Big Think

Question: What does immigration law concern itself with today?

Lenni Benson: When I talk to students or public groups today about immigration law, often in people’s mind is a concern about illegal immigration. Some of the lobbying work going on in America is the phrase, “What is it about illegal you don’t understand?” So that’s an invitation, to me, as somebody who knows law, to stop and say, "Well the opposite of illegal is legal." So let’s lay the table. Let’s describe the categories that our current law welcomes as legal immigrants and give people some idea of the numbers.

I want everyone to imagine for a minute that there’s a big, big pie and that pie right now is the United States populated with, we will use the number of 350 million people. Of the 350 million, between young people and retired people, we have maybe 150 million people actually working. So we have an economic pool of 350 million consumers and residents and citizens, we have about 150 million people working.

So if I asked you then, “How many people does Congress authorize to permanently immigrate to the United States to enter the United States and obtain what we call a green card, the vernacular name, the nickname for permanent residency?”. You might say, "Well, let’s see, 350 million people…maybe 3.5 million?" That seems like a small percent; that would be one percent of our total population. The actual number is we authorize around one million immigrants every year.

Question: What are the bureaucratic hurdles to immigration?

Lenni Benson: Well the bureaucracies that control immigration—let’s just list them. There’s the Department of State that issues visas overseas and conducts some of the security clearances and has to make determinations on eligibility for both temporary and permanent visas. There is the Department of Homeland Security, a cabinet level office created in 2002, in part a response to the attacks of 9/11. That one agency houses within it the US Citizenship and Immigration Service, the Customs and Border Protection, and the [Department of] Immigration and Customs Enforcement.

Those three agencies obviously have immigration, but there’s also Department of Health Services, Department of Labor. Sometimes those agencies have to do pre-clearance certificates so that someone can also enter the United States. So we have literally hundreds of thousands of federal employees whose main job is to administer our immigration laws, and we’ve increased it dramatically in the Bush Administration, partially as a tool of national security—a concern about the attacks that occurred on 9/11, and partially a concern by many people in United States that we have too many people coming over our Southern border and that we need to increase our border patrol and the Office of Immigration and Customs Enforcement.

That’s one layer. We also have a huge amount of our Department of Justice resources going to immigration cases. There are about 300,000 deportation cases in the immigration courts; that’s an administration tribunal within the Department of Justice. We have prosecution of immigration crimes, the fastest growing category of federal crime, in other words, if you looked at all the other federal crime prosecutions, which category grows the most quickly? Is it drug possession? Is it smuggling of illegal cigarettes? No, it’s immigration crimes, particularly in the southern border but also here in New York, on the upper border with Canada. It is the US Attorney’s offices around the country are prosecuting people for illegal re-entry after an order of removal.

So we have a lot of resources in all those agencies that cost our economy; [another] is family members, businesses that want to bring immigrants to the United States [that] need experts to jump through the hoops and hurdles—they hire immigration attorneys. The American Immigration Lawyers Association has a current membership of nearly 15,000 lawyers in the United States, that’s in contrast to when I entered the field in 1983 where there were fewer than 800 members.

Question: Can marrying a citizen expedite immigration?

Lenni Benson: We do have no formal quota for anyone marrying a US citizen. So, therefore, you get movies like Sandra Bullock’s latest film, The Proposal, where—I haven’t seen the film—she’s supposed to be a Canadian executive who needs to get a green card right away so she marries her assistant. I throw up my hands and say, “But there were five other ways for her to immigrate.”

Marriage is a method of immigrating to the United States: if you marry a United States citizen, where there’s no immediate quota, it doesn’t always mean it's rapid. If you’re a US serviceman and you met a woman in Afghanistan and you wanted to marry her there, doing the paperwork, processing the security clearances, going through the health checks—it may be anywhere from let’s say six months, shortest period I can imagine, to a several years delay just because of the hoops and hurtles we put people through to immigrate.

But as a matter of principle and as a table setter, yes our country is very generous in that US citizens may bring their spouses right away. Of course, because of the Defense of Marriage Act, Congress has said federal law will only recognize marriage between a man and a woman. So same-sex marriages, even if legal under the law of their nation, or would be legal in a particular state in the United States that now recognizes same-sex marriage, cannot be a basis for sponsoring an immigrant spouse. That’s certainly an area of controversy.

So, some of our illegal immigration problem is that people who love each other, who have the closest relationship in the world, a spouse, who want to bring their spouse legally, are facing these enormous lengthy delays. Congress has only recently ameliorated it a little bit by allowing some people who were caught in bureaucratic delays to at least come temporarily to live with their spouse, but there’s no general provision that says you may wait out the quota in the United States. I just want people watching this or listening to this to think, if you were in love—remember that blush of the first romance, and how you couldn’t wait until your boyfriend got out of Algebra class, let alone wait 12 years to live together with your spouse: it’s an incentive for people to enter the country surreptitiously or overstay on a tourist visa or some other temporary visa.

So a part of, "What is it about illegal you don’t understand?" is there are people whose heart and soul is now situated in this country, but the legal system delay is just so long.

Recorded on:  August 31, 2009