Thursday, December 24, 2015

Insurance For Immigrants: Been There, Done That, Sort Of

The ever innovative and intelligent Steve Sailer has a post on the problem of problematic immigrants, e.g. those aliens who come to the United States legally and who become a drag on society through welfare use, crime, lassitude, or just general overall failure as individuals. [Immigration Insurance, Steve Sailer, Taki's Magazine, December 23, 2015]  An interesting idea, and if imposed, it would be a useful system, not only for reimbursing the tax payer for immigrant failures, but for developing statistical models for which immigrants are good for America and which aren't.  
Not that we really haven't solved that problem anyway.  We know which immigrant groups are on welfare and engage in crime, the two areas where the taxpayer and Americans suffer from immigration.  It's Dominicans, Mexicans, and other Latin Americans who lead on welfare use, with other groups trailing by large numbers.  We also know overall, immigrants use welfare more than native born Americans. While it is appreciated that more information is better than less, the real issue has been solved.  We know who the slackers, welfare cheats, and criminals are, but, of course, finding out which sub-group in the know group that provides welfare cheats and criminals would help improve the current immigration system.  But that is not really a solution unless there is enforcement that follows the useful information and that is unlikely as Sailer acknowledges without a means to enforce the findings, which is unlikely unless there is an incentive, such is changes in Federal tort statutes involving inaction by the Federal government.

Interestingly, similar systems have been tried before.  First, the civil forfeiture provisions of Title 8 United States Code Section 1325, Improper Entry By An Alien.  This statute prohibits entry without inspection and the use of fraud or false statements by an alien in attempting to or successfully entering the United States.  Besides criminal penalties, it also has a civil penalties section where there is a fine for the offense, unrelated to a criminal conviction.  This fine may be administratively imposed by the Federal government without a hearing, but it can be both appealed or imposed through a hearing before the Executive Office For Immigration Review (EOIR).  It reads:

(b) Improper time or place; civil penalties Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of - (1) at least $50 and not more than $250 for each such entry (or attempted entry); or (2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection. 

This is the oldest section of law that imposes a cost other than deportation or criminal penalties for illegal immigration, but, as will be seen, is as unused as all the other civil penalties for illegal immigration.  It is almost never used, despite the ease of imposing penalties and the ready availability of monies seized from illegal aliens first by the legacy Immigration and Naturalization Service (INS) and now by the Department of Homeland Security (DHS).

In 1996, Congress gave impacted employees standing to sue employers of illegal aliens using the Racketeer Influenced and Corrupt Organizations (RICO) statutes in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  There was an initial flurry of lawsuits, such as the Tyson Foods lawsuit, but to date, despite strong penalties and incentive for private enforcement, not much has developed in the area.

The next development, much akin to the Sailer proposal, was the requirement in the IIRIRA was requiring all new immigrants to obtain a sponsor who signs an Affidavit of Support for the alien, Form I-864, Affidavit of Support, promising to pay if the alien becomes a public charge, e.g. uses welfare.  However, again, through various machinations redefining deviancy down, most Federal and State welfare programs are not defined as welfare programs, including food stamps. Combined with the policy not to enforce the deportation of those who become public charges, e.g. violate section 212(a)(4), Public Charge, of the Immigration and Nationality Act, neither the affidavit of support or the public charge laws have been enforced since the election of Bill Clinton as official and unofficial policy.

So, there are similar laws to what Sailer proposes, but he notices that enforcement is a problem. The government won't enforce laws against against welfare use, illegal aliens, or against criminal aliens.

The secret is to make enforcement of immigration laws more like the enforcement of environmental laws, e.g. give private persons the authority to act to enforce immigration law remedies either directly in a court, such as the EOIR or through an act of mandamus forcing a government official to take action.  As in environmental laws, the private actor will be given a portion of the lawsuit and legal costs, including the costs of the private investigation and wide discovery including access to Federal and State records necessary to identify and prosecute illegal aliens.  This would be similar to the False Claims Act (FCA), a Civil War statute, that encouraged private actors to sue government contractors who defraud the government.  Here the qui tam prosecution by a private person is acting in the interests of the sovereign and receives much of the benefits, upwards of 35% of penalties.

The important aspects of a new law allowing for private prosecution, an immigration qui tam provision, would be a financial reward for the private actor, access to records, and mandatory deportation of the alien in event of success.  This is the private solution that Steve Sailer is looking for.

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