Asylum is the status given to refugees, people seeking protection from persecution by their native country because of race, religion, ethnicity or “membership in a social group.”  According to media reports, Anzor Tsarnev, the father of the bombers, entered the U.S. on a 90-day tourist visa in 2002, and then, when it had expired, sought asylum.  Thus, his visa was obtained by fraud.  He used the pretext of tourism to gain entry to the U.S. so he could make his asylum claim at a later time.  Had the U.S. embassy in Russia known his true intentions, it would have been precluded from issuing him a tourist visa.

For some as of yet unknown reason, Mr. Tsarnaev, a Muslim, was granted asylum in 2002.  Recall that was just months after 9/11, and we had severely curtailed all immigration by Muslims.  (This episode demonstrates that it still unsafe to admit any young Muslim men to the U.S. because we simply cannot and will not monitor their lives to screen out radical jihadists.)  Moreover, he was not really a refugee.  Muslims were not “persecuted” in Russia.  Tsarnaev was born in Kyrgyzstan, then part of the Soviet Union, and now an independent country with a Muslim majority.  So he could have returned there, and did so after he married.  And he apparently also had a Russian passport which would have enabled him to live in that country’s Muslim regions of Chechnya (where his family was originally from) or Dagestan, where his wife was from.

Somehow, Mr. Tsarnaev also managed to obtain asylum for his wife and two sons (their two other children did not enter the country, suggesting they lived safely back in Russia and undermining the entire claim for asylum).  Over the years, they had brushes with police in Massachusetts and, as we are learning, obtained generous welfare benefits from that state and the federal government (food stamps), despite the U.S. law prohibiting public assistance to immigrants.  (The law was enacted in 1996 to prevent precisely what occurred here, making our welfare state a magnet for refugees and other immigrants.)   Mrs. Tsarnaev was arrested for shoplifting dresses from Lord & Taylor.  Her legal defense was likely financed by the taxpayers.  She absconded, returning to Dagestan, before trial.  Son Tamerlan was arrested for assault and battery on his girlfriend in 2009.

His younger brother, Dzhokhar, actually obtained U.S. citizenship, but Tamerlan’s application was denied.  Yet he was apparently given lawful residency (perhaps even a green card), despite this entire history of fraud, criminality and, as we know, incubating jihadism, which federal authorities should easily have detected by the simple fact that Tamerlan’s American-born wife converted to Islam, became estranged from her family, and began to dress in traditional Muslim garb.

In 2011, the Russian government, detecting links between Tamerlan to jihadist groups, took the unusual step of warning the U.S. government about the aspiring citizen.  Both the F.B.I. and C.I.A. investigated him and found nothing awry.  Yesterday, the President said he stood by the job the agencies had done.   Even the brief narrative I have laid out here should have given the F.B.I. cause to suspect Tamerlan of harboring jihadist sympathies.  And as a non-citizen, he could have been removed without a criminal conviction or even proof he may have convicted a crime.  It’s not a crime to associate with extreme Muslim groups, but it certainly ought to result in the end of one’s asylum status or temporary residency.  Technically, the law allows summary removal of asylees if a condition for their asylum is no longer present or they are a national security threat.  Both were evident in Tamerlan’s case in 2011.

Anyone who believes, as the President does, that the immigration system served the nation well with regard to the Tsarnaev family has some explaining to do.  How did the U.S. benefit from letting these people into the country?   I think the entire immigration system failed us and our adherence to hospitality for supposed refugees and their civil liberties is verging on the suicidal.  If “immigration reform” is needed, it should be constructed around preventing this case from recurring.

Ordinarily, absent the staggering sum of money involved here and the attendant publicity, this case would have been dismissed.  First and foremost, Chevron’s only injury to date is the payment of attorney’s fees in having to bring an action to stay enforcement of the Ecuadoran court’s $15 billion judgment.  It successfully did so, meaning it has not paid a dime of it and will not be required to do so until an international tribunal gets to decide if it was procured by fraud.  So has it really been damaged by a RICO predicate offense, as is required?   The courts are divided as to whether the payment of attorney’s fees in order to defend frivolous litigation is “damage” for purposes of 18 U.S.C. § 1964(c), RICO’s civil damages provision.  The Seventh Circuit has held such damage is “speculative, but Judge Kaplan ruled in favor of Chevron on this question without much evident difficulty.”

Secondly, a RICO plaintiff must allege a pattern of racketeering activity in order to state a claim (even though the plaintiff need only be injured by one violation, not the whole pattern).  The pattern in this case is attempted (not actual) extortion from Chevron.  If the Ecuadoran proceedings were such a sham that it amounted to a nonjudicial scheme to extort money from the company, then perhaps the lawsuit would amount to extortion dressed up as the judicial process.  But generally, the courts have held that frivolous lawsuits are not a form of extortion for purposes of RICO.  And the other predicate acts are nothing more than bad-faith litigation tactics which, unfortunately, go in many cases, i.e., manufacturing false evidence and “holding out the [expert] report as independent and neutral when it was not.”  If that is the basis for a RICO suit, then the federal courts may be hearing a lot of disgruntled litigants filing RICO cases to effectively appeal their losses.

Yet, Judge Kaplan saw no particular problem with allowing these tactics to be pleaded as “mail fraud” and used as RICO predicate acts in this case.  Third, RICO cannot be predicated upon “extraterritorial” (foreign) conduct.  Yet, here, too, Judge Kaplan sided with Chevron despite a decision from the Second Circuit which would have allowed him to dismiss the case.

I’m not saying Judge Kaplan’s rulings are wrong.  I am saying he is using every bit of his considerable discretion in Chevron’s favor to allow its RICO case to proceed.  He has also ruled against Donziger on discovery orders, requiring him to turn over some of his correspondence with a law firm that is ordinarily privileged, invoking the “crime-fraud” exception to the attorney-client privilege.  Federal judges are rarely so generous to RICO plaintiffs.  Judge Kaplan plainly believes RICO is appropriately used in this case, despite the fact that Chevron has other legal remedies (it also pleaded common law remedies of fraud, tortious interference with its business and civil conspiracy).  This underscores that discretionary nature of RICO, and other vaguely worded statutes.

All of this goes to show that federal judges can sustain many RICO cases if they believe the plaintiff has been grievously wronged.  Precedents can be distinguished to death, legal rules can be stretched, and consequently, the federal courts will be the forum to hear what otherwise would be big, but fairly typical, state-court litigation.  A RICO lawyer pleading a case should use every opportunity to present his client’s case to make the injustice clear and irresistible.

In order to carry out years of illegal doping, Armstrong would have had to enlist the aid of other people.  He employed a “doping doctor” to accompany him on tournaments and finesse the administering of the narcotics as efforts to detect them varied from place to place.  Armstrong also employed assistants who handled the logistics of his of the doping with the doctor wherever he was racing (not just in France).  This type of organization requires lots of communication among the participants.  Those would have been made by e-mail and phone calls across state lines and in foreign commerce.  Such uses of the wires were, in RICO-speak, made to execute a “scheme to defraud” the UCI and  Armstrong’s competitors.

So he has likely, given his confession, committed a pattern of RICO violations.  Moreover, he did so while participating in cycling teams and other business entities he has created, so there are several RICO “enterprises” involved.  Taken together, there are two of the elements of a RICO violation, a pattern of racketeering and the use of an enterprise.

Yet, the U.S. Attorney who investigated him has decided not to prosecute Armstrong.  Absent an explanation, we can only speculate why no RICO indictment (or for any crime) was brought.  So the issue becomes what about those who have been harmed by his illegal conduct?  For starters, can his his fellow cyclists who unsuccessfully competed against him in the Tour de France and other races sue him on the theory that they would have won had he not cheated?  This might be possible because courts have allowed RICO cases where the plaintiff complains of losing a valuable chance to win something, such as bidding for a contract, because the defendant competes illegally.  A statistician could estimate the likelihood of a losing cyclist having won a tournament if Armstrong was not competing, i.e., creating a new legal race, at least on a computer.  The answer will not, of course, perfectly recreate the race and is dependent on some conjecture, but damages don’t have to be exact, and a case could proceed all the way to the jury on such a theory of damages.  (I am assuming the plaintiff cyclist would have been clean, perhaps not a realistic assumption given what we know about the sport).

We also know that Armstrong has a history of intimidating those who squeal on him.  This occurred during his races and in the last two years as USADA took sworn statements from fellow cyclists about his doping.  This is witness tampering, another RICO offense.  However, the damages such acts cause are likely to be emotional trauma rather than loss of money, which RICO requires.  (Cyclist Tyler Hamilton offered a fist hand account of Armstrong’s threat on his life after he testified to USADA on 60 Minutes.)  Yet, some witnesses may have lost business opportunities because they were intimidated by Armstrong’s tactics.  Any such people may have RICO claims and can easily establish a pattern of related acts.

I have no way of knowing about others who have been victimized by Armstrong over the years.  He has a reputation for employing posses of tough lawyers to threaten anyone who gets in his way in and out of cycling.  For example, his Livestrong Foundation, which does good works in helping fight cancer, is a trademark bully.  Its lawyers file objections to anyone in the country trying to register any trademark using the word “live” or  ”strong.”  The Foundation fought a woman’s request to register a trademark for her small business, “Live the Beauty,” which had nothing to do with fighting cancer.  There was no risk that people interested in Livestrong Foundation would not find its website because they were confused by a company selling sports equipment called “Live the Beauty.”  Unable to afford a lawyer to fight the Foundation in the Patent and Trademark Office, she just gave up.  This may well have been a totally frivolous objection to her trade name.  If so, it could have been yet another use of the federal mail and wires to defraud someone who allegedly stood in Armstrong’s way.

All in all, it’s a sordid picture of illegal behavior over many years.  All of the elements of a RICO violation seem to be here.  I hope justice is done.

Does the U.S. need immigrants?  If so, how many?  And what type of people should they be: skilled, unskilled, young, unmarried, educated?   Two justifications for immigration have been offered.  The first is to provide more skilled workers for the technology industry, which claims we have a “shortage” of mathematicians and computer programmers.  The word shortage is a misnomer.  The number of people graduating with such degrees is determined by labor economics.  If employers are demanding more programmers than are entering the labor market, then the price for their services will rise.  If programmers earn relatively high salaries, higher than other professions, then more students will switch over to tech careers and equalization will occur.  All employers would like to pay lower salaries for skilled employees; all employees would like to receive higher pay.  In a competitive labor market, the price is set by the forces of supply and demand.  Requesting foreign workers because of a “shortage” is like saying low-skilled workers want a higher minimum wage.  Every few years congress gives it to them, but everyone knows it’s just another form of redistribution of wealth.

It seems absurd for any employer to be complaining of difficulty in obtaining enough workers at a time of high unemployment. We have high unemployment because the supply of workers is growing faster than the demand for them.  Immigration, that is expanding the supply of skilled workers, will have the effect of lowering the price employers must pay for their labor.  It will also make it harder for Americans to get these technology jobs by introducing competing job applicants who are willing to take them at lower pay.  (After all, if the foreign workers were not willing to take jobs at lower pay, then they would already be filled by Americans at the current market price.)  In some cases the problem may be mobility costs rather than pay.  That is, an employer may not be able to find sufficient programmers where it is located who can fill its jobs.  The employer  may find that qualified applicants are ensconced in other firms and don’t want to give up seniority or move to a different city.  This will add to the cost of labor, but the government could respond to these mobility costs through tax breaks.  Importing foreign workers is not the only way to deal with it.

U.S. immigration law has not been enacted to lower the cost employment.  Since the 1920′s, employers have been required to pay the market price and hire American workers willing to take jobs before bringing in foreigners.  So making immigration law employer-friendly would be a reform of immigration.  But if we move in that direction, we need to strike the right balance.    Should employers be allowed to bring in immigrants when unemployment is high?  The higher it is, meaning that more and more citizens cannot find employment, the less moral is the case for immigration.  Politicians who claim to be acting in the national interest in promoting reforms that make it harder for Americans to find work need to explain why they are taking the side of employers at the expense of workers.  The corollary is also true.  A refusal to allow immigration when unemployment is low would skew the economics toward workers at the expense of employers.

Sen. John McCain expressed the usually unspoken motive of many Republicans in Congress this week.  He wants “reform” to remedy the poor performance of his party among Hispanic voters.  This is a purely political justification for immigration.  In his candor, McCain makes it fairly clear that the country does not need more immigration.  Republicans need to appease illegal immigrants to do better among Hispanic voters.  Logically, this would only follow if Hispanic voters favor high levels of immigration.  After all, Hispanic voters are already citizens and job seekers.  They are labor market participants, too.  McCain cited no evidence for his view that Hispanic votes will be swayed by legalizing illegal immigrants.  He is entitled to his opinion based on considerable anecdotal experience as a Senator representing Arizona.  But we passed a major immigration reform law in 1986, which gave amnesty to 3 million illegal immigrants, and party preference of most Hispanics did not change.  I think McCain gives Hispanics too little credit.  For decades they have voted heavily Democratic.  It seems they do so for other reasons, and this was particularly so when he ran for president and won only 25% of their votes.

So, neither labor economics nor politics are persuasive reasons for immigration.  There are no other justifications for immigration expressed in this debate, and it seems when the topic comes up, we never get off the ground.

A new decision from the federal district court in Washington, D.C. agrees with this view and refused to shield a law firm and its partners from their nefarious scheme.  And this despite the fact that the lawyers operate as a self-proclaimed “public interest” law firm (meaning zealots for left-wing causes financed by the taxpayers).  The facts are worth reciting because, if true (and right now we don’t know if they are), they expose these lawyers as criminals who have no business practicing law.

The law firm is Meyer, Glitzenstein & Crystal of Washington, D.C., which boasts of a niche practice consisting of suits for violation of the Endangered Species Act and other federal laws which protect animals.   (Private organizations are allowed to bring “citizen suits” to enjoin violations against the Department of the Interior and other federal agencies who fail to carry out their statutory obligations, in the eyes of these lawyers, to protect animals.  This seems to be the stock-in-trade of the firm–it has filed scores of such suits.)   Several years ago, the law firm represented the American Society for the Prevention of Cruelty to Animals (ASPCA) and other animal rights non-profits which contended Feld Entertainment Inc., the entity that owns and operates the Ringling Bros. and Barnum & Bailey Circus, was abusing its elephants.  The allegations of abuse were made by a circus employee, Tom Rider, who never complained to his bosses or told law enforcement what he supposedly witnessed.  Rather, he went right to ASPCA, and as it was later revealed in pre-trial discovery, was paid by $190,000 by that organization and the law firm for his part in the action.  The law firm had structured the payments to Rider in such a way as to seem like reimbursement for his “costs,” but, according to the court, he was nothing more than a pawn of the ASPCA and the lawyers.  Consequently, the Court did not believe his testimony that he suffered emotional distress by witnessing the supposed mistreatment of the elephants.  (Lawyers are prohibited by ethical rules from paying fact witnesses for their testimony.  All we are allowed to provide is reimbursement for travel expenses to and from the courthouse or the deposition.  $190,000 would seem to exceed anyone’s conception of reimbursement.)

The Court found that neither ASPCA nor Rider suffered any damages and awarded judgment to Feld on that ground without reaching the merits of the abuse allegations.  After winning the case, a typical defendant would simply have sought attorneys’ fees under the Endangered Species Act, which allows any “party,” even one which has been sued, to seek reimbursement from the loser.   But the award is discretionary (in RICO it is mandatory when a plaintiff wins), and the judge apparently denied the request.  Feld was sufficiently aggrieved by what transpired during the litigation to take the extraordinary step of suing ASPCA, the law firm, and its three principals under RICO in an effort to recover its attorneys’ fees in defending the suit (probably millions).  The RICO case is being heard by the same federal judge who decided the initial suit in Feld’s favor, which is crucial because he knows first hand what malfeasance was committed.

Feld’s RICO suit accuses the lawyers of bribing Rider for his testimony (bribery being a form of racketeering activity), obstructing justice (bribing a witness in a federal court proceeding), and mail fraud.  The fraud was soliciting ASPCA’s donors to support the suit against Feld by concealing that the money was really going to pay Rider for false testimony.  This type of fraud, directed against a third party, has been allowed by the Supreme Court in RICO cases.  Yet, to prove it, Feld will have to find some ASPCA donors who will testify they gave money to the organization because of appeals to support the lawsuit, as opposed to support for its general goals of protecting animals.

The Court also allowed Feld to assert RICO claims against the three partners of the law firm based upon partnership law.  Generally, individual partners are jointly and severally liable for claims against the partnership, but courts have been wary about extending RICO liability vicariously, that is without fault, to a party which did not commit racketeering activity.  In a typical tort case, the employer would be liable for the tort of an employee committed within the scope of the employment.  This would not usually occur in a RICO suit against the employee, but it was allowed in this case, putting each of the three partners on the hook for any liability against the firm.

But the most significant part of the opinion denying the motions to dismiss the RICO case was in holding that the lawyers were participating in the affairs of an association enterprise in committing their illegal activities and not merely providing services to their clients.  Their misconduct went way beyond the traditional acts of representing a client even one whose business was illegal.  These lawyers are accused of instigating the entire suit against Feld and suborning perjury from Rider.

This case is well-worth following.  (Feld Entertainment Inc. v. American Society for the Prevention of Cruelty to Animals, 873 F. Supp. 2d 288 (D.D.C. 2012).)  Feld must prove these quite serious allegations, but the judge seems to think they are provable in allowing the case to proceed.  And its about time that lawyers who violate RICO be treated like racketeers.

P.S. Hours after I posted this it was announced that ASPCA had agreed to pay Feld more than $8 million to settle all claims against the organization.  However, according to Feld’s news release, the litigation will continue against the other non-profits, the lawyers and the law firm.

The answers are now beginning to emerge.  Last week the House passed the “STEM” bill which would end the visa lottery (an absurd system by which the U.S. randomly gives green cards to 55,000 immigrants per year) and instead allocates them to immigrants who have earned graduate degrees in science, technology, engineering and math (i.e, “STEM”).  During the House debate some Democrats denounced the bill as racist because the visa lottery rewards many unskilled immigrants from the third world (i.e., non-whites) with green cards (residency for life) and thereby achieves their goal of diversifying the country.  Republicans favor highly skilled immigration to benefit the economy; Democrats favor unskilled immigration even though it will likely increase unemployment and entitlement spending.  The goals of the two parties are self-evident.  The Republican constituency is highly educated; the Democratic constituency consists of people with little incomes, skills and people who want to change the demographics of the nation so we would become less like our roots and more like the third world.

In the Senate Jon Kyl and Kay Bailey Hutchison, both retiring, have sponsored a bill to give legal status to many young illegal immigrants who were brought here as minors by their parents.  Both Senators had voted against the “DREAM Act” in 2010.  The President wants to give the “Dreamers” US citizenship.  Kyl-Hutchison would only give them lawful permanent residency meaning they would not become citizens and could not vote.   I am pleased to see the two Senators have not completely lost their senses.  They instinctively know that Hispanics, particularly those in the country illegally, are not natural Republicans.  If they are allowed to vote, they will overwhelmingly vote Democratic.  It would be political suicide for Republicans to grant citizenship to these people.  Victor Davis Hanson has captured the political outlook of this demographic with his usual superbly articulate commentary.  http://www.nationalreview.com/articles/334077/winning-latino-vote-victor-davis-hanson.  And Heather Mac Donald has noted the grim numbers: a majority of Hispanic children are born out of wedlock, have low skill levels and use entitlement programs at twice the rate of whites.   http://www.nationalreview.com/corner/332916/why-hispanics-dont-vote-republicans-heather-mac-donald.  In short, this is a very Democratic constituency, and a vote to grant those non-citizens citizenship would not be rewarded.  It is very much in the political interests of non-citizen Hispanics to continue to vote Democratic as the entitlement wars accelerate.

I have no idea how Republicans could possibly win over the votes of a hostile constituency, but Rule Number One is don’t enlarge it.  This is the Republicans’ unarticulated message.  Of course, this is not to say the Republicans have nothing to offer highly skilled immigrants, some of whom are Hispanics.  Allowing a certain number of gifted people to remain in the country after obtaining post-graduate degrees would make economic sense if unemployment were low.  If unemployment is high, as it is now, then more job seekers compete with Americans for dwindling employment opportunities, and drive down salaries.  This benefits employers but disadvantages American workers.  I have always argued that immigration needs to be tied to the unemployment rate.  Perhaps the Republicans could improve their electoral prospects by realizing this.

In January, the President will offer a big immigration reform bill that will achieve his party’s objectives: immediate or short-term citizenship for all illegal immigrants.  If that became law, it would mean 11-15 million new voters would be created before the next election.  Demographics tell us 70-80% would be Democrats.  This would doom the Republican party to minority status at all levels of government.  For this simple reason it will not pass the Republican House.  There piecemeal bills tinkering with the immigration system, like STEM and legalized status for some Dreamers will be enacted.  There is a huge difference between the parties on immigration.  The recent election changed nothing.

The President also cleverly offered defacto amnesty, the so called “Dream Act,”  two months before the election even though he has no legislative authority to do so.  This appeased the disgruntled Hispanic population supposedly angry at the failure to enact “immigration reform.”  We are never told what immigration reform really consists of, other than some sort of permanent legal status for illegal immigrants.  I’ve noted in this blog many times that our immigration system is incredibly complex, and it is difficult to enter the country legally.  And that’s intentional.  Since 1921, the U.S. has restricted immigration and generally admits only relatives of U.S. citizens and others who are skilled and can find gainful employment.  If, by immigration reform, the critics of the status quo want more legal immigration, then they will have to explain why that makes economic sense when we have persistently high unemployment.  They have never done so.

We hear a constant theme from election analysts about the failure of the Republicans to do well with Hispanics.  This is always attributed to talk of enforcement of our laws against illegal immigrants.  I don’t accept that.  If Romney had not said a single word about immigration enforcement during the campaign, would he have won the Hispanic vote?  He would not have.  Immigration is not the top issue for Hispanics, a big and diverse demographic group, and often intermarried with non-Hispanics.  Hispanics, according to every voter survey, are reliable Democratic voters for other reasons.  Republicans have tried various forms of “outreach,” Spanish-speaking surrogates, George W. Bush’s open embrace of “immigration reform,” and the result is the same.  Republicans cannot carry the Hispanic vote.

The President has promised to make “immigration reform” a top priority in his second term.  Let’s see what reforms he wants.  If he wants to give permanent legal status to the 10-15 million illegal immigrants in the country, then he should be asked how they will find jobs.  Will this aggravate the unemployment rate, and how much will it cost us in more entitlement spending?  Illegal immigrants are overwhelmingly poor, uneducated and unskilled–exactly the sort of people we do not need in our labor markets right now.  (We did need them in the 1880-1920 period of exploding industrialization.)  This may sound compassionate to some; to others at the low end of the economic scale, it is brutal.  High school educated Americans, largely black, will suffer from more competition for a dwindling number of low-paid jobs.  Wages will go down.  People will not be able to support families on one paycheck.  There will be a race to the bottom.

Republicans need to oppose this type of “immigration reform.”  The most pro-Romney sector of the electorate was downscale white voters.  This new lower class instinctively knows that their incomes are falling and immigration hurts them.  Opposing amnesty for illegal immigrants may also endear Republicans to blacks, a demographic group that has been completely turned off by the party’s message for 60 years.  In 1986 the NAACP strongly supported the Immigration Reform and Control Act, the first law to ban the employment of illegal immigrants.  Its leaders testified before Congress that competition for low-skilled jobs with illegal immigrants was a huge problem for their members.

What do Republicans have to say to Hispanics?  At every Republican convention speakers say the party treats all Americans as individuals and not as members of a social group.  Then after the conventions, the party apparatus goes right out and appeals to Hispanics as Hispanics instead of as Americans.  Imagine an election where Republicans spoke to everyone without dividing the nation into rich, poor, the 47%, the top 1%, ethnically, etc.  It would be a colorblind, class-free appeal to what is in the national interest.  It would have a dissonant ring to it in this age of pollster-tested messages for this and that slice of the electorate.  But it needs to be tried.  It is the best counter punch to the class and race-baiting we have just endured.

One can easily see that in coming to the conclusion that the SIPC is indirectly injured requires a detailed analysis of the chain of causation beginning with the stock fraud, the RICO violation.  The analysis would be unconvincing if the Court had merely held that SIPC could not sue because its injuries were indirect.  Indirect to whom?  The reader needs to know who was the directly injured party and why does that prevents SIPC from also having the right to sue.  The Supreme Court held, correctly in my view, that “a plaintiff who complain[s] of harm flowing merely from the misfortunes visited upon a third person by the defendants acts [is] generally said to stand at too remote a distance to recover.” This rule had centuries of tort jurisprudence to recommend it and since RICO is a statutory tort, it makes sense to apply it in RICO cases.   The big problem the Court identified with recovery by indirect victims is that it would either bankrupt the defendant, making recovery by the directly injured victim impossible, or require juries to grapple with how to divide up a limited amount of money.  The Court was satisfied with the prospect of one party suing for a RICO violation, the party that was closest to the injury.

The Fourth Circuit has abandoned this reasoning.  It held the legal workers were not directly injured by the illegal hiring, disagreeing with three other circuits which have upheld these claims, following the Holmes reasoning.  Those courts could not find a party that was more directly injured by the illegal immigrant hiring.  They specifically rejected the defense arguments that the U.S. government was such a victim, noting that the government was not saddled with a monetary harm.  They also noted that acceptance of this argument would effectively kill civil RICO because most  RICO violations involve violating some federal statute.  In passing civil RICO, Congress wanted to give these victims a chance to sue.

If the Fourth Circuit wanted to reject these decsions, one would expect it to have done so openly, by citing and disagreeing with them.  It did not cite any of them.  It simply held that the workers were not directly injured and stated, almost in passing, that hiring illegal immigrants “are crimes against the United States.”   This is a discredited argument in civil RICO.  Moreover, the Fourth Circuit did not identify any money damages caused the U.S. government by Perdue’s employment of illegal immigrants.  And if the U.S. was not damaged in the monetary sense, then how could it be damaged at all under the Holmes reasoning?

What are we to make of this decision?  Surely the Fourth Circuit is not unaware of these other cases which have upheld these types of RICO claims for wage depression.  (They are published in the law books.)  A well-reasoned opinion of a federal appellate court should grapple with similar decisions from its sister circuits from which it parts company.  Thus, legal rules can progress over time and the Supreme Court can determine if a circuit split exists which it needs to decide so we can move on and stop fighting about it.   Our legal system is governed by a principle called stare decisis (Latin for “to stand by things decided”).  Is the Fourth Circuit suggesting those other decisions in factually similar cases do not apply to this case?  And if not, why not?  Its decision not to cite or discuss them muddies the waters.  Is it trying to evade Supreme Court scrutiny?

The Fourth Circuit will not have its way.  We are seeking a writ of certiorari (permission to appeal the decision to the Supreme Court).  The chances of any civil case being accepted by the Court are not particularly good.  But illegal immigration is a hot issue as evidenced in last term’s decision in Arizona v. United States.  Plus, the Court has heard four RICO causation cases.  Perhaps it’s time for another one.  Arguably, the consequences here are cataclysmic for civil RICO.  I don’t believe the Supreme Court would tolerate a rule saying RICO violators are immune from civil suit.   It has generally interpreted RICO liberally to enable more cases to proceed, which is what Congress stated was its intent.

I will blog about this case when the certiorari briefs are submitted.

Julian Castro, the mayor of San Antonio, told the same story as the Democratic Convention “keynoter.”  Though as I note below, his mother is quite different from Rubio’s parents in outlook.  I am thoroughly disgusted with these political speeches.  (Disclosure I am the product of the great wave of 1880-1920 immigration.)  What do these stories  prove?   That Americans should welcome more immigrants regardless of  the high unemployment rate?  We can stipulate that the U.S. has admitted tens of millions of immigrants, the bulk of them between 1880-1920 when the nation was transformed from an agrarian/merchant society to an industrial powerhouse.  We did not have sufficient workers to staff the enormous plants that were built, to construct vast canals, railroads, and cities.  So the country invited in workers, and they came.  This does not mean those workers are morally superior to the earlier Americans who came primarily for religious liberty, such as the Puritans and the Pilgrims or simply to colonize the New World for their countries.  Yet in discussing immigration, we inevitably end up with the former group that came over for  unskilled labor.

But we need to keep in mind after the huge wave of immigration the country changed course.  In 1921 immigration was cut by 90% and national quotas were imposed so that future immigrants would primarily come from western Europe.  There was tremendous concern that we had overdone it with immigration and that we needed to preserve the basic socio-ethnic make up of the country.  Thus, we passed from an era of welcoming immigration for employment to an era of selective immigration primarily for family reunification.  Since then each new immigrant has to be evaluated on a case-by-case basis taking into account their family ties and ability to find gainful employment higher up the socio-economic ladder.  The government has long ago acknowledged that our economy no longer needs unskilled workers, and allowing more of them into the country harms American citizens with high school educations.

We all know that the great wave of 1880-1920 immigration produced millions of success stories.  Those immigrants immediately found employment, were loyal to the U.S., and had families who were better off.  This is a chapter in American history which is closed.  One could hold up Cotton Mather and John Winthrop as examples of the first wave of American settlers whose success here followed their expulsion of non-believers from the Massachusetts Bay Colony. Arguably they had more influence in shaping the nation by defeating competing European powers with different designs for how society should be run (the French, Dutch  and Spanish) and enabling the colonies to unite as an English- speaking nation governed by the English common law.  Why do we honor them only on July 4th?

For some reason though, American political discourse is mired in the 1880-1920 period.   It’s as if we’re looking at old news reels from that period or watching films like the The Jazz Singer with Al Jolsen.  Immigration today is not only unnecessary but is counterproductive.  How can policy makers justify a million legal immigrants a year when 8% of American citizens cannot find employment?  In Marco Rubio’s case, his parents were only allowed into the country because they were fleeing Cuba, and in the Cold War, we welcomed them.  Rubio’s father, a bartender, added nothing to the U.S. labor market.  We did not have a shortage of bartenders in the 1950′s.  We can take pride in the fact that his son became a U.S. Senator and has made a modest contribution to the nation.  But that is not a justification for going back to the 1880′s and allowing a tidal wave of unskilled immigrants into the depressed labor market today.  So why bring it up?  We already know about this generation.   Senator Rubio should not become a political leader becausue his father was a bartender or that he is Hispanic.  His speech said little else, and the implication of it is that we we need more immigrants.  One can categorize it as reactionary and nostalgic.

More recent immigrants often seem to live as dual citizens, not really renouncing their loyalties to their native nations, despite oaths to the contrary.  I have met hundreds of legal and illegal immigrants from Mexico and Guatemala in the course of my work suing employers who hire them.  A majority of these people return to their home countries regularly, and often maintain businesses in their native communities.  They send back remittances, money which is not spent in the U.S. and does not increase demand for Amercian goods and services, a justification for greater immigration.  Their attitudes toward this country are ambivalent.  Do they really regard themselves as Americans?  Or are they multi-cultural and biligual?  Mayor Castro, the Democratic keynoter, introduced his mother, Maria “Rosie” Castro, during his speech.  She is active in a group called “La Raza,” which in English means “the race.”  Which race?  The Hispanic race.  LaRaza is a pressure  group favoring increased Hispanic immigration to the U.S. and provides social services to illegal immigrants here.  She has made her ambivalence about this country known in stark terms, stating about the Alamo, “I can truly say I hate that place and everything it stands for.”  What the Alamo stands for is the American conquest of forces loyal to Mexico.  Apparently she resents a great deal about this country.  I don’t know if her son shares this view, but he made a point of defining himself as her son, highlighting the immigrant aspect of his biography for political advantage while glossing over the fact that his mother is a radical ethnocentric anti-assimilationist.

Rather than Rubio and Castro, I would rather have seen a speech by an American citizen who has invented something, a product or idea, which has succeeded and become a social benefit against the odds.  Bill Gates comes to mind.  His story is more relevant and compelling to us today.  I would also like to hear the stories of high school graduates who cannot find jobs.  They would tell us that wages are so low they cannot survive on one job, that some employers prefer illegal immigrants to citizens, that college tuition is unaffordable and less attractive to them anyway because college graduates seem to be unemployed as well.  They are the people the parties should be trying to help.  Their stories are worth examining on the national stage, and their implicit message is anti-immigration.

Proponents of the DREAM Act like to point to stories of extremely talented high school valedictorians who were brought into the country through no fault of their own by their parents.  Why should we not want such people to remain here?  It seems morally callous to want them deported.  That is true if you take the view that human beings have the right to move freely across borders to better themselves and their families, as is enunciated by many human rights organizations and United Nations treaties.  But no such right exists in the U.S. Constitution or any of our other founding documents or our immigration statutes.  The counter- argument is the right of the nation to enforce its laws, including borders and immigration limits to save jobs for our citizens and maintain the racial and ethnic character of the country.  Under this view, the rule of law is paramount, and anyone wishing to enter the U.S. must do so legally, by respecting our immigration laws.  People who do so illegally should be seen as invaders, not immigrants.  As we know, the founders never intended the U.S. to be a haven for the world’s refugees.  Citizenship was denied to blacks and Indians, women could not vote, and the power to enact immigration laws was reserved to the states.  We have evolved as a nation in a democratic direction, but we have not adopted the open borders philosophy.  The U.S. has always limited immigration except during the 1880-1920 period when it was thought the nation desperately needed workers to staff the industrial revolution.  No such need for workers exists today; in fact we have high unemployment.

If we are to invite the children of illegal immigrants to remain here legally for the rest of their lives, then this raises three questions:  1)What will their legal status be?; 2)What will happen to their parents?; and  3)Will this encourage more illegal immigrants to enter the country in the hope they or their children will also get legal status? Advocates of the DREAM Act never answer these questions.  I suppose they want 1 and 2 to be answered in favor of full citizenship to both groups.  But this goes too far, even if one is operating from the humanitarian perspective.  Allowing even high school valedictorians to live in the U.S. legally for life does not mean they should be granted full citizenship.  We give lawful resident status to hundreds of thousands of people each year, allowing them to live here as non-citizens meaning they cannot vote or serve on juries and can have their status revoked if they commit a crime.  I think there is such an aura of lawlessness to illegal immigrants that it is like original sin and cannot be removed regardless of good behavior.  Such people should be disqualified from citizenship even if they were brought here as children.  Illegitimate children must live their whole lives with the stigma of their parents’ conduct.  Here there is an even stronger case for a lifelong punishment of sorts because their parents acted lawlessly and willfully.

The parents of the children are an even tougher problem.  They are perpetrators, not victims.  I would deport them.  This will complicate the decision to give their children lawful permanent residence.  If the children are dependent, they may not be able to live without their parents.  In those cases, the children will have to live with relatives or guardians who are in the country legally.  If they cannot, then the whole family should be deported.  It is better to lose a few high school valedictorians than give amnesty to illegal immigrants because it encourages more foreigners to come here illegally.  Why not try?  Especially if the president and DHS director speak openly of yet another round of amnesties or DREAM Acts.  Will we say this is the last DREAM Act, and this time we really mean it?  Even if we say that advocates of “comprehensive immigration reform” will never be satisfied with the DREAM Act or even a “comprehensive” solution to immigration which does not include extremely high levels of legal immigration going forward, sufficient to transform the U.S. into a non-Western polyglot.

But it is a huge mistake to offer all children of illegal immigrants the opportunity to live here even as non-citizens.  Yes, it might be desirable to allow the high school valedictorians on the theory that we want high achievers to enter the economy.  But what is the justification for the rest other than the humanitarian point of view, which has to be balanced with the right of the nation to enforce its laws.  I can think of no non-humanitarian justification for their presence in this country.  And if the only reason for allowing them to stay is humanitarian, then that should be balanced by the needs of the nation.  We are deeply in debt.  The taxpayers have a right not to pay more money to support illegal immigrants.  So I would only allow these children to stay if they have sponsors willing to sign surety bonds to support them so they will not become public charges.  They should not be able to enroll in government benefit programs that we would not allow illegal immigrants to get (Medicaid, subsidized health care, Social Security).  If they end up sick without health insurance, the hospital which is obliged to treat them should be able to sue the sponsor to collect.  And if they cannot find gainful employment, they should not be able to collect unemployment benefits.  This seems a fair trade off and would prevent the DREAM Act from turning into a fiscal and immigration debacle.