A conversation with the New York Law School professor.

Question: How have American attitudes towards immigration changed over history?

Lenni Benson: A few years ago there was a great cartoon, I think in the New Yorker, where you see some native people on the shore and out in the harbor come the big tall ships. One Native American says to the other, "I knew that immigration policy was something we had to work on." That's a little bit of a humorous approach but my first year in teaching in Arizona where I grew up—I was teaching at Arizona State, the course “Immigration Law.” There were Native American students in the class, and they seriously asked all of us and taught me to re-evaluate what we tell ourselves about immigration law.

We often talk about the United States being this open territory where everyone was free to come, where the land was ours for developing, and we forget that—even at the time of the founding of our country and the first western Europeans coming to the United States—there were negotiations with existing people and there were bilateral treaties, in negotiation about who could live here and who couldn’t.

I think another aspect of it is: we often think of our immigration history as two or three paragraphs in our eighth grade civics book. First came Columbus in the ships, then came the Pilgrims, and each story of the first European settlers in the United States has with it aspects of immigration limitation. So, for example, people coming [to live] with the Puritans were not anyone who wanted to come. There was an application process, people had to qualify, they had to be selected through the theocratic leaders of the puritans and their religious community, and if you didn’t come with the original puritan group and you wanted to join later—perhaps you were living in Rhode Island and you wanted to become part of the Puritan communities and Massachusetts, you had to apply and be vetted and be qualified much as we do with immigrants today.

So tensions quickly rose in those early religious communities about people who were maybe the second generation, not quite as committed to the Puritan way of life, or the mercantilism that was growing in the Boston area and other part of New England that was changing the migration patterns. So there’s always been debates about who we going to live next door, who qualifies to come.

Question: How did the Industrial Revolution affect U.S. immigration policy?

Lenni Benson: Sure. Again, when we say we're talking about immigration and the industrial revolution and the agriculture revolutions before, often the story is told as just the migration of the free laborer, the free white male or the people who could come. Of course, part of all immigration history in the United States is also forced migration, slavery. People subjugated to work here temporarily, such as in indentured servants or the convicts who settled briefly in the state of Georgia. But the industrial revolution, let's say post-Civil War, the birth of factories, [there was] greater need for labor, people living off some of the farms. We begin to have denser populations in cities and increased ability for ships to bring people from Europe in a safer, more economical method.

So the great period of American rapid immigration—we think of the Ellis Island experience, right? All the Europeans that were coming, the millions of people coming in that period. We often think of that as everyone was welcome, it was all positive. Sure people suffered as they were doing the passage, but once they settled in Boston or came to Chicago or found work in Chinatown in San Francisco, it was all good. But actually there’s always been great tensions about all migration populations.

One of the sad stories in my view of our history is that organized labor, early on, took the position that it was better to be pro-immigration controls and restriction rather than working to organize the new immigrants coming; their earliest, most grievous example is not today’s unions, but the organized labor groups or political groups of California opposing Chinese migration. The California delegates to Congress were successful in passing our first complete immigration ban—the Chinese Exclusion Acts—and there were several of them between 1880 and 1890s, but ultimately the motivations were rhetoric that you hear today. Things like, "These people come to this country but they don’t want to learn our language, they don’t integrate into our society, they don’t go to church, they will live ten men in a room in conditions no civilized man would live and work for wages that no honest American would work for." So that’s often stories you heard about Chinese; where you hear today about people from Mexico and Central and South America—that it’s an unfair competition to American labor.

Question: What characterizes the immigrants coming to America today?

Lenni Benson: So, let’s start with a proposition that in any historical period of migration, whether we're talking about the Irish coming in the 1830s to the 1860s—we often say the Irish came in response to the potato famine. Well, we can do that as a short hand, as a sound bite, but the actual stories are much more nuanced. And in any American economic history, you’ll know there are boom and bust periods.

So we have the growth of the railroads, the growth of factories, but there’s huge recession in 1893. There’s a collapse of markets again later, maybe the Spanish American War of 1898 was, in part, complicated and necessary by economic need. Ellis Island at its peak in the first ten to 20 years of the 20th century—so 1900 to 1920—we had enormous recessions post-World War I around the world. So when we think today and we think America is in a recession, some would say a depression—the world is in a recession, we can’t afford new immigrants, they’ll take our jobs. Again, that’s a truth that has been explored in immigration policy throughout the history or our county and all countries.

I’m not an economist, but like any good law professor I can read the economic literature and I can tell you there are arguments on any side. So there are economists who will say that, actually, when you are in a recession, having relatively open borders or having the ability to bring in labor and make sure that labor is paid fair wages—and we can have debates about the minimum wage or higher adversely affected wages—actually creates economic employment opportunity, helps your country rebound from a period of stagnation or economic depression.

They're similar to the debates that many people make to argue against a minimum wage. They say a minimum wage actually deters entrepreneurs from investing because the capital risks are too high. I wouldn’t go that far, but I do think there are many examples in history where it is immigrants, industry and the willingness to start at lower wages that has let industries develop, flourish and come back.

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.

Question: What are the best ideas for making immigration in the US less complicated?

Lenni Benson: There are some ideas kicking around in think tanks and academic circles and in Congress. One idea that’s very attractive to people is the idea that we would outsource the immigrations decisions to a blue ribbon commission, that we would get a panel together of labor economic experts, maybe a few lawyers, civil right experts, and that those neutral, shall we call them platonic guardians of our idyllic utopian society, would make the decisions of who should be admitted and should not, and they could they move quickly because they would be exempt from some of the traditional constraints on agencies of rule-making through the Administrative Procedure Act, and adjudication in a formal sense.

Question: Could this plan work?

Lenni Benson: I think that’s attractive on the surface. It’s also an old idea. There’s been immigration commissions periodically; perhaps, I haven’t done the math, but it’s maybe every 50 years or so. It’s such a politically hot topic that Congress often makes the move of saying, "We're going to turn to the experts and let them tell us who should be the immigrants in society." So, we’ve had commissions, usually making recommendations for law reform to Congress, but this is an idea that we should let the private experts make the decisions for us. It’s sort of like saying we should use the market to make decisions on environmental policy. If we let businesses trade credits, we’ll have pollution credits, we'll have more efficient systems develop the market will work for us. So why not use this blue ribbon commission to let labor market policy drive our immigration law?

Well I have some concern about that, because number one, who’s selecting the experts? Number two, what input data is going to those experts? Sure, some sophisticated industries will find it easy to access that commission and make their case that in shortages. So agri business, which often lobbies Congress saying they're highly dependent on migrant labor, much of it undocumented, would like to have a system of guest workers—they’d like to have a system that facilitates bringing in migrant labor. The think-tank group, the commission, might agree, but would there be protections for the health, welfare, and safety of those workers? Is that think tank going to have the leverage to go to the Department of Labor and give them the extra resources they need to do wage and hour inspections and help the labor inspections through OSHA or the farm workers statues to make sure those workers aren’t exploited?

When you have a commission that’s not integrated into the rest of government, you could have success for industry lobbying for a particular worker or individual workers lobbying the commission to say, “I’m a gifted rap artist,” or “ I’m a record producer,” or “ I’m the latest website czar—let me come to America and create jobs," but that wouldn’t necessarily integrate with the rest of government or policy.

Question: What can the U.S. learn about immigration policy from other countries?

Lenni Benson: I think when Europe moved to a model, first with the Schengen Agreement and then with the European Union’s formalization of recognizing that individuals and their right to take their services and skills from nation state to nation state within the EU, really was such a remarkable action in Europe and for us to learn from. It isn’t without warts or bumps in a neighborhood. Someone in a French neighborhood hearing Polish music or seeing Polish newspapers on their newsstand may suddenly feel the stranger in their own land and feel some resentment toward the stranger coming into their neighborhood.

I don’t mean to pick on the French, we could have the Poles who might not like to have Germans coming from East Germany who are skilled dock workers coming into a Polish dock and competing with them with their higher education or training, if that was the case. So, of course, humans tend to identify—whether it’s your sports team or your church or the way you cut your hair—when you have nations like Europe that have centuries of cultural and political identity with language around it, one would think it would never work. The great experiment of people moving from nation state to nation state and moving their labor about would never work, but a lot of us scholars and economists think it’s been a tremendous success.

[It is] just like capital will move from market to market to find economic opportunity. Let’s invest in Ireland, in its explosion in technology, creating a lot of jobs for Irish—in part, Ireland could sustain that growth in the '90s of the high-tech boom because Americans found it fairly easy to get temporary visas to work there, and skilled Europeans could come from other states to Ireland to help sustain, nurture, manage, contribute to that evolution.

Now that we’ve gone back into a bit of recession, many people are leaving Ireland who came with the real estate booms or the high-tech boom and they're going back to nation states—just as capital does. Again, it’s not without cost displacement, families don’t like to move, households may be broken up, but it didn’t result in complete chaos.

The predictions back when Schengen Agreement was first was adopted the late '80s, early '90s, was that everyone from Portugal was going to move to Germany, that everyone would immediately vacate Spain in its poorer regions and move to the more economically successful parts of Italy. It didn’t happen. So the U.S. could learn from the European experience, and when I talk to students about it I often say, why don’t all the unemployed in Detroit move immediately to the Silicon Valley in California? “Why don’t all the unemployed in Flint, Michigan, suddenly move to Florida and look for housing and work experience there when there’s a boom economy there?” Yes, some people do move and that’s terrific, but there is always countervailing reasons why people want to stay in their home communities. Allowing people to move more freely creates a pattern of economic remittances.

So there are a lot of people are studying this—some central American nations, some African nations, are very dependent on money coming home from their foreign workers working abroad. It can be the best tool for economic development in the home country—the sending country—when people are more free to alienate their labor and move about.

Question: Do temporary visa and guest worker programs help or hurt the economy?

Lenni Benson: Temporary visa programs, guest worker programs, there’s always a concern. The famous quotes are, "We wanted guest workers and we ended up with immigrants." Then there’s concern from labor movements of exploitation of those guest workers, but if you put it all together in the stew pot and you say, "Why should workers have greater restriction on their mobility than capital stock markets, investment instruments, government lending programs? Why not recognize that people can move from nation to nation, make economic contributions both in this country and in their home country that actually creates more opportunity all around, and can actually slow down immigration?" There is a Sociologist, Douglas Massey, who teaches at Princeton, who has shown that by toughening up our border making it very difficult to enter from the southern border, we've actually disruptive decades old migration patterns between the US and Mexico.

So we're keeping more Mexicans in the United States as undocumented workers because the price of going home when a season is over or in a lull of a work period is too high because you're going to have to pay a smuggler, you're going to risk apprehension. You might have to risk a jail sentence if you illegally re-enter after an order of removal.

So we've actually created this pool of workers that are trapped, when for decades and decades, since really 1898, maybe 1848 with our first war with Mexico, people have migrated -- worked in the United States, sent money home, gone back for visits, left their families there. Now, because of the difficulty of crossing that border, men and women sent for their children, sent for their families and build their lives here and have to abandon or cut-off the ties in the home country because of the difficulty of crossing the border.

Question: How does U.S. immigration affect children?

Lenni Benson: I think the most common question I was ever asked in the years that I practiced, and I practiced immigration law for 12 years, would be someone saying, “I've met this wonderful child. I was on vacation in Barbados or I was a Peace Corp volunteer in Africa or my husband's company has a plant in Costa Rica and we would like to give this child an opportunity in America for our educational system—they just don't have those opportunities in the home country. Can we adopt the child?”

It's an instinct people have. Sometimes you're a distant cousin and you want to bring your niece or nephew to the United States. Well, first of all, one should know that the statute only recognizes children as children for the purposes of sponsorship: if the child is an orphan, if the child's parental rights have been terminated in the home country and a legal adoption has been completed—and that adoption has to be completed before the age of 16. So, unfortunately, because of the legal costs, both in the home country and the bureaucratic process of going through everything here in the United States, there is a lot of people who, when they're immigrating to the United States lawfully, they've been sponsored, they've waited in the queue, they're finally coming, they'll say to their brothers and sisters, "Let me take my niece, Sally. Let me take my nephew, Jose. Let me bring them as my child."

So our State Department finds a lot of what they call "child fraud," or "child smuggling." That's the benevolent aspect of it. There is also a negative aspect, because it is so difficult to bring a child to the United States. Even to a relative, because there is no visa category to sponsor your second cousin or to sponsor your nephew, even if your cultural patterns and your nation would embrace and educate all those children if you had the economic ability.

Because there is no visa pass for that, people sometimes resort to smugglers. In the southern border we call them coyotes, and from the China we call them snakeheads. There have been really well reported books, documentaries, New York Times in-depth stories about children one day being told by their parents, "I love you," kissing them on both cheeks, putting a handkerchief in their pocket, and they're handed over to a smuggler.

The smuggler may charge $30,000 to $40,000 to bring that child to the United States. The children face great danger. Some die in the deserts in the south. Some are raped. Some are physically abused. But at a minimum, they are traumatized bringing to the United States. Where do these parents send them? Sometimes they send them into the labor force. So you find teenagers in New York and Pittsburgh and Phoenix that have been—their parents have, with all good intentions perhaps, paid a smuggler or told them go because if you can find work in the United States you're going to have a better life.

Also, those children are expected to pay off the smuggler. If they don't, the smuggler says, "Well, we know where your mother is. We know where your little sister is, in the home country. We have a network—it’s organized crime—and we'll hurt someone in your home country." So you have perhaps some well-meaning parents victimized by smugglers, but their desperate to give their children opportunity.

Question: Does the U.S. protect rights of illegal immigrant children in any way?

Lenni Benson: Happily, U.S. law is unique—it's only been a few years that we've had this provision. Congress really generously created a provision called the Special Immigrant Juvenile Provision. That if a child is found by the State a Juvenile—the Court competent to make juvenile determinations: in New York we call it the Family Court and in other jurisdictions maybe the Supreme Court or the Superior Court, depending on the name of the tribunal in the State—if a State finds a child to be a ward of the State because they were abused, neglected, or abandoned by their parents, or they're orphaned, that child doesn't have to stand documented. They can go through that family court process and then apply for immigration status. That's a really generous provision. It really allows some children to come out of the shadows, out of exploitative work environments, out of smuggling situations, and acquire status.

Now they have to do that before the age of 21, because in US immigration law, 21 is the cut-off to when you become an adult. And that doesn't apply to children who were brought by their parents. There are perhaps millions of people who live in the United States who don't have status, who were brought as infants, six month old, six years old, by their parents, maybe across the southern border, across the northern border. Actually, a huge percentage of the people unlawfully present in the United States entered with visas and overstayed. So the family may have come from France on the visa waiver program we have for French nationals, lived as middle-class people in our society, and they're completely out of status—they are as "illegal" as somebody who crossed the southern border without documents.

Those young people are trapped, yet reform in Congress has been stymied and it's really a problem because those people may not speak the language of the home country, they have no family in the home country, and if they try to leave the country and then come in again legally, even if they could be sponsored—once they have entered illegally and acquired more than one year unlawful presence, the law says they must depart the United States for ten years.

Question: Should America forgive the status of children of illegal immigrants?

Lenni Benson: The issue of whether we should have a forgiveness provision for children who were brought before, without any volition of their own—the parents brought them, they took no act to further their own illegal entry into the United States or overstay of a visa—I think the debate goes something like this: on one side, people say if we do that, if we have a provision or a law that says, not withstanding the facts that you're out of status or you entered illegally or you overstayed a visa, we forgive you because—let's say you came before the age of 16 so you're innocent. You're innocent of culpability. You didn't have the mental intention to violate the law. Some people will argue [that] that will create a huge incentive for other people to come illegally to the United States with young children, that we would see immediate exodus of people with very small children hoping that their children, at least, will be forgiven and they would have better lives.

Other people will say that may be the case, but we have to deal with that by education in the sending countries, by talking about the difficulty of the passage, the dangerousness of the passage, by having more generous family reunification provisions in general. Remember, I mentioned that if your husband is a permanent resident and you want to be sponsored by him from Mexico, you and the children are waiting in Mexico, it may be a 12 year wait. Maybe if we had a better path to reunite the family, we wouldn't have so many children in illegal status.

But, in my mind, the issue of the forgiveness is essential because we have a generation of young people in the United States who are trapped between a rock and hard place. They, through no fault of their own, want to be contributing members of society, they lack documents. I see it as both a humanitarian issue and a national security issue. Why wouldn't we want these people who are loyal to this country, [who have] been raised in this country, speak our languages, have skills and education in the Unites States; why wouldn't we want them to be part of us? Why would we want to make them live in the shadows without documents not knowing who they are? Afraid to go to the police? Afraid to use our courts? Afraid to become part our tax paying system completely? It is almost impossible to do so without the right documents. Why would we want that instability in our economy?

I don't know why immigration law is a civil law system. Why, in this system, if you break the law, there is no fine that you can [pay to] remedy your breach? If you're a corporation that doesn't pay your taxes, we say pay your taxes and pay a fine. If you're a father who doesn't pay his child support or a mother who doesn't pay her child support, we say pay this or we're going to garnish your wages. Why can't we have a recognition that immigration law is a similar issue?

Question: What keeps you up at night?

Lenni Benson: You know, I'm a workaholic, so when I stay up at night I can't say I'm worried about world peace or the global warming. I'm actually worried how am I going to get that next project off my desk. So I'm a big addict of books on tape and/or audio books, and that's when I put the audio book on and I disappear, particularly into science fiction.

Question: What is your career advice to young people?

Lenni Benson: I think a lot of us know a few job titles; we know teacher, nurse, flight attendant, doctor, lawyer. The thing I would encourage everyone to do when they're thinking about a career, is just go meet people. You can use the Internet now. So many people are very positive in web sites like LinkedIn or even Facebook, where someone will describe where they work and their education and their background. So if you think you're interested in working, let's say as an engineer in a company, start reading the backgrounds and profiles of all those engineers. Then write a very respectful e-mail or pick up the phone—the phone is really effective—and call someone and say, "Would you mind talking to me about yourself?"

Most people are so flattered to talk about themselves. And you can [ask], "Was it a straight line? Did I have to take these courses then get this first job, then that job?" I think what is so wonderfully liberating, particularly in the United States, is we'll find many people didn't pursue a career path that was a direct ladder but instead have a patchwork quilt of relationships, opportunities, failures, and it can make you see that the world is yours. And you can talk to people who love what they do and suddenly say to yourself, "You know, I really enjoy being in a shipping department in a large international company because look at all the people you talk to and the complexities and linguistics you have to solve. Who knew that being in the US military was a way to prepare for a career in linguistics management?"

Question: What were Ted Kennedy’s contributions to immigration reform?

Lenni Benson: Ted Kennedy is the lion, and when I heard of his death, even when I knew he was ill, I felt it strongly because he has been the moral leader in immigration policy. I haven't learned every single thing he ever did in immigration law. There was one lottery program that he created that somehow the Irish got a very high percentage of the visas when it was supposed to be neutral. But he quickly remedied that. We do have something called the Diversity Visa Lottery which is for low-sending countries—nations who don't send a lot of immigrants, [where] people have some education and/or some work experience can enter in a lottery and come to America.

I've met dozens and dozens of people who came from Africa and the former Eastern Soviet block who would never have had an opportunity to come but for Ted Kennedy's lottery. But his real legacy, I think, in immigration is that he was willing, as are many leaders in this field, to see that immigration is neither Democrat nor Republican.

He built bridges across party lines. John McCain is an example where, I'm sure Senator McCain would easily say he respected Ted Kennedy and immigration. He understood this is neither free-market or exploiting labor, that there is complexity of discussion, and he trained regions of very talented lawyers and non-lawyers and his staff on the judiciary committee and the subcommittee on immigration policy. They are in the Obama Administration, they are in labor unions, they are in state government; those people are continuing.

He created a wave of educated, sophisticated people who know that to talk about immigration, we need to have a quiet thoughtful, in-depth conversation and not just a political sound-bite war.

Recorded on: August 31, 2009