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May 22, 2006

Fruits of the Poisonous Tree

You only have to watch Law & Order for a month to hear the words "fruits of the poisonous tree". Apparently -- I'm no lawyer, but I watch L&O -- this is a doctrine in US law that says that evidence discovered through information gathered by illegal or unconstitutional means (such as a forced confession) may not be introduced by a prosecutor. The theory is that the "tree" (original illegal means) is poisoned and therfore poisons anything that "grows" from it.

I came to think of this as I listened to those who argue for amnesty for illegal aliens. They argue that many illegal aliens have been here in the US for years, held jobs, built homes, raised families and otherwise been contributing to our society. 

While all of this is laudable behavior, isn't all of it -- the job, the prosperity -- "fruit of the poisonous tree"? None of that would have happened had there not been a series of "poisoned" acts. First, the illegal alien would have entered the country without appropriate documentation or permission. Second, the illegal alien would have been hired by an employer who did not validate the alien's right to hold a job. Third, the illegal alien and/or employer may have used false identification -- Social Security numbers, driver's licenses -- to report payroll, pay payroll and income taxes, and so forth.

Without having engaged in these illegal acts, the illegal alien would not be held up as one who has held the job, would not be able to build a home, could not afford to raise a family.

A principle of Good Government would hold, properly, that one should not profit from illegal activities. That principle underlies other laws. Drug enforcement is permitted to seize homes, cars, boats and other assets gained through drug sales. Likewise, the IRS seizes assets in cases of tax fraud. And, of course, the "fruits of the poisonous tree" blocks prosecution when the prosecutor proceeds illegally.

So this is not a new principle. Nor is it one to be abandoned when we consider what to do about illegal aliens. When we look for a resolution to the problem of illegal aliens, we would be wise to dismiss the argument that these illegal aliens have been here for a long time, prospered and contributed to the community. All of that, however laudable, must be labeled "fruits of the poisonous tree" and rejected.

 

 

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May 15, 2006

Immigrants, Nonimmigrants and Illegal Aliens

A few weeks ago, I read -- for the first time -- the rules and laws related to US immigration. I learned:

  • Immigrants are those who have (or are seeking) permanent residence in the US
  • Nonimmigrants (visitors) are those who are here temporarily, for example to visit or work in the US

I probably should have known this already, since I have worked with both Immigrants and Nonimmigrants over the last many years.

If you are here on an H-1B visa, you are a nonimmigrant -- for example, a temporary worker. The visa is only good for up to 3 years, renewable up to 6 years. There are many other classifications for visas.

If you have, or are applying for, a "green card", you are an immigrant -- also know as "lawful permanent resident" (LPR). The green card must be renewed every 10 years, and renewal can be denied.

So what does "illegal immigrant" mean? My guess is that an "illegal immigrant" is someone who is behaving like a permanent resident but doesn't have a green card.

If you are just here to work temporarily -- seasonal work, for example -- but don't have a visa, you would be an "illegal alien".

The public discussion of the "immigration problem" has so tangled itself in using the words "immigrant", "illegals", "illegal alien" and so on that it's hard to have a meaningful debate. And the mobs in the street are chanting for the rights of immigrants, which no thoughtful person disagrees with.

So here's my contribution to the noise: a proposal for the "comprehensive immigration reform" that I've sent to my congressional representatives....you can download the file in PDF or ...

 

Definitions:

A FOREIGN NATIONAL is any person who is not a citizen of the US and is present in the US.

 

An ILLEGAL ALIEN is any FOREIGN NATIONAL who has not acquired authentic entry documents from the appropriate US agency (CIS/INS, State Department, etc.)

 

  • An ILLEGAL IMMIGRANT is an ILLEGAL ALIEN.

 

An IMMIGRANT is any FOREIGN NATIONAL who has acquired authentic entry documents from the appropriate US agency, specifically a “green card” attesting to that person’s status as a lawful permanent resident (LPR).

 

A TEMPORARY VISITOR is any FOREIGN NATIONAL who has acquired authentic entry documents from the appropriate US agency, specifically a Nonimmigrant Visa or an Immigrant Visa attesting to that person’s status as a temporary visitor to the US.

 

The grace period is a time period that begins with the effective date of this legislation and terminates one-hundred and eighty (180) days[1] after the effective date of this legislation.

 

Transition Rules:

During the grace period, the following processing options will be made available to ILLEGAL ALIENs:

 

  1. An ILLEGAL ALIEN who enters the US during the grace period is subject to arrest and deportation.
  2. An ILLEGAL ALIEN present in the US before the effective date of this legislation must do one of the following before the grace period terminates:
    1. leave the US[2], or
    2. become a TEMPORARY VISITOR[3], or
    3. become an IMMIGRANT, or
    4. become a citizen of the US
  3. An ILLEGAL ALIEN who applies for an entry document will be given the same priority[4]
  4. as if that ILLEGAL ALIEN had initially presented himself or herself at the appropriate US consulate or embassy.
  5. The CIS/INS or the Department of State is authorized to establish locations within the US[5] where the agency will accept and process the Visa or LPR applications of ILLEGAL ALIENS. These locations will accept and process these applications during the grace period only. Funding for the establishment, staffing and operation of these locations will be obtained from the currently-existing agency funding.[6]

 

Enforcement Actions:

During the grace period, no enforcement actions will be taken relative to ILLEGAL ALIENS who are present in the US prior to the effective date of the legislation.

 

Once the grace period terminates, these enforcement actions will be in effect:

 

  1. An ILLEGAL ALIEN found within the US after the grace period terminates is subject to arrest and deportation[7].
  2. Any person employing an ILLEGAL ALIEN after the grace period terminates is guilty of a misdemeanor[8] and is subject to arrest and imprisonment for not less than thirty (30) days and not more than one-hundred and twenty (120) days for each employment instance[9][10].

 



[1] The grace period could be up to 1 year, but no longer than that.

[2] It is not necessary for the illegal alien to return to his/her home country, only that he/she leave the US.

[3] It is not sufficient for a foreign national to apply for a Visa during the grace period. The foreign national must successfully complete the Visa request application process and must acquire an authentic Visa or an authentic LPR card from the appropriate US agency before the grace period terminates, or must leave the US.

[4] Effectively, this means that the illegal alien begins his/her application process at “the back of the line”. This allows those who have been waiting to hold on to their position without being disadvantaged by the insertion of potentially millions of illegal aliens.

[5] If the CIS/INS or State Department choose to establish these locations within the US, it will not be necessary for the illegal alien to return to his/her home country in order to make the application.

[6] No additional money will be budgeted to create these locations. It is left to the agency to determine whether such locations can be established and how they will be funded.

[7] The status of the illegal alien’s application for a visa is not relevant to his/her arrest and deportation. The foreign national must have successfully completed the application process and must have acquired an authentic Visa prior to the termination of the grace period.

[8] This provision defines the crime as a misdemeanor with a minimum punishment of 30 days in prison. The benefit of this is to avoid the prosecutorial burden of a felony charge (typically requiring a grand jury to be convened, and requiring the right to an attorney and so forth) as well as the lasting effects on the guilty person (loss of voting rights, loss of professional license, exclusion from juries, “three strikes” laws, etc.).

[9] An employer may be charged separately for each illegal alien he/she employs. Therefore, if the employer has 10 illegal aliens in his/her employment, the employer can be sentenced to 30 days for each illegal alien served consecutively (300 days total) or served concurrently (30 days total). Discretion is left to the court, on the recommendation of the prosecuting and defense attorneys.

[10] There is no reference here to the crime of conspiracy. It is left to the discretion of the prosecuting authorities to bring a charge of conspiracy against persons who contribute to the crime of employing illegal aliens. Conspirators may include, for example, executives aware of but not directly involved in the hiring of illegal aliens, persons supplying illegal aliens to employers, or employers who engage illegal aliens through a contracting firm which employs the illegal aliens.

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May 05, 2006

Governing is Not Like Running A Business

On the NPR program "Day to Day" (May 4 2006),  Doug Sutherland, Lands Commissioner for Washington State, says:

"I got rid of bare land...As forest land, it had little or no value."

Reporter Austin Jenkins continues: 

Sutherland fiercely defends the land swap as a smart business move. He says the forest was no longer earning any money for Washington schools; by contrast, the Walgreen's (drug store) will bring in nearly half-a-million dollars (per) year.

In Idaho, the Director of the Department of Lands is "fulfilling his responsibility to maximize long-term profits"....

"Do I feel funny about it? Not really, because we're running a business and businesses to be successful need to be alert to new opportunities....I just see this as a legitimate outgrowth of the urbanization that's taking place in a lot of the Western communities".

The thought that running the government is akin to "running a business" is wrong-headed. Governing the public is nothing like managing a commercial business. The motivations are different. The success metrics are different. The engagement is different.

Good Government works in the public trust. Good Government does not make decisions based on profit, even when the profit is for public purposes. The public trust -- a long-term view for this and future generations -- trumps profit every time.


 


 

 

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May 04, 2006

One Branch of Government

"The House will not take up an emergency supplemental spending bill for Katrina and the war in Iraq that spends one dollar more than what the president asks for," said House Majority Leader John Boehner, R-Ohio. "Period." (USA Today, Updated 5/4/2006 9:08 PM ET)

This is an interesting commentary on what the role of the House of Representatives is in the US form of government.

Good Government would think that the Congress makes its determination of what programs are in need of emergency funding and submits that to the President for his/her approval. But this statement turns that around. This statement says that the President dictates what will be paid for and how much will be paid, and the Congress takes an "up or down" vote.

Mr. Boehner should take a lesson in civics -- or maybe replay Schoolhouse Rock's "I'm Just A Bill".

 

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