This article was originally published in the April 2017 Princeton Echo.

Witherspoon Street at 6:30 a.m. is when day laborers wait for work. It’s part of a growing Spanish-speaking community in an English-speaking town.

By R. William Potter and Clara S. Haignere

By now we have all heard about the immigration “problem.”

There are 11 million undocumented immigrants in the United States, including some 550,000 in New Jersey, including more than you might guess in the heart of Princeton. A recent New York Times report showed that of those 11 million, 820,000 (7.5 percent) had committed some crime — but only 300,000 were felonies or 2.7 percent, compared to 6 percent for “native born” residents. Having fraudulent social security cards was the most common offense.

Despite these facts, the response to the “problem” is that “these aliens are here illegally. They’re breaking the law and deserve to be deported pronto.” As President Donald Trump has claimed, Mexico is sending us “rapists” and other “bad hombres.”
The deportation process itself adds to the “problem.” In New Jersey some 15,000 children have been placed in state-funded foster care since 2011 after their parents were deported, according to a recent study cited by Seton Hall Law School professors Farrin Anello and Lori Nessel, writing in the February edition of “New Jersey Lawyer.”
But this does not have to be as big a problem as some would make it. For starters, being here illegally is not a crime.

Even Governor Chris Christie, when he was campaigning for the 2016 Republican presidential nomination, told a church crowd that “illegal presence” (the technical term for being here without proper authorization) is a civil law violation, not a crime. That’s right, being in the United States without documentation is not even a minor misdemeanor like shoplifting, littering, or being drunk and disorderly in public.

How can something be illegal and not “criminal”?

Consider this: Most of us have been issued the occasional parking ticket or jaywalked or gotten a speeding ticket. We broke the law. But what happened to us? As dangerous as stepping into traffic or driving too fast can be, committing such offenses means a warning or a ticket and a fine — not imprisonment or worse. After signing the ticket and driving away, we go on about our daily routines hoping our car insurance doesn’t increase dramatically.

For civil law violations, we are never held in detention centers or jails until being brought before a judge who works for the attorney general’s office that is prosecuting you for sentencing. We aren’t banned from state highways for life — the rough parallel to deportation for “illegal presence,” a civil law violation.

These detainees (who are not criminals) are placed in a kind of double jeopardy. Since they did not violate a criminal code, no matter how harsh or cruel the penalty of deportation, they have no right to an attorney if they can’t afford one. It’s “only” a civil law offense — but a civil law offense does not usually result in indefinite detention in jails euphemistically called “detention centers,” awaiting expulsion.

This is the core issue: Since being here without documentation — overstaying a visa or being brought here as an infant — is not a crime, why should these civil law violators, many of them our neighbors, co-workers, or co-worshipers, be deported, instead of being told to pay a fine, the typical penalty in other civil law violations?

What harm is caused by these “illegals,” who mow our lawns or shovel our sidewalks or care for our children? What could justify such harsh penalties as imprisonment and forced removal from their communities, and the nation they call home, where they have lived peaceful, productive lives?

Except for the removal of “illegals” who commit violent crimes (which was the Obama administration priority), forced removal for the mere act of being here violates our most fundamental notions of justice, often summed up as “make the punishment fit the crime” — or in this case, the civil offense.

But if deportation were limited to those undocumented New Jerseyans causing serious harm, very few would be detained and deported.

Those who remain may not pose such a problem, after all. Numerous agencies and think tanks have studied the impacts of undocumented workers in this country. Most show a slight economic cost from first-generation immigrants but with clear economic benefits to some sectors, such as agriculture, and overall benefits exceeding costs from second- and third-generation immigrants.

The Pew Charitable Trusts has documented the vital importance of undocumented workers for agriculture, where they make up an estimated one-half of all farm workers. Overall, they represent 5.2 percent of the labor force, mostly in lower-wage positions, providing benefits in taxes paid in excess of the cost of government-funded services.

In New Jersey, according to a 2014 study by the Huffington Post, unregistered foreign-born individuals represent 8.6 percent of the labor force, paying all manner of taxes, even though they are ineligible for most social benefits such as Medicaid, Medicare, and social security.

So the next time a colleague or friend maligns the undocumented in our midst as criminals who deserve deportation, consider how you might reply:

They commit no crime by simply being here without “proper papers”— they are like jaywalkers who walked across the border; they support our labor force, especially in low-wage jobs; they are the backbone of our vast agricultural economy; and they commit far fewer crimes than native-born Americans.

What these people deserve is a welcome mat and a reasonable path to citizenship. Right now, the system makes them worse than criminals; we need a system that makes them good citizens.

Bill Potter is a partner in the Nassau Street-based law firm Potter and Dickson. Clara Haignere is professor emeritus of public health at Temple University. Potter and Haignere, a married couple, are both members of the Unitarian Universalist Congregation of Princeton; she is an active member of the congregation’s Immigration Rights Task Force.

The views expressed are the authors’ own and do not necessarily reflect the views of the firm or any client. This article appeared originally in slightly different form in the online journal NJ Spotlight.