful results. It's like doing figure-eights in a parking lot for ten hours instead of driving from point A and arriving at point B. Energy, money, time and dedication are being spent, but no one is getting anywhere. We're fooling in thinking that the existing laws can work. They aren't working, they haven't worked, and they will not work - just like doing figure-eights in a Morristown parking lot for three hours won't get you to Broad Street in Newark. Movement, time, and money is spent but - pero ningunos resultados!

Get them out of the country? How? It's impossible. All the manpower in the US military couldn't get them out. That isn't even a realistic option, though the government is spending billions trying to get the camel through the eye of the needle.

These folks aren't looking to undermine our society. They've come here looking for greater liberties and opportunity. Is that such a crime, really? Argue all you wish about how they got here and how unjust it is to walk into the country illegally. The fact remains that they are here. They are here and they are firmly entrenched here. They are in the workforce and they are a part of our communities. Individual foreign nationals are here, their families are here, extended families, along with a sprawling network of friends, co-workers, fellow students, and churchgoers. They are - like it or not - a vast community, all of them firmly rooted here. The longer they stay undetected, the more sprawling our immigrant nation-within-a-nation becomes.

"… and her name Mother of Exiles." …Really?

All of these fixed and settled undocumented aliens create a danger, a danger richly fertilized by the Congress's inactivity over immigration reform. It's the creation of this Midnight Society of illegal aliens: secret, and insidious. And it's our fault. Congress should be humiliated by its inaction, but instead they all whistle past the graveyard. For all this Republican talk about spending cuts, they ignore the reality of continuing to spend billions on lousy immigration laws and pointlessly expensive immigration policy; the equivalent of spending tax money attempting to empty the Pacific Ocean with a walnut shell. The Democrats are very bit as addle-brained: for two years they had complete control of both houses of Congress, and control of the executive branch, and they completely and spectacularly ignored the immigration question. Brilliant.

Our mighty system of laws is undermined and corrupted when a significant portion of the population lives outside it. The situation calls into question just what effect the laws have. Can the laws be ignored? If the day to day reality out-steps the reach of that law, then they probably can be ignored. That's intolerable. It must not continue. Brown v Board of Education came about because "separate but equal" was not equal. It only furthered an existing hatred and shamefully blocked off one entire sector of American society from the other.

The great new immigration laws, when they come, will rise from this tainted reality we have today. The new laws won't be as "bright line" as Brown perhaps, but they'll correct just as backward a reality: this disconnected alien community, this Midnight Society. Perhaps this society is making their own laws and rules as well, in order to simply exist. This is just as poisonous. And this is also our fault. Our laws must be their laws. (This isn't Don Quixote talk, but realism; when the laws don't serve us we must change them).

Laws So Incoherent That They Cannot Be Understood

Because these people are undocumented, they populate a lawless gray area. After all, who are they? Where are they? What are their jobs? What are their names? No one knows. And because these people live in this more and more permanent shadow, their existence undercuts what our laws do, what our society does. That's very dangerous because it threatens the purpose of the law. The laws govern the society. Our great American system of laws must govern, protect, make clear, and liberate. They must never weaken and diminish the society - that above all was what the founders, James Madison chief among them, insisted upon. But when a system of laws is rank and deficient, and a vast group of people are forced to live outside them, then the society is weakened. It cracks and splinters. This is what the present immigration laws are doing.


1) Denying illegal aliens a driver's license. What's the idea behind this - to catch illegal aliens? It won't catch them; it simply makes their cheating more creative. It may also result in a lot of hazardous driving going on out there, and in far too many drivers being uninsured. (I can't really blame them - what would you do if you had to pick up your 8 year old daughter from school, four miles away? Please spare me the "I wouldn't break the law to enter the country" rhetoric; are you that chaste, and pious, and pure? Are we gods and not men?)

2) What about crimes going unreported? You live across the street from an illegal alien neighbor. While you're out, your car or car stereo is stolen or your house is broken into and burgled. The neighbor sees the whole thing but doesn't call the police. He's afraid they'll trace his number and turn him in to Immigration and Customs Enforcement (ICE). He likes you, he doesn't want the crime in his neighborhood either (yes, it's his neighborhood too), but he's afraid.

3) There are rampant cases of predatory lending and credit schemes against illegal aliens: unconscionable credit terms on loans or consumer items, sometimes mortgages with reverse amortization. The undocumented victims won't retaliate. So eventually the municipality is left with another abandoned, distressed property. And the problem isn't only that of the aliens. Because they can't retaliate, the number of predatory lenders and scam-credit-scheme artists increases. Eventually it affects everyone… maybe someone you know, like that sister of yours who isn't very good with money…

4) What about when an alien is forced to look the other way, by someone in a position of authority (like a crooked boss) to a blatant theft, or theft of services? They probably don't want to be an accessory to breaking a criminal law, and they don't want to be coerced by someone who does break them, but they're powerless to do anything else.

They're powerless because we've submerged them in this underground world of "violators." We have no laws to help them, so they gingerly tread a sort of White Rabbit minefield. One wrong move and they may be seized by ICE and never see their families again. They don't dare make a peep.

(I can hear you, Charlie: "They shouldn't be here." Well, they are here. Is it their own fault? It probably is their fault, it very well may be. But is this the sort of country we have: the type that splits families apart, and flings someone into an indeterminable detention, maybe far away from that family, and then finally to the country they originally fled from? Isn't that what the Soviet "new European order" was doing? Does the United States really stand for and support this type of dogma? Does it? Isn't it much easier to admit that a new reality exists within the country, and that the laws are unfit for that reality, and then agree to change them? Isn't it?)

So! You Have Cheated Us! - Guards, Seize Them!

The present strategy of punishing businesses that employ illegal aliens isn't a good idea either because it ignores the reality of how firmly entrenched these people are within the society. Raiding factories and job sites can also cost American workers their jobs. ICE Workplace raids are akin to pulling up the roots to see how the flowers are growing.

Let's take a factory as an example: let's say it employs sixty people on three shifts and one-half of them - thirty - are illegal aliens. The factory makes food products, or chemicals, or does component assembly, and produces one hundred units per shift. The three shifts allow efficiency because 1) there are no overtime costs; 2) the production system, moving continuously through three shifts, has no costly restart process or, for food products, cleaning process; and 3) the three shifts more efficiently utilizes the capital equipment investment. For the sake of simplicity, let's say the business has three customers who each require 100 units of product per shift - the full capacity of the business. Let's say one of the customers has their private labeled product made at the factory.

Then, ICE raids the business and takes away all the illegal alien workers. The business then has the following situation on its hands:

  • With only thirty workers, the factory can only work one shift, so only one of the three customers can still do business with the company. The private label customer is definitely gone because the third shift customarily produces the private label products.
  • Since first shift usually covers expenses, and second shift generates the approximate gross profits, the company can't grow until it can man at least more than one shift.
  • Operating costs are now much higher because of i) overtime pay, if any; ii) restart expenses (and if it's food packaging, cleaning costs); and iii) because the equipment is only running for one shift per day, the cost of capital investment is now higher. The factory can't meet its costs of operation. The company can't stay in business.
  • What about hiring more American workers? It's not as easy as it sounds. If the factory is located in California, or Northern New Jersey, Westchester county New York, or Connecticut, or at least a dozen other places; young people don't want to do factory work (or landscape work, or construction work, or restaurant work). You can't find the labor. Ask some business people there.

So the ICE raid effectively closes the business and another thirty American workers become unemployed. And I'm not mentioning the collateral businesses that service and supply the factory. (I also won't mention that most businesses like this have payroll taxes taken out of the illegal alien's paychecks, so they're paying for benefits they're never using). This is the reality of KGB-type raids on a shadow workforce.

Even if you can replace the illegal aliens with American labor, it's a good bet that the alien workforce in the factory will be about thirty percent in one year. The immigrant population is just too numerous and too willing to work hard. What's the option then, raid the factory every year?

And let's not forget the resources expended to target and raid the factory, and ultimately put it out of business. How much money is spent to ultimately clear out workers like these - tens, hundreds of thousands, upwards of a million dollars? This is so backward that it's actually funny: throwing money we don't have at the answer to the wrong question.

What's the Correct Question, Polkovnik?

The only question is, "How do we get these people above ground, and legitimize them, in a sensible way that benefits the country?" For all the screaming television pundits, and the deadening podium talk about "what the American People want", and for all the hysterical and clown-like radio talk shows; ultimately all these aliens have to be somewhere. They must be given a sensible option for integrating themselves into American society. The longer we wait the worse the problem grows. No other realistic option exists. (All the policy makers know this, by the way; they just need to have a political pissing match first. And they're pissing on your tax money).

Solutions - Penalty Fees, Taxes, Growth

We can integrate these undocumented aliens pretty easily. Federal and State revenue can be increased while we bring the aliens into the mainstream. We exchange the right to be a legal resident for money. Most undocumented aliens would eagerly embrace this idea.

The US could institute a penalty fee. It can be substantial, say between twenty and fifty thousand dollars, depending on the facts, the category each alien is in. We then give the person a fair amount of time to pay it - ten years, twenty… It could be like a student loan. Until residency is obtained, or even beyond that, the individual is placed in a higher tax bracket, maybe fifteen to twenty five percent above the mean. If the existing tax code happens to be gone (let us pray), then aliens can pay their own proprietary tax - a residency tax. They could also be restricted from becoming public charges. Aliens registering this way would be called "Provisional Residents" or something like that.

In exchange, the person gets a federal provisional residence ID card (PRC). As he stays current with his penalty fee and taxes, the card is updated by punching, or tagging, or electronically marking it. The card solves a lot of problems. Aliens can now get driver's licenses, they can legitimately apply for jobs, they can call the police when Charlie's house get broken into, and they can then collect government benefits they're paying for. Most importantly, these former shadow citizens now become visible, functioning, and documented components of American society. We would now know who they are, and whether or not they're fulfilling their US obligations. They now become integral parts of the machine, rather than fleas jumping from gear to gear.

What happens if they get the card and don't keep the payments up, or don't pay their residency tax? First of all they're not allowed to be public charges, second we can put their payments in deferred status until they're working again. The rules would be very lenient. But for those who abuse the system in bad faith, there's an easy solution. Because we now know who and where they are, we can efficiently remove them from the country. The provisional residency idea could be similar to the visa waiver program, where recipients agree to waive any defense to removal in the event of a violation. And the punishment would be much swifter and tougher because the provisional residency rules are much more liberal, so time and money is saved before immigration judges. ICE, USCIS and the DOJ can now do their jobs effectively because they won't be hopelessly trying to keep track of, and race after, about twenty million illegal aliens. Their jobs become manageable, not borderline futile.

A good idea - immigration control and enforcement that actually works. All the trouble-makers will be infinitely easier to track once everyone or nearly everyone is documented. As an example, with one hundred people documented, it's easier and cheaper to enforce the law against ten who don't obey the law or aren't documented. Isn't that easier than trying to root out the wrongdoers when none of the one hundred are documented? … or trying to go after all one hundred? Enforcing laws is very tough when you don't know where anyone is, or who they are. You're chasing ghosts.

Prevent EWI's

This PRC scheme would greatly reduce aliens illegally entering the country without inspection. It would probably eliminate it. How?

  • Since all former illegal aliens would now have documentation, and can work, employers wouldn't need to take any risks. They wouldn't need anyone that didn't have a PRC;
  • There'd be liberal means to get a PRC, so only inadmissible or deportable aliens wouldn't have one;
  • Entering without inspection could carry a higher penalty fee for future violators, perhaps even twice as high as someone who is inspected by a border patrol officer. There we have i) easy incentive to legally enter the US, and ii) a simple solution for those that don't.
  • Once the new laws remove the incentive for breaking it, the problem goes away.

Note: These suggestions aren't perfect - I know that. But they'd work. They'd work much better than the existing laws, which don't work at all. The country would be able to draw revenue and value from this massive population, instead of pretending it's not there. And we could also stop pretending that our system of laws isn't being battered and called into question. Just as tax reform critics start poking holes in the idea of a new tax code before it's even drafted, let's not demonize an idea before trying it.

What about the immigrants already in the system, who played by the rules? How about this: If they qualify, they're in, with a green card. No waiting, no penalty fee, no higher or specialty tax bracket. They're in.

We'll be Overrun? …We're Already Overrun

What if we are overwhelmed with new groups of Central and South American Nationals, all coming to the US wanting to take advantage of the new laws? Well, they're coming anyway, and they'll continue to come. Rather than be fearful, maybe we'd be better off welcoming these people. And we can also enrich and expand the country economically. (I heard someone say that if all the illegal immigrants in the US looked like Norwegians, no one would care about any of this).

The immigrant population, especially the Hispanics, represent tremendous economic potential. Once they have a path to permanent residency, they won't indefinitely continue as landscapers and construction day laborers - they'll start their own businesses. The entrepreneurship potential among these groups is massive ( for proof, walk down Speedwell Avenue in Morristown NJ to see just a fraction of the potential). All these new business owners, eagerly, will employ scores of people, render valuable service, pay fees and taxes, and most of all expand the economy. No doubt, the country will change in ways we cannot foresee. But the important point is, we'd be in control of the change: we could observe, monitor, adjust it, and shape it. Presently, this hidden subculture within the country continues to expand, but we have no control over it. We can't utilize it.

Guards! Seize Him!

There's no question that some indigenous Americans aren't going to like this idea. They'll want to tar and feather me, and throw me into an American gulag, along with my immigration reform ideas. They'll see it as "foreigners" taking US jobs. If we were a Soviet style, state controlled, closed society, that might make sense; but with an open, free enterprise system like the US has, that notion is quite ridiculous.

How about a little straight talk here, Comrade? The real problem is that Americans have grown far too "fat." Too many American now feel entitled to a quality life without needing to work for it. That's the real problem. Too many Americans resent immigrant workers, Hispanics particularly, because most immigrants are willing to work as hard as necessary to obtain the lifestyle they want. They make us look bad. So if we Americans must improve ourselves a bit to add the needed value to the marketplace, that's a good thing. If one of the consequences of a new immigration code is that mediocre, sloppy work is no longer acceptable in American workplaces, and that American employers no longer have to settle for surly, disinterested workers; then that's a good thing too. What's the alternative? Wearing an "Underachiever and Proud of It" T-shirt while plotting the new economy from the couch between Coors Lites? …Dude?

Remember The Chevy Citation?

Let's not forget that much of the world, especially China, India, and smaller countries like Taiwan - want our lifestyle and our economic power and they're willing to work for it. "Work" is the key word here. None of these folks are any smarter, or more capable than us; they're just outworking us. So if we can, with workable reforms, supercharge a new economy with help from a potentially huge immigrant commercial engine, we should do it. The resource is already within our reach. If indigenous (Bigoted? Lazy?) Americans don't like it, that's too bad. Remember when Ronald Reagan refused to impose tariffs on Japanese cars in the 1980s? There was a massive outcry that Reagan was ruining the US car industry. Actually he saved it. American auto manufacturing, complacent and fat, had to noticeably improve because customers were buying the higher quality Japanese cars. The US auto industry eventually righted itself, with impressive results: no one would question today that Ford automobiles are as well designed, engineered, and built as, say, Toyotas. Protecting poor quality and mediocrity in any field, for any industry or any group of workers, never succeeds. It nets prohibitively high costs for lousy work.

Long Live the Workers of the Socialist Democracy!

While we're clearing a legal avenue for immigrants to work and live here, let's also make the process for employment visas easier and faster. Why not make it easy for anyone who is qualified to come to the US and work? Why not, as long as an employer wants to hire them? They'll pay taxes and contribute to the economy. What's the argument? - that we'll be overrun with highly educated Indians and Egyptians who'll work harder than Americans? So what? We Americans will get better, or fester in mediocrity. That's a better idea than US companies opening offices in India, or setting up satellite IT offices just over the Canadian border because the immigration system prohibits us from accessing the foreign workforce.

So if immigration reform reshapes the economy, so what? If the immigrant population that's already here is allowed to work legally, so what? If the US allows more highly educated workers to come here and work, so what? And if they want to become citizens and stay here, so what? Soviet five year plans and ideas like bureaucratic collectivism show clearly that i) you can't invent a non-ambitious, non-profit-driven human being, and ii) government control of the marketplace is impossible.

It's nothing but a boost for the US economy if more people are working and creating opportunity and new markets, and if the standard for quality work is raised. Marginal contributors to the workforce won't like it, but that's too bad. If a new economy mandates that indigenous Americans improve their skills in order to give value to the marketplace, that's a wonderful idea (What's the alternative - seal ourselves in a police state so we can do lousy work?). America doesn't have any scarcity of opportunity, or space, or housing, or business ideas, or potential, or ambition, or desire to contribute. Capitalism is fueled by those things. There's plenty to go around, for the immigrants and for us. The alternative is a quasi state controlled economy that droops in the global market while, protected against competition, the underperforming American workers collectively slouch: The Heroes of Socialist Labor! Da?

Conclusion (mercifully)

The illegal immigration problem is insidious, primarily because it immeasurably threatens the greatest wealth we possess: our system of laws. We cannot continue to tolerate this secret subclass of people; people who live an Alice-in-wonderland existence, enmeshed and interwoven within our communities. It's terribly unfortunate that the immigration laws won't allow them to live here legally because it calls our immigration laws into question. It's also very dangerous that these folks are, at present, afraid to "get caught", so they're afraid to comply with the laws that protect the rest of us (and them). This calls the rest of our laws into question. All of this is foul and must be stopped. The laws are the country's foundation, and this applies in the US more than in any other country.

An economically and legally viable solution can legitimize this sunken immigrant world. It can increase government revenue, and it can massively grow the economy. These reforms will change the makeup of the country, but we must realize that this secret society of people is changing the country anyway. New reforms will allow us to control the change, and the laws will again empower us, not shackle us. Protectionists won't like it, but even they will eventually realize that the marketplace responds to value put in, not to entitlement. We can't wall ourselves in so we can do poor work, comrade. Let's release this powerful immigrant population we have from this nether world they're in. Let's light a new path for them, and for us.

About The Author

Anthony Guidice is an Immigration Lawyer practicing in Morristown, NJ. His website is He can be reached at (585)478-0555. Mr Guidice is an expert in his own opinion, cannot cite the INA from memory, and once spoke to a client for almost fifteen minutes without looking at his watch. His articles on immigration law and policy have been read by nearly two dozen people.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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