Posted by: birdsongslaw | January 19, 2009

ICE And Despair

One of Birdsong’s favorite refugee law students is Terry Hanson.  Birdsong oversaw Mr. Hanson’s refugee research last semester.  Mr. Hanson believes our immigration system is terrible and that the current system needs to be abolished in order to encourage more people to come to the U.S. who wish to work and build our economy.
Based upon his research Mr. Hanson has written a paper aptly entitled “ICE and Despair. He has given Birdsong permission to post information about himself, as well as his paper.  Read and learn.

 Edward R. “Terry” Hanson is a retired Air Force officer as well as a retired Air Line Captain. He has over 14,000 hours of flying time in a plethora of different aircraft. He flew KC-135 tankers during active duty in the Air Force.  His last position before medically retiring from the airline business was Line Check Pilot on the 757 and 767 aircraft. He is planning on graduating from Barry University School of Law in Spring 2009. That is 41 years after he received his undergraduate degree from the University of South Florida. He will practice law in Tampa with his brother Michael A. Hanson, Esq. 

 

ICE and Despair

 

 

Introduction

 In the early 1980’s I was a Second Officer/Flight Engineer for a major airline, based in Miami.[1] I started and ended every trip at the Miami airport. The runways at Miami are aligned to an east-west orientation.[2] Landing to the east, we always made a turn at the edge of civilization, where the infrastructure stopped and the Everglades claimed dominion. The North-South road marking the boundary between the good life and the wildlife is Krome Avenue.[3]

Every time I flew over that road I could see it, the Krome Avenue Detention Center.[4] It has been described as a part of an American gulag.[5] It looked like a naked scar of scraped and cleared coral surrounded on three sides by swamp and the fourth side by the street barrier.[6] Within the scar people lay warehoused in limbo, waiting for a resolution to their status. Would they be allowed to merge within the country or would the entire might of the State be used to throw them back across the sea to the places they had risked so much to flee?[7]

            I first noticed Krome Avenue two years after it had been established as a “stopping off” spot for the people who sought illegal entry into the United States.[8] The facilities there[9] did not contrast favorably with those at its more famous late 19th century/early 20th century cousin, Ellis Island.

Krome had cots and when the cots were full it used pads and sleeping slings to crowd its “huddled masses”[10] within the confines of the Wire. Ellis had beds, family rooms, and people who worked hard to process for entry the millions that traversed its floors.[11]

Ellis radiated hope and fulfillment through the generations since the 1890’s when my great-grandmother, Bridget Bresnahan of County Claire, daintily stood in line, grasping her only real treasure from her home in Ireland a crystal sugar bowl swaddled within the burlap bag that held all her other worldly possessions waiting for the efficient questioning that would gain her entrance to America.[12]

In the 1980’s Krome was a place of hopeful despair. Efficiency wasn’t a concern. The mission of the people who worked at Krome was exclusion from the American dream, not acceptance and welcome. And the people weren’t Irish, Italian, or German. They were Cuban Marielitos, Columbians, but mostly Haitians.[13] Despite the oppressive heat, miserable living conditions, treacherous guards[14], and interminable delays that cast a net of despair over Krome Avenue, these people harbored hope. They had surmounted incredible obstacles, survived innumerable natural and man-made terrors.[15] Yet they were here, camped on the edge of Americanot quite in but not totally excluded either. While their feet still stood on American soil, they carefully sheltered the flicker of hope that they could stay.

This paper is about those people, the dispossessed strangers to our shores, and the abuse of the law of our land in their intentional exclusion at the hands of a callous government. And finally, this paper suggests a multi-pronged remedy to the refugee problem emanating from the Caribbean and South America.

II.

A Mouth Full of Hate, A Litany of Fear

 

Hatred is usually based upon fear.[16] Fear of the stranger, of the outsider, of the unknown is something everyone deals with as they grow up. It may be hardwired within us, a survival reflex left over from our evolutionary past. But the time is come to put this reflex aside, to grow beyond it.

The undercurrent buried within the American psyche for the last 20 years has been fear of the illegal immigrant.[17] We fear the Mexicans and the Chinese, but not the Russians. Could it be the fact that Mexicans are brown and Chinese yellow but we have always sided with the White Russians?[18] Lately Americans tremble at the sight of Middle Easterners. Does it really come down to a matter of color or race?[19]

It has long been proffered in race studies that the poor of a uniform society have no one other than the outsider to step upon to raise themselves up.[20] It is axiomatic that a social pecking order requires that someone occupy the bottom rung. It seems that the closer a people get to the social norm, the less likely it is that they will be prejudiced against.[21] Conversely, the further one deviates from the “social ideal”, the less acceptance one can expect from the dominant society. This is not just an American phenomenon. It is a human condition.[22]

The concept of the Nordic ideal created outrageous consequences for the world in the 1930s and 1940s.[23] The Japanese insistence of the purity of their bloodline led directly to the obscenity of the Rape of Nanking[24] and to the de facto continuing second-class citizenship of the Okinawan people[25] to their south and to the Ainu[26] in their northern islands. It seems that each country has someone within its boundaries that the majority exploits or despises.

 It is the strangeness that unsettles the majority so. The United States is not a monolithic society. We are a stew of peoples thrown together within the confines of a huge continent. Yet with all of this space we struggle to rise above what may be a genetic predisposition to exclude people who are not “just like us.”[27] Our treatment of immigrants and illegal aliens is a case in point.

America excludes Haitians because of their language difference, their color and their perceived uncleanliness. For whatever reason Haitians have an elevated incidence of AIDS compared to the other nationals that appeal for entry into the United States[28]. The idea of our shores being swamped by hordes of infected, illiterate refugees who can neither care for themselves and who also pose a risk of overwhelming our medical capabilities with a dread disease creates an atmosphere of distrust and apprehension. Haitians experience particularly onerous treatment by the Immigration and Customs Enforcement (ICE) agency.[29]

But it’s not just Haitians that cause unenlightened Americans to shudder. The influx of refugees from Central and South America over the last two decades has changed not only the complexion of the population but also its accent and culture. The rising tide of illegal immigration in the southwest has led to a concomitant rise in anti-immigrant expression among people who, for want of a better word, are called American nativists.[30] For the most part the nativists express fear the subordination of their rights and culture to the rights and culture of the newcomers. Fear can be expressed in anger, hostility, and hatred. Mining the aggregate angst, politicians create hatred-based policy that exacerbates their constituents’ anxiety rather than assuages it. Essentially they play to the lowest common denominator within their districts.

The great debate of the early 21st century is not about immigrants illegally crossing our borders. That is already settled. We have not and cannot secure our borders and still remain the “shining city on the hill.” Our self image as the “beacon of democracy” and “land of opportunity” is jeopardized by the reality of a thousand mile border fence and jack booted, quasi-military, nativist militia patrolling the desert, hunting coyotes[31] and their precious human cargo. The American people strongly resist the awareness of the mirror.[32]

The great debate of our time is how do we accommodate the new occupants within our territory? Do we treat them as squatters, intruders, and criminals who must be followed carefully in our stores lest they steal more from us than just the air that they breathe or the water they drink? Do we incarcerate them in vast camps? Do we exclude them from participating in our democracy? Do we exploit them? Or do we treat them with dignity as fellow human beings who can contribute to our society and make us a greater people with their diversity? If past is indeed prologue[33], we will do the former with more regularity and vigor than the latter. America is less than its promise because of it. And yet, still this author hopes that we can be better than our fear commands us to be.

III.

Guardians Barring the Gate

The United States Coast Guard is charged with performing interceptions on the high seas. Over the decades the Coast Guard intercepted thousands of “illegal” Haitians  under the color of rendering safety assistance to over-crowded, unsafe vessels.[34] (It is curious. If one is on the “high seas”, how can one be “illegal?” Within the definition of “high seas” is the term “freedom of navigation.” That means the high seas are free for all to use and restricted by none.[35]) Yet the Coast Guard forcefully returns the people they intercept to their country of origin.

The United States Border Patrol does the same at our land borders with Canada and Mexico. They also man our ports of entry. For 2005 alone, the Border Patrol apprehended over 1.18 million people.[36] The problem is staggering. Millions of people strive to enter the United States annually in order to do what? Most of them flee appalling economic conditions to seek a better means of living. Their illegality rests upon that fact. The United States does not view economic hardship as a valid rationale for immigration. It is not one of the enumerated factors allowing refugee status.[37] Perhaps it should be.

            The cost of keeping people out of the United States is immense. The Coast Guard budget for migrant interdiction alone since 2007 has been almost 2 billion dollars.[38] Many multiples of billions of dollars are spent annually in pursuit of the policy of denying entrance to economic migrants and dealing with the reality of the failure of the policy to deter people from attempting entry.[39] Although this effort has resulted in increased employment opportunities in law enforcement and building trades, some of which provide jobs for illegal immigrants,[40] perhaps we could more efficiently use our capital in the task of integrating those who come to the United States to work.[41]

Pundits frequently refer to the migration of people as a “rising tide.”[42] It is an apt analogy. First, the tide is inexorable. No force on earth can stop it. Secondly, a rising tide floats all boats. This author asserts that the rising tide of migrants to the United States will lift all the population, both native and illegal, to more fortunate conditions. But, it appears the success of a more open immigration policy will not flow equally to all groups. The Canadian experience suggests that due to visible racial differences and incipient prejudicial attitudes, not everyone will equally benefit.[43] Pragmatism forces this author to conclude that an unequal benefit for all is preferable to no benefit for some. We can work on redistributing the flow after we open the spigots.

IV.

Opening the Spigots: A more Comprehensive Interpretation of the Law

The enabling act for Immigration is 8 U.S.C. A. § 1101 as amended. INA §101(a)(42) the definition of the term “refugee” is the root cause of the egregious manner in which the United States Citizenship and Immigration Service treats those who strive to come to our shores by any means necessary. Understand this. The USCIS and its constituent agencies are not at fault here. They have been directed to interpret the law as it is, not as perhaps it should be. The part of  INA § 101(a)(42) that this paper is most concerned with is as follows:

“The term “refugee” means (A) any person who is unable or unwilling to avail himself or herself of the protection of , that country because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion…”[44]

            The argument regarding the precise definition of both “well founded” and “fear of persecution” has led to judicial straining as the courts sought to craft opinions that do not insult the intelligence of thoughtful people.

            “Well founded” is defined as at least a 10 % chance that the refugee will be persecuted.[45] The Supreme Court struggled with the concept of exactly how the terms “well-founded” and “clear probability” interact.  INS v. Cardoza-Fonseca, 480 U.S. 421, (1987) put to bed the INS struggle to equate a “clear probability” of persecution with “well founded fear of persecution.” Cardoza also instructs that the well founded fear must be both subjectively genuine and objectively reasonable.[46] Credible testimony satisfies the subjective component.[47]

            The Board of Immigration Appeal records are full of contrasting arguments as to what constitutes a well founded fear of persecution. The interim decisions tear that phrase into its constituent parts and parse the words with the elegance and lack of compassion that is more suited to an academic exercise than an inquiry into the quality of life of a refugee or aspiring immigrant.[48] As stated supra, Cardoza settled that well founded fear had both a subjective as well as an objective component. Subjective means that the applicant for asylum/ illegal immigrant had to personally fear that his return to his place of origin would result in persecution.

            But that really is not enough for the CIS to call off the ICE people. The nature of the persecution had to be extreme enough to qualify under the INA. That presents a problem for jurists. They must define exactly what “extreme” means. In the cool chambers of a law library, the word “extreme” can conjure up only the grotesque as applying. In the field, in those dark buildings at the west end of the runway at El Salvador’s airport, extreme takes on another connotation. The mental duress of a prisoner as he waits for his turn on the generator drenches the room with the stench of fear. As they attach the electrodes to his gonads, his penis shrinks and the guards laugh. Fear and humiliation seize the prisoner’s mind. Even if they do not turn the crank, the prisoner defecates on himself. Similar things can await a refugee upon his return to “home.”[49] Is that extreme enough? Not really.   

The US government engaged in linguistic gymnastics to be able to allow itself the use of enhanced interrogation techniques since 2001. Most of those enhanced interrogation techniques are the modern equivalents to the rack[50], thumbscrews[51], and the quaint old New England custom of dunking.[52] Yet, lawyers were found who could rationalize enhanced interrogation as legal[53]. Similar arabesques have been performed by ICE and INS to qualify state-of-origin persecution as not severe enough to trigger either the Convention Against Torture (CAT) provision denying refoulement or the provision for asylum found in INA § 101 (a)(42).

Frankly, this author thinks that the time has come to rethink the entire rationale of the persecution criteria for asylum. Even more sweeping, this author believes that the concept of immigration itself should be re-thought. But, sweeping changes and new thought will have to wait until the Conclusion of the paper.

V.

Restricting the Flow based upon

race, religion, nationality, membership in a particular social group, or political opinion.

            Even while the Supreme Court danced around the gradations of fear, persecution, and variations upon the theme of “well founded” versus “clear probability”, the CIS and its predecessors struggled with the meaning of each of five enumerated categories of people who are permitted refugee status. That meaning is not clearly spelled out in the statute. The courts have difficulty in deciphering the span that each term encompasses. But stare decisis does provide some guidance as to what the courts have interpreted as the meaning the legislature intended.

INA 101(42)(a) enumerates five categories that will permit an applicant access to our shores for asylum. They are race, religion, nationality, membership in a particular social group, or political opinion. The gentle reader is called to note that the operant word in the previous sentence is “enumerate.” The Act merely lists the categories and leaves the determination of what factors determine status within the category to the courts. (Really it is left to the only court whose word is final until the Legislature decides otherwise: The Supreme Court of the United States.)

Race would seem to be an easy matter to discern for purposes of the Act. After all, race is based upon appearances. The width of the nose, color of the skin, structure of the hairall of these attributes are historical arbiters of race. Except they can’t be relied upon. The Nazi’s made a pseudo-science of determining race. Their science failed frequently. They found it as difficult to separate blue eyed, blond-haired Jews from the Aryan crowd as we do the blond-haired, blue-eyed Algerian Arabs from the Eurotrash that filters through our ports of entry. Appearances can not be relied upon to determine race. This author is not certain there are any reliable markers as to what race an individual is.[54]

Furthermore, when the United States commonly thinks of race as a reason for a well founded fear of persecution, we think of any race other than white. The Court faced this problem in its own oblique way in Gonzales v. Thomas, 547 U.S. 183, (2006). They decided to remand the case for further proceedings. They never reached the determination of what race is. They decided to concentrate on the meaning of social group even though “…the Thomases’ (made) primarily race-related arguments”.[55]

Race appears to be inextricably entwined with nationality and/or membership in a particular social group. It really should not be a category at all; but since it is at present, the CIS, Attorney General, and Supreme Court have further muddied the enumerated categories pond by tying it to simplistic notions. As God might have said in J.B.[56], “take my servants the Turks” had the author, Archibald MacLeish[57] preferred to ponder Immigration rather than the response men make to the evil that befalls them. Hyphenated Turks, (German-Turkish) are still considered mere “guest workers” and certainly not “real Germans” even if they were born in Germany of naturalized German nationals. Totally assimilated German-Turks are still singled out for persecution at the hands of hoodlums because of the swarthy texture of their skin. It is wrong on so many levels. One, not all Turks have swarthy skin. Two, some Turks are indistinguishable from other Mediterranean peoples such as Greeks or Italians. Three, I have met Turks who had blond hair and extremely generous natures. The stereotype does not ring true. Most stereotypes do not.

  But, if we separate the concept of Statism from Nationality, we may illuminate ever so dimly what the ACT is attempting to qualify. Turks are by virtue of their genes part of the “greater Turkish nation.” Those that have jumped through the proper set of hoops are German citizens. The problem is that German citizenship does not equate in most people’s minds with Turkish nationality. The ambiguity is too much for common people, Immigration Judges, CIS bureaucrats, and eminent Supreme Court justices to clarify.[58] So consciously or otherwise, people settle for the easily conceived stereotype rather than the more difficult insight.

If we can not determine with any sort of reliability what the nationality of a Turk naturalized in Germany truly is, how much more difficult is it to qualify the nationality of a man who was born in Lyon, France, served in the French Navy on the Foch Aircraft Carrier as a Super-Etendard pilot, married a French nurse, but who now holds a British passport because he can no longer tolerate the immigrants France has allowed in? What is he?[59] How about the Eritrean girl who lives in Addis-Ababa and holds an Ethiopian passport? What is she? My guess is that the best, most accurate answer is that they are all human. At present that designation does not help in Immigration cases.

Membership in a particular social group is also difficult to nail down as a category for acceptable asylum status. The Supreme Court and the CIS have parried and thrust at the concept. Can a member of a family unit under some circumstances be a member of a particular social group threatened with or persecuted because of that family association?

 At some point we must recognize that squinting at the problem of the “sacred five” will not turn these twisted sisters into anything other than a convenient place for latter-day quasi theologians to argue about not just how many angels can dance on the head of a pin, but also about what kind of angels[60], what combinations of kinds, and what type of dance. A possible interim solution would be to add a sixth category to the enumerated five. That category would be “for whatever reason the Attorney General deems satisfactory in order to comply with the cause of compassionate justice.”

The sixth category will still allow Immigration Judges and the entire CIS apparatus the opportunity to apply the peculiar set of cobbled rules that case law and legislative gerrymandering has produced. The pillars of the old temple would remain intact and the roof of justice would be securely held in place by the dynamic tension of stone precept bonded by gravity to stone precept. It is this author’s contention that creating the new category would only add one more grist mill to the other five that would eventually produce ever finer dust out of the human aspirations of those who seek to add their ambitions to our own. But, adding a sixth “catch-all” category could be an interim step to a more comprehensive rethinking of immigration law.

The problem with immigration and refugee law is not the way the apparatus of the CIS encounters its “clients.” The problem is the law itself and the underlying theory of the distribution of wealth that drives the law.

VI.

Scarcity vs. Cornucopia

 It is not a zero sum.[61] Refugees do not come to us bereft of potential, hat in hand, begging at our table “please sir … more.”[62] The success stories of countless Asian refugees illustrate the possibilities America can offer refugees when it chooses to cast a more or less benign[63] eye to their race and color.

This author had the privilege of knowing Chrissy Ferris, a Vietnamese “boat person” who managed to arrive on our shores in the early 1980s. Chrissy and her barely teenage sister legally processed into the United States with only the clothes on their backs, speaking very little English. Within a decade Chrissy and her sister graduated from college and assimilated into American society. Chrissy married John Ferris, a general practitioner doctor. She bore him four children within five years. She worked tirelessly for her family and was generous with her time and intelligence to all she met. Chrissy died of cancer in the late 1980s. Her sister graduated valedictorian of her high school class and eventually became an oncologist, specializing in the cancer that killed Chrissy.[64]

America benefited from their immigration. This was not a zero sum game. America won more than Chrissy had time to win. But we all did win. Her sister heals the sick, teaches, and pays her considerable taxes. Her children follow in their parents’ footsteps. America is better for allowing these poor waifs to thrive in our land. How many similarly motivated human flotsam do we cavalierly throw back to the sea because we myopically see only the cost and never the opportunity?

The law of Immigration has always been based upon two mutually additive theories. The first is that the country must limit its population as to kind. The second is that the country must limit its population due to scarcity.

            A limitation based upon “kind” supposes that the current ethnic mix is at least tolerable if not preferred. The supposition is that the current population status quo has always been extant. That flies in the face of the history. The American experience is an immigrant experience.

The borders of this country are semi-permeable. Immigrants leak in as easily as a salty solution penetrates a cell wall by osmosis. The laws since the 1870’s have attempted to stem the infusion of nativist-designated undesirables into the bloodlines of the nation. This is an Ostrich approach to the wealth of the nation that ignores the qualitative input that strangers bring to the table.[65]

The original Chinese exclusion laws[66] were based upon the fear of the “Yellow Peril.”[67] Nativists of that time claimed that the country would be overwhelmed by hordes of Chinese looking to supplant Americans (we may assume by that the nativists meant “white” Americans) from the good jobs created in the nation by the net effect of joining the coasts by the railroads in 1869. [It is ironic that the people nativists derided as “coolies”[68] were good enough to build the infrastructure of the railroads but were not good enough to bask in the wealth their manual labor had at least partially earned.[69]]

The “kind” argument was based upon racial notions of preference and superiority. The “not from around here” attitude may be one of the driving factors of the imbalance of Immigration Judge grants of asylum to the number of petitions for asylum made.[70]

The “scarcity” argument for a restriction of immigration is based upon the intellectual hypothesis that the country can only support a finite number of residents. While it is beyond the scope of this paper to refute this completely[71], the author would be remiss by not mentioning that a competing theory exists that postulates that human innovation creates a climate cornucopia.[72]

The “cornucopia” theory posits that much like the numbers of people in a city have definite and discernable effects upon the weather of the city merely by virtue of their personal body heat, so too does human imagination revoke ordinary “laws” of supply and demand by making innovative substitutions for scarce products and elements of production. Scarcity drives innovation when an ever elusive price point is met. Human innovation results in the amplification of resources, not their depletion. The more diverse a population is the more likely generated are unique problem solving approaches driven by cultural clusters within that population.[73]    

VII.

Plotting the Overthrow of a Poorly Conceived Law

The current law requires a well founded fear of persecution. That must be changed. The current law states that the persecution must be based upon on of the five enumerated categories: race, religion, nationality, membership in a particular social group, or political opinion. Those categories must be expanded or added to. The theory behind the law must be changed from that of scarcity to that of abundance. That won’t be easy. The emotional fear response of the people must be assuaged. That might be difficult but is certainly not impossible, and even if it were “impossible”, well that is just a word in quotes.[74]

It is this author’s opinion that it would be useless to expect the legislature to make a necessary change to the definition of persecution at this time. A path must be plowed for them to walk by the judiciary. That path requires fearless judges to spread the definition of persecution beyond physical or mental harm inflicted for some nefarious purpose. A new definition must be crafted so that the ultimate goal of allowing those who are willing and capable to become one with us will be afforded the opportunity to do so. Remember, it is not a zero sum game with immigration. Properly done, everyone wins.

Rather than fixating upon the act of persecution, the judiciary could shift its focus to the effects of a persecutorial environment. That effect is the stunting or elimination of human aspiration. It is the destruction of hope and the destroyer of worlds.[75]

A persecutorial environment is more inclusive than individually applied state sanctioned persecution. It is the toxicity of an environment that drives a person (or a people) to vote with their feet. Whether that toxicity is embodied within a single elite group of state sponsored persecutors or stems from the de facto failure of the State is moot. It matters that people in a toxic persecutorial environment rightfully do attempt to free themselves from the suffocation that environment produces. These people can be brought under the potential asylee umbrella by judicial notice that whether it is the foreign government directly persecuting a person or it is the failure of that government to control people and events that should be under its control, the net effect is that persecution does take place.

The United States has manipulated the concept of persecution previously. In The Matter of Kasinga[76] , the Board of Immigration Appeals made the decision to classify a traditional rite of passage for certain societies as a form of persecution. The fact that clitoral circumcism has been practiced by millions of people for millennia as a ritual recognition of a girl’s passage into womanhood was discounted by the Board. They instead chose to take the politically expedient tack of first accepting the feminist agenda-driven change of designation of the ritual from “clitoral circumcism” to the more emotion laden term, “female genital mutilation.” “Mutilation” easily conjures “persecution.” And perhaps it is. But the salient factor here is that millions of practitioners look forward to this procedure. Their families save for years to be able to afford the ceremony done in the best manner. It is a considered a celebration of life, not a condemnation of it. And yes, it offends western notions of propriety and reasonableness. In fact the practice of FGM is so noxious to western culture that only fearless angels dare tread upon the political correctness of labeling it as persecution.[77]

This author is certainly no angel. The purpose of the discussion of FGM is to note that cultural differences drive the determination that a widely accepted African coming-of-age practice[78] is defined as persecution by western sensitivities.

It comes down to this. FGM does an individual harm to a woman. It denies her the pleasure of sexual intercourse. But, in her culture, it allows her access to adulthood. It takes away and it gives. In contrast, a persecutorial environment of a failed state gives nothing but misery and despair. It takes away aspiration and hope. And it does this to an entire people. It is this author’s contention that those individuals who by any means possible are able to decamp from a state that does not afford them the possibility to generate the basic building blocks of a fulfilled life are refugees from persecution and should be allowed entrance into our society just as the FGM sufferers are under the “membership in a particular social group” enumerated category. The “social group” is, of course, their natal society.

This is a bold contention. This strikes apprehension, to say the least, in the cold little hearts of the Grinches[79] guarding our gates. This expansion of the concept will be fought in the courts for years to come by the latter-day nativists. But they must lose.

The attack on intolerance continues with an attempt to intersect the category “membership in a particular social group” with that of “political opinion.” While some of the case law has stated that the characteristic of the enumerated category must somehow be immutable, the Congress created the political opinion category. It is axiomatic that opinion does change. Particularly political opinion does change.[80] Yet, the INS will allow an individual who is persecuted or has a well founded fear of persecution because of political opinion into our country.[81]

This author believes that the signers of the United States Declaration of Independence would agree that a State that does not provide a benign environment for its people to thrive within is not only failed, but more so is an active evil upon the conscious of Man.[82] If life, liberty, and the pursuit of happiness are unalienable, what kind of a nation have we become to attempt to deny same to those who through their own efforts have put themselves at our door?

Even if we are successful in applying judicial notice to expand the envelop of what constitutes persecution, we are still straight-jacketed by the requirement that the persecution be made because the individual is of one of the five enumerated categories: race, religion, nationality, membership in a particular social group, or political opinion. It will take the adroit use of logic coupled with the fearless use of judicial notice to expand each category to encompass more of the dispossessed. We will start with race.

As stated supra, race is a troublesome concept. Because it is so difficult a thing to nail down, perhaps bold, but foolish judges would be willing to drive Mack Trucks full of rationales for asylum inclusion through its portal. This would be unfortunate. The last thing our country needs is to inflict an unrestricted race card upon the mental gymnastics required to solve the immigration conundrum.[83]

It is difficult to envision expanding the religion category other than to note that a lack of religion in some societies could be said to be a reason for an individual’ persecution. However, it is unlikely that rafts of atheists and agnostics will wash up on our shores clamoring for relief from persecution.

Nationality has been discussed at length supra. We could use cases to push the concept of nationality to an absurd conclusion, that each family constitutes its own particular nationality. That may offer some small relief to an oppressed member of a family. But in the big scheme of immigration, expanding the nationality category probably isn’t an effective enough tool.

The most fruitful area for expanding the envelop is the intersection of membership in a particular social group and on account of a political opinion. Both are sufficiently pliable; but case law works against the immigrant. That will have to change.

We have seen that the concept of persecution can be folded and spindled sufficiently that we may be able to drive the economic persecution freight train through its gate. But we are hung up at the specific enumerated categories gates. We need pass a small bit of legislation to amend the categories slightly.

The INA has always given great discretion to the Attorney General. Yet, the Attorney General must follow the law and the law says the fear of persecution must be on account of one or the other of the five categories. It is not beyond the realm of possibility that the legislature could be persuaded to add the sixth empowering category: “…on account of any reason that the Attorney General deems necessary to comport with compassion and fairness.” 

This phrase will undoubtedly provide many opportunities for argument for the few years that it is in place. This is to be an interim additional tool in the immigration lawyer’s arsenal. It essentially allows the immigrant the possibility of throwing himself upon the “mercy of the king” in a modern equivalent of a chancellery court proceeding. Such an appeal to mercy is impossible under the current INA as amended.

VIII.

The Case for a New Act

As much as we can stretch the meanings found in the original INA, the true inappropriateness of the philosophy behind the Act has not changed. That philosophy can best be summarized by the saying, “I’ve got mine, to hell with you.” As suggested supra this philosophy is based upon the widely held, but frequently not articulated, theory of scarcity.[84] Changing the mindset of a nation is not a task to be approached lightly. But it can be done.

First, the task must be clear and easily understood by the masses. It is apparent to almost everyone that the American immigration system is complicated beyond belief. It should be attacked under the guise of simplification. “We need to simplify the law in order to more fairly apply it” should be the mantra proponents of immigration reform legislation ram home at every opportunity. Americans like to think of themselves as fair people so appealing to their sense of honesty and fair dealing is a sensible first step.

Simultaneously, a business case for keeping the illegal immigrants currently within the United States must be made. The economy of the country is tripartite. First there is the above-the-table economy. This is the one that gets reported as the Gross National Product. Then there is the under-the-table economy. This is the one where cash deals are never reported and barter is used to avoid billions of dollars in taxes. Finally there is the underground economy. This is really a subset of the under-the-table economy but is differentiated because the underground economy involves sub par wages matched to desperation, fear of identification and the concomitant use of coercion by employers.

The underground economy is the one that illegal immigrants live within. It is the one that fosters the dark participation in the American dream that is rooted in illegality. It is the one that a simplification to the current immigration laws will so dramatically affect.

A business case for present immigrants must be successfully made if we are to birth a new America that will be strong, productive, and vibrant for the twenty-first Century.  The business case must clearly demonstrate that the net effect, the bottom line, of immigrant participation in the American economy is positive. This author asserts that is the case. The metrics of making such a business case are beyond the purview of this small paper. But they do exist. It will only take clear thinking, agenda-free economists to discern them.[85] 

Once a business case for those who are already here has been made and accepted (even if only grudgingly) by the American public, the real Herculean tasks faces us. That is the task of convincing the American people that a Fortress America with electronic walls and ocean-wide moats is a costly mistake in understanding human motivation.

People leave their homes because they are compelled to. But each and every one probably harbors somewhere deep within their psyche a hope that things will somehow change such that they can return home again.[86] The masses of Europe no longer hurl themselves at modern “Ellis Islands” because things did change at home. Miami Cubans frequently speak of “returning home” to Cuba when Castro dies.[87] Nothing in human nature compels one to think that those who leave their countries due to economic persecution would not want to return to those countries when the problem of economics for them has been solved. The human animal is a herd animal. We seek the comfort and familiarity of our own people.

IX.

The Welcome To America Act

Fortress America is an America cut off from the innovative bloodlines that new people bring with them. Here is how we break the walls down. After all, they haven’t protected us at all yet. A new law must be written. Its preamble will list the failures of previous law since immigration laws were first formulated. It will end with the statement “For these reasons, we enact a new law, the “Welcome to America Act” that informalizes the borders of the United States[88]. 

The body of the Welcome to America Act will have rules that allow essentially anyone who wishes to work in the United States the privilege of appearing for inspection and parole. Several reasons would be enumerated for denying parole to would be immigrants but all of them would deal with security and/or health issues. Parole would be used because once here, paroled immigrants would be expected to work, to pay taxes, and to participate in the American experience with the notable exception of being a part of the electorate.

The Welcome to America Act would require all parolees to enroll in public schooling that would educate them in the morals, ethics, philosophy, and history of the American system. Mandatory English classes would also be required. The idea is not to make the new parolees just like us. It is to give them a helping hand in a more fulfilling participation in the life of the country. Adult new parolees would be required to take and pass a spoken English test within the first two years of residence. Failure to pass the test would not result in removal. It would result in more intensive, more intrusive instruction and in a delay in moving to the next step in the Act. That step is to move from parolee to legal permanent alien status. This status allows an immigrant the privilege of remaining in the country and earning a living without any further restrictions by the government. It does not allow him the privilege of sponsoring non-working family members into the country. For that, the immigrant needs to advance to the next level. And it is not automatic.

That level is citizenship. Citizenship must be earned. The Act will enumerate several possible non-exclusive avenues to citizenship. All will involve sacrifice and contribution to the greater society. The idea is that if an immigrant wants the privileges of citizenship, that person must prove to the extant polity that he understands and accepts the obligations of citizenship.

The Welcome to America Act is not just about holding hands in the hot tub. It documents illegal aliens who are currently in-country and allows an avenue for those who want to join us to do so. But it has gates that must be passed. Failure to abide by the rules of the Act must be swiftly dealt with. Removal is one tactic to use. Incarceration is another. The agile minds of closet nativists will, I am sure, attempt to incrust this Act with a plethora of snags and hooks for the unwary immigrant. The point of the Act is to enlarge the American Pie for all of us, to create the winning combination that enhances the potential in all of us, native born and adopted. It can be done.

The only thing that will stop the renovation of immigration is a mindset that it somehow is wrong to give people something for nothing. That mindset is a trap, a prison. It must be torn down. An educated society recognizes that we are each our own worse enemy. We build restriction within ourselves. We doubt our abilities. We are insecure. Together we will work on abating that insecurity. We will free ourselves and each other from those mental prisons.

X.

Conclusion

The problem started in the legislation and the eventual solution lies within the legislation. We need to change. We must look at the end result of our reflexive rendition policy for those people who, although incredibly brave and determined, lack the “proper” motive for access to our shores.

            Being returned to death is still a final solution, whether it comes from the poisonous hoses of a delousing station in a concentration camp or from the lice, vermin, starvation, and soul-eating despair of a cardboard shack in a squatters’ camp. Death is relentless. It has no means or motive test.

            The United States started at the wrong place in its consideration of immigration. The country is faced with scarcity only if we push potential solutions away. We should not need to consider whether the persecutor’s motivation is based upon one of the sacred five categories. The concept of well founded fear should not be a consideration at all. The categories themselves stand as inchoate monuments to an American exclusivity that has no longer a place in our lives.

            Here is a better way of dealing with reality. Let’s call a pile of dirt, a pile of dirt. It isn’t a mountain. The country has already absorbed a huge undocumented work force that it is in certain vested interests to keep illegal. Those who are undocumented make easy prey for wolves of whatever ilk. It is long past time for the shepherds within us to protect the flock.[89]

If the United States is to ever live up to its self-promotional rhetoric as the “greatest show on earth”, it must develop a pragmatic, politically acceptable truce between those nativists who live in morbid fear of the stranger and those strangers who prefer a possible death on the high seas while attempting flight from deprivation to the assured misery and death they left behind. We must change ourselves if we are to be able to live with ourselves. 

 

 

[1][1] Edward R. Hanson FAA certified, The Standard Pilot Master Log, page 71: first flight out of MIA with Captain John Knapp and First Officer Cal Tax

[2] http://www.airnav.com/airport/KMIA, last visited 09/14/2008

[3] http://maps.google.com/maps?hl=en&q=Krome%20Avenue%20Miami&um=1&ie=UTF-8&sa=N&tab=wl, last visited 09/14/2008, note the position of Miami International Airport on the map at the intersection of state roads 836 and 826

[4] Krome Service Processing Center, 18201 S.W. 12th Street, Miami, FL 33194

[5] BNET http://www.bnet.com/ last viewed on 9-13-2008, which led to: http://findarticles.com/p/articles/mi_m2267/is_2_74/ai_n27366145?tag=artBody;col1, where the quote is found within Designed to punish: immigrant detention and deportation, Social Research,  Summer, 2007  by Mark Dow, page 4, referencing his book:  Dow, Mark. American Gulag: Inside US Immigration Prisons. Berkeley: University of California Press, 2004.

 

[6] TIME Magazine For 1,800 Haitians—Freedom By Janice Castro;David S. Jackson;Bernard Diederich Monday, Jul. 26, 1982

 

[7] id

[9]Alleged Deception of Congress: The Congressional Task Force on Immigration Reform’s
Fact-finding Visit to the Miami District of INS in June, 1995, “The rated capacity of 226 relates to the number of aliens who can be housed inside Krome in compliance with standards set by the American Corrections Association. The funded and rated capacity of Krome dropped from 450 as a result of a fire in May 1992 that destroyed a major dormitory”:
http://www.usdoj.gov/oig/special/9606/miafile4.htm, last visited 09/14/2008

[10] From the inscription on the Statue of Liberty

[12] Hanson Family Oral History. This was told to me by my grandmother, Florence Foley, nee Wagner, about her mother’s arrival in the United States. The crystal sugar bowl was transmitted from Bridget Bresnahan to her daughter, Florence. Florence gave it to her son, my father, Edward, who gave it to me for safe-keeping. I recently gave it to my niece, Jessica Nicole Hanson, for her use and eventual transfer to the generation following her.

[13] American Odyssey Haitians in New York City By Michel S. Laguerre, Preface page 12

Published by Cornell University Press, 1984

ISBN 080149270X, 9780801492709

 

[14] Other People’s Blood By Robert S. Kahn, page 153

 

[16] “Men hate each other because they fear each other; they fear each other because they do not know each other; they do not know each other because they do not communicate; they do not communicate because they are separate.”- Dr. Martin Luther King Jr.: quoted in Syllabus for Intercultural Communication, Todd Allen, Department of Speech and Visual Communication, http://cms.interculturalu.com/theedge/v1i3Summer1998/sum98allen.htm , last visited on 10/04/2008

[17] Albertson, B. and Gadarian, S. K. , 2007-04-12 “Fear in the Illegal Immigration Debate: Where Do Anxious Citizens Get News?” Paper presented at the annual meeting of the Midwest Political Science Association, Palmer House Hotel, Chicago, IL Online <APPLICATION/PDF>. 2008-09-12 from http://www.allacademic.com/meta/p197810_index.html, last visited 10/04/2008

18 The United States intervened in the Russian Civil War (1917-1921) on the White Russian side. WHITE RUSSIANS, MSM Encarta encyclopedia article, http://encarta.msn.com/encyclopedia_761584139/white_russians.html, last visited 10/20/2008

[20] “A chain of other figures, representing Spanish Americans and the foreign born, climb on the back of the crouched black figure, to pluck fruit off the tree of opportunity. Tapley had no illusions about the struggles of these immigrant minorities. Although he portrays them as getting ahead on the backs of blacks, immigrants too must climb over the wall of prejudice, and they reach only the lowest branches on the tree of opportunity.” Stephen Steinberg “Immigration, African Americans, and Race Discourse”

 http://hystericalblackness.blogspot.com/2006/05/stephen-steinberg-immigration-african_11.html, last visited 10/04/2008

[21] “Twentieth-century society proved to have little or no room for what was, in the antebellum period, a three-tiered social structure, with mixed-race free persons inhabiting a tenuous but real middle position. Thus, the descendants of the South’s antebellum class of racially blended, freeborn, and socially entitled free persons of color were made “colored” throughout the southern states. In some places, they were “colored” if they carried 1/32nd percent “African blood;” in others, 1/16th or 1/8th. In still other contexts, persons of mixed race were considered “colored” if they were discernibly “dark” to the white eye.” The History of Jim Crow, http://www.jimcrowhistory.org/resources/lessonplans/hs_es_passing_for_white.htm, last visited 10/04/2008

[22] Sérgio Mendes  “As the question of racism against black people is often targeted, one could, reasonably, acknowledge that the inverse idea is also racism. The word racism does not have any ‘black’ component in its meaning. Racism is a prejudice that a certain race or ethnic group has against others, regardless whether they be white against black, black against white, Portuguese against Spanish, people from São Paulo against people from the Northeast or Serb against Croat irrespective of which side it starts on.” Quoted in Brazil: Black Pride and the racism debate Sunday, November 18th, 2007 @ 18:49 UTC by Paula Góes : http://globalvoicesonline.org/2007/11/18/brazil-black-pride-and-the-racism-debate/, last visited 10/04/2008

 

[23] “The idea became a matter of national pride in learned circles of Germany, and was taken up by the Nazis. According to Alfred Rosenberg‘s ideology the “Aryan-Nordic” (arisch-nordisch) or “Nordic-Atlantean” (nordisch-atlantisch) race was thus a master race, at the top of a racial hierarchy, pitted against a “JewishSemitic” (jüdisch-semitisch) race, deemed to be a racial threat to Germany’s homogeneous Aryan civilization, thus rationalizing Nazi anti-Semitism. Nazism portrayed their interpretation of an “Aryan race” as the only race capable of, or with an interest in, creating and maintaining culture and civilizations, while other races are merely capable of conversion, or destruction of culture.” Quoted from http://www.nationmaster.com/encyclopedia/Aryan, last visited 10/04/2008

[25] “Throughout modern history, Okinawa has been pushed into a marginal existence in the realm of Japanese imperialism and subordinated to Japan’s needs” The Ryukyuanist: A Newsletter on Ryukyuan/Okinawan Studies, No. 61, Autumn 2003, Kozy Amemiya, found at http://www.jpri.org/friends/amemiya_ryukyu_fall03.html, last visited 10/05/2008

[26] “[a]ccording to modern-day Japanese, the Ainu did not officially exist as indigenous Ainu until 2008. Before that, they were officially “NOT JAPANESE” with Japanese Citizenship”, quoted from http://www.flickr.com/photos/24443965@N08/2752594990/, last visited 10/05/2008; also see http://www.economist.com/world/asia/displaystory.cfm?story_id=11707607, last visited 10/05/2008

[27]

If we send a message that essentially if you don’t look like us, talk like us and speak like us we don’t want you, it has tremendous economic repercussions,” Huckabee said.” Gov. Mike Huckabee, quoted in Arkansas News Bureau, By David Robinson, found at http://www.arkansasnews.com/archive/2005/02/03/News/316813.html, last visited 10/04/2008 

 

 

[28] “[B]y 1982, the CDC named four groups as “risk factors” for HIV infection: homosexuals, heroin addicts, hemophiliacs and Haitians.” Found at http://www.pbs.org/wgbh/pages/frontline/aids/countries/ht.html, last visited 10/05/2008

[29] “Refugees and political prisoners from El Salvador and Nicaragua are allowed entrance into the U.S. Haitian boat people are restricted from entry and are deported by the United States Coast Guard to Haiti.”, ICE Case Studies, Kristen Picariello, found at http://www.american.edu/TED/ice/haitidef.htm, last visited 10/05/2008

 

 

[30] “[A]t other times Americans have done the persecuting–passing discriminatory laws against the foreign born, denying their fundamental rights, and assaulting them with mob violence, even lynchings.”, Cycles of Nativism in U.S. History, national Immigration Forum, found at http://www.daylabormovie.com/discussion/Cycles_of_Nativism.pdf, last visited on 10/05/2008

[31] “[I]nstead, we can look at illegal immigrants’ tendency to hire smugglers, also known as “coyotes,” and the evolution of coyote prices over time. Migrants are more likely to hire coyotes when they perceive a higher chance of apprehension were they to attempt a crossing on their own.”, Illegal Immigration and Enforcement along the Southwest Border, Pia M. Orrenius, Federal Reserve Bank of Dallas, June 2001, found at http://www.dallasfed.org/research/border/tbe_orrenius.html, last visited 10/20/2008

 

[32] Don Quixote by Miguel Cervantes

[33] “Whereof what’s past is prologue, what to come
      In yours and my discharge.”, The Tempest,
act II, scene i, lines 253–54, William Shakespeare

[35] The definition of high seas is found in the Convention on the High Seas 1958, Done at Geneva on 29 April 1958. Entered into force on 30 September 1962. Article I and Article II, found at http://untreaty.un.org/ilc/texts/instruments/english/conventions/8_1_1958_high_seas.pdf, last visited 10/20/2008

[36] United States Border Patrol statistics found at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_apprehensions_fs_2004.pdf, last visited 10/04/2008

[37] INA § 101(a)(42) “[a] well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

[41] We could follow the German example. Immigrants to Germany are expected to learn German. http://marketplace.publicradio.org/display/web/2007/07/05/only_germanspeaking_spouses_allowed/, last visited 10/04/2008

[43] Does a Rising Tide Lift All Boats? The Labour Market Experiences and Incomes of Recent Immigrants, 1995 to 1998, Ekuwa Smith, CCSD Senior Research Associate

and Andrew Jackson, CCSD Director of Research, found at http://www.ccsd.ca/pubs/2002/risingtide/risingtide.pdf, last visited 10/04/2008

[44] INA § 101(a)(42) Immigration and Nationality as directed by 8 U.S.C.A. § 1101

[45]

“As one leading authority has pointed out: “Let us . . . presume that it is known that in the applicant’s country of origin every tenth adult male person is either put to death or sent to some remote labor camp. . . . In such a case it would be only too apparent that anyone who has managed to escape from the country in question will have ‘well-founded fear of being persecuted’ upon his eventual return.” 1 A. Grahl-Madsen, The Status of Refugees in International Law 180 (1966).”, INS v. Cardoza-Fonseca, 480 U.S. 421, 1987.   

 

 

[46] “Thus, as the Court observes, ante, at 430-431, the very language of the term “well-founded fear” demands a particular type of analysis — an examination of the subjective feelings of an applicant for asylum coupled with an inquiry into the objective nature of the articulated reasons for the fear.” INS v. Cardoza-Fonseca, 480 U.S. 421, 450, 1987.

 

[47] The Handbook provides further that it is up to the asylum adjudicator (in this instance, the Immigration Judge) to attempt to “resolve any contradictions . . . and to find an explanation for any misrepresentation or concealment of material facts.” Handbook , supra , para. 199, at 47. Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees 1, 3-4 (Geneva, 1979).

 

[48] See http://www.uscis.gov/portal/site/uscis, last visited on 10/24/2008.

[49] A description of an interrogation attended by a friend of the author during the Salvadoran Conflict in the 1990’s. The friend warned the author not to stray to the “black buildings” on the airport. The author carefully followed his friend’s advice.

[50] “RACK, …[(4)] an instrument of torture …[T]he “rack” for torture was an oblong frame of wood, slightly raised from the ground, having at one end a fixed bar to which the legs were fastened, and at the other a movable bar to which the hands were tied. By means of pulleys and levers this latter could be rolled on its own axis, thus straining the ropes till the sufferer’s joints were dislocated. Its first employment in England is said to have been due to John Holland, 4th duke of Exeter, constable of the Tower in 1447, whence it was popularly known as “the Duke of Exeter’s daughter.” In 1628 the whole question of its legality was raised by the attempt of the privy council to rack John Felton, the assassin of the duke of Buckingham. This the judges resisted, unanimously declaring its use to be contrary to the laws of England.” Found at http://www.1911encyclopedia.org/Rack, last visited 10/24/2008.

 

 

[51] “The victim’s fingers were placed inside the instrument and slowly crushed as the torturer turned the handle on top.” Found at http://www.medievality.com/thumbscrew.html, last visited 10/24/2008.

[52] Tying the “witch into a chair and then dunking her in a lake or stream. If she lived she was a witch and had to be executed by other means. If she died, she was innocent and was “with the lord” and therefore all was well. e.

[53]With respect to the category III advanced counter-resistance strategies, the use of scenarios designed to convince the detainee that death or severely painful consequences are imminent is not illegal for the same aforementioned reasons that there is a compelling government interest and it is not done intentionally to cause prolonged harm. However, caution should be utilized with this technique because the torture statute specifically mentions making death threats as an example of inflicting mental pain and suffering. Exposure to cold weather or water is permissible with appropriate medical monitoring. The use of a wet towel to induce the misperception of suffocation would also be permissible if not done with the specific intent to cause prolonged mental harm, and absent medical evidence that it would. Caution should be exercised with this method, as foreign courts have already advised about the potential mental harm that this method may cause. The use of physical contact with the detainee, such as pushing and poking will technically constitute an assault under Article 128, UCMJ. “

Legal Brief on Proposed Counter-Resistance Strategies, found at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.12.02.pdf, last visited on 10/24/2008.

 

[54] And does it matter what Race an applicant believes he is or what race his would be persecutors think he is? Race is a tough, elusive, slippery nut to cut. Most people use the Justice Potter Stewart gut feel test for race  (“…I know it when I see it…”) found  at Jacobellis v. Ohio 378 U.S. 184 (1964). The problem with using a gut feel is it can give a person indigestion. It does not work with race. 

[55] Gonzales v. Thomas, 547 U.S. 183, 183 (2006).

[56] J.B. by Archibald MacLeish, 1958, found at http://www.religion-online.org/showarticle.asp?title=1824, last visited 10/27/2008

[57] “[R]eturning to Harvard Law School, MacLeish graduated at the head of his class in 1919.” Found at http://www.english.uiuc.edu/maps/poets/m_r/macleish/life.htm, last visited 10/27/2008

[58] I once had a summer exchange student from Austria stay with my family. His father was the President of the Austrian Airline Pilots Association and a friend of mine. I purposely challenged the boy as to his nationality. I said “You are a German.” He countered with “No. I am an Austrian.” I finally resolved with him that he was a citizen of the Austrian State but a member of the Germanic people: a German. He now lives in Sweden so who knows what he thinks he is at this time. And like so much of the Immigration discussion, have we somehow fixated upon the wrong things in deciding who to let in and who to keep out? Should nationality count?

[59] He is the author’s friend, Captain Patrick Bourdier of Air France

[60] Angels traditionally are described as coming in the following varieties: Seraphim, Cherubim, Thrones, Domination’s, Virtues, Powers, Principalities, and Archangels. See http://www.angelfire.com/mi/dinosaurs/angels.html, last visited 11/02/2008

 

[61] [“I]n less formal terms, a zero-sum game is a game in which one player’s winnings equal the other player’s losses. Do notice that the definition requires a zero sum for every set of strategies. If there is even one strategy set for which the sum differs from zero, then the game is not zero sum.”, Game Theory: A Nontechnical Introduction to the Analysis of Strategy, Roger McCain, found at  http://william-king.www.drexel.edu/top/eco/game/zerosum.html, last visited 10/20/2008 

 

[62] Oliver Twist, Chapter Two, 1838, Charles Dickens

[63] “All of these accomplishments have not been without obstacles and discrimination… (yet) Asian Americans make up 10 (Harvard) to more than 20 (Berkeley and UCLA) percent of the student body and even 30 percent at Julliard School of Music.” Children of the Boat People, page 136, By Nathan S. Caplan, Marcella H. Choy, John K. Whitmore, Published by University of Michigan Press, 1991

 

[64] This author can not help but speculate regarding their fate had Chrissy and her sister been Haitians or Central Americans rather than Vietnamese. Would they have been incorporated into the American Experience so readily?

[65] Adam Smith’s The Wealth of Nations postulated an “invisible hand” guiding commerce to create a greater good from individual selfish actions. It is this author’s contention that the true wealth of the nation is not contained in the things that people buy, build, or extract from the land. The true wealth of the nation stems from the creative spirit and determination of its people. Furthermore, the hybridization of both plants and people grants an unquantified vigor to the progeny never found in the parents.

[66] FORTY-SEVENTH CONGRESS. Sess. I.  Ch. 117-120, 126. 1882.

 

[67]Noun 1.yellow peril – the threat to Western civilization said to arise from the power of Asiatic peoples

menace, threat – something that is a source of danger”; THE FREE DICTIONARY, found at http://www.thefreedictionary.com/coolie, last visited 10/20/2008.

 

[68] Now a negative term, originally it translated from Chinese and Hindi as “strong laborer.” Ibid.

[69] This author had the privilege of meeting Nadine Hornbeck in 1980. She was a naturalized citizen whose country of origin was Jamaica. Her genes came from China. Her many times great grandfather had emigrated from China to the United States to work on the trans-continental railroad in the 1860’s. His wife was restricted from entering the country and instead immigrated to Jamaica to await her husband’s arrival. He earned enough money building the railroad to start a modest business in Jamaica. One hundred years later his descendants immigrated to the United States under §203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5) EB-5 visas. They built successful businesses and eventually became U.S. citizens. Nadine told this author, “Sometimes you have to be patient. We Chinese are a patient but determined people.”

[70] Zhen Li Iao v. Gonzales, 400 F.3d 530, (7th Circuit 2005).

[71] Intellectually, there must be a number beyond which a sustainable population is impossible. Cornucopia theory suggests that the population density at which a mass die-off would occur is significantly greater than the number of current residents of the United States.

[72] Dr. Dean Martin,  Distinguished University Professor Emeritus at USF, exposed the author to Cornucopia theory at a lecture in the mid-1980’s. At one time dean of the Department of Chemistry at USF, Dr. Martin specialized in red tide research.

[73] In my former life as an airline pilot I took great delight in tugging on my conservative peers’ capes by loudly exclaiming, “Viva le difference” every time someone ran long at the mouth about the cowardice of the French, the cacophony of the Italians, or the hardheadedness of the Germans. I told them, “One man’s definition of bravery can be another man’s definition of absolute stupidity.” 

[74] “[t]he slogan of the US Armed Forces: the difficult we do immediately; the impossible takes a little longer.” Quoted from http://www.highbeam.com/doc/1O90-ThDFFCLTsdntncthmpssbltks.html, last visited 11/02/2008.

[75] “Now I am become Death…destroyer of worlds.” Robert Oppenheimer upon observing the Trinity atomic bomb test in 1945. This is a fitting allegory to the persecutorial environments of failed states. Their citizens have about as much hope as the people of Hiroshima and Nagasaki had seconds after the bombs detonated. That is to say, none.

[76] Board of Immigration Appeals, June 13, 1996, 21 I. & N. Dec. 357

[77] An hour long discussion of FGM with the author’s cardiac trainer, Ms. K. S., only resulted in her reminding him that she could, at any time, “accidentally” hurt him and that the best take on the subject is the one taken by the BIA. The author immediately saw the wisdom in her suggestion.

[78]Female Genital Mutilation (FGM) is a cultural practice that started in Africa approximately 2000 years ago. It is primarily a cultural practice, not a religious practice. But some religions do include FGM as part of their practices. This practice is so well ingrained into these cultures, it defines members of these cultures. In order to eliminate the practice one must eliminate the cultural belief that a girl will not become a women without this procedure.” Found at http://members.tripod.com/~Wolvesdreams/FGM.html, last visited 11/03/2008

 

[79] Thank you Dr, Seuss

[80] The author has been a registered Republican for 40 years. Yet he voted Democrat in the 2008 election. Political opinions change.

[81] Contrast the “immutable” argument found in Matter of Acosta, Board of Immigration Appeals, 1985, 19 I. & N. Dec. 211 with the political opinion and membership in a particular social group argument in Damaize-Job v. INS.

[82] “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

[83] We need the immigrant’s labor but we apparently don’t want the immigrants. It is reminiscent of the quote attributed to Henry Ford regarding his employees: “…I wanted to hire their hands and they brought along their minds.”

[84] When queried by the author in an e-mail, Dr. Dean Martin replied:

From: Martin, Dean

To: TerryHanson

Sent: Sunday, November 02, 2008 7:37 PM

Subject: RE: an old lecture regarding Scarcity and Cornucopia

The lecture was given at the invitation of a member, Dr. Jay Palmer, and was entitled, I believe, “Two Views of the Enviornment,  Malthusian vs. Cornucopean.” 

I later learned that Malthus proposed his pessimistic view because he was so sick of what he regarded as his father’s tiresome optimism…”

 

[85] The Chicago School of Economic Theory as exemplified by Milton Friedman’s famous assertion, “There is no free lunch.” should be employed. There is no free lunch when it comes to using illegal immigrant labor. The country pays when unscrupulous employers do not. Of course, equally brilliant (though this author believes, completely misguided) economists will argue that the immigrant as a nation within our nation gather the low lying fruit and leave the heavy lifting to those who are legally here, those who pay taxes.

[86] “There is no place like home.” Wizard of Oz

[87] Frankly, I think they really mean, “home to visit.” Cubans are so assimilated into American culture that they have become an i9ntegral part of us and we of them.”

[88] The precedent is found in the informal borders now extant in the European Union. It just makes good sense.

[89] With some trepidation I must note that the only difference between the shepherd and the wolf is in the timing of when he eats the sheep.


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