Thursday, February 8, 2018

Bifurcated U.S. Immigration Policy & the NYS Dream Act

The current version of the Immigration and Nationality Act, passed in 1952, is structured to provide 3 basic paths to permanent legal status in the U.S.:

1. Through family sponsorship by a close relative (US Citizen or in some cases, Legal Permanent Resident, spouse, parent, child over 21, or sibling);

2. Through employment sponsorship (which in most cases requires a test of the labor market to ensure that there are no minimally qualified U.S. workers who are qualified, willing and able to do the job); and

3. Asylees and refugees who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion if they return to their home country.

The Diversity Visa Lottery Program also allocates a small number (~50,000) of immigrant visas each year to nationals of countries with a low rate of immigration to the United States, to help promote diversity among our immigrant population. In addition, EB5 Investors can buy themselves green cards by spending $500K-$1 million to start up a US business that will employ 10 full-time equivalent US workers.

Each one of those categories enshrines a deep American value- family unity, a world-class & highly skilled labor force, and providing a haven of safety, hope, and opportunity for those subject to corrupt regimes. That is our official policy, and I love those values. As an immigration attorney, I've dedicated my career to helping people come to the U.S. in those categories and for those reasons. 

Unofficially, the U.S. has also long tolerated a constant flow of undocumented immigrants to the U.S. Those people often enter legally as visitors or students and overstay. Many others enter the U.S. without inspection along the northern and southern border, between ports of entry, by sneaking in. In 1996, Congress passed a tough immigration bill, the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which, among other things, created the I-9 Form and employer penalties for hiring undocumented aliens, and created the concept of "unlawful presence," which imposes penalties on immigrants who enter the U.S. without inspection or overstay. IIRIRA rendered huge numbers of undocumented aliens deportable and also made it more difficult for those who were out of status to ever legalize their status. The law set up the massive deportation machine that we have in place today. 

Despite IIRIRA, there remains a huge undocumented population in the United States. There are over 11 million undocumented immigrants in the U.S. Despite stringent enforcement, this population remains, and they are contributing to the U.S. economy. The presence and contributions of this group of individuals, all of whom have broken the law to enter or remain in the U.S., and many of whom are also working without authorization, leaves the U.S. consciousness on immigration policy deeply bifurcated. We have harsh laws against illegal entry and unauthorized presence in the U.S., and a stringent enforcement regime, yet we by necessity value the contributions of those who stay here-- and lots of people are giving these workers jobs. 

So what do we do? 

First, I think we have to recognize that it doesn't make economic sense to simply deport everyone who is here illegally. Even if it did make sense to deport 11 million taxpayers, we don't have the means to do so. So the government has to prioritize who it will go after. The Obama administration prioritized deportation of foreign nationals who had committed violent crimes. That made a lot more sense than the de facto Trump era policy of deporting any and every undocumented individual who comes into contact with ICE or CBP. We have finite government resources and I personally would prefer to have the government focus on deporting people who are a threat to others rather than wasting that money deporting DACA recipients with no criminal record. 

Historically, the U.S. has answered the troubling questions about how to deal with our undocumented population by passing periodic legalization bills. The most recent such bill was passed over 30 years ago, in 1986. Each legalization campaign aims at ending the problem once and for all. The idea is that we will legalize everyone who's here now, and follow it up with stringent enforcement so that after this, nobody will want to come to the U.S. illegally. But it never works. It's always a stop-gap and the cycle begins to repeat itself. 

So what do we do?

Is DACA the answer? Or a part of the answer? DACA, or Deferred Action for Childhood Arrivals, allows people who are in the U.S. without authorization but whose parents brought them here as children to sign up for a promise from the US government that for a 2-year period, the won't get deported and will be authorized an Employment Authorization Document (EAD) and travel document. The EAD allows them to get a Social Security Number and driver's license, which opens up a whole host of new possibilities for their lives. One downside to DACA is that it requires the recipients to register with the government, giving the government a list of undocumented people who actually are deportable. So if DACA ends, they may have targets on their backs. Another problem with DACA is that from a policy perspective, it encourages more parents to bring their young families to the U.S. illegally because even though they may be undocumented, the U.S. government will eventually give in and give them, or at least their children, legal status.  There is real merit to the concept of a legalization bill, but more thought needs to be put into whether we want to incentivize illegal immigration in the process. And ultimately, legalization bills do not address the problem as a whole.

As the prospect of DACA legislation has become a political bargaining chip in the negotiation over a bipartisan spending bill, the New York State Assembly has, as it is so fond of doing, taken matters into its own hands. They passed the NY Dream Act, which, if passed by the Senate, will allow tuition assistance for undocumented students in NY State. While the idea of federal DACA legislation has merit, I see zero merit to this state plan. First and foremost, it makes no sense to spend billions of taxpayer dollars to fund a college education for people who are not legally allowed to work in the United States upon graduation. Second, the argument that "it's not fair" for us to provide public education to these students and yet not continue funding their education through college is a slippery slope. The next step is to say "it's not fair" for us to pay for their college education and then not let them work. There are a lot of things that aren't fair, chief among them being the burden of student loan debt that is placed on all but the most affluent U.S. college students. Let's help kids with that.

The U.S. needs a major and critical reassessment of its national values and priorities. The time is ripe for major reform, and there is a groundswell that demands it. The DACA population cannot be ignored.  But neither should our immigration policy encourage law-breaking, or put the middle class in direct competition with undocumented individuals for jobs and education funding. It is a truly out-of-touch elite class that fails to imagine how the middle class will be angered by working hard their whole lives only to be ousted from opportunities by those who are not legally authorized to be in the U.S. In the grand scheme of things, immigration may not be the zero sum game it appears to be when it comes to competing for jobs. Immigrants may, and often do, create jobs for U.S. workers by starting businesses of their own. But in some situations, U.S. citizens do lose out as a direct result of competition with undocumented individuals. It's hard to convince someone who has experienced that kind of competition that it's not a zero sum game. And when it comes to student loans, that is really just a sore spot for much of the middle class, who essentially live lives of poverty while they pay off their student loans for the entirety of their productive working years, and will probably never retire.

I am not against immigration; I love immigrants. But if our national policy forbids immigration by all but those who fit into the classes of individuals outlined above, then that is the policy that we should enforce. If we want to change our values to permit additional classes of people also to come to the U.S., then we should do so openly and not as a rearguard reaction to compensate for years of failed enforcement policy.

Thursday, February 1, 2018

The Two Trees: Bible Stories from a Non-Believer Part II

Some years ago, I wrote my version of the Doubting Thomas story and of Paul's conversion. Another Bible story that continues to ignite my imagination is that of the two trees in the Garden of Eden. The full text of that story is found in Genesis 2:4-3:24. It is a deceptively simple story that explains human nature better than anything else I've ever heard. It raises a thousand questions and maybe the answers are in the questions.

The story begins with God making Adam from the dust of the ground and breathing the breath of life into him and putting him into the Garden of Eden, where God then made all kinds of trees grow out of the ground. In the very middle of that garden he planted the two proverbial trees- the Tree of Life and the Tree of the Knowledge of Good and Evil. God told Adam he could eat from any tree in the garden except for the Tree of the Knowledge of Good and evil, "for when you eat from it you will certainly die.” Then God made Eve out of Adam's rib and brought her to Adam so that he would not be alone. 

Eating the fruit of these two trees was mutually exclusive. Adam and Eve could eat from the Tree of Life and live forever or they could  eat from the Tree of the Knowledge of Good and Evil, but they could not have both. Interestingly, eating from the Tree of Life did not preclude later eating from the Tree of the Knowledge of Good and Evil; but the inverse was not true. Eating from the Tree of the Knowledge of Good and Evil did preclude later eating from the Tree of Life. It was a show stopper. And for as long as Adam and Eve did as Adam was told, and lived out their lives in the Garden without eating the forbidden fruit, the Tree would remain there in the middle of their world, with its good looking fruit.

So later, the serpent questioned Eve about eating the forbidden fruit, saying, "You will not surely die...God knows that when you eat from it your eyes will be opened, and you will be like God, knowing good and evil.” Eve took some of the fruit and ate it and gave some to Adam, and he ate it also. Their eyes were opened, and they realized they were naked.

When God discovered their disobedience, he cursed the snake, Adam, Eve, and the ground, and banished Adam and Eve from the Garden of Eden. Because they ate from the Tree of the Knowledge of Good and Evil, he could no longer eat from the Tree of Life and live forever.  

The idea of the two trees being positioned together in the middle of the Garden and pitting them against each other as mutually exclusive choices is interesting to me. Is eternal life really the opposite of the knowledge of good and evil? What is even meant by "the knowledge of good and evil?" In part, this is a rhetorical device called a merism, which is a figure of speech pointing out opposing qualities within a whole as a way of colorfully summarizing and referring to the nature of the whole. These types of sayings are often used in legal contexts (e.g., a "last will and testament" refers to the sum total of one's material legacy). They are also used throughout the Bible. In Genesis 1:1, God is said to have created the "heavens and the earth," meaning everything. So in this story, the idea of the forbidden fruit imparting the knowledge of good and evil likely refers to imparting to man the entire scope of moral knowledge, from good to evil, and everything in between-- the gray areas.

It's deeply interesting (and ultimately impossible) to imagine what it would be like to live in a world where we have no perception of either good or evil- where we have no morally qualitative judgments about anything. And it's not like Adam and Eve were incapable of making any kind of judgments prior to eating from that tree- Eve did tell the serpent before she at the fruit that it was "good for food and pleasing to the eye" -- so she was able to make other types of qualitative judgments already.  Just not moral ones. What does that world look like? And how culpable were Adam and Eve really for falling prey to the serpent's deception if they could not yet perceive morality? God gave them a commandment to follow- do not eat from that tree- and they failed. But if they didn't know it was evil to fail, how did they even perceive that decision-making process? What kind of a choice did they think they were making?

It is also interesting to think about the fact that God made animals before making man, and that animals were not given this choice or this command. Animals, at least as far as we can tell, don't have any concept of good and evil. So in a way, perhaps Adam and Eve saw the world much more like animals do before eating the fruit. (But then again, what about that serpent? He seemed to have a pretty big clue about the nature of good and evil before Adam and Eve did. How did he get so crafty?)

Did God know, before putting man in the Garden, what choice he would make about eating the fruit? It's kind of dark to think God did know in advance; then it seems fairly cruel to go ahead with the plan anyway. But what if God didn't know? What if it was an experiment? What if God wanted, as he said earlier in Genesis, simply to make mankind in his image, and he wasn't sure what exactly he had created and what the implications were of this new creature? What if the two trees were a test of man's nature, a way of getting to know his creation? Or what if God didn't have any choice but to make those two trees just exactly as he did. What if that was simply the nature of the world he had created, to include those elements-- this propensity for an eternity that we feel in our bones alongside a bewildering knowledge of the whole scope of morality from good to evil-- elements that are both inherent in this world and yet somehow irreconcilable?  

Or going beyond that, what if the two trees were a way of introducing humanity to the fractured nature of the world we live in? The Garden was humanity's nursery, where they could slowly become acquainted with the rest of the world from inside a relatively protected space, but they would always have had to leave at some point. And in order to know what awaited them in the world, perhaps they had to have an earth shattering experience of coming, by their own choice, and even as an act of disobedience, into an understanding of their own nature. And maybe there was nothing special or magical about the forbidden fruit at all, except that it was forbidden. Perhaps it was the act of disobedience, rather than the act of eating that particular fruit, which opened their eyes to their own evil nature and therefore, to all evil. 

Wednesday, November 15, 2017

On Being Stupid (from an expert)

I don't mean to brag or anything (ok, maybe I do) but I know a thing or two about being stupid. A couple of weeks ago I went for a run down by the waterfront. I was in this gigantic parking lot that links to another parking lot that links to another parking lot in an endless continuum of parking lots that is almost like being in Ohio. So I tried to leave through one of the parking lot exits and there's this giant double-decker red tour bus full of tourists. IN BUFFALO, NEW YORK. And this bus is blocking three quarters of the exit. And this difficulty is compounded by the fact that the road this parking lot empties onto is a divided street with a median in the middle. This median has curbs. Made out of stones.  So I try to turn right (you can't turn left), and I can't. I cannot maneuver around the bus. There is not enough space. Not wanting to be the ass hole, I sit there-- for a good three to four (eternal) minutes, waiting for this Buffalo TOUR BUS to move. It doesn't. So I honk. I try to make it a friendly honk. This is the moment when I find out the Buffalo tour bus is full of drunk people. At least they are happy. They ALL wave. This is when I proceed to throw my car in reverse and run into a big yellow pylon (I know because the back of my car became yellow also). I dented several (apparently expensive) pieces of my car in the process. In front of a bunch people who seem to have paid for a bus tour of Buffalo. And they're drunk. Of course. After an 84-point turn I proceeded to turn around and exit the parking lot from one of the numerous other available exits, any of which I could have previously chosen, had I made a visual scan of the available exits prior to choosing the only one that was blocked. But I chose the bad one. And then I wrecked my car. It cost $5,500 to fix.

But that is when I learned this lesson: you will not be punished for your anger. You will be punished by your anger. I paid for this lesson with my stupidity. I will never forget it.

Another time recently, I volunteered to be the schmuck from my law firm who carried a pop up banner to a firm social event and set it up before the event started. It was just a "table top" banner advertising our firm. I was given instructions for how to set it up. But nowhere in the instructions was I given to understand that this banner, which scrolled up into a 12" tube that I could easily carry, would expand to about 6 1/2 feet tall. And it snaps shut. So I had to unscroll it and stick a tent-pole in it to make it stand- super easy! But I attempted this feat by inserting the pole first into the bottom part of the banner and then unscrolling it to try to stick it in the top second. So there I was in a dress and heels with a banner stretched up above my head, when it decides to snap back down on me. Yeah. But right after that happened, two people walked over and helped me out with it. Ice breaker! Those two people, who laughed at me with myself, showed me that you had to stick the pole in the upper portion first and use that to stretch the thing out before inserting it into the bottom. Duh. One of those people knew everyone at the party and stuck by my side and introduced me to everyone, and the other is the president of a local business that could become a client. All of their kindness was the windfall of my stupidity.

So since I can't escape it, I might as well learn from it.

Sunday, October 15, 2017

One of the reasons I don't listen to music on my runs

I spent almost a quarter of my waking hours today on a long run. A couple of miles in, I passed a farmer spreading manure. (I was to later pass 4 more farmers doing the same thing. Today was the day, apparently). I imagined him shaking his head at what was essentially a pointless expenditure of effort on my part, while he spent his day toiling from dawn to dusk to accomplish necessary tasks, on a Sunday. It made me reflect on how strange the gap is between people's needs. I need to spend a good chunk of my free time running in order not to have a heart attack at 50-something because I spend the bulk of my time with my ass slowly conforming to the shape of an office chair, while there are serious needs for physical labor in the world- 2.4 miles from my house, to be exact. Why isn't there an easy way for my need for physical work to get matched up with an actual job that needs to get done? There are migrants coming to our country to perform physical labor that no American wants to do- like picking New York State's apple crop every year- while Americans are dying way too young because we are way too sedentary. Why the imbalance?

All of nature, apart from human beings, exists in balance, each life and force flowing into the need of another part. The intricate balance of predator and prey; animals and plants figuring in their roles and producers, consumers, and decomposers; water continuing in its cycle through the air and back to earth-- all matter dissolves and reconstitutes itself continually in a dizzying dance through being and non-being. As humans, the matter of which we are composed is a part of all of those cycles, and we feel our kinship with it. But we stand apart in that we are driven by some other need which makes us resist all of those never-ending cycles. We are constantly looking for a break in one of those chains to find our freedom. But what are we really resisting, and why are we resisting it?

The strange mismatch of human beings' needs seems to stem from this need we all have to be out of step with nature. I read a crazy article last year about an Indian entrepreneur who figured out a way to collect the thrown out food of restaurants and distribute it to India's starving population. Here was a guy who just figured out how to match up people's mismatched needs- on the one hand there's a class of people with so much money that they continually waste food, and on the other hand there is a huge population of people literally starving and which could live on the waste of the upper classes. What a simple and beautiful idea to connect those people so that they can share.

I still don't know what it is in human nature that compels these excesses that remove us from the cycle of life and death. But it is something fundamental and flawed and strange. And there are some genius souls who can see their way clear to mending the rent this tears in the social fabric. And they feed millions of hungry.

Wednesday, September 27, 2017

How We Become Polarized

It is no secret that American politics and society has been becoming more polarized in the last decade or so, and this trend seems to have reached a head around the current administration. Smarter people than me are offering suggestions as to why that is happening, and I won't comment on why, but it is interesting to me how it occurs. I find the current debate over NFL football players kneeling during the national anthem to protest racial inequality in America to be particularly illustrative of this phenomenon.

On the one side, football players, led by Colin Kaepernick, are expressing a principled, peaceful protest of a very real American problem. I don't think most people disagree that police officers killing unarmed African Americans is a deep cultural problem and that Kaepernick and others have every right to peacefully express their opposition to it and to how these events are handled. Their chosen method for doing so, however, is to sit or kneel during the national anthem, and this method of protest has stoked a deep, virulent resentment in many Americans.

On the other side, you have patriotic Americans who identify strongly with nationalist sentiment and view the flag, and people's public display of respect for it, as civil activities in which every American should engage. They view respect for the flag as honoring veterans and their service and as an expression of national solidarity.  This is a tradition with deep roots in American culture and deviation from these norms causes not only discomfort but anger.

These two sides, which divide rather evenly along political lines (for the most part), are completely missing each other's messages and talking past each other. And this is how polarization happens: it occurs when we fail to fully consider each others' points of view and what we mean by our expressions. It occurs when we latch on to a pithy and compelling narrative that represents only our own views, without considering the importance of others' views. It occurs when we refuse to view a situation as nuanced and difficult when that is exactly what it is. It occurs when we fail to honor one another, and to show basic respect for each other as fellow human beings. It is, fundamentally, an issue of respect.

Wednesday, July 19, 2017

Beauty is One

From April to October, the sun is high enough at 6 a.m. for me to run outside before I go to work in the morning while it's light out. Before I run, I read for awhile in my purple chair with me eye on the window, waiting for the first pale rays to climb over the horizon. Starting each April, I begin to notice  that from day to day, there is a minute change in when those first rays appear, slowly coming earlier and earlier until June and July when they are up before I am at 5 a.m., greeting me in my bed.

At first I have to run on the roads because the trails in our woods and the grassy areas are too muddy, but eventually I begin to test those areas too as they change each day, until usually May or June when most are reasonably navigable. And when I start running the trails almost every day, there continues the slow evolution of their drying and hardening, each day a little better than the last.

The animals I encounter change, too. Earlier in the spring, on my first lap around the pond each morning I would hear frogs gasp in surprise and plunk, with a little splash, into the water as I would pass, one after the other-- as if they had all lined up in a ring around the edge for this performance. By mid-summer, there is only an occasional and larger splash and they no longer release a little yelp before they take their plunge. Now it is the lone loon whom I terrify on my first lap. His prolonged and agitated yelping are hysterically satisfying. And just today, I surprised a single deer on the pond path. I think he was just getting a drink alone, and I must have been moving quietly, because we came very close, startling each other before running in opposite directions. If I had had the wherewithal to reach out my hand, I could have touched his flank. I often see the deer back in the pines where they bed, but usually in groups and never so close.

Also today, I picked a bowl full of blueberries after I finished. They are late this year. Usually they are done by now but the raspberries ripened before they did. That is a first. This is only the second picking. Once they start to ripen, we can pick quite a few every day and they are all at different stages of ripening. Each day their colors shift until they are deep blue and my fingers know, by the slightest tug, whether they are fully ready. When they are, they roll into your palm with no resistance.

The daily ritual of returning to this space is its own lesson. The land is constantly changing, each day shifting its lights and colors and shapes in a predetermined course. Only through constant conversation with it, melding my own habits to its course, do I fully experience it. For all the relentless forces in this world, beauty is one.

Friday, June 9, 2017


Near the edge of this old town
Peopled with families that have been around
As long as the trees,
There is a natural depression in the ground
That was the perfect place to build the baseball fields.

When the children square up to the plate, take swing,
Or turn the bases, take the mound,
A hundred little phrases come to mind--
The old advice-- like, "Watch the bat hit the ball"
And "Don't wait for it to come to you"--
And they want to do it right, with narrow gazes,
They aspire to do as they are told.
It's a game that teaches them to focus
With its slowness and the way it forces choices.

I wonder if they notice, like I do,
That behind the bemused parents cheering them,
There is another ring of spectators,
The trees themselves respectfully
Look on behind the fences. Some of them
Have climbed the hills to get a better view,
And they cheer too-- not quieter, but lower,
And their advice is different. They whisper, "Slower."