Sunday, July 15, 2018

The Things That We Know In Our Bones

This spring I watched my youngest play many softball games. She's been playing for a few years but at seven years old she is really starting to understand the rules of the game for the first time and is asking me a lot of clarifying questions after games (or I will explain to her something I saw her missing during play). It's been interesting to try to articulate the rules of the game to her because they are something that I feel more than know. I grew up playing ball and learned the rules of the game through constant playing and repetition-- I know them in my bones. My mom was a Phys Ed major in college and a softball coach. I can remember being the age where moms play that game of rolling the ball across the carpet to their kids using their legs as bumpers because their aim is so bad-- well instead of a big rubber ball like most kids, I was wearing a tiny mitt and scooping up softballs. That's how early I started. I was probably two.

When I watch or play softball I just feel what's supposed to happen next. It's kind of like when we used to listen to CDs. There were certain albums that you listened to over and over again, and you would hear one song end and in the silence between songs your mind would already start to play the next one because you knew what was coming next. That's how I feel a play in softball- it's so rehearsed that I can feel in the silences what comes next. Yes, it's all governed by rules, but the rules are in my bones. For someone who loves articulating everything (especially intricate rules- yay lawyering!) the rules of softball have escaped that mental process for me, and I think it's because I learned by doing and also because I have held that knowledge for over thirty years now.

But that also got me to thinking about other arenas in which we learn by doing and have long-held knowledge, where intuition and long practice begins to drive behavior because we start to feel what comes next in the silences. I think that can happen even when you know the rules quite well and can articulate them. Once you have applied them enough times, over a long enough period of time, you begin to feel how they should apply to a situation, and retrofit your strategy with language that follows the well worn paths of intuition. This is what my work has become- a complex game whose rules are deep in my bones. I started acquiring my knowledge of immigration law over 17 years ago, when I was 21 years old and the frontal lobes of my brain had not yet completely formed. I have been applying that knowledge to fact patterns every day since 2001. When you playa game for long enough and encounter enough variations on how things can play out, the solutions present themselves to your mind. You just know what to do.

I should be careful to note that I do not practice law just by feeling- that would be malpractice, most likely. Once I create a strategy I review the relevant law, regulations and case law to clothe my arguments in substance and ensure that they are correct. Sometimes I realize a fatal flaw in them during that process and have to re-strategize everything, but most times the research process is a matter of fleshing out the barebones strategy that simply popped into my mind upon reviewing the facts of the case. That's what long practice gives you-- a deep intuition that is the culmination of years of addressing similar fact patterns.

I don't think there's any shortcut to acquiring practical intuition. It is always the byproduct of long experience. But what a marvel the human mind is, that it can assist us so creatively in our work, giving us an understanding that bypasses the lingual process, circumventing even th language that imparted the knowledge of the game to us in the first place. The mind truly is a wild place.

Thursday, June 28, 2018


There is one fractured day that I can’t quite recall-
One of those memories whose mismatched images
Won’t quite assemble into a narrative,
And to this day, I don’t know quite what to make of it.

I know that it starts with two doors opening up in the ground
In the middle of a crowd of kids, who all step back, and I
Am one of them- breath sucked in.
The doors are big and blue; opened, they are taller than two
Of us, atop each other’s shoulders.

Out climbs a lumbering, sad, and curious clown,
Slowly climbing up a set of stars into the sunlight,
Not donned as well as one at the circus,
But yellow enough, with a painted frown.
We are all mesmerized by his simple magic of emerging from the ground.

Time passes and we disburse- it seems to be a playground.
Adults are playing softball far away enough not to witness
What transpires, but I have my favorite Teddy,
Who never leaves my arms- the one whose orange rimmed eyes
I still recall seeing life in around that time, and who I sang to in the night.

But somehow Teddy ends up submerged in a wading pool
That is the same blue as the doors the clown came out of—
A frantic sense of loss and recovery.
The story ends with Teddy hanging by his ears on the clothesline
In our back yard, and Dad laughing about him going for a swim.

The postscript, some days later, is that we have to perform surgery on him,
Replacing his soft belly with a ridged patch of cloth
Cut from Mom’s worn out old corduroy pants.
He has long since fully dried out, but he’s never been the same ever since.

Wednesday, April 25, 2018

To My Daughter

I’m addressing this poem to you because
I know you think beyond the blue horizon of the sky
That wraps its million arms around us and you try
To wrap your mind around the concept of infinity,

And for you, it’s a real stretch still, with your mind so open
But unable to grasp it. No one can.
But most stop trying. You haven’t, and I hope you never do.
Your mind is always climbing the invisible ladder

That in my quiet moments I still imagine myself climbing up,
Hand over hand into the sky, never reaching the thing
I am striving for.

I remember when my bones were a cradle for yours,
Before you were born, and after,
And how nothing could crush you without crushing me too.
It’s still true. But now you’re you.

Most of the time, I am lost in my thoughts,
Feeling my being in the wrap of time, and stretching my hands
Outside of it into the dark, looking for the spark
Of the infinite, and I see you doing that too.

I hope you find it if I don’t. I hope time never wraps its ropes
Around your being too tightly. Because you exist
Outside the scope of all of this, and you rightly deny
The pull of time’s demands. You stand

With one foot in this world and one in the other,
And I can never lay claim to your future, but as your Mother,
I want you to know that I see you.

Saturday, March 3, 2018

This Is It. Breathe.

There is no truth more difficult to grasp than the fact that the past exists nowhere but inside of us who remember it. We take our view of the world from the collective impact of all that we remember and we conduct ourselves in the world according to the understanding we have collected from those experiences and yet, those experiences have vanished from the world. Perhaps they are only alive, in any real sense, in our conduct.

I remember the feeling of sitting across the breakfast table from my father many Saturday mornings when we went to Talk O' The Town restaurant. I can recall the feeling of my size compared to his- I remember being small. I was 7 or 8. My mother would sit next to him and my sister, who is 4 years older, sat next to me. We would always get the same table and always sit in the same seats. On his factory worker salary, he would treat us all to breakfast and then, once we had finished eating, I can recall how his look of boredom, absently gazing somewhere at the wall behind my head would flicker, he would lean over to retrieve four quarters from his pocket, and he would plunk two in front of me and two in front of my sister. Off we would scamper, delighted, to a room past a heavy glass door.

My sister- older, bigger, faster- would always get there first and rush through the door, which I could barely hold open long enough to run through. Inside were a change machine and a Pac-Man game. The Pac-Man music would always be playing even if no one was in there. I think there was pinball too, but we would always play two games of Pac-Man each. On the other side of the little room there was another glass door that led to a bus station. I can remember the feeling of unsavory men coming into the room and hovering close to my sister, watching her play, and feeling the distance from our parents on the other side of the door.

And I also remember in that restaurant, how I would always choose the cheapest breakfast I could find on the menu, which was 2 eggs, sunny side up, with toast, and a glass of orange juice. They would bring a basket of foil wrapped jellies for the toast, which I would never use. It would be decades before I would look at a menu in any restaurant and pick something becuase I thought I would like the taste, rather than because it was cheap. No one ever instructed me to choose food that way in a restaurant-- I just felt like it was what I should do, because we didn't have a lot of money. As the younger child, I watched a lot, was quieter, and took in the balance of things. And I wanted to be good. That Good Little Girl persona still has residence somewhere inside of me and flinches at the recollection that I don't recall ever saying thank-you for the quarters my father gave us. I do think he smiled after us as we ran to play, though.

My father is gone now. Three of us remain from those distant Saturday mornings. Three of us- I think- remember. It's astonishing how much information about who we were and are as a family exists in those recollections. I think we went to that restaurant regularly over the course of maybe 2-3 years. And I don't remember everything about it. And I don't know how long my sister and I would be away playing Pac-Man or what my parents would talk about while we were gone. I don't ever remember them coming to fetch us, so it mustn't have been long.

It's hard for me to wrap my mind around the fact that life consists of such experiences, and that these vignettes are what give shape to who we are. Those repeated, every day experiences in which we rehearse, with little reflection, how we respond to those around us, where we determine who is safe and who is not, what we look forward to and how we make our choices-- those are us. And even when those experiences are shared with those we love, they see them completely differently than we do. No one ever knew I was, at 7 years old, looking out for the family's bottom line in my little way (unnecessarily, as it turned out!) And I'm sure there are aspects of those same experiences that others of my family routinely experiences that I know nothing of. It's even stranger when those characters who people our memories are no longer around to discuss them. The solidity and reality of those memories seem less reliable and so too, perhaps, our sense of our own identity.

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.