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Analyst Provides Primer on Immigration Reform

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Analyst Provides Primer on Immigration Reform


Analyst Provides Primer on Immigration Reform

Analyst Provides Primer on Immigration Reform

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David Martin, professor of law at the University of Virginia and formerly a general counsel at the INS, explains the terminology being used in the legislative debates around immigration.


We're going to be hearing a lot more about the immigration debate in the months to come, so we thought it might be useful to define or clarify some of the terms that come up in that debate. Joining us to help do that is David Martin. He is a professor of law at the University of Virginia and a former general counsel at the INS. Thanks for being with us.

Professor DAVID MARTIN (Law, University of Virginia): Thank you for the invitation.

BLOCK: And let's start with a really basic term here, illegal immigrant. What exactly does that mean?

Professor MARTIN: Well, it means someone who's present in the country without authorization. You can get to be an illegal immigrant in basically two ways. You can sneak across the border, or you can come in legally on a temporary visa and then not leave when your time is up.

BLOCK: And legally, would both of those circumstances be viewed the same as civil violations?

Professor MARTIN: Both of them are civil violations. The people who are in that situation are subject to a civil sanction of deportation. It's counted as a civil sanction, but it can, of course, include some incarceration as part of the process of removing the person from the country. But one of those is also a criminal violation under current law. That is, sneaking across the border is a misdemeanor, and it can subject a person to up to six months in prison. The fact is, however, it's almost never prosecuted.

BLOCK: Now, the immigration bill that passed the House back in December would make it a felony to be here illegally, not a civil violation but a felony. What would the implications be of that? How might that change the way these cases are handled?

Professor MARTIN: Well, it could conceivably mean much more of a use of the criminal sanction for people who are violators of that kind. Right now, essentially, if people are caught in illegal status, they're put into civil deportation proceedings and may be removed from the country. There's actually reason for great skepticism as to whether a simple violation of the kind we're talking about even if it becomes a felony. So it's subject to at least a year in jail. Even in that case, there's real reason for skepticism as to whether federal prosecutors would take very many of those cases. They're swamped with a lot of other business. My experience has been that a simple violation of this kind is a low priority. They might use it, however, if they found someone who they believed was involved in criminal activity but they might not have enough proof for that.

BLOCK: And that would be if it actually became part of the law in the first place, which is not a done deal.

Professor MARTIN: That's exactly right.

BLOCK: Let's talk about another term that comes up all the time and that's the Guest Worker Program. Do we have a Guest Worker Program now?

Professor MARTIN: We do have some provisions of the law that could be called Guest Worker Programs. They allow people to come in temporarily to take up work. There's some in the agricultural area, there's some for professionals, there's some for other sorts of work as well. Most of those categories have numerical ceilings. There's certain limited number that can be admitted in those categories in a given year. And we've been bumping up against those ceilings in recent years. In the agricultural area, in particular, and for some other fields as well, those provisions haven't been used very often because they can often rely on what is in fact undocumented labor. The person will present a document to the employer but they are in fact here illegally.

BLOCK: Well under these various proposals that are floating around for new guest worker programs, who would be eligible? Or does it vary very much case to case?

Mr. MARTIN: There are different formulas in the different bills, but most of them provide in the model of President Bush's initial proposal, they provide for an employer to do some form of a search for an American worker and document that he or she can't find an American worker, and then bring in a foreign guest worker.

BLOCK: That does sounds like it could be cumbersome, that you would have to prove in some way that you tried to hire an American and failed.

Mr. MARTIN: Well there are some very cumbersome provisions in current law. Most of the new bills have systems that trim down the paperwork, make it much easier for the employers to just certify that they've taken certain steps to try to find an American employer.

BLOCK: So the idea behind these guest worker programs would not be that that would be a path to citizenship necessarily?

Mr. MARTIN: In the ones that are really guest worker programs that I think are properly called by that label, they're not a path to citizenship. In most of them the person wouldn't be precluded from citizenship if, say, he married an American citizen. But there's no particular path and the expectation is that the person would go home. Under President Bush's plan, for example, a person would get a three-year period, it could get extended to six. And then that's the end, there's no special provision for them to get a permanent status.

Now there's some other bills, the McCain-Kennedy Bill, for example, that uses the terminology or the descriptions use the terminology of guest worker, but the expectation is that a person who works for a certain period of time, avoids any criminal involvement, documents that they're paying taxes and so forth, that they might have a path towards citizenship.

BLOCK: Well David Martin thanks for helping us sort through some of this terminology.

Mr. MARTIN: Thank you.

BLOCK: David Martin teaches immigration and constitutional law at the University of Virginia.

NORRIS: You can read a sampling of immigration op eds and editorials from across the nation at our website

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