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A Lawyer's View of Immigration - Voices, November 2010

Written by Elizabeth Kotz | Nov 8, 2010 8:59 PM

When Craig Trebilcock moved to York in 1991, the population he observed was not diverse by any means, being mainly comprised of white Anglo-Saxon Protestants and Catholics, with an African-American population and a growing Puerto Rican population. Today in 2010, the portrait of York's population has expanded.

"The demographics are changing in Central Pennsylvania ... Walk down the street in York today, what are you seeing? People wearing saris, people wearing traditional African clothing, turbans, every language under the sun being spoken. The York City or County Department of Social Services has determined there's over 60 languages being spoken in York County right now — a daily challenge for them when they're trying to provide services to folks who might not know English."

 

Trebilcock, business immigration attorney and chair of the immigration department at Shumaker Williams, a law firm based in York, recognizes the need for such a service in the community today as more immigrants, legal and undocumented, join its ranks.

 

"We're seeing more diversified populations, the more diversified population is creating new social issues that we haven't dealt with before. It's become a challenge for our county courts, our immigration courts, the legal practitioners here who might not be familiar with some of these issues," Trebilcock says.

 

Before he entered the field of immigration law, Trebilcock was a trial attorney. He first was bitten by the "immigration bug" in the early 1990s when he became one of the lead counsel for the Golden Venture cases. These high-profile cases involved 286 illegal Chinese immigrants who fled forced sterilization and abortion in their country by paying thousands of dollars to smugglers, only to end up running aground on Rockaway Beach in Queens, New York, and being detained. The event challenged legislation protocol governing immigration policies at the time and incited debate across the country. Because the Clinton administration didn't want to encourage human smuggling by welcoming the immigrants into the country with open arms, most members of the group who didn't drown or escape were detained in York County Prison as outlined under the legislation in force at that time. It was after participating in these cases that Trebilcock realized "how high the stakes are for a lot of folks in this country — legal immigrants, undocumented immigrants in the United States — where the issues hanging in the balance are literally those of life and death."

 

At the time, there was no outlet for those seeking asylum from coercive population control — a method used by the Chinese government since they instituted the one-child policy in the 1970s. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act changed that and reserved 1,000 slots annually for those seeking political asylum because of forced population-control methods. However, not all of the Golden Venture group benefited from this. The last 39 refugees were released in 1997 following parole granted by the Clinton administration, but were not granted any type of legal status and were left to work that out on their own by finding jobs and acquiring the necessary papers.

 

Trebilcock served as a Judge Advocate General Corps officer in the U.S. Army and currently holds the rank of colonel in the Army Reserve, which has led him to deployment in Germany, Bosnia-Herzegovina and Iraq. He has written numerous professional articles and books that have been praised by the likes of NBC anchor Brian Williams and editor Bernard Edelman.

 

Of his then newfound drive to work in the immigration field, Trebilcock says, "In our federal administrative court system, immigrants in removal/deportation proceedings have no rights to legal counsel. That really energized me, and I started getting more and more involved in immigration work."

 

trebilcockChallenges upon arrival

 

Not having access to legal counsel is a major roadblock immigrants face when they arrive in the United States, and one Trebilcock believes should be granted through a much-needed change in immigration law. Not having access to legal counsel can often mean a death sentence for an undocumented immigrant fleeing persecution.

 

"I think one of the biggest challenges is, even if you commit a minor crime and you're a U.S. citizen, there's very often a constitutional right to have an attorney appointed," Trebilcock says. "In these scenarios, where life and death may be on the line, if you get deported back to the country where they think you're in the wrong political party, you get shot in the back of the head. There's no right to an attorney. So you see some of the gridlock that exists in the immigration system, whether it's in the immigration courts or just in applications through the mail, is that legal counsel — it's just not there... So you may have this person who could become legal, but there's nowhere to turn."

 

This dead-in-the-water situation for immigrants is a low-risk market for schemers who can easily take advantage of immigrants, especially if they've arrived in the United States illegally.

 

"It creates a secondary issue that's a big problem, which is what we call the 'unauthorized practice of law,' " Trebilcock says. "There's an industry out there of non-lawyers who victimize these people by claiming that 'I can file papers and get you legal.' The slang term is 'notario,' and they either just pocket the money and don't file the papers, or they do file the papers, but they muck them up so that they make the situation even worse."

 

Having no access to legal counsel isn't the only obstacle immigrants face when they become undocumented. They can't acquire identification, says Trebilcock. Because of this, establishing the trappings of a normal life, like a bank account, is difficult. They also can't get insurance, which presents an issue if children are involved. They typically can only acquire "very unpleasant, labor-intensive jobs," says Trebilcock. He adds, "You can see by the targets for the immigration service where there's a disproportionate number of folks — that would be meatpacking plants, digging ditches and agricultural work."

 

People are often trapped in these positions with little chance of finding a better-paying job. "They're stuck," Trebilcock says.

 

The 'Scarlet A' of Undocumented Status

 

Immigration is an ongoing process. Undocumented status isn't always the result of illegal entry. It can happen a number of different ways, often unintentionally, and is not something set in stone that stays with an individual. But it isn't easy to overcome the stigma of being an undocumented immigrant in the United States, even if you entered the country legally.

 

"Immigration status is a continuum," Trebilcock points out. "If you go rob a bank, you're always a bank robber. If you're convicted of that, you're always a felon. It sticks to you like glue. The undocumented status of people in the United States is different than that, and this is where people get it mixed up... Not everybody who comes into the United States who's undocumented stood at the border going, Aha, I'm coming to steal jobs from Americans.' That's not the scenario. We have a lot of people who come here legally and are forced into being illegal. We have a lot of people who come here legally and our immigration laws are so dense and hard to follow, that even if you try in good faith to follow the rules, without an immigration lawyer, good chance you're going to become undocumented. You send in a personal check instead of a money order, and if you miss the filing deadline, you're undocumented."

 

Using a model developed by the former INS (Immigration and Naturalization Services), The Pew Hispanic Center, an independent research group, estimated that as many as one-half of unauthorized immigrants in 2006 were admitted legally but overstayed or otherwise violated the terms of the their authorization.

 

For those who enter the United States illegally, the reason and context is often different than many Americans suppose.

 

"It's the perception that it is Hispanic people swimming the Rio Grande taking jobs away from Americans," Trebilcock says of current stereotypes. "There is kind of the perception that it's a Mexican immigration issue, when it's much broader and more complex than that."

 

A Better Life

 

Many immigrants come to America to improve the quality of life for themselves and their families. Often the situation in their home country is so severe that the chance of detainment and arrest by U.S. Immigration and Customs Enforcement is a welcome risk compared to what awaits them back home.

 

"It can be desperation to survive," Trebilcock says of reasons that immigrants may choose to enter the U.S. illegally. "Anytime you see one of these mass human tragedies on TV or in the paper — whether it's a hurricane slamming into Central America or a civil war — those people may have lost everything and they want to survive. America has this reputation as a place where you can come and people will be compassionate. Conversely, due to politics, when some of those major national/international tragedies occur, very often the politics of the United States is to try to keep those people in their home country because they don't want the United States to be flooded with refugees. And so you have this tension, where even if people are perhaps qualified — they might meet the legal definition to be able to be a refugee — the U.S. State Department will slow the process down to dissuade them from coming. It's very political; it's very nasty."

 

Natural disasters aside, the political climates and living conditions in many countries make that apparent reputation attractive. America has become the safe haven destination for many foreign nationals seeking asylum when other national climates took a dive. "It's very often, I want my children to survive. I want my kids to have medicine. I don't want to live in the village where the guerillas show up once a month and haul off the young men to fight in the civil war."

 

Some will do whatever it takes to ensure that their family has a better future, or even just a chance of survival. Trebilcock has experienced the dedication of these people firsthand.

 

"I had a client, for example, who came to the U.S. carrying her child on her back from El Salvador because the child had some sort of very nasty disease in his leg, and the solution in El Salvador was, We're going to cut the leg off.' She wasn't willing to accept that. She put the kid on her back and from El Salvador made it to [the United States], got him medical care, saved the leg and now the kid is a soccer star."

 

In other cases Trebilcock has met with, the individual found refuge, but the path wasn't smooth. "I had a young lady, 12 years old, put on a one-way flight from her home in China by her parents, who did not take care of her," Trebilcock says. "Flown in to Canada and then turned over to a smuggler who got her across the logging trails in the Northwest into the United States. Ending up working at a restaurant in New York City. Escapes from the people who are trying to force her into some very unsavory duties, but they have long arms.

 

"They found out where she was located in Central Pennsylvania after a very compassionate Central PA couple took her in under their wing. They started calling the house, trying to extort money from the family. 'We know where you are. We're going to get you. We're going to harm you. Your family owes a lot of money for getting you to the United States. Pay up or you're going to get hurt.' Extortion. They went to China, found her family, broke her brother's legs. They then put her mother on the phone, crying and screaming, They're hurting your brother! They're hurting your brother! You've go to come up with the money.' A horrible, horrible situation happening right here in Central Pennsylvania. So this young lady did not give in to the coercion and got involved with local law enforcement to investigate this crime."

 

Some believe that there is no gray area in immigration status — an individual is either legal or illegal, and there's no in-between. Trebilcock stresses that people can't look at status from only one direction. "We do need secure borders," Trebilcock says. "I get that. I got to spend 15 months overseas because we didn't have good border security in 2003. But if you see people holding signs that say, Illegal is illegal. What don't you get about that?' — well, that's very simplistic."

 

A 200-year-old Love-Hate Relationship

 

It isn't the first time that the citizens inhabiting the "nation of immigrants" have held strong feelings about immigration. Since its inception, America has attempted to play both sides of the immigration issue. Trebilcock sees a significant pattern.

 

"This is very important. The nation's attitudes about immigration are cyclical, and they're directly tied to the economy," Trebilcock says. "Every time the economy goes in the tank, a whole group of people come marching out screaming that immigrants and immigration are the source of problem in the country. As soon as the economy gets better, they go away. And people, including politicians, are quietly realizing that our economy runs on the backs of immigrant labor. So when things are going good, no one really brings it up. This has been occurring since the 1800s, this cyclical pattern of America having a love-hate relationship with immigration."

 

Some of that ambivalence is manifesting itself in the form of state and local governments attempting to exercise powers that have traditionally been the realm of the federal government. In Hazleton in 2006 and this year in Arizona, local governments passed measures aimed at illegal immigrants that blurred the line between state and federal jurisdiction by, respectively, threatening to fine those who did business with illegal immigrants and combining lawful-residence-status searches with everyday traffic violations.

 

"Congress controls immigration," Trebilcock says. "The U.S. Constitution says that Congress has plenary power to rule immigration. It's supposed to be one set of laws, one standard. What you're seeing play out, whether you consider yourself pro-immigration or anti-immigration, is [our immigration laws are] outdated. You're seeing, in local communities and states, this frustration playing out by those levels of government and society trying to take matters into their own hands. That's why we see Arizona trying to pass state laws to affect and influence immigration when it's really not their job."

 

Trebilcock feels that an atmosphere of distrust and antagonism often underscores myths about becoming undocumented, so that the safety and assistance that fleeing immigrants expected becomes elusive. "When the atmosphere in the country gets negative on immigration, people tend to go underground," he says. "They don't see relief. They don't reach out for help, and that can have negative social consequences. It helps confirm a fiction that if you become undocumented, there's nobody wanting to help you. That can lead to more women and children being abused, more trafficking victims thinking there's nowhere they can turn. It's not a positive thing."

 

Trebilcock doesn't build his practice upon representing undocumented immigrants, but he donates his time to organizations like the Pennsylvania Immigration Resource Center in York because he feels "there needs to be that equal access to justice."

 

Bipartisan Challenge

 

The first step to improving the immigration situation in the U.S. is updating inefficient immigration laws, says Trebilcock. However, he feels that complete bipartisanship is necessary before any headway can be made in improving immigration legislation. Trebilcock says he is patiently awaiting the day when the ball will start rolling on true reform and political smokescreens will clear.

 

"The law is unfortunately caught up in politics right now, both ways. The Republican Party is trying to couch the issue that the Democrats don't really care about American jobs and are weak on national defense. The Democrats are trying to couch the issue that the Republicans are heartless and don't care about immigrants to try and win over the Hispanic vote in elections. Nobody's being honest on the issue."

 

Interviewed before November 2, Trebilcock said, "Frankly, I have zero confidence that anything positive is going to happen in reforming the law until after the elections. Then perhaps, after that magnifying glass is gone, politicians will return to being honest about it."

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