Tuesday, August 10, 2010

Immigration bankruptcy and the "reboot" gap

Walt Disney's company Laugh-O-Gram
filed bankruptcy in 1923

In a bankruptcy-type immigration system, regulation of status is continually available

I've told you about my immigration bankruptcy idea before, haven't I?

In U.S. law, bankruptcy is just one of many examples of a principle of justice that Americans cherish, which is that the law should offer a reboot from time to time.

Bankruptcy is one example of that principle. You get bankruptcy law when you abolish debtors' prisons, and you abolish debtors' prisons because you are better off as a society if people can get a fresh start in the worst of circumstances. Admittedly, those circumstances were their fault because they failed to fulfill a legal obligation, but punishing them by sticking them in a hole that separates them from society doesn't do anyone any good. They can't repay their debt that way. Bankruptcy law provides the necessary fresh start, or "reboot."

Do we condition the fresh start of bankruptcy on payment in full of the original debt? No. We acknowledge that the responsibility to fulfill the original obligation will be forever broken. In place of the original obligation, we establish rules that determine what bankruptcy will cost you. If you qualify and follow the bankruptcy rules, you get out of limbo. So even while we still have a system that generally requires you to pay your debts, there is an exception built into the law, a second option of rules, consequences and penalties to replace the first.

This concept of getting right with the law without having fully complied with the original rule is ingrained all throughout the U.S. justice system. Prosecutors waive criminal charges if a plea agreement is made, probation of a long sentence is granted in exchange for good behavior, a warning is given to a young hot-rodder instead of a speeding ticket, or the statute of limitations just runs out. (Note that in the first two examples, you have to give something up in order to get the law to go easy on you, but in the last two examples, you give up nothing and still get off scot free. Bankruptcy is like the first two; it requires giving something up. See "updated to add," below.)

This reboot principle has to be brought over to immigration law. I tell Christians that justice for the foreigner means that when you write laws that apply to foreigners, you need to use the same principles of justice you use when you write the laws that apply to you. Immigration law is a law that is specifically and exclusively applicable to foreigners, so the gaping hole of justice in that law - the lack of a reboot - has to be patched.

Patching up immigration law can't be done with a one-time path to citizenship (the proposal currently on the table), or a one-time amnesty (Ronald Reagan's approach). The fresh start of getting right with the law has to be continually available in immigration law, just as it is in bankruptcy law.

Uniting immigration and bankruptcy is not a new idea; our founders linked the two concepts in Article I, Section 8 of the Constitution. In the same sentence that gives Congress the power to turn immigrants into citizens, only one other power is given to Congress, the power over the subject of bankruptcy:
The Congress shall have Power To...establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.
So that's my not-so-new idea: immigration bankruptcy.

Tell your friends.

Update 1: My cousin asked me,"What do they have to give up to be allowed to keep the big screen?" Because, you know, in a Chapter 7 bankruptcy, people have to sell off assets to pay creditors. (And over at Post Politics, kosh iii is also wondering how this would work.) So here's how I answered my cousin, which should also serve as an answer for kosh iii:

I'd be OK with these conditions:

For 5 most recent years in the U.S. prior to filing "bankruptcy":
  • proof of previous payment of any applicable income taxes, or submission of catch-up payments plus penalties and interest
  • some familiarity with English (same familiarity required of U.S. Citizens would be OK by me)
  • no crime
  • payment of fine equal to 1/2 federal poverty level
  • payment of additional fine of 2x any shortfall between wages earned and federal minimum wage
  • submission of biometric information
Succesfully exiting "bankruptcy" would grant legal permanent resident ("LPR" a/k/a "green card") status, which typically lasts 10 years and is renewable (Damariz was in this status from 1998-2010, for instance).  LPRs can apply for U.S. citizenship after 5 years as an LPR, but I'd be comfortable making these bankruptcy beneficiaries wait twice as long before eligibility.  Accordingly, the earliest a person would be able to apply for U.S. citizenship would be after 15 years - 5 years of best behavior while in the country illegally, then 10 years of best behavior while in the country legally.

If I were President, I'd sign this in a heartbeat, and any reasonable variation.

My cousin said I was being a hard-a$$.

Update 2: Who would be deported under this system? Easy: anyone who hasn't successfully filed immigration bankruptcy. That would include, for example, anyone who had been here without permission for as little as one day or as long as 4 years and 364 days (or longer if they don't file bankruptcy by then), people who commit real crimes, people who prefer to live outside the system and don't file for the protection of bankruptcy, people who can't scrape up the money in fines, people who lie about or hide the information requested in the immigration bankruptcy petition, etc.

Update 3: Timothy Lee talks about this same principle over at The Atlantic.


  1. Love the idea, but it needs a new name.

  2. Good point, Mack. I gave that a thought but couldn't come up with anything more straightforward. Bring on the suggestions.

  3. Great idea! The name is a little misleading because bankruptcy carries such a negative connotation - but I like it.

  4. No crime is pretty broad. No violent crime or even no felony crime makes sense, I suppose. What if it's a felony to secure phony documents, such as an I-9?

    Why is the burden of proof on the immigrant? Sure, the ones working at Electro-lux might be able to produce w-2's, but don't many immigrants work construction or other labor and unscrupulous employers deduct taxes and never report them?

    I'd prefer a window made available to get checked out, get granted renewable legal status if you have no violent crime.

  5. Mack: agree with your line of thought on crime, and I think we may agree on the burden of proof. The bankruptcy petition is a statement under oath, so as long as the person signing the petition has disclosed all available information to the best of their knowledge, that should be enough. If contrary or undisclosed information comes to light later, then there will have to be a determination as to how to handle that. The way the money bankruptcy system deals with that sort of thing should be sufficiently appropriate for immigration bankruptcy.

  6. I like this idea! Now we just need to get it to our legislators so they can vote on it!

  7. Immigration Full Disclosure Act?

    Immigrant I.D. Enforcement Act?

    Expedited Assimilation Plan?

    Hey, man, have you done your EAP?

  8. Mr. Mack and Mr. Lamb, in America, doesn't the burden of proof began with the person in question? If someone steals your identity isn't it you who has the burden of proof to prove you are who you say you are, or if you bring someone to court don't you have to prove that what you say they did to you, has actually been done to you or has actually happened. So in that sense, they too should also have to abide by the rules and laws you are also subject too. Correct??? I think so....isn't that what they are agreeing too when they want to be a legal citizen of this country. It's rules laws and regulations. Callie

  9. Callie, as for the burden of proof, I tried to point out in my August 13 comment that the money bankruptcy system gets information about a person's debts by requiring the person filing bankruptcy to sign a variety of statements under oath, along with detailed lists of debts, assets, etc. That meets their burden of proof - their statement is sufficient evidence. If contrary evidence later comes to light that indicates the statements are incomplete or false, the person pays a consequence, depending on the circumstances. That money-bankruptcy burden of proof would lend itself well to immigration bankruptcy.

  10. Mack and Leslie, I still think "immigration bankruptcy" is pretty straightforward. The negative connotation is not all that bad, in fact. Leslie, if you're concerned about conjuring up the negative consequences of filing bankruptcy, those negative consequences are essential to the idea and to communicating what it is.

  11. You could call it the "Superman Visa." It would go only to those "Superman" candidates who have done everything possible to live as an upright Americans.


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