Editorial 245i is needed

It was an impressive bipartisan gathering at the Emerald Isle Immigration Center in Queens last Monday. The governor of New York, George Pataki, was there, as were four members of the state’s congressional delegation: Carolyn McCarthy, Peter King, Joe Crowley and Steve Isr’l.

The politicians were on hand to pump life into a growing campaign to preserve, for at least another six months, immigration provision 245i, a means of seeking legal permanent residence in the U.S. without having to leave the country and face bans of either three or 10 years.

The 245i issue, which few people were even aware of until Congress allowed the provision to die three years ago, is one of those peculiar situations where the law, politics and common sense all collide. In strict legal terms, it could be argued that the undocumented do not have a right to plead for permanent residence while their very presence on U.S. soil is a defiance of federal immigration statutes.

But immigration itself is not a matter that lends itself entirely to purely legal consideration. Many undocumented immigrants are probably in a position to successfully apply for permanent residence but are being deterred from doing so out of fear that any open move will result in being barred from the U.S. Far from being a deterrent to illegality, the combination of 245i’s demise and the exclusion periods have probably resulted in an even larger undocumented population in the 50 states.

Backers of a 245i extension are not advocating a mass amnesty, nor are they suggesting that the immigration floodgates be opened. The U.S. has a right to control its borders, but all immigrants, no matter what their status under the immigration codes, have a right to plead their case without fear of punishment before the fact. Innocence before proven guilt is no less valid a concept in immigration law than it is in the criminal code.

But as things presently stand, the undocumented are forced to live under a kind of Napoleonic code in which guilt precedes innocence and stepping out of the shadows often results in a ban from U.S. territory. H.R. 1242, which seeks to extend 245i until Oct. 31, should be promptly passed by Congress and signed into law by President Bush.