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Judge H. Lee Sarokin

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The New Driving While Black: Walking While Looking Illegal

Posted: 10/04/11 05:13 PM ET

States throughout the country are looking for ways to simplify the location and identification of illegal immigrants and ease their subsequent and swift departure. The war on illegal immigrants is akin to the war on drugs. Billions will be expended. Hundreds of thousands of law enforcement men (and women) hours will be spent along with related judicial and administrative hearings. Jails will be filled. A miniscule number will be discovered and punished and some deported. But nevertheless, 20 to 40 million illegal immigrants will still remain in the country.

The standards for conducting stops and making inquiries raise important constitutional questions. But beyond those important questions of law, lie the practical issues. We can never deport all of the persons who are here illegally. Something sensible and practical must be done to incorporate them legally into our society. I start with the assumption that most come here to be law abiding and not to commit crimes. They are here simply to feed their families. A few, possibly due to their desperate circumstances revert to crime, but most are hard working. Strangely, even as to those who commit crimes, the knee-jerk policy of deporting them does not always make sense.

This is an excerpt from an opinion I wrote 15 years ago in which the government sought deportation:

The defendant entered this country at age 12; he has lived here for 36 years; he has been married to an American citizen for 24 years; he has raised 3 children all of whom are American citizens; his elderly parents are American citizens; 2 of his 4 siblings are naturalized American citizens and all 4 of them reside permanently in the United States; he has no ties to Colombia, the country to which he is to be deported; and he has fully served the sentence imposed upon him. If deportation under such circumstances is not cruel and unusual punishment, it is difficult to envision what is. Scheidemann v. I.N.S. 83 F.3d 1517,1527 (3rd Cir. 1996)

I do not doubt that strict enforcement, punishment and deportation have some deterrent effect, but I suspect that it is miniscule. Frankly I think just the opposite happens by virtue of the present policies. It encourages illegal immigrants to conceal their status at any cost, including recently keeping their children out of the public schools for fear of detection. Gov. Perry is ridiculed by has opponents for his program to educate children of illegal immigrants. No thought is given as to what will happen to this entire generation of those children if they are not educated! Is that what is best for America!

Yes, people are here illegally and many of them are receiving the benefits America has to offer without complying with our laws or standing in line like others. But it is impractical to send them all home. The time has come to deal with them as members of our society -- not outcasts. Many wise proposals have been made to incorporate them into the fabric of America, but the old fears persist: They take away our jobs; they receive benefits without contributing, they benefit from breaking the law; they have leaped over those who waited legally and patiently; their acceptance affects the balance of political power in the country; many are criminals. I suppose there are more. But these are the ones I have heard over and over.

But there is the sheer practicality that something must be done. They are not going away either voluntarily or through deportation. Many do work that Americans will not do. Many employers rely upon them and undoubtedly take advantage of them because of their status. This issue is exacerbated by the state of the economy. Good times would make it less of an emotional issue. But the answer isn't more lenient standards for stop and question, interrogating or investigating school children or raiding employers.

Hispanics should not be stopped and asked whether or not they are here illegally and required to prove it any more than anyone of us should be subjected to that. They should not be deported and lose their livelihood and possibly leave their families behind unless they have committed a serious crime -- other than being in this country illegally. For many, deportation means leaving their family here. There is talk in this country now whether life in prison without parole is a satisfactory substitute for the death penalty. Being forced to leave your family and return to a country where you may no longer have any ties, may be just as severe punishment as either of these alternatives. And remember, deportation frequently follows served time.

Yes, let's kick out the really bad guys, but find a way to keep the hard-working ones whose only crime is motivated by the desire to feed their families. The conservatives may argue about evolution, but even they cannot deny that every one of us is descended from an immigrant. I don't propose making it easy -- just humane. The laws are attempting to make illegal immigration like a contagious disease. If anyone gets anywhere near it, they too shall suffer. Better yet to have a cure rather than try to spread the disease.