Tragic Choices
Toward a more thoughtful and compassionate conversation about immigration and security
I opened Google this morning and saw a headline that the House passed a bill that would require detention of undocumented individuals accused of burglary or theft. The bill is named for a Georgia girl named Laken Riley, who was killed in a shooting in which the suspect is allegedly undocumented and had previous theft charges.
Riley’s tragic death is an unimaginable loss. Her murder should be punished severely through the criminal justice system.
But crime and immigration are two separate issues. Immigration (documented or undocumented) does not affect crimes rates. At all times since 1880, immigrants have been less likely to be imprisoned for crime than the native-born.
Perhaps one could argue that a single serious crime committed by an undocumented person is too much. But the Due Process clause — which protects every “person,” not just every citizen — doesn’t allow us to ignore human rights in the name of security.
We have to find a better way.
H.R. 7511 Goes Far Beyond Existing Law
H.R. 7511 would operate by expanding the categories of people subject to “mandatory detention,” meaning DHS has to hold them in jail while they pursue removal proceedings in immigration court.
It’s important to note that the law already requires DHS to detain people who were convicted of or admit to having committed a theft offense. Section 236(c) of the Immigration and Nationality Act, which defines “mandatory detention,” requires DHS to detain people who are “inadmissible” under INA Section 212. Section 212 provides that commission of a “crime involving moral turpitude,” or even admitting to facts that would be a “CIMT,” makes someone inadmissible. And courts have defined most theft offenses, including the “burglary, theft, larceny, or shoplifting” listed in H.R. 7511, as CIMTs.
However, H.R. 7511 would require ICE to detain any undocumented person who “is charged with, is arrested for, is convicted of, admits having committed, or admits committing acts which constitute the essential elements of any burglary, theft, larceny, or shoplifting offense.” Charges are often dropped; arrests aren’t always substantiated. That wouldn’t matter under H.R. 7511. Even if the police improperly arrested or charged someone, the individual would appear to be subject to mandatory detention under H.R. 7511 without defenses. And Section 212 contains exceptions for very minor crimes and youthful offense; those exceptions would be swept away by H.R. 7511.
If the bill requires ICE to detain people without defenses to improper charges or arrests, it might violate Due Process. It’s certain that the Democratically-controlled Senate will not agree to a bill that expands ICE authority this much. Unfortunately, the bill seems more a political statement than a genuine attempt at lawmaking.
Fearing Immigrants
I began writing How We Got Here in order to participate in a different kind of conversation about immigration. Perhaps, by looking at the past – especially a past in which we recognize our own ancestors as the migrants standing before the courts – we might be moved to a more thoughtful and compassionate conversation about how to approach the complex issues around immigration. And that includes questions about safety and security, which can be and have been severely threatened by large influxes of foreigners, as I wrote about in my first post.
This week, I’ve been piecing together the immigration story of Hans Michel Finter, the third great-grandfather of my biography subject, Wilbur J. Carr. Finter arrived in the Port of Philadelphia on October 5, 1737, on the Billinder Townsend. Along with his fellow migrants, he was taken to the court house on High Street (now Market Street) to swear three oaths, an attempt to hold him accountable to British and Pennsylvania law and government.
Finter had likely been at sea for eight weeks or more, with a space about one and a half feet wide to lie down in. If his trip down the Rhine from Southwest Germany to Amsterdam and then England lasted longer than predicted, he may have eaten all of his food then and had to starve or eat spoiled food during the trans-Atlantic crossing. He arrived with his wife, Anna Johanna Christiana Eyrich, but no known children, unusual for a couple married six years who would go on to have several children in Pennsylvania. Death rates among children were high on the trans-Atlantic voyage.
Local authorities had been concerned about these newcomers for years. Back on September 14, 1727, Lieutenant Governor Patrick Gordon had called the Provincial Council of the Province of Pennsylvania to do something about these German-speaking migrants that kept arriving in Philadelphia. Security from these newcomers must be secured, Gordon said, until they could be excluded. They came without proper documents, and they weren’t really even seeking asylum, as they had originally claimed. As Gordon told the Council,
[A]s they transport themselves without any leave obtained from the Crown of Great Britain, and settle themselves upon the Proprietors untaken up Lands without any application to the Proprietor or his Commissioners of property, or to the Government in general, it would be highly necessary to concert proper measures for the peace and security of the province, which may be endangered by such numbers of Strangers daily poured in, who being ignorant of our Language & Laws, & settling in a body together, make, as it were, a distinct people from his Majesties Subjects.
The Board taking the same into their serious consideration, observe, that as these People pretended at first that they fly hither on the Score of their religious Liberties, and come under the Protection of His Majesty, it’s requisite that in the first Place they should take the Oath of Allegiance, or some equivalent to it to His Majesty, and promise Fidelity to the Proprietor & obedience to our Established Constitution; And therefore, until some proper Remedy can be had from Home, to prevent the Importation of such Numbers of Strangers into this or others of His Majesties Colonies.
A decade after the Provincial Council enacted this act, the 231 men on board the Townsend arrived at the Philadelphia courthouse. There, before James Logan, acting governor and chief justice, Finter and the other men were required to sign three oaths (written in English, which few if any of them understood). In the first oath, Finter swore allegiance to King George II and to uphold the local laws. In the second, he forswore any allegiance to certain extreme anti-Protestant beliefs and abjured any other authority (including “Ecclesiastical or Spiritual”) in the kingdom of Great Britain. Finally, in the third oath, Finter swore that James, the Catholic heir of the house of Stuart, had no claim to the British throne. Finter further swore that he would be a faithful subject and would do his “best Endeavours to disclose & make known to King George the Second & his Successors all Treasons and traitorous Conspiracies which I shall Know to be made against him or any of them.”
King George’s successor did, in fact, face a “traitorous Conspiracy” thirty-nine years later, but the leaders of the insurrection were mostly native-born British subjects. Finter himself died in 1760, so we do not know if he would have taken up arms against the government he swore allegiance to.