When I look at all the current controversies over "Dreamers," DACA, President Trump's wall and so forth, I actually see two different debates. The first is a fairly conventional left-right controversy over whether the US should be willing to spread its good fortune broadly to those who were not born here, or whether the country should take care of its own first. The second argument, which I find more interesting, seems to me more of a clash between temperaments or philosophical styles. It concerns the nature of crime and punishment. Those who have more of an essentialist, formal way of looking at things will say, "Undocumented immigrants broke the law and should not be rewarded for this by being allowed to stay in the country." The more practical-minded will note that, in many cases, these same lawbreakers have been here for a long time, made a life for themselves and added something to our national economy. It would be both cruel and pointless, this argument goes, to kick them out of the country.
The latter argument, it seems to me, can only exist because of the unique nature of illegal border-crossing. We do not have this debate over bank robbery. No one argues that the bank robber who has become a good citizen should not be punished for her crime. On the other hand, though, if this criminal can elude capture for five years, she is in the clear (from federal prosecution, at least). This is because the federal statute of limitations for bank robbery is five years.
But illegal immigration is different. First of all, there is no statute of limitations on illegal border crossing. Secondly, though, the undocumented immigrant commits another crime every day that he wakes up in the US. This one is called "unlawful presence." It it illegal to be in the United States without some sort of recognized legal status: that of citizen, tourist, student, etc. If this law did not exist, then there would be no way to deport those who had entered the country legally, but then stayed longer than they were allowed. (More undocumented immigrants in the US have overstayed their visas than crossed the border illegally.) So someone who might have snuck across the border twenty years ago is still committing a crime at this very second by merely being in the country.
These facts tend to upend the normal moral categories that usually bear some loose relationship to our laws. I understand why it is necessary to make unlawful presence illegal. But once we make it a crime just to be here, those with the more formal temperament are being perfectly reasonable when they ask, "Why should we let someone off the hook who committed a crime this very day?" Again, if we captured the bank robber the day after she robbed the bank, we would not refuse to send her to jail because she had a family or had given some of the stolen money to local charities.
This is a fair point. But the more pragmatically-minded person surely also captures a widely-shared moral intuition by pointing out that by deporting someone we would often be creating more harm than good in order to address a crime that realistically, if not legally, might have happened years or even decades in the past.
I am very far from being an expert in immigration law. But it seems to me that much of the basis for the philosophical disagreement would disappear if we were to institute a statute of limitations for illegal entry and illegal presence. This would mean that the date in which a person arrived in the US would be very important, and it seems both fair and practical to place the burden of proving that date on the immigrant himself. And the statute of limitations for unlawful presence would make little sense unless it began on the earliest date that this immigrant can establish himself as being in the United States.
This policy would mean that illegal immigrants and visa overstayers would live in the shadows for a period of time, playing cat and mouse with the authorities and hoping not to be caught. That kind of sucks for them, but they are breaking a fairly serious law. It sucks for bank robbers too. It would also seem reasonable to me that these same authorities could use any means at their disposal to catch and deport those people. They would be recent immigrants, unlikely to have established the social and economic ties that so vex the pragmatically-minded among us. So these recent illegal immigrants would not be able to avail themselves of social services and what-not without the risk of being caught and deported. This part would satisfy, I would think, those with the more formal cast of mind: these people broke the law and will be punished if they are caught.
But it also means that once an illegal immigrant had been in the US past the time of the statute of limitations, it would be incumbent upon the United States to supply such a person with a path to legal status. (On the day that the state of limitations expired, that person would have no legal status at all: not illegal, but not legal until given some new status. I recognize that this is a problem with the proposal, but I'm sure that could be worked out.) It would basically mean that if a person could go a certain number of years without being caught, then he/she could then live without fear in the United States. This arrangement, I would think, would satisfy those who recognize the futility of deporting longtime US residents. Thus I would think that it could satisfy both the formally- and the pragmatically-inclined tempers of mind.
It would also mean that we could have a permanent solution to this problem. Instead of debating every couple of decades what to do about the large number of undocumented people that have accumulated over the years, we would have a policy in place that would not need to be renegotiated.
As I said, I do not claim to know anything about immigration law. For all I know, there are other factors that make this plan unworkable. Or maybe it's an obvious solution that others have already championed. But it makes sense to me and I would be curious to see what others think about it.