Downtown Mishawaka, Ind. Photo by Derek Jensen (Tysto).
Last week, I crossed a national border.
I was visiting Brazil, as I have done many times in the past 20 years. My visa allowed me to visit for up to 90 days, renewable for another 90 days by the Federal Police. After that, Brazil’s government would expect me to leave the country. But if I want to come back next year, or any year for the duration of my 10-year visa, I will again be made welcome and will enjoy the country’s hospitality. I am a guest there, and I behave accordingly.
We have immigration laws for a reason. Unlike those who see the current administration’s stricter enforcement of those laws as the result of blind prejudice and xenophobia, I see the logic in this tougher approach. However, I don’t deny that this change has created some painful outcomes for American families.
Several particular deportations have become rallying points for those who oppose the administration’s approach, including those of participants in the Deferred Action for Childhood Arrivals program and parents of American children who had completed check-ins with immigration officials for years prior.
Roberto Beristain has become the most recent rallying point. He, too, has children who are U.S. citizens; he, too, has long complied with check-in requirements. And his story proved especially irresistible to the media due to his wife’s prior vocal support for President Trump.
In February, Beristain was detained during a routine check-in with U.S. Immigration and Customs Enforcement. He had reported for such check-ins since 2000, and had lived in the United States since 1997. Now, 20 years later, Beristain finds himself back in his native Mexico, with no clear sense of when – or if – he will be able to return to his wife and children in Mishawaka, Indiana.
While much of the immigration debate is framed in simple terms of compliance or noncompliance with the law, Beristain’s circumstances illustrate the potential complications facing someone who entered the country without permission but who later wanted to try to correct course without causing family members to suffer. As The Wall Street Journal observed, “the border was more porous” in 1997. Beristain had come to visit a relative and met his future wife, Helen. He stayed after his visa expired.
Seventeen years ago, the couple crossed into Canada after reportedly missing a freeway exit during a trip to Niagara Falls. His lawyers claim Beristain was classified incorrectly upon re-entry into the United States; after the border crossing, a judge ordered Beristain to voluntarily leave the country within 60 days. Because his wife was pregnant, Beristain did not comply, which turned the voluntary departure into a “final order of removal” – a designation that would both hinder his subsequent attempts to secure legal residency and eventually lead to his deportation this year.
By all accounts, Beristain was a pillar of his Indiana community. He owned a local restaurant, employing about 20 people and, as the mayor of nearby South Bend observed, did not have “so much as a traffic ticket against his name.” It is clear that his family is close-knit and that their separation is painful; though his wife and children visited Beristain in Mexico in April, both parents have said there is no question of the children permanently leaving their home in the United States, regardless of their father’s situation. These facts make Beristain a powerful symbol for those who oppose stricter enforcement of immigration law, but it does not change the fact he was living in the country without legal permission.
Beristain did reportedly try to secure legal residency after the incident in 2000. He and his wife, who is a naturalized U.S. citizen, paid 10 different lawyers approximately $40,000 cumulatively over the years in an effort to gain legal residency for Beristain. In 2012, ICE granted him a reprieve that allowed him to obtain a work permit and an Indiana driver’s license. An “order of supervision” typically allows immigrants with a removal order to stay for a humanitarian reason, such as caring for family members. Beristain was issued a Social Security number that was valid with Department of Homeland Security authorization and was allowed to stay contingent on annual check-ins with authorities.
Beristain’s largely pro bono legal team have objected at several stages of the removal proceeding. Between being detained in February and deported in April, Beristain was transferred between detention centers in various states, which his attorneys say made it more difficult to file legal motions in one jurisdiction. The legal team also claims ICE rushed the procedure to remove Beristain in order to circumvent a pair of pending rulings on his case. A motion to rescind Beristain’s removal is still pending, though a decision could take months and would be open to subsequent appeal, according to Chuck Roth, director of litigation at the National Immigrant Justice Center.
The plain truth, however, is that Beristain lacked permission to live and work in the United States at the time of his deportation. As an ICE spokeswoman told The Wall Street Journal, “All of those in violation of the immigration laws may be subject to immigration arrest, detention and, if found removable by final order, removal from the United States.” Beristain entered the country illegally, started a family and chose to invest in a business when he knew – or should have known – that he might not be able to stay to operate it.
Still, having made the point that such an individual should be removed, do we really want to bar him from the country for 10 years? To make his American children, the youngest of whom is 8, grow up without their father? To split up a married couple physically, if not legally, and jeopardize the business that employs American workers who have nothing to do with any immigration violation? Does that punishment serve any real purpose? I don’t think so.
Ignoring existing immigration law is not a victimless crime. As a nation and a society, we have a right to set the terms of who may come here and under what circumstances, just like Brazil, and Canada, and every other nation. We also have a right to expect non-Americans to respect our terms. But our current system is imperfect, sometimes illogical, self-defeating and arbitrary. We ought to set our terms with a sense of compassion and practicality going forward.
How about a mandatory one-year banishment, rather than 10, and a policy of reunifying families that include American citizens, especially immediate families and those including minor children? Without these changes, we aren’t just punishing the violator; we are punishing his children in a way that makes them choose (if that is the right word for youngsters who have no real say in what the adults in their lives decide) between growing up without their parent or outside their home country.
I get it. Before we can have a reasonable discussion over the terms of legal migration, a large number of Americans want something done to address illegal migration, which has historically treated border laws as enforceable only if you are unlucky enough to be caught in the act of breaking them. Fair enough. But once we make the point that everyone who comes here ought to do so through the proper channels, we can and should make those channels more efficient, for the benefit of the country and out of compassion for all of its citizens, including those whose parents get caught on the wrong side of the law.