Let me tell you about a client. I'll change a few minor details to protect her identity but nothing that affects the account in a material way. We'll call my client Greta. Greta's mother was a German national. Her father was a U.S soldier stationed in Germany. Greta's mother didn't marry Greta's natural father. However, Greta's mother later married another U.S. soldier and moved to the United States with Greta when Greta was four. Greta hasn't been back to Germany since. She doesn't remember being there. She wonders whether a trip back to Germany would rekindle some memories. She speaks no German. She went to school in the United States. She got a Social Security card. She worked in the United States. She married and had children in the United States. She never tried to register to vote because she just wasn't interested. She never tried to get a passport because she didn't have the money to travel outside the country. There was never a problem until Greta applied for Social Security retirement benefits. At that point, it was discovered that Greta wasn't a citizen. What's more, she didn't have a green card. Although Greta came to the United States legally, she had become an illegal immigrant because the proper steps hadn't been taken to regularize her immigration status. This amazed Greta. She knew she was born in Germany but thought she had become an American citizen when she was a child. That's what should have happened. It would have been easy but her parents never did what they needed to do. While Greta has enough quarters of coverage to get Social Security retirement benefits, she can't be paid until Greta sorts out her immigration status with the Immigration and Naturalization Service (INS). This will be done. INS isn't being difficult. They're sympathetic. They agree that she deserves a green card. She may even be entitled to citizenship without the normal formalities because she was brought to the United States as a child by her U.S. citizen stepfather. However, the INS is slow. Sorting this out will take well over a year.
Donald Trump wants to throw all illegal immigrants out of the country. At the moment Greta is an illegal immigrant. Do you want to round up Greta, put her in detention and then deport her to Germany? Do you want to punish her for the negligence of her parents more than 50 years ago? Greta wasn't born in Mexico but what if she had been and had been brought to the U.S. by a stepfather who was a U.S. citizen? Would that affect how you feel about the situation?
Funny how we expect to choose what laws are to be enforced and what laws are to be ignored. To what extent does the passage of time, or the explanation of "I didn't know", or a willingness to live partially under the radar of the law or society, or the level of financial consequences, or any mix of these decisions will have on current or future actions. Now let us throw race, or gender, or age, or nationality, or religion, or culture, or history of country of residence into this and mix completely to find that combination of factors to justify an outcome of if it feels good it must be right. Please provide this equation so it is available to all, then stand back and express surprise at the outcome to how society responds. Laws are not perfect but is it necessary for all people to have a detailed government registration to identify factors related to the issues told in this story so this and similar problems are identified in the most timely manner? And as in the law, resolution may be unfavorable to the individual.
ReplyDeleteAs if a "Trumper" is going to engage in analysis....
ReplyDeleteNot a "Trumper" here, but the irony of 1:12's comment is delicious.
ReplyDeleteWell, sometimes the application of current law shows (starkly) it's limitations and leads, one would hope, to corrective legislation. Now if one party is going to obstruct everything.....
ReplyDeleteSocial Security gets many $ millions ever year to closed accounts [deceased, e.g.] or to people like Greta. No one has an incentive to check into the matters. She should have been getting an annual statement back when we could afford that luxury.
ReplyDeleteThe lesson here is to tell your clients to check out their situation a YEAR before they turn 62. It will burden the system to have a few million extra phone calls, but Greta could have been getting her situation cleared up.. Had a guy who had a bad birthday. SSA was intractable. He lost 7%/a year's worth of benefits.
Is our do-nothing congress also under funding INS?
ReplyDeleteI am assuming Greta has 40 credits. If so, while Greta cannot receive benefits right now, although I suspect eventually she will, she could receive benefits now if she were to leave the US. See RS 02610.010. It is not even clear that she has to be domiciliary of another country, but just be outside US.
ReplyDeleteSo, Greta, pick a more hospitable country (Canada, Mexico, whatever) and start collecting your benefits while you wait out the bureaucracy.
11:04
ReplyDeleteLaws are made and repealed by mortal men who sometimes have a warped agenda (whether to the right or the left).
However, the correction of injustice has no warped agenda. We all know injustice when we see it, but some of us do a very good job of rationalizing so that the injustice seems inconsequential so as not to exist.
Laws are necessary because without them there would be chaos.
However, laws that inflict injustice on innocent people serve to do the same thing, that is cause chaos.
I suppose that you would think that the slavery laws were okay as they were a law; that the Jim Crow laws were okay; and that the prohibition against women voting was okay.
When the outcome of a law's application is so repellent to the sense of injustice on a wide scale basis, do you still think it should be applied injudiciously?
12:08 for heaven's sake. Greta is not wide-scale injustice. Someone that chose to come to the US illegally is not innocent. Throwing slavery and women's rights into the argument changes nothing about the actual issue, but does suggest you don't actually have a valid argument. And, really? Greta having to wait a year to sort out an issue that she could have prevented? Yes, that's certain proof that we need to allow continued illegal immigration because anything else would be injustice.
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ReplyDeleteGreta did not chose to come to the US illegally. She was brought here as a child, this is the only country she knows. This is her home. She will b ripped from her home, as will thousands of others if the the Dreamers' amnesty program is not implemented.
You want to keep to the facts of Greta, which are bad enough, but what about all the others like her?
You think a mass exodus of people from their homeland against their will is not akin to slavery?
You think making these people live in the shadows while they are law abiding and tax paying citizens is not akin to not allowing women the vote?
I think you are just parsing the facts so that you can justify the gross injustice that is being done to Greta and those like her.
Greta is not blameless here. Where did she think she was born and why didn't she bother to sort out her life story by age 40 or at least age 50. She didn't get around to it when she could have.
ReplyDeleteHopefully INS/Homeland Security will look to deport violent criminal illegal immigrants first and won't get around to people like Greta - who also can't currently get government benefits.
1:37, I get that "ignorance of the law is no excuse," but I know from firsthand experience that nationality law, especially when multiple countries are involved, is something not many people know about that can bite them—or their children or grandchildren—in the rear decades later.
ReplyDeleteI only learned two years ago that I'm a dual citizen and have been since birth. There was simply no reason for anyone to think that I was anything but a U.S. citizen.
So, no, ignorance of the law is no excuse, but at the same time nationality law is not at the same level of comprehensibility as "Murder is wrong" or even "Copyright infringement is illegal." Surely some amount of forbearance and fudge factor can be expected when failure to adhere to an obscure set of laws, through ignorance, and not by one's own choice, leads to a complete breakdown of one's rights?
Not for nothing but US immigration law is so much more friendly and easy than basically every other western nation.
ReplyDeleteSome of these discussions about the "the Law" need to be tempered with a consideration of "justice," which is not necessarily synonymous with "punishment." Much of the mindset of some commenters seems to have a "nativist" connotation.
ReplyDeleteWithout doing caselaw research, I don't know into which category immigration laws fall, but not every statute is enforced with "strict liability," as is the case for speeding. "Intent," "mens rea," or "state of mind" applies to most statutes such as violent and property crimes. I've often told clients that I have a better chance of getting them acquitted of murder than for speeding (I've represented clients charged with both). Even the strict liability standard for speeding is often tempered with some compassion, as if one was racing a injured person to a hospital.
Let's look at the "injustice" in another area of law. Greta comes to this country with her step-dad. She doesn't know he is her step-dad. He dies 50 years later and has a million dollars. If she is not in the will, she gets nothing. How unjust is that? Should the laws of intestacy be radically changed? No, of course not. She was not his child.
ReplyDelete