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Bloggings on Immigration Law

by Roger Algase

Bloggings: Jose Antonio Vargas - does he stand a chance? by Roger Algase

Does Pulitzer Prize winning journalist Jose Antonio Vargas stand a chance of avoiding deportation after "coming out" of the "undocumented immigrant" closet? Not, it would appear, based on the guidelines for using prosecutorial discretion not to institute deportation proceedings in the June 17 memo by John Morton, the director of Immigration and Customs Enforcement ("ICE") There is nothing in that memo about winning a Pulitzer Prize as an "equity" for deciding not to go ahead with deportation.

Even if a Pulitzer Prize were on the "equities" list, the Morton memo makes clear that it is not binding on anyone and does not create any rights. The only guideline is that the memo should be implemented consistent with agency goals. I am not aware that ICE has ever listed maintaining an adequate supply of Pulitzer Prize winners as one of its goals. 

To the contrary, Vargas more likely qualifies for a place on Morton's "negative equities" list. Vargas claims to have used fake documents to misrepresent his status in the past, even, apparently, to gain admission to the White House, as well as employment with a well known media organization. Clearly, Vargas did not come out of the closet in order to try to gain sympathy as a hardship case. Instead, his statement is a challenge to the entire immigration enforcement system.

Inevitably, one has to compare Vargas' courageous action with those of Rosa Parks and the many other civil rights protesters who openly defied the Southern racial segregation laws in the 1950's and 1960's. They were prepared to go to jail for their convictions, and they often did. In the same way, Vargas is prepared to be deported, and he very well may be.

But how valid is this comparison? The racial segregation laws were inherently evil, and, ergo, so was any attempt to enforce them, even if under the color of law. But one cannot say the same about the US immigration laws. I am not a big fan of "dang fences",  removal proceesings, E-Verify, "Secure Communities" or any other of the Orwellian sounding measures that are being taken now to control immigration.  But there are between 2-3 billion people on this planet. No one would claim that there is room for them all in the US, even assuming that they all wanted to come here, as quite a few of them no doubt do.

I am not an "open borders" supporter any more than anyone else on either side of the immigration argument. There have to be restrictions on immigration, and restrictions are meaningless if they are not enforced.  But Vargas' action in coming out and risking deportation is not meant as a protest against the idea of having a system of immigration laws per se.  It is, rather, a protest against the laws as they are now, and the way they are enforced. America does not need to abolish immigration controls. It needs to make the system fairer, more in tune with reality, and more humane. That, as I see it, is what Vargas' action is about.

How can the system be changed in order to give some meaning to Vargas' protest and ensure that, if he is deported, his actions were not in vain? A good way to answer this question might be by giving an example of how not to change the system. This example is the Senate Democratic leadership's recent announcement that they are going to introduce an immigration reform bill this year, even without a single Republican to support it.

What a waste! Last year, the DREAM act, a much smaller step than comprehensive reform would be, failed to pass the Senate even with three Republican votes. Even if a miracle took place and some kind of reform bill were to get throught the Senate this year, it would be Dead On Arrival in the House. There is an old Japanese saying: if a person cannot get across a ditch three feet wide, how can he cross a mile wide river?

The only way the Democrats can get across the river of comprehensive immigration reform is to play hardball - a moratorium on all deportations and related internal inforcement action: E-Verify, "Secure Communities", detention, 287(g), the works (I do not include controls over admissions and reasonable border enforcement -this has to go on under any circumstances), until the Republicans agree to a decent, meaningful reform bill, including one with the hated "A" word, Amnesty, in some form or other.

Of course, this would increase Obama's risk  of not being re-elected. But is there not a time when the courage to stand up for what is right takes precedence over what is expedient? That, I believe, is the challenge that Jose Antonio Vargas has thrown down to the president and everyone else who claims to believe in a fair and rational immigration system. Who among our leaders will have the courage to take him up on this challenge?


About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years

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